Southern Food, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1968

171 N.L.R.B. 999 (N.L.R.B. 1968)

SOUTHERN FOODS INC.
Southern Foods , Inc. and United Packinghouse Food
and Allied Workers, AFL-CIO, Petitioner. Case
I O-RC-7116
June 5, 1968
DECISION ON REVIEW AND CERTIFICATION
OF REPRESENTATIVE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On December 29, 1967, the Regional Director
for Region 10 issued a Supplemental Decision,
Order, and Direction of Third Election in the
above-entitled proceeding, in which, on the basis of
his investigation of the Employer's 10 numbered
objections, he sustained Objection 4, overruled the
other 9, set aside the second election, and directed
a third one.' On January 16, 1968, the Petitioner
filed with the Regional Director a request for
reconsideration and vacation of his Supplemental
Decision, Order, and Direction of Third Election.
The Regional Director on January 18, 1968, issued
an order vacating his direction of third election and
granting the Petitioner's motion for reconsidera-
tion, and a notice of hearing to resolve the issues
raised by Objection 4. Thereafter, the Employer
filed a motion for reconsideration thereof and, if
reconsideration be denied, for broadening of the
scope of the hearing to include the issues raised by
its Objections 1, 2, 3, 6, 7, and 8. The Regional
Director issued an order on January 24, 1968,
denying the Employer's motion in toto.
Thereafter, with special permission of the Board,
the Petitioner filed a request for review of the Re-
gional Director's Supplemental Decision, Order,
and Direction of Third Election, and his subsequent
order directing a hearing as to Objection 4, and the
Employer filed a request for review of certain
findings of the Regional Director in his Supplemen-
tal Decision, Order, and Direction of Third Elec-
tion; of his hearing order; and of his order denying
its aforesaid motion for reconsideration.2 The
parties filed briefs in support of their requests for
review.
On March 5, 1968, the National Labor Relations
Board issued a telegraphic order granting the
requests for review of the Regional Director's hear-
ing order, granting the Petitioner's request for
review of the Supplemental Decision, Order, and
Direction of Third Election insofar as it related to
Objection 4, and denying the Employer's request
' The tally of ballots for the second election showed that of approximate-
ly 142 eligible voters , 139 cast ballots , of which 77 were for , and 55 against,
the Petitioner and 7 were challenged.
! On February 8, 1968 , the Regional Director issued an order withdraw-
999
for review in all respects. Thereafter, the Employer
filed a brief on review.
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
powers in connection with this case to a three-
member panel.
The Board has considered the entire record in
this case with respect to the issues under review
and makes the following findings:
Objection 4 involved an alleged misrepresenta-
tion by the Petitioner in a letter received by most
employees the day before the election and first seen
by the Employer the morning of election day, at a
time when it had no adequate opportunity to
respond. It is undisputed that in a postscript to such
letter was the following statement:
Armour & Company has already offered more
in negotiations than Swift and Southern Foods
Company pays in wages and benefits here in
Columbus, Ga. The Armour workers commit-
tee and members are still holding out for
more-and they'll get it!
The body of the two-page letter was unobjectiona-
ble. It dealt with matters unrelated to what was in
the postcript, containing, principally, a broad ap-
peal to vote, a presentation of facts and argument
to counter the implication in the Employer's cam-
paign statements that "the Union" is responsible
for certain meatpacking plant closings, and a state-
ment that "U. S. Government figures prove that
union members receive much higher wages and
benefits than non-union workers."
The Regional Director rejected the Petitioner's
reliance on terms in its master agreement with
Armour as support for its comparison of wage
scales with those of the Employer, observing that
the postscript did not mention the master agree-
ment. Expressing the view that "the whole tenor
and impact [of the postscript] suggest to the reader
that by voting for the Petitioner, he will receive
more wages and benefits," the Regional Director
concluded that, as most of the employees had no
way to ascertain the truthfulness of the statement,
and as the Employer had no time to make an effec-
tive reply, Objection 4 raised material and sub-
stantial issues affecting the election, under the
standards set forth in Hollywood Ceramics 3
The Petitioner requested reconsideration of such
conclusion on the grounds, inter alia, that the Re-
gional Director erred in (1) failing to consider that
mg his earlier notice of hearing in view of the pendency of the parties'
requests for review
' Hollywood Ceramics Company, Inc., 140 NLRB 221
171 NLRB No. 131
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the postscript statement was in response to the Em-
ployer's comments in a speech to employees which
implied that the Petitioner had abandoned the Ar-
mour employees, (2) failing to consider the total
value of wages and benefits offered by Armour, and
(3) setting aside the election on the basis of the
postscript statement , even if it may be considered
inaccurate. As to (1), the Petitioner asserted that
the Employer's president, in the course of a massed
assembly speech during working hours about a
week before the election, told employees that the
same three union representatives who were organiz-
ing the Employer had left town shortly after
winning the Board election at Armour's Columbus
plant in June 1967, and asserted that they hadn't
been back to do anything for the Armour em-
ployees. As to (2), the Petitioner asserted that,
even though the wage rates provided under Ar-
mour's offer are less than those paid by the Em-
ployer when the value of the proposed total
package of wages and benefits is considered (in-
cluding therein the offer of a 10-cent-per-hour
wage increase and the value of fringe benefits, esti-
mated by the Petitioner to be worth 45-1/2 cents
per hour), it is arguably greater than the wages and
benefits paid by the Employer. Finally, as to (3),
the Petitioner argued that even if the value of the
benefit package tentatively agreed to by Armour is
subject to dispute, this is the kind of ambiguity or
vagueness which the Board said in Hollywood
Ceramics was insufficient basis for setting aside an
election.
The Regional Director, in his order vacating
Direction of Third Election and granting Peti-
tioner's motion for reconsideration, and notice of
hearing, concluded that the request raised substan-
tial issues which may best be resolved by a hearing.
The Petitioner in its request for review repeats
the allegations of fact and contentions made in its
request for reconsideration. Both the Employer and
the Petitioner assert that there is no substantial
issue of fact with respect to Objection 4 which
requires a hearing, notwithstanding the apparent
divergence in their estimates of the value of the
Employer's fringe benefits and those allegedly of-
fered by Armour in negotiations with the Peti-
tioner.
We agree with the parties that no substantial
issue of fact is presented which requires a hearing.
The critical statement is not in dispute and the con-
tentions of the parties are adequately presented.
Contrary to the Regional Director, we are of the
opinion that the disputed postscript statement was
not a substantial departure from the truth which the
employees could not evaluate or which may
reasonably be expected to have had a significant
impact on the election. First, even under the con-
struction placed on it by the Regional Director, a
statement that designation of a union will result in
higher wages and benefits is a customary campaign
promise easily recognized as such by employees.
Secondly, it is not disputed by the Employer that
about a week before the election, in a campaign
speech, it raised the question of the Petitioner's
performance in the Armour negotiation. The Peti-
tioner's postscript reference to those negotiations,
insofar as it made clear that they were still in
progress, was in part a response to the Employer's
speech. In any event, we believe that employees
would more reasonably construe the postscript
statement as a claim that the value of the total
package of wages and benefits offered by Armour
in pending negotiations was greater than the value
of wages and benefits paid by the Employer to unit
employees under its existing policies, than as an as-
sertion that Armour's wage rate offer was greater
than the Employer's existing wage rate.4
We do not deem as critical the possibility that the
Petitioner may have exaggerated the monetary
value of the numerous fringe benefits which were
part of the package offered by Armour. It is com-
mon knowledge that in publicizing consummated
collective-bargaining agreements, not infrequently
employers and unions place different monetary
values on the negotiated modifications in wages and
benefits (such as pregnancy leave, sick leave, and
various insurance benefits), and in our view most
employees are capable of evaluating such asser-
tions. Furthermore, in view of the volume and na-
ture of permissible propaganda utilized by both
sides in this campaign, including a charge by the
Employer that the Petitioner had earlier
misrepresented facts to employees, coupled with a
warning to employees not to credit "sweet talk and
big promises," we are satisfied that the employees
could reasonably regard the short, conclusionary,
and undocumented assertion in the postscript to the
two-page letter to be in the nature of a self-serving,
' We reject the Employer's contention that weight should be given to the
fact that, subsequent to the election, 121 of the approximately 142 eligible
voters, through an attorney , mailed cards to the Regional Director stating
that they do not now desire the Petitioner to represent them and that the
Petitioner did mislead them by misrepresenting wages and fringe benefits
that were supposedly obtained in negotiations at other plants Such subjec-
tive evidence is not controlling, rather, as applied herein, the test is
whether, in all the circumstances, the employees could reasonably have
evaluated the statement in question Pinkerton's National Detective Agency,
Inc , 124 NLRB 1076, 1077, fn 3, and cases cited therein
SOUTHERN FOODS INC. 1001
puffing statement-if, indeed, any puffing was in
fact present . Such an isolated statement in the con-
text of the whole campaign, in our view, affords in-
sufficient basis for concluding that employee free
choice in the election was impaired.
For the foregoing reasons, we hereby overrule
the Employer's Objection 4.
Accordingly, as the objections have been over-
ruled and the tally of ballots shows that a majority
of the ballots has been cast in favor of the Peti-
tioner, we shall certify it as the exclusive bargaining
representative of the employees involved.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that United Packinghouse
Food and Allied Workers , AFL-CIO, has been
designated and selected by a majority of the em-
ployees of the Employer in the appropriate unit as
their representative for the purposes of collective
bargaining, and that , pursuant to Section 9(a) of
the Act, as amended, the said labor organization is
the exclusive representative of all employees in
such unit for the purposes of collective bargaining
with respect to rates of pay, wages , hours of em-
ployment, and other conditions of employment.