Glosser Bros., Inc.

National Labor Relations Board - Board Decisions

May 14, 1958

120 N.L.R.B. 965 (N.L.R.B. 1958)

GLOSSER BROS., INC. 965
Glosser Bros ., Inc. and Retail Clerks International Association,
AFL-CIO, Petitioner. Case No. 6-RC-19529. May 14, 1958
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election' of the Board,
dated September 4, 1957, an election by secret ballot was conducted
on October 2, 1957, under the direction and supervision of the Re-
gional Director for the Sixth Region among the employees in the
appropriate unit. Following the election, the parties were furnished
a tally of ballots which showed that of approximately' 354 eligible
voters, 120 cast ballots for the Petitioner, 208 cast ballots against, and
21 ballots were challenged.
On October 8, 1957, the Petitioner filed timely objections to conduct
affecting the election. After investigation, the Regional Director on
March 7, 1958, issued and served on the parties his report on objec-
tions in which he recommended that all the objections, except one, be
overruled. The objection that was sustained pertained to Employer's
payment of a bonus on the morning of the election and, on the basis
of this objection, the Regional Director recommended that the election
be set aside and a new election directed. Thereafter, the Employer
filed timely exceptions only to this recommendation. As no excep-
tions were filed with respect to the Regional Director's recommenda-
tions that the other objections be overruled, we hereby adopt them.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The Petitioner, in its objections, alleged in part that the Employer
prevented a free choice of a bargaining representative "by distributing
money purporting to be bonuses to the sales personnel on the morning
of the election, the timing and method of payment of the bonus being
a departure from past practice." The Regional Director's report
shows that prior to 1957 the Employer customarily paid an annual
bonus to all its employees upon the conclusion of the regular anniver-
sary sale that started the middle of September and continued to the
first week of November 2 On September 24, 1956, the Employer's
executive committee decided upon a split bonus plan to prevent the
employees' loss of enthusiasm after the first 2 weeks of the anniversary
sale and to spur sales continuously during the entire sale. It was
also decided to increase the bonus to nonselling employees. This plan
was not put into effect for 1956 but was implemented by the executive
I Not published.
2 The selling employees ' bonus amounted to 1 percent commission on sales during the
anniversary sale period while the nonselling employees received a flat $10.
120 NLRB No. 129.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee next year on September 23, 1957. The 1957 anniversary
.sale had already begun on September 17 and the executive committee
also decided to extend it from November 5 to November 16. This was
done in order to- make room for Christmas merchandise and to recoup
from the poor results of the first week of the sale.
Employees were regularly paid every Wednesday morning and the,
election herein was scheduled for Wednesday afternoon, October 2.
On Monday, September 30, the Employer closed the store an hour,
'early and held a buffet dinner for all its employees. At that time, the,
Employer's president spoke briefly about the, election and announced
the extension of the sale to November 16 and the payment of a partial
bonus on the following Wednesday. This was the first knowledge
that employees had of the split bonus and of the extension of the sale.
On Wednesday morning, the employees received with their pay their
first bonus payments which, in effect, amounted to increases for all,
employees 3 and which deviated from the Employer's customary
practice in that the bonus was split and partly paid before the end
of the sale.
The Employer contends that the change in the method of bonus
payments had been decided a year before the election and that, as the
timing with respect to the election was a coincidence, it affords no
basis for setting aside the election. We find no merit in this conten-
tion. It is true that the Board has held that the granting of benefits,
during the period immediately preceding an election is not per se
grounds for setting aside an election. However, in the absence of a
showing that the timing of the announcement was governed by factors
other than the pendency of the election, the Board has set aside elec-
tions on the ground that the granting of benefits at that particular
time was calculated to influence the employees in their choice of a,
bargaining representative.4 The burden of showing these other
factors is upon the Employer. In the instant case, we agree with the
Regional Director that, although the bonus plan and the increase in
bonus to nonselling employees was decided a year earlier,, no convinc-
ing reason appears why the employer waited until it gave an election
speech 2 days before the election, to notify the employees for the first
time of the proposed changes and why the increased bonus to non-
selling employees was first revealed the morning of the election. Fur-
ther, no credible explanation has been offered as to why the announce-
ment of the extension of the anniversary sale, with its implication of
an increased bonus for the selling employees, could not have been made
8 The sale employees received commissions on sales during the first 2 weeks of the anni-
versary sale which as extended ultimately meant that they were going to receive a greater
bonus The nonselluig employees received $10 which amounted to the usual amount of
their bonus and thus ultimately meant they , too, could expect to receive and did receive
a larger payment based upon a longer period of sales.
A Bata Shoe Company, Inc , 116 NLRB 1239.
VEEDER-ROOT , INCORPORATED 967
after the election rather than 2 days before. In these circumstances,
we believe, in agreement with the Regional Director, that the Em-
ployer has failed to show that the timing of the announcements of
the split bonus and the extended sale and the disclosure of an increased
bonus through the partial payments were governed by factors other
than the pendency of the election. Accordingly, we find that the tim-
ing of the announcements and the disclosure were calculated to and
did interfere with the election of October 2, 1957, and we shall set it
aside and direct a new election to be conducted.5
[The Board set aside the election held on October 2, 1957.]
[Text of Direction of Second Election omitted from publication.]
6 Bata Shoe Company, Inc ., supra; Knickerbocker Manu facturing Company, Inc., 107
NLRB 507.
Veeder-Root, Incorporated , Altoona Branch and International.
Association of Machinists , AFL-CIO, Petitioner. Case No-
6-RC-1967. May 14, 1958
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION-
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued by the
Board on September 13, 1957, an election by secret ballot was con-
ducted on October 10, 1957, under the direction and supervision of
the Regional Director for the Sixth Region. After the election the
Regional Director served upon the parties a tally of ballots which
showed that of approximately 278 eligible voters, 271 cast ballots,
of which 105 were for, and 148 were against, the Petitioner, and 18
ballots were challenged. The challenged ballots were insufficient to
affect the election results.
On October 17, 1957, the Petitioner timely filed objections to con-
duct affecting the results of the election. The Regional Director
investigated the objections and, on February 14, 1958, issued and
duly served upon the parties his report on objections, recommending
that the objections be sustained, the election be set aside, and a new
election directed. The Employer timely filed exceptions to the
Regional Director's report.
Pursuant to Section 3 (b) of the Act, the Board has delegated its.
powers in connection with this case to a three-member panel.
[Chairman Leedom and Members Bean and Jenkins].
The Petitioner's first objection asserted that the Employer had
interfered with, intimidated, and coerced the employees before the
election because of their activities in behalf of the Petitioner. It is
120 NLRB No. 127.