Grant's Home Furnishings, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1977

229 N.L.R.B. 1305 (N.L.R.B. 1977)

GRANTS HOME FURNISHINGS, INC.
Grant's Home Furnishings, Inc. and Retail, Wholesale
and Department Store Union, AFL-CIO. Cases
12-CA-68 10 and 12-RC-4836
June 7, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On May 25, 1976, Administrative Law Judge Julius
Cohn issued the attached Decision in this proceed-
ing. Thereafter, counsel for General Counsel and for
Respondent filed exceptions and supporting briefs.
The Respondent also submitted an answering brief
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
The representation election involved in this case
was based upon a Stipulation for Certification Upon
Consent Election which, inter alia, specified that the
election would be held between 4:30 and 5 p.m. The
Board agent arrived at Respondent's establishment 5
minutes late. The Respondent complained of the
agent's tardiness and, rather than go ahead with the
election and then in due course file objections based
on such tardiness, it "refused to permit the polls to be
opened and the election to be held." The Administra-
tive Law Judge concluded that this was interference
by the Respondent in the election process which
violated Section 8(a)(l) of the Act, and constituted
objectionable conduct as well. We agree with both
his conclusions and his reasons in support of them.
I As the Administrative Law Judge found that Respondent did not
violate Sec. 8(a)3) of the Act by its denial of the request by Richard Russo
to remain in Respondent's employ until the time the rescheduled election
took place, we likewise conclude for the same reasons that Respondent did
not violate Sec. 8(aXl)of the Act.
2 Referred to sometimes as the stipulation or the stipulation for
certification.
I The stipulation by its very terms provides for the parties' agreeing to
certain matters and little would seem to be added by denominating the
agreement a contract. Nevertheless, on occasion the Board has stated that
an "agreement for consent election"-which is the same as a Stipulation for
Certification except for certain rights of review-"is a contract ... binding
upon the parties who have expressed their mutual assent thereto." Sumner
Sand & Gravel Company, 12; NLRB 1368, 1370 (1960). The point seems to
be to emphasize that the parties are bound by the agreement, a conclusion
that scarcely turns on the use of the word "contract." See, e.g., N.L.R.B. v.
The Standard Transformer Company, 202 F.2d 846, 848-849 (C.A. 6, 1953),
where the court in dealing with a stipulation for certification holds it,
229 NLRB No. 181
Our dissenting colleague claims, however, that the
Respondent was justified, or at least within its rights,
in refusing to permit the election to be held. He
reaches this result on the ground that the Stipulation
for Certification Upon Consent Election, 2 on which
the aborted election was based, is a contract binding
upon the Board as well as the parties which
narrowed, he claims, the role of the Board in the
underlying representation proceeding to that of
"construing the agreement according to contract
principles." Furthermore, he appears to have no
qualms in holding the delay in starting the election to
be a material breach of the terms of the stipulation
despite there being no properly filed objection and
thus no postelection hearing concerning the impact
of such delay-all of which suggests to us that our
colleague's position necessarily entails the supposi-
tion that any deviation whatsoever from the terms of
a stipulation warrants an innocent party's renounc-
ing the whole agreement. The dissent is little more
than a series of misunderstandings of Board and
contract law which provide no support for the
conclusion our colleague seeks to place upon them.
It is largely a matter of indifference, at least for
purposes here, whether one chooses to call a
stipulation for certification a contract or not,3 for,
however described, the stipulation does not by some
alchemy change what was initiated as a public
proceeding under Section 9(c)(1) of the Act into
some private arrangement between management and
labor with the Board's role reduced to that of an
organization engaged by these parties to conduct an
election pursuant to their instructions and arrange-
ments, as in effect our dissenting colleague argues.
Rather, the Board's role in an election proceeding
based upon a stipulation for certification is substan-
tially the same as its role in such a proceeding based
upon a Board direction. In other words, the Board's
rules, regulations, and pertinent decisional law are
the same for stipulated elections as for Board-
directed elections. 4 One of the consequences of the
foregoing is that complaints concerning an election
without use of the word "contract," to be "binding upon the parties
according to its terms." In any event, the Board through its Regional
Director approves a stipulation, and is not a party to the agreement as is
rather decisively shown by the fact that the Board. unlike a party, can
unilaterally cancel out a stipulation simply by withdrawing its approval. See,
e.g., American-Republican, Incorporate4 171 NLRB 43 (1968).
4 Thus Sec. 9(c)4) of the Act which provides for "waiving of hearings by
stipulation for the purpose of a consent election" requires that the election
be conducted "in conformity with regulations and rules of decision of the
Board." The relevant Board regulations are those set forth in Secs. 102.62(b)
and 102.69, Rules and Regulations, Series 8, as amended. The former
provision provides for "the employer and . .. labor organization. . . with
the approval of the regional director" entering into an agreement "for a
waiver of hearing and a consent election...." to "be conducted under the
direction and supervision of the regional director. The method of
conducting such election and the postelection procedure shall be consistent
with that followed . . . in conducting elections pursuant to sections 102.69
.... " Sec. 102.69 is the section applicable also to Board-directed elections
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must, if they are to have lawful effect, be raised by
properly filed objections at the postelection stage of
the proceeding; 5 and, as the Board has held, the
standards applied in judging alleged objectionable
conduct in stipulated proceedings are the same as
those applied in Board-directed proceedings. They
are not some "stricter or different standards." 6
Furthermore, a breach of a provision of a stipulation
for certification is not conduct necessarily requiring
that an election be set aside, much less is it conduct
justifying a party's abrogating the whole stipulation.7
Rather, noncompliance with provisions of a stipula-
tion, like other alleged objectionable conduct, is to be
judged on the basis of whether the breach was
prejudicial or in the circumstances was "sufficiently
material" to warrant setting an election aside.8
Thus we need no elaborate argument to support
our conclusions that the Board's role in a stipulated
election proceeding is in no way diminished by the
stipulation from what it is in a Board-directed
and postelection procedures. As for the stipulation for certification
agreement itself, it specifies that the election "shall be held in accordance
with the National Labor Relations Act, the Board's Rules and Regulations,
and applicable procedures and policies of the Board" and that all
postelection procedures "shall be in conformity with the Board's Rules and
Regulations." And at least one court has held that it is important that
consent elections "be held in accordance with the National Labor Relations
Act and with the policies, rules and regulations of the Board." Semi-Steel
Casting Company of St. Louis v. N.LR.B., 160 F.2d 388, 391 (C.A. 8, 1947),
while another has held in a context somewhat different from that here that a
party to a consent election is "entitled ... to rely on unflinching
preservation of Boardpolicy." (Emphasis supplied.) Delta Drilling Company
v. N. LR.B., 406 F.2d 109 (C.A. 5, 1969).
s Sec. 102.69 of the Board's Rules and Regulations.
6 Jerry Bielfield Company, 208 NLRB 843, fn. 1 (1974). This rule certainly
seems sound to us, for we can perceive no good reason why different or
stricter standards should be applied in a stipulated case to a Board agent's
tardiness than in a Board-directed proceeding, since the adverse impact of
such tardiness, if any, would be the same in both types of proceedings. The
only real difference between the two types of proceedings is the waiving of
the hearing, which is, of course, the point of the stipulated procedure, as the
Act, the Board's Rules and Regulations, and the stipulation itself make
clear. As for the timing of the election, it is as a practical matter in both
types of proceedings based on the agreement of the parties and the
employer's agreement must even in Board-directed proceedings be secured
if the election is to be held on its property, as it usually is.
The only exception to the requirement and practice of identical
consideration in both types of proceedings is that dealing with the resolution
of unit issues. Contrary to the situation in Board-directed cases, the Board in
stipulated proceedings must not, as the courts have held, apply its usual unit
rules in resolving such issues but should rather ascertain the intent of the
parties through the application of "regular contract principles." See, e.g.,
Tidewater Oil Company v. N.LR.B., 358 F.2d 363 (C.A. 2, 1966), and cases
cited in fn. 13 of the dissent. Such cases instructing the use of contract
principles of interpretation are, insofar as relevant here, limited to unit
issues, and both in their intent and in their language apply only to such
issues. Certainly they have no application to the present case, for no
question of interpretation is involved. All agree the Board agent showed up
late. The question here, then, is not one of interpretation but it rather
concerns what consequences, if any, attach to the agent's tardiness in
respect to the conduct of the election.
7 Jerry Bielfield Co., supra, and Craddock-Terry Shoe Corporation, 80
NLRB 1239 (1948). Even if contract principles alone were applicable in this
proceeding, a breach of one of the provisions of the contract, i.e., the
stipulation, would not necessarily justify an "innocent" party abrogating the
whole agreement. See Corbin on Contracts, vol. 45948, pp. 817-818, West
Publishing Company, 1951, where among other things it is pointed out that
election proceeding, that a party's recourse with
respect to complaints concerning an election is the
same in a stipulated as in a Board-directed proceed-
ing (and that is by way of properly filed objections),9
and finally, that the standards applied in judging
alleged objectionable conduct are the same in a
stipulated as in a Board-directed proceeding. Or
stated otherwise, there is simply no room in estab-
lished law and practice for the "self-help" measures
that our dissenting colleague would approve.'0
Furthermore, as a matter of sound policy we see no
virtue in his position, for it is no more than an
invitation to substitute confusion for the ordered
procedures that have consistently been utilized in
consent election proceedings in the past. In our view,
his position is simply a mistake, offering no basis
whatsoever for modifying, much less for reversing,
the Administrative Law Judge's results." We there-
the failure to perform by an innocent party to a breach may itself be a
breach of contract.
8 Cases cited fn. 6. See also M. W. Breman, d/b/a Breman Steel Company
and Breman Iron & Metal Company, 115 NLRB 247 (1956), relied on by the
dissent. That case is not contrary to the point made here, for there the Board
in setting aside an election found that denying an employer an election
observer was improper not simply because it constituted a breach of the
stipulation but because the observer provision served to assure the employer
of the proper conduct of the election and thus was a material provision.
9 We are not, of course, deciding in this case whether or not a properly
filed objection complaining of the Board agent's tardiness would or would
not have merit. That matter would, as provided by the Rules and
Regulations, have to be litigated in a regular postelection proceeding. If, as
the Respondent suggests, the delay in effect interfered with its right to have
properly instructed observers at the election, then that delay may well have
warranted the Board's setting the election aside if it had been held. See
Breman Steel Company, supra. However, absent a showing that employees
were disenfranchised, a delay in beginning an election would not seem, all
other things being equal, to constitute objectionable conduct. Compare
N.L.R.B. v. Conlon Bros. Mfg. Co., 187 F.2d 329 (C.A. 7,1951).
i' None of the cases cited in the dissent involves a situation where a
party resorted to self-help rather than to the objection procedure to protest
alleged improper election-related conduct, and there are in none of those
cases--or elsewhere insofar as we can find-any statements by this Board or
any court suggesting approval of such recourse to self-help or, more
formally, to unilateral abrogation of a stipulation for certification by any
party for any reason. In his separate opinion, our dissenting colleague places
an overwhelming burden on the Board's decision in Breman Steel Company,
supra, and, inter alia, states we "do not explain any difference between the
instant case" and that case. One difference is quite obvious; in Breman Steel
Company, the issue concerning deviation from the terms of the stipulation
was raised by properly filed objections and was resolved in a duly conducted
postelection proceeding. Here, to labor the point, the Respondent sought to
proceed by way of self-help for which, as we have just noted, there is no
court or Board sanction anywhere.
" Presumably under the dissent's view, if there is a material breach the
innocent party is free to abrogate the whole stipulation and what would
follow would be either a new stipulation for, or a Board direction of, an
election. But what if there is no material breach and yet a party mistakenly
believes there was one and refuses to proceed? As far as we can see the only
recourse then is for the parties to enter into a new stipulation for, or for the
Board to direct, a new election. Thus, the results are the same under our
dissenting colleague's view whether or not a party is correct in considering
certain conduct to be a material breach. Hence, the "procedure" urged on us
by the dissent would, among other things, in practice be an open invitation
for a party seeking to delay an election to simply raise any matter as a
1306
GRANTS HOME FURNISHINGS, INC.
fore reaffirm them.12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Grant's Home
Furnishings, Inc., North Palm Beach, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election conducted
on June 13, 1976, in Case 12-RC-4836 be, and it
hereby is, set aside and that Case 12-RC-4836 be,
and it hereby is, remanded to the Regional Director
for Region 12 for the purpose of conducting a new
election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
[Direction of Second Election omitted from publi-
cation.]'3
MEMBER WALTHER, dissenting in part:
I disagree with my colleagues' decision to set aside
the election, held on June 13, 1975, because Respon-
dent had refused to participate in an election
originally scheduled for May 30, 1975.14 Unlike my
colleagues, who affirm the Administrative Law
Judge's findings that Respondent's refusal to partici-
pate in the May 30 election was an 8(a)(l) violation
and a meritorious objection to the election held on
June 13, I would dismiss the unfair labor practice
allegation, overrule the election objection on which it
is based, and certify the results of the election, which
the Union lost. In my judgment, Respondent had the
right to refuse to agree to a change in the specifically
agreed to time for conducting the May 30 election.
The relevant facts are few. Respondent and the
Union executed a Stipulation for Certification Upon
Consent Election, approved by the Regional Direc-
tor, on April 28, whereby they aggreed to the holding
of an election in a unit of office clerical and sales
employees on May 30, between 4:30 and 5 p.m., at
Respondent's North Palm Beach, Florida, store.
However, on that date, the Board agent who was to
conduct the election did not arrive at the store until
4:35 p.m. and, in such circumstances, Respondent
refused to agree to a change in the time for the
election.
reason for refusing to proceed. For whether he is right or wrong the
consequences are the same-just another attempt to hold an election.
Existing Board procedures avoid such irrational, unsettling possibilities.
12 Our position here does not amount, as the dissent contends, to our
unilaterally changing the parties' stipulation unless every breach of the
provisions of an agreement is to be construed as a rewriting of the
agreement by the "guilty" party. But to conflate the two concepts is, among
other things, to obscure the differences in their ramifications.
U1 [Excelsior footnote omitted from publication.
In finding a violation, my colleagues affirm the
Administrative Law Judge who concluded that
Respondent's refusal to have the election go forward
was in derogation of the Board's responsibility and
discretion in the conduct of elections; that Respon-
dent thereby "interfered with the rights of employees
to participate in an election at that time" in violation
of Section 8(a)(l); and that Respondent's conduct, if
left unremedied, would "naturally tend to have an
inhibiting effect on employees participating" in the
later-held election, thereby also establishing a meri-
torious objection to that election.
The Administrative Law Judge's conclusions on
this issue clearly stem from his finding that, by failing
to allow the polls to open, Respondent "usurped" the
Board's prerogative to hold the election on May 30,
as scheduled. However, in so concluding, the
Administrative Law Judge thereby failed to consider
the significance of the fact that the election sched-
uled for May 30 was not a Board-ordered election
but rather, as noted above, was to be held pursuant
to a Stipulation for Certification Upon Consent
Election, which stipulation depended, in turn, upon
the specific written agreement of the parties. The
entering into of such a stipulation had many
important effects not considered by the Administra-
tive Law Judge, and foremost of these effects
wrought by the stipulation was a change in the actual
role of the Board itself in this proceeding. This is so
because a stipulation such as the parties entered into
here is a contract, as the Board itself has long
recognized.15 In such circumstances, subject to
certain limitations, 6 the Board's role in this matter
was thereafter limited, as the Second Circuit noted in
Tidewater Oil Company v. N.LR.B., 17 "to construing
the agreement according to contract principles
.... " (Emphasis supplied.)
I note that my view of the parties' stipulation is
consistent with the approach taken by the Board
itself in Breman Steel. 18 There, the parties entered
into a consent agreement providing that each party
would be allowed an equal number of authorized
observers at the polling place. The Regional Director
subsequently overruled the Employer's objection to
the election based on the refusal of the Board agent
to permit the use of a bargaining unit employee as an
election observer. But the Board disagreed with the
Regional Director's rationale, finding that the Em-
I4 All dates 1975 unless otherwise noted.
is See, e.g., M. W Brenan, d'/b a Breman Steel Companv. 115 NLRB 247
(1956).
16 I.e., that the stipulation not be inconsistent with an, statutory
provision or Board policy.
17 358 F.2d 363, 365 (C.A. 2. 1966). denying enforcement of 151 NLRB
1288 (1965).
i' Breman Steel Company, supra at 249.
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer had been wrongfully deprived of an election
observer. In language directly pertinent to the
majority's position here, the Board explained:
Relying on Board precedents, the Regional
Director concluded that the use of observers is
not a right but a privilege, and that the Employer
had failed to use due diligence in getting the
question of the selection of an observer resolved
before the polls opened. In its exceptions, the
Employer contends, inter alia, that the Board
precedents cited by the Regional Director in-
volved Board-ordered elections and not, as here, a
consent election based on an agreement by the
parties providing for observers, and that in the
instant case the use of an observer was therefore a
matter of right based on contract and not merely
a privilege.
We find merit in this contention. The Board,
with judicial approval, has consistently treated a
consent-election agreement as binding upon the
parties. The provision for the use of an observer
by the Employer served to assure him of the
proper conduct of the election and was therefore
a material term of the consent-election agree-
ment. On the record before us, we cannot say that
the Employer waived this right to an observer.19
Thus, applying the Breman Steel rationale here, it is
clear that, once the Regional Director had approved
the stipulation, its provisions were binding not only
on the parties but on the Board itself and that the
Board's function in this case was then to conduct the
election pursuant to the specific terms set forth in the
stipulation. When the Board agent did not arrive at
the polling location until 4:35 p.m. on the date of the
election, it then became impossible to hold the
election in compliance with the provisions stipulated
to by the parties. While the majority intimates that
the delay in opening the polls here would have been
an inconsequential breach of the agreement, I note
that the Board agent arrived 5 minutes late for an
election that was to last only a half hour. At the time
of arrival, the voting booth had not been set up nor
had instructions been given to the election observers.
The delay in starting the election would clearly have
extended beyond 5 minutes and, as Respondent's
store closes at 5 p.m. each day, the stipulation
agreement was clearly breached in a material fashion
by the late arrival. In such circumstances, the Board
agent's conduct in failing to comply with the
stipulation resulted in a defacto unilateral modifica-
tion of a material term of the stipulation, i.e., the
19 115 NLRB at 249-250.
29 See, e.g., N.LR.B. v. Midwest Television, Inc., Stalion WMBD-AM-
FM-TV, 370 F.2d 287 (C.A. 7, 1966), denying enforcement of 144 NLRB
972 (1963); N.L.R.B. v. J . Collins'Sons, Inc., 332 F.2d 523 (C.A. 7, 1964),
stipulated time for the election, and Respondent was
thus under no obligation to proceed with the election
and committed no violation of the Act in refusing to
do so.
I note, however, that my colleagues have certain
difficulties in ascertaining my position here and I
would like to correct certain misapprehensions about
my position that they have expressed in their
opinion. First, contrary to their contention that I
would deem any deviation whatsoever from a
stipulation's terms as warranting an innocent party's
renouncing an entire stipulation, it should be evident
from the above discussion that my position is that a
party who refuses to proceed with an election must
demonstrate the breach of a material term in the
stipulation to justify its own failure to perform in
accordance with that stipulation. Such has been
demonstrated here, however, as for the reasons set
forth above I find the time for the election was a
material term of the stipulation.
Secondly, contrary to my colleagues' contentions, I
do not deem that a new set of Board "rules,
regulations, and decisional law" is to be applied in
stipulated elections vis-a-vis Board-directed elections.
If the May 30 election here had been held, and
should one of the parties then have filed objections to
the election, I agree that the standards that would
have been applied in judging the objected-to conduct
would have been the same as if the election had been
Board-directed. But it does not therefore follow, as
my colleagues assume, that "complaints concerning
an election must" (emphasis supplied) be raised only
through the objection process. Nor does it follow, as
my colleagues also conclude, that the Board's role in
the stipulated election is thus "substantially the
same" as its role in a Board-directed election.
Indeed, my colleagues belie their own latter conclu-
sion by admitting that, with regard to the unit in a
stipulated election, the Board's task is simply to
determine if the unit agreed to contravenes the Act
or Board policy. If it does not, the Board then must
accept that unit regardless of whether the Board
would have found the unit appropriate if the issue
had been brought to it first.20
Unlike my colleagues, however, I do not find unit
issues the "only" exception to the "requirement" of
"identical" considerations in stipulated vis-a-vis
Board-directed elections. I have already noted that
the Board finds a distinction between the two types
of elections on the issue of election observers. I also
deem a distinction on the matter of the time of this
election. Further, I clearly find no support for my
denying enforcement of 142 NLRB 545 (1963); N.LR.B. v. The Joclin
Manufacturing Company, 314 F.2d 627 (C.A. 2, 1963), denying enforcement
of 137 NLRB 216 (1962).
1308
GRANTS HOME FURNISHINGS, INC.
colleagues' intimation, at footnote 3 of their decision,
that the Board, based on its responsibility to approve
or reject stipulations and its further authority to
withdraw prior approval of stipulations, can unilater-
ally alter the specific provisions of a stipulation when
that stipulation does not contravene the Act or
Board policy. 21 Yet such unilateral modification is
exactly what occurred here when the Board agent
arrived late and the election could not then be held
according to the parties' agreed-to terms. I note that
the Board consistently holds parties to the terms of
their stipulations in an election.2 2 If the parties are to
be bound to those terms they have agreed to, they
should also obtain the benefits of those agreed-to
terms and should not be forced, as here, to
participate in proceedings which do not reflect their
agreement. In my opinion, the Board can best
effectuate the policies of the Act by conducting a
consent election in accordance with the terms set
forth in the stipulation. If the Board fulfills this
responsibility to the parties in a diligent manner,
none of the participants in the election will have any
justification for resorting to the "self-help" remedy
referred to by the majority. If the Board fails to fulfill
this responsibility, the Board cannot complain of
parties' increased reluctance to enter into such
stipulations.
My colleagues do not explain any difference
between the instant case and Breman Sleel, if there
are to be any distinctions in the future. They base
their position apparently on the Board's Rules and
Regulations that the election is to "be conducted
under the direction and supervision of the Regional
Director." If the time of the election remains within
the province of the Regional Director why even
specify it as a specific insert in the stipulation. When
the parties enter into a stipulation is any part of their
agreement binding? It is my position that especially
as to those items specifically left open to the
agreement of the parties, unless the agreement
violates the law, the Board is also bound thereby.
Any change in such provision must therefore also be
voluntary as was the original determination to join in
the stipulation.2 3
In sum, I do not find that Respondent's refusal to
agree to a change in or a deviation from the specific
provisions of the stipulation 24 constituted a violation
of the Act or a meritorious objection to the later
election. As I agree with my colleagues that Respon-
dent did not otherwise violate the Act or engage in
any objectionable conduct, I would dismiss the
complaint in its entirety and certify the results of the
election held on June 13.
21 The case my colleagues cite at fn. 3 for this proposition that the Board
can unilaterally withdraw its approval of stipulations concerns a situation
where the stipulation may have run counter to Board policy. Here, there is
no contention that the stipulation violated either the Act or Board policy.
22 See, e.g., The Tribune Company, 190 NLRB 398 (1971); Pyper
Construction Company. 177 NLRB 707 (1969).
23 While the majority stresses that my view of this case will create an
"open invitation" for parties to raise any matter as a reason for refusing to
proceed with an election, such is not the case. The situation where a party
may be privileged to refrain from proceeding to an election will occur only
where there is the possibility that the election agreement itself has been
breached by the action of another. As to whether the breach in this case-
the failure to hold the election at the agreed time--is material, I leave to the
determination of labor practitioners and their clients who well realize what
are the elements with which they are concerned in arriving at a stipulation.
This realization will dictate who is encouraging or discouraging parties from
entering into such agreements for consent elections, the majority or
dissenter.
24 In this dissent, I have generally referred to the stipulation here as a
"contract" because that is what the Board itself has often times called this
document. My colleagues at fn. 3 prefer not to call the stipulation a
"contract," but rather an "agreement," to which various parties are bound.
Since the validity of my position does not depend on a description of the
stipulation as specifically a "contract," I have no problem with also
denoting the stipulation as an "agreement" as my colleagues take great
pains to argue.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This consoli-
dated proceeding was heard on January 20 and 21, 1976, in
Coral Gables, Florida. Upon a charge filed and served
June 19, 1975, the Regional Director for Region 12 issued
the complaint in this proceeding on September 3, 1975,
alleging that Grant's Home Furnishings, Inc., herein called
the Respondent or Employer, violated Section 8(a)(1) of
the Act by its conduct in causing a Board scheduled
election to be canceled on May 30, 1975, and also violated
Section 8(aX3) of the Act by refusing the request of an
employee that his resignation be effective at a date later
than originally requested.
Pursuant to a Stipulation for Certification Upon Consent
Election executed in the representation case by the
Respondent and Retail, Wholesale and Department Store
Union, AFL-CIO, herein called the Union, approved by
the Regional Director on April 28, 1975, and amended by
the parties on June 3 and 5, 1975, an election was
conducted among certain of Respondent's employees on
June 13, 1975. The tally disclosed that, of 15 valid votes
counted, 7 were cast for the Petitioner, 8 were cast against
it, and 4 ballots were challenged. Both the Employer and
the Union filed timely objections to conduct affecting the
results of the election. On September 12, 1975, a Report on
Challenged Ballots and Objections to the Election and
Order Consolidating Cases for Hearing was issued. The
Regional Director sustained the challenges to three of the
ballots so that the remaining challenge was no longer
determinative of the election. The Employer's objections
were overruled and because of the identity of the issues
raised by three of the Union's objections with the unfair
labor practices found, the Regional Director ordered the
cases consolidated for hearing.'
Respondent filed an answer denying the commission of
unfair labor practices.
On October 2. 1975 the Regional Director further consolidated for
(Continued)
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Issues
Whether Respondent's refusal to permit the election to
be conducted on May 30, 1975, violated Section 8(a)(l) of
the Act.
Whether Respondent discriminatorily denied the request
of an employee to continue work until the election, despite
his earlier resignation.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. The General
Counsel and the Respondent submitted briefs which have
been carefully considered.
On the entire record in this case,2 and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent, a Florida corporation, is engaged in the
retail sale of furniture and accessories at various locations
in Florida including North Palm Beach, Florida. During
the past 12 months Respondent had gross retail sales in
excess of $500,000 and during that period of time it
purchased and received directly from points outside the
State of Florida goods valued in excess of $50,000. The
complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) Allegation
In accordance with their stipulation the parties had
agreed to an election in a unit of office clerical and sales
employees employed at Respondent's North Palm Beach
store, to be conducted at Respondent's premises on May
30, 1975, between 4:30 and 5 p.m. The parties herein have
also stipulated as follows:
On May 30, 1975, Respondent, by counsel, in the
presence of unit employees, although entreated to do so
by the Board agent, refused to permit the polls to be
opened and the election be conducted, because the
Board agent arrived at the polling location at 4:35 p.m.
As a result, the May 30, 1975 election for employees
of Respondent was unable to be held as scheduled by
the Board.
Following the cancellation of the election the parties
agreed that an election be held on June 13. The inconclu-
hearing unfair labor practices alleged in two other cases. However, prior to
the opening of the heanng herein, these cases were settled informally and, as
a consequence, they were severed from the instant proceeding. The General
Counsel then amended the complaint so as to delete references to matters
pertaining to the settled cases. In addition, the Petitioner withdrew
Objection 4 so that only ObJections I and 2 remained. No exceptions were
filed to the Regional Director's report.
2 Together with his brief counsel for the General Counsel submitted a
motion to correct the record which has been unopposed and herein has been
noted and corrected.
sive results of the election and the procedural steps which
followed have already been noted.
The General Counsel contends that Respondent by its
refusal to permit the Board agent to conduct the election as
scheduled interfered with the Section 7 rights of the
employees. The Respondent urges that the lateness of the
Board agent interfered with the laboratory conditions
necessary for a free and impartial election and that
therefore Respondent was under no duty to hold the
election. It argues that under such circumstances an
election could have been set aside, so that to have ordered
the Employer to proceed to the election would have
compelled it to perform a futile act. The parties have not
found any case squarely on point with the instant situation,
nor does there appear to be any. Generally, the General
Counsel relied on cases in which the Board has refused to
set aside elections in which the Board agent has opened the
polls late or closed them too early.3 On the other hand,
Respondent relies on cases in which the late arrival of the
Board agent or the early closing of the polls resulted in a
Board finding that the election should be set aside.4
Of course the obvious distinction between the instant
case and those cited by the parties is that they were
representation cases in which elections had been actually
conducted and the Board's determinations were based on
the circumstances which existed in the particular situations.
The Board assessed whether the Board agent's lateness
could have possibly disenfranchised voters or in any
manner have affected the outcome of the election. If it
appeared that the outcome could have been affected, the
Board set aside the election. On the other hand, if the
deviation of time was slight and did not appear to have
deprived anyone of the right to vote the Board did not set
aside the election. So that the fact that no election was held
on May 30, 1975, deprives us of the luxury of examining
the circumstances which may have occurred had the
election proceeded as requested by the Board agent.
This case, then, rests rather on the broader ground of the
authority, responsibility, and discretion of the Board in
representation matters. The Board has long held that it is
the Board itself which is responsible for assuring the proper
conduct of elections and that its role in that regard must
not be open to question. New York Telephone Company, 109
NLRB 788, 790 (1954). The Board has provided in its
Rules and Regulations that all elections are to be
conducted under the supervision of the Regional Director.
(Rules 102.62(b) and 102.69(a).) The courts have affirmed
the right of the Board to control the election proceedings
3 E.g., The Smith Company, 192 NLRB 1098 (1971); Polymers, Inc., 174
NLRB 282 (1969); Balfre Gear & Manufacturing Company, 115 NLRB 19
(1956).
4 E.g., B & B Better Baked Foods, Inc., 208 NLRB 493 (1974); Kerona
Plastics Extrusion Company, 196 NLRB 1120 (1972); G. H. R. Foundry
Division The Dayton Malleable Iron Co., 123 NLRB 1707 (1959): Alterman-
Big Apple, Inc., 116 NLRB 1078 (1956).
1310
GRANTS HOME FURNISHINGS, INC.
and the determination of the steps necessary to conduct an
election.5 Thus a Regional Director can reschedule an
election,6 he can remove an election previously scheduled
to be run on company premises to an outside location,7
and he generally has broad discretion in making election
arrangements. 8
In the instant case the exercise by the Board of its power,
responsibility, and discretion was usurped by the conduct
of the Respondent on the date of the scheduled election.
The stipulation is quite clear that "Respondent, by counsel,
in the presence of unit employees, although entreated to do
so by the Board agent, refused to permit the polls to be
opened and the election to be conducted." The vice of the
matter lies in the undertaking by Respondent and the
arrogation to itself of the responsibility and discretion of
the Board. Respondent effectively overruled the Board
agent and thereby substituted its judgment and discretion
for that of the Board. Moreover, it demonstrated its power
before the employees. While it argues that the Board often
time sets aside elections held in these circumstances, it has
been noted that in similar circumstances the Board may
not have set aside an election when the Board agent has
arrived late. The Respondent, acting through counsel, must
have been aware of the procedures set forth in the Board's
Rules and Regulations for the filing of objections to the
conduct of the Board agent in opening the polls after the
agreed upon time. I conclude that, by its display of power
in forcing a cancellation of the election on May 30, the
Respondent interfered with the rights of employees to
participate in an election at that time, and that such
conduct tended to impede the Board in the exercise of its
power and discretion in such proceedings. As this has the
tendency to deprive employees of their statutory rights,
Respondent violated Section 8(a)(1) of the Act. Moreover,
this conduct, unremedied, would naturally tend to have an
inhibiting effect on employees participating in the election
which was eventually conducted on June 13. In this
connection I do not find, as urged by Respondent, that the
stipulation of the Union to go to an election at a later date
constituted a waiver. The Union should not be forced, at its
peril, to decide whether to await the resolution of the unfair
labor practice proceeding or to afford the employees an
immediate opportunity to vote in an election, which had
been denied them by the Respondent.9
B. The Alleged Violations of Section 8(a)(3)
Richard A. Russo had been employed by Respondent for
approximately 2 years, first at its West Palm Beach
location and then at the North Palm Beach store involved
herein since its opening. The Union began its organization-
al campaign in March 1975 during which Russo signed an
authorization card and was instrumental in obtaining
signed cards from four or five other employees.
In January 1975 Russo was hospitalized for 2 weeks for
an operation and stayed home for several weeks after that
to recuperate. Later that spring Russo became the principal
owner of a bar and lounge. In April or early May Russo
5 NeuhoffBrothers Packers. Inc v. N.LR B., 362 F.2d 611 (C.A. 5, 1966).
cert. denied 386 U.S. 956.
Alladi. Plastics, Inc., 182 NLRB 64 (1970).
Greensboro Hosiery Mills, Inc. v. Johnston, 65 LRRM 2299. 55 LC I
12.840(C.A. 4, 1967)
took 2 weeks' vacation in order to consummate his business
of acquiring and setting up the lounge which opened in
mid-May. After returning to work, Russo began having
problems with his private venture which required his
attention and he needed time to obtain a qualified
manager. He therefore asked Store Manager Kelly Free-
man for a 2-week leave of absence. Freeman informed him
that he did not believe that it was possible, but he would
inquire on Russo's behalf. A few days later Freeman told
Russo that his request had been denied. Russo then
resigned his job effective May 31.
Russo was working on May 30, the day of the scheduled
election. After the election was canceled he inquired of
Freeman about 5 p.m. whether he could stay on and work
until the next election took place. According to Russo,
Freeman replied that he did not believe that the other
gentlemen, referring to Regional Manager Robinson and
Personnel Director Johansen, would feel that way. About
15 minutes later Russo had a conversation with Johansen
in the presence of Freeman and Robinson and requested of
Johansen that his resignation be withdrawn until after the
next election. After the company officials conferred for a
moment, Johansen informed Russo that his resignation
would be accepted as it had been presented and that the
following day, May 31, would be his last day. Russo
worked on May 31 and attempted to report to work on
June 2, the following Monday, but was met by Johansen
who asked him to leave, which he did.
The facts as set forth above are uncontroverted. Russo
also testified on direct examination that at the time he
made his request to remain until after the election,
Robinson, who was present, had said that he was not
completely honest with him. Russo stated that he believed
Robinson was referring to a time in March when the Union
had commenced its organizational activity. At lunch one
day, Johansen asked Russo why everybody was getting
involved with union activity and Russo had replied that
management had not done anything for the employees.
Russo testified that as soon as Robinson made the remark
about his not being completely honest, Johansen told him
that his resignation would be accepted. The only connec-
tion between Robinson's remark about his not being
honest and any protected activity is based purely on
Russo's inference that it referred to an alleged interroga-
tion by Johansen 2 months previously. Yet Russo admitted
he had stated in his affidavit that, prior to the election and
during the campaign, company officials stayed away from
him and did not question him about the Union and did not
say anything to him regarding the Union. If in fact he and
Johansen had the luncheon conversation in March con-
cerning union activity, and that conversation was reported
accurately by Russo, the relevancy of Robinson's remark
about honesty is obscure, at best. Assuming that Robinson
did state that Russo had not been honest, it would be more
logical to infer that Robinson had been referring to Russo's
outside business activity.
I Milham Products Co., Inc., 114 NLRB 1544(1955).
9 Cf. Bernel Foam Products Co.. Inc., 146 NLRB 1277 (1964).
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the above that Russo voluntarily resigned
his position in order to take care of his personal business.
There is no evidence nor is it contended that Respondent
denied Russo a leave of absence of 2 weeks for discrimina-
tory motives. The question here is concerned with Russo's
request to rescind his resignation. However, the conditional
nature of Russo's request, that is, he wished to return to
work only until an election was held, would, in my view,
relieve the Respondent of any obligation to permit
rescission of his resignation. In Northwest Oil Equipment,
Inc., 173 NLRB 534 (1968), relied on by the General
Counsel, the employee who sought to rescind his resigna-
tion indicated his willingness to return for at least an
indefinite period of time. Even an unfair labor practice
striker who has a legal right to reinstatement must offer to
return unconditionally. Additionally, in Northwest Oil, the
Board found that the employer therein desired to rid itself
of a union adherent. In any event, the evidence is
insufficient to establish that Respondent refused Russo an
opportunity to work until an election was held because of
discriminatory motives. There is no evidence of direct
knowledge by Respondent of Russo's activity. Assuming
that such knowledge could be inferred in the circumstanc-
es, there is no evidence of any connection between Russo's
activity and the refusal to reinstate him. Russo, the sole
witness, relied only on his subjective inference that
Robinson's remark concerning his honesty related to his
prior union activity and that, in turn, was the cause of the
Company's refusal of his request. As noted above I have
rejected that as a causal connection. On the other hand, the
Respondent's reasons for refusing to reinstate Russo until
the election are plausible. Johansen's testimony concerning
the recession and the downturn in condominium sales in
southern Florida resulting in declining retail furniture sales
is uncontradicted. While it was stipulated that Russo was
the salesman with the highest sales figures in 1974, he was
the lowest in the first 5 months of 1975. It is true that he
was out for over a month because of an illness, but his
falling sales was also due to his early 2-week vacation and
his absorption in his own private business, a fact known to
Respondent. For these reasons Respondent could readily
have accepted Russo's voluntary resignation and turn
down his request to return even if such request were
unconditional. In any case the burden is upon the General
Counsel to prove by a preponderance of the evidence that
Respondent refused to reinstate Russo because of his union
activity or other discriminatory reasons. I find that he has
not done so in this case and, accordingly, I shall therefore
dismiss the 8(a)(3) allegation of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section I11,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
o1 Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By its refusal, in the presence of employees, to permit
the Board to conduct an election on the date scheduled,
Respondent impeded the Board in the exercise of its
powers in such proceedings and thereby tended to deprive
employees of their statutory rights in violation of Section
8(aX)() of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent did not engage in other conduct
violative of Section 8(aX3) of the Act, as alleged in the
complaint.
The Objections in Case 12-RC-4836
At the hearing the Petitioner withdrew its Objection 4,
leaving for determination Objections I and 2. Objection I
alleged coercion and intimidation of employees by the
Respondent through its agent, Johansen. The only evi-
dence submitted in support of that objection was the
refusal of Respondent to grant the request of Russo to
rescind his resignation until an election could be held, and
as I have found that the Respondent did not violate the Act
in that regard, I recommend that Objection I be overruled.
Having found that Respondent violated Section 8(a)(1)
of the Act by its conduct in refusing to permit the Board to
conduct the election scheduled for May 30, and as this
parallels the conduct set forth in Objection 2, I recommend
that Objection 2 be sustained and a second election be
directed.10
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER11
Respondent Grant's Home Furnishings, Inc., North
Palm Beach, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing, in the presence of employees, to permit the
Board to conduct an election on the date scheduled,
thereby impeding the Board's processes and depriving
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1312
GRANTS HOME FURNISHINGS, INC.
employees of their statutory rights to vote in a Board
scheduled election.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes and policies of the
Act:
(a) Post at its North Palm Beach, Florida, store, copies of
the attached notice marked "Appendix." '2 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by the Company's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges a violation of
Section 8(a)(3) of the Act.
IT IS ALSO RECOMMENDED that, in Case 12-RC-4836,
Objection 2 be sustained and that the election be set aside
and the case be remanded to the Regional Director for
Region 12 for the purpose of conducting a new election at
such time that he deems the circumstances permit a free
choice of bargaining representative.
12 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and we
have been ordered to post this notice.
The Act gives the employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT refuse to permit the Board to conduct
an election on the date scheduled, impede the Board's
processes, and deprive employees of their rights to vote
in a Board scheduled election.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights under Section 7 of the Act.
GRANT'S HOME
FURNISHINGS, INC.
1313