May, Stern and Co.

National Labor Relations Board - Board Decisions

Oct 22, 1957

119 N.L.R.B. 84 (N.L.R.B. 1957)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attributes this divergency to the request of the Employer's general
manager the day before the election that the election be held on com-
pany property in the cafeteria, and that the formerly scheduled hours
be changed. It was agreed between all the parties that there would
be no voting during the lunch hour, and employees were released to
vote during company time. We find no merit in this objection.
Objection 18, by the Employer, alleges interference, restraint, and
coercion by the Intervenor in circulating notices of its meeting an-
nouncing that attendance at the meetings entitled one to a ticket which
was a chance on three prizes it Was giving away at a meeting at which
one had to be present to win. In view of the fact that no evidence
was submitted showing that the offer of prizes was contingent on
how employees voted in the election or the results of the election,
we find no merit in the Employer's objection.
We have overruled the Employer's objections to the election and
as the Intervenor has received a majority of the valid votes cast in the
election, we shall certify the Intervenor as the representative of the
employees involved.
[The Board certified Cannery, Citrus Workers, Drivers, Warehouse-
men and Allied Employees Local 60, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-
CIO, as the designated collective-bargaining representative of the
employees in the unit heretofore found appropriate.]
MEMBERS RoDGERS and JENKINS took no part in the consideration
of the above Second Supplemental Decision and Certification.
May, Stern and Company and Retail Clerks International Asso-
ciation, Local 1365, AFL-CIO, Petitioner. Case No. 6-RC-1956.
October 22,1957
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election exe-
cuted on June 3, 1957, an election by secret ballot was conducted on
June 11, 1957, under the direction and supervision of the Regional
Director for the Sixth Region of the National Labor Relations Board,
among the employees in the stipulated unit. Following the election,
the Regional Director issued and served on the parties a tally of
ballots, which shows that all 13 eligible voters cast valid ballots, of
which 7 were cast for, and 6 against, the Petitioner. There were no
void or challenged ballots.
On June 18, 1957, the Employer filed timely objections to conduct
which it alleged affected the results of the election. After an investi-
119 NLRB No. 12.
MAY, STERN AND COMPANY 85
gation, the Regional Director issued a report on objections in which
he recommended that the objections be overruled. Thereafter, the
Employer filed timely exceptions to the Regional Director's report.
The Board 1 has considered the exceptions, and the entire record
in this case, and finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
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 at the Employer's store
in New Kensington, Pennsylvania, excluding guards, professional
employees, and supervisors as defined in the Act.
5. The Employer alleges in its objections that the Petitioner,
through various persons acting in its behalf, intimidated voters by
threats of physical violence to certain individual employees and mem-
bers of their families, unless the employees voted for the Petitioner.
Upon investigation, the Regional Director found that none of the
three employees who the Employer alleged had been threatened, in
fact had been threatened or coerced in any manner. He found that
1 employee, who allegedly received 2 anonymous threatening tele-
phone calls 2 days before the election, actually received only 1 innocu-
ous call on June 9.2 As to the second employee, the Regional Director
found that she had received no telephone calls but on an undeter-
mined date before the election, employees Blythe and McAnninch
had urged her to join the Petitioner, informing her that she had no
choice as she would be better off to join willingly at first than to be
forced to join later. The Regional Director also found that they
told her that if she failed to join, they would not assist her later if
she "got into trouble." With respect to the third employee, the Re-
gional Director reported that there was no evidence whatever of
telephoned threats. He found, however, as in the case of the second
employee, that Blythe and McAnninch, 2 weeks before the election,
had solicited her to join the Petitioner and likewise told her that if
she did not join the Petitioner willingly, they would not "take care
of her" if she later encountered difficulty on the job.
The Regional Director found that Blythe and McAnninch were
rank-and-file employees and not agents of the Petitioner, although
'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 Bean and Jenkins].
2 The caller stated, "Don't forget to play 249 on Tuesday."
S6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.McAnninch, who had been referred to as an "acting steward," handled
some of the Petitioner's authorization cards and "kept in touch" with
the Petitioner's organizer during the organizational drive. He re-
ported that Blythe and McAnninch denied making any threats, al-
though both admitted that they told employees that if the Petitioner
obtained an agreement containing a union-shop clause, all employees
would be required to join the Petitioner. The Regional Director con-
cluded that the evidence failed to establish that the statements by the
two employees were made after the execution of the stipulation for cer-
tification upon consent election and thus, under Board policy, apart
from other considerations, could not be found to constitute inter-
ference with the election. He also concluded that, even if the state-
ments were made after the critical cutoff date for objections enunci-
ated in the TVoolworth, case,' they were not coercive nor constituted
threats of reprisal. The Regional Director further concluded that,
in any event, as Blythe and McAnninch were rank-and-file employees,
their statements could not be attributed to the Petitioner and recom-
mended that the Employer's objections be overruled in their entirety.
The Employer in its exceptions contends that the findings of the
Regional Director are contrary to the facts as set forth in the affidavits
supporting its objections, reiterating its assertion that employees were
intimidated by threats of physical harm to their persons and to their
families unless they voted for the Petitioner. Apart from this general
allegation, the Employer does not controvert the Regional Director's
finding that the Employer's affidavits do not reveal any physical
threats which can be attributed to any identifiable person or to any
agent of the Petitioner. In these circumstances, and as the Employer
has not proffered any evidence whatsoever to the Board in support
of its general allegation, we adopt, apart from any other considera-
tions, the Regional Director's findings and overrule this objection."
The Employer further contends in its exceptions that the state-
ments by Blythe and McAnninch amounted to coercion and threats
of economic reprisal, attributable to the Petitioner as both were active
organizers and agents of the Petitioner. Without determining the
question of agency this allegation raises, we find, in agreement with
the Regional Director, that the statements at the most were equivocal.
In our opinion, the statements were typical of propaganda frequently
utilized by union adherents in the course of organizational cam-
paigns, and did not interfere with the employees' freedom of choice.'
Moreover, even assuming arguendo that the statements made by the
two employees as well as those allegedly made by unidentified persons
constituted threats, there is no evidence that they were uttered after
6 F. W. Woolworth Co., 109 NLRB 1446.
`The Rackle Company of Texas, 117 NLRB 462. Cf. Tampa Crown Distributors, Inc.,
118 NLRB 1420.
6 See A. R. P. Products, Inc., 118 NLRB 1456, and cases cited therein.
BRAZEWAY, INC. 87
the stipulation for certification upon consent election was executed
by the parties, and they cannot, as found by the Regional Director,
under well-established Board policy, be considered as interference
with the election e
As we have found that the Employer's objections do not raise
material or substantial issues affecting the conduct of the election,
we hereby overrule them. Because the Petitioner has obtained a
majority of the valid votes cast, we shall certify it as the exclusive
representative of the employees in the stipulated unit.
{The Board certified Retail Clerks International Association, Local
1365, AFL-CIO, as the designated collective-bargaining representa-
tive of the employees in the appropriate unit described in paragraph
4 above.]
e Shoreline Enterprises of America , et at., 114 NLRB 716 ; and F. W. Woolworth Co.,
supra.
•Brazeway; Inc., Petitioner and International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO, and its Local 1193. Case No. 7-RM-182.
'October 23,1957
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 Charles H. Steere, hearing
officer.l 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Murdock and Rodgers].
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 International claims to represent employees of the Employer.
3. The International was . certified by the Board as the collective-
bargaining representative for the Employer's employees on November
7, 1955 .' Thereafter, the International, together with its Local 1193,
which was formed after the election to represent the Employer's
employees for the International, entered into bargaining negotiations
l International Union, United Automobile, Aircraft and Agricultural Implement Workers
of America, AFL-CIO, hereinafter referred to as the International , the only labor organiza-
ti0n named in the petition , and its Local 1193 did not appear at the hearing although
served with notice of hearing.
2 Case No. 7-RC-2903 ( not reported in volumes of Board Decisions and Orders).
119 NLRB No. 10.