R & R Processors, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1975

217 N.L.R.B. 562 (N.L.R.B. 1975)

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R & R Processors , Inc. and Amalgamated Meat Cut-
ters & Butcher Workmen of North America,
AFL-CIO, Petitioner . Case 15-RC-5277
April 29, 1975
SUPPLEMENTAL DECISION AND
CERTIFICATION OF RESULTS OF THE
ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to the Board's Decision and Order Direct-
ing Hearing, issued on May 10, 1974, a hearing was
held on June 19 and 20, 1974, before Hearing Officer
J.O. Dodson, duly designated for that purpose, at
which time the Employer, the Petitioner, and counsel
for the Regional Director for Region 15 appeared and
participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing upon the issues, and to pre-
sent oral argument to the Hearing Officer.
On December 2, 1974, the Hearing Officer issued his
Report on Objections in which he recommended that
the results of the election be set aside and a second
election be held. Thereafter, the Employer filed timely
exceptions, and a supporting brief, to the Hearing Of-
ficer's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding 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 is a labor organization 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.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees in the
Employer's poultry processing plant located on
Highway 35 North in Carthage, Mississippi; ex-
cluding office clerical employees, truck drivers,
guards, and supervisors as defined in the Act.
5. With respect to Objection 5, the testimony at the
hearing is in conflict as to whether, during the five
preelection meetings held by the Employer, the em-
ployees were told that if the Union should win the
election the Employer would not sign a contract. Peti-
tioner's witnesses testified that the employees were told
this and -the Employer's witnesses denied that they
were. The Hearing Officer credited Petitioner's wit-
nesses. But he did not credit them on the basis of their
demeanor at the hearing and his report does not dis-
close any basis for his credibility resolution. We have
therefore found it necessary to make an independent
evaluation of the entire record.'
Upon careful examination of the record, we are left
unpersuaded by the testimony of Petitioner's witnesses
credited by the Hearing Officer. The Hearing Officer
found that employee witnesses at the hearing were con-
fused; were guilty of contradictions in their testimony,
including unexplained material contradictions of pre-
hearing affidavits; in many cases, were inattentive and
slept through the meetings; and, in most cases, were
limited to a degree in the usage and comprehension of
statements made to them at the meetings. In our read-
ing of the testimony, we find this characterization of
the witnesses to be especially applicable to those pre-
sented by Petitioner.
Among the employees who testified for the Em-
ployer, and denied that any threat of a refusal to bar-
gain was made, is H.F. Ealy. Ealy is the only witness
whom the Hearing Officer found to be a credible wit-
ness on the basis of demeanor.' Thus, the Hearing Of-
ficer states that he "was impressed by . . . [Ealy's]
candor through his testimony, his attempts to respond
to the best of his ability to questions posed to him by
counsel for all parties and the Hearing Officer, and
consequently find him to be a credible witness." Yet,
despite this acceptance of Ealy as a credible witness, the
Hearing Officer found, contrary to Ealy's testimony,
and without any accounting for its rejection, that the
Employer made the threat as charged. In the circum-
stances, we cannot adopt this ambivalent,treatment of
Ealy.
The testimony of the employee witness for the Em-
ployer finds support in other record evidence. At two
of the meetings, those which all employees,attended,
the remarks of management had been reduced to writ-
ing and are in evidence as Employer Exhibits 6 and 7.
Although these remarks refer to the fact that Employer
President Etheridge had been bargaining at another of
his poultry processing facilities for over a year without
signing a contract, they contain no statement about not
signing a contract with this Petitioner. Both Etheridge,
who attended all but the fourth meeting, and Plant
Manager Travis, who attended all five meetings, testi-
fied to the adherence to the texts of these speeches.
1 See Canteen Corporation, 202 NLRB 767 (1973).
2 "Our policy, as enunciated in Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), is to attach great weight to a Judge's credibility findings
insofar as they are based on demeanor " Canteen Corporation, supra at 769
217 NLRB No. 86
R & R PROCESSORS, INC. 563
Travis denied that any remarks about not signing a
contract were made at the other meetings; and
Etheridge testified that Travis made no such statements
in his presence. Certain testimony given by Petitioner's
witnesses in effect corroborates the Etheridge-Travis
testimony.
Based upon our analysis of the record as a whole, we
do not find therein substantial credible testimony
which supports the Hearing Officer's finding that the
Employer told the employees it would not sign a con-
tract if the Union won. We shall overrule objection 5.
'We do not agree with our dissenting colleague that
the Employer's speeches interfered with the laboratory
conditions of the election. The Employer's recital of
Meat Cutters strikes at other plants was not shown to
be untrue, and was made as a part of the Employer's
description of the consequences of strikes. Having ex-
amined in context the parts of the speeches which our
colleague refers to, we find that the Employer did not
threaten the employees with any untoward conse-
quences should they select the Union to represent
them.' Indeed, the Employer in its speech (Exh. 6)
3 'The phrase "we still don't have a contract" appears in the following
paragraph.
What I have been telling you is no fairy tale it has happened all over
the country In fact, it's happened right in our neck of the woods Some
of you know that I have part ownership in Poultry Packers over in
Forest, Mississippi. We had a union election at Poultry Packers about
one year ago I'll be completely honest with you-those employees fell
for the union promises and voted the Union in Those employees made
the mistake of believing the union promises and believing that I would
agree with all the Union's demands at the bargaining table. But, they
were wrong I have not agreed with the Union's demands. The Union
won that election in Forest a year ago and we still don't have a contract
The Union has made many demands on me and I have told them no.
We note, however, that there is no evidence that any of the Employer's
conduct at Poultry Packers' plant was improper, nor is there any contention
that the facts are other than as related Furthermore, the portion of the
Emplloyer's speech, identified as Exh . 6, referred to by our dissenting col-
league, contains no more than a description of the closing of a similar plant
near the Employer's.
The text of the paragraph of the second speech referred to by our col-
league is as follows
I have been spending a lot of time in the last few weeks making sure
we keep this plant open In fact, yesterday I spent all day in Washing-
ton, D.C on this energy crisis doing my best to make sure we keep the
plant open I'll be completely honest with you-it's been a hard fight
However, so far, I have been successful and have managed to get
enough fuel to keep the plant operating I have been able to do this for
one reason and one reason only I have not had to worry about union
strikes or other union troubles but have been able to spend all my time
keeping this plant open. I'll tell you something else, I believe that as
long as things stay the way they are I will be able to continue to keep
this plant open. However, if the Union gets in here and causes a lot of
trouble or calls a strike I don't know what will happen I can only solve
one major problem at a time
Here the Employer has said no more than that it can't predict the conse-
quences of a union strike Such a statement does not amount to a threat nor
quotes this Board's own publication: (A document fur-
nished by the National Labor Relations Board for dis-
tribution to the public, entitled "To protect the rights
of the public. . .," GPO: 1968 0-323-252.) ",The give
and take of the bargaining table usually leads to written
agreements, although neither side is obligated to agree
to a particular proposal."
In our view, the Employer's speeches were privileged
expressions of opinion under Section 8(c) of the Act.
Accordingly, we shall certify the results of the elec-
tion.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Amalgamated Meat Cut-
ters & Butcher Workmen of North America,
AFL-CIO, and that said labor organization is not the
exclusive representative of all the employees, in the unit
herein involved, within the meaning of Section 9(a) of
the National Labor Relations Act, as amended.
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would adopt the recom-
mendation of the Hearing Officer and direct a second
election based on objection 5.
At the hearing on objections, the Petitioner offered
nine witnesses, all of whom testified that at some time
during the five preelection meetings held by the Em-
ployer they were told that President Etheridge would
not sign a contract. In my opinion, the record as a
whole supports the Hearing Officer's conclusion that
such statements were in fact made. The failure of the
Hearing Officer to rely specifically upon demeanor in
making his findings with respect to objection 5 in no
way weakens their validity.'
There is, in addition, the interpretation to be given
the speeches which were read by the Employer at the
first and last of the five meetings with employees. These
repeatedly refer to strikes occurring if the Meat Cutters
even a prediction that it will take adverse action in the event the employees
elect the Union to represent them
4 My colleagues attach significance to the fact that the only witness
actually credited by the Hearing Officer on the basis of demeanor was Ealy,
a witness for the Employer who was somewhat eloquent in denying that he
ever heard President Etheridge say that he would not sign a contract with
Petitioner, to wit "I could stand on a stack of bibles and say I never heard
him say nothing like that " The Hearing Officer was impressed by Ealy's
"candor throughout his testimony" and termed Ealy "a credible witness"
though like the majority of employee witnesses of both parties "he had
difficulty in recalling specifics of statements made at the various meetings."
In my view, the mere fact that Ealy credibly testified that he "heard" no
such remark-which is not the same as testifying that no such remark was
made-is insufficient reason to reverse the Hearing Officer's crediting all
the Petitioner's witnesses who, with variations, testified that they were told
that Etheridge would not sign a contract
In characterizing the Hearing Officer's treatment of Ealy as ambivalent,
my colleagues overlook the possibility that Ealy-like all of the employee
witnesses-may at a crucial time have been asleep, or inattentive If this
were so it would be consistent with Ealy truthfully testifying to not having
"heard" Etheridge make such a statement.
564 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
should win, and- to this Employer having bargained
with a union for over a year at a nearby Forest, Missis-
sippi; plant with-the r-esult-according to the texts in
evidence-that "we still don't have a contract." It is
admitted that this bargaining-for-over-a-year-without-
a-contract theme was also repeated during two of the
three extemporaneous speeches. Finally, each of the
written speeches also contains a "veiled" threat of plant
closing and job loss incident to closing.' I conclude,
therefore, that in themselves these speeches are clearly
calculated to convey to the employees the danger and
futility of designating the Union, thus destroying the
laboratory conditions in which the Board must hold its
elections.'
The majority's analysis of the speeches is without
regard to the oft-repeated message they contain: that
strikes,can be expected if the Meat Cutters win, that
5 Exh. 6, the speech read at the first meeting, referred to Canton Poultry,
a nearby plant organized by the Meat Cutters Union, having "closed a few
months ago" and then: "All those employees lost their jobs. .. The Union
got into Canton Poultry and managed to negotiate a contract . . . . You
know what happened then-Canton Poultry closed. All those employees
lost their jobs. Some of those people had been working for Canton Poultry
for years and years but that didn't make any difference when the plant
closed-they lost their jobs.. An fact, the Union didn't even try to help
those employees once the plant had closed. Like I said a minute ago, once
Canton Poultry closed, the Union went on to other things to try and get
money from other people-from you."
choosing the Union will be futile as this Employer has
managed for a year to bargain at another of its plants
without agreeing with a contract, and that this plant
could close just as another nearby plant has done and
all jobs would be eliminated. Apparently, as the
majority sees it, an employer need only quote from the
Board's official publications concerning the give and
take of the bargaining table and the fact that neither
side is obligated to agree to a particular proposal, and
this, in itself, will insulate the employer from responsi-
bility for repeated insinuations of dire results if the
employees vote for a union.
In my view a second election is sorely needed in this
case.
Exh. 7, the speech read at the last meeting, referred to the fuel shortage
and then. "Of course, if we can't run our plants then we have to close down
and everybody loses their job. I have been spending a lot of time in the last
few weeks making sure we keep thus' plant open. . . . doing my best to make
sure we keep the plant open ... it's been a hard fight. However, so far, I
have been successful and have managed to get enough fuel to keep the plant
operating _ . I have not had to worry about a lot of other problems here
at the plant. I haven't had to worry about union strikes or other union
troubles but have been able to spend all my time keeping this plant open.
. . as long as things stay the way they are I will be able to continue to keep
this plant open. However, if the Union gets in here and causes a lot of trouble
or calls a strike I don't know what will happen I can only solve one major
problem at a time."
6 See Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1785, 1786, 1787
(1962)