H. Morgan Daniel-Seafoods, Inc.

H. MORGAN DANIEL SEAFOODS 695 H. Morgan Daniel-Seafoods, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AF-CIO, and Its Local 171, Petitioner. Case 23-RC-3487 August 17, 1971 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS JENKINs 1 1, AND KENNEDY Pursuant- to a Decision and Direction of Election issued' by the Regional Director for Region 23 on ,September 9, 1970,1 an election by secret ballot was conducted on October 7, 1970, under the Regional Director's direction and supervision, among the employees in the unit -found appropriate. At the conclusion of the election, the parties were furnished with a tally'o€-ballots which showed that of approxi- mately 184' eligible voters, 158 cast ballots, of which 110 were for, and 38 against, the Petitioner, 9 were challenged, and' I was void: The challenged ballots were not sufficient in number to affect the results of the election. Thereafter, the Employer filed timely objections to the conduct of the election and to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation of the objections and, on December 10, 1970, issued and duly served upon the parties his Supplemental Decision, Order Directing Hearing and Notice of Hearing, in which he ordered that Objection I be overruled and that a hearing be held to resolve the issues raised by Objections II, III, N, and V. Pursuant to the Notice of Hearing, a hearing was held on January 12, 1971, before Hearing Officer T. Lowry Whittaker. All parties participated and were given full opportunity to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On April 2, 1971, the Hearing Officer issued and duly served upon the parties his Report on Objections in which he recommended that the objections be overruled in their entirety. Thereafter, the Employer filed exceptions to the Hearing Officer's report limited to the recommendations concerning Objections II, N, and V. Pursuant to Section 102.67 and 102.69 of the Board's Rules and Regulations, the Regional Director, on May 3, 1971, transferred this case to the National Labor Relations Board for Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegat- ed its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the Hearing Officer's report, the Employer's exceptions thereto, and the entire record in this case, and hereby adopts the Hearing Officer's findings and recommendations? The Regional Director in his Decision and Direc- tion of Election found appropriate, and directed an election in, a production and maintenance unit, including, inter alia, "busy season" employees, the Employer herein having a peak or "busy" season which extends from mid-July through October or November of each year. In response to the Excelsior requirements set forth by thelRegional Director in his Decision, the Employer supplied two separate eligibil- ity lists-one containing the names of regular year- round employees and the other names of "busy season" employees. On the day of the election, approximately one-half hour prior to the opening of the polls, the Employer's principal officer, its attorney, and its observers, Perez and Ramirez, met and went over the "busy season", eligibility list together. They found that some of the names thereon were those of year-round employees whose names should have been on the "regular" list and the observers agreed .that they were not going to challenge the ballots of these persons., As to the remainder of the "busy season" list, observer Perez testified that the Employer's attorney instructed her and Ramirez to challenge the ballots of all those they thought were temporary employees and the term "temporary employee" was then defined as meaning somebody who "w?uldn't be working there long enough. For about two or three months or so." Observer Ramirez testified similarly, but also statedwith respect to the entire "busy season" eligibility list of 83 names 3 -that she was told to 1 On September 7A. 1970, the Employer filed with the rational Labor Relations Board a request for review of the Regional Director's Decision and Direction of Election, alleging that the Regional Director had and insofar as he had included "busy season employees" in the production and maintenance unit found appropriate. On October6, 1970, the Board issued an order denying the request for review on the ground that it raised no substantial issues warranting review of the Decision and Direction of Elee ion. 2 The , Employer's exceptions, in our opinion, raise no material or substantial issue of fact or law which would warrant reversal of the 192 NLRB No. 91 Hearing Officer's findings and recommendations. In the absence of exceptions thereto, we adopt pro forma the Hearing officer's recommendation that III be overruled with respect to Objection IV, we need not and do not pass upon the Hearing Officer's comment that, because of the default of its own observer, the Employer could, not have the election set aside even if there had been, in fact, a wide violation of ballot secrecy. a The "busy season" eligibility list originally contained 90 typewritten names and addresses, but 7 were stricken and marked "terminated" as of the time the observers went over the list. During the election, the names of (Continued) 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD challengemost=of them" and that there were "a few" names on the'li'st that she 'was not going to 'challenge, At'the time of the election, neither Perez nor Ramirez had any supervisory or peisonnelresponsibilities,and neither had access to the Employer's employment records or knowledge of its'hiring procedures. When the polls opened, 'the first three voters to appear were persons on the "busy season" list and observers Perez and Ramirez challenged=each of them on the ground that they were temporary employees. The Board agent in charge of the election then inquired as to how many more "busy season" employees they' were going,to challenge and whether they intended to challenge them all. The} observers responded that they didn't know how many they would -challenge and that they had received instruc- tions- to ' -challenge all those they believed were temporary employees. Thereupon, the Board` agent informed the observers; in effect, that he would not allow ""' ° them to ' challenge-as temporary employees^=-any other voters whose names were on the EinpIoyer's eligibility lists. Thereafter, no other "busy season" "empl`oyees---excepting' those not in- cluded=on'the Employer's lists-were challenged. The ''Employer's 'objections, II and V, assert, inter alia, that the Board agent refused to accept challenges to the ballots of clearly ineligible employees, thereby invalidating the election.4 The Dearing Officer recommended , that these objections e be - overruled, finding ` that - the procedures adopted by° the Board agent with respect to the handling ' of challenges constituted firm and proper' 'action designed to preserve orderly „election 'processes and to prevent mass challenges in defiance of the Regional Director's unit determination. Weagree. In its exceptions, the Employer `asserts that the Hearing, Officer erred in'concluding that the instruc- tions given its observers constituted defiance of the Regional` Director's rulings with respect to the eligibility 'of "busy season" employees. Further, the Employer states that it did not, in fact, direct its observers to challenge "busy season" employees' and that the hearing Officer erred in so finding because he failed to differentiate between "busy season" employ- ees and temporary employees. We find these conten- tions to be without merit. Under all the circumstances herein, as `set forth supra, the net import of the Employer's instructions to its observers was substan- three employees were added by pencil and they cast challenged ballots. 4 The -same -objections also asserted that' the Board agent's refusal to entertain such challenges caused confusion at the polls,' discouraged a number of"eligible employees from voting,` and may have prevented the challenging of voters not in the continued employ of the Employer. However, no substantial evidence with respect to these assertions was presented 'at the hearing and the Employer's exceptions do not take issue with the Hearing Officer's findings thereon. tially, as, characterized, by the Hearing O Eieer:, With specific reference to , the busy season' list, the Employer told.its observers to challenge all employees they personally regarded as being `temporary and "temporary" was then given a definition reasonably calculated to effectuate the, challenging of "busy season" employees previously found eligible to vote by the Regional . Director'5 Further, a one' of the observers testified that she intended to challenge most of the "busy season" voters. Moreover, we find that'; there is no- substantial evidence in the record of any'ineligible employees being permitted to cast unchallenged ballots as a result of the actions' of th, Board agent.' The Employer's exceptions assert that the Hearing, Officer erred in. making a sim%lar findingybut^the only record evidence it could cite was, the -,bare state}nent''of observer Perez that "quite a- few" of the employees voting were regarded by her as, being, ineligible Yet temporary employees. However, ,unlike, `observer Perez, the Employer had' ready" access', to, , and knowledge of, the employment records and histories of all employees voting in this election, but presented no evidence whatever that employees, -.ineligi'ble' to vote under the unit, provisions, of .-the Regional Director's Decision and Di ection of Election were permitted to'do so withoutchallehge: Finally; we ore that it I is the Employer'-not the- ,Hearing Officer-who has failed to differentiate , between "busy season" and ` t porary" employees` in this case. Evidence adduce at the hearing clearly indi- cates that the "temporary" employees the, Employer sought to have challenged _ at-the . election were substantially the same_,p`ersons, -as the "busy season" ,employees, the' Employer previously sought -unsuccessfully- to have excluded from .the unit at the hearing on the representations petition herein., r Accordingly, as all of the objections : have been overruledi'and the Petitioner, has received a;majority of the valid ballots cast, we shall certify it_ as the exclusive bargaining representative of the nmpoyees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that algamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, and its Local 171, has been designated and 5 The election was held less than 3 months after tile mid-July commencement of the "busy season" and th'e entire "busy season" cards 'in October or November. Therefore, challenging--as temporaries-=employees who'had worked or would work "two or three-months or so" was a,clear attempt to frustrate the Regional Director's eligibility determination. -' ' 6Objection I was overruled by '.the' Regional Director' in his Supplemental Decision of December 10, 1970. No timely request for review thereof having been filed by the Employer, that di'sposi'tion wasp final. H. MORGAN DANIEL SEAFOODS 697 selected , by a majority . of the employees of the organization is the exclusive representative of _, all Employer in the unit found appropriate herein as their employees in such unit for the purposes, of collective representative for the purposes of collective bargain- bargaining with respect to rates of .pay, wages, hours ing and that, pursuant to Section 9(a) of the National of employment, and other terms -and conditions of Labor - Relations Act, as -amended, the said labor employment.