Hook Drugs, Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1958

119 N.L.R.B. 1502 (N.L.R.B. 1958)

12 DECISI0;9OF -NATIONAL LABOR RELATIONS BOARD
1-1 1
tion , of footnote 5 of the Intermediate Report which states that "the finding that
Lewis exceeded the permissible in indicating Respondent's opposition to the Union
is based upon the composite and correlated evidence rather than upon definite
specific testimony .. 112
Examination and appraisal of all elements of the evidence taken together, and
not merely segments thereof considered singly and apart, convinces the Trial
Examiner that Lewis made (m substance and effect) the threats attributed to him
by, among others, Juanita Bennett, Henrietta Harrell and Edith Young. The total-
ity of the evidence, including the interrelationship of the testimony of witnesses,
together with inherent probabilities, the bearing and delivery of witnesses and the
apparent temperament of witnesses , reveals a mosaic or pattern (see Universal
Camera Corp v N L R B, 340 U S 474, and Shell Oil Co v N L. R. B,
196 F. 2d 637, 639 (C A 5) in which Lewis threatened to close the plant and
threatened to discharge and replace employees with machinery, rather than deal
with the Union As indicated in the original Intermediate Report the Trial Exam-
iner's findings that Lewis' speech violated the Act are based upon the record thus
considered (are based upon the entire record rather than isolated segments thereof)
and that is what the Trial Examiner meant by the portion of footnote 5 which the
Board evidently finds faulty Perhaps the Trial Examiner should have used the
terms "congeries" or "totality" of the evidence or the record as a whole (see
N L. R B v Link-Belt Company, 311 U S 584, 588, and N. L R. B v Lunder
Shoe Corp, 211 F. 2d 284, 288 (C. A. 1), instead of "composite and correlated
evidence." However, the latter terms do not appear to be inept or misleading
See Canyon Corporation v N. L. R. B, 128 F. 2d 953, 955 (C. A. 8), and
E. Anthony & Sons, Inc v N. L. R B , 163 F 2d 22 (C A, D. C ).
In the opinion of the Trial Examiner avoidance of express and direct statements
impugning the veracity of witnesses is consistent with the aims of the Act and such
statements should not be made, except when required . In the instant matter the
Trial )Examiner believes such statements not required However, apparently the
Board believes otherwise and desires such statements Accordingly, the Trial
-Examiner now states that he considers the testimony attributing to Lewis the
threats involved herein more reliable than the testimony that Lewis did not make
such threats. The reasons or basis for such resolutions are stated in the original
Intermediate Report, namely, personal demeanor, conduct and attitude of wit-
nesses, careful evaluation and weighing of evidence, and inherent probability.
As supplemented by the information contained herein, the Intermediate Report
issued on April 5, 1957, is hereby reissued
'Footnote 5 in its entirety reads as follows The finding that Lewis exceeded the
permissible in indicating Respondent's opposition to the Union is based upon the composite
and correlated evidence rather than upon definite specific testimony and no finding is made
herein as to the precise words used by Lewis For instance, the Trial Examiner is not
resolving the issue of whether Lewis said he was a millionaire or said it was a million
dollar operation Regardless of the exact words used, the Trial Examiner believes and
finds that the evidence reveals that Lewis did indicate that Respondent was a potent
organization whose opposition was to be avoided and did threaten employees with re-
prisals if they continued to affiliate with or support the Union
Hook Drugs, Inc. and Local No. 725, Retail Clerks International
Association, AFL-CIO, Petitioner. Case No. 35-RC-1230.
February 7, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision of the Board , issued March 28, 1957,' a
second election was conducted on April 23 and 24, 1957, resulting in a
vote of 178 for, and 124 against, the Petitioner On May 1 the Em-
1 117 NLRB 846
119 NLRB No. 193.
HOOK DRUGS,' INC. 1503
plover ' filed, objections to this election . On November 8, 1957,, the
Regional Director issued his report on objections , overruling the
Employer's objections , and on November 18 the Employer filed its
exceptions to the report.
Objection No. 1: 2 The Employer objected ( a) to the language,
italicized below, contained in a leaflet circulated by the Petitioner
purporting to describe the Board 's decision setting the first election
aside and ( b) for failure of Petitioner to mention the second ground
for setting the election aside , namely, the fact that the Board agent
left unguarded a package of blank ballots . As to (a) the Employer
contended that the italicized statement deliberately misrepresented
the Board 's decision , in that it gives the impression the Board held
the manager "threatened" employees whereas in fact the Board de-
cision refers only to the "coercive nature of this type of individual
interviewing ." As to (b) it urged that by omitting from the leaflet
the second ground, as indicated above, the Petitioner further mis-
represented the decision . The leaflet read in part as follows :
We felt that the company or company officials frightened the
employees in some way . Under the law we have the right to ask
the Government Agency, (National Labor Relations Board) to
investigate . The Board did so and found that the manager of
one of the stores held meetings with each of his employees and
asked them questions about the Union. He threatened them and
told them,to vote against the Union.
It was also revealed that just before the election that the Hook
personnel manager had a talk with ten or twelve employees in
one of the stores and as a result the Board has ordered another
SECRET ELECTION to be held within thirty ( 30) days from
March 28 , 1957. We will notify you of the exact date.
The Regional Director found that this leaflet was known to the
Employer some 5 days before the election and that the latter did
nothing to refute it . He concluded that the term "threatened" as
used in the leaflet should not be held to a broader application than the
term "coercive" as used in the Board 's decision and that the employees
herein were able correctly to evaluate for themselves the full meaning
of the language in the leaflet . He therefore recommended that this
objection be overruled.
We agree with the Regional Director that the above objection is
without merit . The rule the Board applies in situations such as is
presented here is that "absent threats or other elements of intimida-
2In addition to the objections considered herein, the Regional Director recommended
that the following objections be overruled: (1) Confusion resulting from the information
concerning the eligibility date ; (2) personal visits and telephone calls to the homes of
employees by representatives of Petitioner; (3) activities of Petitioner's official election
observers . As no exceptions were taken to the Regional Director ' s conclusions as to these
objections, we adopt the Regional Director 's recommendation , that they be overruled.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion we will not undertake to censor or police union campaigns or
consider the truth or falsity of official union utterances, unless the
ability of employees to evaluate such utterances has been so impaired
by the use of forged campaign material or other campaign trickery
that the uncoerced desires of the employees cannot be determined in
the election." 3 While we do not condone any misrepresentation of
the language or import of a Board decision, the leaflet does not pur-
port to quote the Board directly and the Employer was not precluded
by any circumstances from publishing a correction.
0 b jection No. 6: 4 This objection stated that :
By reason of these above acts and other acts of misrepresentation,
coercion, intimidation, improper influence and improper observa-
tion a fair and secret election was not held.
In support of this objection, the Employer presented a leaflet cir-
culated by the Petitioner comparing wage rates of the Employer with
stores having contracts with Petitioner, the Employer claiming a
deliberate misstatement from 8 to 20 cents. In this leaflet the Peti-
tioner reprinted a copy of a letter of an employee of the Employer
urging fellow workers to join the union. Ina postscript to this letter,
Petitioner stated :
This is just one of the many letters we have received. We might
add that the hourly rate figured less than 73 cents for a. full time
employee with 2 years service. This same person working that
long in one of the organized stores would have made $1.68 per
hour.
The investigation revealed that there are substantial differences in
wage rates paid by the Employer and wage rates plus overtime com-
pensation paid to organized employees in the area. The wage struc-
ture of the Employer does not provide for overtime rates. The
Regional Director concluded that there appears to be no misrepre-
sentation in the Petitioner's assertion that the Employer's hourly rate
is less than 73 cents. He also found that the Petitioner's quoted rate
of $1.68 would be the rate paid to a clerk with 30 months' service
rather than for 2 years' service as stated in the leaflet, and that the cor-
rect rate for 2 years' service should have been $1.59. However, as the
Petitioner stated the quoted rate of $1.68 was the least such employee
would earn, had she been a 2-year worker and paid at the contract
rate plus overtime, there was in fact no deliberate misrepresentation.
Furthermore, he concluded that even if there was a misrepresentation,
it was not of such nature as to warrant setting the election aside.
8 3forck & Co., Inc., 104 NLRB 991; Kennametal, Inc., 119 NLRB 1236.
4 Tile Regional Director in his report raised the question concerning the specificity,
timeliness, and service of this objection. In view of the Board's decision in Poinsett
Lumber and Manufacturing Company, 116 NLRB 1732, this objection appears to be timely-
PACIFIC TRANSPORT LINES, INC. 1505,
The Board has held that mere falsity alone does not warrant setting
an election aside, knowledge of the true facts must not be readily-
available to the employees or the other party and the misrepresenta-
tion must be deliberate.' In the instant case, the wage rate quoted
was that of the four major chain stores in the community organized
by the Petitioner. The employees therefore may have been presumed
to have access to such wage rate information.' We therefore adopt
the Regional Director's recommendation that this objection be
overruled'
As we have overruled the Employer's objections and as the Peti-
tioner has received a majority of the valid votes cast, we shall certify
the Petitioner as the collective-bargaining representative of the
employees in the appropriate unit.
[The Board certified Local No. 725, Retail Clerks International
Association, AFL-CIO, as the collective-bargaining representative of
the employees of the Employer's retail. drugstores in Indianapolis,,
Indiana.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
c Alli.s-Chalmers Manufacturing Co., 117 NLRB 744; Wheelerweld Division, C. H.
Wheeler Manufacturing Company , 118 NLRB 698 ; Kennametal, Inc., supra.
B Vellumoid Company, 118 NLRB 1431.
7 The Employer 's request for oral argument is hereby denied as the Regional Director's
report , the briefs and the exceptions adequately present the issues and the positions of
the parties.
Pacific Transport Lines , Inc. and Ernest Brown
Marine Cooks and Stewards , AFL-CIO and Ernest Brown..
Cases Nos. 20-CA-1185 and 20-CB-464. February 10, 1958
DECISION AND ORDER
On January 18, 1957, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled consolidated proceedings,)
finding that the Respondents had not engaged in and were not en-
gaging in any unfair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Respondent Company filed exceptions to the Intermediate
Report and supporting briefs; the Charging Party filed exceptions
1 We reaffirm our refusal to sever and hold separate hearings in each of these cases,
Cambria Clay Products Company , 106 NLRB 267, footnote 2.
119 NLRB No. 186.
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