Cook Family Foods

National Labor Relations Board - Board Decisions

Jul 14, 1995

317 N.L.R.B. 1137 (N.L.R.B. 1995)

1137
317 NLRB No. 167
COOK FAMILY FOODS
1 311 NLRB 1299.
2 NLRB v. Cook Family Foods, 47 F.3d 809 (6th Cir. 1995).
3 In light of the unfair labor practices set forth above and enforced
by the court of appeals, which the Board has previously found con-
stituted objectionable conduct, we find no merit to the contention
that a runoff election should be held based on the revised tally of
ballots of the first election, which indicate that the results of the first
election were inconclusive. To the contrary, the Board’s prior find-
ings establish that the first election did not fairly indicate the desires
of employees concerning representation. Accordingly, we shall direct
a rerun election.
We further note that the Respondent urges that the Board direct
an immediate election, while the Union contends that a fair election
cannot be held at this time in light of the unfair labor practice
charges filed against the Respondent subsequent to the issuance of
the Board’s prior Decision and Order in this case. According to the
Union, the Regional Director has issued a complaint with respect to
certain of these charges. We find that these contentions may best be
resolved by the Regional Director in the first instance, consistent
with our direction of a second election ‘‘whenever the Regional Di-
rector deems appropriate.’’
Cook Family Foods, Ltd. and International Broth-
erhood of Firemen and Oilers, AFL–CIO.
Cases 9–CA–28666, 9–CA–29116, 9–CA–29192,
and 9–RC–15900
July 14, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On August 20, 1993, the National Labor Relations
Board issued a Decision and Order finding that the Re-
spondent had committed certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act.1
On February 21, 1995, the United States Court of Ap-
peals for the Sixth Circuit issued a decision enforcing
the Board’s Order in part and denying enforcement in
part.2 On May 4, 1995, the Board advised the parties
that it had accepted the remand and invited statements
of position. The Respondent and the Union subse-
quently filed statements of position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered its original decision and
the record in light of the court’s remand, which it ac-
cepts as the law of the case. Remaining for the
Board’s disposition is the status of the certification of
representative issued by the Regional Director in Case
9–RC–15900. The Board has decided to revoke the
certification and to order a second election in this case.
In its Decision and Order, the Board overruled chal-
lenges to the ballots cast by three employees who had
been terminated by the Respondent, based on the
Board’s finding that the terminations violated Section
8(a)(3) and (1). Pursuant to the Board’s Order, the Re-
gional Director opened and counted the challenged bal-
lots and thereafter issued a certification of representa-
tive. However, the court of appeals has denied enforce-
ment to the Board’s finding that the terminations were
unlawful. Accepting the court’s opinion as the law of
the case, we find that the three employees whose bal-
lots were challenged were not eligible to vote in the
election. Without counting the ballots cast by these in-
dividuals, the tally of ballots is 175 for the Union, 2
votes cast for Intervenor United Food and Commercial
Workers, and 174 against representation by either
union. Accordingly, we shall revoke the certification of
representative.
However, we find that the unchallenged and sub-
stantial violations of Section 8(a)(1) enforced by the
court of appeals reasonably tended to interfere with
employee free choice in the election. In this regard, we
note that these violations include surveillance of union
activities, physically accosting prounion employees,
coercive interrogations, implied threats of retaliation
for engaging in union activities, requiring employees to
wear antiunion insignia, confiscation of union lit-
erature, and threats of plant relocation, all committed
during the critical period between the date the petition
was filed and the date of the election. We further note
that the threats of plant relocation in particular were
widely disseminated throughout the plant. Accordingly,
we shall set aside the results of the first election and
direct that a second election be held. See, e.g., Dal-Tex
Optical Co., 137 NLRB 1782 (1962).3
ORDER
It is ordered that Case 9–RC–15900 is reopened and
the previously issued certification of representative is
revoked.
IT IS FURTHER ORDERED that a second election by
secret ballot shall be held among the employees in the
unit found appropriate, whenever the Regional Director
deems appropriate. The Regional Director shall direct
and supervise the election subject to the Board’s Rules
and Regulations. Eligible to vote are those employed
during the payroll period ending immediately before
the date of the Notice of Second Election, including
employees who did not work during that period be-
cause they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an eco-
nomic strike that began less than 12 months before the
election date and who retained their employee status
during the eligibility period and their replacements.
Those in the military services may vote if they appear
in person at the polls. Ineligible to vote are employees
who have quit or been discharged for cause since the
payroll period, striking employees who have been dis-
charged for cause since the strike began and who have
not been rehired or reinstated before the election date,
and employees engaged in an economic strike that
began more than 12 months before the election date
and who have been permanently replaced. Those eligi-
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ble shall vote whether they desire to be represented for
collective bargaining by International Brotherhood of
Firemen and Oilers, AFL–CIO, by United Food and
Commercial Workers Local 227, or by neither.