NLRB v. Tennessee Packers, Inc., Frosty Morn Division

• Citation: 379 F.2d 172
• Decision Date: 21 June 1967
• Docket Number: No. 17125.,17125.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

379 F.2d 172 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Respondent.

No. 17125.

United States Court of Appeals Sixth Circuit.

June 21, 1967.

COPYRIGHT MATERIAL OMITTED

George B. Driesen, Atty., N. L. R. B., Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Theodore Martineau, Atty., N. L. R. B., Washington, D. C., on brief.

Asa R. Ambrister, Nashville, Tenn., and George V. Gardner, Washington, D. C., for respondent.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This cause is before the Court upon petition of the National Labor Relations Board for enforcement of its order, issued August 5, 1965, against respondent, Tennessee Packers, Inc., Frosty Morn Division. The Court has jurisdiction of the proceeding, the alleged unfair labor practices having occurred in Clarksville, Tennessee, within this judicial circuit. Section 160(e), Title 29, U.S.C. The Board determined that the respondent committed unfair labor practices in violation of Sections 158(a) (1) and (5), Title 29, U.S.C., by refusing to bargain with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 405 (the union), which had been certified by the Board as the exclusive bargaining representative of respondent's employees. The respondent, a Tennessee corporation, engaged in the business of processing and packaging meat products, admits its refusal to bargain, but contends that the Board's certification of the union was invalid.

The union filed a petition for a representation election with the Board on August 26, 1963. On September 13, 1963, the respondent and the union entered into a "Stipulation for Certification Upon Consent Election." The election took place, as scheduled, on September 27th and 28th, 1963. The vote was 117 to 115 in favor of the union. Thirty-five votes were challenged. On October 2, 1963, the union filed objections to conduct of the respondent which it alleged occurred immediately preceding the election and prevented the employees from exercising a free and uncontrolled choice. The union sought to have the election set aside and a new election ordered by the Board. Seven acts of misconduct were enumerated. Only the fourth objection need be considered here. The Regional Director recommended that the others be overruled and the Board sustained the recommendation. It was alleged in the fourth objection that,

"Employees were called together for a so-called `safety meeting\' and at this time were told by management officials to sign a petition stating that they did not want a union."

The Director reported to the Board on December 6, 1963. As to the challenged ballots, the Director recommended that seventeen of the challenges be sustained and those ballots not be counted. He further recommended that sixteen of the ballots be counted, the challenges being overruled as to them. No determination was made with reference to the challenges to the ballots of Black and Lane, since actions involving them were pending before the Board.

With reference to objection four, the Director reported that his investigation revealed that at about three weeks before the election, one of respondent's drivers approached Superintendent Barnes and complained that some drivers were "laying out" when they did not want to take a particular run. Barnes appointed a committee of four drivers to draw up a set of proposed rules to remedy the situation. These drivers met and drew up a set of proposed rules which were submitted to management. About two weeks before the election, representatives of management met with the drivers in the conference room of the employer's plant. The drivers arrived at the conference room before the representatives of management. While waiting, an anti-union petition was circulated among the drivers and funds were solicited for buttons and literature to be circulated among the rank and file employees. This discussion stopped when supervisors arrived. At this meeting, in the presence of management, the proposed rules were adopted by the drivers and they were approved by Barnes. The rules concerned sleeping hours and provided penalties for missing assigned runs.

The Director found that the drivers were dissatisfied with existing conditions, that the rules were for the admitted purpose of remedying the situation, that they affected working conditions and were a benefit to employees He held that dealing directly with employees and granting benefits during the course of a union's organizing campaign constitutes interference with an election. He recommended that objection four be sustained on the basis of the facts adduced by his investigation.

The Director's concluding recommendation to the Board was that the sixteen ballots to which challenges were overruled be opened and counted. He further recommended that if the revised tally of ballots did not show a majority of votes favorable to the union, the election should be set aside because of the conduct of the respondent in accordance with his findings on objection four.

On December 13, 1963, the respondent filed exceptions to the Director's report. Its first exception was that the Director's findings were not responsive to the objection made by the union; that the finding that the rules effected a change in working conditions is "based on no facts disclosed by the Report;" and that there was "no showing that Management granted `improved working conditions to the drivers' or that Management was dealing directly with employees and granting benefits in the course of a union's organizing campaign, and thus interfered with an election." In its second exception, the respondent raises the question as to whether the alleged misconduct found in objection four occurred before August 26, 1963, the cut-off date before which the respondent could not be charged with interfering with an election. See Goodyear Tire & Rubber Co., 138 N.L.R.B. 453. Respondent, in its exceptions, did not request a hearing before the Board.

No hearing was held by the Board to consider the exceptions of the respondent and on May 6, 1964, the Board issued its decision affirming the findings of the Director and approving his recommendations. The Board noted "the absence of any adequate explanation by the Employer as to why it did not defer its granting of this benefit until after the election." The Board overruled the challenges to the ballots of Black and Lane on the ground that the Board had found that they were dismissed from their employment because of union activities. Thus, there were eighteen valid votes to be counted. The Board ordered these ballots counted and issued a contingent order directing that the election be set aside and a second one held in the event that the new tally did not give the union a majority of the votes.

The union lost the election under the revised tally and in accordance with the contingent order of the Board a second election was held on June 19th and 20th, 1964. Of the 294 votes cast in this election, 140 were for the union, 115 against the union, and 39 were challenged. Among the challenged ballots were seven cast by truck drivers, employed by respondent, who did not operate out of or reside in Clarksville. On July 2, 1964, the Director ordered a hearing for the purpose of determining the eligibility of the voters whose ballots were challenged.

There was a hearing before a Hearing Examiner, at which both parties were given an opportunity to be heard. The Examiner overruled challenges to twenty-four ballots, including those of the seven out-of-town drivers. He sustained challenges to fifteen of the contested ballots. Both the union and the respondent filed exceptions to the findings and recommendations of the Examiner. The Board issued its order on December 11, 1964, by which it sustained twenty-one challenges and overruled eighteen. It reversed the Hearing Examiner and sustained the challenges to the seven out-of-town truck drivers. Since the eighteen ballots would not affect the outcome of the election, the Board did not order them opened and counted. The Board then recognized the majority status of the union and certified it as the exclusive bargaining representative of respondent's employees.

The union filed a charge on March 11, 1965, for failure to bargain, and on April 5th the Regional Director issued a complaint alleging that the respondent, after numerous requests to bargain collectively, has refused to do so, in violation of Section 158(a) (5) and (1), Title 29, U.S.C. In its answer the respondent admitted that it refused to bargain with the union. The Board's General Counsel moved for judgment on the pleadings, and the Trial Examiner issued an order to show cause why such motion should not be granted. The respondent then amended its answer to challenge the validity of the certification. Respondent alleged that the first election was unlawfully set aside, and that the Board erroneously disposed of certain challenges following the second election. On June 10, 1965, the Trial Examiner issued his recommended decision in which he denied respondent a hearing on the certification issues, and found that respondent had violated Section 8(a) (5) and (1) of the Act (Section 158(a) (5) and (1), Title 29, U.S.C.) by its admitted refusal to bargain with the union.

On August 31, 1965, the Board affirmed this finding of the Trial Examiner. The Board affirmed the Trial Examiner's refusal to permit the respondent to relitigate its objections previously considered by the Board in the certification proceedings. The Board ordered respondent to cease and desist from refusing to bargain in good faith with the union, and affirmatively required the respondent to bargain with the union upon request and to post appropriate notices. The Board ...