Hook Drugs, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1957

117 N.L.R.B. 846 (N.L.R.B. 1957)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:Hook Drugs , Inc.'and Local No. 725, Retail Clerks International
Association , AFL-CIO, Petitioner . Case No. 35-RC-1230. March
48,1957
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election,
executed December 12, 1955, an election was conducted on January
10 and 11, 1956, under the direction and supervision of the Regional
Director for the Ninth Region, among certain employees of the Em-
ployer. At the close of the election, a tally of ballots was furnished
each of the parties in accordance with the Board's Rules and Regu-
lations. The tally showed that out of approximately 423 eligible
voters, 349 valid votes were counted, of which 164 ballots were cast
for the Petitioner, 185 were cast against the Petitioner, 6 ballots were
challenged, and 5 ballots were declared void.
On January 18,1956, the Petitioner filed timely objections to conduct
affecting the results of the election. On December 19, 1956, the Re-
gional Director, after investigation, issued his report on the objections,
recommending that certain objections be sustained and that a new
election be directed. The Employer thereafter filed timely exceptions
to the Regional Director's report.
Upon the basis of the entire record in this case, the Board finds the
following : 1
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All employees employed at the Employer's retail drug store located
in the City of Indianapolis, Indiana, including fountain managers, and
all regular part-time employees, but excluding all extra employees,
pharmacists, assistant managers, managers, professional employees,
guards, and all supervisbrs.as defined in the Act.
1 The Employer's request for oral arguTnent is hereby denied as the report , the excep-
tions,'and brief , adequately reflect the issues and positions of the parties
117 NLRB No. 124.
1100K DRUGS, INC. 847
5. Objections:'
Objection No. 2 alleged that the manager of one of the Employer's
stores held individual interviews with a number of employees in which
he interrogated the employees as to their union affiliations, urged them
to vote against the Union, and unlawfully threatened them. The in-
vestigation revealed that sometime during the week preceding the
election, the Employer's personnel manager interviewed some 10 to
12 employees out of 29 eligible voters in 1 of the Employer's 28 stores.
These interviews were conducted at a desk of the store manager, lo-
cated on the prescription balcony which was in a location well traversed
by other employees in the normal course of their duties. The store
manager was also present at these interviews, and the employees were
called to these interviews by the store manager or by the employee
interviewed immediately prior thereto. From the investigation, it did
not appear apart from the matter considered herein, that the Em-
ployer's statements at these interviews exceeded the permissible limits
of free speech. However, in view of established Board policy 3 con-
cerning the coercive nature of this type of individual interviewing,
and in view of the Board's decision in the Gallaher, Drug case," the
Regional Director recommended that this objection be sustained.
The Employer contends in its exceptions that the present case is
distinguishable from prior cases in several aspects: (a) the interviews
were not held in an enclosed private area of management; (b) the
interviews were informal ; (c) the Union was not disparaged by man-
agement but instead the Employer's representatives stressed the exist-
ing benefits ; and (d) the employee was assured of his freedom of choice
because the election would be secret. The Employer therefore con-
tends that instead of applying the Gallaher Drug case, supra, the Board
should apply the Mall Tool Co. case 5 in which it did not find that the
interviews in question prevented an uncoerced election.
We find no merit in the Employer's exceptions. Although the
interviews here were not conducted in a private enclosure, they were
not held at the job site, as in the Mall case, supra. Furthermore, here,
2 Objection No., 1 alleged that on the payday immediately -preceding the election,,the
Employer granted a wage increase to numerous employees Objection No. 3 alleged that
a supervisor had seized a union card from an employee in the presence of other employees,
and objection No. 5 alleged generally that an uncoerced election had not taken place.
The Regional Director overruled these objections . As no exceptions were filed , we adopt
the Regional Director ' s ruling.
Economic Machinery Co, , 111 NLRB 947. Here the Board held that the technique of
calling employees into the employer ' s office individually to urge them to reject the union
is in'itself conduct calculated to interfere with the free choice in the election and that
this is so , regardless of the noncoercive nature of the remarks made ' See also Oregon
Frozen Foods Co., 113 NLRB 881, and Mrs . Baird's Bakeries , 114 NLRB 444 , Qualiton
Company , 115 NLRB 65, 66; Richards Container Corporation , 114 NLRB 1435, San Diego
Glass & Paint Company , 117 NLRB 59
4 The Gallaher Drug Co , 115 NLRB 1379 This case also involved a chain of retail
drug stores , the balloting was conducted in 27 stores and there was evidence of inter-
viewing by the manager in only 1 store
5 Mall Tool Company, 112 NLRB 1313
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each employee was called individually to the manager's desk either by
the latter or by the employee immediately preceding; in addition, both
the personnel manager and the store manager were present at the
interviews. Although it appears that only about one-half the
employees in this one store were individually interviewed, neverthe-
less, as we find that a substantial number of employees concerned were
subjected to such interviews, we adopt the Regional Director's recom-
mendation to sustain this objection.
In objection No. 4 Petitioner contended that after closing the polls
at one store and arriving at the next store the Board agent discovered
that he had left an unsealed package of blank ballots unguarded in
the preceding store and that this same Board agent had also left a
ballot box unguarded while he and the observers were having coffee.6
The investigation discloses that after closing the polls at the West
Washington Street store, the election team, consisting of the Board
agent and observers for the Petitioner and the Employer, walked to
the East Washington Street store, a distance of some 3blocks, when
the Board agent discovered that he had left an unsealed package of
blank ballots at the preceding store; that thereupon a porter was sent
to pick up the missing ballots; that the ballots were out of the control
of the Board agent some 20 minutes; that as the blank ballots had not
been counted, it was not possible to determine the number of ballots in
the unsealed package. There was no evidence that any ballots had
been removed or that improper voting had occurred or that any per-
son had attempted to put more than one ballot in the ballot box.
The number of ballots cast in the election checked exactly with the
number of eligible employees on the payroll who voted in the election.
Notwithstanding the absence of any evidence of impropriety, the
Regional Director, relying on the Board's decision in the New York
Telephone Company case 7 and Tidelands Marine Services Inc.8 rec-
ommended that, because there existed the possibility of irregularity,
this objection should be sustained.
We agree with the Regional Director and affirm our ruling in the
cases upon which he relies. We find that the failure of the Board
agent to seal the package of unmarked envelopes and his leaving the
package unguarded during a time when access to the box was possible,
constitutes a'serious irregularity in the conduct of the election, suffi-
cient to raise doubts concerning the integrity and secrecy of the elec-
"As to this latter incident , the Regional Director found on the basis of the investigation
that no material or substantial issue was raised As no exceptions were taken to this
finding , we adopt the Regional Director 's conclusion and overrule this part of the
objection
4109 NLRB 788
8116 NLRB 1222
E. I. DU PONT DE NEMOURS AND COMPANY 849
tion. We shall therefore adopt the Regional Director's recommenda-
tion and order that the election be set aside and a new election be
directed.
[The Board set aside the election held on January 10 and 11, 1956.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
E. I. du Pont de Nemours and Company (Pompton Lakes Works)
and District No. 161, International Association of Machinists,
AFL-CIO, Petitioner . Case No. 2-RC-8298. March 28, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before I. L. Broadwin, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 Rodgers and Bean].
Upon the entire record in this case, the Board finds:
1. The Employer is -engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.:,
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to sever a unit of machinists and their ap-
prentices from an existing production and maintenance unit. As
an alternative choice, it would sever the entire machine shop depart-
ment; or any part thereof. The Employer and the Intervenor moved
to dismiss the petition on the ground that none of the proposed units
is appropriate.
The Employer is engaged in the manufacture of blasting caps and
other explosive products at Pompton Lakes, New Jersey. The plant
occupies almost 300 acres and its operations, because of the danger in-
volved in loading explosives, are scattered through more than 200
' Employees Council Plan Association , the intervenor herein, has been the certified
bargaining representative for a production and maintenance unit at the Pompton Lakes
plant since 1946
117 NLRB No. 126.
423784-57-vol 117-55