Northern States Beef

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 1056 (N.L.R.B. 1993)

1056
311 NLRB No. 106
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
In support of Objection 4, the Employer has asserted that the hear-
ing officer has allowed hearsay testimony regarding statements made
by Bob Logan and Mike Hart to be admitted into the record as an
exception to the hearsay rule, and therefore, by not relying on those
statements in his report, the hearing officer directly contradicted his
previous evidentiary ruling. We disagree. ‘‘Administrative agencies
ordinarily do not invoke a technical rule of exclusion but admit hear-
say evidence and give it such weight as its inherent quality justi-
fies.’’ Alvin J. Bart & Co., 236 NLRB 242 (1978). In the instant
case, we note that the hearing officer acknowledged this principle
when he admitted the hearsay testimony into the record by stating
that the testimony would not necessarily lend credence to whether
the objectionable conduct had in fact occurred. The Employer has
contended that the hearsay statements were also being offered to
prove the degree of anxiety and fear that allegedly existed in the
plant prior to the election. However, as the only evidence proffered
by the Employer to show the nexus between the alleged atmosphere
at the plant was the hearsay statements made regarding the alleged
objectionable conduct, we find that the hearing officer properly dis-
counted the testimony.
We correct the following inadvertent errors made by the hearing
officer under the ‘‘Preliminary Matters’’ section of his report: (1) in
par. 1, the subpoena material was requested up to the date of the
hearing on November 18, 1992; (2) also in par. 1, even though the
Employer’s attorney did make a request by letter to the Regional Di-
rector and the General Counsel, the Regional Director had yet to re-
ceive it by the time he issued his order denying enforcement of the
subpoena; and (3) at the end of the third paragraph, the reference
should read ‘‘(See 102.66(c) of the Board’s Rules and Regula-
tions).’’
Conagra, Inc., d/b/a Northern States Beef and
United Food and Commercial Workers Union,
Local 73A, AFL–CIO–CLC, Petitioner. Case
18–RC–15232
May 28, 1993
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held March 27, 1992, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 78 for and 57 against
the Petitioner, with 4 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations, and finds that a cer-
tification of representative should be issued.
In support of its objections, the Employer has al-
leged that the hearing officer made a procedural error
by referring its motion to enforce a subpoena duces
tecum to the Regional Director who thereafter denied
the motion, rather than referring the matter to the
Board. The Employer has maintained that the decision
on whether to institute subpoena enforcement pro-
ceedings is within the sole province of the Board act-
ing directly rather than through a delegation. We dis-
agree.
Under Section 3(b) of the National Labor Relations
Act, the Board is authorized to delegate to the Re-
gional Directors its power under Section 9 of the Act
regarding representational matters. The Board may re-
view a Regional Director’s action, but that review does
not stay the action unless specifically so ordered by the
Board. The Board’s Rules and Regulations, Section
102.65(a), state, in pertinent part, that motions made
prior to the transfer of the case to the Board shall be
filed with the Regional Director, or, if made during the
hearing, with the hearing officer. Further, the Regional
Director may rule on all motions filed with him or he
may refer them to the hearing officer for ruling.
In the case at hand, we find that the Regional Direc-
tor properly exercised his delegated authority. See
NLRB v. Adrian Belt Co., 578 F.2d 1304, 1309–1310
(9th Cir. 1978). Therefore, after reviewing the record
and giving due consideration to the Employer’s mo-
tion, we adopt, in its entirety, the attached Regional
Director’s order denying the Employer’s motion that
subpoena enforcement proceedings be instituted. In ad-
dition, we note that the Board in its review process has
addressed the Employer’s concern that the matter at
issue be presented to the Board and that the Employer
has not been prejudiced in any manner.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for United Foods and Commercial
Workers Union, Local 73A, AFL–CIO–CLC, and that
it is the exclusive collective-bargaining representative
of the employees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees employed by the Em-
ployer at its plant at 316 Third Avenue, Edgar,
Wisconsin; excluding all office clerical employ-
ees, quality assurance employees, sales persons,
graders, computer operators-programmers, panel
board operators, logic system operator,
manifestors, checkers, dispatchers, plant clericals,
scalers, ground beef formulators, buyers, elec-
tronic scales technician, medical department em-
ployees, night sanitation employees, janitors, truck
spotters and washers, managerial employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
1057NORTHERN STATES BEEF
APPENDIX
REGIONAL DIRECTOR’S ORDER DENYING
EMPLOYER’S MOTION THAT SUBPOENA
ENFORCEMENT PROCEEDINGS BE INSTITUTED
On November 10, 1992, the Employer served a subpoena
duces tecum on a ‘‘qualified representative’’ of the Peti-
tioner, seeking the production of the following materials at
a hearing on the Employer’s objections, which opened No-
vember 18, 1992:
(1) All monies paid to employees [of the Employer]
from January 1, 1992 to the present.
(2) Names, dates, rented, and amounts of rent paid
for all facilities rented for Union meetings with [Em-
ployer’s] employees from January 1, 1992 to the
present.
(3) Records showing attendance by [Employer’s] em-
ployees at any Union meeting from January 1, 1992 to
the present.
At the hearing, the Petitioner failed to produce the mate-
rials called for in item 3. At that time the Employer modified
item 3 to seek only a listing of employees attending the
March 25, 1992 union meeting. John Eiden, a representative
of the Petitioner, testified at the hearing that, if a sign-in list
were maintained at the March 25 meeting (and other rep-
resentatives of the Petitioner testified that it was), he was un-
able to find it; that it would have been maintained in a box
that he carried with him during the campaign which also
contained literature and newspaper articles regarding the
campaign; that that box had been lost after the campaign,
and for that reason, he was unable to produce the sign-in list,
had one actually been maintained. Although Eiden would
have been the individual with possession of the sign-in sheet
had one been maintained, Eiden conceded that he did not ask
the other business agents involved in the campaign whether
they had the list.
The Employer’s attorney, believing that Eiden’s denial of
the existence of such material was suspicious stated he could
not accept it; that he wanted to hear the witness make such
a denial before a Federal judge; and, although not indicating
on what basis he believed that such testimony would be
changed if made before a Federal judge, asked that the hear-
ing officer refer to me his motion that enforcement of the
subpoena be sought (only as to the March 25 list). The hear-
ing officer did so.
In support of its Objection 4, the Employer contends that
at the March 25, 1992 union meeting, unnamed employees
who voiced opinions against representation were attacked
and physically assaulted; and that the Petitioner’s representa-
tives did nothing to disavow the conduct or to stop the at-
tack.
It is not clear why the Employer needs a listing of em-
ployees who attended the March 25 meeting. It could be in
order to identify the potential participants in the altercation,
had one occurred, or potential witnesses to it. The Employer
contends that things are too busy at the plant to question the
employees pursuant to Johnnie’s Poultry Co., 146 NLRB
770 (1964).
The Employer has not set forth a reasonable basis to be-
lieve that the subpoenaed document exists. Further, no reason
appears why the Employer could not obtain the names of
employees who were assaulted or were witnesses thereto
without the subpoenaed list. The Employer knew the names
of several employees who attended the March 25 meeting
and the names of employees allegedly assaulted, and yet
didn’t call them as witnesses. Further, three business agents
who attended the meeting were called as witnesses by the
Employer; and three employees, one an alleged participant,
were called as witnesses by the Petitioner and were subject
to cross-examination by the Employer. Finally, providing an
employer the names of employees attending a union meeting,
not unlike providing names of employees signing union au-
thorization cards, is contrary to established Board policy.
This is especially true where, as noted, the Employer had
available for examination several individuals who had at-
tended the meeting and, moreover, could have obtained the
information it sought by other means.
Finally, I find that the interests of employees in not having
the fact that they attended a union meeting revealed to their
employer far outweigh the employer’s rights to obtain that
information where, in the circumstances here, the Employer
could have obtained the evidence it sought by other means,
and had access to witnesses at the hearing who had attended
the meeting in question.
At the meeting the Employer indicated an intention to also
formally request in writing that enforcement be sought in this
matter. As yet, the Employer has failed to do so. However,
all factors relevant to such a request are set forth in the
record of the hearing, which, as the Employer requested, has
been carefully considered.
Based on the foregoing, I find that insufficient basis exists
for seeking enforcement of the Employer’s subpoena, and
therefore the Employer’s motion that enforcement be sought
is denied.