Marshall Durbin and Co. of Jasper, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1969

179 N.L.R.B. 1027 (N.L.R.B. 1969)

MARSHALL DURBIN & CO.
Marshall Durbin and Company of Jasper, Inc. and
Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO,
Petitioner. Case lO-RC-7190
December 9, 1969
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 5, 1969, the Regional Director for
Region 10 issued a Third Supplemental Decision,
Order and Direction of Third Election in the
above-entitled proceeding in which he adopted a
Hearing Officer's findings and recommendations
that Petitioner's Objections 3 and 9 be sustained and
that the election conducted on September 18, 1968,
be set aside' and a third election held. Thereafter, in
accordance with the National Labor Relations
Board Rules and Regulations , Series 8 , as amended,
the Employer filed a timely request for review of the
Regional Director's Third Supplemental Decision on
the grounds , inter alia , that , in sustaining Objections
3 and 9, he erred in adopting certain findings made
by the Hearing Officer and departed from officially
reported precedent.'
On June 24, 1969, the National Labor Relations
Board issued a telegraphic -Order granting the
Employer' s request for review and staying the third
election pending decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, and
makes the following findings:
Objection 3 concerns a series of group meetings
the Employer had with employees during the
election campaign. The parties stipulated that during
the last 2 weeks prior to the election, the
Employer's foremen told almost all the 354 eligible
voters to go at specified times to the office of the
plant manager during working hours for a meeting
at which attendance was taken by the personnel
director. At these meetings, arranged for groups of
20 to 25 employees at a time, Marshall Durbin, Sr.,
president of the Employer, presented the Employer's
position on the upcoming election. The content of
the talks was not found by the Regional Director to
be coercive. The plant manager's office was found to
be the customary meeting place for management
The tally of ballots for the second election showed that of
approximately 354 eligible voters, 325 cast ballots, of which 114 were for,
and 211 against, the Petitioner There were no challenged or void ballots.
'The Employer subsequently filed a letter supplement to its request for
review
1027
discussions with groups of employees on production
problems, installation of new equipment, training
and operations. The office has glass doors and is
located directly adjacent to the production floor
about midway along the 220 foot long wall running
the length of the building and is the least noisy
room in the plant.
In concluding that the group talks herein were
objectionable under the General Shoe doctrine 3 the
Regional Director adopted the Hearing Officer's
finding that the talks were at a "locus of final
authority" and that, as the company president
delivered them, rather than the plant manager who
had conducted the other meetings with employees in
his office, an aura of special treatment was created,
rendering the talks objectionable. The Employer
contends, inter alia, that the holding of meetings
among groups of employees of this size, in the
circumstances described, does not suggest the
isolation of a few from among the many so as to
create an "aura of special treatment" directed to
individuals as distinguished from the employees as a
whole. We find merit in this contention.
Accordingly, we hereby overrule Objection 3.4
Objection 9 relates to a wage increase granted
about a month before the election.
Marshall Durbin, Sr. testified that the Employer
periodically surveys benefits in effect at other plants
in the area which draw on the same labor supply in
order to maintain the Jasper plant's wage scale
within the top 10 percent of the poultry plants in the
area. After its 1968 survey, which indicated that at
least four plants in the area had raised their wages,
the Employer, during the week prior to August 25,
1968, posted a notice on the plant bulletin board
announcing a 7-cent-per-hour wage increase for all
employees, effective August 25, 1968. As in the case
of prior wage increases, the employees had no prior
notice of the Employer's area survey or the increase
based thereon. The Employer states that the
increase was designed to match increases at similar
plants in the area so that it could retain its
employees in a competitive labor market. At the
time it gave the 1968 increase at the Jasper plant,
the Employer under its policy granted the same
increase to employees at its other two plants, at
Mobile, Alabama, and at Hattiesburg, Mississippi.'
The Employer had granted equal increases at its
Mobile and Jasper plants in 1966. In September
1967, an increase was granted at the Mobile plant,
but the Employer deferred granting a similar
increase at the Jasper plant on advice of counsel
because of fears that immediate granting of it
during the pendency of the instant proceeding might
be objectionable.' The Employer asserted that it did
'Genera! Shoe Corporation , Marmon Bag Plant , 97 NLRB 499
'See Dempster Brothers , Inc, 154 NLRB 688, 691-692 , and Tuttle &
Kift Division of Ferro Corp, 122 NLRB 848,849
'The Hattiesburg plant was acquired in February 1968
'In his Supplemental Decision , Order, and Direction of Second Election,
the Regional Director set aside the first election on the basis of the
179 NLRB No. 170
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not delay implementation of the 1968 increase at the
Jasper plant because at the time of its decision to
grant the increase at its three plants then in
operation the date of the second election directed by
the Regional Director had not been scheduled and
because any further delay might cause a loss of
employees to competitors.
A letter dated August 22, 1968, which the
Employer mailed to employees, stated as follows:
It has always been our policy to pay as much
as we can , not as little as we can, to give as many
benefits as we can, not as few as we can. We have
followed that policy and we have a proven record
of regularly increasing rates of pay and improving
benefits.
During the past eight months, you have
received two increases in pay, amounting to 27
cents per hour. Your hospital insurance benefits
were doubled and it still costs you nothing - the
company still pays it all. We added five paid
holidays each year, and you get two weeks paid
vacation after two years employment instead of
after five years.
Your pay scale and benefits are one of the
highest in the industry and higher than any
unionized poultry plant in Alabama. There are
many processing plants that pay the minimum
wage and have no employee benefits. We have to
compete with those plants. We sell chickens to the
same customers at the same price. We don't get
any more for our chickens then they do, even
though our rates of pay are higher and our
benefits are better.
You have received these increases in pay and
improved benefits without having to pay any
union dues, assessments or fees and without
having to become involved in union strikes.
This company will continue to raise pay and
improve benefits whenever we can. No union can
force us to do more than that."
Petitioner 's objection relating to the Employer 's failure to submit a list of
names and addresses of eligible employees in compliance with Excelsior
Underwear Inc., 156 NLRB 1236, and deemed it unnecessary to consider
the Petitioner 's remaining objections . He did not indicate whether the
Petitioner had objected to the Employer 's withholding of the increase
decided upon in September 1967.
Where an employer grants or withholds benefits
during the critical period before an election to
ascertain employee desires on the question of
representation for purposes of collective bargaining,
the Board has placed upon an employer the burden
of establishing that it acted for economic reasons
wholly unrelated to the pending election proceeding.'
And the Board scrutinizes the facts and
circumstances of each case involving this issue to
determine whether or not the employer has met its
burden.
Here, contrary to the Regional Director, we are
satisfied that the Employer granted the increase in
question in accord with its established policy above
described. The fact that the Employer delayed until
after the first election herein the 1967 increase for
the Jasper plant employees here involved while
implementing it immediately for employees at its
other plants is an insufficient basis, in the
circumstances of this case , for questioning its
motivation for adhering in 1968 to its general policy
of giving similar and simultaneous wage increases at
all of its plants. Nor can we infer from the contents
of the Employer's campaign letter above quoted in
full that the recent grant of a wage increase was
timed to impair the free choice of employees in the
second election. Objection 9 is, therefore, hereby
overruled.
Accordingly, as objections have been overruled
and the tally of ballot shows that the Petitioner did
not receive a majority of the valid ballots cast in the
second election, we shall certify the results thereof.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, and that said labor organization is not
the exclusive representative of the employees in the
appropriate unit within the meaning of Section 9(a)
of the Act, as amended.
'See Uarco Incorporated. 169 NLRB No 162; cf United Foods, 170
NLRB No. 151.