Land O'Frost of Arkansas, Inc.

LAND O'FROST OF ARKANSAS, INC. Land O'Frost of Arkansas, Inc. and Food Handlers Local 425, affiliated with United Food and Commercial Workers' International Union, AFL-CIO, Petitioner. Case 26-RC-6179 September 9, 1980 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to authority granted to it by the Na- tional Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered objections to an election' held on April 25, 1980, and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Regional Director's findings and recommenda- tions. 2 As found by the Regional Director, the Employ- er's personnel director, Robert W. Bohannon, and various supervisors told employees at their work stations on the day of the election that they should vote and that if they were undecided a "no" vote would be appreciated. It is undisputed that at least half the eligible employees were contacted in this matter. In finding this conduct not to be objectionable, the Regional Director relied on our recent decision in Electro-Wire Products, Inc., 242 NLRB 960 (1979). In that case we held that the employer's conduct in making brief comments individually to employees at their work stations and telling them that the employer hoped that they would vote "no" did not amount to a speech to a massed as- sembly of employees and therefore did not fall within the proscription of such speeches within 24 hours prior to an election enuniciated in Peerless Plywood Company, 107 NLRB 427 (1953). Inas- much as the facts herein are almost identical to those in Electro-Wire Products, Inc., supra, we find 3 The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was: 138 votes for, and 158 against, the Petitioner; there were 3 void and I challenged ballots, an in- sufficient number to affect the results. s In the absence of exceptions, we adopt, pro forma, the Regional Di- rector's recommendation that Petitioner's objections 2, 3, 4, 5, and 6 be overruled. that case controlling and that the conduct of Bo- hannon and the other supervisors was not objec- tionable. We shall therefore certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Food Handlers Local 425, affiliated with United Food and Commercial Workers' International Union, AFL-CIO, and that said labor organization is not the exclusive repre- sentative of all the employees, in the unit herein in- volved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. CHAIRMAN FANNING, dissenting: For the reasons stated in my dissent in Electro- Wire Products, Inc., 242 NLRB 960 (1979), I would not adopt the Regional Director's recommendation that Petitioner's Objection I be overruled. The facts herein are essentially undisputed. On the day of the election, Robert W. Bohannon, the Employer's personnel manager, talked to at least half of the eligible voters at their work stations ad- jacent to the polling place on two occasions, pre- ceding and during the conduct of the election. In- dividual supervisors, including James Mylam, also spoke to employees on the production lines on the day of the election. They all conveyed the same message that, inter alia, a "no" vote in the election would be appreciated, if the employee was unde- cided how to vote in the election. These facts are similar to those in Electro-Wire Products, Inc., supra, where I emphasized that talks by management to individual employees at their work stations within 24 hours of an election was tantamount to an ad- dress to a captive audience and as such violated Peerless Plywood.3 My colleagues here, as in Elec- tro-Wire Products, Inc., supra, in adopting the Re- gional Director's recommendation to overrule the Petitioner's Peerless Plywood based objection, have mistakenly permitted again an employer to accom- plish indirectly precisely that which Peerless Ply- wood directly proscribes. For this reason, I would sustain the objection, set aside the election, and direct a second election. 3 Peerless Plywood Company, 107 NLRB 427 (1953). 252 NLRB No. I I