President Container, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1999

328 N.L.R.B. 1277 (N.L.R.B. 1999)

PRESIDENT CONTAINER, INC. 1277
President Container, Inc. and President Container
Employees Association, Petitioner. Case 22–RC–
11667
August 26, 1999
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on March 5, 1999, and the Regional Director’s sup-
plemental decision on objections and the hearing offi-
cer’s report on objections.1 The election was conducted
pursuant to a Decision and Direction of Election. The
tally of ballots shows 138 votes for the Petitioner, 65
votes for Production Workers Union Local 148, AFL–
CIO (the Intervenor) and 7 votes against union represen-
tation, with 12 challenged ballots, an insufficient number
to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the hearing officer’s
findings2 and recommendations3 only to the extent con-
sistent with this decision.
The hearing officer recommended overruling the In-
tervenor’s Objection 17, which alleged that the Em-
ployer’s owner, Marvin Grossbard, interfered with the
election by announcing to gathered employees that he
would not deal or negotiate further with the Intervenor,
which was the incumbent union. We find merit in the
Intervenor’s exception to this recommendation.4
The pertinent facts are as follows. On the eve of the
election, the Employer and the Intervenor conducted a
bargaining session in an effort to negotiate a successor
contract to the expired contract. This meeting took place
in front of an estimated 25 to 40 employees. The em-
ployees were present upon the Intervenor’s suggestion,
because the Intervenor wanted to dispel rumors that it
was not adequately representing the employees. Accord-
ing to Grossbard, one of the employees became upset and
asked why the employees were not getting more money.
Grossbard then got up and said: “If that’s the position of
[Local] 148 and if that is the position of the employees,
I’m not going to negotiate any further.” Grossbard then
left the room.

1 The Regional Director’s supplemental decision deals with the In-
tervenor’s Objections 1–4, 6–10, 3, and 18. The hearing officer’s re-
port deals with the Employer’s Objections 1 and 2 and the Intervenor’s
Objections 5, 11, 12, 14–17, and 19.
2 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 Intervenor contends that the hearing officer’s findings and con-
clusions demonstrate bias and prejudice. On careful examination of the
hearing officer’s report and the entire record, we are satisfied that the
Intervenor’s contentions are without merit.
3 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation that the Intervenor’s Objections 11, 12, and 19
be overruled and the Regional Director’s finding that the Intervenor’s
Objections 2, 3, 4, 6–10, 13, and 18 be overruled.
4 Because we are setting aside the election on the basis of the con-
duct that was the subject of Objection 17, we find it unnecessary to pass
on the other exceptions to the Regional Director’s findings and the
hearing officer’s recommendations besides those that we adopt pro
forma.
The hearing officer found that Grossbard’s conduct
was a sham, staged to create a built-in objection in case
the Petitioner won the election. On the basis of Gross-
bard’s demeanor as a witness and his 30-year bargaining
experience, the hearing officer concluded that he was not
prone to such emotional outbursts. She also relied on the
fact that the parties signed an indefinite contract exten-
sion after Grossbard made the statement.
Contrary to the hearing officer, we find that Gross-
bard’s conduct requires the election to be set aside. The
refusal to bargain with an incumbent union is a serious
violation that can cause employees to become disen-
chanted with that union. See Caterair International, 322
NLRB 64, 67 (1996). The result of refusing to bargain
with the incumbent union is to “discredit the organization
in the eyes of the employees, to drive them to a second
choice, or to persuade them to abandon collective bar-
gaining altogether.” Karp Metal Products Co., 51 NLRB
621, 624 (1943). This result is magnified when, as in
this case, the refusal to bargain is stated in front of a
large gathering of employees. See MK Railway Corp.,
319 NLRB 337, 343 (1995). Thus, Grossbard’s public
and dramatic refusal to negotiate with the incumbent
union would foreseeably cause it to lose employee sup-
port. In addition, we note that the refusal to bargain with
the Intervenor occurred on the eve of the election, and
that the contract with the Intervenor was not signed until
after the election.
We do not take issue with the hearing officer’s concern
that Grossbard’s conduct may have been intended to fur-
nish the basis for an objection should the Petitioner win
the election. In election cases involving more than one
union, when one of the unions prevailed, the Board has
declined to set elections aside on the basis of objection-
able conduct by employers that was directed either at the
prevailing union or at both unions. As the Board has
recognized, to sustain objections based on such conduct
would condone collusion. It would suggest to any em-
ployer that favored a union whose prospects in an elec-
tion appeared dim that the employer could engage in
objectionable conduct that would enable the favored mi-
nority union to successfully file objections and receive
another chance in a second election. See, e.g., Packer-
land Packing Co., 185 NLRB 653, 654 (1970); Showell
Poultry Co., 105 NLRB 580 (1953). Maple View Manor,
Inc., 319 NLRB 85 (1995).
Here, however, Grossbard’s refusal to bargain was not
directed at both unions or at the prevailing Petitioner, but
328 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
solely at the Intervenor, which was the losing party. Of
course, it is not beyond imagination that the Intervenor
could have colluded with the Employer to manufacture
an election objection in this fashion. Had such collusion
been shown, this would be a different case; we would not
allow a party to profit from its own misconduct. On the
record before us, however, we cannot find that the Inter-
venor played any role in orchestrating Grossbard’s
statement and walkout.5 Thus, even assuming that the

5 The hearing officer found that the contract extension signed after
the election was evidence that Grossbard’s earlier refusal to bargain
was a sham. However, the contract extension does not necessarily
suggest that the Intervenor had anything to do with Grossbard’s prior
conduct.
Employer had a hidden agenda in engaging in objection-
able conduct, there is no evidence that the Intervenor was
anything other than an injured party. In similar circum-
stances, the Board has sustained objections based on em-
ployer conduct that was directed at the losing party in a
election involving more than one union. See, e.g., Con-
course Nursing Home, 230 NLRB 916, 919 (1977) (dis-
tinguishing Packerland Packing and its progeny).
For the foregoing reasons, we find that Grossbard’s
conduct interfered with the employees’ free choice in the
election, and therefore the election must be set aside.
[Direction of Second Election omitted from publica-
tion.]