American Beef Packers, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1971

187 N.L.R.B. 1004 (N.L.R.B. 1971)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Beef Packers , Inc. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, Petitioner. Case 18-RC-8110
January 21, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election was conducted by secret
ballot on December 12, 1969, under the direction and
supervision of the Regional Director for Region 18,
among the employees in the stipulated unit. At the
conclusion of the election the parties were furnished
with a tally of ballots which showed that of approxi-
mately 307 eligible voters, 259 cast ballots, of which
110 were for the Petitioner, 137 for the Intervenor,
Arthur L. Morgan Union, 2 against both labor
organizations, and 10 were challenged.
On December 17, 1969, the Petitioner filed timely
objections to conduct affecting the results of the
election. In accordance with the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Regional Director conducted an inves-
tigation and on March 12, 1970, issued and duly
served on the parties his report and recommendations
on objections affecting the results of the election in
which he recommended, in material part, that certain
objections be sustained and that a new election be
directed. Thereafter, the Employer filed timely
exceptions to the Regional Director's report and a
supporting brief. In an order dated May 19, 1970, the
Board adopted, pro forma, in the absence of excep-
tions, the Regional Director's recommendations that
certain numbered objections be overruled and direct-
ed that a hearing be held before a duly designated
Hearing Officer to receive evidence and determine the
issues raised by Petitioner's Objections 5, 9, and 21.
The Board reserved ruling on Objection 20 pending
receipt of the Hearing Officer's report.
Pursuant to the said order a hearing was held on
June 15 and 16, 1970, before Fannie M. Boyls, Trial
Examiner, for the purpose of resolving the issues
raised by the Petitioner's objections and the Employ-
er's exceptions to the Regional Director's report. The
Employer, the Petitioner, and the Intervenor partici-
pated in the hearing and were afforded full opportuni-
ty to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the
issues.
On August 18, 1970, the Trial Examiner issued and
served upon the parties her report in which she
recommended that Petitioner's Objection 5 be over-
187 NLRB No. 136
ruled but that Petitioner's Objections 9 and 21 be
sustained. Accordingly, the Trial Examiner further
recommended that the election of December 12, 1969,
be set aside and a new election be held. The Employer
filed timely exceptions to the Trial Examiner's report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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.
2. The Petitioner and the Intervenor are labor
organizations claiming to represent certain employees
of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accord with the agreement of the parties, the
following employees of the Employer constitute a unit
appropriate for purposes of collective bargaining
within the meaning of Section 9(c) of the Act: All
production and maintenance employees of the Em-
ployer at its Oakland, Iowa, plant, excluding office
clerical employees, salesmen, guards, and supervisors
as defined in the Act.
5. The Board has reviewed the Trial Examiner's
rulings made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's report and the entire record in this case,
including the Employer's exceptions and brief, and
finds merit in the Employer's exceptions. We shall,
accordingly, adopt the findings, conclusions, and
recommendations of the Trial Examiner, only to the
extent consistent herewith.
The Trial Examiner's Report sustains Objection 9
for reasons which we believe are unsound. The
Employer, during the relevant period, continued its
past practice of advising new employees that they did
not have to join the Union if they did not want to, but
furnishing them with a checkoff authorization form,
making it clear that the signing of it was purely
voluntary. The Trial Examiner, while not finding this
coercive (a matter settled by our decision in American
Beef Packers, Inc., 180 NLRB No. 97), nevertheless
sustains the objection upon the novel theory that
"laboratory conditions" require an employer to take
affirmative action to advise employees of a rival
union's desire to represent employees. We will not set
an election aside upon such an unwarranted expan-
sion of our "laboratory conditions" requirement. We,
therefore, overrule Petitioner's Objection 9.
AMERICAN BEEF PACKERS, INC.
As to Objection 21, the Trial Examiner committed
an error of law, which requires a reexamination of her
findings and recommendations. She confuses revoca-
bility with invalidity, finding that checkoff authoriza-
tions signed prior to a prior contract's expiration date
and therefore prior to a period when revocability must
be permitted became, not only revocable, but auto-
matically revoked and invalid after the passage of the
revocability period. The Trial Examiner proceeds to
find that the Employer's honoring such a card
constituted improper employer preference for the
incumbent union.
Apart from the question of whether termination of
employment invalidates an authorization for check-
off, a matter which we find unnecessary to pass on, we
would not find that the Employer's honoring of such
cards, in and of itself, upon an at least colorable claim
of their validity, creates any need to run a new
election.'
There is evidence that one employee (Lynn Jacob-
sen) had dues deducted from his pay even though he
had not signed a new card upon his being reemployed
and that when he complained he was told "once you
are in the Union, you can't get out." While we view
this employer statement as improper, the fact that it
affected only one employee in a unit of 307 eligible
voters, and that it is the only conduct which may be
said to be improper and which could be sustained by
the evidence, leads us to the view that it could have
had only a minimal impact on the election and was
insufficient to warrant a new election. We therefore
overrule Objection 21.
Issues as to the continuing validity of checkoff authorizations have
proved troublesome to the Board See, e g , the issue specifically left
undecided in Standard Oil Company of California, 144 NLRB 520, compare
Thomas H Marrow Trucking Co, 155 NLRB 271, in 4 The Board
1005
In view of our disagreement with the Trial Examiner
on the disposition of Objections 9 and 21, we proceed
to pass on the merits of Objection 20 which we found
unnecessary to remand for hearing to obtain addition-
al testimony. Petitioner's Objection 20 relates to a
letter from an attorney in a distant city in which an
election requested by the Petitioner was then pending.
It requested information of the Arthur Morgan Union
which might prove helpful in defeating the Petition-
er's attempt to organize the plant in question. Morgan
complied by sending a handbill which contained
reprints of articles from various newspapers relating
to strikes and work stoppages in other areas. We do
not discern in this material, supplied to an attorney in
another location, any matter which may have improp-
erly influenced the election herein and, therefore,
overrule the objection.
As the tally of ballots shows that the Intervenor has
received a majority of the ballots cast, we shall certify
it as the exclusive bargaining representative for the
employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
votes cast in the election has been cast for Arthur L.
Morgan Union and that said labor organization is the
exclusive bargaining representative of the employees
in the unit found appropriate within the meaning of
Section 9(a) of the National Labor Relations Act, as
amended.
hesitates to adjudge checkoff provisions defective for contract bar purposes
in a representation proceeding Gary Steel Supply Co, 144 NLRB 470 Nor
are violations of the checkoff provisions of the LMRA necessarily unfair
labor practices under our Act Salant & Salant, Inc, 88 NLRB 816