Packerland Packing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1970

185 N.L.R.B. 653 (N.L.R.B. 1970)

PACKERLAND PACKING COMPANY 653
Packerland Packing Company, Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Petitioner . Case 30-RC-1224
September 18, 1970
DECISION AND CERTIFICATION OF
REPRESENTATIVE
4. The parties stipulated, and we find, that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
the Employer at its Green Bay, Wisconsin, plant,
excluding office clerical employees, truckdrivers,
professional employees, guards and supervisors
as defined in the Act.
BY CHAIRMAN MILLER AND MEMBERS BROWN AND
JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on June 12, 1970, under the direction
and supervision of the Regional Director for Region
30 among the employees in the appropriate unit.
At the conclusion of the election, the parties were
furnished a tally of ballots which showed that, of
approximately 300 eligible voters, 255 cast ballots,
of which 200 were for the Petitioner, 27 were for
the Independent Employees of Packerland Packing,
and 26 were against union representation, with 2
challenged ballots. Thereafter, the Independent
Employees of Packerland Packing filed timely objec-
tions to conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on July 1, 1970,
issued and duly served on the parties his attached
Report in which he recommended that Objections
1 and 2 be sustained, that Objection 3 be overruled,
that the election be set aside, and that a second
election be directed. Thereafter, the Employer filed
timely exceptions to the Regional Director's Report.
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 Petitioner and the Intervenor are labor
organizations claiming to represent certain employees
of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
5. The Board has considered the Intervenor's objec-
tions, the Regional Director's Report, and the Employ-
er's exceptions thereto, and hereby adopts the Regional
Director's findings and recommendations only insofar
as they are consistent with the findings herein.
In its Objection 1 the Intervenor asserted that
the Employer's letter to its employees, dated June
5, 1970, interfered with the election for a number
of reasons. The Regional Director found such interfer-
ence because of the concluding statement: "If you
vote for the Independent Union, your vote will be
wasted because we cannot and will not bargain with
the Independent Union of Packerland Packing Compa-
ny." The Regional Director apparently construed this
as an anticipatory refusal to bargain with the Interve-
nor. However, we do not agree that this construction
is justified from the entire context. Thus, the letter
is not long, and it sets out something of the dispute
concerning the treasury and proper officers of the
Independent, rumors concerning unavailability of min-
ute books, and litigation seeking an election of officers.
Under these circumstances, the Employer's statement
that it "cannot and will not" bargain with the Interve-
nor seems to us to be a statement of factual inability
to carry out any bargaining obligation that might
arise as a result of the election if the Intervenor
were selected. Furthermore, the entire letter is pre
faced by the following paragraph:
So far we have tried to show you why it
would be a bad mistake for you to vote Amalga-
mated and how Amalgamated would threaten
our future and your jobs. Now we have to tell
you why we are recommending that you "dump"
the Independent Union and why you should
vote NO UNION.
Thus, from the face of the letter, as well as from
the entire context of the Employer's preelection cam-
paign, it is clear that the Employer was opposing
both labor organizations and was not saying it would
bargain with one union but not with the Intervenor.
We have considered an analogous situation in which
we rejected the contention that opposition against
both unions will support objections to the election
185 NLRB No. 97
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed by one of them where the other won decisively.'
There we stated:'
The Intervenor's exceptions . . . allege that
the Employer's speech was coercive per se, that
under Board practice an election must be set
aside [when such conduct is shown], and that
the election in the instant case should be set
aside because the Employer's misconduct,
although directed against both Unions, might
have unequally affected the Intervenor's adher-
ents among the employees. [Emphasis supplied.]
In the instant situation, to, the Intervenor claims
that although the Petitioner was designated by a
very substantial majority of the voters, the election
should be set aside because the Employer's statements
of opposition to both unions and preference for neither
could have had an unequal impact among the Interve-
nor's adherents. As in the Showell case, we reject
the rationale and find that the Intervenor's objection
does not raise substantial issues which require that
the election be set aside.
Objection 2 dealt with meetingslon company time
called by the Employer with 150 to 200 employees,
within 24 hours of the election, for the purpose of
informing the employees that a competitor of Packer-
land whose production employees were represented
by the Petitioner in the instant case, was in financial
trouble. Although the meetings were anti-Petitioner
in tenor, and the Petitioner won the election in spite
of these meetings, the Regional Director found that
the Peerless Plywood' rule is an absolute prohibition
against such meetings within 24 hours of the election,
and speculation as to the subjective impact, or lack
thereof, of the speeches on the employees has no
proper relevance.
We do nbt believe we are committed to so mechani-
cal an application of our Peerless Plywood rule as
the Regional Director assumed. In Showell Poultry
Co., supra, we overruled an objection based upon
a coercive employer speech where the petitioner had
won the election decisively, where the intervenor filed
the objection, and where the speech had been directed
against both unions equally. We said in that case:
It is well established that the Board will not
set aside an election because of employer interfer-
ence where the only union involved wins the
election, because to do so would permit the
wrongdoer to profit by its illegal acts. The Region-
al Director found this policy applicable to the
instant case where two unions were involved,
and recommended that the objections be over-
Showell Poultry Co, 105 NLRB 580
' Id at 581-582
107 NLRB 427
ruled, and the Petitioner, which had won the
election decisively, be certified.
We find, for the reasons relied upon by the
Regional Director, that the Intervenor's objec-
tions and exceptions do not raise material and
substantial issues with respect to the election.
This rationale has direct application here. The
"speech," if indeed it was such, can only be regarded
as an attack on the Petitioner, not the objecting
Intervenor. To uphold the objection of the Intervenor
under these circumstances not only does not effectuate
the purposes of the Peerless Plywood rule, but further-
more invites collusion in future cases. It suggests
to any employer, who favors one competing union
whose chances in the election do not appear to be
bright, deliberately to violate the Peerless Plywood
rule in the assurance that the favored minority union
can successfully file objections and be given a second
opportunity to woo the voters.
We therefore overrule Objections 1 and 2, in addi-
tion to 3, which the Regional Director recommended
be overruled.
Accordingly, as the tally shows the Petitioner has
obtained a majority of the valid ballots cast, we
shall certify it as the collective-bargaining representa-
tive of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-
CIO, has been designated and selected by a majority
of the employees in the unit found appropriate herein,
as their representative for the purposes of collective
bargaining and that, pursuant to Section 9(a) of the
Act, the said labor organization is the exclusive repre-
sentative of all employees in such unit for the purposes
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
REPORT AND RECOMMENDATION OF
OBJECTIONS TO CONDUCT AFFECTING RESULTS
OF ELECTION
Pursuant to a petition filed on March 5 , 1970, and
a Stipulation for Certification Upon Consent Election execu-
ted by the above parties and the Independent Employees
of Packerland Packing, hereinafter called the Intervenor,
and approved by the Regional Director on April 27, 1970,
an election was conducted under my supervision on June
12, 1970, among employees in the following unit:
All production and maintenance employees of the
Employer at its Green Bay, Wisconsin plant , excluding
office clerical employees , truckdrivers , professional
employees , guards and supervisors as defined in the
Act.
PACKERLAND PACKING COMPANY
The results of the election set forth in the tally of
ballots served on the parties on June 12, 1970, show that
of approximately 300 eligible voters, 200 cast ballots for
the Petitioner , 27 for the Intervenor , and 26 against the
participating labor organizations. There were two challenged
ballots.
On June 19, 1970, the Intervenor filed timely objections
to conduct affecting the results of the election, a copy
of which was duly served on the Employer and Petitioner.
Acting pursuant to Section 102.69 of the Board's Rules
and Regulations, Series 8, as amended, the Regional Director
has investigated the issues raised by the objections and
hereby reports as follows:
THE OBJECTIONS
The Intervenor filed the following objections:
1. During the period preceding the election, Packer-
land Packing Co., by its officials Betty Frankenthal,
and Charles E. McCarthy, Vice President, Packerland
Packing Co., (hereinafter referred to as Employer)
in a letter sent to each employee on June 5, 1970,
illegally made promises and threats and benefits to
its employees, which Intervenor had no adequate oppor-
tunity to refute, including but not limited to:'
A. The Employer promised peace and security
if employees voted against Intervenor, thereby stat-
ing if employee voted for the Intervenor his vote
would be wasted
B. The Employer stated if the Intervenor won
the election "we cannot and will not bargain with
the Independent Union."
C. The Employer alleged Intervenor's officers were
corrupt and should not be trusted.
D. The Employer alleged Intervenor incapable
of administration of its internal matters, to the
alleged detriment of employees.
2. During the period preceding the election, the
Employer, by its official Betty Frankenthal, in a speech
to all employees on June 12, 1970, within hours of
the election, illegally made promises and threats and
misrepresented and misstated facts which intimidated
and misled employees to vote against Intervenor and
Intervenor had no opportunity to refute, included but
not limited to;
A. The Employer did not know who the officials
were of the Intervenor.
B. That Employer would not bargain with the
Intervenor after election if Intervenor won.
C. That voting for the Intervenor was "silly."
D. Attendance to said speech was compulsory,
captive audience implied with threat of reprisal
for anyone leaving the speech or being inattentive.
3. The Employer and the Petitioner, by their total
course of conduct, restrained and coerced the employ-
ees. The interplay between the Employer's letter dated
June 5, 1970, and speech on June 12, 1970, and the
total absence of any campaign by the Petitioner was
' Letter dated June 5, 1970 , Exhibit
655
the result of a joint scheme of or had the effect
of undermining and discrediting the Intervenor influ-
encing the employees to vote for the Petitioner.
By these and other acts and conduct Employer and
Petitioner, and each of them, undercut and undermined
Intervenor as the choice of the employees, interfered
with the rights of the employees, restrained and coerced
them and prevented the employees from making a
free choice in the election.
The Petitioner's lack of a vigorous election campaign
in and of itself based upon prior election campaigns,
and Employer's lashing out at Intervenor in the last
moments of said campaign conclusively produced a
joint scheme between Employer and Petitioner
THE INVESTIGATION
Objection 1:
This objection is based on the undisputed evidence that
on June 5, 1970, the Employer sent a letter to all employees
stating, in part, "If you vote for the Independent Union,
your vote will be wasted because we cannot and will not
bargain with the Independent Union of Packerland Packing
Company." The entire letter is attached hereto and made
a part hereof.
The Board has consistently held that statements such
as these which declare an anticipatory refusal to bargain,
should a labor organization be successful in an election,
destroy the laboratory conditions in which the Board must
hold its elections. Such declarations clearly convey to the
employees the Employer's conviction that it would be futile
for the employees to designate the Intervenor as their
bargaining agent, thereby preventing the employees' expres-
sion of a free choice in the election. Dal-Tex Optical Compa-
ny, Inc., 137 NLRB 1782; The Great Atlantic and Pacific
Tea Company, Inc., 124 NLRB 329; Lloyd A. Fry Roofing
Company, Incorporated, 116 NLRB 1300.
Amalgamated contends that this objection is meritless;
that the June 5, 1970, letter must be viewed in total
context together with all other campaign literature; and
that the past history of anti-Amalgamated activities by
the Employer and the continuous course of bargaining
of the Employer with Intervenor in past years reveals
the June 5 letter to be a sham, easily recognized as such
by the employees; and finally, that in any event, the letter
did not affect the results of the election.
Although these contentions are not without persuasive
force, I conclude nonetheless that the position advanced
by Amalgamated is at best speculative I find that the
June 5 letter destroyed the laboratory conditions required
for the conduct of a Board election and that accordingly
the results of the election should be nullified.
On the basis of the foregoing, I find merit in Intervenor's
Objection 1.
Objection 2:
Intervenor alleges that on June 12, 1970, shortly before
the polling began, plant superintendent Robert Rotter and
Betty Frankenthal, an agent of the Employer, conducted
captive-audience meetings of employees during working time
and engaged in preelection campaigning.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Investigation reveals that during the morning of June
12, 1970 , Rotter and Betty Frankenthal held several meet-
ings with employees in various departments during which
she read verbatim to them a lien recently filed in a local
court by four area banks against Liebmann Packing, an
area employer . Miss Frankenthal indicated to the employees
that Liebmann Packing was in financial difficulties, adding
that the same fate could befall the Employer in the future.
There is some evidence that she urged employees to vote
"No Union," and some evidence that she urged employees
to vote against Amalgamated.
The employees were instructed to attend these meetings
by their supervisors and were paid for attendance. Each
meeting was called to order by Rotter who instructed
the employees to pay close attention to what Betty Franken-
thal had to tell them . At least 150 to 200 employees
attended such meetings , each of which lasted about 8 min-
utes
Intervenor did not submit , nor did the investigation elicit
any evidence showing that Miss Frankenthal or any other
company official, made any statements during these meetings
as alleged in Intervenor 's Objection 2, (A), (B), or (C).
There is no dispute that each meeting took place on
company time and on company property. It appears that
the purpose of such meetings was to inform the employees
that Liebmann Packing , a competitor of Packerland whose
production employees are represented by the Petitioner,
was in financial trouble. In various items of campaign
material to the employees preceding the June 12, 1970,
election, and in past elections the parties have repeatedly
referred to the fact that the Petitioner represents Liebmann's
production employees
In Peerless Plywood Company, 107 NLRB 427, the Board
held that campaign speeches relating to an election delivered
to assembled employees by the employer on company time
at which employee attendance is compulsory and within
24 hours of the election compel the nullification of the
election . This rule applies equally to meetings conducted
on a departmental basis. American Thermos Bottle Company,
107 NLRB 1570.
The preelection speeches by Betty Frankenthal must be
viewed in light of the entire campaign during which the
Employer repeatedly urged employees to vote against Peti-
tioner , and referred to possible economic consequences
should the employees vote to be represented by Petitioner.
Accordingly, it cannot be reasonably urged that these
speeches were nonpartisan , Ottenheimer Bros. Mfg. Co.,
Inc., 109 NLRB 183, but rather that these speeches were
intended to influence the employees ' vote. The actual effect
upon the voters is of course not material . Riblet Welding
and Mfg. Corp., 112 NLRB 712; Rock Hill Printing &
Finishing Co., 114 NLRB 836.
Amalgamated contends that the total thrust of these
election day meetings were anti -Amalgamated in tenor and
that since Amalgamated won the election it is evident
that these speeches had no effect on the results of the
election . As with the situation regarding the June 5 letter,
Amalgamated's contentions while persuasive are not conclu-
sive of the issue . The manifest purpose of the Peerless
Plywood rule is to prohibit certain kinds of campaigning.
This is an absolute prohibition and speculation as to the
subjective impact, or lack thereof, of the speeches on the
employees has no proper relevance Accordingly, I reject
Amalgamated 's contentions in this regard , and for the
reasons stated above, I conclude that there is merit to
these portions of Objection 2.
Objection 3:
The Intervenor alleges that the Employer 's actions on
June 5 and 12, 1970, together with a failure to campaign
by the Petitioner , undermined the status of the Intervenor
and interfered with the employees ' free choice . Investigation
reveals that Petitioner did engage in preelection campaign-
ing The Intervenor has failed to submit any evidence
to show that the Employer and Petitioner engaged in a
pre-arranged joint venture to interfere with the rights of
the employees. I, therefore, find Objection 3 to be without
merit.
CONCLUSION AND RECOMMENDATION
Having found that Intervenor 's Objection 3 does not
raise substantial and material issues with respect to conduct
affecting the results of the election , it is recommended
that this objection be overruled. Having further found that
Intervenor 's Objections 1 and 2 raise substantial and material
issues with respect to the conduct of the election, it is
recommended that these objections be sustained , that the
results of the election conducted on June 12, 1970, be
set aside , and that a rerun election be conducted.
June 5, 1970
To All Employees:
So far we have tried to show you why it would
be a bad mistake for you to vote Amalgamated and
how Amalgamated would threaten our future and your
jobs Now we have to tell you why we are recommend-
ing that you "dump" the Independent Union and
why you should vote NO UNION.
The Independent Union has many people claiming
to be its officers We don't know who they are, do
you? From the stories we hear , minute books are
not available , treasuries are several and in dispute.
There is litigation pending for an election of officers
which has been pending for years, and who knows
how many more years it will take before that issue
is decided . This union has not brought about any
stability of any kind for you or for us. No one really
knows what this union is doing or - thinking. You
do not need any union to work here and receive
good paychecks and bonuses . The company has always
done for you what it could and remain competitive
and it will do so in the future. This company will
keep its doors open for those people who want to
work , be they employed here now or those many
persons who have applications on file with us now.
PACKERLAND PACKING COMPANY 657
If you vote for the Independent Union , your vote
will be wasted because we cannot and will not bargain
with the Independent Union of Packerland Packing
Company.
Very sincerely yours,
Betty J Frankenthal Charles E. McCarthy
Vice President
VOTE NO UNION