House of Raeford Farms

26 317 NLRB No. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Employer has excepted to some of the hearing officer’s credibility findings. The Board’s established policy is not to overrule a hearing officer’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings. 2 In recommending overruling Objection 6 regarding allegations of prounion electioneering in the hallway adjacent to the voting area, the hearing officer relied on Firestone Textiles Co., 244 NLRB 168, 173 fn. 12 (1979), and rejected the Employer’s argument that the ballots challenged by the Union should be counted as votes against the Union, thus narrowing the Union’s margin of victory and making the alleged electioneering potentially more serious. We find it unnec- essary to rely on Firestone because even if the Employer’s argument was accepted and the union-challenged ballots were credited to the Employer’s vote tally, the alleged electioneering would still not con- stitute objectionable conduct. We agree with the hearing officer that Pepsi-Cola Bottling Co., 291 NLRB 578 (1988), is distinguishable. In Pepsi, the nature of the conduct was far more coercive than that depicted here and resulted in the formation of a gauntlet through which employees had to pass in order to cast their votes. See Rheem Mfg. Co., 309 NLRB 459 (1992), affd. in the summary judgment proceeding, 310 NLRB No. 116 (Mar. 15, 1993) (not reported in Board volumes), enfd. mem. 28 F.3d 1210 (4th Cir. 1994). 3 In the absence of exceptions, we adopt pro forma the hearing of- ficer’s recommendations to overrule the Employer’s Objections 13 and 17. 4 In view of the fact that Nestle is distinguishable, Chairman Gould finds it unnecessary to decide whether he agrees with the Board’s holding in Nestle. Member Stephens, who dissented in Nestle, does not rely on the Board’s decision in that case. He agrees with his col- leagues, however, that this case is distinguishable. Given the nature of the sketchy hearsay testimony, it is impossible to know whether the unnamed persons described as ‘‘union representatives’’ were in fact agents of the Union or whether the statements actually made could have been reasonably construed as a promise that immigration work permits or similar documents would be obtained for the em- ployees by the Union. Member Browning adheres to the Board’s decision in Nestle. 5 See NLRB v. VSA, Inc., 24 F.3d 588, 595 (4th Cir. 1994), cert. denied 115 S.Ct. 635 (Dec. 5, 1994) (‘‘it is the degree of pressure or inducement that is crucial in determining whether a representation campaign is valid . . . [a]nd in order for pressure or inducement to warrant setting aside the election, it must lead to the ‘failure of those in the bargaining unit to make their collective desires effective.’’’). House of Raeford Farms, Inc. and United Food and Commercial Workers International Union, Local 204, AFL–CIO, Petitioner. Case 11–RC– 5522 April 26, 1995 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING The National Labor Relations Board, by a three- member panel, has considered objections to an election held October 21, 1994, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Decision, Order, and Direction of Second Election issued by the Board on August 31, 1992. The tally of ballots shows 411 for and 365 against the Petitioner, with 44 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions1 and briefs, has adopted the hearing offi- cer’s findings2 and recommendations,3 and finds that a Certification of Representative should be issued. The hearing officer recommended overruling the Employer’s Objection 12, which alleged that the Union unlawfully attempted to influence votes by promising to obtain ‘‘working papers’’ for some presumably un- documented Hispanic employees that would allow them to work legally in this country. In so ruling, the hearing officer relied on Nestle Dairy Systems, 311 NLRB 987 (1993), which held that a union’s preelection filing of a Federal Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit on be- half of unit employees did not constitute objectionable conduct. We note that Nestle was denied enforcement by the Sixth Circuit, 46 F.3d 578 (1995), subsequent to the hearing officer’s report in this case. The Board in Nestle found that the objecting party did not meet its burden to show that the filing of a RICO lawsuit was a benefit that was tangible, substantial, direct, and had a reasonable tendency to interfere with the em- ployees’ free choice in the election. Nestle, 311 NLRB at 987–988. The Sixth Circuit disagreed with the Board and concluded that the union’s election eve an- nouncement to approximately one-third of the unit em- ployees that it had filed a lawsuit on their behalf against the employer seeking $20 million in damages constituted a substantial, direct, and tangible conferral of free legal services that were sufficiently valuable to influence the employees’ votes. Nestle, 46 F.3d at 583–584. In any event, we find that the instant case is distin- guishable from Nestle.4 Here, the only evidence ad- duced in support of the Employer’s Objection 12 is the hearsay testimony, albeit not objected to by the union attorney, of two employee witnesses. One employee testified that a union representative told her coworker that the Union could get ‘‘legal papers’’ for the co- worker’s husband, who was also an employee, if the coworker’s husband voted for the Union. The second employee testified that she explained to an unspecified number of Hispanic employees that they should dis- regard any union promise regarding the provision of ‘‘legal papers’’ because the Union was unlikely to de- liver on such promises. Employing the well-settled grant-of-benefits analysis utilized in Nestle, we agree with the hearing officer that the Employer has clearly failed to carry its burden to show that these vague and relatively isolated remarks in a unit of approximately 1000 eligible voters constitute the conferral of a sub- stantial, direct, and tangible benefit on employees such that their votes would be influenced.5 The record is de- void of any specific evidence concerning the scope of 27 HOUSE OF RAEFORD FARMS the dissemination of the alleged promise or the propor- tion of undocumented workers in the Employer’s work force that would stand to benefit from, and thus be in- fluenced by, the promise. Accordingly, we find the evidence insufficient to warrant setting aside the elec- tion and we adopt the hearing officer’s recommenda- tion to overrule Objection 12. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for United Food and Commercial Workers International Union, Local 204, AFL–CIO and that it is the exclusive collective-bargaining rep- resentative of the employees in the following appro- priate unit: All full-time and regular part-time production and maintenance employees, including truck drivers, retail store employees and cafeteria employees employed by the Employer at its Raeford, North Carolina facility, excluding all office clerical em- ployees, guards and supervisors as defined in the Act.