Diamond State Poultry Co., Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1953

107 N.L.R.B. 3 (N.L.R.B. 1953)

DIAMOND STATE POULTRY CO., INC. 3
DIAMOND STATE POULTRY CO., INC. and CHAUFFEURS,
WAREHOUSEMEN AND HELPERS, LOCAL UNION NO.
876, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, Petitioner. Case No. 5-RC-1164. Novem-
ber 9, 1953
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Decision and Direction of Election issued by
the Board on December 5, 1952, an election was conducted un-
der the supervision of the Regional Director for the Fifth Re-
gion, among the production and maintenance employees of the
Employer's poultry processing plant at Lewes, Delaware. None
of the three participating unions having obtained a majority, a
runoff election was conducted among these employees on Janu-
ary 28, 1953. Approximately 167 employees were eligible to
vote; of these, 63 voted for the Congress of Industrial Organiza-
tions, herein called the CIO, and 57 for Local 199, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL,
herein called the AFL. There was also 1 challenged ballot.
On February 3 and February 4, 1953, respectively, the Em-
ployer and the AFL filed objections to conduct affecting the re-
sults of the election. Copies of the objections were served on
the other parties.
On April 1, 1953, after conducting an investigation, the
Regional Director issued his report on objections, in which he
found that the objections raised no material issues with respect
to the election and recommended that the CIO be certified. On
April 13, 1953, the AFL filed exceptions to the Regional Di-
rector's report and the Employer filed an appeal therefrom.
On April 24, 1953, the Board found that the exceptions to the
Regional Director's report raised substantial and material
issues of fact and ordered that a hearing be held to resolve
these issues.
A hearing was held on May 11 and 21, 1953, before William
Naimark, hearing officer. The Employer, the CIO, andthe AFL
appeared and participated. All parties were afforded full oppor -
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues.
On July 15, 1953, the hearing officer issued his report in
which he recommended that the objections to the election be
overruled and the CIO certified as bargaining representative
of the employees in the appropriate unit. The AFL filed timely
exceptions to the hearing officer's report.
The Board has reviewed the hearing officer's rulings made
at the hearing and finds that no prejudicial error was commit-
ted. The rulings are hereby affirmed.' The Board has consid-
'The hearing officer referred to the Board the CIO's motion made at the opening of the
hearing to dismiss the objections and exceptions as not filed within the period prescribed by
Section 102.61 of the Board's Rules and Regulations. The Board finds that the objections and
exceptions were timely filed and accordingly denies the motion.
107 NLRB No 19.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered the hearing officer's report, the exceptions, and the en-
tire record in the case and hereby finds as follows:
The Employer and the AFL objected to the election upon the
ground that certain illegal conduct occurred during the elec-
tion and that electioneering occurred in the plant and near the
polling places during election hours.
Activities of the H & H Poultry Company "Killers"
The runoff election was scheduled for 10 a. m. to 12 noon on
January 28, 1953. About 10:30 a. m., Plant Superintendent
Kleiman discovered a large number of chickens in the packing-
room which had been bled in such a manner that they were un-
fit for sale.' He at once went to the poultry killing room to dis -
cover the cause. There he found three strange men talking to
the Diamond State killers.3 One of the three was standing on the
killing line using a killing knife. Kleiman heard the man who
was wielding the knife tell a Diamond State killer to vote the
right way or it would not be good for them. He caught the
words CIO but could not hear in what connection. When Kleiman
demanded to know what the strangers were doing, they cursed
him and told him it was none of his business and that he should
leave or he would get hurt. Kleiman at once went to the office
and reported these" facts to Manager Polin. Polin told Kleiman
to call the police or get a Board agent. As Kleiman was leaving
the office, he met Board Agent Smith who was on his way to
investigate a complaint about the actions of the three strangers.
He and Smith walked through the pinning room toward the killing
room and met the three men who were just coming out of the kill-
ing room. All five started for the office as directed by the agent
and about half way down the pinning room were joined by Polin.
When the three men were interrogated at the office they claimed
they were not electioneering but merely looking for jobs.
The activities of these three H & Hemployees were not lim-
ited to the killing room. They had previously circulated through-
out those areas of the plant in which the great majority of the
employees worked. Gertrude Tunnel testified that just before
the election, when she was on her way to the polls where she
acted as an observer, she noticed "quite a commotion" in the
pinning room department. Everyone had stopped work and a
group of employees were gathered around 3 strangers. She was
not near enough to hear what was said, but she recognized 1
of the 3 men as Percy Wollett, whom she knew. Similarly,
Myrtle Weatherly, during election hours, noticed 3 men who
did not work at the plant talking to a group of employees about
8 feet away from where she was working in the packingroom.
She heard 1 of the 3 tell the employees to "vote CIO, that
2 Plant Manager Pohn who made an inspection in the packingroom shortly afterwards esti-
mated that at least 700 chickens were misbled.
3 The three strangers were subsequently identified as Wollett, Norwood, and McRae, all of
whom were employed as killers at the H & H Poultry Company, where the CIO had won a Board-
conducted runoff election the day before.
DIAMOND STATE POULTRY CO., INC. 5
there had better be a good election or something would happen
to them," and "You all vote CIO we run one down at H & H,
remember and we better have a good election here or some-
thing will happen to you when you get out of here." She recog-
nized 1 of the 3 as Norwood whom she knew . Mamie Con-
quest testified that before she went in to vote 2 strangers
walked down the pinning room line and one of them asked the
girls if they were going to vote . When they said they were, he
told them "You better vote right if you know what is good for
you." After she had voted she saw the same 2 men pass
through the pinning room accompanied by a Board agent and
the "big boss ." ( The same witness testified that on her arriv-
al in the plant on election day morning , a stranger wearing a
CIO button ran after her calling to her to vote CIO "if you
know what is good for you, if you don't you'll be in trouble up
to your neck.")
William Savage also encountered three strange men when he
was on his way to vote. They were standing in the packingroom
door so that he had to squeeze by them. As he did so they told
him to vote CIO, if he knew what was good for him.
Activities of the Laws Sisters
Minnie Laws and her sister , Doris, both of whom were em-
ployed at the H & H Poultry Company, volunteered to "assist"
the regular CIO agents on the day of the election at Diamond
State. They handed out leaflets at the gates to the employees
as they arrived . They testified that just before the election
started they went into the maintenance room with Jenkins, a
CIO representative , to inspect the polls . At the request of
the Board agent, they removed their CIO buttons. They then
asked the timekeeper the way to the women's room . They were
unable to follow her directions and asked a male employee who
pointed it out to them as just off the pinning room. They spoke
to no other employees , although they waved at them as they
passed through the pinning room on their way back from the
women's room. They then went outside the plant and did not re-
enter.
William Weatherly, a clerk, testified that about 10 a. m. he
saw two strange women at the door of the pinning room. He
telephoned Manager Polin and reported this. When Polin ar-
rived at the plant about 10 minutes later, he saw 2 strangers
at the pinning room door shouting and waving at employees,
but as they stood with their backs to him he was unable to
identify them. Weatherly was also unable to identify the women
he saw. Directly after this Polin went into the pinning room.
He found the employees there so excited that he thought they
were drunk . Apparently he thought this only because they were
shouting and cursing . He admitted he saw no liquor.
Myrtle Weatherly testified that as she was on her way to
vote she encountered at the entrance to the packingroom two
women wearing CIO buttons who inquired the way to the women's
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room using profane language. She gave them directions and they
asked her if she was going to vote. She told them it was none of
their business, whereupon they told her that "if we had good
sense we would vote the right way or something would happen."
Myrtle Weatherly was unable to identify the Laws sisters as
the women in question.
Activities of the Independent Trucker and the Bus Driver
Employee Savage, continuing on his way to the polls after his
encounter with the three strangers, next encountered Harry
Burton, an independent trucker, who hauls poultry for the Em-
ployer. Burton told him to vote CIO if he knew what was good
for him. Burton used the same language to Teresa Pitts and to
Myrtle Weatherly as each was on her way to vote.
The only testimony at the hearing concerning electioneering
in the proscribed area, which was confined to the maintenance
room where the polls were located, was that of Gertrude Tunnel
who was an observer. She saw Clark, abus driver for the Em-
ployer who was not eligible to.vote, talking to employees waiting
their turn to vote. She heard him say that if he had a vote he
would vote for the AFL. After Clark had been in the maintenance
room about 15 minutes, a Board agent learned that Clark was not
waiting to vote and directed him to leave at once which he did.
Conclusion
The issue before the Board is whether the election was con-
ducted under such circumstances and under such conditions as
were conducive to the sort of free and untrammeled choice of
representatives contemplated by the Act.4 We hold that it was
not. The election was held in such a general atmosphere of
confusion and fear of reprisal as to render impossible the ra-
tional, uncoerced selection of a bargaining representative. It
is not material that the fear and disorder may have been
created by individual employees and nonemployees and that
their conduct cannot be attributed either to the Employer or to
the unions . The important fact is that such conditions existed
and that a free election was thereby rendered impossible. Ac-
cordingly , we shall set aside the runoff election and direct that
a new runoff election be held. _
ORDER
IT IS HEREBY ORDERED that the runoff election held here-
in on January 28, 1953, be, and it hereby is, set aside.
IT IS FURTHER ORDERED that the case be, and it hereby
is, remanded to the Regional Director of the Fifth Region to
conduct a new runoff election among the employees eligible to
vote in the original runoff election.
4P. D Gwaltney , Jr., and Company , Inc., 74 NLRB 371