F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

May 29, 1953

105 N.L.R.B. 214 (N.L.R.B. 1953)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. W. WOOLWORTH COMPANY and RETAIL CLERKS IN-
TERNATIONAL ASSOCIATION, LOCAL 1179, AFL, Peti-
tioner . Case No. 20-RC-1932. May 29, 1953
DECISION AND CERTIFICATION
OF RESULTS OF ELECTION
On August 14, 1952, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was con-
ducted in the above proceeding under the direction and super-
vision of the Regional Director for the Twentieth Region.
Following the election, a tally of ballots was furnished the
parties. The tally showed that of approximately 30 eligible
voters in the stipulated unit, 27 cast valid ballots, of which 10
were for and 17 against the Petitioner.
On August 19, 1952, the Petitioner filed timely objections
to conduct affecting the results of the election; and on September
22, 1952, it filed supplemental objections. After an investiga-
tion, the Regional Director, on October 15, 1952, issued a
report on objections, in which he sustained the Petitioner's
original objection No. 1, overruled the other objections, and
recommended that the Board set aside the election. The Em-
ployer filed timely exceptions to the Regional Director's
report. Thereafter, on November 14, 1952, the Board issued
an order directing hearing on objections and exceptions, in
which it referred the proceeding to the Regional Director
for the purpose of conducting a hearing on the issues raised
by the objections of August 19 and the Employer's exceptions
to the Regional Director's report, and directed the hearing
officer to prepare and cause to be served upon the parties
a report containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board as to the
disposition of said objections and exceptions.
Pursuant to the Board's Order, a hearing was held on
February 3, 1952, before David E. Davis, hearing officer.
Both the Petitioner and the Employer appeared and par-
ticipated. On March 24, 1953, the hearing officer issued his
report on objections to election. In it he found that the
Petitioner's original objection No. 1 raised substantial and
material issues with respect to the conduct of the election,
and recommended that the election be set aside. He found
no merit in the other objections and recommended that they be
overruled. The Employer filed timely exceptions to the hearing
officer's report.
The Board has reviewed the rulings made by the hearing
officer at the hearing and finds that no prejudicial error was
committed? The rulings are hereby affirmed. The Board has
considered the hearing officer's report, the Employer's ex-
i The Employer contends that the hearing officer erroneously admitted and considered
evidence with respect to objections that were untimely filed or were not in issue because
of the Petitioner's failure to file exceptions to the Regional Director's report. In view of
our disposition of these objections, we find, without passing on the merits of the Employer's
contention, that the hearing officer's action was not prejudicial
105 NLRB No. 20.
F. W WOOLWORTH COMPANY 215
ceptions, and the entire record in the case, and for the reasons
set forth below, finds merit in the exceptions insofar as they
relate to the Petitioner's original objection No. 1. As no
exceptions have been filed to the hearing officer's findings
and recommendations with respect to the other objections,
the Board hereby adopts them.
As to objection No. 1, the Petitioner contended and the
hearing officer found, in substance, that the Employer, after
making an antiunion speech on company time and property on
the day of the election, denied the Petitioner the equal op-
portunity to present its side of the case required under the
Board's Bonwit Teller rule.' The facts are as follows:
The election was scheduled for 1:30 p.m. on August 14,
1952. At 9:30 that morning, the time at which the store
normally opened, Yeager, the store manager , went to the
restroom where the employees were gathered and read a
speech to them. The speech, antiunion but noncoercive in
character, lasted 9 or 10 minutes; the opening of the store was
delayed until it was over.
Shortly before noon, Baker, the Petitioner's international
representative, entered the store and learned of the meeting
for the first time. She thereupon left the store and spent the
next hour in a neighboring restaurant, where she questioned
one of the Employer's employees about Yeager's speech and
discussed it with Luther, the Petitioner's business repre-
sentative. She then called Mrs. Luther, the Petitioner's
secretary, by telephone to tell her that there had been a meet-
ing in the store that morning and to ask her what should be
done. Mrs. Luther told her to request a meeting with the
employees.
At 12:50, Baker returned to the store with Luther and asked
first Yeager and then Herring, the Employer's superintendent
of public relations, for a meeting with the employees. Herring
said that he could not close the store for that purpose, but that
he could arrange for her to meet with the employees in 2 or
3 groups on condition that he be present. Baker replied that
she could not agree to this condition without consulting her
superiors. She then (at about 1:05) left the store and attempted,
without success, to reach various union officials by telephone.
At about 1:30 she returned. In the meantime, Herring had
asked the Board agent to postpone the election to give Baker
an opportunity to speak to the employees but the request was
denied, and the election took place as scheduled.
From the above facts, it is clear that the Employer was
willing to permit the Petitioner to reply to Yeager's speech
on company time and property, provided it did so in group
meetings with Herring present.' The only question is, there-
2See Bonwit Teller, Inc., 96 NLRB 608, enforced as modified, 197 F 2d 640 (C. A 2).
3 The hearing officer found that the arrangement of three group meetings "would have
required precision timing unattainable on such short notice, since the employees were
scattered in many departments and some of the employees were at lunch." it appears,
however, that there would have been sufficient time for two meetings, and we find no reason
to assume that the Employer would have insisted on three. We note, too, that had Baker made
her request when she first heard of Yeager's speech, there would have been ample time for
three meetings
291555 0 - 54 - 15
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, whether its insistence on these conditions constituted a
denial of the right of the employees " to hear both sides of
the story under circumstances which reasonably approximate
equality." 4
Group meetings , as the hearing officer found , would have
imposed on Baker the necessity of repeating her speech. We
do not believe , however, that this would have been so burden-
some as to have interfered with an adequate presentation of
the Petitioner ' s case, nor do we believe the fact that the
Union could not address all the employees simultaneously is
here material . Neither are we persuaded that the mere
presence of Herring would have created a prejudiced atmos-
phere.5 Under the circumstances , therefore , we are of the
opinion that the Employer' s offer afforded the Petitioner an
opportunity to reply to Yeager's speech under substantially
equal conditions . We therefore hold that the Employer's
conduct did not constitute interference with the election.
Accordingly, we hereby overrule the Petitioner ' s objection
No. 1.
As we have overruled the objections to the election, and as
the tally of ballots shows that the Petitioner lost the election,
we shall issue a certification of results of election to this
effect.
[The Board certified that a majority of the valid ballots
was not cast for Retail Clerks International Association, Local
1179, AFL, and that the said labor organization is not the
exclusive representative of the employees of the Employer in
the stipulated unit.]
4Bonwit Teller, Inc., supra.
5 There is no evidence that Herring. intended to participate in the meetings except by his
presence . As the purpose of the meetings was merely to permit Baker ( a nonemployee) to
address the employees, the situation is clearly distinguishable from those cases in which
the Board has found that an employer's presence at a union meeting constitutes unlawful
interference with the employees' rights.
BONDED FREIGHTWAYS, INC. and BONDED DRIVERS AND
MECHANICS INDEPENDENT UNION, Petitioner . Case No.
3-RC-1110. May 29, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction ofElections , t elections
by secret ballot were conducted on April 2 and 3, 1953, under
the direction and supervision of the Regional Director for the
Third Region , among the employees in the voting groups set
forth in the above-mentioned Decision . The Petitioner appeared
on the ballot in all the elections ; Local 182 , International
t 103 NLRB 407.
105 NLRB No. 27.