Pastoor Bros. Co.

National Labor Relations Board - Board Decisions

Mar 29, 1976

223 N.L.R.B. 451 (N.L.R.B. 1976)

PASTOOR BROS . CO. 451
William Pastoor and Ray Pastoor , a Co-Partnership
d/b/a Pastoor Bros . Company and Local 26, Amal-
gamated Meat Cutters and Butcher . Workmen of
North America, AFL-CIO, Joint Petitioner and
General Teamsters Union , Local 406, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Joint Petitioner . Case 7-RC-13027
March 29, 1976
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election held on June 25, 1975,' and the Regional
Director's report recommending disposition of same.
The Board has reviewed the record in light of the
exceptions and briefs, and hereby adopts the Region-
al Director's findings and recommendations 2 as
modified below.
As more fully set forth in the attached relevant
portions of the Regional Director's report, the Re-
gional Director found that employee Sonderfan's
conduct in handing union campaign literature to the
Employer's election observer, Timmer, prior to the
opening of the polls, together with his two brief con-
versations with employee Fiekema on the voting line,
constituted objectionable conduct within the pro-
scription of Milchem, Inc., 170 NLRB 362 (1968).
While we agree with the Regional Director's conclu-
sion, we do so only on the basis of Sonderfan's con-
versations with Fiekema. Thus, we find, contrary to
the Regional Director, that Sonderfan's exchange
with Timmer is outside the boundaries of Milchem
because the polls were not open, balloting. had not
begun, and no other employees were present when
the exchange occurred. Lincoln Land Moving & Stor-
age, Inc., 197 NLRB 1238 (1972). However, we do
find that Sonderfan's conversation with Fiekema
while the latter was being ushered to the head of the
line to vote constitutes improper electioneering re-
gardless of whose version of the incident is credited.
Sonderfan's statement , "is your mind made up" cou-
pled with his offer of campaign propaganda is, in our
view, tantamount to soliciting votes for the Union.
As found by the Regional Director, Sonderfan's
statement and offer of campaign literature was over-
heard by other employees waiting in line to vote.
Thus, it is irrelevant whether Sonderfan handed
Fiekema the envelope before or after the latter had
voted. Accordingly, we shall set aside the election
and direct that a second election be conducted.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER PENELLO, dissenting in part:
As employees were standing in line to vote, em-
ployee Sonderfan, a member of the Joint Petitioners'
in-plant committee, approached employee Fiekema
in the voting line and asked him "Is your mind made
up?" Fiekema replied "Yes, I know all I need to
know. My mind is made up." Whereupon according
to Fiekema, Sonderfan offered him a large envelope
containing a campaign leaflet and asked him if he
would take it after or before he voted. Fiekema said
that he would take it afterwards. Fiekema went on to
vote, and by all accounts it was not until after he
voted that he was handed the envelope. As similar
envelopes had been handed out during the lunch pe-
riod on election day, presumably some of the em-
ployees in line knew that the envelope contained
union propaganda, although there is no indication
that there was any union insignia of any kind on the
outside of the envelope. Since Fiekema stated that he
had already made up his mind and did not take the
union literature until after he voted, it cannot be ar-
gued that the conduct herein influenced his vote. As
to the others, either they had been given the material
before, were familiar with it, and therefore could not
have been influenced by Fiekema's being given it; or
they had not seen it before and therefore could not
have known what it was or have been influenced by
Sonderfan's offer of the envelope.
This single instance of entirely innocuous conduct
has persuaded my colleagues to set aside the election
on the basis of Milchem, Inc., 170 NLRB (1968). But,
in Milchem itself the Board said conversations must
be "prolonged" or "sustained" and:
[T]his does not mean. that any chance, isolated,
innocuous comment or inquiry by an employer
or union official to a voter will necessarily void
the election. We will be guided by the maxim
that "the law does not concern itself with tri-
fles." Milchem, supra at 363.
Because I cannot imagine conduct more trifling than
that involved herein, I would overrule the objections
in their entirety and certify the.Joint Petitioners.
1 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election : The tally was 18 for, and 12 against , the Joint
Petitioners ; there were no challenged ballots.
2 In the absence of exceptions thereto, we adopt pro forma the Regional
Director's recommendation that Objections 2, 3, 4, and 5 be overruled.
223 NLRB No. 61
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
A. Facts
The Employer contends that Union agents en-
gaged in electioneering during the voting period by
passing out written information within 20 feet of the
voting area . The investigation reveals that employees
Gordon Menkveld and Dick Sonderfan distributed a
three-page, typewritten handout enclosed in manila
envelopes at the noon lunch break on the Employer's
premises on June 25, 1975, the day of the election.
The election was held between the hours of 3:00 p.m.
and 3:30 p.m. The handout is [herein referred to] as
Exhibit "A".
The handout was composed by Gordon Menkveld
based upon suggestions and recommendations of the
other employee signatories and was edited and ap-
proved by Meat Cutters Union Business Agent Wa-
ters after the latter had telephonically discussed its
contents with that Union 's legal counsel. Waters then
reproduced the document, Exhibit "A", the bulk of
which was distributed by Sonderfan at noon on the
day of the election.
The Employee Committee that signed Exhibit
"A", which included Sonderfan and Menkveld, was
formed at a general meeting of employees as a result
of a show-of-hands vote on or about April 10, 1975,
prior to the Union's organizational drive. The Com-
mittee was , at that time , authorized by the employees
to represent them in presenting employee demands
upon the Employer. After attempting to bargain di-
rectly with the Employer, the Committee, in April
1975, approached the Meat Cutters Union seeking
outside union representation. The Committee mem-
bers were then instructed in the proper method of
soliciting authorization cards for the Petitioner. Up
to the date of the election, the Committee operated
as an in-plant organizing committee for the Joint Pe-
titioners.
Sonderfan handed out the largest portion of the
envelopes containing Exhibit "A" during his lunch
period on the day of the election. Two employees not
at work that day-vacationing Employer election ob-
server William Timmer and an employee on sick
leave, Ronald Fiekema-were approached by Son-
derfan just prior to and during the polling period
which took place between 3:00 p.m. and 3:30 p.m.
Sonderfan's account of the objected to activity, as set
forth in affidavit form , is as follows:
I also gave one copy of this handout to Bill Tim-
mer, who was the observer for the Employer at
the election that day, about 5 minutes prior to
the opening of the polls, or about 2:55 p.m. on
that same day, June 25, 1975.
Timmer was seated at the table in the lunch area
with the other observer and the NLRB agent. I
said to Bill, "Here is the information that the
other people received," and handed him a copy.
The reason I did not give it to him earlier is that
he was on vacation that week.
The handouts were packaged in large manila en-
velopes and all looked alike. After handing Tim-
mer his envelope I turned around and got in line
to vote.
At about 3:15 or 3:10 1 was standing in line and
noticed that an employee, Ron Fiekema, who
was on sick leave had arrived. Since he was ill he
was ushered up to the head of the line. As he
came by me I stopped him long enough to shake
his hand and say, "Arrangements have been
made for you to get a ride home if you want one.
I hope you've been able to get all the informa-
tion you need. Is your mind made up?" He an-
swered, "Yes, I know all I need to know. My
mind is made up." He proceeded on to the vot-
ing area, and as he was coming back by me he
stopped and told me that arrangements had
been made that were satisfactory to get him
home. I told him that was good and said, "Take
this along with you. It's what we passed out to
the fellows earlier today. It is information that
we hope helped some people make up their
mind." I handed him the envelope containing
the handout, and he proceeded to the elevator. I
would estimate that I was 30 to 35 feet from the
polling area at the time. This was the only hand-
out I distributed during the polling period. .. .
The two recipients of the material give similar ac-
counts of these events, with the exception that Ron-
ald Fiekema, in his affidavit, states that Sonderfan
offered him the envelope before he voted, but recalls
that he did not accept it until after he voted. Fiekema
believes that Sonderfan's words were: "I have a pam-
phlet-some information that you can have before or
after you vote." Fiekema answered, "I'll take it af-
ter," and states that Sonderfan handed him the enve-
lope without saying anything after he voted.
Another employee gives an account, in affidavit
form, similar to Fiekema's:
I observed Ron Fiekema approaching the voting
area. I was in direct line from where Fiekema
was walking to the polling place. Many people
were greeting Ron because he is on sick leave
and we hadn't seen him for a while. When he
was 10 to 15 feet from me, Dick Sonderfan who
was in a direct line between Fiekema and said to
the approaching Fiekema, "You can take this
before you vote, or you can take it later," and
PASTOOR BROS. CO.
held out a large brown envelope similar to the
one Menkveld had handed to me . I would esti-
mate that Fiekema and Sonderfan were between
20 to 30 feet from the polling area at the time he
was first offered the envelope. Ron said, I be-
lieve, "No, I'll take it later." Ron went in to vote
and then began walking toward the elevator. Af-
ter he passed me Sonderfan, who remained
where he had been, a few feet from me, handed
Ron the envelope. Ron took it and continued on
his way.
I did not observe Sonderfan or anyone else dis-
tributing this envelope during the polling period
to any other employees.
The Board Agent conducting the election recalls
observer Timmer being handed a large envelope in
the final minutes before the polls opened, but was
not aware of such being presented to. employee
Fiekema during the polling period.
B. Analysis and Conclusions
Agency Status of the Employee Committee:
In determining agency status of employee , commit-
tees , the Board has frequently looked to authoriza-
tion and ratification by a union. While the instant
Employee Committee was formed prior to the initial
contact with Meat Cutters Union, the Petitioner uti-
lized the Committee to solicit authorization cards af-
ter instructing its members concerning procedures
for soliciting cards and the "do and don't" of cam-
paigning. According to the testimony of Sonderfan,
the employees looked upon the Committee as the in-
plant representatives of the Joint Petitioners and the
latter did use the Employee Committee as its liaison
with employees . For example, two of its members,
Sonderfan and Menkveld, arranged for and spoke
out authoritatively on election issues at two general
meetings for employees held at the Teamster's Local
Hall on or about June 10 and 24, 1975. Also, one of
the committee members , Sandra Hitts , served as the
union observer at the election . Finally , and quite sig-
nificantly the Employee Committee handout, Exhibit
"A", was drafted by employee Gordon Menkveld,
signed by fellow committee members Sandra Hitts,
Ed Cornett and Dick Sonderfan, subsequently repro-
duced for distribution by Business Agent Waters af-
ter it had been approved by the Meat Cutters'
Union 's legal counsel , and thereafter distributed in
the main by committee member Sonderfan.
In view of the aforesaid Union 's authorization and
ratification of Committee activity, I conclude that
the committee members were agents of the Union.
453
Hampton Merchants. Association, etc.'151_NLRB 1307
(1965), cf. Marlowe Manufacturing Company, Inc.,
213 NLRB No. 46 (1974).
Electioneering:
In Milchem, Inc., 170 NLRB 362 (1968), the Board
held that an agent ' s "sustained conversations with
prospective voters waiting to cast their ballots, re-
gardless of the content of the remarks exchanged,
constitutes conduct which, in itself , necessitates a
second election ." The intent of Milchem is to insure
that voters are free from any influence in those last
few minutes prior to casting a ballot so that they may
cast their ballot in an atmosphere of reasoned choice.
Here , the conduct alleged to constitute improper
electioneering under Milchem consists of handing
campaign literature to the Employer observer Tim-
mer in the polling area itself immediately prior to the
opening of the polls and two conversations between
employee Sonderfan and employee Fiekema in the
voting line during which time Fiekema was handed
campaign literature . While Sonderfan 's discussion
with Timmer in the polling area was not in or of itself
a "sustained conversation ," it has to be considered in
conjunction with the exchange with Fiekema which
consisted of two short conversations relating to the
election as well as the distribution of campaign litera-
ture to both in the election area.
The Board has recently looked to the content of
such conversations as well as to probable effects of
said comments on voters . See Century City Hospital,
219 NLRB 52 (1975); Hecla Mining Company, 218
NLRB 860 (1975). Careful consideration of
Sonderfan 's offer of a ride home to employee Fieke-
ma leads me to conclude that it does not rise to the
level of an improper offer as was involved in Modern
Hard Chrome Service Co., 187 NLRB 822 (1970). The
question posed of Fiekema as to whether or not his
mind was made up and the offer of the printed cam-
paign material removes these conversations out of
the bounds of pure innocuousness or casualness. The
remarks were directed to an employee in the pres-
ence of other employees and were obviously a refer-
ence to the voter's upcoming voting decision . As not-
ed before, an employee who as far as 10 to 15 feet
from where Sonderfan was waiting in line to vote
overheard the conversation with Fiekema . It can be
assumed that some part of the group of prospective
voters in line ahead of Sonderfan , as well as those
adjacent and behind him, were in a position to be
influenced by the conversation they overheard, as
well as the submission to Fiekema of the envelope
which the employees would very well be aware con-
tained campaign propaganda.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I conclude that Sonderfan's exchang- of a party to an election which comes within the
es with voter Fiekema in the presence of other em- proscription of the Milchem.
ployees who were waiting to vote in conjunction with Therefore, I recommend that Objection No. I be
the exchange with Timmer to be conduct of an agent sustained and the election be set aside.