Perdue Farms

National Labor Relations Board - Board Decisions

Jun 30, 1999

328 N.L.R.B. 909 (N.L.R.B. 1999)

PERDUE FARMS, INC. 909
Perdue Farms, Inc. and United Food and Commercial
Workers Union, Local 204, a/w United Food and
Commercial Workers International Union,
AFL–CIO, Petitioner. Case 11–RC–6094
June 30, 1999
DECISION AND DIRECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held April 4, 1996, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Decision and Direction of Second
Election issued by the Board on February 2, 1996, re-
ported at 320 NLRB 805 (1996). The tally of ballots
shows 755 for and 947 against the Petitioner, with 53
challenged ballots, an insufficient number to affect the
results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations, and finds that the elec-
tion must be set aside and the case remanded to the Re-
gional Director for further appropriate action consistent
with this decision.2
A. Hearing Officer’s Report and Recommendations
We adopt the hearing officer’s findings that the Em-
ployer committed objectionable conduct prior to the sec-
ond election among employees at Perdue’s chicken proc-
essing plant in Lewiston, North Carolina, by the follow-
ing conduct:

• During a new employee orientation meeting in December
1995 or January 1996, the Employer’s human resources
clerk, Barbara Artis,3 told the employees that if the Union
got in Perdue would close the plant and put in an airport,
that employees would be fired if they were caught wearing
union T-shirts, hats, or other union paraphernalia, and that if
they went on strike they would be fired and lose benefits
and would be unable to file for unemployment.

1 The Employer has excepted to some of the hearing officer’s credi-
bility 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 find no basis for
reversing the findings.
The Employer also contends that the Regional Director’s rulings and
the hearing officer’s rulings, findings and conclusions displayed bias
against the Employer. On careful examination of the entire record, we
are satisfied that the Employer’s contentions are without merit.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the Petitioner’s Objections 4, 8, 10,
and 12.
2 In view of the procedural history of this case, which has resulted in
unusually long delays in the resolution of the question concerning
representation, we deny the Employer’s request to postpone ruling on
the merits of the Union’s objections.
Member Hurtgen would not rule on the objections at this time. In
his view, there is a threshold question concerning the validity of the
showing of interest. If that showing was tainted, the original represen-
tation petition was unsupported and invalid. Thus, he would resolve
that issue before ruling on union objections.
3 Based on Artis’ acknowledgement that she was responsible for
communicating the Employer’s rules, policies, and procedures to new
employees, the hearing officer found that she was an agent of the em-
ployer. See Hausner Hard–Chrome of KY, Inc., 326 NLRB No. 36
(1998); Great America Products, 312 NLRB 962 (1993); and Southern
Bag Corp., 315 NLRB 725 (1994).
• During December 1995 meetings with employees to
introduce a new seniority pay program, the Employer
indicated that eligibility in the program was limited to
nonunion employees and threatened loss of the benefit if
the Union were selected to represent the employees.
Thereafter, during captive audience meetings in March
1997, various supervisors told employees that they would
lose their eligibility for seniority pay if they selected the
Union and that the Employer had refused requests for the
benefit made by unions at represented plants.
• During captive audience meetings in March 1996, the
Employer’s vice president, Larry Winslow, threatened
employees with loss of benefits, loss of employment, and
plant closure by telling them that before the Union came
in he would close the plant down and move it to South
Carolina and that employees would lose their benefits.
• In March 1996, Supervisor Jim Melvin asked an em-
ployee what she would do if the plant closed down.
• In January 1996, Human Resources Manager Bob Bul-
lock announced a new job bid system and a management
training program, which were implemented in February
1996, in order to discourage support for the Union.
Based on this conduct, we find, for the reasons set
forth by the hearing officer, that the Employer engaged
in objectionable conduct and that the second election
must be set aside.
B. The Forgery Allegations
The Employer has excepted to the hearing officer’s
Report and Recommendations on Objections on the
ground, among others, that the Petitioner’s showing of
interest submitted in support of the petition contained
forged authorization cards and that the petition should be
dismissed.
1. The first election
The Union filed its petition in this case on June 2,
1995, seeking to represent a unit of approximately 2200
production and maintenance employees at the Em-
ployer’s facility in Lewiston, North Carolina. 4 An elec-

4 The Employer challenged the showing of interest underlying the
petition in a letter to the Regional Director dated June 9, 1995. In that
letter, the Employer contended that the authorization cards did not
clearly indicate “which plant the signing employee works in,” leading
to potential confusion of the cards with those solicited at another
Perdue plant by a different union. In response to the Employer’s re-
quest, the Region matched the authorization cards against payroll lists
furnished by the Employer and concluded that a sufficient 30-percent
showing of interest had been made.
328 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
tion pursuant to a Stipulated Election Agreement was
conducted on June 28, 1995, which the Union lost 851 to
952, with 53 nondeterminative challenged ballots. The
Union filed timely objections to the first election, which
culminated in the Board’s Decision and Direction of
Second Election on February 2, 1996.5 The Regional
Director scheduled the second election for April 4, 1996.
Less than 2 weeks before the scheduled date for the
second election, the Employer became aware that two
former organizers for the Union were alleging that they
and others had forged some 400 signatures on authoriza-
tion cards intended to support the Union’s petition, and
that the forgeries had occurred at the direction of the Un-
ion’s local president and with full knowledge of Interna-
tional officials. On March 27, 1996, the Employer for-
warded affidavits from the two former organizers to the
Regional Director, along with a request that the allega-
tions be investigated. At the same time the Employer
notified the Regional Director that it had alerted the Fed-
eral Bureau of Investigation and the Department of La-
bor’s Division of Labor Racketeering of the forgery alle-
gations. The Employer asked that the April 4 election be
held as scheduled but that the ballots be impounded
pending a decision on the fraud allegations.
In response to the Employer’s request, the Regional
Director asked the Employer to furnish employment re-
cords that could serve as handwriting exemplars for com-
parison with the authorization card signatures. After
conducting an examination of the handwriting samples
furnished by the Employer, the Regional Director stated
that he found no evidence of the widespread forgery al-
leged by the former organizers. He indicated that al-
though he had some doubts about the authenticity of
some authorization cards it did not appear that the ques-
tionable cards were sufficient in number to affect the
Union’s showing of interest. Accordingly, the Regional
Director proceeded with the second election on April 4.
2. The second election
The Union lost the second election by a vote of 947 to
755, with 53 nondeterminative challenged ballots, and
the Union filed the instant objections. A hearing on the
objections was scheduled for May 21, 1996.
On May 9, 1996, based on the former organizers’ alle-
gations of forgery, the Employer filed with the Regional
Director a motion to dismiss the petition or certify results
of the first election, or, in the alternative, to hold in abey-
ance the hearing on the Union’s objections to the second
election. A few days later, on May 14, 1996, the Em-
ployer filed another motion to postpone the May 21 hear-
ing on the Union’s objections to the second election.
The Acting Regional Director denied the Employer’s
motions on May 15, 1996, relying on the previous inves-
tigation of the petition, including the Regional Director’s

5 320 NLRB 805 (1996).
comparison of signatures on the authorization cards to
the handwriting exemplars provided by the Employer.
On May 16, 1996, the Employer filed with the Board a
request for review of the Acting Regional Director’s de-
nial of its motions,6 raising the allegations of forgery. By
order dated May 20, 1996, the Board denied the Em-
ployer’s request for review “without prejudice to the em-
ployer’s right to raise these issues in any appropriately
filed exceptions to the Hearing Officer’s report that ulti-
mately issues.”
3. The proceedings in Federal court
Meanwhile, on May 17, 1996, while the Employer’s
request for review was pending before the Board, the
Employer filed a complaint in the Eastern District Court
of North Carolina, Northern Division, seeking, inter alia,
to compel the Board to conduct a further investigation
into the fraud allegations. After a hearing, on May 29,
1996, the district court granted the Employer’s motion
for a temporary restraining order, enjoining the Board
from conducting further proceedings or issuing any fur-
ther orders relating to the Union’s objections to the April
4 election until such time as the Board investigated the
forgery allegations.7 The temporary injunction expired
June 8, 1996. Thereafter, on July 23, the court issued a
preliminary injunction prohibiting the Board from further
proceedings on the Union’s petition until the court was
satisfied that the Board had conducted a thorough inves-
tigation into the forgery allegations.8 Between the expi-
ration of the temporary restraining order on June 8 and
the issuance of the preliminary injunction on July 23, the
Region completed its hearing on the Union’s objections
to the second election but the court’s injunction prohib-
ited the hearing officer from issuing a report.
The United States Court of Appeals for the Fourth Cir-
cuit vacated and dismissed the district court’s injunction
on March 14, 1997.9 The court of appeals ruled specifi-
cally that the district court’s injunction was premature in
that the Board had promised in its May 20, 1996 decision
on the Employer’s request for review, that the Employer
would be permitted to raise the fraud and forgery allega-
tions in “appropriately filed exceptions to the hearing
officer’s report” issued in this case.10
On June 17, 1997, the hearing officer issued his report
and recommendations on the objections to the second
election. In this report, he found, as noted above, that the
6 In addition to the May 9 motion to dismiss the petition and certify
the results of the first election or hold the hearing in abeyance and the
May 14 motion to postpone the hearing on objections to the second
election, the Employer had filed a motion for a more definite statement
on May 6, which the Regional Director also denied.
7 Perdue Farms, Inc. v. NLRB, 927 F.Supp. 897 (E.D.N.C. 1996).
8 935 F.Supp. 713 (E.D.N.C. 1996).
9 Perdue Farms, Inc. v. NLRB, 108 F.3d 519 (4th Cir. 1997).
10 Id. at 520–521. At oral argument, the Board’s attorney assured the
court that the Board would fully consider the Employer’s contention
that forgeries had occurred and that the representation petition should
be dismissed because of those forgeries.
PERDUE FARMS, INC. 911
Employer had made various threats of unspecified repri-
sals, plant closure, loss of benefits and loss of employ-
ment, and promised and granted benefits during the cam-
paign.
4. The Department of Justice investigation
As noted above, at the same time as the Employer noti-
fied the Region of the forgery allegations, it also pro-
vided notice of the allegations to criminal law enforce-
ment authorities, namely, the Federal Bureau of Investi-
gation and the Department of Labor’s Division of Labor
Racketeering. Soon thereafter, the Regional Director
was informed by the United States Attorney for the
Western District of North Carolina that the fraud and
forgery allegations were the subject of a criminal
investigation.

The Region cooperated fully in the criminal investiga-
tion. At the outset, the assistant U.S. Attorney handling
the investigation asked that the Region not do anything
to interfere with his investigation, including disclosing
even that the matter was under investigation.11 To avoid
interfering with the investigation, the Regional Director
refrained from conducting his own further investigation
of the fraud allegations.12 By letter dated March 5, 1999,
the United States Attorney informed the Board that it had
concluded its investigation into the allegations that union
officials had engaged in election fraud and found no
“sufficient credible and admissible evidence to warrant
criminal prosecution.”
5. Analysis
The Board has long held that the showing of interest is
a matter for administrative determination and is not liti-
gable by the parties. See, e.g., Gaylord Bag Co., 313
NLRB 306 (1993); Globe Iron Foundry, 112 NLRB
1200 (1955). Once presented with evidence that gives
the Regional Director reasonable cause to believe that the
showing of interest may have been invalidated by fraud
or other means, however, further administrative investi-
gation should be made,13 provided the allegations of in-

11 The Board was instructed not to reveal the existence of the De-
partment of Justice investigation even to the District Court during the
hearings for the temporary restraining order and the preliminary injunc-
tion. Eventually, because the existence of the investigation had appar-
ently been disclosed by other sources, the Board was informed by the
U.S. Attorney’s Office that it could reveal this information in its appeal
of the district court’s order.
12 At the time, the Board had been informed that the criminal inves-
tigation was expected to be completed sometime in the fall of 1997.
13 Secs. 11028.1 and 11028.2 of the Board’s Casehandling Manual
provide, in pertinent part,

11028.1 Possible Forgeries; Investigation: If it appears
that signatures are in the same handwriting, or if a party al-
leges and furnishes evidence that there are forgeries, such
investigation should be made as is necessary and suitable
action taken, including possible referral to other law en-
forcement agencies.
The investigation should include, but not be limited to,
attempts to obtain affidavits from the person or persons re-
validity are accompanied by supporting evidence. Com-
pare Globe Iron Foundry, supra, with Goldblatt Bros.,
118 NLRB 643 fn. 1 (1957).
In this case, the Regional Director did perform a signa-
ture comparison in accordance with the manual. How-
ever, he felt constrained from conducting a full investiga-
tion of the fraud allegations by the simultaneous investi-
gation of the United States Attorney and his desire to
avoid doing anything that would interfere with that
criminal investigation. Now that the criminal investiga-
tion has concluded in a finding that no criminal prosecu-
tion is warranted, the Region may fully inquire into the
Employer’s allegations, in accordance with the appropri-
ate sections of the casehandling manual and with the
Board’s commitment to the court of appeals that the for-
gery allegations would be fully considered. Accordingly,
we remand the case to the Regional Director for such
further inquiry regarding the allegations of fraud and we
direct the Regional Director to issue a supplemental deci-
sion on his findings.14
C. Conclusion
Based on our adoption of the hearing officer’s report
and recommendation sustaining the Petitioner’s Objec-
tions 1, 2, 3, 5, 6, 7, 9, 11, and 13, we find that the sec-
ond election must be set aside. We further find that a
third election should be held if the Regional Director
finds, upon further inquiry, that the Union’s petition was
supported by a valid showing of interest.
[Direction of Third Election omitted from publication.]

sponsible for procuring and submitting the cards. A signa-
ture comparison should be made preferably against the em-
ployer’s records. Persons purporting to have been signato-
ries should be questioned.
. . . .
11028.2 Showing Believed To Be Fraudulent; Proce-
dure: If it is established that reasonable grounds exist for be-
lieving any part of the showing to be fraudulent, suitable ac-
tion should be taken, including possible referral to other law
enforcement agencies.
a. If the remaining valid showing falls below the required
amount (30 percent, 10 percent, etc.), the petition or inter-
vention based on the showing should be dismissed or de-
nied, as the case may be, in the absence of withdrawal or
disclaimer. The stated ground should be that the evidence of
interest submitted “was of questionable authenticity.”
b. If the remaining valid showing satisfies the interest re-
quirement, but if an officer or responsible agent of the union
was responsible for or had knowledge of and condoned
submission of the fraudulent cards, casehandling advice
should be requested of the Board through the Office of the
Executive Secretary.

14 In view of our remand, we grant the Petitioner’s motion to strike
the Employer’s exhibits to its exceptions to the hearing officer’s report
and recommendations. This evidence, if relevant, may be made part of
the record in the inquiry into the showing of interest.