Flint Provision Co.

FLINT PROVISION CO. 523 Flint Provision Co. and Local Union 539, Amalgamat- ed Meatcutters and Butcher Workmen of North America, AFL-CIO. Cases 7-CA-11499 and 7- RC-12638 July 25, 1975 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 31, 1975, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the Respondent Employer filed exceptions and a supporting brief. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent by Wolin and Busch interrogated its em- ployees in violation of Section 8(a)(1) and that the same interrogations constituted objectionable con- duct which interfered with the results of the election. He concluded the election therefore should be set aside. We do not agree; rather, we find merit in the Respondent's contention that the Administrative Law Judge applied a rigid per se approach which was not warranted in the circumstances of this case. Wolin, in his conversation with Busch, merely asked him why the employees would want a union in the plant. After Busch replied, Wolin indicated that he had had the Company for 25 years and felt bad that no one had approached him because he could have ironed out any problems. Likewise, Busch's conversation with Alley was temperate in nature and not coercive. Alley simply asked Busch why the em- ployees would want a union and stated his opinion that the plant was small and everyone knew the boss (Wolin) and could talk to him. Busch then agreed with Alley and pointed out that he was able to talk with Wolin and saw no need for union representa- tion. Employee Yaquinto testified Alley merely asked him while they were working together whether Yaquinto knew anything about the Union. Yaquinto said "No." When Alley again asked the same ques- tion Yaquinto again answered "No," and that ended the conversation. Hudson testified that on one occa- sion when he was working with Alley, Alley told him he wanted to ask him a question but also told him he did not have to answer if he did not want to. Alley then asked Hudson if he knew "about anybody going down to the Union." When Hudson said "No," Alley did not press him further. It is our opinion that, in the circumstances of this case, Respondent's questions and remarks were nei- ther violative of Section 8(a)(1) nor grounds for set- ting aside the election.' Essentially, Wolin and Alley were attempting to ascertain the reasons for the em- ployees' interest in the Union. Their inquiries were akin to soliciting employees regarding the grievances which led them to seek union representation. This is not unlawful conduct when, as in this case, the solici- tation is unaccompanied by any promise of benefit? Nor were the questions and remarks made by Wolin and Alley coercive or threatening under any stan- dard. They were not coercive in nature or asked in a coercive manner or under circumstances which would render them coercive. Nor did they occur against a background of an antiunion campaign cal- culated to intimidate and coerce the employees. In- deed, at a dinner meeting held by Respondent on election eve, employees were allowed to speak freely about the advantages of the Union, and there was an open question-and-answer period. Respondent's counsel also described how the election would be conducted and told the employees to vote the way they wanted to; he further assured the employees in response to an employer question that there would be no reprisals regardless of the outcome of the election. It should also be noted in this connection that Wolin hired Busch although he knew he was a union mem- ber. In conclusion, contrary to the Administrative Law Judge, we do not believe Respondent violated Sec- tion 8(a)(1). Nor do we believe that the allegedly ob- jectionable conduct warrants setting aside the elec- tion. Accordingly, we shall dismiss the complaint in its entirety and certify the results of the election? i In view thereof, Member Penello finds it unnecessary to decide whether the Regional Director erred in failing to issue a Certification of Results of Election once the Union withdrew its objections to the election with his approval and, instead, proceeded to consider the objectionable nature of conduct uncovered by him which was not alleged in the objections 2 See Uarco, Inc., 216 NLRB No. 2 (1974). 3 Member Kennedy agrees with Member Penello that the complaint should be dismissed in the unfair labor practice case and that the results of the election should be certified in the representation case He notes that in the representation case the Union withdrew its objections to the election and the Regional Director approved that withdrawal Manifestly, Respon- dent is correct in its contention that once the objections were withdrawn, the representation case was resolved and the Regional Director was obliged to issue a Certification of Results of Election. The Regional Director's fail- ure to issue such a certification was erroneous While the Board has consid- ered in some cases evidence disclosed in an investigation which was not alleged in the objections , it has not done so in any case in which the objec- Continued 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Local 539, Amalga- mated Meatcutters and Butcher Workmen of North America, AFL-CIO, and that the said labor organi- zation 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 Rela- tions Act, as amended. MEMBER FANNING, dissenting: For the reasons set forth by the Administrative Law Judge, I would find the 8(a)(1) violations and set aside the election.4 When the president of a company calls an employee into his office or any office in pri- vacy on a one-on-one basis and questions him about the union without legitimate reason and without as- surances of nonreprisal that is an 8(a)(1) violation. When such interrogations occur during the critical period of an election campaign, that is reason to set aside the election. The Board, until now, has not con- sidered the subjective effect of a respondent's inter- rogations on the employee involved. Whether the employees testify that they were "scared" or "not scared" is irrelevant. As stated by the Administrative Law Judge herein: "Nor is an employee's testimony as to the effect of unfair labor practices or of conduct which interferes with an election entitled to probative weight. The essential question is the natural effect of such conduct." tions had been withdrawn with the approval of the Regional Director The observations of the Administrative Law Judge in fn. I of his Decision are incorrect . Member Fanning's conclusion that the election should be set aside ignores the fact that the withdrawal of the objections terminated the representation case and the Regional Director improperly consolidated the representation case with the unfair labor practice proceeding. Contrary to Member Farming's implications , Respondent has throughout this proceed- ing maintained that the representation case was improperly consolidated. Indeed, in his opening statement before the Administrative Law Judge, Respondent's counsel pointed out that "all the changes which the union [has] made have been withdrawn." 4 Member Kennedy would find Respondent was correct in its contention that once the objections were withdrawn the representation case was re- solved and the Regional Director's failure to issue a certification was erro- neous. He then comments that my conclusion that the election should be set aside ignores the fact that the withdrawal of the objections terminated the representation case . I have not ignored the fact that the objections were withdrawn . It is true that in his Report on Objections the Regional Director approved the Union's request to withdraw its objections; however, he also noted there was other possible objectionable conduct uncovered during the investigation which was also the basis of the 8(aXl) allegations , that Board policy permits him to proceed on such uncovered conduct , and ordered that the allegedly objectionable conduct go to hearing before an Administrative Law Judge. The Respondent-Employer did not file exceptions to the Region- al Director's report on objections (and specifically to the Regional Director's decision to go to hearing on the uncovered objection) pursuant to the Board's Rules and Regulations . In my judgment , therefore, both Mem- ber Kennedy and the Respondent-Employer have ignored the fact that the Respondent-Employer's exceptions at this stage of the proceedings are un- timely filed and should not be considered by the Board. In addition it would also appear that on the basis of established Board precedent the Administrative Law Judge was correct in considering the con- duct not specifically alleged as objectionable but uncovered during the in- vestigation, contrary to Member Kennedy's contention. For as the Board said in Pure Chem Corporation, 192 NLRB 681 ( 1971) (Member Kennedy dissenting): Although the election was set aside as a result of the Regional Director's postelection investigation rather than upon the specific grounds urged in the [Petitioner's] objections [which was overruled by the Administrative Law Judge] the Irving Air Chute requirements are satisfied where we do not have the results of a "valid" election. [Emphasis supplied.] The majority added: "It should be clear . that the Board in its responsibility to determine whether a fair and conclusive election was held, may consider relevant evidence disclosed in its investigation , independent of whether the con- duct is raised in formal objections." See also Morris Novelty Co, Inc., 157 NLRB 1471 (1966); Fasco Indus- tries, Inc., 173 NLRB 522 (1968); and Dawson Metal Products, Inc, 183 NLRB 191 (1970). DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Sections 9 and 10(b) of the National Labor Relations Act, as amended was heard pursuant to due no- tice on February 18, 1975, at Flint, Michigan. The petition in Case 7-RC-12638 was filed on Septem- ber 3, 1974. An election by secret ballot, pursuant to a Stipulation for Certification Upon Consent Election ap- proved by the Acting Regional Director (for Region 7 of the Board) on September 20, 1974, was held on October 11, 1974, among employees of the Employer in an agreed and approved appropriate bargaining unit. Challenged ballots were sufficient in number to affect the results of the elec- tion. The Petitioner on October 21, 1974, filed objections to conduct affecting the results of the elections. During the investigation of the above-referred-to objec- tions and challenges, the parties stipulated to the disposi- tion of the challenges. The election ballots were five votes for the Petitioner and five votes against labor organiza- tions. The charge in Case 7-CA-11499 was filed on October 17, 1974. During the investigation of said charges and the objections in Case 7-RC-12638, the Regional Director un- covered conduct, other than that specifically set forth in the Petitioner's objections, considered by him to be objec- tionable conduct. The Petitioner, during the pendency of the investigation of the objection issues, requested with- drawal of its objection allegations. On December 21, 1974, complaint was issued in Case 7-CA-11499, a Report on Objections was issued in Case 7-RC-12638, and an order consolidating Cases 7-RC-12638 and 7-CA-11499 was is- FLINT PROVISION CO. 525 sued, and the proceeding was duly noticed for hearing. The Regional Director approved the Petitioner's withdrawal of the allegations specifically set out in the Petitioner's objec- tions.' The issues in Case 7-CA-11499 concern whether certain acts of unlawful interrogation by Supervisors Wolin and Alley of employees as to their union interests or support occurred during the weeks of September 23 and 30, 1973. The issues in Case 7-RC-12638 concern whether such con- duct occurred and interfered with the results of the election held on October 11, 1974. All parties were afforded full opportunity to participate in the proceeding. The pleadings, record, and Respondent's brief have been considered. Upon the entire record in the case and from my observa- tion of witnesses, I make the following: FINDINGS OF FACT 11. THE LABOR ORGANIZATION INVOLVED 3 Local Union 539, Amalgamated Meatcutters and Butch- er Workmen of North America, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES (CASE 7-CA-11499), THE OBJECTIONS (CASE 7-RC-12638) 4 A. Preliminary Issues; Supervisory Status 5 At all times material herein, the following named per- sons occupied the positions set opposite their respective names, and have been and are now supervisors of the Re- spondent, within the meaning of Section (11) of the Act, and its agents : Sidney Wolin, president, Stu Alley, plant manager. 1. THE BUSINESS OF THE EMPLOYER 2 Flint Provision Co., the Respondent, is, and has been at all times material herein, a corporation duly organized un- der, and existing by virtue of, the law of the State of Michi- gan. At all times material herein, Respondent has maintained its principal office and place of business at 2801 Lippincott Boulevard, Flint, Michigan, herein called the Flint place of business . Respondent is, and has been at all times material herein, engaged in the wholesale processing and distribu- tion of meats and related products. Respondent's place of business located at Flint, Michigan, is the only facility in- volved in this proceeding. During the year ending December 31, 1973, which peri- od is representative of its operations during all times mate- rial hereto, Respondent, in the course and conduct of its business operations, had a gross revenue in excess of $500,000 and purchased and caused to be transported and delivered at its Flint place of business, various meats, and other goods and materials valued in excess of $50,000 were transported and delivered to its place of business in Flint, Michigan, directly from points located outside the State of Michigan. Based on the foregoing and as conceded by the Respon- dent-Employer, it is concluded and found that Respondent is now and has been at all times material herein an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 The Respondent-Employer contends in effect that the Regional Director's approval of the Petitioner's withdrawal request (with respect to its objection allegations) eliminates the objection issues. It is settled law that the Regional Director may uncover additional objection issues on his own, and conduct related thereto may warrant the setting aside of an election. Considering the Regional Director's total conduct and the total document issued on December 31, 1974, it is clear that the Regional Director was merely eliminating the specific issues set forth in the Petitioner's objections to the conduct of the election . It is clear that the Regional Director had set forth as a part of the objection issues the conduct uncovered by him and included as complaint issues in Case 7-CA-I 1499, and that his approval of the Petitioner's withdrawal request (re objections) was limited to the specific allegations by the Petitioner and not to the conduct uncovered by himself. 2 The facts are based on the pleadings and admissions therein. B. Interrogation The General Counsel alleges and the Respondent denies that-on or about the week of September 23, 1974, Re- spondent by its agents, Sidney Wolin and Stu Alley, and on or about the week of September 30, 1974, Respondent, by its agent Stu Alley,-coercively interrogated its employ- ees concerning their knowledge of and activities on behalf of the Charging Party (Local Union 539, Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO). The facts are clear that Local Union 539, Amalgamated Meatcutters and Butcher Workmen of America, AFL- CIO, engaged in organizing activities among the Respondent's employees; a representation petition (in Case 7-RC-12638) was filed on September 3, 1974; and a Stipu- lation for Certification Upon Consent Election was entered into later and approved by the Regional Director on Sep- tember 20, 1974, with the election therein scheduled for October 11, 1974. 1. Around the last of September or first of October 1974, President Wolin called employee Busch into an office and spoke to him about the Union.6 Wolin normally had a desk in an office also occupied by his secretary and worked in such office. The office that was used when he spoke to Busch was an office wherein a tele- phone was located that was used on occasion by employees for making telephone calls. In effect it was an office which could be used for privacy. President Wolin, who was alone with Busch, told Busch that he had received the Union's representation petition. Wolin asked Busch why the employees would want a union in the plant. Busch explained that the employees wanted a union to represent them in labor relations, that the employ- ees wanted paid medical insurance, sick day benefits, etc. Wolin told Busch that he had had the Company for 25 years, that he felt bad that no one had brought the matter i The facts are based on the pleadings and admissions therein. The facts are based on the pleadings and admissions therein. 5 The objections place in issue as objectionable conduct the same conduct alleged to constitute unfair labor practices. 6 The facts are based on Busch's credited and uncontradicted testimony. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to him, and that it could have been ironed out. Busch ex- plained that some employees would prefer having someone else to represent them rather than talking, themselves, to their immediate boss.7 Considering the foregoing, I am persuaded and conclude and find that the Respondent, by Wolin, around the last of September 1974, engaged in unlawful coercive interroga- tion of employees as to their union activities or desires. There is no evidence to reveal that the Respondent had a legitimate basis for such interrogation. Nor is there any evidence that assurances of nonreprisal were given to the employee. I attach no significance to the fact that the wit- ness described the office as "Wolin's" office. Significant, however, are the facts that the conversation occurred on a one to one basis and in privacy, without legitimate basis and without assurances of nonreprisal. Accordingly, I conclude and find that President Wolin's interrogation of Busch, as alleged, constituted conduct vio- lative of Section 8(a)(1) of the Act. Such conduct, occur- ring after September 3, 1974, the date the representation petition was filed, and prior to October 11, 1974, the date of the representation election, constitutes conduct interfer- ing with the employees' right to an untrammeled choice of such election. It is so concluded and found. 2. Supervisor Stu Alley, around 2 to 3 weeks before Oc- tober 11, 1974, sent for Busch to come to an office used by Alley and the salesman. Busch and Alley were alone in the office when Alley questioned Busch as to why the employ- ees wanted the Union to represent them. Alley gave his reasons as to why a union was not needed, that the plant was small and everyone knew President Wolin. Considering the foregoing, I am persuaded and conclude and find that, as alleged, Respondent, by Alley, around the last of September 1974 unlawfully questioned Busch as to his and other employees' union activities or desires.' There is no evidence to support a legitimate basis for such inter- rogation, nor is there any evidence to reveal that assur- ances of nonreprisals were made to Busch . Accordingly, I conclude and find that the Respondent, by Alley, around the last of September 1974, unlawfully questioned Busch about his and other employees' union activities or desires. Such conduct is violative of Section 8(a)(1) of the Act. Such conduct, occurring during the period between filing of the petition and the election (in Case 7-RC-12638), con- stitutes objectionable conduct interfering with the employ- ees' untrammeled choice in such election. 3. Around a week before the election on October 11, 1974,9 Plant Manager Stu Alley spoke to employee Ya- quinto as they were loading a truck. What occurred is re- vealed by the following excerpt from Yaquinto's credited testimony: A. Stu Alley and I were loading the truck and Stu 7 Although Busch in his affidavit set forth in effect that "nobody from the company ever asked me anything about the Union," he also set forth in effect the conversation testified to in this proceeding and clearly in the affidavit revealed that he construed a question as to how he felt about the Union as not being a question about the Union. 9 1 give no weight to the witness's conclusive testimony as to what consti- tutes interrogation or threats, or effect thereof. 9 The facts are based upon Yaquinto's credited testimony. Alley asked me, "You know anything about the union," and I said, "No." And we loaded the truck for a few more minutes . So he said, "You know, you know nothing about the union," and I said, "No," and he just kind of smiled as if he knew that I knew. MR. BLUM : I object to the conclusion. JUDGE STONE: I would strike that part about his con- clusion. I'll leave it in that he's smiling. Considering all of the foregoing, I conclude and find, as alleged, that the Respondent, by Alley, unlawfully interro- gated an employee about his knowledge of the Union. There is no evidence that assurances of nonreprisals were given to employees . Accordingly, such conduct is violative of Section 8(a)(1) of the Act. Such conduct , occurring after the filing of the petition and before the election in Case 7-RC-12638, constitutes objectionable conduct which in- terfered with the employees' untrammeled choice in said election. 4. Around September 28, 1974, Plant Manager Alley spoke to employee Hudson . 1° Alley told Hudson that he wanted to ask him a question and added that he did not have to answer it. Alley asked Hudson if he knew anything about anyone going down to the Union . Hudson told Alley that he had heard but didn't know who it was. Considering all of the foregoing, I conclude and find that the Respondent, by Alley, engaged in unlawful ques- tioning of an employee about union activities or desires. There is no evidence of legitimate basis for such question- ing, nor is there evidence that assurances of nonreprisals were given the employee . To tell an employee that he doesn't have to answer, as Alley did to Hudson, does not alone constitute an assurance of nonreprisals . Accordingly, I conclude and find , as alleged, that the Respondent, by Alley, around the last of September 1974 engaged in un- lawful questioning of employees in violation of Section 8(a)(1) of the Act. Such conduct, occurring after the peti- tion and prior to the election (in Case 7-RC-12638), con- stitutes objectionable conduct which interfered with the employees' untrammeled choice in said election.l t Concerning Respondent's Contentions In determining that the Respondent has engaged in coer- cive interrogation of employees in violation of Section 8(axl) of the Act, I have considered Respondent's excel- lent brief and the cases cited therein. The facts in this case clearly reveal that such interrogation as set forth occurred, that there was no legitimate basis for such interrogation, and that assurances of nonreprisals were not given. Thus, it has been concluded that such interrogation occurred in a 10 The facts are based on the credited testimony of Hudson. 11 The evidence of the unfair labor practices and objectionable conduct is uncontradicted. The question of the credibility of the witnesses has been considered and the findings made as indicated . Respondent's evidence relat- ing to a speech made by Respondent's agents shortly before the election is not persuasive to reveal that the witnesses who testified to the unfair labor practices and objectionable conduct were not credible. Nor is such evidence persuasive to reveal that the effect of the unfair labor practices or objection- able conduct was cured or eliminated. Nor is an employee's testimony as to the effect of unfair labor practices or of conduct which interferes with an election entitled to probative weight. The essential question is the natural effect of such conduct FLINT PROVISION CO. 527 manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. The cases cited by the Respondent are distinguishable factually from the instant case . Thus, Boaz Spinning Company, 206 NLRB 518 (1973), involved a case where the Board found that the facts did not reveal questioning but was based on ambigu- ous and uncertain evidence . Equitable Equipment Company, 185 NLRB 574 (1970), involved a comment to a known union supporter and in the context with all the facts was found not coercive . Fairbanks Medical and Surgical Clinic, Inc., 213 NLRB No. 93 ( 1974), involved an isolated rhetor- ical question to a known union supporter and in such con- text was deemed noncoercive . N.V.F. Co., 210 NLRB 663 (1974), involved a "locus of the interview " consideration which is not relied upon in the determination in the instant case. Bulk Haulers, Inc., 200 NLRB 389 (1972) involved an isolated factual situation dissimilar to the incident involv- ing the interrogation of Hudson because it was not in a context of other unlawful questioning . In sum, the facts in this case in total context reveal that the interrogation oc- curred in a coercive manner and the facts in the cases cited by the Respondent reveal that interrogation was not estab- lished or, if established, was isolated or noncoercive. C. The Objections The objections relate to objectionable conduct placed in issue by the Regional Director but not alleged by the peti- tioner. Such conduct concerned the same conduct placed in issue in the conduct alleged to constitute unfair labor practices. Such conduct has been found in section B, 1, 2, 3, and 4, above, to constitute unfair labor practices and to constitute objectionable conduct, occurring after the filing of the representation petition (in Case 7-RC-12638) on September 3, 1974, and prior to October 11, 1974, the date of the representation election. Such conduct has been found to have interfered with the employees' right to an untrammeled choice in such election. Accordingly, it will be recommended that the election in Case 7-RC-12638, held on October 11, 1974, be set aside and a new election be held. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's op- erations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Flint Provision Co., the Respondent, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union 539, Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, is and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices pro- scribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. All full-time and regular part-time employees em- ployed by Flint Provision Co., the Employer, at its 2801 Lippincott Boulevard, Flint, Michigan, facility; but exclud- ing foremen, managers, office clerical employees, guards and supervisors as defined in the Act constitute the stipu- lated, agreed, and approved (by the Regional Director for the N.L.R.B.) appropriate collective-bargaining unit (in Case 7-RC-12638). 6. The facts established, as alleged in objections set in issue by the Regional Director, and not alleged by the Peti- tioner, that the Employer interrogated employees about their and other employees' union interests, activities, or de- sires and that the Employer thereby interfered with the holding of a free election on October 11, 1974, in Case 7-RC-12638. [Recommended Order omitted from publication.]