Oppenheim Collins & Co.

National Labor Relations Board - Board Decisions

Jun 8, 1954

108 N.L.R.B. 1257 (N.L.R.B. 1954)

OPPENHEIM COLLINS & CO. 1257
OPPENHEIM COLLINS & CO.and RETAIL CLERKS UNION,
LOCAL 212, AFL, Petitioner. Case No. 3-RC-1268. June 8,
1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS
On January 7, 1954, pursuant to a Decision and Direction of
Election issued herein on November 27, 1953,' an election by
secret ballot was conducted under the direction and supervision
of the Regional Director for the Third Region among the em-
ployees of the Employer in the unit found appropriate by the
Board. Upon completion of the election, the parties were fur-
nished with a tally of ballots which showed that of approxi-
mately 240 eligible voters, 93 voted for and 109 against the
Petitioner. There were also 10 challenged ballots, a number
insufficient to affect the results of the election.
On January 14, 1954, the Petitioner filed timely objections
to conduct allegedly affecting the results of the election. In
accordance with the Board's Rules and Regulations, the Regional
Director investigated the objections and, on March 16, 1954,
issued and duly served upon the parties his report on objec-
tions, in which he recommended that the Board direct a hearing
on issues disclosed by the investigation. Thereafter, the Em-
ployer filed timely exceptions to the Regional Director's
report, and a supporting brief. No exceptions were filed by
the Petitioner.
In its objections, the Petitioner alleges that about 40 in-
eligible employees, excluded as "on call" or "casual em-
ployees" from the unit heretofore found appropriate, were
improperly permitted to vote. The Regional Director's report
discloses that on January 4, 1954, 3 days before the election,
the Employer and Petitioner held a preelection meeting in
order to check the Employer's payroll list for eligibility. Upon
the conclusion of the conference both parties certified the
payroll list as being correct, except for 6 employees who,
the Petitioner contended, were supervisors . Following the pay-
roll check and before the election, the Petitioner complained
to a representative of the Regional Director that the list con-
tained the names of individuals who were ineligible to vote.
However, no evidence was submitted by the Petitioner to support
this contention. The election was conducted on January 7, 1954,
and both parties had observers present at the polling place
whose rights and duties were carefully explained by the Board
agent. The Petitioner challenged the eligibility of only the
six employees whom it contended were supervisors. As the
Petitioner's objection is based upon the contention that in-
eligible voters may have voted in the election, such objection
is in the nature of a post-election challenge which, under the
'Not reported in printed volumes of Board Decisions and Orders
108 NLRB No. 187.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established practice of the Board, is not entitled to considera-
tion. Accordingly, we hereby overrule this objection.2
In its last objections ,' the Petitioner alleged that the Em-
ployer interfered with the election by making coercive state-
ments at meetings of its employees .4 Although these statements
were in opposition to the Petitioner , the Regional Director
found that they constituted privileged speech under Section
8 (c) of the Act. We adopt this finding.
The Regional Director states that during the course of his
investigation some evidence was adduced to the effect that the
Employer's last speech to its employees on company time and
property was made at about 5 p. m. on January 6, 1954, 1 day
preceding the election, scheduled for 10:30 a. m. on January 7,
and therefore was in violation of the rule laid down in the
Peerless Plywood Company case ., The Regional Directordoes
not indicate in his report the nature and extent of such evidence.
The Employer, on the other hand, maintains that the last mass
meeting of its employees on company time and property was
held on January 5, 2 days before the election. In its exceptions,
the Employer has submitted convincing evidence , some of
which appears to be incontrovertible, which proves to our
satisfaction that the meeting in question was in fact held on
January 5, 1954, or 2 days before the election. We perceive
no reason in these circumstances for directing a hearing on
this issue. Accordingly, we find that the Petitioner's objections
do not raise substantial and material issues with respect to
the conduct of the election and they are hereby overruled.6
As the Petitioner failed to receive a majority of the ballots
cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was
not cast for the Petitioner, Retail Clerks Union, Local 212,
AFL, and that this Petitioner is not the exclusive representa-
tive of the employees at the Employer's Buffalo, New York,
retail department store, in the unit heretofore found by the
Board to be appropriate.]
Member Murdock , dissepting:
I dissent from the majority ' s refusal to direct a hearing ist
this case , as recommended by the Regional Director , to deter-
2 Plainfield Courier-News Co., 97 NLRB 260.
3 Although the Petitioner also made several other objections to the conduct of the election,
it did not submit any affirmative evidence in support thereof. Accordingly, we hereby over-
rule these objections. Vulcan Tin Can Company, 97 NLRB 180 at 183; Cities Service Oil Co.
of Pennsylvania, 77 NLRB 853 at 857.
4For about 5 weeks before the election , the Employer assembled its employees at a series
of meetings held on company time and property , and discussed the impending representation
election.
5107 NLRB 427.
6The Employer contends in its brief that the Regional Director and his agents were
antagonistic and hostile to the Employer and that this attitude is apparent on the face of the
report on objections. We find nothing in the report on objections or the record which is before
us to support this allegation.
OPPENHEIM COLLINS & CO. 1259
mine whether or not the Employer delivered a preelection
speech to its employees on company time within 24 hours of
the election . That such a speech was made is not disputed.
The disputed and crucial issue of fact is whether it was made
on January 5, 1954 , 2 days before the election , as contended
by the Employer , or on January 6 at about 5 p. m., less than
24 hours before the election , as asserted by the Union. The
Regional Director reported that "Evidence was obtained during
the investigation which tends to support the contentions of
both parties ." Because of this conflict in evidence , which he
did not presume to resolve , the Regional Director, in accord-
ance with the practice properly followed by Board agents in
such cases , recommended a hearing for that purpose . The Em-
ployer excepted to this recommendation , strongly contending
that no hearing should be held in view of the overwhelming
evidence it has submitted to the Board in support of its con-
tention.
The majority predicates its decision upon the fact that the
Employer , in its exceptions , submitted certain material
characterized by the majority as "convincing evidence, some
of which appears to be incontrovertible " indicating that the
meeting in question was in fact held on January 5, 1954, as
contended by the Employer . The Employer admits in its
brief in support of exceptions that most of this so - called
"convincing" and "incontrovertible" "evidence " attached
to its exceptions was not submitted to the Regional Director
and therefore was not before him when he prepared his re-
port on objections . According to the Employer it submitted to
the Regional Director affidavits of seven employees stating
the last employee meeting held by the Employer before the
election was on January 5, 1954 ; plus the diary of Store
Manager Ferguson which , it claims, showed this to be the
fact . The additional material submitted by the Employer in its
brief to the Board consists of an affidavit in petition form
to the same effect circulated by management and signed by
110 persons purportedly employees of the Employer. Thus,
neither the Regional Director nor the Board has had an oppor-
tunity to weigh this additional evidence against the contradictory
evidence which the Regional Director reported he obtained
during his investigation of the objections . Nevertheless, the
majority categorically concludes that the documents appended
to the Employer ' s exceptions constitutes "convincing" and
"incontrovertible " proof that the meeting in question was
in fact held on January 5 and not on January 6.
To my knowledge the Board has never before decided a case
involving a disputed issue of fact solely on the basis of "evi-
dence" submitted by one of the interested parties in a brief
and exceptions to the Board . Yet that is exactly what the
majority has done in this case . The only evidence on this
issue before the Board on which it has made its finding of
fact is that submitted by the Employer with its exceptions to
the Regional Director ' s report. I am of the opinion that the
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority's decision, predicated as it is on such "evidence,"
does not accord due process of law to the Union in this case.
Furthermore, even were I to concede that the affidavits and
other material submitted by the Employer in its exceptions
may be considered as probative evidence in this case, in which
the facts are in dispute and the Regional Director reports
there is evidence to support both contentions, I would not find
it so "convincing" and "incontrovertible" as to render a
hearing unnecessary. Before deciding the disputed issue of
fact on the basis of these affidavits, I believe a hearing should
be held to determine (1) the circumstance under which the
employees signed these affidavits and (2) the nature and extent
of the evidence in the possession of the Regional Director
which supports a conclusion contrary to that contained in the
affidavits. As to the other "evidence" submitted by the Em-
ployer, I consider the diary of Store Manager Ferguson, whose
part in this case is that of an interested party, less than
conclusive proof of the Employer's allegation. The so-called
evidence is not only questionable but is, I submit, a poor
substitute for evidence obtained at a formal hearing in which
all parties participate and are afforded full opportunity to be
heard, to examine and cross - examine witnesses under oath,
and to introduce evidence pertinent to the issues.
It has been the Board's general policy for some years (with
rare exceptions ) not to resolve disputed issues of material
fact in objections cases until after a formal hearing and a
hearing officer's report resolving credibility. The Regional
Director here obviously acted on the basis of that policy when
he reported conflicting evidence and recommended a hearing.
While it might have been better to have informed the Board in
more detail as to the nature of the conflicting evidence his
investigation disclosed on the basis of which he recommended
a hearing , I am unwilling to assume that there was not a real
and substantial conflict. I believe that the majority's decision
in this case will be interpreted by the Board's Regional Di-
rectors as an indication they should in the future weight con-
flicting evidence, make credibility findings, and decide issues
of fact in objections cases rather than recommend a hearing
for the purpose in accordance with prior practice. I suggest
that were such a policy followed in objection cases too much
decisional responsibility would be vested in agents of the
Board and it would result in prolonged investigations of factual
issues which can best and most fairly be resolved by the
Board after a hearing in which all interested parties have an
opportunity to participate and present evidence in support of
their contentions and to examine and cross - examine witnesses
under oath.
For all the foregoing reasons, I strongly disagree with the
majority's decision in this case and would direct a hearing,
as recommended by the Regional Director, to resolve the issue
of fact as to whether or not the employee meeting in question
was held within 24 hours of the election.