F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Nov 8, 1974

214 N.L.R.B. 805 (N.L.R.B. 1974)

F. W. WOOLWORTH CO.
F. W. Woolworth Co. and Retail Store Employees
Union Local No. 214, affiliated with the Retail
Clerks International Association , AFL-CIO, Peti-
tioner . Case 30-RC-2156
November 8, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
Pursuant to a petition filed on September 28, 1973,
and a Decision and Direction of Election issued by
the Acting Regional Director on November 13, 1973,
an election by secret ballot was conducted on De-
cember 13, 1973, under the direction and supervision
of the Regional Director for Region 30 among the
employees in the unit described below. Upon the
conclusion of the election, a tally of ballots was fur-
nished the parties which showed that of approxi-
mately 72 eligible voters, 66 cast ballots, of which 39
were cast for the Petitioner, 25 were cast against the
Petitioner, and 2 were challenged. The challenged
ballots were insufficient to affect the results of the
election. Thereafter, the Employer filed objections to
conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and on December 28,
1973, issued and duly served on the parties a notice
of hearing on objections to conduct affecting results
of election. A hearing was held on February 7, 1974,
before Hearing Officer Robert V. Johnson of the Na-
tional Labor Relations Board.
On April 3, 1974, the Hearing Officer issued and
duly served on the parties his report and recommen-
dations on issues raised by objections in which he
recommended that the objections be overruled in
their entirety. Thereafter, the Employer filed excep-
tions, and the Petitioner filed an answering brief.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The following employees constitute a unit ap-
propriate for the purposes of collective bargaining
805
within the meaning of Section 9(b) of the Act:
All regular full-time and regular part-time em-
ployees employed by the Employer at Store No.
1484 in Escanaba, Michigan, including all office
clerical employees; but excluding confidential
employees, professional employees, guards and
supervisors as defined in the Act.
5. The Board has considered the Hearing Officer's
report, the Employer's exceptions, the Petitioner's
brief, and the entire record in this case, and hereby
adopts the Hearing Officer's recommendation that
the objections be overruled in their entirety.' Accord-
ingly, as the tally shows that the Petitioner has ob-
tained a majority of the valid ballots cast, we shall
certify it as the exclusive bargaining representative of
the employees in the appropriate unit.
We do not adopt the Hearing Officer's suggestion
that the objections herein may have been untimely
filed. The Employer's attorney refused either to sign
or accept the tally of ballots at the conclusion of the
election. A decision was then made to mail the tally
to the Employer's attorney, albeit with an admoni-
tion that objections had to be received by the close of
business on the fifth working day following the close
of the election. The tally was mailed on December
14, 1973, and was received by the Employer's attor-
ney on December 17, 1973. Under these circum-
stances we find, as in The Jacksonville Journal Com-
pany, 117 NLRB 360 (1957), that the 5-day time peri-
od for the filing of objections began to run when the
tally was received. Since the tally was received on
December 17, 1973, the objections filed December
21, 1973, were timely filed.
We note, however, that by arbitrarily refusing to
accept the tally of ballots, the Employer in effect uni-
laterally extended the time for filing objections be-
cause the tally had technically not been "furnished"
under Rule 102.69 of our rules. We find such a situa-
tion untenable. It is clear that if parties are served
with a tally of ballots at the conclusion of the elec-
tion the time for filing objections begins to run im-
mediately. In our view if, at the conclusion of an
In the absence of exceptions with respect to Objections 3, 6, and 7 we
adopt pro forma the Hearing Officer's recommendations that Objection 3 be
overruled and that Objections 6 and 7 be allowed to be withdrawn With
regard to Objection 4, which alleges that the Petitioner offered a waiver of
initiation fee to those who supported Petitioner prior to the election, we
find, in agreement with the Hearing Officer , that there is no merit to this
objection The waiver was mailed to all employees in the unit and applied to
all employees who joined the Union any time within 30 days after a collec-
tive-bargaining agreement had been signed by the Employer and voted
upon and approved by a majority of the employees in the bargaining unit
Under these circumstances , the waiver is not objectionable See B F Good-
rich Tire Company, A Division of the B F Goodrich Company, 209 NLRB
1175 (1974), and Irwindale Division, Lau Industries, A Division of Phillips
Industries, Inc, 210 NLRB 182 (1974)
214 NLRB No. 99
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, an attempt is made to serve the tally of bal-
lots on a party or its representative, excluding an
election observer whom we would not consider to be
an agent for the purpose of serving a tally, and such
service is refused, the party should be deemed to
have been constructively served with the tally at the
conclusion of the election. The time for filing objec-
tions would therefore begin to run immediately upon
such constructive service, irrespective of whether the
party was later furnished with a tally through the
mails or any other means. Thus, while, as noted
above, we would find the objections filed herein to
be timely because of prior precedent, we will in the
future follow the policy enunciated herein. There-
fore, to the extent that it is inconsistent herewith, The
Jacksonville Journal Company, 117 NLRB 360 (1957),
is hereby overruled.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Retail Store Employees
Union Local No. 214, affiliated with The Retail
Clerks International Association , AFL-CIO, and
that , pursuant to Section 9(a) of the National Labor
Relations Act, as amended , the said labor organiza-
tion is the exclusive representative of all the employ-
ees in the unit found appropriate herein for the pur-
poses of collective bargaining in respect to rates of
pay, wages , hours of employment , or other condi-
tions of employment.