Chock Full O' Nuts

National Labor Relations Board - Board Decisions

Jun 4, 1958

120 N.L.R.B. 1296 (N.L.R.B. 1958)

1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sheets and schematics based on requests from customers. It is clear
and we find that the eight employees in department 61 are technical
employees.e Under established Board policy technicals are not
included in a bargaining unit with nontechnicals when any party
objects to their inclusion.7 As the Employer has advanced such
objection at the hearing, we shall exclude the eight technicians in
department 61 from the voting group hereinafter described.
Accordingly, we find that the mechanical production technicians
may constitute an appropriate residual unit, or may appropriately be
added to the existing production and maintenance unit.8 However,
we shall make no final unit determination at this time, but shall
ascertain the desires of the employees by directing a self-determina-
tion election in the following voting group :
All mechanical production technicians at Employer's Elmira, New
York, plant, including group leaders, but excluding all other
employees, guards, professionals, and all supervisors as defined in
the Act.
If a majority of the employees in the voting group vote for the
Petitioner, they will be taken to have indicated their desire to consti-
tute a separate appropriate unit, and the Regional Director is
instructed to issue a certification of representatives to the Petitioner
for such unit, which the Board under the circumstances finds appro-
priate for the purposes of collective bargaining. If a majority of
the employees vote for the Intervenor, they will be taken to have
expressed their desire to become part of the existing production and
maintenance unit represented by the Intervenor, and the Intervenor
may bargain for them as part of such unit. If a majority of the
employees vote for neither, they will be deemed to have expressed
their desire to remain unrepresented.
[Text of Direction of Election omitted from publication.]
6 The Sheffield Corporation, 108 NLRB 349.
7 Pennsalt Chemicals Corporation , 119 NLRB 128.
8 See footnote 7, supra.
Chock Full 0' Nuts and United Bakery, Confectionery, Cannery,
Packing and Food Service Workers Union of New Jersey, Local
262, RWDSU, AFL-CIO, Petitioner. Case No. f2-RC-8684. June
4,1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election,' issued on June
13, 1957, the Regional -Director for the Second Region on July 9, 1957,
1 118 NLRB 156.
120 NLRB No. 172.
CHOCK FULL 0' NUTS 1297
conducted an election by secret ballot among the employees in the unit,
which was found appropriate by the Board. The results of the elec-
tion, as set forth in a tally of ballots furnished the parties, showed
that all of the approximately 67 eligible voters had participated in
the election. Of the 67 ballots cast, 22 were for, and 42 were against,
the Petitioner, 2 ballots were challenged, and 1 was void. The chal-
lenged ballots were insufficient in number to affect the results of
the election.
Thereafter, the Petitioner filed timely objections. The Regional
Director investigated them and, on March 11, 1958, issued' and duly
served upon the parties a report on objections in-which-he recom-
mended that one of the objections be sustained and that-.the remainder
be overruled. The Employer and Petitioner filed timely exceptions
to the report.
The objections allege, in summary, that : (1) The election notices
were posted less, than 48 hours before the election; (2) various, officers
of the Employer threatened employees with reprisals and loss of wages
_and other benefits; (3) members of management promised benefits to
certain employees if they would vote against the Petitioner and
threatened them with loss of jobs if the Petitioner won the election;
(4) employees were transferred to the plant here involved for the
specific purpose of voting against the Petitioner; (5) Symanski, an
.election observer selected by the Employer, was a supervisor; (6) the.
Employer sent out a letter which contained false and misleading state-
ments; and (7) the ballot form -annexed "to the election notice was
defaced by an "X" in the "Vote No" column.
The Regional Director found that : (1) No employee was disen-
franchised as a result of the shortened-posting period; (2) there was
-evidence to sustain certain aspects of this objection, which matters
will be discussed infra; (3) there was no evidence that employees were
promised raises if they voted against the Petitioner and the alleged
threat of loss of jobs was made prior to the issuance of tr' Board's
Decision and Direction of Election and, hence, was barre' nder the
Woolworth z policy; (4) there was no evidence showing th ,mployees
were transferred so as to vote against the Petitioner; (5 he alleged
supervisor at the election was, in fact, a roving inspector with no
supervisory authority; (6) the statements in, the letter were legitimate
.campaign propaganda which did not impair-the employee's freedom
of choice; and (7) there was no evidence that the sample ballot
was defaced.
The Regional Director recommended overruling all the objections
but the second. The Petitioner excepted to his recommendations
apparently with regard to the third, fifth, and sixth objections and
9 F W. Woolworth Company, 109 NLRB 1446
483142-59-vol. 120-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to parts of the second. The Employer excepted to certain findings in
connection with the second objection and to the recommendation to
set aside the election.
Contrary to the Petitioner's contention, we find that the Employer's
letter of July 5, relied upon by the Petitioner, does not contain a
promise to employees to continue the Christmas bonus if they voted
against the Petitioner. Nor do we find such false and misleading in-
formation in the letter that it would affect the employees' ability to
cast a free ballot. As for the alleged supervisory authority of Syman-
ski, the Employer's observer, the Petitioner has adduced no evidence
to support its position. Accordingly, we shall adopt the Regional
Director's recommendations with respect to the third, fifth, and sixth
objections, as well as his recommendations with respect to the other
objections to which no exceptions have been taken.
With regard to the second objection, the Petitioner alleged, inter
alia, that within 24 hours of the election, Jackie Robinson, a vice pres-
ident of the Employer, and William Berdick, another vice president
and the plant manager, urged employees to vote against the Petitioner
employing appeals to racial prejudice. The objection alleges that
Robinson went through the plant stating that the Petitioner had been
brought in because the white employees were jealous of his position
and that, should the Petitioner win the election, all Negroes would
be fired. Berdick, it is alleged, confronted the white employees with
the threat that all of them would be fired if the Petitioner won and
only Negroes would be permitted to work.
The Regional Director found that the evidence did not support these
specific allegations.' However, he did find that the evidence estab-
lished that Robinson, from the early spring of 1957 until within a few
days of the election, frequently stated to Negro employees that "he
was the reason for the Union," that "some of the employees didn't
want to be represented by me because of my race," and that the "white
employees were jealous of my position with the Company."
The Regional Director further found that the Petitioner com-
mented on certain aspects of the problems of racial discrimination and
bias in an attempt to offset any persuasive appeal Robinson, as an
officer of the Employer, might have. The Regional Director, never-
theless, recommended that this objection insofar as it related to the
racial issue be overruled.
For the same reasons set forth in our opinion in Sharnay Hosiery
Mills, Inc.,4 the Regional Director's recommendation herein appears
3 The Regional Director also found that, although Robinson and Berdick had talks with
employees within 24 hours of the election, they were individual discussions at the em-
ployees' work stations and, thus, did not come within the proscription of the rule set
forth in Peerless Plywood Company, 107 NLRB 427.
4 120 NLRB 750, where Chairman Leedom and Member Bean joined in a concurring
opinion.
CHOCK FULL 0' NUTS 1299
proper and we shall adopt it. While we do not condone appeals to
racial prejudice, nor the conduct of the Company's vice presidents in
raising the issue, we do not find that the injection of the issue, or the
context in which it was discussed herein, sufficient ground for invali-
dation of the results.
In the second objection, the Petitioner also alleged that some Em-
ployer representatives in supervisory positions threatened employees
with reprisals and loss of wages and other benefits. The Regional
Director found, and we agree, that most of the threats alleged in this
objection were barred under the Woolworth policy. However, he
did find that two conversations between Robinson and Stiles, an em-
ployee, occurred after the date of the issuance of the Decision and
Direction of Election. He also found that they contained threatening
implications of reprisals for employee activity protected by Section 7
of the Act. Therefore, he recommended that the election be set aside
on this ground.
The evidence indicated that Robinson told Stiles that he was free
to choose whether or not he wanted to vote for the Petitioner, but,
because of his 10 years' seniority, he "shouldn't stick his neck out,"
should "be quiet" and that, if he were active, Robinson couldn't help
him "in any way." Ina second conversation, Robinson remarked that
he had the final say on discharges and as long as Stiles "did his work
he had no need for concern about his job." In connection with one
of these conversations, Robinson also referred to another employee,
Clarence Rice, stating that "Rice was on his own and that he wouldn't
lift a finger to help him." Robinson apparently believed that Rice,
was writing unfair and abusive leaflets for the Petitioner. Robinson
contends that he told Stiles that "Rice was on his own, and that he'd
do nothing to help or hurt Rice."
We find nothing coercive in the second conversation with Stiles or
in either version of the remarks concerning Rice which would warrant
setting aside the election. The violation, if any, must be found in the
warnings to Stiles not to "stick his neck out," and to "be quiet" and
the statement that, if he were active, Robinson couldn't help him "in
any way." We find, however, that such statements in a private con-
versation with 1 employee out of approximately 67 employees eligible
to vote in the election are so isolated as to afford no sufficient grounds
for setting aside the election.' Moreover, as indicated previously,
Robinson later assured Stiles that, if he did his work he need have no
concern over his job, thereby neutralizing whatever coercive impli-
cations Robinson's earlier remarks had. We shall, therefore, overrule
this objection.
c Lincoln Plastics Corporation , 112 NLRB 291 , 292; Western Table Company, etc,
110 NLRB 17, 18.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the Petitioner's objections do not raise
substantial and material issues with respect to the conduct or results
of the election and they are hereby overruled in their entirety. As the
Petitioner has failed to secure a majority of the valid ballots cast, we
shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for United Baker-j, Confectionery, Cannery, Packing and Food
Service Workers Union of New Jersey, Local 262, RWDSU, AFL---
CIO, and that said labor organization is not the exclusive bargaining
representative of the employees of the Harrison, New Jersey, plant of
Chock Full 0' Nuts, in the unit heretofore found appropriate.]
Empire Manufacturing Corporation and Willie Bernice Beaver,
Louise Crawford , Effie V . Harmon , Rachel Lamberth , Lorene
Wallace , Myrtle Miller. Cases Nos. 11-CA-1008, 11-CA-1009,
11-CA-1010, 11-CA-1011, 11-CA-1018, and 11-CA-1077. Jwne
5,1958
DECISION AND ORDER
On October 8, 1957, Trial Examiner James A. Corcoran issued his
Intermediate 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 be required to cease and
desist therefrom and to take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. He also
found that the Respondent had not engaged in certain other unfair
labor practices, and recommended that the complaint be dismissed
insofar as it alleged such unfair labor practices. Thereafter, the
Respondent and the General Counsel filed exceptions to the Interme-
diate Report with supporting briefs.
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 Rodgers, Jenkins, and
Fanning].
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
Intermediate Report, the Respondent's and the General Counsel's
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as hereinafter noted.
Contrary to the recommendations of the Trial Examiner, we find
that the General Counsel failed to prove the allegation of the com-
120 NLRB No. 175.