Nebraska Consolidated Mills, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 639 (N.L.R.B. 1967)

NEBRASKA CONSOLIDATED MILLS, INC. 639
Nebraska Consolidated Mills, Inc. and
Sindicato de Trabajadores Packinghouse,
Food and Allied Workers , District 9 of
Puerto Rico , AFL-CIO, Petitioner. Case
24-RC-2891.
June 19,1967
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Pursuant to a stipulation for certification upon
consent election executed on May 6, 1966, an
election by secret ballot was held on May 18, 1966,
under the direction and supervision of the Regional
Director for Region 24, among the employees of the
Employer in an appropriate unit . Following the
election, a tally of ballots was furnished the parties,
which showed that of the 12 votes cast in the
election, 7 were for and 5 against the participating
labor organization. Thereafter, the Employer filed
timely objections to conduct affecting the results of
the election.
On July 11, 1966, the Regional Director issued and
duly served on the parties his Report and
Recommendation on Objections, in which he
recommended to the National Labor Relations
Board that the objections be overruled in their
entirety and that the Petitioner be certified as the
collective-bargaining representative of the
employees in the appropriate unit. Thereafter, the
Employer filed timely exceptions to the Regional
Director's Report and Recommendation. On
October 25, 1966, the Board, having duly considered
the matter, found that the Employer's Objection 2
raised issues of a sufficiently serious nature to
warrant a hearing, and accordingly directed that a
hearing be held before a Hearing Officer to resolve
the issues raised by the Employer's Objection 2. On
November 21, 1966, a hearing was held before
Hearing Officer Donald R. Klenk. At the hearing, the
Employer and Petitioner were represented and were
afforded full and complete opportunity to be heard,
to examine and cross-examine witnesses, and to
present evidence pertinent to the issues. On
February 2, 1967, the Hearing Officer issued his
Report and Recommendation on Objections, in
which he recommended that Objection 2 be
overruled and that the Petitioner be certified as the
collective-bargaining representative of the
employees in the appropriate unit.
The Employer filed timely exceptions to the
Hearing Officer's conclusions and recommendations.
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
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain 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 all
construction employees employed by the Employer
in its business located at Barrio Sabana, Catano,
Puerto Rico, excluding all other employees, office
clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. The Board has considered the Hearing
Officer's report, the Employer's exceptions thereto,
and the entire record in this case. The record shows
that on the day of the election,a group of employees,
while on their lunch hour, assembled together to talk
with the Petitioner's representatives who were then
on the premises for purposes unrelated to the
forthcoming election. During the course of this
meeting, the employees were advised as to when and
where to vote, and, in addition, in response to
various inquiries from the employees themselves,
the union representatives discussed benefits they
claimed the employees would receive if the Union
were selected as their collective-bargaining
representative. The Employer contends that all of
the employees were present, and that, in the course
of the discussion, campaign promises were made to
the employees less than 3 hours before the election
on company time in violation of the Peerless Plywood
rule.'
From the record, it is clear that the speech or
discussion started on the employees' own time, was
extemporaneous in that it was not planned or
scheduled ahead of time, was voluntarily attended
with no member of management present, and, at
best, ran over into company time for no more than
approximately 5 minutes. In our opinion, this
conduct, although it did in fact occur, is not such
conduct as would require the setting aside of the
election. The Peerless Plywood rule does not prohibit
employers or unions from making campaign
speeches on or off company premises during the 24-
hour period preceding an election if employee
attendance is voluntary and on the employee's own
time.2 Additionally, we believe that the instant facts
are more closely related to the facts in Wate, Inc.,
123 NLRB 301, and Granite State Veneer, Inc., 123
Peerless Plywood Co., 107 NLRB 427 'Id at 430.
165 NLRB No. 60
640 DECISIONS OF NATIONAL
NLRB 1497, cited and relied on by the Hearing
Officer, wherein the Board on both occasions
refused to apply the Peerless Plywood rule when
accidental and inconsequential extensions of
speeches and discussions into the 24-hour period on
company time occurred. Accordingly, we adopt the
Hearing Officer's recommendation that the
Employer's Objection 2 to the election be overruled.
In addition, the Board is also of the opinion that the
Employer's exceptions to the Regional Director's
Report overruling the Employer's other objections
raise no issues of fact or law which would warrant
reversal of the Regional Director's recommendations.
Accordingly, the Board hereby adopts the Regional
Director's findings and recommendations as to the
Employer's remaining objections.
Accordingly, since the tally shows that the
Petitioner has been selected by a majority of the
LABOR RELATIONS BOARD
employees in the unit found appropriate herein we
shall certify it as the exclusive collective-bargaining
representative.
CERTIFICATION OF REPRESENTATIVE
IT IS HEREBY CERTIFIED that Sindicato de
Trabajadores Packinghouse, Food and Allied
Workers, District 9 of Puerto Rico, AFL-CIO, has
been designated and selected by a majority of the
employees employed by the Employer in the
appropriate unit as their representative for the
purpose of collective bargaining, and that, pursuant
to Section 9(a) of the Act, the said organization is the
exclusive representative of all such employees for
the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
conditions of employment.