Gold Kist Poultry Growers

National Labor Relations Board - Board Decisions

Mar 2, 1971

188 N.L.R.B. 772 (N.L.R.B. 1971)

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cotton Producers Association, d/b/a Gold Kist Poul-
try Growers and Retail Wholesale and Department
Store Union, AFL-CIO, and Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO. Case 10-RC-8310
March 2, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN , JENKINS, AND
KENNEDY
Pursuant to Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on July 22, 1970, under the direction and
supervision of the Regional Director for Region 10,
among the employees in the stipulated unit. At the
conclusion of the election, the parties were furnished
a tally of ballots which showed that of approximately
592 eligible voters, 86 cast ballots for the Petitioner,
156 cast ballots for the Intervenor, and 262 cast bal-
lots against the participating labor organizations.
There was one void and no challenged ballot. There-
after, on July 27, 1970, the Intervenor filed timely
objections to conduct affecting the results of the elec-
tion.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, the Regional
Director conducted an investigation of the issues
raised by the objections and on September 23, 1970,
issued and duly served upon the parties his Report on
Objections, finding that Objections 1 and 3 were with-
out merit and recommending that they be overruled.
The Regional Director further found, however, that
Objection 2 had sufficient merit to warrant setting the
election aside.
The Employer filed exceptions to the Regional
Director's disposition of the issues raised by Objec-
tion 2 and his recommendation that a second election
be held, and a brief in support thereof. No exceptions
were filed by the Petitioner or the Intervenor.
Upon the entire record in this case, including the
exceptions and brief, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner and the Intervenor are labor or-
ganizations claiming to represent certain employees
of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(c) of the Act:
All production and maintenance employees, in-
cluding shipping employees employed by the
Employer at it's Boaz, Alabama, poultry proc-
essing plant, but excluding all office clerical em-
ployees, professional employees, technical
employees, salesmen, live poultry haulers, and
chicken catchers, guards, and supervisors as de-
fined in the Act.
The Board has considered the Regional Director's
Report and the Employer's exceptions thereto, and,
for reason hereinafter set forth, hereby adopts the
Regional Director's findings and recommendations.'
Objection 2 in essential part states: "a notice was
posted on the bulletin board advising employees they
could get a raise, but the Union had petitioned for an
election, therefore they could not give it."
It appears that in an earlier election held in Feb-
ruary 1969 a majority of employees voted against un-
ion representation. Notwithstanding the vote in the
earlier election, organizational efforts continued and
on June 29, 1970,2 the present petition for an election
was filed.
The Regional Director's investigation shows that
on July 3 the Employer posted a notice on the plant
bulletin board, purportedly to keep employees abreast
of developments. This notice informed them of the
Employer's receipt on June 30 of the instant petition
and that the Employer had also learned, on the very
next day, that a plant in the area had increased its
employees' base rate. The notice went on to remind
the employees that in a letter to employees dated
March 30, the Employer had promised:
to give to you the best possible benefits consistent
with the sound operation of the plant and bene-
fits equal to or better than any other plant in the
area.
The notice went on to state:
Consistent with our [March 30] promise, we
would at this time review our own wage scale to
determine what increases, if any, we should make
to carry out our third promise. However, our At-
torneys have advised us that while the election is
pending and until the election is held, we should
not consider making any wage increases since we
want to avoid even the appearance of attempting
to influence your decision in the election con-
cerning representation for purposes of collective
bargaining and, further, we do not know what
position a bargaining agent would take should
' As no exceptions were taken to the Regional Director's findings and
recommendations regarding Objections I and 3, these findings and rec-
ommendations are adopted , pro forma
2 All dates are 1970 unless otherwise stated.
188 NLRB No. 122
GOLD KIST POULTRY GROWERS 773
you vote to have one. Likewise, we do not make
any promises or predictions to you at this time
about any particular wage increases.
After reiterating its strong opposition to the Unions,
the Employer advised the employees that it would
undertake to answer any questions about the matter
the employees might have.
In this context, the Employer argues that it could
not remain silent because such silence would have
provoked employee inquiries and created the risk that
any answer given could be misunderstood.
But we can see neither the urgency nor necessity for
bringing the matter of a wage increase to the attention
of the employees at this particular time. It is clear that
the Employer had no fixed practice which obligated
it to increase wages merely in the circumstance of a
wage increase being granted by a competitor. As the
Employer conceded, it had no formula to follow with
respect to wage increases and the amount of a raise,
if any, was a matter resting entirely within its discre-
tion. Thus, there could have been no assurance at the
time the Employer posted its July 3 notice that any
raise was forthcoming because of the competitor's
raise in base rates.
Although we agree with the Regional Director's
results, we would not characterize the Employer's sit-
uation as a "campaign dilemma." There is nothing to
indicate that the employees had become aware of the
competitor's wage increase so as to raise questions
with respect thereto. But had the matter in some way
come to the employees' attention and elicited in-
quiries, the Employer, in light of its discretionary poli-
cy with respect to wage increases, could readily and
simply have informed the employees that it had the
matter under consideration. Here, however, the Em-
ployer initiated discussion of the wage increase and
purposefully aroused the employees' expectations and
conveyed the impression that, but for the presence of
the Unions, the employees would have received a
wage increase. Moreover, by adding that it did not
know what position a bargaining agent would take
should the employees vote for one, the Employer en-
gendered the fear that the selection of a bargaining
agent might well result in no wage increase at all, and
thus led the employees to believe that as assurance of
ultimately receiving a wage increase, it might be better
to reject the Unions. In these circumstances, we can-
not avoid the conclusion that the Employer's conduct
was a clear intrusion into the employees' right to
choose a bargaining representative and by engaging
in such conduct the Employer improperly interfered
with the election. Accordingly, we shall set the elec-
tion aside and direct that a new one be conducted.
ORDER
It is hereby ordered that the election conducted
herein on July 22, 1970, be, and it hereby is, set aside.
[Direction of second election I omitted from pub-
lication.]
3 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all parties
to the election should have access to a list of voters and their addresses which
may be used to communicate with them Excelsior Underwear Inc., 156
NLRB 1236, N LR B v Wyman-Gordon Company, 394 U S 759 According-
ly, it is hereby directed that an election eligibility list, containing the names
and addresses of all the eligible voters, must be filed by the Employer with
the Regional Director for Region 10, within 7 days after the date of issuance
of the Notice of Second Election by the Regional Director . The Regional
Director shall make the list available to all parties to the election No exten-
sion of time to file this list shall be granted by the Regional Director except
in extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are filed.