Fisher Hut Company

National Labor Relations Board - Administrative Judge Opinions

Sep 10, 2008

32-RC-005563 (N.L.R.B. Sep. 10, 2008)

JD(SF)–34–08
Modesto, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FISHER NUT COMPANY
Employer
and Case 32-RC-5563
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION, LOCAL 5
Petitioner
Patrick W. Jordan, Esq., (Jordan Law Group),
of San Rafael, California, for the Employer.
David Rosenfeld, Esq.,
(Weinberg, Roger & Rosenfeld),
of Alameda, California, for the Petitioner.
ADMINISTRATIVE LAW JUDGE’S REPORT ON OBJECTIONS
Jay R. Pollack, Administrative Law Judge: Pursuant to Section 102.69 of the National
Labor Relations Board’s Rules and Regulations, Series 8, as amended, the Regional Director
for Region 32 entered a Report and Recommendations on Objections, and ordered a hearing
before an Administrative Law Judge. I heard the matter in Oakland, California, on July 11,
July 31 and August 8, 2008.
The Representation Petition in this matter was filed by United Food and Commercial
Workers International Union, Local 5 (the Union) on April 30, 2008.1 Pursuant to a Stipulated
Election Agreement approved by the Regional Director for Region 32 on May 15, an election by
secret ballot was conducted on June 13 in the following unit:
All full-time and regular production and maintenance employees, shipping and
receiving employees, and plant clerical employees employed by the Employer at
its Modesto, California facility; excluding all seasonal employees, managerial and
administrative employees, salespersons, office clerical employees, guards and
supervisors as defined by the Act.
The Tally of Ballots served on all the parties at the conclusion of the balloting showed
the following results:
Approximate number of eligible voters……………………………….34
Number of void ballots…………………………………………………..0

1 All dates hereinafter refer to calendar year 2008.
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Number of votes cast for Petitioner……………………………….…..20
Number of votes cast against participating labor organization…......14
Number of valid votes counted…………………………………….…..34
Number of challenged ballots…………………………………………...0
Number of valid votes counted plus challenged ballots……………..34
Thereafter, Fisher Nut Company, (the Employer) filed timely objections to the election, a copy of
which was served on the Union by the Region. The Regional Director set for hearing the
objections filed by the Employer:2
The Employer objects to the election based on the contention that “supervisors with
meaningful authority over employees coerced and/or interfered with the employees’ free choice
in the election.” Thus, the Employer seeks to set aside the results of the election and petitions
for a rerun election. The Union contends that the Employer has failed to establish any evidence
to supports its objections and contends that the objections should be dismissed.
It is undisputed that the parties stipulated that Liliana Duran, assistant plant manager,
and Dora Valdez, sizing supervisor, were supervisors and not eligible to vote in the election. In
the instant case the Union concedes that Duran was a supervisor but denies that Valdez
possessed supervisory authority.
Prior to the election, Duran was the assistant to plant manager Joe Miceli.3 Duran had
an office next to Miceli’s along with her own desk and computer. Until May 15, she earned
$1.50 to $2.50 per hour more than the employees she supervised. On May 15 she received a
$2.50 per hour raise and an additional week of paid vacation. The rank and file employees did
not receive paid vacation.
Duran ran the plant when Miceli was not present. In addition, Duran reviewed job
applications and made recommendations to Micelei as to whom to interview. Only those
recommended by Duran were interviewed. Duran attended Miceli’s interviews of the job
applicants and then discussed with Miceli whom to hire.
Duran also made recommendations regarding seasonal layoffs and Miceli followed her
recommendations. On one occasion, Miceli proposed laying off three or four employees but
Duran voiced opposition. Miceli accepted Duran’s recommendation and did not lay off any
employees at that time.
After seasonal employees were hired, Duran conducted orientation meetings and
training sessions. Duran had authority to move employees from one department to another in
order to meet business needs. If an employee complained about such a move, Miceli always
supported Duran’s decision. Miceli also instructed employees to contact Duran when they had
a request for time off or called in sick.

2 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence
or because it was in and of itself incredible and unworthy of belief.
3 Duran has since been terminated.
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Duran was the contact person for the United States Department of Agriculture Inspector:
She was required to be present for deliveries and would coordinate inspection and sampling
and would be the one to respond to USDA concerns. Duran directed employees with respect to
the unloading and obtaining samples to give to the USDA inspector.
With respect to quality control, Duran was responsible for reviewing the quality control
reports and, if there was a problem, she was to bring the issue to Ron Fisher, the Employer’s
president. Duran could remove an employee from quality control, re-run the product, or re-train
quality control employees.
One of Duran’s significant duties was to create “pick orders” or “staging slips.” To create
a “pick order,” Duran reviews data entered from the sizing and laser departments and the
customer specifications then chooses among the various bins that will result in an order that
meets customer specifications. After Duran creates the pick order, she delivers it to the forklift
drivers who takes the chosen product from inventory and places it next to the sorting room. The
Employer contends that with the power to create pick orders, Duran had the ability to increase
labor hours. Miceli is now responsible for the creation of pick orders.
Both Duran and Valdez attended weekly production staff meetings. Valdez was
responsible for the sizing department which included 12 to 15 employees including forklift
drivers, general laborers, quality control personnel and her assistant, She would train
employees on the sizing machine, review quality control reports, direct general laborers and the
forklift drivers, and regulate the rate at which the almonds were being sized.
The credited testimony reveals that Valdez selected employees for her crew. When the
season started Valdez would request the employees she wanted and Miceli would comply with
her requests. At the time of the election, Valdez earned $3.50 to $4.50 more per hour than the
employees on her crew. In addition, she received two weeks paid vacation while the other
employees did not receive paid vacation.
During the season, Valdez opened the plant at 4:00 a.m. every morning and was in
charge until 6:00 a.m. when Miceli arrived. She conducted a morning meeting and assigned
employees their positions. Valdez disciplined employees, reassigned them out of her
department and in one instance sent an employee home.
As the season winds down, Valdez worked in preventive maintenance with a staff of two
to five employees. She directed these employees in changing out bearings, re-doing the gravity
table, cleaning the electronics, replacing worn parts and painting equipment.
Employee Maria Barazza testified that at a union meeting on April 30, employee Sandra
Narancio stated that Duran sent word that she was together with the employees. According to
Narancio, Duran did not want the employees to think that she was not on their side, that it was
her job to be on the Company’s side but that Duran was with the employees. Neither Narancio
nor Duran testified at the hearing so this evidence is hearsay and I will not rely upon it. Valdez
was at this meeting.
On May 1, according to Barazza, Valdez and Duran entered the sorting room. In the
presence of approximately 10 employees, Valdez said that there had been a union meeting the
day before but that attendance had been poor. Valdez said that she hoped that at the next
meeting the employees would be united 100 percent. According to Barazza, Duran then told
the employees that she was with them and that she supported the Union.
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During the following week, Barazza attended a union meeting at which both Valdez and
Duran attended. During the third week of May, Barazza attended a meeting at the home of an
employee’s brother. Valdez attended this meeting. According to Barazza the union agent
thanked Valdez for attending the meeting even though she was on vacation. Valdez said she
was with the employees and supported them. According to Barazza the union agent asked
Valdez how she would vote, if she could vote. Valdez said the employees should be united and
be in favor of the Union. Narancio stated that Duran sent word that she was together with the
employees. According to Narancio, Duran didn’t want the employees to think that she wasn’t on
their side. Neither Narancio nor Duran testified at the hearing so this evidence is hearsay and I
will not rely upon it.
Employee Dora Martinez testified that on May 1, Duran and Valdez came into the sorting
room and turned off the conveyor belt. Duran said Valdez had something to say. Valdez stated
that the employees had to be behind the Union 100 percent. D. Martinez attended a union
meeting the following day. Valdez and Duran were present. According to D. Martinez, Duran
asked questions about the benefits of a union. Duran said she was going to convince
Ron Fisher, company president that she was on his side but that she was really on the
employees’ side. According to D. Martinez, the union agent stated that Duran could be more
useful to the Union by working with the Company rather than by attending union meetings.
According to Martinez Valdez also asked about union benefits and stated that the employees
needed to be united. D. Martinez attended another meeting approximately a week later.
According to D. Martinez, employee Narrancio said that Duran had spoken with the company
labor consultant to lead him to believe that she was with the Company. According to
D. Martinez, the union agent said it was more useful for Duran to be with the Company than to
attend union meetings.
Employee Blanca Martinez testified that she signed a union authorization card and gave
it to Duran. Duran said the card was serious and could not be mailed. B. Martinez testified that
on the morning of May 1, Valdez and Duran entered the sorting room and turned off the
conveyor belt. According to B. Martinez, Valdez said that she had attended a union meeting the
previous day and a lot of employees did not attend. Valdez said it was necessary for all of the
employees to attend. Valdez stated that the employees had to support the Union 100 percent.
Duran said that she would support the Union 100 percent. B. Martinez attended a union
meeting on May 2. Duran and Valdez were at the meeting. Duran said that she supported the
employees. According to B. Martinez, the union agent said that Duran could help the Union by
fooling the Employer into thinking that she supported the Company. B. Martinez attended a
union meeting on or about May 8. According to B. Martinez the Union agent stated that Duran
would no longer attend union meetings and that she would be more useful to the Union by
leading the Employer to believe that she supported the Company.
Employee Louise Maria Costello testified that on the morning of May 1, Valdez and
Duran entered the sorting room. Valdez said that only a few employees were attending union
meetings and that all the employees should support the Union. Duran said that she would
support the employees and that employees should attend the union meetings. Costell attended
a union meeting on May 2. Valdez and Duran attended this meeting and asked questions about
union benefits. Costello also attended a meeting at the house of an employee’s brother. At this
meeting, the union agent stated that Duran could not attend any more union meetings.
Employee Narancio stated that Duran supported the Union. The union agent stated that Valdez
was a supervisor and could not vote in the election. Valdez stated that she supported the
Union.
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Employee Nancy Rodriguez testified that Duran meet with her and said that Ron Fisher
had given her a raise and that the employees should give Fisher a chance. Rodriguez was at
two meetings held by Duran and the Employer’s labor consultant in which Duran repeated that
Fisher had given her a raise and that employees should give Fisher a chance, three other
employees were present at these meetings.
Analysis
In Harborside Health Care, Inc., 343 NLRB 906 (2004) the Board formulated a two step
inquiry to apply in cases involving objections to an election based on pro-union supervisory
conduct:
1) Whether the supervisor’s pro-union conduct reasonably tended to coerce or interfere with the
employees’ exercise of free choice in the election.
This inquiry includes: a) consideration of the nature and degree of supervisory authority
possessed by those who engage in the pro-union conduct and b) an examination of the nature,
extent, and context of the conduct in question.
2) Whether the conduct interfered with freedom of choice to the extent that it materially affected
the outcome of the election, based on factors such as (a) the margin of victory in the election; (b)
whether the conduct at issue was widespread or isolated; (c) the timing of the conduct; (d) the
extent to which the conduct became known; and (e) the lingering effect of the conduct. at 909.
The Board also pointed out, however, that it was “by no means suggesting that
supervisory pro-union speech, without more, is objectionable.” See Harborside, 343 NLRB at
911.
In Harborside, id, where the Board found objectionable supervisory pro-union conduct,
the supervisor in question initiated discipline, assigned schedules, gave principal input on
evaluations, directly suspended employees, and effectively recommended suspension and
termination. At least one employee testified in Harborside that the supervisor “could write you
up and make you lose your job.” Armed with such broad authority over the employees’ day-to-
day working conditions, the supervisor repeatedly told employees during the election campaign
that they could lose their jobs if the union lost the election, initiated loud and intimidating
confrontations with employees to cajole them to support the union, and engaged groups of
employees in discussions during which the supervisor made numerous references to the lack of
job security. The supervisor also told employees that she was counting on them to vote for the
union. Additionally, the supervisor solicited authorization cards from employees, pressured an
employee to wear a union pin, solicited employee signatures on a union petition, and required at
least one employee to attend union meetings.
In the instant case there is no evidence of solicitation of authorization cards by either
Duran or Valdez. Duran received a signed card from another employee but had not solicited the
card. While Duran and Valdez supported the Union before a group of employees, no threats or
promises were made. Duran and Valdez then attended a union meeting but again no threats or
promises were made. Thereafter, Valdez, a low level supervisor attended a union meeting at
which it was stated that she could not vote in the election. Again, no threats or promises were
made.
In Northeast Iowa Telephone Co., 346 NLRB No. 47 (2007) the Board found that the
plant and wireless managers’ pro-union conduct did not reasonably tend to coerce or to interfere
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with employee free choice. The Board assumed that the plant and wireless managers were
statutory supervisors, but noted that they did not wield the full panoply of supervisory authority.
Neither manager had ever disciplined a technician or been involved in a technician’s termination
or suspension. Further, to the extent that either manager was responsible for scheduling
technicians, the scheduling appeared to be of a routine nature. The strongest evidence of
supervisory authority was in the areas of effective recommendation to hire and to grant wage
increases pursuant to the annual evaluation process.
With respect to the managers’ prounion conduct, it is undisputed that the conduct was
limited to attending union meetings, participating in discussions at those meetings, signing
authorization cards in front of employees, and mentioning some of the issues that a union could
help resolve, such as the fairness of scheduling, overtime, and layoffs. The Board found such
prounion activity markedly differs from that in Harborside.
The Board found that the conduct of the managers in Northeast Iowa Telephone did not
approach the extensive and intimidating pro-union conduct engaged in by the high-level
supervisor in Harborside. To the extent that the managers possessed supervisory authority, the
employee technicians were affected by it in two limited circumstances—at their initial hiring and
during the annual evaluation process. Further the managers’ pro-union conduct was limited at
best. The managers attended meetings held in employees’ homes, spoke at those meetings
along with the other attendees, signed authorization cards in front of other employees, and
mentioned some of the potential issues that a union could help resolve. The Respondent did
not allege that the managers solicited authorization cards from other employees. Accordingly,
the managers’ pro-union conduct coupled with their limited supervisory authority did not
reasonably tend to coerce or to interfere with employee free choice.
Further, the Board found that even assuming that the managers’ conduct was
objectionable, it did not materially affect the outcome of the election. While the Union’s two-vote
margin of victory might support such a finding that the managers’ conduct could have materially
affected the outcome of the election, other relevant factors lead the Board to the opposite
conclusion. First, the managers’ conduct appeared to have been isolated. Concededly, the
managers attended a number of union meetings, engaged in limited discussions with
employees about the campaign, and signed authorization cards in front of other employees.
However, there was no evidence that the managers signed their cards in front of employees
under their supervision. The only pro-union conduct directed by the managers to the
technicians under their supervision was the plant manager’s statements (1) that if the
employees felt that they should vote for the Union then they should vote for the Union and (2)
that if the Union won it could help resolve issues regarding overtime, compensatory time, and
layoffs. The first statement is not itself an endorsement of the Union and the second is merely a
statement of the potential benefits of collective bargaining. Further, this is not a case in which
employer representatives were pro-union during the organizing campaign such that the pro-
union sentiments of a supervisor might be attributed to the employer and their effect on the
election compounded. Instead, the Respondent made clear to the employees during the
campaign that the Union was not necessary. Accordingly, to the extent that plant manager’s
statements could be viewed as pro-union they are less likely to be attributed to the Respondent.
Further, the Respondent’s admitted antiunion stance would have served to mitigate the
supervisor’s conduct in this case given the limited nature of their conduct and of their authority.
Based on these facts, we conclude that the managers’ pro-union conduct, even if it were
objectionable, did not materially affect the outcome of the election, despite the small margin of
victory.
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The Board went on to state that the fact that an employer is pro-union or antiunion will
not itself render an election invalid. The Board stated that if an employer expresses an
antiunion view, that may mitigate a supervisor’s pro-union coercive conduct. However, the
fundamental issue remains the same. That issue is whether a supervisor’s pro-union actions
have interfered with employees’ exercise of their Section 7 right to choose whether or not to be
represented. When supervisors inject themselves in the debate in a coercive manner,
employee free choice may well be inhibited.
Based on Northeast Iowa Telephone I find that the conduct of Valdez and Duran did not
reasonably tend to interfere with employees free choice in the election process. I further find
that their conduct did not materially affect the outcome of the election.
Conclusions and Recommendations
I recommend that the Employer’s objections to conduct affecting the results of the
election be overruled and that the Union be certified as the duly elected representative of all
employees in the stipulated appropriate bargaining unit.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:
ORDER4
The Employer’s objections to conduct affecting the results of the election in the above
matter are overruled. The Regional Director for Region 32 shall certify the Petitioner as the
collective-bargaining representative of employees in the appropriate unit.
Dated, Washington, D.C. September 10, 2008
____________________
Jay R. Pollack
Administrative Law Judge

4 Any party may, under the provisions of Section 102.67 and 102.69 of the Board’s Rules
and Regulations, file exceptions to this report with the Board in Washington, D.C., within
fourteen (14) days from the issuance of this report. Immediately upon filing of such exceptions,
the party filing the same shall serve a copy thereof on the other parties and shall file a copy with
the Regional Director. Exceptions must be received by the Board in Washington, D.C. by
September 24, 2008.