Glacier Packing Co., Inc.

GLACIER PACKING CO., INC. Glacier Packing Co., Inc. and United Electrical, Radio and Machine Workers of America, Local 1014, Petitioner. Case 20-RC-10264 May 13, 1974 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 29, 1973, the Regional Director for Region 20 issued a Second Supplemental Decision and Certification of Representatives in the above- entitled proceeding, in which he adopted a Hearing Officer's findings and recommendations with respect to certain challenges and objections, and certified the Intervenor 1 as the representative of the employees in the appropriate unit.2 Thereafter, the Employer, in accordance with the National Labor Relations Board Rules and Regulations, as amended, filed a timely request for review of the Regional Director's Second Supplemental Decision on the grounds, inter alia, that the Regional Director erred in adopting the Hearing Officer's conclusions with regard to alleged improper conduct of Board agents in the conduct of the election. On October 29, 1973, the Board by telegraphic order granted the request for review solely with regard to whether Board agent misconduct impaired employee free choice and stayed the certification pending decision on review. Thereafter, the Employ- er and the Intervenor filed briefs on review. The Employer also filed a motion for reconsideration of the Board's Order dated October 29, 1973, insofar as it denied the request for review of the Regional Director's disposition of objections relating to the issue of waiver of initiation fees, urging that review be granted with respect thereto in the light of the 1 Western Conference of Teamsters, Food Processing Division, Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. 2 The tally of ballots for the election, conducted on May 19, 1972, showed that of approximately 500 eligible voters, 107 cast valid ballots for the Petitioner, 230 for the Intervenor, and 44 against the participating labor organizations; 92 cast challenged ballots, and 3 cast void ballots. The Regional Director on July 5, 1972, issued a Supplemental Decision in which he overruled the Employer's Objection 41 and ordered a hearing on the challenges and the remaining objections. After a hearing thereon com- menced on August 1 , 1972, the parties entered into a stipulation to set aside the election and conduct a rerun election On August 11, the Regional Director approved the stipulation and ordered the hearing continued indefinitely. Subsequently, on September 7 and 8, the Petitioner and the Intervenor, respectively, filed unfair labor practice charges against the Employer. As requests to proceed with the representation case were not filed, the Regional Director canceled the rerun election agreed to be held on September 14. On September 20, the Petitioner requested permission to withdraw its objections and challenges . The Regional Director approved the withdrawal of the objections but, absent a written agreement as to the eligibility of the voters involved, denied the request for withdrawal of the 571 United States Supreme Court's decision in N. L. R B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review,3 including the briefs on review, and makes the following findings: The Employer's Objections 42, 43, and 44 read as follows: 42. The ... Board, by the conduct of its Agent of interrogating Employer observers con- cerning their lawful exercise of their lawful rights as observers during voting hours at the polling place in the presence of voters, demonstrated to employees the lack of neutrality by the NLRB and its Agent, demonstrated to employees the opposition of the NLRB and its Agent to the lawful exercise of Employer rights, demonstrated to employees anti-employer bias and prejudice by the NLRB and its Agent, and interfered with the fair operation of the election process and the necessary laboratory conditions. 43. The . . . Board, by the conduct of its Agent in the presence of voters during voting hours at the polling place in forcefully ripping "Vote NEITHER" signs from the Employer observers, without making any prior request for removal thereof, and tearing said "Vote NEI- THER" signs in small pieces, all in the presence of voters during voting hours at the polling place, demonstrated to employees the lack of neutrality by the NLRB and its Agent, demonstrated to employees the opposition of the NLRB and its Agent to the lawful exercise by the Employer of its rights, demonstrated to employees bias and prejudice of the NLRB and its Agent against the Petitioner's challenges . On November 30, a complaint based on the charges issued. On December 1, the Regional Director issued a Notice of Reopening of Hearing on Objections and Challenged Ballots. The Employer filed a motion for reconsideration of said notice , which the Regional Director denied on December 18. On January 5, 1973, the Employer filed with the National Labor Relations Board a motion to vacate the Regional Director's said notice. By telegraphic order dated February 28 , 1973, the Board (Chairman Miller and Member Kennedy dissenting) denied the motion The Employer filed a motion for reconsideration thereof, which the Board dinied by telegraphic order dated March 23. On April 3 , the hearing was reopened. After the hearing, the Hearing Officer issued his report on June 13, in which he recommended that 19 challenges be sustained , that the Employer's Objections 1-40 and 42-50 be overruled, and that, as the remaining unresolved challenges were insufficient in number to affect the election results, the Intervenor be certified Thereafter, the Employer filed exceptions to the Hearing Officer's report and a brief in support of its exceptions. The Regional Director, in his Second Supplemental Decision, found the exceptions to be without merit. 3 The Employer's motion for reconsideration relating to the waiver of fees herein is denied as lacking in merit 210 NLRB No. 78 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer, and interfered with the fair operation of the election process and the necessary labora- tory conditions. 44. The . . . Board by the use, distribution and communication of Instruction to Observers, including oral instructions and printed instruc- tions to observers (Form NLRB-722)(2- 59)(which said instructions misrepresent and incorrectly state the law with respect to the rights of employer observers), interfered with the fair operation of the election process and the neces- sary laboratory conditions and demonstrated to employees bias, prejudice and lack of neutrality by the NLRB and its Agent and the opposition by the NLRB and its Agent to the lawful exercise of rights of the Employer observers. Form NLRB-722 (2-59), "Instructions to Election Observers" contains a listing of "Things Not to Do," among which, item 7 states: Wear any indication of the organization which you represent except the observer badge provided by the Board. This includes badges, buttons, placards, electioneering devices, etc., including advertising on any article of clothing. The Board Agent is the sole arbiter as to the type of identification to be worn during the election. This, of course, does not apply to regular company identification badges, the wearing of which is required by the company. The Hearing Officer treated Objections 42 and 43 together. With regard to an incident involving the Employer's observers, Wilma Medlock and Amparo Gallegos, he found as follows: Medlock and Gallegos arrived at the polling area with small cards pinned to their lapels which stated "Vote Neither." Soon after the polls opened these insignia were observed by Agent Stuart Dvorin. He told Medlock that she could not wear this campaign tag and he "yanked it off," stating, "shame on you real loud in front of the voters and all the other observers." Medlock testified: "I was embarrassed." Initially, Medlock claimed that Dvorin tore the badge "in little pieces." Subsequently, in her testimony, she admitted no specific recollection as to whether Dvorin tore or wrinkled this tag. She also testified that had Dvorin asked she would have removed the badge, but he did not precede his action with this request. Amparo Gallegos also testified about this incident. She recalled Dvorin "told us we weren't supposed to be wearing that and he took it off," referring to the campaign tag. She testified that: "He just pulled it off," without asking permission. Subsequently, Gallegos testified when questioned whether Dvorin first told Gallegos that he wanted her to take off the tag: "I don't think so." During cross-examination Gallegos stated that she did not remember who removed her tag. The Hearing Officer also found: Although not specifically delineated in any of the Employer's objections, evidence was received describing certain conduct of Board Agent Stuart Dvorin which warrants consideration. Robert Studdard, the Employer's director of personnel at Sanger, was the only witness who testified to this incident. Based upon his demeanor and testimo- ny, I credit his statements. Studdard was standing outside about 200 ft. from the building where the election was being conducted. He was distributing literature to employees. He recalled Dvorin "talked to me in a loud voice in the presence of some 15 or 20 employees who actually ended up being Mr. Dvorin's cheering section." Dvoring told Studdard: "Get out of here. Stop this. You have no business and no right to be here handing out anything." Studdard had a limited recollec- tion of the actual words spoken during this conversation. He stated: "I remember one thing I told him he was not talking to any dog. He was talking to a human being, and I expected him to talk to me as a human being." Both parties to this conversation became distressed. The employees who observed this discussion began clapping their hands together, laughing, and making "catcalls" and pointing their fingers at Studdard. This conversation lasted 5 or 10 minutes. Studdard walked approximately 200 ft. away from where he was initially standing and Dvorin remained with him. The Hearing Officer concluded that the evidence, even if fully credited, does not support a finding that the conduct was of such gravity as to prejudice the fair operation of the election process. He also concluded no showing had been made that the instructions to Board agents to restrict observers from wearing electioneering material while the polls were open were prejudicial to the fair conduct of the election. The Regional Director adopted without comment the Hearing Officer's recommendations that these objections be overruled . We granted the Employer's request for review because of our concern that the conduct of a Board agent may have created the impression in the minds of voters that the Board was opposed to a vote against the participat- ing labor organizations. GLACIER PACKING CO., INC. 573 At the outset, we reject the Employer's argument that observers designated by the parties involved in Board-conducted elections have a right to wear campaign material favoring one of the choices on the ballot. Clearly the Board's instructions to its agents conducting elections, which the Employer asserts are objectionable, are consistent with the prohibition against electioneering at or near the polls.4 Board agents conducting elections may therefore delineate an area within which electioneering is prohibited; they must exercise their judgment as to what constitutes electioneering activity; and they are required to take reasonable measures to restrict electioneering activity which comes to their atten- tion, consistent with their other obligations.5 Board agents in conducting elections in behalf of the Board must endeavor to maintain and protect the integrity and neutrality of its procedures. Therefore, while taking all practicable measures to implement the prohibition against electioneering at or near the polls, they must take care that their actions do not tend to foster in the minds of the voters the impression that the Board is not neutral with regard to the choices on the ballot. For, the Board's role in conducting elections must not be open to question. Thus, actions by a Board agent conducting an election, which could reasonably be interpreted as impugning the election standards we seek to main- tain, are sufficient grounds for setting aside the election. In the instant case, based upon the Hearing Officer's findings of fact set forth above and our review of the record, we conclude that employees witnessing the two incidents involved could reason- ably have interpreted Board Agent Dvorin's remarks and actions as indicative that the Board was opposed to the Employer's position in the election. As the election was one in which the Employer had campaigned vigorously against the participating labor organizations and, in our view, the manner in which the Board agent conducted himself in the presence of employees who had not yet voted may have had a substantial impact on the results of the election, the Employer's Objections 42 and 43 are hereby sustained. On this basis we shall set aside the election and direct that a new one be conducted. ORDER It is hereby ordered that the election herein before conducted on May 19, 1972, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER JENKINS, concurring: I concur in the result. 4 It is to be noted that the posted official election notices expressly prohibit electioneering at or near the polls. s Whether or not electioneering activity which does occur at or near the polls constitutes grounds for setting aside the election depends upon a number of factors. In the situation where a party to the proceeding engages in electioneering, which is more than de mmimu, at the polling place while voting is in progress, the Board finds such electioneering to be per se a basis for setting aside the election. See M.khem, Inc., 170 NLRB 362. In all other situations, where electioneering occurs at or near the polls, the Board makes a judgment, based on all the facts and circumstances, whether the electioneering substantially impaired the exercise of free choice so as to require the holding of a new election. See Star Expansion Industries Corporation, 170 NLRB 364.