Ragu Foods, Inc.

National Labor Relations Board - Board Decisions

May 23, 1975

217 N.L.R.B. 1109 (N.L.R.B. 1975)

RAGU FOODS, INC. 1109
Ragu Foods , Inc. and International) Union of Electri-
cal, Radio and Machine Workers , AFL-CIO-
CLC, Petitioner . Case 3-RC-6113
May 23, 1975
DECISION, DIRECTION, AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 3 on September 13, 1974, an election was
conducted on October 10, 1974, under the direction
and supervision of the Regional Director, among the
employees in the appropriate unit. At the conclusion of
the election, the parties were furnished with a tally of
ballots which showed that of approximately 255 eligi-
ble voters 244 cast ballots, of which 115 were for the
Petitioner, 119 were against the participating labor or-
ganization, 9 ballots were challenged, and 1 ballot was
void. The challenged ballots were sufficient in number
to affect the results of the election. Thereafter, the Peti-
tioner and the Employer filed timely objections to con-
duct affecting the results of the election.
In accordance with the Rules and Regulations of the
National Labor Relations Board, the Acting Regional
Director conducted an investigation and on December
23, 1974, issued and duly served on the parties his
Report on Challenges and Objections in which he
recommended that the Board sustain the challenge to
the ballot of Miguel Santos; that the challenges to the
ballots of Sylvester Lombardi, Vincent Rotoli, Steve
Rotondi, Vincent Presta, Ronald Zicari, Victor Napoli,
and Angelo Furioso be overruled and that their ballots
be opened and counted; that the ballot titled "The
Ninth Challenge" be opened, ruled upon, and counted;
and that a revised tally of ballots be iissued. He further
recommended that Petitioner's Objections 3 and 4 be
sustained and that the Employer's objections be over-
ruled in their entirety; that in the event the Petitioner
does not receive a majority of the valid votes case, as
revealed by the revised tally of ballots, the election be
set aside and a new election directed; and that if the
Board does not sustain Petitioner's Objections 3 and 4,
and if the Petitioner does not get a majority of the votes,
that a hearing be directed on the issues raised in Peti-
tioner's Objections 1 and 6 and in the section of the
Acting Regional Director's report entitled "Other Con-
duct Not Specifically Alleged in the Objections by the
Petitioner." Finally, he recommended that if the Peti-
tioner did receive a majority of the valid votes cast a
certification of representative issue.
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 policies
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 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 follow-
ing employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding regular part-time employees, warehouse-
men, over-the-road drivers, and quality control
employees employed by the Employer at its Lyell
Avenue plant in Rochester, New York, excluding
all office clerical employees, stationary engineers,
and all professional employees, guards and super-
visors as defined in the Act.
5. The Board has considered the Acting Regional
Director's report and the exceptions and brief, and
hereby adopts the Acting Regional Director's findings,
conclusions, and recommendations.
Accordingly, we shall direct that the challenged bal-
lots of Sylvester Lombardi, Vincent Rotoli, Steve
Rotondi, Vincent Presta, Ronald Zicari, Victor Napoli,
and Angelo Furioso be opened and counted; that the
ballot titled "The Ninth Challenge" be opened, ruled
upon, and counted; and that a revised tally of ballots
be prepared. We shall further direct that in the event
the revised tally of ballots reveals that the Petitioner
has received a majority of the valid ballots cast the
appropriate certification of representative issue. If the
Petitioner does not receive a majority of the valid bal-
lots, the Regional Director shall set aside the election,
and conduct a new election.'
i Member Penello would adopt the Acting Regional Director's recom-
mendation that the election be set aside. As stated in his concurring opinion
in Essex International, Inc., 211 NLRB 749 (1974), Member Penello would
find a rule prohibiting solicitation during "working hours" to be invalid
unless the employer clarified the facially invalid rule to all of its employees
In the present case, the Acting Regional Director observed that no evidence
was presented by the Employer showing such clarification. Unlike his dis-
senting colleague, Member Penello is unwilling to consider any of the evi-
dence offered herein to show employees' subjective understanding of the
rule. To do so, in his view, would put an employee in a position of placing
his job on the line in order to test the application of the rule Such a course
can only inhibit employees from exercising their Sec 7 rights to engage in
union solicitation during their nonworking time
In adopting the Regional Director's recommendation, Member Fanning
adheres to the views expressed in his and Member Jenkins' dissent in Essex
International, supra.
217 NLRB No. 188
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION
It is hereby directed that as part of the investigation'
to ascertain a representative for the purpose of collec-
tive bargaining with the Employer the Regional Direc-
tor for Region 3 shall, pursuant to the Rules and Regu-
lations of the Board and within 10 days from the date
of this Decision, open and count the ballots of Sylvester
Lombardi, Vincent Rotoli, Steve Rotondi, Vincent Pre-
sta, Ronald Zicari, Victor Napoli, and Angelo Furioso;
open, rule upon, and count the ballot titled "The Ninth
Challenge"; and thereafter issue and serve on the par-
ties a revised tally of ballots. In the event that the
Petitioner has received a majority of the valid ballots
cast, the Regional Director shall issue the appropriate
certification of representative.
IT IS FURTHER ORDERED that, if the revised tally of bal-
lots reveals that the Petitioner did not receive a
majority of the valid ballots, cast, the Regional Direc-
tor shall set aside the election, and conduct a new
election in conformance with the following Direction of
Second Election.
IT IS -FURTHER ORDERED that the above-entitled matter
be, and it hereby is, referred to the Regional Director
for Region 3 for further proceedings pursuant hereto.
[Direction of Second Election omitted from
publication.]'
MEMBER KENNEDY, "dissenting in-part:
The election in this case was indecisive . There were
nine challenged ballots which may be determinative of
the election . There were also objections to the election
filed by both the Petitioner and the Employer. The
Acting -Regional Director investigated the challenges
and the objections and recommended overruling eight
of the challenges and sustaining one. He also recom-
mended overruling all the Employer 's objections and
sustaining Petitioner 's Objections 3 and 4 . He further
recommended that in the event the Board did not adopt
his recommendation as to Petitioner's Objections 3 and
4 and Petitioner did not win the election a hearing be
directed with respect to Petitioner's Objections 1, 6,
and "Other Conduct Not Specifically Alleged in the
Objections by the Petitioner ." Except as to his disposi-
tion of Petitioner 's Objections 3 and 4, I agree with the
Acting Regional Director 's recommendations.
Petitioner's Objections 3 and 4 state:
3) The employer had knowledge of, and permitted
certain employees known for their anti-union
stand to circulate freely throughout the plant dur-
ing working hours to speak against the union to
their fellow workers, while threatening pro-union
2 [Excelsior fn. omitted from publication.]
employees against engaging in this, activity during
their working hours.
4) The employer had knowledge of and permitted
a certain employee known for his anti-union stand
to circulate freely throughout the plant during his
working hours soliciting in a' coercive manner, sig-
natures from fellow employees on a, document
containing anti-union statements, and then per-
mitting the distribution of such documents (in
quantity) to employees in the plant.
The Acting Regional Director's report contains no evi-
dence to support these objections. Instead, his discus-
sion of these two objections is limited to the Employer's
no-solicitation rule which reads as follows:
Soliciting on Company property during working
hours without the advance approval of manage-
ment for any purpose whatsoever except to the
extent when the solicitation or distribution is pro-
tected by applicable Federal law.
Without investigating the circumstances of its enforce-
ment or nonenforcement, the Acting Regional Director
concluded that the rule is "ambiguous and constitutes,
objectionable conduct as it interfers with a free election.
See Essex International, Inc., 211 NLRB 749 (1974).
No evidence was presented by the Employer to indicate
that it had made an appropriate general explanation of
its rule to its employees."
In Essex International, cited by the Acting Regional
Director,' the Board majority said that a rule prohib-
iting solicitation during "working hours" is prima facie
susceptible to the interpretation that solicitation is-pro-
hibited during all business hours, including lunch and
breaktime and is, therefore, invalid. However, the
majority added that the illegality could be rebutted if
the employer were able to show "by extrinsic' evidence
that . . . the `working hours' rule was communicated
or applied in such a way as to convey an intent clearly
to permit solicitation during the breaktime or other
periods when employees are not actively at work."
In an affidavit attached to the Employer's brief, the
personnel director for the Employer states that the rule
was never intended as a prohibition against union solic-
itation during employees' nonworking time; that dur-
ing the entire period from the date of filing of the
petition until the date of the election there was free and
open discussion of the merits and demerits of unionism
and solicitation for and against the Union during
breaks and lunch periods both in the company cafeteria
and in the plant; that company supervisors were in-
formed at a meeting that employees were not prohib-
3 Essex International, Inc., supra (Member Penello concurring; Members
Fanning and Jenkins dissenting).
1\
RAGU FOODS, INC.
ited from soliciting union membership or union votes
or discussing union affairs on company premises dur-
ing nonworking time, and they should respect those
rights of employees ; that no employee was discharged,
suspended , reprimanded , otherwise disciplined , or even
spoken to in connection with union activities during
nonworking time; and that, as evidence of the em-
ployees' understanding of the rule, a letter distributed
to employees by the faction opposing unionization
stated : "We can talk freely during our lunch breaks and
during any other non-working hours." In sum , the Em-
ployer contends that all of its employees were aware of
their right to engage in union solicitation and union
activity during nonworking time and they did so en-
gage in such activity.
These statements , if true, establish in my opinion
that the no-solicitation rule was not unlawful because
both the employees and the Employer understood by
concrete application that the rule was not intended to
prohibit union solicitation during nonworking time.'
Accordingly , I would not adopt the Acting Regional
Director's recommendation to set aside the election in
the event that the revised tally of ballots shows that
Petitioner has not won the election, but instead , in that
event would expand the hearing recommended by the
Acting Regional Director to encompass also Objections
3 and 4.
4 Cf Groendyke Transport, Inc, 211 NLRB 921 (1974)