Piggly-Wiggly #011

National Labor Relations Board - Board Decisions

Dec 8, 1967

168 N.L.R.B. 792 (N.L.R.B. 1967)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Piggly-Wiggly #011 and #228 Eagle Food Centers,
Inc. and Retail Clerks Union , Local 98, Retail
Clerks International Association (AFL-CIO), Peti-
tioner . Case 38-RC-352
December 8, 1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS , AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election approved on March 30, 1967, an
election by secret ballot was conducted on April
13, 1967, under the direction and supervision of the
Regional Director for Region 13, among the em-
ployees in the stipulated unit described below. At
the conclusion of the election, the Regional
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation,
and on July 26, 1967, issued and duly served upon
the parties his Report on Challenged Ballots and
Objections, in which he recommended that the
Board sustain the Employer's objection 2 and direct
that a new election be held, and overrule Em-
ployer's objections 1, 2, 3, and 5. In addition, the
Regional Director sustained the Employer's chal-
lenge as to one employee and made no resolution as
to the remaining challenges since they were insuffi-
cient in number to affect the results of the election.'
The Petitioner filed timely exceptions, together
with a supporting brief, to the Regional Director's
report and recommendation with respect to the Em-
ployer's objection 2.
Upon the entire record in this case, including
Petitioner's exceptions and brief, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization
claimimg to represent certain employees of the Em-
ployer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. In accordiance with the stipulation of the
parties, we find that the following employees con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time employees
at the Piggly Wiggly Food Stores located at
1213 West Fourth Street, Sterling, Illinois, and
at 920 First Avenue, Rock Falls, Illinois, ex-
cluding meat department employees, store
managers. guards. professional employees, and
supervisors as defined in the Act.
5. Employer's objection 2 is as follows:
These representatives (Union) had in their pos-
session. in full view of all employees coming in
to vote and employees leaving after voting, a
sheet of paper on which notations were being
made and other writings being entered thereon.
The Regional Director's investigation as to ob-
jection 2 disclosed that representatives of the
Union, at all times during the voting period, sta-
tioned themselves 4 to 6 feet in front of each store.
One of the union representatives had a sheet of
paper in his hand and as employees passed him to
enter the store, he made notations. The Union ad-
mitted that its r' presentatives had in their hands a
list of eligible employees, and as employees entered
the store during the voting periods their presence
was noted on the list. This use of such a list the
Union informed the Regional Director "was neces-
sary because of the complication in the election
procedure which allowed employees of either store
to vote at either location."-'
The Regional Director, finding this conduct of
the union representative objectionable. states in his
Report:
... that under all the circumstances the Peti-
tioners' activity at each of the stores where it
admittedly ". . . checked off employees' names
as they entered the store for the purpose of
determining which employees had voted" con-
stituted a material and substantial departure
from permissible election activity. Petitioner's
representatives were open in their note taking.
as employees passed the stores. The Board's
policy, in the interest of free elections, of
prohibiting the keeping of any list, apart from
the official voting list. of persons who have
voted in a Board election, was enunciated in
the International Stamping, Inc., (97 NLRB
921) and Belk's Department Store of Savan-
nah, Georgia, Inc., (98 NLRB 280) ... deci-
sions. In A. D. Julliard and Co., (110 NLRB
2197, 2199) the Board commented on that pol-
icy and the fact that in these cases "it was
either affirmatively shown or could be inferred
from the circumstances, that the employees
knew that their names were being recorded by
In the absence of exceptions to the Regional Director's recommenda-
tions sustaining the challenge to employee Michael Brown's ballot and to
his recommendations that the Employer's objections 1, 3, 4, and 5 be
overruled, we adopt pro forma his recommendations.
2 The Petitioner in its brief alleges that the union representatives had an
"Excelsor" list (a list of eligible voter' names and addresses required by
Board rule to be furnished the Union and other interested parties
(Excelsior Underwear Inc., 156 NLRB 1236)) which was used by the
union representatives for the sole purpose of ascertaining whether em-
ployees who were off duty appeared at either of the stores and entered
such stores obviously for the purpose of voting . Further, Petitioner alleges
such list was used to ascertain the identity of off duty employees who
failed to appear at the store "during election hours and to contact such em-
ployees for the express purpose of urging them to vote in the election."
168 NLRB No. 101
PIGGLY-WIGGLY # 011 793
the Employer." In the opinion of the under-
signed. it can be inferred in the instant case that
at least some of the employees knew that their
names were being recorded. and the Peti-
tioner's position that "This procedure was
necessary because of the complication in the
election procedure which allowed employees
at either store to vote at either location" does
not justify or excuse the recordation of voters'
names, contrary to Board policy. Accordingly.
it is recommended that Objection No. 2 be
sustained.
We agree. In International Stamping Co., supra
at 922. we reiterated a preexisting policy pertaining
to the conduct of elections when we stated:
It has ... been the policy of the Board to
prohibit anyone from keeping any list of per-
sons who have voted, aside from the official
eligibility list used to check off the voters as
they receive their ballots.;
7 Thus, for example, NLRB Form 722, entitled " Instruction to Elec-
tion Observers" directs observers not to "keep a list of those who
have and those who have not voted.
Accordingly, we shall adopt the Regional
Director's recommendation as to Employer's objec-
tion 2 by setting aside the instant election and
directing a new one.
ORDER
It is hereby ordered that the election conducted
on April 13, 1967, be, and it hereby is, set aside.
[Direction of Second Election3 omitted from
publication.]
a An election eligibility list, containing the names and addresses of all
the eligible voters , must be filed by the Employer with the Regional
Director for Region 13 within 7 days after the date of this Decision and
Direction of Election . The Regional Director shall make the list available
to all parties to the election . No extension of time to file this fist shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed. Excelsior Underwear
Inc., 156 NLRB 1236.