Kresge-Newark, Inc.

National Labor Relations Board - Board Decisions

May 23, 1955

112 N.L.R.B. 869 (N.L.R.B. 1955)

KRESGE-NEWARK, INC. 869
charitable donations their contributions for the DAV identification.
tags. Furthermore, it seems improper to conclude, as the majority
herein apparently does, that money donated in the spirit of charity
becomes the reward of a commercial transaction upon its receipt.
Thus, the majority's reliance upon the California Institute of Tech-.
Th.ology case, and other similar cases, is misplaced, because the money
received by the institutions in those cases was the product of tradi-
tional sale for value transactions. Accordingly, we cannot agree that
funds the Employer expends to solicit charity or funds it receives as
charitable contributions should be considered for the purpose of de-
terming whether the Employer's financial operations meet the Board's
dollar-volume criteria for assertion of its jurisdiction.
We do not agree that the policies of the Act will be effectuated by
Board exercise of its jurisdiction over the operations of the Employer.
Kresge-Newark, Inc. and Hotel and Restaurant Employees and
Bartenders International Union , AFL, Petitioner . Case No.
2-RC-7121. May 23, 1955
DECISION AND DIRECTION
On January 18,1955, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Second
Region among the employees in the agreed appropriate unit. Follow-
ing the election, the Regional Director served on the parties a tally of
ballots which showed that of approximately 117 eligible voters, 109
cast ballots, of which 54 were cast for the Petitioner, 51 were cast
against the Petitioner, and 3 were challenged. One void ballot was cast.
The challenged ballots were sufficient in number to affect the results of
the election.
On January 25, 1955, the Employer filed timely objections to the
conduct of the election. In accordance with the Rules and Regula-
tions of the Board, the Regional Director conducted an investigation,
and on March 25, 1955, issued and duly served on the parties his re-
port on challenged ballots and report on objections in which he rec-
ommended that the objections be overruled, and that the challenges be
overruled and the impounded ballots opened and counted. On April
11, 1955, the Employer filed exceptions to the report on objections;
no exceptions were filed to the report on challenged ballots.
The Board has reviewed the stipulation of the parties, the objections,
the Regional Director's report on challenged ballots and report on
objections, and the Employer's exceptions. Upon the entire record in
the case, the Board makes the following findings of fact :
112 NLRB No. 112.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 purposes of collective bargaining within the meaning of
Section 9 (b) of the Act : All employees in the seventh floor restaurant,
kitchen, basement luncheonette, and coworkers' tenth floor cafeteria
of the Employer's department store located in Newark, New Jersey,
excluding cashiers, hostesses, chefs, clerical employees, department
managers, guards, watchmen, professional employees, and supervisors
as defined in the Act.
5. The Employer, in its objections, alleges that the Regional Di-
rector erred in refusing to send mail ballots to eligible voters who
were ill and in the hospital at the time of the election. The Regional
Director's report discloses that the Employer's request for mail bal-
loting of employees who were off sick was made after the stipulation
had been signed. The Regional Director informed the Employer that
its request would be granted only if the Petitioner agreed, because the
stipulation provided a time and place for balloting and contained no
provision for mail balloting. When the Petitioner refused to agree,
the Regional Director denied the Employer's request, and gave the
Employer an opportunity to withdraw from the stipulation. The
Employer, however, chose to proceed with the election.' Under these
circumstances, we find, contrary to the Employer's contentions in its
exceptions, that the Regional Director's action was proper. As the
manner in which an election is conducted is within the discretion
of the Regional Director, and as no abuse of discretion has been shown
here, the exception is overruled.2
The Employer also alleges that one employee was given a marked
ballot. During the investigation this employee testified that she had
been given a ballot already marked with a cross in the "yes" box, that
she then drew a line through that cross, marked a cross in the "no" box,
folded the ballot, and deposited it in the ballot box. The Regional
Director reported that the number of ballots cast coincided exactly
with the number of names checked off the eligibility list as having
1 Eleven employees were shown on the payroll used for voting eligibility as being ill ;
two of these actually appealed and voted.
2 See Johnson Transport Company, 106 NLRB 1105
KRESGE-NEWARK, INC. 871
voted; and all ballots were marked either "yes" or "no" except for one
void ballot. The void ballot had no cross marked on it but had a
single line drawn through the "yes" box and the word "no" written in
the "no" box. This void ballot was shown to the witness, but she
stated that it was not the ballot she had received and voted. The
Regional Director then concluded that the employee was not credible,
and recommended that the objection be overruled. The Employer re-
quests a hearing to determine the truth or falsity of this objection.
We are satisfied, however, that the facts do not support this objection,
and it is therefore overruled.
The Employer also objects on the ground that a representative of
the Petitioner is alleged to have stated at an employee meeting that
if the Petitioner did not win the election, the Employer would lay off
all colored employees and the only way to save their jobs was to vote
for the Petitioner. The Regional Director found no evidence that
any union official threatened loss of employment, and recommended
that the objection be overruled. The Employer's exception requests a
hearing to determine the truth or falsity of the objection. We find,
however, that such a statement, even if made by a representative of
the Petitioner, did not constitute a threat of a reprisal which it was
within the power of the Petitioner to take thus preventing the em-
ployees from exercising a free choice in the election.' The statement
constituted at most an accusation against the Employer in the nature
of campaign propaganda which the employees were capable of evaluat-
ing in choosing their bargaining representative .4
Accordingly, we find that the Employer's objections do not raise
substantial or material factual issues with respect to the conduct of
the election. The exceptions are therefore overruled.
As no exceptions have been taken to the Regional Director's recom-
mendation that the challenges be overruled, and as the three challenged
ballots were sufficient in number to affect the results of the election,
we hereby direct that the challenged ballots be opened and counted.
[The Board directed that the Regional Director for the Second
Region shall, within 10 days from the date of this Direction, open
and count these ballots and serve upon the parties a supplemental tally
of ballots.]
a Cf Caroline Poultry Farms, Inc, 104 NLRB 255.
d After the period for filing objections had closed, the Employer raised an additional and
different objection pertaining to electioneering in the immediate vicinity of the voting
area we make no finding on the merits of this objection, but overrule the Employer's
exception to the Regional Director's recommendation that the objection be overruled, for
the reason that it was not timely presented. Herpolshetmer Company, 103 NLRB 413.