Hillcrest Poultry Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1963

144 N.L.R.B. 1220 (N.L.R.B. 1963)

1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall, after being signed by the Respondent, as indicated, be forthwith returned for
disposition by him.
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
this Intermediate Report and Recommended Order, what steps Respondent has
taken to comply herewith 22
=2 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days from
the date of this Oider, what steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO EMPLOYEES OF BABCOCK & WILCOX COM-
PANY, BALTIMORE GAS AND ELECTRIC COMPANY, WALLACE AND GALE, AND
COMBUSTION ASSOCIATES, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage any individual employed
by Babcock & Wilcox Company, Baltimore Gas and Electric Company, Wal-
lace and Gale, or by any other person engaged in commerce or in an industry
affecting commerce to engage in, a strike or refusal in the course of his em-
ployment to use, manufacture, process, transport, or otherwise handle or work
on goods, articles, materials, or commodities or perform any services, or
threaten, coerce, or restrain Babcock & Wilcox Company, Baltimore Gas and
Electric Company, Wallace and Gale, Combustion Associates, Inc., or any
other person engaged in commerce or in an industry affecting commerce, where
in either case an object thereof is to force or require Babcock & Wilcox Com-
pany or Wallace and Gale to cease doing business with Baltimore Gas and Elec-
tric Company, or Baltimore Gas and Electric Company to cease doing business
with Combustion Associates, Inc., in order to force or require Combustion
Associates, Inc., to cease doing business with Green Contracting Company.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACKSMITHS, FORGERS
AND HELPERS, LOCAL No 193,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore 2, Maryland. Telephone No 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.
Hillcrest Poultry Industries , Inc. and Amalgamated Meat Cut-
ters and Butcher Workmen of North America , Local 385, AFL-
CIO. Case No. 1-CA-4162. October 25, 1963
DECISION AND ORDER
On August 1, 1963, Trial Examiner Jerry B. Stone issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
144 NLRB No. 113.
HILLCREST POULTRY INDUSTRIES, INC. 1221
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, 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 rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, Hillcrest Poultry Industries, Inc, its officers, agents, successors,
and assigns , shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on April 25, 1963, by Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 385, AFL-CIO, herein sometimes called the
Union or Petitioner, the General Counsel of the National Labor Relations Board,
by the Acting Regional Director for the First Region (Boston, Massachusetts),
issued his complaint dated May 14, 1963, against Hillcrest Poultry Industries, Inc.,
herein sometimes called the Respondent, the Employer, or the Company. In sub-
stance the complaint allaged that Respondent had engaged in and was engaging in
conduct proscribed by Section 8(a)(1) and (5) of the National Labor Relations
Act, herein called the Act, and that such conduct affected, and was affecting, com-
merce as set forth in Section 2(6) and (7) of the Act Respondent's answer admits
many of the facts pleaded in the complaint, but denies the commission of any
unfair labor practices
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone at Lewiston, Maine on May 28, 1963. All parties were represented at
and participated in the hearing and were afforded the right to present evidence, to
examine and cross-examine witnesses, to offer oral arguments, and to file briefs
The Respondent filed a brief and it has been considered
Upon the entire record in this case, and from my observation of the witnesses,
the following findings of fact, conclusions of law, and Recommended Order are
made.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Based upon the pleadings, it is found that Hillcrest Poultry Industries, Inc., is,
and has been at all times material to this proceeding, a corporation duly organized
under and existing by virtue of the laws of the State of Maine; that Respondent has
maintained its principal office and place of business in the city of Lewiston, county
of Androscoggin, and State of Maine, and is now, and continuously has been,
engaged at its plant at that location in the sale and distribution of dressed poultry
and related products; that Respondent (in the course and conduct of its business)
causes, and continuously has caused, large quantities of materials, used by it in
the sale and distribution of its products, to be purchased and transported in inter-
state commerce from and through various States of the United States other than
the State of Maine, and causes , and continuously has caused , substantial quantities
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of dressed poultry and related products to be sold and transported from its said
plant in interstate commerce to States of the United States other than the State of
Maine; and that Respondent ( in the course and conduct of its business operations)
annually sells and distributes at its said plant products valued in excess of $50,000,
which are shipped from said plant directly to States of the United States other than
the State of Maine.
The evidence also reveals that the Respondent employs various employees in its
aforesaid operations . I find that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and in connection with
the acts described in section III of this report that it will effectuate the policies
of the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings it is found that Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 385, AFL-CIO, is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate bargaining unit
The complaint alleges, the answer admits , the Union and the Respondent so
agreed in a consent-election agreement approved by the Regional Director on No-
vember 28 , 1962 , 1 and I so find that all production and maintenance employees of
the Respondent at its Lewiston , Maine, plant , including shipping and receiving em-
ployees but excluding all office clerical employees , professional employees, farm
supervisors , laboratory employees , salesmen, foremen , assistant foremen , floorladies,
pickup crews , truckdrivers , guards, watchmen , and supervisors as defined in Sec-
tion 2 ( 11) of the Act , constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 ( b) of the Act.
B. The certification of the Union
On March 29, 1963, Bernard L. Alpert, Regional Director for the First Region
of the National Labor Relations Board, in Case No . 1-RC-7206 issued a document
entitled "Report on Objections and Certification of Representative ." In this docu-
ment Regional Director Alpert certified to the effect that on February 19, 1963,
the Union had been designated and selected by a majority of the employees of
the Respondent in the stipulated appropriate bargaining unit , and that the Union
was the exclusive representative of all the employees in such unit for the purposes of
collective bargaining.
C. The refusal to bargain
It is established by the pleadings that on or about March 12, 1963 , the Union
requested the Respondent to bargain collectively in respect to rates of pay, wages,
hours of employment , or other conditions of employment with the Union as the
exclusive representative of all the employees of Respondent in the stipulated appro-
priate bargaining unit, previously described , and that Respondent from on or about
March 13, 1963, and at all times thereafter 2 has refused to bargain collectively with
the Union as the exclusive representative of all the employees in the appropriate
bargaining unit.
Contentions
The General Counsel contends that the refusal to bargain described in the fore-
going section , in connection with the certified status of the Union, previously
described, constitutes a refusal to bargain within the meaning and violative of
Section 8 (a) (1) and (5) of the Act.
The Respondent contends, in essence , that it has refused to bargain with the
Union, but that it was under no obligation to bargain with the Union because the
certification of the Union by the Regional Director was invalid . The Respondent
contends in its answer 3 that the election held on December 11, 1962, was a valid
1 In Case No. 1-RC-7206.
2 Thus, the Respondent has continued to refuse to bargain with the Union after March 29,
1963
8 At the hearing the Respondent moved to amend to incorporate the objections to the elec-
tion of February 19, 1963 , as part of its answer During the discussion relative to this
motion the Trial ExamYner understood that this motion was to merely clarify the pleadings
and not to enlarge or change the effect of the pleadings Upon reading the transcript, the
HILLCREST POULTRY INDUSTRIES, INC. 1223
election and that the Regional Director's subsequent actions in refusing to certify
the results of the election, in setting aside the election, in ordering a new election for
February 19, 1963, in overruling the Respondent's objections to the February 19,
1963, election, and in certifying the results of the February 19, 1963, election were
unreasonable, arbitrary and capricious, improper, and invalid.
The Respondent in its brief argues and contends that an incident found by the
Acting Regional Director in his report on objections (Case No. 1-RC-7206) dated
January 18, 1963, to be objectionable did not, on the basis of the facts described by
the Acting Regional Director in his report, appear to constitute any kind of viola-
tion; 4 that in connection with the Regional Director's investigation of the various
objections the Respondent was not afforded the names of the employees involved in
the incidents and that such was needed to enable the Respondent to meet the charges
against it and to test the evidence for credibility; that the Regional Director exhibited
an obviously inconsistent attitude in his consideration of the objection to union
conduct as opposed to his consideration of the objections to the Employer's conduct-
that in this regard the Regional Director minimized the effect of union misstatements
and found a bilingual credibility problem as to one of the Employer's witnesses in
support of the Employer's objections but not as to the witnesses supporting the
union objections; that the Employer had a right to access to the evidence considered
by the Regional Director and had not waived such right by entering into a consent-
election agreement; and that denial of a hearing by the Regional Director under
the circumstances of the case and that the obviously inconsistent attitude of the
Regional Director in judging alleged misconduct of the Employer and the Union
constituted arbitrary and capricious acts on the part of the Regional Director.
At the hearing in this matter Respondent counsel made certain statements with
respect to his contentions. He stated that he was disagreeing with what the Regional
Director had done in this case (Case No 1-RC-7206) but that he did not question
the Regional Director's competence or integrity. Respondent's counsel stated that
the Regional Office refused to identify for the Respondent the 15 or 20 employees
involved and that therefore Respondent had no way of knowing whether or not,
because of language barriers or language differences, some or all of these employees
might have misinterpreted-honestly misinterpreted-something else that was said.
Respondent's counsel also stated that he did not know what the Regional Director
and Acting Regional Director had in their files or what kind of statements they had.
The Relevant Facts 5
The Consent-Election Agreement
The Respondent and the Union executed a consent-election agreement in Case
No. 1-RC-7206 on November 27, 1962. On November 28, 1962, Regional Director
Alpert approved the aforementioned consent-election agreement The consent-
election agreement set forth the parties' agreement to the details concerning eligibility
to vote, the date,6 hours and place of election, the appropriate collective-bargaining
unit, the election procedures, and the handling of objections and challenges and
related matter.
The consent-election agreement included the parties' agreement to the following
effect:
6. OBJECTIONS, CHALLENGES, REPORTS THEREON.-Objections to the conduct
of the election or conduct affecting the results of the election, or to a determina-
tion of representatives based on the results thereof, may be filed with the
Regional Director within 5 days after issuance of the Tally of Ballots. Copies
of such objections must be served upon the other parties at the time of filing
with the Regional Director. The Regional Director shall investigate the matters
contained in the objections and issue a report thereon If objections are sus-
tained, the Regional Director may in his report include an order voiding the
meaning and effect of the motion appears ambiguous and possibly to be injecting an issue
beyond the question of arbitrary and capricious acts Accordingly, I reverse my ruling
made at the hearing and strike the Respondent 's amendment to its answer
4 The incident referred to was set forth in said report as (a) under objection No. 3.
This section Is Included In the excerpts set out later in this report.
E The Respondent 's rejected offer of proof went merely to what certain witnesses would
now testify to as pertains to the merits of the objections He does not contend that the
evidence Is newly discovered , nor that such was the evidence presented to the Regional
Director
O December 11, 1962.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
results of the election and, in that event, shall be empowered to conduct a new
election under the terms and provisions of this agreement at a date, time, and
place to be determined by him . If the challenges are determinative of the
results of the election , the Regional Director shall investigate the challenges and
issue a report thereon. The method of investigation of objections and chal-
lenges, including the question whether a hearing should be held in connection
therewith , shall be determined by the Regional Director , whose decision shall be
final and binding.
There is no dispute that an election was held on December 11, 1962, and that the
tally of ballots with respect to the election reflected that a majority of the ballots
were cast against representation by the Petitioner (Union ). Nor is there dispute
that the Petitioner ( Union ) filed timely objections to the conduct of the election.
At some date prior to January 18, 1963, the Respondent requested that it be granted
a formal hearing before determination by the Regional Director of the aforesaid
objections . It is undisputed that the Respondent was not granted a formal hearing
in the matter.
On January 18, 1963, Acting Regional Director Greene issued a report on
objections (Case No. 1-RC-7206 ) concerning the objections relating to the election
held on December 11, 1962. In the report the Acting Regional Director found it
unnecessary to decide objection No. 1 relating to Respondent 's alleged conduct, found
objection No. 2 to be without merit, and found that there was merit to Petitioner's
objection No. 3. The Acting Regional Director set the December 11, 1962, election
aside and stated that a new election would be conducted.
Excerpted herein from the Acting Regional Director 's report on objections is the
section devoted to the Union 's (Petitioner ) objection No. 3:
Objection 3:
The following incidents amply supported by credible evidence all occurred
at various times between the filing of the Petition and the day of the election.
[Footnote omitted.]
(a) On or about November 28, 1962, Stephen Breton , the Employer's
eviscerating department foreman , after criticizing an employee 's work per-
formance , took the employee to the office of Philip (Tony ) Begos, the Em-
ployer's personnel manager. After accusing the employee of not doing her
job properly , Breton said he could fire her. He then asked the employee "to
give the Company a chance . Just think of what the Company has done for
you." Breton went on to mention the fact that the Company was giving its
employees Thanksgiving and Christmas as paid holidays . He then denied that
these benefits were given because of the union 's organizational efforts saying
that Mendelson ( the Employer 's President ) was the new owner and that he,
Mendelson , wanted to do right and "to give him a chance and he would do
more in the future." The employee involved was a designated Union Com-
mittee member whose activities as such were communicated to the Employer
prior to this interview.
(b) The investigation disclosed that a fund from which employees may
borrow money is maintained from the proceeds of vending machines located
in the Employer 's plant. A Committee (comprised of two employees and three
management or supervisory employees of the Employer ) determine whether
an employee is entitled to receive a loan from this fund. In cooperation with
the Committee the Employer will deduct weekly sums from an employee's pay
to be applied against any such loans until the loan is repaid . On the morning
of the election , Breton told approximately 15 or 20 employees ( during a break
period ) that if they owed money and the union was elected , not to bother
coming into work the next day because they would be discharged . He said
they would be discharged since the union does not lend money and the office
would not lend employees any money.
(c) Approximately a week and a half before the election Dominic Santa-
mingo , the Employer 's plant foreman , asked an employee if the employee "was
with the Company or with the Union " This same employee had previously
been called to the office of Begos and told by Begos that the Company had
lent him money and otherwise had treated him well , giving him overtime and
allowing attachments to remain on his pay Begos told the employee that
other companies would have fired an employee if attachments were made on his
pay The employee was then asked if this was how to "treat the Comnany the
way you do " Begos further said "We'll remember this." When asked by the
employee if Begos meant the union business , Begos told the employee to draw
his own conclusions saying "We'll remember this-don't you worry."
HILLCREST POULTRY INDUSTRIES, INC. 1225
(d) The day before the election, Breton spoke to another employee at his
work station in the presence of four or five others. Breton told the employee
that if he voted for the union and the union won the election, the employee
would not get any more overtime and that, furthermore, if Breton found out
that the employee voted "yes" for the union he would get fired.
The employer's representatives (Santamingo, Begos, and Breton) all denied
making any of the above statements. However, the undersigned credits the
employee-witnesses over the bare denials, does not believe that the above epi-
sodes were invented by the several employees and finds that the above incidents
have in fact occurred and that they constitute interrogation (paragraph 2(c)
above), threats of reprisals, withdrawal of benefits and intimidation (in the
other instances noted above) such as the Board has repeatedly found to be
objectionable.
Having concluded that merit attaches to Objection 3, the undersigned hereby
sets the election aside and will conduct a new election at a time and place to
be determined. [Footnotes omitted.]
On January 29, 1963, the Respondent's attorney made a motion for reconsideration
with respect to the Acting Regional Director's report on objection in Case No.
1-RC-7206 and requested an opportunity to be heard on the motion.
Several days later, Respondent's counsel met with the Regional Director at the
Regional Office.
Respondent Counsel Maurice Epstein credibly testified to facts of the conference
in the Regional Director's office as revealed by the following excerpt from his
testimony:
This conference was held in the Regional Director's office on some date after
January 29th, 1963, and there were present, to the best of my recollection, the
Regional Director, Bernie Alpert; the General Counsel-I mean, the Regional
Attorney, Bob Greene, who had been Acting Regional Director at the time of
the issuance of the original report; and either Bob Fuchs or Ernie Modern, or
both They're both officials of the Regional Office of the National Labor
Relations Board. Irving Isaacson, I was present, Mr. Mendelsohn of the com-
pany, and either one or two or three of the-I know Mr. Breton was present,
and maybe one or two other company employees.
At any rate, at that time I opened the meeting by addressing at the Regional
Director a rather lengthy argument stating the reasons why he should, as a
matter of policy in a case of this kind, allow the employer's representatives to
have access to the statements of employees and the report of the investigators
on the basis of which he expected to support the report on objections, and also
that for policy reasons, he should, in a case of this kind, order, or hold, a public
hearing.
He admitted that it was within his discretion; while he took the position while
he was not required to do so, I felt that where the outcome of the objections
depended at some points on resolution of questions of credibility-Mr. Alpert
is a lawyer-I pointed out to him how he as a lawyer would feel frustrated if
he was in the position that he put me into of having to come in and having to
defend a company against charges without knowing what the evidence was
against them; and I recall that at that meeting he either referred to the Saxe-
Glassman case-and one of the Board officials took the position that Saxe-
Glassman supported a refusal to grant us a hearing, and I pointed to the pro-
visions in the Saxe-Glassman case which I read a little while ago here to the
Trial Examiner which indicated-which pointed out that in the Saxe-Glassman
case, a request for the evidence against the company had not been made until the
Court of Appeals phase of the case and that in this case the request was being
made much earlier.
I wouldn't be sure without checking with the Board investigator with whom
I worked on this case up in Lewiston whether or not the request for access to
this material was made at that time-that would have been in the original
investigation, that would have been prior to the issuance of the original report-
but I am certain that the request both for a hearing and for access to the
material was made at least as far back as the hearing in-not the hearing, strike
the word hearing-as the conference in Bernie Alpert's office between the
original report and the denial of the motion for reconsideration and long before
the second election, or I wouldn't say long before it, several days, I guess, before
the second election. At least it was sometime prior to the second election.
It is undisputed that the Regional Director did not grant the Respondent a formal
hearing in the matter, nor access to the evidence in his files (to the extent that
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent could examine or cross-examine witnesses or see their statements or
affidavits).
Thereafter a second election was conducted on February 19, 1962, and the tally
of ballots reflected that the Union (Petitioner had received a majority of the votes
cast. It is undisputed that the Respondent filed timely objections to conduct affect-
ing the results of the election and to the conduct of the election. The Respondents
letter setting forth the alleged objections requested that it be granted a hearing on
the said objections "with at least the traditional safeguards, including the right to
particulars as to allegations against it, that its evidence and all evidence be presented
openly, under oath with the right of confrontation and cross-examination and other
customary and recognized safeguards of due process."
On March 29, 1963, Regional Director Bernard L. Alpert issued a report on ob-
jections and certification of representative (Case No. 1-RC-7206). Excerpted from
the aforesaid report are the sections of the report relating to Respondent's objections:
1. In support of this Objection, the Employer adduced the testimony of ten
employees who gave information as to seven separate incidents, all of which
purportedly occurred between the two elections, as specified below. None of
the witnesses supported the claim of "interrogation."
Two of said incidents involve alleged misstatements as to benefits at unionized
plants made by an employee who was one of the in-plant leaders of the organiza-
tional effort and also acted as Petitioner's observer at both elections. These
statements were made during a discussion of the advantages and disadvan-
tages of unionization with the respective employee-witnesses.
It is well established that the Board will not, as a rule, hold a labor organiza-
tion responsible for statements made by employees during an organization
campaign even if such employees are identified as active for or leaders of the
Union in the plant.'
A third incident concerns a "house call" made by a Union organizer during
which he allegedly stated to two employees "we'll get you $1.58 to $1 60 per
hour-this is what they get at Maplewood "
"Maplewood" refers to Maplewood Packing Company of Belfast, Maine, a
poultry processing plant under contract with Petitioner. The latter also has
contracts with Fort Halifax Packing Company and Penobscot Poultry Com-
pany, Inc., both likewise in Maine. Benefits and conditions in all three plants
played a great part in discussions among the employees (some of whom have
worked for one or the other of these employers) and in the Petitioner's pre-
election propaganda.
While Maplewood has a somewhat lower pay rate than stated above, it is
not disputed that the Fort Halifax contract does provide for the rate of $1.58.
Therefore, the reference to "Maplewood" is, at the most, an insignificant error
by the organizer, or an erroneous recollection by the employees who testified.
The same background of the three Union contracts is to be borne in mind in
relation to the next incident: After a Union meeting, a representative was asked
by an employee, in the presence of six or seven others, how much the job of
"cropper" pays at Penobscot. The representative stated, correctly as the
investigation revealed, that the rate is $1.45. The employee who had asked
this question alleges further that the Union representative stated that both the
Fort Halifax, as well as the Penobscot contract, provide for time-and-a-half
after eight hours. While this is true only as to Penobscot, Fort Halifax pro-
vides for double time after ten hours. Finally, a reference to a "guaranteed"
40 hour week, allegedly stated as applying to both these contracts, is true only
as to Penobscot, as the investigation has disclosed.
Next, the Employer produced a witness who merely stated that a Union
organizer gave him a leaflet containing wage comparisons with other unionized
plants, urging him to read it to "see how far behind Hillcrest is." The Employer
does not claim any misrepresentation in connection with this leaflet (distributed
on February 18, the day before the re-run election), hence, did not submit a
specimen. However, the undersigned, having requested one from Petitioner,
has appended it here as Exhibit A since it clearly dispels or corrects such prior
inaccurate wage comparisons between the plants in question, as may have been
made earlier during conversations with individual employees.
Another employee claims that during a house call an organizer stated that
"with a union we should get $10 to $15 more per week," that part-time help
would be eliminated and the employees would not have to nay for insurance
themselves. It is clear and through use of the word "should" must have been
1 Sherry Manufacturing Company, 128 NLRB 739.
HILLCREST POULTRY INDUSTRIES, INC. 1227
clear to the employee that the organizer presented these matters by way of
listing some improvements the Petitioner would try to obtain for the employees.
This has been repeatedly held privileged propaganda rather than objectionable
"promises." 2
Two employees assert that Arthur Lebel, Petitioner's organizer, told them
in the morning of the second election "If you don't get a $10. raise a week,
I will personally pay your dues for a year." Lebel denies this. Even assum-
ing the statement was made, it is to be pointed out that promises of this kind,
if not made contingent on how an employee will vote, are not considered
objectionable? Moreover, the Petitioner, only a few days before the election,
on February 13, 1963, stated in a leaflet, as far as pertinent here, and "to,
clear up once and for all the issue of dues and initiation fees for the employees."
First, there will be no initiation fees required now or later for any Hill-
crest employees who are eligible to vote in the February 19, 1963 N.L.R.B.
election.
Second, no Hillcrest employees will be required to pay any dues to this-
Local until a contract has been approved by you and signed by your em-
ployer and you are getting the benefits and pay increases.
The last episode concerns an employee who claims that Lebel, at her home,
told her that unless she voted for or joined the Union, the latter would see
to it that she lose her job. Lebel denies this categorically. This young female
employee lives in the house of another, older employee who, although she was
not present during the organizer's visit, accompanied the younger one to the-
interview with the Board agent. Whereas the younger employee appeared
reticent and embarrassed, the older one displayed such fanatic and irrepressible-
hostility towards Petitioner, attempted to make herself the spokesman for the-
witness and interjected frequently her own views and opinions on the matter,
so that the undersigned has doubts whether the entire incident occurred as al-
leged. The witness, moreover, asserts that both the employee referred to above
as one of the Union's leaders and Lebel appeared at her house, that the em-
ployee threatened her, first, as stated, and that Lebel then repeated the same
threat. This witness' command of English is extremely limited and Lebel does
not speak French, the witness' native tongue. This introduces another element
of unreliability into her testimony.
However, even assuming the incident did occur as alleged, it is to be borne
in mind that it pertains to one out of 251 eligible employees, and that no other
objectionable conduct was disclosed. Therefore, the incident is to be con-
sidered as isolated 4 and in itself insufficient to set the election aside.
In sum, the undersigned concludes that Objection 1 lacks merit.
2-5 The Employer's complaint, as supported and elaborated upon in a Brief,
may be summarized as twofold. First, that his requests for hearings on Peti-
tioner's Objections to the first, and Employer's Objections to the second election
were denied. In the alternative, "full access to all evidence considered" was
requested and likewise denied to which Employer feels entitled since "after
examining the material requested, we may feel that the refusal to hold a hearing
would, under the circumstances, be arbitrary and capricious." [Emphasis
supplied.]
Secondly, the Employer complains to have been unable to obtain Board'
review of the Report setting aside the first election. (Objection 2 in particular
appears to refer to the contents of said Report utilized by Petitioner in its
propaganda prior to the second election )
As to both points, reference is made to Article 6 of the Agreement for Con-
sent Election which, as far as pertinent here states:
"The method of investigation of Objections and Challenges, including the
question whether a bearing should be held in connection therewith, shall'
be determined by the Regional Director, whose decision shall be final and
binding."
See NLRB V. Saxe-Glassman Shoe Corp. 201 F. 2d 238 (C.C.A. 1) and also,
18th Annual Report of the NLRB (1953) p. 77.
2Spies Super Market of Flandreau, Inc, 123 NLRB 764.
9 Timber Laminators, Inc, 123 NLRB 60.
4 See, e.g., Lloyd A. Fry Roofing Company, 123 NLRB 86, 88.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having carefully considered, prior to the issuance of the Report as well as
thereafter upon Employer's Motion for Reconsideration, the latter's request for
a hearing, the undersigned concluded that a hearing was not warranted.5
In its Brief the Employer claims (see also Objection 1) to be in possession
of evidence and to have provided the Board agent, who investigated the instant
Objections, with names of many employees who would testify to interrogation
by an organizer as to how these employees were going to vote. The claim to
have evidence in support of interrogation is made for the first time in Employer's
Brief. During the investigation, all witnesses offered by the Employer were
interviewed and the Employer's counsel in Lewiston affirmatively stated to the
Board agent that those interviewed were, in fact, all whom the Employer de-
sired to be interviewed. As this Report (pages 3-6 above) shows, none of
the witnesses alleged interrogation.
Even assuming, however, that such interrogation has, in fact, occurred, it
would not be objectionable since "a labor organization seeking to organize a
plant does not stand in the same position as an employer with full power over
employees' employment tenure." [Footnote omitted.]
It is concluded that Objections 2-5 are lacking in merit.
Having concluded that no merit attaches to any part of the Objections, they
are hereby overruled in their entirety.
CERTIFICATION OF REPRESENTATIVES
Pursuant to authority vested in the undersigned by the National Labor
Relations Board,
It is hereby certified that Local 385, Amalgamated Meat Cutters and Butcher
Workmen of America, AFL-CIO has been designated and selected by a
majority of the employees of the above-named Employer, in the unit herein
involved, as their representative for the purposes of collective bargaining, and
that pursuant to Section 9(a) of the Act, as amended, the said organization is
the exclusive representative of all the employees in such unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employ-
ment and other conditions of employment.
UNIT: All production and maintenance employees of the Employer at its
Lewiston, Maine plant including shipping and receiving employees, but ex-
cluding all office clerical employees, professional employees, farm supervisors,
laboratory employees, salesmen, foremen, assistant foremen, floor ladies, pick
up crews, truck drivers, guards, watchmen and supervisors as defined in the
Act."
5 The undersigned has arrived at the same conclusion concerning the request for a
hearing on the instant Objections-see last paragraph thereof-and hereby denies
the request.
In addition to the foregoing the evidence reveals that the sample ballot (on (1)
the notices of election for December 11, 1962, and (2) the notice of election for
February 19, 1963) was worded in both French and English. The parties stipulated
to the effect that the purpose of having the sample ballots on the notices printed in
French and English was because some of the employees read with greater facility in
French than in English and that there was a percentage of the employees who spoke
English but spoke with a greater facility in French.
It is the Board's longstanding policy, uniformly upheld by the courts, that it will
deem the Regional Director's determination in consent elections of this character
to be final in the absence of fraud, misconduct, or such gross mistakes as imply bad
faith on the part of the Regional Director, even though the Board might have reached
a different conclusion.?
Using the foregoing criteria in my consideration of the Regional Director and
Acting Regional Director's acts and conduct relating to the processing of the election
objections and related actions, I have considered all the evidence in this case.
Concerning the Refusal To Allow Access to Evidence , or To Have a Formal
Hearing
It is undisputed that the Regional Director's (and Acting Regional Director's)
selected type of investigation and determination did not accord the Respondent the
onportunity to see witness statements and investigator reports, nor did it accord the
Respondent the right to a formal or informal hearing.
7 Sumner Sand & Gravel Company, 128 NLRB 1368.
HILLCREST POULTRY INDUSTRIES, INC. 1229
It is noted that the consent -election agreement executed by the parties provided
"the method of investigation of objections and challenges, including the question
whether a hearing should be held in connection therewith , shall be determined by
the Regional Director , whose decision shall be final and binding ." In other litigated
cases this contractual provision has been consistently held to constitute an ap-
propriate waiver of a right to a formal hearing. It follows also that the contractual
provision constitutes a waiver of a right to a type of investigation or determination
other than the one selected and used by the Regional Director ( or Acting Regional
Director ). Absent other evidence to reveal arbitrary or capricious action on the
part of the Regional Director or Acting Regional Director , it cannot be said that
the mere refusal of the Regional Director ( or Acting Regional Director) to accede
to Respondent 's arguments and requests and to grant the Respondent a hearing
(formal or informal ), or to grant the Respondent access to the evidence in the
Regional Director's (or Acting Regional Director 's) files , constitutes an arbitrary
or capricious act, or a denial of due process.8
In regard to the matter of access to the evidence , the evidence does not reveal that
Respondent secured permission from the proper authorities to grant the Regional Director
(or Acting Regional Director ) the right to make evidence in his files available to Respond-
ent. Assuming that the Regional Director ( or Acting Regional Director ) on his own could
have secured such permission , absent evidence to establish that the Regional Director (or
Acting Regional Director ) in his evaluation of his problems acted arbitrarily and ca-
priciously, such refusal to accede to Respondent 's request would not in itself constitute
an arbitrary and capricious act It seems obvious that the making available of employee
statements, or reports concerning the same, would have an inhibitory effect on employees
giving statements in an ex parte investigation and thus result in the hampering of the
Board use of different types of investigating procedures Thus, in and of itself , it does
not follow that the refusal to grant a Respondent access to such evidence constitutes an
arbitrary or capricious act. (Of . Hilton Credit Corporation , 187 NLRB 56 ) The Board's
Rules and Regulations with respect to the restrictions on the Regional Director ( or Acting
Regional Director ) making such evidence available is herein set out:
SEC 102 118 Same ; Board employees prohibited from producing files, records
eta, pursuant to subpena ad testificandum or subpena duces tee-um , prohibited from
testifying in regard thereto -No regional director , field examiner, trial examiner,
attorney , specially designated agent , general counsel , member of the Board , or other
officer or employee of the Board shall produce or present any files, documents , reports,
memoranda , or records of the Board or testify in behalf of any party to any cause
pending in any court or before the Board or any other board , commission , or other
administrative agency of the United States, or of any State , Territory , or the District
of Columbia with respect to any information , facts , or other matter coming to his
knowledge in his official capacity or with respect to the contents of any files, docu-
ments , reports, memoranda , or records of the Board , whether in answer to a subpena,
subpena daces tecum, or otherwise , without the written consent of the Board or the
chairman of the Board if the official or document is subject to the supervision or con-
trol of the Board ; or the general counsel if the official or document is subject to the
superivsion or control of the general counsel. Whenever any subpena ad testificandum
or subpena daces tecum , the purpose of which is to adduce testimony or require the
production of records as described hereinabove , shall have been served upon any such
persons or other officer or employee of the Board ,-he will , unless otherwise expressly
directed by the Board or the chairman of the Board or the general counsel, as the
case may be , move pursuant to the applicable procedure , whether by petition to revoke,
motion to quash , or otherwise , to have such subpena invalidated on the ground that
the evidence sought is privileged against disclosure by this rule : Provided, After a
witness called by the general counsel has testified in a hearing upon a complaint under
section 10(c) of the Act , the respondent may move for the production of any state.
ment of such witness in possession of the general counsel , if such statement has been
reduced to writing and signed or otherwise approved or adopted by the witness Such
motion shall be granted by the trial examiner If the general counsel declines to fur-
nish the statement , the testimony of the witness shall be stricken
Contrary to Respondent ' s contention I do not find that the Respondent was denied "due
process" by the procedures used by the Regional Director or Acting Regional Director. See
International Ladies' Garment Workers' Union , AFL-CIO, 142 NLRB 353 , wherein the
Board adopted the findings , conclusions , and recommendations of the Trial Examiner. The
Trial Examiner had set forth in his report the following statement:
In any event , Respondent 's contention with respect to the investigation , like its
contention with respect to its right to a hearing , misconceives the nature and purpose
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is nothing to reveal that the type of investigations and determinations by
the Regional Director (and Acting Regional Director ) was not one in which all
necessary evidence was secured , in which all necessary witnesses were interviewed,
in which all questions that could be asked on direct and cross-examination were
asked the witnesses , in which all known indicia of credibility were not available
and considered , nor in which all possible arguments were not considered, nor in
which all evidence was not considered . Thus the mere fact that the investigations
and determinations by the Regional Director ( and Acting Regional Director) were
of the type in which the Respondent was not afforded a formal hearing , an informal
hearing, the right to examine and cross -examine witnesses , or access to the evidence
(statements , affidavits , and reports ), in and of itself , cannot be said to constitute
arbitrary or capricious action.
Other Alleged Acts and Problems
To determine whether the Regional Director 's (or Acting Regional Director's)
refusal to grant a hearing, or to grant access to the evidence in his files constituted
an arbitrary or capricious act, the other alleged arbitrary and capricious acts must
be considered , as well as the alleged problems that existed in connection with the
investigation and determination of the objections . These alleged acts and alleged
problems are set out in the following sections of this report.
Alleged Language or Communication Problem
The evidence reveals ( 1) that the notices of elections were printed in English and
French and ( 2) that some of the employees read with greater facility in French than
in English and that there was a percentage of the employees who spoke English
but with a greater facility in French . The Respondent 's contention is that it had
no way of knowing whether or not because of language barriers or difference that
some or all of the employees involved in the investigation might have misinterpreted
the facts. The foregoing at the most reveals that a question existed in Respondent's
mind as to the reliability of the evidence relied upon by the Acting Regional Direc-
tor or Regional Director . It does not establish in fact, that as to the evidence relied
upon by the Regional Director or Acting Regional Director , that a language or com-
munication problem existed to such an extent that reliance upon the type of investiga-
tion and determination utilized constituted an arbitrary or capricious act.
In this connection Respondent argues that the Regional Director 's finding of an
element of unreliability because of language problems as to evidence given by a
witness in support of Respondent 's objection , contrasted with the Acting Regional
Director 's failure to find such unreliability because of language problems as to
evidence given by witnesses in support of the Union's objections, reveals an obvious
inconsistency in judging the parties' objections In the absence of evidence as to
degree or extent of the credibility or language problems that the Acting Regional
Director and Regional Director had before them in their consideration , I do not
find that the foregoing evidence reveals that the Acting Regional Director or Regional
Director acted in an arbitrary or capricious manner in their credibility or factual
determinations.
of a representation proceeding Such proceeding is not "contentious litigation, not
even litigation , but investigation. It is made on behalf of the Board by members of
its staff. The outcome is merely a certification of a bargaining representative "
N.L R B v . Botany Worsted Mills , 133 F . 2d 876 , 882 (C A. 3 ), cert denied 319 U.S.
751. The proceeding is not "adversary " ( N.L.R B v National Mineral Company,
134 F. 2d 424 , 426 (C A 7), cert denied 320 U S 753 ), and no action is taken against
anyone . Indeed , many courts have observed that an employer has "little if any voice
or interest" in such proceeding . Foreman & Clark , Inc. v. N L R B , 215 F. 2d 396,
406 (C.A. 9 ), cert. denied 348 U S. 887 .15 It is therefore clear , and I find , that the
denial of access to Respondent of the information obtained by the Board investigator
in the course of his investigation did not constitute a denial of due process 16
15 Deleted by Trial Examiner Stone
16 Compare cases holding that statements of witnesses for the Government must be
made available to counsel for purposes of cross-examination but only after the wit-
nesses testified at the hearing . See, e g, Chambers Manufacturing Corporation, 124
NLRB 721, enfd 278 F. 2d 715 , 716 (C A 5 ) ; The Raser Tanning Company v.
N.L.RB., 276 F 2d 80, 83 ( CA. 6), cert. denied 363 US. 830
HILLCREST POULTRY INDUSTRIES, INC . 1231
Alleged Inconsistent Credibility Determination
The Acting Regional Director in his January 18, 1963, report on objections as to
those objections involving credibility determination set forth the effect of the state-
ments of the employee witnesses, and the effect of statements of Respondent's su-
pervisors. He further set forth the basis of his credibility determination. The Re-
spondent contends that the Acting Regional Director made his determination on the
basis that the employee-witnesses testified to incidents and that the Respondent's
representatives made bare denials. The Acting Regional Director's report set forth
a statement of the credited facts. He then stated in the report the following: "The
employer's representatives (Santamingo, Begos, and Breton) all denied making any
of the above statements. However, the undersigned credos the employee-witnesses
over the bare denials, does not believe that the above episodes were invented by
the several employees" and he found the incidents to have in fact occurred and to
constitute objectionable conduct.
The Acting Regional Director thus set out his basis for determining the credibility
of the witnesses. There is nothing to show that the Acting Regional Director
overlooked or failed to consider any indicia of credibility that existed, nor is there
any evidence to reveal that any other method of investigation would reveal addi-
tional indicia of credibility. Under such circumstances I do not find that the
Acting Regional Director acted arbitrarily or capriciously in his handling of credibility
determination.
Alleged Improper Finding
In his report on objections issued on January 18, 1963, the Acting Regional
Director found merit to objection No. 3 on the basis that the conduct of employer's
representatives constituted interrogations, threats of reprisals, withdrawal of benefits,
and intimidation. The Respondent in his brief appears to attack the Acting Regional
Director's finding as to an incident in which the Acting Regional Director found the
conduct to constitute intimidation. Respondent's brief states that the event under
the Acting Regional Director's version did not appear to constitute any kind of viola-
tion. The Acting Regional Director's report in effect set forth that the Employer's
foreman ciiticized an employee's work performance and took the employee to the
personnel manager, that the foieman told the employee she had not done her work
properly and that he could fire her, that the foreman then asked the employee, known
to the employer as a designated union committee member, to give the Company a
chance, that the foreman spoke of benefits given by the Company and denied that
the benefits were because of the Union's organizational efforts. Considering the
foregoing, I do not find that the Acting Regional Director in his finding acted
arbitrarily or capriciously.
Alleged Inconsistent Handling
The Regional Director's report on objections and certification of representatives
issued on March 29, 1963, concerned the Respondent's objections to the election
on February 19, 1963. These objections were directed toward alleged statements
by the Union and employees relative to benefits and conditions in union plants, and
to an alleged threat by the union representative to an employee to the effect that
she would lose her job if she did not vote for or join the Union. The Regional
Director considered the statements as to benefits in connection with a union cir-
cular that was issued prior to the election, and found that the union circular cor-
rected or dispelled such prior inaccurate wage comparisons as may have been
made. I do not find that the problem involved was comparative with the alleged
intimidation, interrogation, threats of reprisals, or withdrawals of events found by
the Acting Regional Director in his report on objections dated January 18, 1963.
As to those events the facts related in the report do not reveal any Respondent's
actions which dispelled the effect of such conduct. In this connection Respondent
argues in his brief that there is nothing in the report on objections to reveal that
the Regional Director or Acting Regional Director gave any weight to statements in
a speech made by the employer. These statements according to the following
excerpt from the brief 9 were as follows:
"This company is going to continue to do the right thing, regardless of whether
the Union gets in here or doesn't get in here. We intend to abide by the law
in every respect . and, above all, remember this: THAT THIS COM-
PANY IS GOING TO CONTINUE TO DO THE RIGHT THING, AND I
PERSONALLY AM GOING TO SEE THAT IT DOES "
9I do not find evidence of the same in the record
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming that the statement of Respondent's president was available to and a
part of the Regional Director's or Acting Regional Director's evidence, I do not
find that the failure of the Regional Director or Acting Regional Director to accord
it the same weight or consideration as clarifying or dispelling matter as the union
circulars (pertaining more to the specific matter to be dispelled) reveals arbitrary
or capricious action. I do not find or conclude that the Regional Director's or
Acting Regional Director's actions in the handling of various objections con-
stitutes evidence of an arbitrary or capricious nature.
The Effect of Respondent's Arguments Made to the Regional Director
Prior to the issuance of the January 18, 1963, report on objections, Respondent
requested a formal hearing on the objections. After the issuance of the aforesaid
report, Respondent, several days after January 29, 1963, requested a formal hearing
or access to the evidence against it. At that time the Respondent argued that he did
not know the evidence against it, and that as a matter of policy he should have a
formal hearing or access to the evidence against it. After the election on Febru-
ary 19, 1963, the Respondent filed its objections and requested a formal hearing
on its objections. In view of the fact that the evidence does not establish that
problems existed to such an extent as to reveal that a type of investigation other
than the one utilized by the Regional Director was necessary, I do not see that
Respondent's arguments for a formal hearing or access to the evidence, and the
Regional Director's refusal to accede to such an argument reveals arbitrary or
capricious action on the part of the Regional Director (or Acting Regional
Director).10
Conclusions
Considering the foregoing and all of the evidence, I conclude and find that the
evidence does not establish that the Acting Regional Director or Regional Director
have acted, in any instance, in connection with their processing of the representation
case (Case No. 1-RC-7206) in an arbitrary or capricious manner.
To hold that Respondent was entitled to access to the evidence or to a formal
or informal hearing in the instant case would allow every party to a consent-election
agreement of this nature, by charging arbitrariness, and capriciousness, or similar
actions to nullify and deliberately ignore the binding commitments embodied in the
consent agreement, would open the door to subterfuges for hampering and delaying
a final determination of a bargaining representative; and would tend to defeat, rather
than effectuate, the policies of the Act." In this connection, contrary to Respondent's
contention, I do not see that the court in the Saxe-Glassman case 12 expressly held
open the question as to a Respondent's right to access of evidence in this type of
case. As I read the court's decision it recited procedural steps wherein the Respond-
ent had failed to procedurally raise a point for the court's consideration. The
court's decision, as a whole appears to support the decision herein. Nor do I find
that the court decision in the Trancoa case 13 is applicable to the instant situation.
The Trancoa case did not involve a consent-election agreement and thus does not
touch upon a situation where the right of review has been limited by the parties.
The Respondent has not established fraud, misconduct, or such gross mistakes as
imply bad faith, arbitrary, or capricious action on the part of the Regional Director
or Acting Regional Director.
In accordance with Board policy, I therefore find that the Acting Regional
Director and Regional Director's determinations, findings, and orders are final and
binding as to the report on objections (dated January 18, 1963) and as to the
report on objections and certification of representative (dated March 29, 1963).14
I thus find, within the meaning of the Act, that in connection with the election held
on February 19, 1963, that the Union was certified on March 29, 1963, as having
"In connection with the foregoing it is noted that when Respondent made its requests
several days after January 29, 1936, the January 18, 1963, report on objections (Case No
1-RC-7206) had been issued, describing the time of the alleged incidents, the names of
supervisors involved, and a factual statement of what occurred It is also noted that
Respondent's request for a formal hearing as to the objections to the February 19, 1963,
election concerned its own objections
11 See Parkhurst Manufacturing Company, Inc, 136 NLRB 872, enfd 317 F 2d 513
(C.A. 8), and cases cited in the Board and court decisions
11 N.L R B. v. Saxe-Glassman Shoe Corporation, 201 F. 2d 238 (C A. 1)
11 N.L It B v Trancoa Chemical Corp , 303 F. 2d 456, setting aside 133 NLRB 791.
14 Parkhurst Manufacturing Company, Inc., supra.
HILLCREST POULTRY INDUSTRIES, INC. 1233
been designated and selected by a majority of employees of Respondent in the
agreed appropriate bargaining unit on February 19, 1963, for the purposes of
collective bargaining and as the exclusive representative of all the employees in the
agreed appropriate bargaining unit for the purpose of collective bargaining.
It is undisputed that the Union made request to the Respondent for negotiation
concerning a contract covering the employees in the agreed appropriate unit on or
about March 12, 1963, and that Respondent on or about March 13, 1963, refused
to bargain collectively with the Union and has continued to refuse to so bargain at
all times thereafter, including March 29, 1963, and thereafter.
In connection with the Union's request for collective bargaining made on or about
March 12, 1963, the Respondent, by virtue of the certification of the Union (as the
exclusive representative of the employees in the stipulated approved bargaining unit)
for purposes of collective bargaining, was obligated to bargain collectively with the
Union. Its continued refusal to so bargain, after March 29, 1963, constitutes a
refusal to bargain within the meaning of Section 8(a)(1) and (5) of the Act.15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that Respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with the
Union as the exclusive representative of the employees in the appropriate unit. It
will therefore be recommended that the Respondent, upon request, bargain collec-
tively with the Union as such representative, and, in the event that an understanding
is reached, embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the following is made:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, Local
385, AFL-CIO, is a labor organization within the meaning of the Act.
2. Hillcrest Poultry Industries, Inc., is engaged in commerce within the meaning
of the Act.
3. All production and maintenance employees of the Employer at its Lewiston,
Maine, plant, including shipping and receiving employees, but excluding all office
clerical employees, professional employees, farm supervisors, laboratory employees,
salesmen, foremen, assistant foremen, floorladies, pickup crews, truckdrivers, guards,
watchmen, and supervisors as defined in Section 2(11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. Amalgamated Meat Cutters and Butcher Workmen of North America, Local
385, AFL-CIO, was on February 19, 1963, and at all times since has been, the ex-
clusive representative of all employees in the aforesaid appropriate units for the
purposes of collective bargaining within the meaning of the Act.
5. By refusing on March 29, 1963, and thereafter, to bargain collectively with the
above-named Union, the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (5) of the Act
6. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
"The General Counsel at the hearing stated that Respondent has refused to bargain in
the face of the certification The case was litigated on this basis See Trinity Steel Com-
pany, Inc, 103 NLRB 1470; also cf. Alexander Manufacturing Company, 110 NLRB 1457;
Milwaukee Electric Tool Corporation, 112 NLRB 1135; and Glenn Koennecke, d/b/a
Sunset Lumber Products, 113 NLRB 1172.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER 16
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended 17 that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 385, AFL-CIO, as the exclusive representative
of the employees in the appropriate bargaining unit herein set out:
All production and maintenance employees of the Employer at its Lewiston,
Maine, plant, including shipping and receiving employees, but excluding all
office clerical employees, professional employees, farm supervisors, laboratory
employees, salesmen, foremen, assistant foremen, floorladies, pickup crews,
truckdrivers, guards, watchmen, and supervisors as defined in Section 2(11)
of the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Upon request, bargain collectively with Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 385, AFL-CIO, as the exclusive repre-
sentative of the employees within the appropriate units described above with respect to
rates of pay, wages, hours of employment, and other conditions of employment, and,
if an understanding is reached, embody such understanding in a signed agreement.
(b) Post at its premises in Lewiston, Maine, copies of the attached notice marked
"Appendix A." 18 Copies of said notice, to be furnished by the Regional Director
for the First Region, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the First Region, in writing, within 20
days from the date of this Order, what steps the Respondent has taken to comply
herewith.19
11 In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order "
iz The word "ordered" shall be substituted for the word "recommended."
In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
11 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Amalgamated Meat Cutters
and Butcher Workmen of North America, Local 385, AFL-CIO, as the ex-
clusive representative of the employees in the bargaining unit described below.
THE J. S. DILLON & SONS STORES CO., INC. 1235
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist any labor organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any and all such activities , except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively , upon request , with Amalgamated Meat Cutters
and Butcher Workmen of North America , Local 385, AFL-CIO, as the ex-
clusive representative of all our employees in the bargaining unit described
below with respect to rates of pay, wages , hours of employment , and other
conditions of employment , and, if an understanding is reached , embody such
understanding in a signed agreement.
The bargaining units are:
All production and maintenance employees of the Employer at its Lewis-
ton, Maine, plant, including shipping and receiving employees , but excluding
all office clerical employees , professional employees , farm supervisors,
laboratory employees , salesmen , foremen, assistant foremen , floorladies,
pickup crews, truckdrivers , guards, watchmen , and supervisors as defined
in Section 2 (11) of the Act.
HILLCREST POULTRY INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street , Boston 8, Massachusetts, Tele-
phone No. Lafayette 3-8100, if they have any question concerning this notice or
compliance with its provisions.
The J. S. Dillon & Sons Stores Co., Inc. and District 50, United
Mine Workers of America . Case No. 17-CA-2113. October 28,
1963
DECISION AND ORDER
On July 15, 1963, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. He also found that the Respondent had not engaged in
other unfair labor practices and recommended that the complaint be
dismissed as to them. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
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 [Members Leedom, Fanning, and Brown].
The Board has reviewed, the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
144 NLRB No. 116.
727-083-64-vol. 144-79