Eisner Grocery Co.

National Labor Relations Board - Board Decisions

Aug 24, 1956

116 N.L.R.B. 976 (N.L.R.B. 1956)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eisner , Grocery Company and Local 398, Amalgamated Meat
Cutters * and Butcher Workmen of North America , AFL-CIO,
Petitioner. Case No. 14-RC-2990. August 24, 1956
SUPPLEMENTAL DECISION AND CERTIFICATION 'OF +
RESULTS OF ELECTION
On June 19, 1956, pursuant to a Decision and Direction of Election
issued by the Board on June 5, 1956,1 an election by secret ballot
was conducted under the direction and supervision of the Regional
Director for the Fourteenth Region, among certain employees of the
Employer in a unit found appropriate by the Board. Upon the con-
clusion of the election, the parties were, furnished a tally of ballots.
The tally showed that there were approximately 4 eligible voters and
4 ballots were cast, of which none were cast for the Petitioner and 4
were cast against the Petitioner. There were no challenged ballots.
On June 25,. 1956, the Petitioner filed timely objections to the elec-
tion. After an investigation, the Regional Director, on July 20, 1956,
issued and duly served upon the parties his report on objections, a
copy of which is attached hereto 2 The Regional Director found that
the Petitioner's objections lacked merit and recommended that they
be overruled. The Petitioner filed timely exceptions to the Regional
Director's report on objections.
The Board has considered the Petitioner's objections, the Regional
Director's report, and the Petitioner's exceptions thereto, and hereby
adopts the findings and recommendations of the Regional Director.
Accordingly, as it appears that the Petitioner has failed to obtain a
majority of the valid votes cast, we shall certify the results of the
election.
[The Board certified that a majority of the valid ballots was not
cast for Local 398, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, and that the said Union is not the
exclusive representative of 'the employees in the unit described in
paragraph 4 of the Decision and Direction of ElectiQn herein.]
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Supplemental Decision and Certification of Results of
Election.
1 Not reported in printed volumes of Board Decisions and Ordeis.
2 The report on objections sets forth in full the alleged objections.
REPORT ON OBJECTIONS TO ELECTION
Pursuant to a Decision and Direction of Election dated June 5, 1956, an election
was conducted on June 19, 1956.' The tally of ballots shows the following results:
116 NLRB No. 103.
EISNER GROCERY COMPANY 977
Approximate number of eligible voters --------------------^__------- 4
Void ballots----------------------------------------------------- 0
Votes cast for Petitioner------------------------------------------ 0.
Votes cast against petitioning labor organization---------------------- 4
Valid votes counted--------------------------------------------- 4
Challenged ballots ----------------------------------------------- 0
Valid votes counted plus challenged ballots--------------------' ----- 4
Challenges are not sufficient in number to affect the results of the election.
The majority of valid votes has not been cast for the Petitioner.
On June 25, 1956, Petitioner filed the following objections to conduct affecting the'
results of the election:
1. Although the voting of employees from the three stores of the Employer at
Mattoon, Illinois, was to begin at 1:30 p. in., the Board representative was late
and the voting did not begin until approximately 2:00 p. in.
2. The Union had no observers present for the voting at the first two stores
because it was waiting for the Board representative at the appointed place in
order to participate in a pre-election conference that had been set for 12:45 P. M.
As a result, the Union had no observers present at the time the employees in
two of the stores voted. This was due solely to the failure of the Board rep-
resentative to start the election on time and to hold the pre-election conference
as scheduled.
3. The Board representative failed to hold the pre-election conference at 12:45
p. in. as agreed and failed to hold any pre-election conference before he
started the voting.
4. The supervisory staff of the Employer traveled ahead of the Board rep-
resentative to each store and talked with some of the employees before the
Board representative released them to vote.
Pursuant to Section 102.61 of the Board's Rules and Regulations, Series 6, as
amended, the Regional Director has caused an investigation to be made and reports
hereto as follows:
Objection No. 1: The notice of election for the three stores in Mattoon, Illinois,
states the time and place of the election as follows:
1:15-1:25 pm CST store number 11, 1410 Broadway
1:45-1:55 pm CST store number 12, 2010 Western
2:45-2:25 pm CST store number 18, 2701 Champaign Avenue
The Board agent reports that when he arrived at the edge of Mattoon he stopped to
telephone to the Broadway store that he would be a few minutes late and asked them
to notify the other stores .' This was done . The Board agent arrived at the Broad-
way store at 1:30 p . in., central standard time . He was advised by company repre-
sentatives that the union representatives had gone to get a drink . He waited about 10
minutes for them to return and when they did not , he proceeded to conduct the elec-
tion with a union observer . After arranging for the balloting of the two eligible
employees in that store , the Board agent sealed the ballot bag and left the Broadway
store at 1:50 p . in., central standard time.
At the Western Street store the one eligible employee voted just after the scheduled
voting period had elapsed . But at the Champaign Avenue store , the one eligible em-
ployee voted during the scheduled period.
As indicated above , all of the eligible employees voted in the election . The delay
at the Broadway Street store , while unfortunate, did not prevent any of the eligible
employees from voting . A delay such as here occurred could be prejudicial only if
some of the eligible voters were thereby disenfranchised?
Accordingly , it is recommended that objection No. I be overruled.
Objection No. 2: On June 11, 1956 , the Regional Office sent a letter to each of the
parties stating, "There will be a pre -election conference at 12 : 45 p. in . at 1410 Broad-
way for the purpose of checking the eligibility list and naming observers."
1 Mattoon is 140 miles from St. Louis where the Board agent is stationed . He states
that he was .delayed in his.arrival at Mattoon because he stopped at a neighboring town in
an effort to locate a witness in another matter, which would eliminate the necessity of-
another trip.
' Balfre Gear and Manufacturing Co., 115 , NLRB 19; Lloyd A Fry Roofing, 108
NLRB 1297.
405448-57-vol. 116-63
978, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Representatives Ben Dorsey and Charles Sturgeon , accompanied by War-
ren Andrews , a member of the-Union - and employee of Kroger Company, were
under the impression that " 12:45 p . m." referred to daylight saving time and appeared
at the Broadway store at 11 : 45 standard time . Upon learning that the election notice
referred to standard time , they left for lunch and returned to the store and waited
until about 12 : 50 central standard time . Then, according to Union Representative
Dorsey, they told Eisner they were going out for a drink. Shortly thereafter, Andrews
returned to the store to put a coin in the parking meter in front of the store.
Bob Eisner , Jr., saw him from the inside , rapped on the window, and informed him that
the Board agent had just arrived.
According to Andrews , he immediately reported this message to Dorsey and
Sturgeon . However, Dorsey waited to make a telephone call to his international
office in Chicago and then waited for a return call . Sometime during this period,
Dorsey told Sturgeon and Andrews to attend the election. When they arrived at the
Broadway store , they were told that the Board agent had gone. Again , according to
Andrews, they returned to where Dorsey was telephoning and then decided it was
too late to go to the store on Western Avenue; so they proceeded directly to the
Champaign Avenue store and arrived there ahead of the Board agent.
Under these circumstances, it appears that there was time for the union represent-
atives to have returned to the Broadway store in time for the election after Andrews
received the message from Eisner that the Board agent had arrived. Consequently,
it cannot be said that the Petitioner's failure to have observers present during the
voting in the first 2 of the 3 stores can be attributed to the failure of the Board agent
to hold the preelection conference. In any event, no prejudice has been shown as
a result of the Union's failure to have observers present. The Board's Rules and
Regulations, Section 102.61, provides "Any party may be represented by observers
of his own selection, subject to such limitations as the Regional Director may pre-
scribe." Thus, it may be said that while the use of observers is a courtesy usually
extended by the Board, "interested parties are not entitled to an observer as a matter
of right," 3 except of course, in case of agreement for consent election where the
parties make an agreement to that effect .4
It is recommended that objection No. 2 be overruled.
Objection No. 3: Preelection conferences are held in order to acquaint the inter-
ested parties with the mechanics of the election, to examine the eligibility list, and
to designate observers. The need for the preelection conference varies with the
size of the election. As in the matter of observers, it is a practice usually followed
by the Board agent but not required by the Board rules.5 Again, it was unfortunate
that the Board agent did not arrive in time to hold the preelection conference as
scheduled, but there is no contention-nor is there any evidence-that the failure to
hold the preelection conference had any effect upon the results of the election.
The only consequence of the failure to conduct the preelection conference alleged
by the Union is that it caused the Union's failure to have observers at the balloting
at the first two stores. This complaint has been answered under objection No. 2
and needs no further discussion.
The Regional Director finds that objection No. 3 does not raise any substantial
or material issue with respect to the election. Accordingly, it is recommended that
objection No. 3 be overruled.
Objection No. 4: The Union has submitted no evidence in support of objection
No. 4 and no evidence has been disclosed by the investigation which would support
the objection. Each of the employees eligible to vote in the election has been
questioned and each of them asserts that nothing was said to them by any of their
supervisors or company representatives concerning the Union during the 2 days prior
to the election, or on the day of the election. Neither is there any evidence disclosed
by the investigation which indicates that the company representatives , in talking to
employees eligible to vote in the election , made any statements beyond the permis-
sive limits of Section 8 (c) of the Act.
The Regional Director concludes that there is no merit to objection No. 4 and rec-
ommends that it be overruled.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions , it is recommended by the
Regional Director that each of Petitioner 's objections be overruled.
8 Simplot Fertilizer Company. 107 NLRB 1211.
' Bremen Steel Company, et al., 115 NLRB 247.
5 Interboro Chevrolet Co., Inc., 113 NLRB 118.
THE HERTNER ELECTRIC COMPANY 979
As provided in Section 102.61 of the Board's Rules and Regulations , Series 6,
as amended , any party desiring to take exceptions to the report and recommenda-
tions herein may, within ten (10 ) days from the date of issuance of this Report,
file with the Board in Washington , D. C., seven (7) copies of such exceptions.
Immediately upon the filing of such exceptions the party filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the Regional
Director for the Fourteenth Region , National Labor Relations Board , Room 935,
U. S. Court House and Custom House, 1114 Market Street , St. Louis 1, Missouri.
The Hertner Electric Company and Gilbert L. Cowen , Petitioner
and United Electrical , Radio & Machine Workers of America
Local #735 (Ind.). Case No. 8-RD-134. August 24, 1956
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election dated March
16, 1956,1 an election by secret ballot was conducted on April 11, 1956,
under the supervision of the Regional Director for the Eighth Region,
among the employees of the Employer at its Cleveland, Ohio, plant,
in the unit found appropriate by the Board. At the conclusion of
the election, the parties were furnished with a tally of ballots which
disclosed that of approximately 238 eligible voters, 197 voted. The
ballots of all 197 voters were challenged. There were no void ballots.
The challenges were thus determinative of the election results.
In accordance with the Rules and Regulations of the Board, the
Regional Director conducted an investigation and thereafter, on
June 27, 1956, issued and served upon the parties his report on chal-
lenged ballots. On July 5, 1956, the Union filed timely exceptions
to the report.
All but two of the challenges involved the issued of the voting eligi-
bility of strikers and their replacements? In his report, the Regional
Director made the following findings as to this issue : 3
The Union instituted an economic strike among the employees in
the appropriate unit on August 1, 1955. Between that date and the
time of the election, the number of employees employed by the Em-
ployer in the unit decreased from 140 to about 120. The Employer
stated that its present complement is stable and adequate for its Cleve-
land operation, and that the reduction in its size was due to the elimina-
tion of some jobs because of improved efficiency and the permanent
transfer of some facilities to its plant in Bedford, Ohio. On October
23, 1955, the Employer notified the strikers that unless they reported
1115 NLRB 820.
2 We shall adopt the Regional Director's recommendation that the Union 's challenges to
two other ballots be sustained , in view of his finding that they did not begin to work for
the Employer until after the eligibility date of the election.
8 These findings are uncontradicted by the Union . It stated that it had no information
to support its contentions inasmuch as such information was contained in the Employer's
personnel files to which it had no access.
116 NLRB No. 114.