Faribo Turkeys Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1963

140 N.L.R.B. 1397 (N.L.R.B. 1963)

FARIBO TURKEYS, INC. 1397
of separate negotiations, and the entry into separate and different contracts. I further
find that at the most, casual remarks in other negotiations on two related issues, un-
der the circumstances present herein, can hardly constitute an estoppel so as to pre-
vent the withdrawal action later undertaken by Respondent Association.
Present Board policy is reflected in Retail Associates, Inc., 120 NLRB 388, which
indicates that an employer may withdraw from a multiemployer bargaining unit if
it unequivocally takes such a step at an appropriate time. When actual bargaining
has begun, the time then becomes inappropriate, except by mutual consent. The
Board has pointed out, "It is well established that a single employer unit becomes
appropriate when the employer, at an appropriate time, manifests an intention to
withdraw from group bargaining and to pursue an individual course of action with
respect to its labor relations." Cooks, Waiters and Waitresses Union, Local 327; el
al. (Greater Peoria Restaurant Association), 131 NLRB 198.
The Board has continued to stress that a withdrawal from such a multiemployer
unit is recognized as timely if it is taken before the commencement of negotiations
and after the expiration of a contract. Northern Nevada Chapter, National Elec-
trical Contractors Association and Represented Employers, 131 NLRB 550. The
Board has elsewhere put it that such a withdrawal is "timely and effective when it
occurred substantially before actual joint negotiations and consummation of a con-
tract involving that unit." Detroit Window Cleaners Union, Local 139, etc. (Dae-
lyte Service Company), 126 NLRB 63. See also Goldeen's, Inc., 134 NLRB 770.
To sum up, the June 8 letter following upon the June 4 decision constituted full
notice of an abandonment of multiemployer bargaining. It was timely submitted
prior to any agreed-upon date for the commencement of negotiations and, in fact,
there was no such date. Moreover, no actual demands had been made upon Re-
spondent Association by the Charging Union Nor do I see any basis for the ap-
plication of what amounts to an equitable estoppel based upon any conduct by Re-
spondent Association, as bargaining had not begun in the unit named herein. I
shall accordingly recommend that the instant complaint Abe dismissed.
CONCLUSIONS OF LAW
I The operations of Respondents affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. Automobile Drivers & Demonstrators, Local Union No 882, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2 (5) of the Act.
3 Respondents have not engaged in unfair labor practices within the meaning of
Section 8 (a) (5) and (1) of the Act.
RECOMMENDATIONS
In view of the foregoing findings of fact and conclusions of law, it is recommended
that the complaint be dismissed in its entirety.
Faribo Turkeys, Inc. and United Packinghouse , Food , and Allied
Workers , AFL-CIO, Petitioner. Case No. 18-11C-5093. Febru-
ary 25, 1963
DECISION ON REVIEW, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a Supplemental Decision and Direction of Election is-
sued by the Regional Director for the Eighteenth Region, an election
by secret ballot was conducted on September 21, 1962, under the direc-
tion and the supervision of the Regional Director. Upon the conclu-
sion of the election the parties were furnished a tally of ballots which
showed that of approximately 100 eligible voters, 41 votes were cast
for, and 51 votes were cast against, the Petitioner, and 1 ballot was
140 NLRB No. 133.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenged . The Petitioner filed timely objections to conduct affect-
ing the results of the election . The Regional Director investigated the
objections , and thereafter , on October 17, 1962, issued and served upon
the parties his Second Supplemental Decision and Direction of Elec-
tion, in which he found merit in certain of the Petitioner 's objections,
and directed that a new election be held. Thereafter , the Employer,
in accordance with the Board 's Rules and Regulations filed a timely re-
quest for review with a supporting brief of the supplemental decision.
The Petitioner filed a statement in opposition to such request.
On November 14, 1962, the Board by telegraphic order granted the
Employer's request for review. Thereafter the Petitioner filed a brief
in support of the Regional Director 's findings.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Regional Director 's investigation showed that on September 13,
1962, the Employer distributed a letter signed by its manager to its
employees, stating, inter alia:
No, we're not against unions . Fact is, when you vote NO UN-
ION on September 21st, I hope you turn around and set up your
own Shop Stewards , Bargaining Committee , Grievance Commit-
tee, and O fcers . Furthermore , you would be entitled to the
services of the NLRB without charge , just as are the BIG unions.
Did you know that?
There are lots of Independent Unions throughout the country.
They are called "Company Unions" by the big International Un-
ions, and usually sneered at by them. There are several reasons
why the BIGS don't like Independent Unions, a couple reasons
being that Independent Unions prevent the big Internationals
from taking these employees in as members ; and that Independ-
ents are bona fide unions recognized by employers and the NLRB ;
and have their own negotiations and contracts with their em-
ployers; and charge whatever they feel necessary as union dues.
Furthermore , the dues collected stay right at home; no Interna-
tional Union office to maintain , and no Union officials to pay
salaries to.
So lets get going; move off of dead center. Vote "NO UNION"
next time and start the ball rolling. There's lots of help waiting
for you whenever you say the word.
In addition , circulars were distributed to employees which similarly
urged employees to form an independent union and to deal directly
with the Employer . For example, one of the circulars stated :
FARIBO TURKEYS, INC. 1399
Vote NO UNION-then let's get together promptly with your
committee to do something about the figures on these paychecks.
As one of the grounds for setting aside the election, the Regional
Director relied on the above solicitation by the Employer of its em-
ployees to form an independent union coupled with promises to aid
employees to engage in such activity. Apart from the matter con-
sidered below, we agree with the Regional Director that the above
activity was sufficient to interfere with the free choice of the employees
in the election.
However, in its request for review, the Employer contends that the
Regional Director failed to consider the neutralizing effect of a speech
made to plant employees by the Employer's attorney on September 19,
1962, 2 days before the election. In this speech the attorney stated,
inter alia:
As I stated to you, I have been retained by the company to
assist and advise it in connection with this election. I wish to
state that some of my advice has been followed and some of it
has been disregarded. It has come to my attention that you re-
cently received a letter in which it contained a statement suggest-
ing that you set up your own independent union and stated that
you would be entitled to services of the National Labor Relations
Board without charge. I wish to state that this letter was sent
out without any knowledge on my part. As a lawyer, I have taken
an oath to uphold the law and I have taken this oath seriously. I
would not be a part of plan or procedure which is not a part of
the law. I wish to state to you that the statement in this letter is
wrong. The National Labor Relations Board frowns upon com-
pany unions. It is not in a position and will not assist you or any
employees to establish a company union. The National Labor
Relations Board is more in the position of an umpire or a referee
in which it attempts to carry out the purpose and intentions of the
National Labor Relations Act. Now it may be that some of the
company representatives will not like me for saying this but I am
compelled to make the statements in order to properly inform you.
The Employer contends that these remarks constituted a disavowal
of the Company's prior letter with respect to the formation of a com-
pany union, and, therefore, the earlier conduct was thereby dissipated.
While the Board has in certain cases found disclaimers and disavowals
to neutralize and dissipate the coercive effect of prior prejudicial
conduct, such statements have been generally considered effective only
when they have been communicated to all employees in an unambiguous
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and unequivocal manner.' We find that the above statement of the
Employer's attorney does not meet such criteria.
In our opinion the alleged disavowal of the Employer's position by
its attorney would reasonably be construed by eligibles merely as an
expression of the legal position of the speaker rather than a clear and
unequivocal repudiation of the Employer's prior statements concerning
the formation of an independent union. Nor does it appear that the
Employer's manager in any way ever retracted or disavowed state-
ments contained in his letter or circular referred to above. Moreover,
we note that the alleged disavowal was not made in the same form
as the original announcement. The manager's letter was sent to all
employees, and there is no showing of how many of the employees
heard the speech of September 19. Accordingly, we find that the
speech of the Employer's attorney was insufficient to neutralize
the coercive effect of the Employer's prior conduct. We shall therefore
set the election aside in order that a new election be conducted.'
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
I See , e.g., Mrs . Alma Doran d/b/a Doran Nut Sales Company , 102 NLRB 1437, 1439-
1440; Fleetwood Trailer Co ., Inc., 118 NLRB 1355, 1356; Drennon Ford Products Co.,
122 NLRB 1353, 1356.
'In view of our determination herein, we find it unnecessary to, and do not pass upon,
the alleged Employer' s promises of benefits also found by the Regional Director to be a
basis for setting aside the election.
Bausch & Lomb, Incorporated and International Union of Elec-
trical Radio and Machine Workers, AFL-CIO. Case No. 25-CA-
1594. February 25, 1963
DECISION AND ORDER
On November 26, 1962, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent and General Counsel filed exceptions to
the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [C'hairlnan McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
140 NLRB No. 146.