L.S. Ayres and Co.

National Labor Relations Board - Board Decisions

Sep 6, 1973

205 N.L.R.B. 1074 (N.L.R.B. 1973)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ayr-Way Stores, a Division of L.S. Ayres and Compa-
ny 1 and Local Union No. 25, Retail Clerks Interna-
tional Association, AFL-CIO, Petitioner. Case
25-RC-4958
September 6, 1973
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was con-
ducted among the employees in the stipulated unit.
The tally of ballots furnished the parties showed that
of approximately 78 eligible voters, 74 cast valid bal-
lots, of which 28 were for, and 46 against, the Peti-
tioner. There was one challenged ballot, which was
insufficient to affect the results. Thereafter, the Peti-
tioner filed timely objections to conduct affecting the
results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Acting Regional
Director conducted an investigation and, on October
16, 1972, issued and served on the parties his Report
on Objections to Conduct Affecting Results of Elec-
tion and Recommendations to the Board, recom-
mending, inter alia, that the election be set aside on
the basis of the Employer's objectionable no-solicita-
tion rule or, alternatively, that a hearing be directed
to resolve certain issues raised by Petitioner's Objec-
tions 4(c) and 4(d). Thereafter, the Employer filed
timely exceptions to the Acting Regional Director's
report.
In its Decision and Order directing a hearing dated
February 14, 1973, as corrected by an order correcting
the Decision and Order directing a hearing dated Feb-
ruary 15, 1973, the Board found, inter alia, that the
Employer's no-solicitation rule, as enforced, did not
warrant setting aside the election, but that Petitioner's
Objections 4(c) and 4(d) raised issues which could
best be resolved by a hearing. Accordingly, the Board
ordered that a hearing be held before a duly designat-
ed Hearing Officer for the purpose of receiving evi-
dence to resolve the issues raised by Petitioner's
Objections 4(c) and 4(d).
Pursuant to the Board's order, a hearing was held
before Hearing Officer Frederick G. Winkler on
March 13, 1973. On May 11, 1973, the Hearing Offi-
1 At the hearing, the Employer indicated that Ayr-Way Stores is no longer
a division of L.S . Ayres and Company, but that both Ayr-Way Stores and
L.S. Ayres and Company are now subsidiaries of Associated Dry Goods,
Incorporated.
cer issued and served on the parties his Report on
Objections and Recommendations to the Board, rec-
ommending that (1) Petitioner's Objection 4(c) be sus-
tained, (2) the Regional Director be directed to set
aside the election and conduct a second election, and
(3) Petitioner's Objection 4(d) be dismissed. Thereaf-
ter, the Employer filed timely exceptions to the Hear-
ing Officer's report and a supporting brief, and the
Petitioner filed a brief in opposition to the Employer's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to the same three-member
panel which issued the February 14, 1973, Decision
and Order directing a hearing, as corrected.
The Board has considered Petitioner's Objections
4(c) and 4(d), the Hearing Officer's report, the
Employer's exceptions and brief, and the Petitioner's
brief, and hereby adopts the Hearing Officer's find-
ings,, conclusions, and recommendations.'
Accordingly,
It is hereby ordered that Petitioner's Objection 4(c)
be sustained, Petitioner's Objection 4(d) be dismissed,
the election conducted on April 28, 1972, be set aside
and a second election be held in the unit previously
stipulated by the parties to be appropriate.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
CHAIRMAN MILLER, dissenting:
I do not find the evidence persuasive that the Em-
ployer had any knowledge of the organizing campaign
at the time of its decision to effectuate a change in the
workweek.
The knowledge finding is based solely on testimony
that handbilling occurred on the day the decision was
made. But the witness who engaged in the handbilling
testified that it occurred in the evening hours, which
clearly would place it at a time after the decision had
been made.
2 In his report, the Hearing Officer inadvertently found that the
Employer's conduct violated Sec. 8(a)(1) of the Act. Since this case is a
representation proceeding rather than an unfair labor practice proceeding,
we have not relied upon this 8 (a)(1) finding in reaching our result herein.
3 In adopting the Hearing Officer's recommendations , we find it unneces-
sary to rely upon either the contents of certain handbills or the precise dates
on which they were distributed, since it is clear that some of Petitioner's
literature was, in fact , distributed on March 3. Moreover , unlike our dissent-
ing colleague , we are satisfied that the Employer had knowledge of
Petitioner's organizing campaign when the decision was reached on March
3 to implement the 5-day schedule. According to the credited and undenied
testimony of Petitioner 's executive officer, the March 3 handbilling at the
Kokomo store was part of a statewide handbilling effort commenced on that
date, and the Kokomo handbilling itself was started by Ron Gross at approx-
imately 10 a.m. In addition , the fact that the new schedule was not an-
nounced to the employees until after the representation petition had been
filed provides, in our view , an additional reason for finding that the schedule
change interfered with the election.
205 NLRB No. 111
AYR-WAY STORES 1075
Under these circumstances, and in view of the fact making it, I find no reason to believe that it was
that the record established ample business justifica- improperly motivated.
tion for the change and a long prior history of consid- Consequently, I would certify the results of the
eration by the Employer as to the desirability of election.