House of Raeford Farms

National Labor Relations Board - Board Decisions

Apr 26, 1995

317 N.L.R.B. 26 (N.L.R.B. 1995)

26
317 NLRB No. 18
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
2 In recommending overruling Objection 6 regarding allegations of
prounion electioneering in the hallway adjacent to the voting area,
the hearing officer relied on Firestone Textiles Co., 244 NLRB 168,
173 fn. 12 (1979), and rejected the Employer’s argument that the
ballots challenged by the Union should be counted as votes against
the Union, thus narrowing the Union’s margin of victory and making
the alleged electioneering potentially more serious. We find it unnec-
essary to rely on Firestone because even if the Employer’s argument
was accepted and the union-challenged ballots were credited to the
Employer’s vote tally, the alleged electioneering would still not con-
stitute objectionable conduct. We agree with the hearing officer that
Pepsi-Cola Bottling Co., 291 NLRB 578 (1988), is distinguishable.
In Pepsi, the nature of the conduct was far more coercive than that
depicted here and resulted in the formation of a gauntlet through
which employees had to pass in order to cast their votes. See Rheem
Mfg. Co., 309 NLRB 459 (1992), affd. in the summary judgment
proceeding, 310 NLRB No. 116 (Mar. 15, 1993) (not reported in
Board volumes), enfd. mem. 28 F.3d 1210 (4th Cir. 1994).
3 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to overrule the Employer’s Objections 13
and 17.
4 In view of the fact that Nestle is distinguishable, Chairman Gould
finds it unnecessary to decide whether he agrees with the Board’s
holding in Nestle. Member Stephens, who dissented in Nestle, does
not rely on the Board’s decision in that case. He agrees with his col-
leagues, however, that this case is distinguishable. Given the nature
of the sketchy hearsay testimony, it is impossible to know whether
the unnamed persons described as ‘‘union representatives’’ were in
fact agents of the Union or whether the statements actually made
could have been reasonably construed as a promise that immigration
work permits or similar documents would be obtained for the em-
ployees by the Union.
Member Browning adheres to the Board’s decision in Nestle.
5 See NLRB v. VSA, Inc., 24 F.3d 588, 595 (4th Cir. 1994), cert.
denied 115 S.Ct. 635 (Dec. 5, 1994) (‘‘it is the degree of pressure
or inducement that is crucial in determining whether a representation
campaign is valid . . . [a]nd in order for pressure or inducement to
warrant setting aside the election, it must lead to the ‘failure of those
in the bargaining unit to make their collective desires effective.’’’).
House of Raeford Farms, Inc. and United Food and
Commercial Workers International Union,
Local 204, AFL–CIO, Petitioner. Case 11–RC–
5522
April 26, 1995
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held October 21, 1994, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Decision, Order, and Direction
of Second Election issued by the Board on August 31,
1992. The tally of ballots shows 411 for and 365
against the Petitioner, with 44 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions1 and briefs, has adopted the hearing offi-
cer’s findings2 and recommendations,3 and finds that a
Certification of Representative should be issued.
The hearing officer recommended overruling the
Employer’s Objection 12, which alleged that the Union
unlawfully attempted to influence votes by promising
to obtain ‘‘working papers’’ for some presumably un-
documented Hispanic employees that would allow
them to work legally in this country. In so ruling, the
hearing officer relied on Nestle Dairy Systems, 311
NLRB 987 (1993), which held that a union’s
preelection filing of a Federal Racketeer Influenced
and Corrupt Organizations Act (RICO) lawsuit on be-
half of unit employees did not constitute objectionable
conduct. We note that Nestle was denied enforcement
by the Sixth Circuit, 46 F.3d 578 (1995), subsequent
to the hearing officer’s report in this case. The Board
in Nestle found that the objecting party did not meet
its burden to show that the filing of a RICO lawsuit
was a benefit that was tangible, substantial, direct, and
had a reasonable tendency to interfere with the em-
ployees’ free choice in the election. Nestle, 311 NLRB
at 987–988. The Sixth Circuit disagreed with the
Board and concluded that the union’s election eve an-
nouncement to approximately one-third of the unit em-
ployees that it had filed a lawsuit on their behalf
against the employer seeking $20 million in damages
constituted a substantial, direct, and tangible conferral
of free legal services that were sufficiently valuable to
influence the employees’ votes. Nestle, 46 F.3d at
583–584.
In any event, we find that the instant case is distin-
guishable from Nestle.4 Here, the only evidence ad-
duced in support of the Employer’s Objection 12 is the
hearsay testimony, albeit not objected to by the union
attorney, of two employee witnesses. One employee
testified that a union representative told her coworker
that the Union could get ‘‘legal papers’’ for the co-
worker’s husband, who was also an employee, if the
coworker’s husband voted for the Union. The second
employee testified that she explained to an unspecified
number of Hispanic employees that they should dis-
regard any union promise regarding the provision of
‘‘legal papers’’ because the Union was unlikely to de-
liver on such promises. Employing the well-settled
grant-of-benefits analysis utilized in Nestle, we agree
with the hearing officer that the Employer has clearly
failed to carry its burden to show that these vague and
relatively isolated remarks in a unit of approximately
1000 eligible voters constitute the conferral of a sub-
stantial, direct, and tangible benefit on employees such
that their votes would be influenced.5 The record is de-
void of any specific evidence concerning the scope of
27HOUSE OF RAEFORD FARMS
the dissemination of the alleged promise or the propor-
tion of undocumented workers in the Employer’s work
force that would stand to benefit from, and thus be in-
fluenced by, the promise. Accordingly, we find the
evidence insufficient to warrant setting aside the elec-
tion and we adopt the hearing officer’s recommenda-
tion to overrule Objection 12.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for United Food and Commercial
Workers International Union, Local 204, AFL–CIO
and that it is the exclusive collective-bargaining rep-
resentative of the employees in the following appro-
priate unit:
All full-time and regular part-time production and
maintenance employees, including truck drivers,
retail store employees and cafeteria employees
employed by the Employer at its Raeford, North
Carolina facility, excluding all office clerical em-
ployees, guards and supervisors as defined in the
Act.