Furr's, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1300 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furr's, Inc. and United Food and Commercial Work-
ers International Union, Local No. 663, AFL-
CIO, Petitioner. Case 16-RC-8347
December 16, 1982
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
Pursuant to authority granted it under Section
3(b) of the National Labor Relations Act, as
amended, a three-member panel has considered ob-
jections to an election held July 9, 1981,1 and the
Hearing Officer's report recommending disposition
of same. The Board has reviewed the record in
light of the exceptions and brief, and hereby adopts
the Hearing Officer's findings 2 and recommenda-
tions only to the extent consistent herewith.
The Hearing Officer recommended that Objec-
tion 2 be sustained in part and that the election be
set aside based on a misrepresentation of law by
the Employer 2 days before the election.3 We dis-
agree.
The alleged misrepresentation involves state-
ments made by the Employer's industrial relations
director, Weaver, at an employee meeting on the
morning of July 6, 1981. Crediting the testimony of
union witnesses, the Hearing Officer found that
Weaver stated that the Employer possessed the
economic right to "invoke" joint negotiations with
Safeway, another retail food employer in the area.4
Based on Weaver's statement, the Hearing Officer
concluded that Weaver had materially misrepre-
sented the law regarding the formation of a mul-
tiemployer bargaining unit by failing to state that
the Petitioner would have to consent to such a bar-
gaining arrangement. Further, relying on Weaver's
own testimony that he stated to employees, "[I]f
they [the Union] strike Safeway, we lock you out,
and if they strike Furr's, Safeway locks out," the
Hearing Officer found that Weaver's statement
The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 40 for, and 47 against, the
Petitioner; there were 6 challenged ballots, an insufficient number to
affect the results.
The Employer excepts to certain credibility findings made by the
Hearing Officer. It is the established policy of the Board not to overrule
a hearing officer's credibility resolutions unless the clear preponderance
of all of the relevant evidence convinces us that the resolutions are incor-
rect. Connor Trading Company. Inc., 188 NLRB 263, fn. 4 (1972); The
Coca-Cola Bottling Company of Memphis, 132 NLRB 481, 483 (1961). We
find no sufficient basis for disturbing the credibility resolutions in this
case.
3 In the absence of exceptions thereto, we adopt, pro forma, the Hear-
ing Officer's recommendation that Objection I and the remaining por-
tions of Objection 2 be overruled.
4 It appears that the Employer had engaged in joint negotiations with
Safeway in the past involving one of the Employer's organized stores.
caused employees to think about the actions the
Petitioner might take against Safeway as well as
the action it might take against their own employ-
er. The Hearing Officer further concluded that, be-
cause of its erroneous premise regarding joint ne-
gotiations, Weaver's prediction of a possible lock-
out was not privileged. Finally, applying Hollywood
Ceramics Company, Inc.,? the Hearing Officer
found that the misrepresentation occurred only 2
days before the election, thereby giving the Union
little or no opportunity to reply.6 He therefore
concluded that the misrepresentation warranted
setting aside the election.
In our recent decision in Midland National Life
Insurance Company,7 we decided that we would
return to the rule announced in Shopping Kart Food
Market, Inc,8 and therefore we would no longer
set aside elections on the basis of misleading cam-
paign statements.9 Thus, since the Employer's
statements herein do not, in our view, amount to
anything more than misleading campaign state-
ments, they do not warrant setting aside the elec-
tion under Midland National.' ° Accordingly, we
hereby overrule Objection 2 in its entirety. Fur-
ther, since the tally of ballots shows that the Peti-
tioner has not received a majority of the valid bal-
lots cast, we shall 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 United Food and
Commercial Workers International Union, Local
No. 663, AFL-CIO, and that said labor organiza-
tion is not the exclusive representative of all the
employees in the unit herein involved within the
meaning of Section 9(a) of the National Labor Re-
lations Act, as amended.
5 140 NLRB 211 (1962).
6We note that the Employer's statements were made 3 days before the
election; however, in view of our decision herein the fact that Petitioner
had 3 days rather than 2 in which to reply is immaterial.
' 263 NLRB 127 (1982).
' 228 NLRB 1311 (1977).
9 As we stated in Midland National, supra, we will continue to inter-
vene in cases where a party has used forged documents which render the
voters unable to recognize the propaganda for what it is and to protect
employees against other campaign conduct, such as threats, promises, or
the like, that interferes with employee free choice. In this case, we find
no basis for concluding that Weaver's statements amounted to a threat or
conduct which otherwise interfered with employee free choice.
'O We note that Midland National. supra, involved a misrepresentation
of fact, whereas the instant case involves a misrepresentation of law.
However, Midland National applied to misleading campaign statements
generally, and there is no basis for treating misrepresenations of law dif-
ferently than any other misrepresentations. See also Affiliated Midwest
Hospital Incorporated, d/b/a Riveredge Hospital, 264 NLRB 1094 (1982).
For the reasons stated in his dissenting opinions in Midland National
and Riveredge Hospital, Member Fanning would adopt the Hearing Offi-
cer's sustaining of parts of Objection 2.
265 NLRB No. 164
1300