Bona Allen, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1971

190 N.L.R.B. 216 (N.L.R.B. 1971)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bona Allen , Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO,
Petitioner . Case 10-RC-8199
April 30, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and approved
by the Regional Director for Region 10 of the National
Labor Relations Board on May 6, 1970, an election by
secret ballot was conducted in the above-entitled pro-
ceeding on May 28, 1970, under the direction and
supervision of the said Regional Director. Upon the
conclusion of the election, a tally of ballots was fur-
nished the parties in accordance with the National La-
bor Relations Board's Rules and Regulations, Series 8,
as amended.
The tally of ballots shows that there were approxi-
mately 348 eligible voters and that 337 ballots were
cast, of which 176 were for the Petitioner, 159 were
against the Petitioner, and 2 were void.
On June 5, 1970, the Employer filed timely objec-
tions to the election. The Regional Director caused an
investigation of the issues raised by the objections to be
made and, thereafter, on July 23, 1970, issued and
served on the parties his Report on Objections. In his
report, the Regional Director found that the Em-
ployer's objections do not raise any material or substan-
tial issues affecting the results of the election. He, there-
fore, recommended to the Board that the objections be
overruled in their entirety, and that the Petitioner be
certified as the exclusive bargaining representative of
the employees involved.
Thereafter, on August 3, 1970, the Employer filed
timely exceptions to the Regional Director's Report on
Objections, and a brief in support of its exceptions. The
Employer requested the Board to set aside the results
of the election conducted herein on May 28, 1970, and
to direct that a second election be-held or, in the alter-
native, to order a hearing on the objections.
Having considered the matter, the Board on October
22, 1970, issued an Order Directing Hearing in the
above-entitled matter to resolve the issues raised by
Employer's Objections 1 and 3, and deferred ruling on
Employer's Objections 2 and 4, pending the outcome of
the hearing on Objections 1 and 3.
Pursuant to the Board's Order, a hearing was held on
November 17 and 18, 1970, and on December 16, 1970,
the Hearing Officer issued and duly served upon the
parties his Report and Recommendations on Objec-
190 NLRB No. 37
tions to Election. The Employer thereafter filed excep-
tions and a brief in support thereof.
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.
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 Union is a labor organization claiming to
represent 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
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees, in-
cluding truck drivers employed by the Employer
at its Buford, Georgia, operation, but excluding all
office clerical employees, professional employees,
buyers, salesmen, foremen, watchmen, guards and
supervisors as defined in the Act.
5. The Board has considered the entire record in this
case, including the Regional Director's Report on Ob-
jections and the Employer's exceptions thereto and its
brief in support thereof, the record in the hearing, the
Hearing Officer's report and the Employer's exceptions
thereto and brief in support thereof, and hereby adopts
the Regional Director's recommendations as to Objec-
tions 2 and 4 and the findings, conclusions, and recom-
mendations of the Hearing Officer as to Objections 1
and 3. We find that Employer's exceptions raise no
substantial and material issue of fact or law which
would warrant reversing the Regional Director's
findings and recommendations as to Objections 2 and
4 and we further find that they are without merit and
do not warrant reversing the Hearing Officer's findings
and recommendations as to Objections 1 and 3.t
' We do not agree with our dissenting colleague that the preelection
conduct of employee Rufus Shelton created a general atmosphere of fear
and coercion so as to render a free election impossible . Shelton was not an
agent of the Petitioner and in all but one of Shelton 's exchanges with other
employees, he addressed himself not to the election but to events that might
follow the election and a union victory . Thus, it appears he was not threaten-
ing employees with physical violence if they did not vote for the Petitioner
but that such action might be taken if the Petitioner, having won the elec-
tion, called a strike and the employees refused to honor the picket line. In
the exchanges between Shelton and the few employees in question, the
latter, as evidenced by their remarks to Shelton, indicated quite clearly that
they did not seriously consider his comments to represent the Union's
position , and that the incidents merely represented exchanges between in-
dividuals of the kind frequently encountered in the milieu of the workplace.
In these circumstances , we conclude that Shelton's conduct did not tend to
destroy the atmosphere necessary to the employees' exercise of a free choice
in the election. See Tunica Manufacturing Company, Inc., 182 NLRB No.
(Cont.)
BONA.ALLEN, INC. 217
Accordingly, as we have overruled all of the objec-
tions and as the Petitioner has secured a majority of the
valid ballots cast, we shall certify the Petitioner as the
exclusive bargaining representative of the employees in
the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-
CIO, has been designated and selected by the majority
of the employees at the Employer's Buford, Georgia,
operation in the unit found appropriate, as their repre-
sentative for the purpose of collective bargaining, and
that, pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor organization
is the exclusive representative of all such employees for
the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
conditions of employment.
CHAIRMAN MILLER, dissenting:
I would set aside the May 6, 1970, election on the
basis of employee Rufus Shelton's preelection activi-
ties. A day or so before the election Shelton told two
employees their heads would be beaten if the Union did
not get in and on another occasion stated that an em-
ployee who had opposed the Union previously better
not do so again as he would be killed and his house
burned down. At other times during the month before
the election, Shelton threatened employees that their
heads would be "caved in," their houses burned down,
their cars turned over, or bricks thrown through their
windows if they did not support union picketing or
strike action. All together, eight employees were di-
rectly involved with Shelton's threats; these employees
did not, in my view, cast their ballots in an atmosphere
free of fear or threats of violence. Consequently, when
their 8 dubious ballots are added to the 2 the Hearing
Officer found of doubtful validity because 2 voters were
in the election booth at one time, there were 10 suspect
ballots or enough to unsettle directly the Union's
majority of 17 without considering what effects Shel-
ton's remarks might have had on the voters generally.
In this situation, involving as it does election interfer-
ence rather than responsibility for unfair labor prac-
tices, I would not regard as controlling the answer to
the question of whether Shelton was or was not, techni-
cally, Petitioner's agent; his lack of agency does not in
my view lessen the coercive thrust of his pointedly
violent remarks. Consequently, in order to insure that
the Board's certification reflects the free, untrammeled
choice of a majority of the employees, I would, as stated
above, set the election aside and direct that another be
111; Owens-Corning Fiberglas Corporation, 179 NLRB No. 39. held.