Rudy's Farm Co., Inc.

National Labor Relations Board - Board Decisions

May 12, 1971

190 N.L.R.B. 324 (N.L.R.B. 1971)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rudy's Farm Company , Inc. and Amalgamated Meat
Cutters & Butcher Workmen of North America,
405, AFL-CIO, Petitioner . Case 26-RC-3759
May 12, 1971
SUPPLEMENTAL DECISION AND
CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted in the above-entitled proceeding on June 5,
1970, under the direction and supervision of the Re-
gional Director for Region 26, among the employees in
the appropriate unit. At the conclusion of the balloting,
the parties were furnished a tally of ballots which
showed that of approximately 177 eligible voters, 171
cast ballots, of which 81 were for and 85 were against
the Petitioner. There were five challenged and no void
ballots. The challenged ballots were sufficient in num-
ber to affect the results of the election. Thereafter, the
Petitioner filed timely objections to conduct affecting
the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended, the
Regional Director conducted an investigation and, on
July 16, 1970, issued and duly served on the parties his
Report on Challenges and Objections in which he
recommended that three challenges be sustained, that
two challenges be overruled, and that inasmuch as the
two overruled challenged ballots are not determinative
they not be opened and counted. He further recom-
mended that the Petitioner's objections be overruled in
their entirety.
Thereafter, the Petitioner filed timely exceptions to
the Regional Director's Report on Challenges and Ob-
jections, and a brief in support thereof. On October 29,
1970, the National Labor Relations Board issued a
Decision and Order' in which it ordered that Peti-
tioner's Objections 1, 2, 3, 6, 7, 8, 9, 10, and 11 be
overruled and that a hearing be held for the purpose of
taking testimony to resolve the issues raised by Objec-
tions 4 and 5.2
Pursuant to the Board's Order a hearing was held on
December 1, 1970, before Hearing Officer Michael
Dunn. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. On January
' Rudy 's Farm Company, Inc., Case 26-RC-3759 (not printed in NLRB
volumes).
' The Petitioner excepted only to the Regional Director's disposition of
Objections 4 and 5.
7, 1971, the Hearing Officer issued his report recom-
mending that Petitioner's Objection 5 be overruled, and
that Objection 4 be sustained. The Employer filed
timely exceptions to the Hearing Officer's report and a
supporting brief; the Petitioner also filed exceptions to
the Hearing Officer's report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds they are free from
prejudicial error. They are hereby affirmed. The Board
has considered the Hearing Officer's report, the excep-
tions and briefs, and the entire record in this case and
finds as follows:
Objections 4 and 5 involve a speech delivered by
William D. Hardison, the Employer' s assistant general
manager , to 225 assembled employees on the day
before the election, June 4, 1970. The Hearing Officer
found that Hardison did not make any material misrep-
resentations concerning the strike at Frosty Morn or
the effects of that strike on Frosty Morn employees
(Objection 4); he found that Hardison's comment that
the Union had gained absolutely nothing for employees
involved in strikes constituted preelection propaganda
that employees could reasonably be expected to evalu-
ate. He further found that Hardison made no material
misrepresentation concerning wage rates at Odom Sau-
sage (Objection 5).' We agree with these findings.
The Hearing Officer then analyzed the remainder of
Hardison's speech and relying on Boaz Spinning Com-
pany, Inc., 177 NLRB No. 103, concluded that the
effect of the entire speech was to instill in employees a
fear of the adverse effects of collective bargaining cou-
pled with the implied message of the alleged futility of
union representation; he therefore found merit in Ob-
jection 4 and recommended it be sustained. The Em-
ployer excepts; we agree with the Employer's conten-
tion that Hardison's speech constituted lawful
permissible campaign propaganda which the em-
ployees could evaluate.
The speech read by Hardison from a prepared text
was approximately 13 pages long. The first two pages
describe the mechanics of the election and urge every-
one to vote. Hardison then stressed that he neither
expected nor would ask the employees to do the Com-
pany any favors but rather that, "you should decide
' Although, in directing the hearing, we indicated that we were particu-
larly interested in Petitioner 's allegations of misrepresentation with respect
to Hardison's comments on the effects of the strike at Frosty Morn and the
wage rates at Odom Sausage , the hearing was not limited to those issues
since it was directed on Objections 4 and 5. We therefore reject the Em-
ployer's contention that the Hearing Officer was limited to considering the
alleged misrepresentations with respect to Frosty Morn and Odom Sausage.
190 NLRB No. 62
RUDY'S FARM COMPANY, INC. 325
whether to vote for this Union, or against it, purely on
the basis of whether or not it will be to your own best
interests." Hardison then discussed in a very general
way various subjects; among other things he indicated
to the employees that the Union was only interested in
their money, that Rudy's wage rates and benefits com-
pared favorably with unionized plants in the area,' and
that unions do do not guarantee job security. In this
regard Hardison mentioned a number of unionized
plants where jobs had been eliminated and long layoffs
had occurred and pointed out that Rudy's had never
had a layoff during its entire operation. The aforemen-
tioned sections which, in fact, constituted a major por-
tion of the speech are, in our view, not only temperate
and reasonable but clearly unobjectionable.
Nevertheless the Hearing Officer relied on other por-
tions of the speech to find it objectionable. Thus, based
on the following statements he found that Hardison led
employees to believe that they must strike in order to
get concessions:
If the Union wins this election, all it wins is the
right to sit down at the table and talk with us. If
the Union were in the plant, there would still be
only one way it could try to force us to do anything
that we are not able to do or willing to do and that
would be by pulling you out on strike.
The import of the foregoing is not that the Employer
would not bargain in good faith; nor does it misrepre-
sent the law. But, in addition, the above excerpt does
not give an accurate portrayal of what Hardison said.
For the above remark was prefaced by the following:
But the simple truth about the ... Union or any
other union is that it has no magic powers to make
things go the way it wants them to go. Of course
it can promise anything, but carrying out its prom-
ises is a different matter. When Bob Adams or any
other organizer tells you that they are going to
come in here and make us do this or the other they
are seriously misleading you. Sometimes people
have the idea that all they have to do is to vote for
a union and then automatically they get higher
pay and higher benefits of various kinds.
In our opinion Hardison's comments viewed as a
whole are little more than a partisan explanation of the
realities of collective bargaining.
The Hearing Officer then found that, as in Boaz Spin-
ning, Hardison informed the employees that the Em-
ployer was the fount of all existing and future benefits
when he stated:
Always, you should bear in mind that it is
Rudy's which furnishes your job and your pay-
' It was at this point that Hardison compared the Employer's wage rates
with those at Odom Sausage
check-not the ... Union. And always you
should bear in mind that the ... Union will never
furnish you a day's work nor a cent of your pay-
check. The next time ... [a] Union organizer tries
to tell you what the ... Union can do for you, ask
them how many hams or cases of sausage patties
they have sold for Neuhoff or Frosty Morn.
In our opinion a careful reading of this excerpt, and
particularly the second sentence, in the context of the
entire speech indicates that Hardison was merely at-
tempting to impress upon the employees the fact that
the Union would be of no help in obtaining orders or
in solving the economic problems involved in keeping
the plant in operation. No threat was made, nor do we
believe one was intended.
In finding the speech objectionable the Hearing
Officer also relied on Hardison's references to the fact
that the employees did not need a union to obtain
benefits that the Employer would give them in any
event,' and Hardison's suggestion that the employees
would be better off without a union and should vote
NO. These statements are nothing more than the ex-
pression of the Employer's view that it had treated the
employees fairly and would continue to do so, coupled
with a request that the employees vote against the Un-
ion.
In conclusion, it is our opinion that the speech read
as a whole did not exceed the bounds of permissible
campaign propaganda. The speech, including the state-
ments in issue, was noncoercive and temperate, and in
our opinion represents nothing more than a legitimate
assertion of the Employer's views. Contrary to the
Hearing Officer's finding we do not believe the speech
would tend to instill in employees a fear of the adverse
effects of collective bargaining coupled with an implied
message of the alleged futility of union representation.
Accordingly, we shall overrule Objection 4, and, as the
Petitioner has failed to secure a majority of the valid
ballots cast, certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of valid votes has
not been cast for Amalgamated Meat Cutters &
Butcher Workmen of North America, Local 405,
AFL-CIO, and that said labor organization is not the
exclusive representative of the employees in the unit
found appropriate within the meaning of Section 9(c)
of the Act.
Hardison said
It is our hope and our intention to keep your earnings on a level with
comparable plants in the meat packing industry You can count on that
without having to pay dues to accomplish it