R & R Processors, Inc.

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R & R Processors, Inc. and Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL-CIO, Petitioner. Case 15-RC-5277 April 29, 1975 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF THE ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Pursuant to the Board's Decision and Order Direct- ing Hearing, issued on May 10, 1974, a hearing was held on June 19 and 20, 1974, before Hearing Officer J.O. Dodson, duly designated for that purpose, at which time the Employer, the Petitioner, and counsel for the Regional Director for Region 15 appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, and to pre- sent oral argument to the Hearing Officer. On December 2, 1974, the Hearing Officer issued his Report on Objections in which he recommended that the results of the election be set aside and a second election be held. Thereafter, the Employer filed timely exceptions, and a supporting brief, to the Hearing Of- ficer's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees in the Employer's poultry processing plant located on Highway 35 North in Carthage, Mississippi; ex- cluding office clerical employees, truck drivers, guards, and supervisors as defined in the Act. 5. With respect to Objection 5, the testimony at the hearing is in conflict as to whether, during the five preelection meetings held by the Employer, the em- ployees were told that if the Union should win the election the Employer would not sign a contract. Peti- tioner's witnesses testified that the employees were told this and -the Employer's witnesses denied that they were. The Hearing Officer credited Petitioner's wit- nesses. But he did not credit them on the basis of their demeanor at the hearing and his report does not dis- close any basis for his credibility resolution. We have therefore found it necessary to make an independent evaluation of the entire record.' Upon careful examination of the record, we are left unpersuaded by the testimony of Petitioner's witnesses credited by the Hearing Officer. The Hearing Officer found that employee witnesses at the hearing were con- fused; were guilty of contradictions in their testimony, including unexplained material contradictions of pre- hearing affidavits; in many cases, were inattentive and slept through the meetings; and, in most cases, were limited to a degree in the usage and comprehension of statements made to them at the meetings. In our read- ing of the testimony, we find this characterization of the witnesses to be especially applicable to those pre- sented by Petitioner. Among the employees who testified for the Em- ployer, and denied that any threat of a refusal to bar- gain was made, is H.F. Ealy. Ealy is the only witness whom the Hearing Officer found to be a credible wit- ness on the basis of demeanor.' Thus, the Hearing Of- ficer states that he "was impressed by . . . [Ealy's] candor through his testimony, his attempts to respond to the best of his ability to questions posed to him by counsel for all parties and the Hearing Officer, and consequently find him to be a credible witness." Yet, despite this acceptance of Ealy as a credible witness, the Hearing Officer found, contrary to Ealy's testimony, and without any accounting for its rejection, that the Employer made the threat as charged. In the circum- stances, we cannot adopt this ambivalent,treatment of Ealy. The testimony of the employee witness for the Em- ployer finds support in other record evidence. At two of the meetings, those which all employees,attended, the remarks of management had been reduced to writ- ing and are in evidence as Employer Exhibits 6 and 7. Although these remarks refer to the fact that Employer President Etheridge had been bargaining at another of his poultry processing facilities for over a year without signing a contract, they contain no statement about not signing a contract with this Petitioner. Both Etheridge, who attended all but the fourth meeting, and Plant Manager Travis, who attended all five meetings, testi- fied to the adherence to the texts of these speeches. 1 See Canteen Corporation, 202 NLRB 767 (1973). 2 "Our policy, as enunciated in Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), is to attach great weight to a Judge's credibility findings insofar as they are based on demeanor " Canteen Corporation, supra at 769 217 NLRB No. 86 R & R PROCESSORS, INC. 563 Travis denied that any remarks about not signing a contract were made at the other meetings; and Etheridge testified that Travis made no such statements in his presence. Certain testimony given by Petitioner's witnesses in effect corroborates the Etheridge-Travis testimony. Based upon our analysis of the record as a whole, we do not find therein substantial credible testimony which supports the Hearing Officer's finding that the Employer told the employees it would not sign a con- tract if the Union won. We shall overrule objection 5. 'We do not agree with our dissenting colleague that the Employer's speeches interfered with the laboratory conditions of the election. The Employer's recital of Meat Cutters strikes at other plants was not shown to be untrue, and was made as a part of the Employer's description of the consequences of strikes. Having ex- amined in context the parts of the speeches which our colleague refers to, we find that the Employer did not threaten the employees with any untoward conse- quences should they select the Union to represent them.' Indeed, the Employer in its speech (Exh. 6) 3 'The phrase "we still don't have a contract" appears in the following paragraph. What I have been telling you is no fairy tale it has happened all over the country In fact, it's happened right in our neck of the woods Some of you know that I have part ownership in Poultry Packers over in Forest, Mississippi. We had a union election at Poultry Packers about one year ago I'll be completely honest with you-those employees fell for the union promises and voted the Union in Those employees made the mistake of believing the union promises and believing that I would agree with all the Union's demands at the bargaining table. But, they were wrong I have not agreed with the Union's demands. The Union won that election in Forest a year ago and we still don't have a contract The Union has made many demands on me and I have told them no. We note, however, that there is no evidence that any of the Employer's conduct at Poultry Packers' plant was improper, nor is there any contention that the facts are other than as related Furthermore, the portion of the Emplloyer's speech, identified as Exh . 6, referred to by our dissenting col- league, contains no more than a description of the closing of a similar plant near the Employer's. The text of the paragraph of the second speech referred to by our col- league is as follows I have been spending a lot of time in the last few weeks making sure we keep this plant open In fact, yesterday I spent all day in Washing- ton, D.C on this energy crisis doing my best to make sure we keep the plant open I'll be completely honest with you-it's been a hard fight However, so far, I have been successful and have managed to get enough fuel to keep the plant operating I have been able to do this for one reason and one reason only I have not had to worry about union strikes or other union troubles but have been able to spend all my time keeping this plant open. I'll tell you something else, I believe that as long as things stay the way they are I will be able to continue to keep this plant open. However, if the Union gets in here and causes a lot of trouble or calls a strike I don't know what will happen I can only solve one major problem at a time Here the Employer has said no more than that it can't predict the conse- quences of a union strike Such a statement does not amount to a threat nor quotes this Board's own publication: (A document fur- nished by the National Labor Relations Board for dis- tribution to the public, entitled "To protect the rights of the public. . .," GPO: 1968 0-323-252.) ",The give and take of the bargaining table usually leads to written agreements, although neither side is obligated to agree to a particular proposal." In our view, the Employer's speeches were privileged expressions of opinion under Section 8(c) of the Act. Accordingly, we shall certify the results of the elec- tion. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER FANNING, dissenting: Contrary to my colleagues, I would adopt the recom- mendation of the Hearing Officer and direct a second election based on objection 5. At the hearing on objections, the Petitioner offered nine witnesses, all of whom testified that at some time during the five preelection meetings held by the Em- ployer they were told that President Etheridge would not sign a contract. In my opinion, the record as a whole supports the Hearing Officer's conclusion that such statements were in fact made. The failure of the Hearing Officer to rely specifically upon demeanor in making his findings with respect to objection 5 in no way weakens their validity.' There is, in addition, the interpretation to be given the speeches which were read by the Employer at the first and last of the five meetings with employees. These repeatedly refer to strikes occurring if the Meat Cutters even a prediction that it will take adverse action in the event the employees elect the Union to represent them 4 My colleagues attach significance to the fact that the only witness actually credited by the Hearing Officer on the basis of demeanor was Ealy, a witness for the Employer who was somewhat eloquent in denying that he ever heard President Etheridge say that he would not sign a contract with Petitioner, to wit "I could stand on a stack of bibles and say I never heard him say nothing like that " The Hearing Officer was impressed by Ealy's "candor throughout his testimony" and termed Ealy "a credible witness" though like the majority of employee witnesses of both parties "he had difficulty in recalling specifics of statements made at the various meetings." In my view, the mere fact that Ealy credibly testified that he "heard" no such remark-which is not the same as testifying that no such remark was made-is insufficient reason to reverse the Hearing Officer's crediting all the Petitioner's witnesses who, with variations, testified that they were told that Etheridge would not sign a contract In characterizing the Hearing Officer's treatment of Ealy as ambivalent, my colleagues overlook the possibility that Ealy-like all of the employee witnesses-may at a crucial time have been asleep, or inattentive If this were so it would be consistent with Ealy truthfully testifying to not having "heard" Etheridge make such a statement. 564 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD should win, and- to this Employer having bargained with a union for over a year at a nearby Forest, Missis- sippi; plant with-the r-esult-according to the texts in evidence-that "we still don't have a contract." It is admitted that this bargaining-for-over-a-year-without- a-contract theme was also repeated during two of the three extemporaneous speeches. Finally, each of the written speeches also contains a "veiled" threat of plant closing and job loss incident to closing.' I conclude, therefore, that in themselves these speeches are clearly calculated to convey to the employees the danger and futility of designating the Union, thus destroying the laboratory conditions in which the Board must hold its elections.' The majority's analysis of the speeches is without regard to the oft-repeated message they contain: that strikes,can be expected if the Meat Cutters win, that 5 Exh. 6, the speech read at the first meeting, referred to Canton Poultry, a nearby plant organized by the Meat Cutters Union, having "closed a few months ago" and then: "All those employees lost their jobs. .. The Union got into Canton Poultry and managed to negotiate a contract . . . . You know what happened then-Canton Poultry closed. All those employees lost their jobs. Some of those people had been working for Canton Poultry for years and years but that didn't make any difference when the plant closed-they lost their jobs.. An fact, the Union didn't even try to help those employees once the plant had closed. Like I said a minute ago, once Canton Poultry closed, the Union went on to other things to try and get money from other people-from you." choosing the Union will be futile as this Employer has managed for a year to bargain at another of its plants without agreeing with a contract, and that this plant could close just as another nearby plant has done and all jobs would be eliminated. Apparently, as the majority sees it, an employer need only quote from the Board's official publications concerning the give and take of the bargaining table and the fact that neither side is obligated to agree to a particular proposal, and this, in itself, will insulate the employer from responsi- bility for repeated insinuations of dire results if the employees vote for a union. In my view a second election is sorely needed in this case. Exh. 7, the speech read at the last meeting, referred to the fuel shortage and then. "Of course, if we can't run our plants then we have to close down and everybody loses their job. I have been spending a lot of time in the last few weeks making sure we keep thus' plant open. . . . doing my best to make sure we keep the plant open ... it's been a hard fight. However, so far, I have been successful and have managed to get enough fuel to keep the plant operating _ . I have not had to worry about a lot of other problems here at the plant. I haven't had to worry about union strikes or other union troubles but have been able to spend all my time keeping this plant open. . . as long as things stay the way they are I will be able to continue to keep this plant open. However, if the Union gets in here and causes a lot of trouble or calls a strike I don't know what will happen I can only solve one major problem at a time." 6 See Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1785, 1786, 1787 (1962)