Farmers Union Creamery Association

National Labor Relations Board - Board Decisions

Nov 19, 1958

122 N.L.R.B. 151 (N.L.R.B. 1958)

FARMERS UNION CREAMERY ASSOCIATION 151
make such increases effective, as stated above, because of an upturn in Respond-
ent's own business conditions . According to several foremen, however , employees
requested wage increases all year around and employee turnover was no greater in
1957 than in prior years.
Although Hirschman first testified that he had no knowledge of the Union's
representation petition when, in August , he allegedly directed Sperber to include
wage increases in the September 13 checks , he later testified to a "vague knowledge"
of the petition at such time ; still later he admitted in effect, and I find, that he took
such action with complete knowledge of the petition . Hirschman also first testified
that he was unaware of the Union 's organizational campaign before September 12
and he further denied counterefforts by Respondent in such connection ; the record
demonstrates Hirschman 's testimony incredible on both grounds.
Conclusions
Although I am convinced that Hirschman is not a truthful witness and that
Sperber , his office manager, also is not entitled to belief, the record as made shows
a pattern of September general increases and there is no evidence contraverting the
testimony that the September 1957 increases were promulgated before the execution
date (September 12) of the consent -election agreement . In these circumstances I
am constrained to find that there is no record preponderance to support the General
Counsel's complaint herein . I accordingly recommend dismissal of the complaint.
Farmers Union Creamery Association , Petitioner and Local 74,
General Drivers & Helpers Union , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America. Case No. 18-RM 270. November 19, 1958
SECOND SUPPLEMENTAL DECISION AND CERTIFICA-
TION OF RESULTS OF ELECTION
Pursuant to a Second Direction of Election issued by the Board on
July 1, 1958,1 an election by secret ballot was conducted on July 29,
1958, under the direction and supervision of the Regional Director for
the Eighteenth Region among the employees in the unit found appro-
priate by the Board. Upon the conclusion of the election the parties
were furnished with a tally of ballots which showed that of 29 eligible
voters, 25 cast valid ballots, of which 1 was for the Union, 11 were for
no labor organization, and 13 ballots were challenged. The chal-
lenged ballots were sufficient in number to affect the results of the
election.
On July 30, 1958, the Union filed objections to the conduct of the
election. After investigating the issues raised by the objections and
the challenges, the Regional Director on August 29, 1958, issued and
duly served upon the parties his report in which he found that the
objections raised no substantial or material issues with respect to the
conduct of the election and recommended that they be overruled. He
has also recommended that all the challenges be sustained and that a
' Unpublished.
122 NLRB No. 22
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certificate of results of election be issued. The Union filed timely
exceptions to the report, requesting the Board to hold a hearing on the
issues raised by its objections and by the challenges.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
Upon the entire record in this case the Board finds:
The Employer is a farmers' cooperative operating a creamery, retail
grocery store, and cafeteria at Minot, North Dakota, and normally
employing about 25 persons. On or about December 10, 1957, the
Union called a strike against the Employer and maintained a picket
line at its premises until approximately March 14, 1958, when the
strike was abandoned. Several employees had responded to the strike
call but they did not return after the strike.' On May 1, 1958, the
Union again went out on strike and has maintained a picket line at the
Employer's premises from that date to at least the date of issuance of
the Regional Director's report on objections and challenges. Addi-
tional employees responded to this strike call.
The Employer prepared an eligibility list before the second election
which included all the employees then working and those employees
who had joined either of the two strikes, but stated at the eligibility
conference preceding the election that it would challenge all the
strikers who had not returned on the ground that they had been
permanently replaced. The Union thereupon indicated that it in-
tended to challenge all the employees who were then working since they
were not the Employer's regular working force. The Board agent in
charge of the election refused to allow the Union to challenge the
ballots of the employees who were working in eligible classifications
on the prescribed eligibility date because, in his opinion, the challenges
were without merit and were being made promiscuously.
The Regional Director's report supports the Board agent in refusing
to allow the Union to challenge the ballots of all those employed on
the eligibility date, while permitting the Employer to challenge the
ballots of the strike adherents. The Union's exceptions to the report
contend that the strikers should have been permitted to vote because
the Employer had indicated during the course of the negotiations
that it would be willing to hire some of them back after the strike
ended, and further, that its right to challenge was denied. We agree
with the Regional Director that parties to an election do not have
an indiscriminate right to challenge, particularly where the issues
raised by the challenges have already been fully settled by the Board
in a prior decision.3 However, the issue raised by the attempted
2 The Union filed charges on March 25 , 1958, alleging that two of the strikers were
entitled to reinstatement but the charges were finally dismissed on August 8, 1958, for
lack of sufficient evidence.
8 Cooper Supply Company, 120 NLRB 1023.
FARMERS UNION CREAMERY ASSOCIATION 153
challenges to the ballots of voters at the second election was clearly
with regard to whether the strikers had been permanently replaced.
We believe it would have been better practice for the Board agent
to have allowed the Union to challenge at least those employees who
had been hired since the date of the first strike, since their eligibility
to vote depends on whether they had in fact permanently replaced
the strikers. However, we are of the opinion that the Board agent's
action has not been prejudicial because the crucial question of whether
the strikers have been permanently replaced is properly before us
through the Employer's challenges of the ballots cast by those indi-
viduals who were not working on the eligibility date.4
We shall, therefore, consider the challenges which the Employer
made to the ballots of persons not employed on the eligibility date
for the second election and the Union's contention in its exceptions
that the strikers were not permanently replaced. In his report on
exceptions and challenges, the Regional Director classified the 13
challenges into 5 groups as follows :
1. Boehm, Kobanuk, Rivinius, Volk, and Hamilton are employees
who responded to the first strike call. They were replaced during
the period between December 10, 1957, and March 14, 1958, and did
not seek reinstatement after the strike was abandoned. The Regional
Director found that they were permanently replaced strikers, and
recommended that the challenges to their votes be sustained.
2. Ziegler and Daniel Wolf were the subjects of the charge filed
by the Union following the first strike which the Board eventually
dismissed for lack of sufficient evidence. The Regional Director
recommended that the challenges to their votes be sustained.
3. Spokely was found by the Board to be a supervisor in a prior
proceeding, Case No. 18-RD-172 (unpublished). The Regional
Director recommended that the challenge to his vote be sustained.
4. Joseph Wolf and Martin Wolf were employed as general helper
and milk bottler, respectively, prior to the strike and have since been
replaced. The Regional Director, having found that they were
replaced economic strikers as of the date of the election, recom-
mended that the challenges to their ballots be sustained.
5. Burnham, Heimbush, and Haman were strikers for whom no
specific replacements had been hired. The Regional Director found,
however, that their jobs have been combined with other jobs and
their work duties assigned to other employees. The Regional Director
found that since their jobs have been abolished, they have no reason-
able expectancy of reemployment and he recommended that the
challenges to their ballots be sustained.
4 Fruehauf Trailer Company, 106 NLRB 182, 185.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's exceptions to the Regional Director's recommendations
on the challenged ballots do not specifically controvert the facts on
which the recommendations were based. The exceptions contend
generally that the employees hired as replacements are temporary
employees who had no prior creamery experience and who will pos-
sibly have to be replaced. The Regional Director has, however,
considered the Union's contentions and has found, on the contrary,
that the employees hired as replacements were permanently employed.
As the Union has failed to submit any further evidence to support
its objection, we shall, in accordance with the Regional Director's
recommendations, overrule it.5
In its objections to the conduct of the election, the Union also
alleged that the Employer had intimidated and coerced employees
prior to the election as to the way they were to vote. The Regional
Director found that the only evidence supporting this objection was
a statement of an employee that 1 week prior to the election a super-
visor who was posting the election notice urged him to be sure to
come to vote and asked him how he was going to vote. The super-
visor denied that he asked the employee how he would vote. The
Regional Director found this single incident insufficient to constitute
a basis for setting aside the election, even assuming the truth of the
employee's assertion. The exceptions to the report merely restate the
objection. We agree with the Regional Director that this incident
raises no substantial or material issue necessitating a hearing as, in
our opinion, it would not constitute a basis for setting aside the elec-
tion. The Union's objection is therefore overruled.
We have found that the Union' s exceptions raise no substantial and
material issues requiring a hearing. As we also agree with the
Regional Director's recommendation that the challenges to the 13
ballots be sustained, we shall overrule the exceptions in their entirety.
As the Union has failed to secure a majority of the ballots cast, we
shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not cast
for Local 74, General Drivers & Helpers Union, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
and that this Union is not the exclusive representative of the Em-
ployer's Minot, North Dakota, employees in the unit found to be
appropriate by the Board.]
5 After filing its exceptions to the Regional Director 's report , the Union advised the
Board that the retail grocery which the Employer operated has been closed as sub-
stantiating its claim that the employees working there were only temporary employees
who should not have been permitted to vote. We do not regard the shutting down of a
small part of the Employer 's operations long after the strike began, as evidence bearing
on whether those employees were permanent replacements for the strikers.