Holly Farms Poultry Industries. Inc.

National Labor Relations Board - Board Decisions

Apr 1, 1970

181 N.L.R.B. 890 (N.L.R.B. 1970)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holly Farms Poultry Industries , Inc. and
Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 272,
AFL-CIO , Petitioner . Case 5-RC-6826
April 1, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Pursuant to a Stipulation for Certification upon
Consent Election approved by the Regional Director
for Region 5 on June 16, 1969, an election by secret
ballot was conducted on August 15, 1969, among
the employees in the stipulated appropriate unit.
Upon the conclusion of the election, the parties were
furnished with a tally of ballots which shows that
there were approximately 643 eligible voters, and
587 ballots were cast, of which 336 were for the
Petitioner, 205 were against the Petitioner, 41 were
challenged, and 5 were void The challenged ballots
cannot affect the result of the election The
Employer filed timely objections to conduct
affecting the results of the election.
Thereafter, the Regional Director caused an
investigation of the objections to be made and on
December 31, 1969, issued and caused to be duly
served upon the parties his Report on Objections
and Notice of Hearing, in which he recommended
that Objections 1 through 4 and 6 through 36 be
overruled. As to Objection 5, the Regional Director
found that substantial and material factual issues
were involved, and he directed that a hearing be
held to resolve these issues. The Employer filed
timely exceptions to the Regional Director's Report
with documents attached, urging that the election be
set aside on the basis of certain of the objections
overruled by the Regional Director, or alternatively,
that a hearing be directed on these and other
objections. No exception was taken to the Regional
Director's recommendations that Objections 10, 13,
15, 21, 23, 27, and 32 be overruled, which are
adopted pro forma '
On January 22, 1970, the Employer filed with the Regional Director a
Motion to Produce, in which it asked for copies of all affidavits and
documents taken and /or received by agents and representatives of Region
5 which were referred to in, were used as a basis for, or in any way relate
to the Regional Director's Report on Objections and Notice of Hearing
On January 28, 1970, the Petitioner filed its Objection to Employer's
Motion to Produce On January 30, 1970, the Regional Director issued an
order referring this motion to the Board The motion is hereby denied It is
established Board practice to direct the production only of those affidavits
given by employees who have testified at Board hearings , for purposes of
possible impeachment by cross-examination , as required by Jencks v
United States , 353 U S 657, and by Section 102 118 of the Board's Rules
and Regulations , Series 8, as amended See N L R B v Chambers
Manufacturing Corp , 278 F 2d 715 (C A 5) In our view, to grant the
broad request made by the Employer herein would needlessly subject
employees to possible retaliation and impair the investigative processes of
the Board See N L R B v Vapor Blast Mfg Company, 287 F 2d 402,
407 (CA 7), W T Grant Company . 144 NLRB 1179, 1181-82, Bausch
and Lomb , Incorporated . 140 NLRB 1400, 1401, footnote I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization 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)(l)
and Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees of the
Employer at its Glen Allen, Virginia, plant,
including local truck drivers and cafeteria
employees, but excluding all office clerical
employees, farm workers, hatchery employees,
chicken catchers, over-the-road drivers, all other
employees, guards, and supervisors as defined in
the Act.
5. The Board has considered the Regional
Director's Report, the Employer's exceptions, the
documents attached, and the entire record in this
case, and hereby finds, regarding Objections 1-4,
7-9, 11, 12, 14, 16-20, 22, 24-26, 28-31, and 33-36,
that the Employer's exceptions raise no issues
warranting a hearing or reversal of the Regional
Director's recommendation that they be overruled,
On January 23, 1970, the Employer filed a Motion to Receive Evidence
and Amend Report on Objections and Notice of Hearing , asking the
Regional Director to receive in evidence the affidavit of Everett B
Solomon, a copy of which was attached to the motion , and, on the basis
thereof, sustain Objections 18, 26, and 36 , or direct a hearing thereon On
January 28 , 1970, the Petitioner filed its Objection to Employer ' s Motion
This motion was referred to the Board by the Regional Director on
January 30 , 1970 Having carefully considered the matter , we hereby
receive in evidence the affidavit of Everett B Solomon, but deny the
motion in all other respects As to Objection 18, the affidavit purports to
supply evidence in support of the Employer 's contention that the Petitioner
misrepresented the Company's profits in 1967 and 1968 However, the
affidavit fails to indicate what the profits were for those years Therefore,
the statements in Solomon's affidavit , even if true , would not permit a
determination that a material misrepresentation was made As to
Objections 26 and 36 , the Solomon affidavit contradicts certain statements
allegedly made by the Petitioner over its loudspeaker outside the plant
gate , or in literature distributed to the employees , to the effect that the
Employer fired and laid off employees for no reason , that the Employer's
bonus for perfect attendance constituted a fine or assessment for being
absent or late, and the employee paid cost of uniforms and equipment
constituted an assessment We find, however , in agreement with the
Regional Director, that the aforesaid union statements were permissible
campaign propaganda, and that the Employer had ample opportunity to
reply to all the statements which constitute the bases of these objections
181 NLRB No. 134
HOLLY FARMS POULTRY INDUSTRIES 891
and this recommendation is therefore adopted.'
However, the Board finds that the Employer's
exceptions to the Regional Director's
recommendation that Objection 6 be overruled raise
issues which can best be resolved on the basis of
record testimony. Accordingly,
It is hereby ordered that the Employer's
Objections 1-4 and 7-36 be, and they hereby are,
overruled; and that this case be remanded to the
Regional Director for Region 5 for further
proceedings regarding Objections 5 and 6.
in a telegram to the Board dated March 19, 1970 , the Employer
contends that Bor-Ko Industries . Inc . 181 NLRB No 46 , requires the
Board either to set aside the election , or expand the hearing to include
Objections 17, 31, and 35, on the basis of statements concerning overtime
pay contained in the affidavits of employees Absher and Williams
Petitioner has filed a letter in opposition We find no merit in the
Employer's contention
The Absher affidavit states that union representatives Hamblin and
Hopkins told her about 2 weeks before the election that "the company was
violating the federal law by not paying overtime after 8 hours in one day "
The Williams' affidavit states that employee union supporters made the
same statement to her
The Regional Director dealt with these alleged statements in connection
with Objection 34 Noting that the Petitioner denied making any such
statements , the Regional Director reasoned that even if made, these
statements merely expressed the legal opinion of the Petitioner, were
devoid of threats or intimidation , did not constitute misrepresentations
peculiarly within the knowledge of the Petitioner , and that the employees
were in a position to know the method of overtime payment We agree
with the Regional Director that the Employer's objections based on these
alleged statements should be overruled Bor-Ko Industries , Inc , supra, is
clearly distinguishable on its facts Thus, unlike that case which involved a
much smaller unit, the instant case involves only one isolated statement
which is attributable to the Petitioner , which alleged statement was not
couched in terms of the Employer "cheating" the employees , and was not
thereafter widely disseminated to employees generally by a written
document tending to establish the statement as a fact Member Brown,
who did not participate in the Bor-Ko Industries case, would not find such
statements to be a ground for setting aside an election and therefore agrees
that this Objection be overruled