OK Foods, Inc.

National Labor Relations Board - Board Decisions

Jul 15, 2015

14-RC-124829 (N.L.R.B. Jul. 15, 2015)

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NOT INCLUDED IN MHJ
BOUND VOLUMES Heavener, OK
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
OK FOODS, INC.
and Case 14-RC-124829
UNITED FOOD AND COMMERCIAL
WORKERS, LOCAL 1000, AFL-CIO
DECISION AND DIRECTION OF SECOND ELECTION
The National Labor Relations Board, by a three-member panel, has considered objections
to an election held May 1, 2014, and the hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of
votes shows 26 for and 29 against the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the exceptions and brief, has adopted the
hearing officer’s findings1 and recommendations as modified below,2 and finds that the election
must be set aside and a new election held.

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 preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex
Co., 118 NLRB 1359, 1361 (1957). We have carefully examined the record and find no basis for
reversing the findings.
2 In the absence of exceptions, we adopt pro forma the hearing officer’s recommendation to
overrule the Petitioner’s Objections 5, 8, 10, and 11.
We adopt the hearing officer’s findings that the critical-period exchange between the
Employer’s vice president, Mike Martin, and its labor consultant, Matthew Perovic, implying
that employees would receive raises if they voted against the Union, reasonably interfered with
employee free choice and thus constituted objectionable conduct sufficient to warrant
overturning the election. For this reason, we find it unnecessary to pass on the hearing officer’s
additional findings that the Employer engaged in objectionable conduct when CEO Trent Goins
solicited employees’ grievances at a weekend-shift lunch meeting and impliedly promised to
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DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in the unit found
appropriate, whenever the Regional Director deems appropriate. The Regional Director shall
direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote
are those employed during the payroll period ending immediately before the date of the Notice of
Second Election, including employees who did not work during the period because they were ill,
on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike
that began less than 12 months before the date of the first election and who retained their
employee status during the eligibility period and their replacements. Jeld-Wen of Everett, Inc.,
285 NLRB 118 (1987). Those in the military services may vote if they appear in person at the
polls. Ineligible to vote are employees who have quit or been discharged for cause since the
payroll period, striking employees who have been discharged for cause since the strike began
and who have not been rehired or reinstated before the election date, and employees engaged in

remedy them and that the Employer engaged in objectionable conduct when Diane Baker, a
human resources officer, told an employee that she “could not hear any more” about his wage
complaint due to union activity. Member Hirozawa would adopt these findings.
Member Miscimarra agrees that the exchange between Martin and Perovic
warrants overturning the election. At a captive-audience meeting with unit employees during the
critical period, the subject was raised of certain retroactive increases that some employees had
received and others had not. Martin asked Perovic if the Employer could give the increases if
employees “were to shoot the Union down,” and Perovic answered in the affirmative. In finding
this exchange objectionable, Member Miscimarra relies on three considerations. First, the
question about giving increases was posed by Martin, a high-ranking manager, not by an
employee, and Martin used the phrase “shoot the Union down” in conjunction with his question
about wage increases. Second, the record shows the exchange occurred after the Employer had
already given pre-petition wage increases to some employees, and (as the hearing officer found)
those increases had been given because of the Union’s presence. Third, the conversation
concerned specific raises that certain employees sought rather than the general subject of
possible pay increases. These facts distinguish this case from Libertyville Toyota, 360 NLRB
No. 141, slip op. at 8-9 (2014) (Member Miscimarra, concurring in part and dissenting in part)
(absent any context of impermissible wage increases, finding lawful employer’s statement, in
response to an employee’s general question about possible wage increases if the union were not
voted in, that there would be a “willingness to consider making adjustments”).
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an economic strike that began more than 12 months before the date of the first election and who
have been permanently replaced. Those eligible shall vote whether they desire to be represented
for collective bargaining by the United Food and Commercial Workers, Local 1000, AFL-CIO.
To ensure that all eligible voters have the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is
directed that an eligibility list containing the full names and addresses of all the eligible voters
must be filed by the Employer with the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The
Regional Director shall make the list available to all parties to the election. No extension of time
to file the list shall be granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the election if proper
objections are filed.
Dated, Washington, D.C., July 15, 2015.
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Philip A. Miscimarra, Member
____________________________________
Kent Y. Hirozawa, Member
____________________________________
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD