Glacier Packing Co., Inc.

National Labor Relations Board - Board Decisions

May 13, 1974

210 N.L.R.B. 571 (N.L.R.B. 1974)

GLACIER PACKING CO., INC.
Glacier Packing Co., Inc. and United Electrical, Radio
and Machine Workers of America, Local 1014,
Petitioner. Case 20-RC-10264
May 13, 1974
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 29, 1973, the Regional Director for
Region 20 issued a Second Supplemental Decision
and Certification of Representatives in the above-
entitled proceeding, in which he adopted a Hearing
Officer's findings and recommendations with respect
to certain challenges and objections, and certified the
Intervenor 1 as the representative of the employees in
the appropriate unit.2 Thereafter, the Employer, in
accordance with the National Labor Relations Board
Rules and Regulations, as amended, filed a timely
request for review of the Regional Director's Second
Supplemental Decision on the grounds, inter alia,
that the Regional Director erred in adopting the
Hearing Officer's conclusions with regard to alleged
improper conduct of Board agents in the conduct of
the election.
On October 29, 1973, the Board by telegraphic
order granted the request for review solely with
regard to whether Board agent misconduct impaired
employee free choice and stayed the certification
pending decision on review. Thereafter, the Employ-
er and the Intervenor filed briefs on review. The
Employer also filed a motion for reconsideration of
the Board's Order dated October 29, 1973, insofar as
it denied the request for review of the Regional
Director's disposition of objections relating to the
issue of waiver of initiation fees, urging that review
be granted with respect thereto in the light of the
1 Western Conference of Teamsters, Food Processing Division, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America.
2 The tally of ballots for the election , conducted on May 19, 1972,
showed that of approximately 500 eligible voters, 107 cast valid ballots for
the Petitioner, 230 for the Intervenor , and 44 against the participating labor
organizations; 92 cast challenged ballots, and 3 cast void ballots. The
Regional Director on July 5, 1972, issued a Supplemental Decision in which
he overruled the Employer's Objection 41 and ordered a hearing on the
challenges and the remaining objections. After a hearing thereon com-
menced on August 1 , 1972, the parties entered into a stipulation to set aside
the election and conduct a rerun election On August 11, the Regional
Director approved the stipulation and ordered the hearing continued
indefinitely . Subsequently , on September 7 and 8, the Petitioner and the
Intervenor, respectively , filed unfair labor practice charges against the
Employer . As requests to proceed with the representation case were not
filed, the Regional Director canceled the rerun election agreed to be held on
September 14. On September 20, the Petitioner requested permission to
withdraw its objections and challenges . The Regional Director approved the
withdrawal of the objections but, absent a written agreement as to the
eligibility of the voters involved, denied the request for withdrawal of the
571
United States Supreme Court's decision in N. L. R B.
v. Savair Manufacturing Co., 414 U.S. 270 (1973).
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review,3
including the briefs on review, and makes the
following findings:
The Employer's Objections 42, 43, and 44 read as
follows:
42. The ... Board, by the conduct of its
Agent of interrogating Employer observers con-
cerning their lawful exercise of their lawful rights
as observers during voting hours at the polling
place in the presence of voters, demonstrated to
employees the lack of neutrality by the NLRB
and its Agent, demonstrated to employees the
opposition of the NLRB and its Agent to the
lawful exercise of Employer rights, demonstrated
to employees anti-employer bias and prejudice by
the NLRB and its Agent, and interfered with the
fair operation of the election process and the
necessary laboratory conditions.
43. The . . . Board, by the conduct of its
Agent in the presence of voters during voting
hours at the polling place in forcefully ripping
"Vote NEITHER" signs from the Employer
observers, without making any prior request for
removal thereof, and tearing said "Vote NEI-
THER" signs in small pieces , all in the presence
of voters during voting hours at the polling place,
demonstrated to employees the lack of neutrality
by the NLRB and its Agent, demonstrated to
employees the opposition of the NLRB and its
Agent to the lawful exercise by the Employer of
its rights, demonstrated to employees bias and
prejudice of the NLRB and its Agent against the
Petitioner's challenges . On November 30, a complaint based on the charges
issued . On December 1, the Regional Director issued a Notice of Reopening
of Hearing on Objections and Challenged Ballots . The Employer filed a
motion for reconsideration of said notice , which the Regional Director
denied on December 18. On January 5, 1973 , the Employer filed with the
National Labor Relations Board a motion to vacate the Regional Director's
said notice . By telegraphic order dated February 28 , 1973, the Board
(Chairman Miller and Member Kennedy dissenting) denied the motion The
Employer filed a motion for reconsideration thereof, which the Board
dinied by telegraphic order dated March 23. On April 3 , the hearing was
reopened . After the hearing, the Hearing Officer issued his report on June
13, in which he recommended that 19 challenges be sustained , that the
Employer's Objections 1-40 and 42-50 be overruled, and that, as the
remaining unresolved challenges were insufficient in number to affect the
election results , the Intervenor be certified Thereafter , the Employer filed
exceptions to the Hearing Officer's report and a brief in support of its
exceptions . The Regional Director , in his Second Supplemental Decision,
found the exceptions to be without merit.
3 The Employer's motion for reconsideration relating to the waiver of
fees herein is denied as lacking in merit
210 NLRB No. 78
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer, and interfered with the fair operation
of the election process and the necessary labora-
tory conditions.
44. The . . . Board by the use, distribution
and communication of Instruction to Observers,
including oral instructions and printed instruc-
tions to observers (Form NLRB-722)(2-
59)(which said instructions misrepresent and
incorrectly state the law with respect to the rights
of employer observers), interfered with the fair
operation of the election process and the neces-
sary laboratory conditions and demonstrated to
employees bias, prejudice and lack of neutrality
by the NLRB and its Agent and the opposition by
the NLRB and its Agent to the lawful exercise of
rights of the Employer observers.
Form NLRB-722 (2-59), "Instructions to Election
Observers" contains a listing of "Things Not to Do,"
among which, item 7 states:
Wear any indication of the organization which
you represent except the observer badge provided
by the Board. This includes badges, buttons,
placards, electioneering devices, etc., including
advertising on any article of clothing. The Board
Agent is the sole arbiter as to the type of
identification to be worn during the election.
This, of course, does not apply to regular company
identification badges, the wearing of which is
required by the company.
The Hearing Officer treated Objections 42 and 43
together. With regard to an incident involving the
Employer's observers, Wilma Medlock and Amparo
Gallegos, he found as follows:
Medlock and Gallegos arrived at the polling
area with small cards pinned to their lapels which
stated "Vote Neither." Soon after the polls
opened these insignia were observed by Agent
Stuart Dvorin. He told Medlock that she could
not wear this campaign tag and he "yanked it
off," stating, "shame on you real loud in front of
the voters and all the other observers." Medlock
testified: "I was embarrassed." Initially, Medlock
claimed that Dvorin tore the badge " in little
pieces." Subsequently, in her testimony, she
admitted no specific recollection as to whether
Dvorin tore or wrinkled this tag. She also testified
that had Dvorin asked she would have removed
the badge, but he did not precede his action with
this request.
Amparo Gallegos also testified about this
incident. She recalled Dvorin "told us we weren't
supposed to be wearing that and he took it off,"
referring to the campaign tag. She testified that:
"He just pulled it off," without asking permission.
Subsequently , Gallegos testified when questioned
whether Dvorin first told Gallegos that he wanted
her to take off the tag : "I don 't think so." During
cross-examination Gallegos stated that she did
not remember who removed her tag.
The Hearing Officer also found:
Although not specifically delineated in any of
the Employer's objections, evidence was received
describing certain conduct of Board Agent Stuart
Dvorin which warrants consideration. Robert
Studdard, the Employer's director of personnel at
Sanger, was the only witness who testified to this
incident . Based upon his demeanor and testimo-
ny, I credit his statements. Studdard was standing
outside about 200 ft. from the building where the
election was being conducted. He was distributing
literature to employees. He recalled Dvorin
"talked to me in a loud voice in the presence of
some 15 or 20 employees who actually ended up
being Mr. Dvorin's cheering section ." Dvoring
told Studdard: "Get out of here . Stop this. You
have no business and no right to be here handing
out anything." Studdard had a limited recollec-
tion of the actual words spoken during this
conversation. He stated: "I remember one thing I
told him he was not talking to any dog. He was
talking to a human being, and I expected him to
talk to me as a human being." Both parties to this
conversation became distressed . The employees
who observed this discussion began clapping their
hands together, laughing, and making "catcalls"
and pointing their fingers at Studdard. This
conversation lasted 5 or 10 minutes. Studdard
walked approximately 200 ft. away from where he
was initially standing and Dvorin remained with
him.
The Hearing Officer concluded that the evidence,
even if fully credited, does not support a finding that
the conduct was of such gravity as to prejudice the
fair operation of the election process. He also
concluded no showing had been made that the
instructions to Board agents to restrict observers
from wearing electioneering material while the polls
were open were prejudicial to the fair conduct of the
election . The Regional Director adopted without
comment the Hearing Officer 's recommendations
that these objections be overruled . We granted the
Employer's request for review because of our
concern that the conduct of a Board agent may have
created the impression in the minds of voters that the
Board was opposed to a vote against the participat-
ing labor organizations.
GLACIER PACKING CO., INC. 573
At the outset, we reject the Employer's argument
that observers designated by the parties involved in
Board-conducted elections have a right to wear
campaign material favoring one of the choices on the
ballot. Clearly the Board's instructions to its agents
conducting elections , which the Employer asserts are
objectionable, are consistent with the prohibition
against electioneering at or near the polls.4 Board
agents conducting elections may therefore delineate
an area within which electioneering is prohibited;
they must exercise their judgment as to what
constitutes electioneering activity; and they are
required to take reasonable measures to restrict
electioneering activity which comes to their atten-
tion, consistent with their other obligations.5
Board agents in conducting elections in behalf of
the Board must endeavor to maintain and protect the
integrity and neutrality of its procedures. Therefore,
while taking all practicable measures to implement
the prohibition against electioneering at or near the
polls, they must take care that their actions do not
tend to foster in the minds of the voters the
impression that the Board is not neutral with regard
to the choices on the ballot. For, the Board's role in
conducting elections must not be open to question.
Thus, actions by a Board agent conducting an
election, which could reasonably be interpreted as
impugning the election standards we seek to main-
tain, are sufficient grounds for setting aside the
election.
In the instant case, based upon the Hearing
Officer's findings of fact set forth above and our
review of the record, we conclude that employees
witnessing the two incidents involved could reason-
ably have interpreted Board Agent Dvorin' s remarks
and actions as indicative that the Board was opposed
to the Employer's position in the election. As the
election was one in which the Employer had
campaigned vigorously against the participating
labor organizations and, in our view, the manner in
which the Board agent conducted himself in the
presence of employees who had not yet voted may
have had a substantial impact on the results of the
election, the Employer's Objections 42 and 43 are
hereby sustained. On this basis we shall set aside the
election and direct that a new one be conducted.
ORDER
It is hereby ordered that the election herein before
conducted on May 19, 1972, be, and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER JENKINS, concurring:
I concur in the result.
4 It is to be noted that the posted official election notices expressly
prohibit electioneering at or near the polls.
s Whether or not electioneering activity which does occur at or near the
polls constitutes grounds for setting aside the election depends upon a
number of factors . In the situation where a party to the proceeding engages
in electioneering, which is more than de mmimu, at the polling place while
voting is in progress , the Board finds such electioneering to be per se a basis
for setting aside the election . See M.khem, Inc., 170 NLRB 362. In all other
situations , where electioneering occurs at or near the polls, the Board makes
a judgment , based on all the facts and circumstances , whether the
electioneering substantially impaired the exercise of free choice so as to
require the holding of a new election. See Star Expansion Industries
Corporation, 170 NLRB 364.