Miller's Pre-Pared Potato Co.

National Labor Relations Board - Board Decisions

Mar 9, 1979

240 N.L.R.B. 1302 (N.L.R.B. 1979)

1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller's Pre-Pared Potato Company, Inc. and Interna-
tional Brotherhood of General Workers, Petitioner.
Case 13 RC-14609
March 9, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHIAIRMAN FANNIN( ANI) MlEMNBERS JENKINS
ANI) TRI TSI)\I.1
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted by the Regional Director for Region 13
on December 22, 1977, among the employees in the
unit described below. After the election, the parties
were furnished an amended tally of ballots which
showed that of approximately 87 eligible voters 74
votes were cast, of which 35 were for and 30 were
against the Petitioner, and 9 ballots were challenged.
Challenged ballots are sufficient in number to affect
the results of the election. The Employer filed timely
objections to conduct affecting the results of the elec-
tion.
In accordance with the NL.RB Rules and Regula-
tions and Statements of Procedure Series 8, as
amended, the Regional Director conducted an inves-
tigation and, on March 3, 1978, issued and duly
served on the parties his Report on Challenged Bal-
lots and Objections, in which he (1) recommended
that one challenged ballot be counted as a vote for
the Petitioner: (2) recommended that challenges to
the ballots of three voters be sustained: (3) made no
recommendation concerning the challenges to the
ballots of the five remaining voters because those
ballots would not be determinative if the Board
adopted his recommendations concerning the above-
described challenged ballots: and (4) recommended
that the objections be overruled and that the Board
issue a Certification of Representative. The Em-
ployer filed timely exceptions to the Regional
Director's report and recommendations.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
240 NLRB No. 184
within the meaning of Sections 9(c)( 1) and 2(6) and
(7) of the Act.
4. The parties stipulated. and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time general la-
borer, maintenance, production, shipping, and
receiving employees at the Employer's facility
now located at 140th and Western Avenue, Blue
Island, Illinois; but excluding all office clerical
employees, guards and supervisors as defined in
the Act, and all employees represented by other
labor organizations.
5. In making his recommendations concerning the
Employer's Objection (d)(i), the Regional Director
concluded that certain statements made in a letter
from the Petitioner to the Employer's Spanish-speak-
ing employees would have constituted objectionable
conduct warranting setting aside the election under
the standards set forth in Hollywood Ceramicv Com-
pain,. Inc..' but nevertheless recommended that the
objection be overruled because the Holh, wood Ce-
ramics. standards had been overruled in Shopping
Karl Food Matrket. Inc. 2 under which the conduct
would not be considered objectionable. Subsequent-
ly, in General Knit of/ California, Inc..' the Board
(Members Penello and Murphy dissenting sepa-
rately) overruled Shopping Kart and returned to the
standards set forth in Hollywood Ceramics. Accord-
ingly, it is necessary to consider the Employer's ob-
jections in light of the present Board law.4
As more fully set forth in the portion of the Re-
gional Director's report attached hereto and marked
"Appendix." the Petitioner sent a letter, in Spanish to
Spanish-speaking employees 4 days before the elec-
tion. That letter stated, in relevant part:
The Union will negotiate for better pay and ben-
efits. The members of this Union get salaries be-
tween $3.90 to $200.00 an hour.
At the time of the election, newly hired unskilled la-
borers were paid $2.85 per hour by the Employer.
While the lower wage figure claimed by the Peti-
tioner is apparently accurate, the Employer asserted
the higher figure was misleading and that, because
140 NRB 221 (1962).
228 NlRB 1311 19771 (then Member Fanning and Member Jenkins
dissented).
1239 NI.RB 619 (1978)
4Absent special circumstances. he Board has traditionally applied the
pronouncement of a new rule of law to the case in which it arose and to all
pending cases See. e g. H. & F Himh (o. Plant ,f tr rh oe Lt' ce. 188
NlRB 720 11971) (appling the principles of Ihe laidhli (rporaiton. 171
Nl.RB 1366 1968) ). end 456 1.2d 37 12d ( ir. 1972). We see no reason to
depart frlm this practice in this case.
MILLER'S PRE-PARED POTATO COMPANY, INC. 1303
the Employer did not learn of the statement until
after the election, the Employer was unable to re-
spond.
The Regional Director concluded that the state-
ment implied that the Petitioner had negotiated wag-
es in the range cited for employees in bargaining
units represented by the Petitioner. He further noted
that while the Petitioner had acted as a talent agency
in negotiating salaries for entertainers which exceed-
ed $200 per hour, it had not established that those
entertainers were its members and, similarly, that
while some members of the Petitioner received sala-
ries in excess of $200 per hour, the Petitioner had not
negotiated wages for those individuals. For this rea-
son, the Regional Director concluded that the Peti-
tioner had substantially misrepresented its success in
negotiating high wages for employees. He further
concluded that the claim was not "so extreme as to
put the employees on notice of its lack of truth under
the particular circumstances so that they could not
reasonably have relied on the assertion." 5 noting
that two or three unit employees had asked the Peti-
tioner's business agent how they could earn $200 per
hour. While these employees were told that this wage
rate applied to entertainer members of the Petitioner,
he concluded that other unit employees-who did
not inquire and were not told of this limitation-
might have been misled. As noted above, while he
ultimately recommended that the objection be over-
ruled based on Shopping Kart, the Regional Director
concluded that were Hollh'wood Ceramics still the law
he would find that the statement warranted setting
aside the election. We disagree.
We note initially that the Petitioner's claim was,
technically, accurate; some of its members do earn
over $200 per hour, although the Petitioner did not
negotiate their wages. Thus, any misrepresentation
could arise only through drawing an inference that
the Petitioner meant to claim that it had negotiated
such salaries for employees in its capacity as a collec-
tive-bargaining representative. We are unwilling to
draw this inference in the circumstances here. At
most, the statement was ambiguously worded, and,
as we have stated in previous cases. "the mere fact
that a message is inartistically or vaguely worded and
subject to different interpretations will not suffice to
establish such misrepresentation as would lead us to
set the election aside." 6
Contrary to the Regional Director, evidence that
s( me employees may have inquired about the higher
wage figure does not require a conclusion that the
Petitioner's statement had a tendency to mislead em-
ployees. "Our test ... has never been one of actual
impact on voter choice, but rather a tendency mate-
rially to mislead." 7 Moreover, those employees who
inquired were told that the wage rates applied to en-
tertainers, and their inquiries are as likely to have
been the result of disbelief of the Petitioner's claims
as they are to have been evidence of an erroneous
belief that employees doing similar work might earn
vastly more than the employees in this unit. In our
view, the statements made by the Petitioner were nei-
ther literally untrue nor within the range where they
were likely to mislead the voters.
The Regional Director found certain other state-
ments, alleged by the Employer to be misrepresenta-
tions, unobjectionable under the rule in Shopping
Kart. The Regional Director's analysis of these state-
ments makes it clear that they also are not objection-
albe under present Board law.
The Employer's remaining exceptions do not raise
material or substantial issues of fact or law warrant-
ing reversal of the Regional Director or requiring a
hearing. We therefore adopt the recommendations of
the Regional Director, as modified above. 8 As the
Petitioner received a majority of the votes cast in the
election, we will certify the Petitioner as representa-
tive of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Brotherhood
of General Workers and that, pursuant to Section
9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of
employment, or other conditions of employment:
All full-time and regular part-time general la-
borer, maintenance, production, shipping, and
receiving employees at the Employer's facility
now located at 140th and Western Avenue, Blue
Island, Illinois; but excluding all office clerical
employees, guards and supervisors as defined in
the Act, and all employees represented by other
labor organizations.
HIll-iood (eramics. upra at 224.
Id
Atoldine Manufacturing (ormpan. 203 NLRB 527, 531 11973).
In the absence of exceptions thereto, we adopt. pro aorma, the recom-
mendations of the Regional Director with regard to Objection 2(il and the
challenged ballots of Bo)d Dickinson and Charles Ohst.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
Objection (d)(i)
The Employer contends that the Petitioner's De-
cember 18, 1977, letter in Spanish to employees con-
tains a material misrepresentation concerning the Pe-
titioner's negotiating record to which the Employer
had no opportunity to respond. The Petitioner ad-
mits making the statement in question but denies
that it constitutes a material misrepresentation.
The second paragraph of the Petitioner's Decem-
ber 18th letter, when translated, reads as follows:
The Union will negotiate for better pay and ben-
efits. The members of this Union get salaries be-
tween $3.90 and $200.00 an hour.
The Employer contends that the latter wage figure
constitutes a serious departure from the truth or a
major distortion, particularly since this letter was di-
rected to largely immigrant unskilled production
workers.2 The Employer states that this letter did not
come to its attention until after the December 22,
1977, election date, and hence it was precluded from
an opportunity to respond to the Petitioner's claim.
The Employer does not quarrel with the lower of
the two wage claims, and the evidence shows that the
Petitioner's statement in that respect is not a misrep-
resentation. The Petitioner, as the certified collective-
bargaining representative of a similar unit of employ-
ees of Down River Forest Products, Inc., in nearby
Dixmoor, Illinois, negotiated a 3-year collective-bar-
gaining agreement for the certified unit employees
effective October 1, 1977. Under that contract, em-
ployees in the general laborer classification are paid
$3.90 per hour after their 60th day on the job, and
wage rates in other classifications range up to $4.85
per hour. Thus, the Petitioner's claim that its mem-
bers receive wages of $3.90 per hour does not consti-
tute a misrepresentation.
The same cannot be said with any degree of cer-
tainty as to the higher wage figure asserted by the
Petitioner. Nor is it evident that the Petitioner actual-
ly negotiated wages of this magnitude for its mem-
bers. While the Petitioner's letter does not actually
claim that it has negotiated salaries of $200.00 per
hour for its members, this claim may be fairly infer-
red when reading the two sentences together.
The Petitioner has presented evidence as to its ne-
gotiation of, and the receipt of, wages of $200.00 per
hour for its members. George Rodriquez, president
of the Petitioner, states that the Petitioner represents
a variety of persons in the media and entertainment
2 At the time of the election, new employees hired as unskilled laborers
were paid $2,85 per hour.
fields who make high wages.3 Rodriquez states that
the Petitioner negotiated one complete collective-
bargaining agreement prior to the election herein
concerning persons in these categories. This 3-year
agreement, which was signed by Chicago-area pro-
moter Alex Cervantes on September 5, 1977, pro-
vides inter alia, for wages of at least $200.00 per hour
for persons in the "singer" and "performer" catego-
ries. However, Rodriquez and Cervantes state that
Cervantes has never hired any entertainers pursuant
to this agreement because Cervantes suffered severe
financial reversals in 1977 and has temporarily with-
drawn from the promotion business. Thus, this agree-
ment would not substantiate the Petitioner's claim
that its members have received or receive wages of
$200.00 per hour pursuant to contracts it negotiated.
The Petitioner also presented copies of "recogni-
tion agreements" it has concluded with three other
Chicago-area promoters whereby these promoters
agreed to recognize the Petitioner as the collective-
bargaining representative of their employees and to
establish a contract governing terms of employment.
Rodriquez admits, however, that the Petitioner has
not commenced negotiations with these promoters.
Thus, these agreements do not substantiate the Peti-
tioner's wage claims.
The Petitioner additionally named Armando Per-
ez, an employee of Weigel Broadcasting Company
(WCIU TV-Channel 26) as a member earning wag-
es of $200.00 per hour. The Petitioner is the certified
collective-bargaining representative of certain Chan-
nel 26 employees, including Perez. Thus far no col-
lective-bargaining agreement has been reached be-
tween these parties, and a strike has been in progress
since September 1977. Although Perez is paid
$200.00 per week for hosting a one-hour television
show, he is additionally required to be present one-
half hour before his show and to attend another half-
hour meeting each week. Thus, it appears that while
Perez may technically be a member of the Petitioner,
his wages were not negotiated by the Petitioner and
in any event do not actually amount to $200.00 per
hour.
Finally, Rodriquez states that the Petitioner has
negotiated contracts calling for wages of at least
$200.00 per hour for approximately 50 to 100 individ-
ual and group members on an ad hoc basis, function-
ing essentially as a talent agency for Hispanic enter-
tainers working in the Chicago and Midwest area.
1The Petitioner's letterhead, on which the December 18th lette. p-
peared. lists a variety of employee classifications in the media and eitertain-
ment industries which the Petitioner purportedly represents or is willing o
represent (see discussion infra). Howeser, this listing appears only in English
and it is questionable whether the Spanish-speaking recipients of the D-
cember 18th letter would be able to understand the letterhead listing anil
conclude from this alone that the listed categories were those to which the
union's wage claim referred.
MILLER'S PRE-PARED POTATO COMPANY. INC. 1305
Rodriquez states that the Petitioner similarly repre-
sents nonmember and member performers from
Mexico in their dealings with Chicago-area pro-
moters. The Petitioner presented no contracts it has
negotiated for member performers.4 The Petitioner
also noted several independent producers who
earned over $200.00 per hour and are members of the
Petitioner, but Rodriquez admits that the Petitioner
does not negotiate wage rates for these persons for
their projects.
The evidence thus is insufficient to establish that
the Petitioner has in fact negotiated wage rates of
$200.00 per hour for its members. Even if the Peti-
tioner's claim with respect to its negotiating record
was demonstrably true, the Petitioner's use of the
high wage rate paid in the entertainment field to per-
formers in the context of the instant campaign direct-
ed at largely unskilled employees working in a facto-
ry is seriously misleading. This is particularly true
since the statement focused upon "the wages the Pe-
titioner had negotiated-a matter of vital concern to
employees." Grede Foundries, Inc., 153 NLRB 984.
986 (1965). The wage rates in question were clearly
within the special knowledge of the Petitioner, and
employees had no independent knowledge which
would enable them to evaluate the Petitioner's claim.
Therefore, if the criteria set forth in Hollywood Ce-
ramics Company, Inc., 140 NLRB 221 (1962) were
4 Promoter Galo Lozada states that he has booked entertainers on three
occasions through the Petitioner at rates of $20000 per hour. but he is
unaware if then were member, of the Petitioner.
applied to these facts, I would find that the Petitioner
interfered with the free choice of employees by mak-
ing a material and substantial misrepresentation to
which the Employer had no opportunity to reply.
and I would recommend that the election be set aside
on that basis.5
However. in Shopping Kart Food Market, Inc.. 228
NLRB 1311 (1977). the Board overruled Hollh'wood
Ceramics and held that it would no longer set aside
elections based upon misleading campaign state-
ments. As explicated by the Board in Shopping Kart,
it does not appear, moreover, that the Petitioner's
misrepresentation constitutes an "egregious mistake
of fact" which would warrant setting the election
aside. Shopping Kart, supra, 228 NLRB 1311, 1315
(1977) (Member Murphy concurring).
Based upon the Board's decision in Shopping Kart,
I recommend that the Employer's Objection (d)(i)
be overruled.
The Board has refused to set aside elections where a misrepresentation
or misleading statement is "so extreme as to put the emploqees on notice of
its lack of truth under the particular circumstances so that they could not
reasonabl have relied on the assertion." Holv~wood (eramics. supra. 140
NLRB at 224 While such a disposition might appear appropriate herein. In
light of the great disparits between the emplosee's present wages and the
$200.0) vwage rate cited h the Petitioner a consideration of all of the el-
dence shows that this assumption cannot he made with certitude in the
present case Petitioner's business agent. Erika Agrillo. states that at the
campaign meeting held hb Petitioner on December 18. 1977. two or three
Spanish-speaking male emplosees approached her separately and asked
about making 200.00 per hour. as mentioned In the Petitioner's December
l8th letter. if the Petitioner were oted in. While Aguillo states that she
explained that the higher rate applied to the Petitioner's entertainer mem-
hers. it appears that some employees may have been led to believe that they
too could expect to earn salaries of S200.00 per hour if the, were repre-
sented hb the Petitioner