Quick Shop Markets, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1972

200 N.L.R.B. 830 (N.L.R.B. 1972)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quick Shop Markets , Inc and Retail Store Employ-
ees' Union Local No 655, a/w Retail Clerks
International Association, AFL-CIO, Petitioner
Case 14-RC-6783
December 11, 1972
DECISION ON REVIEW, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 14 of the
National Labor Relations Board, an election was
conducted under his supervision on September 29,
1971, among the employees in the unit found
appropriate 1 At the conclusion of the election, the
parties were furnished with a tally of ballots which
showed that of approximately 209 eligible voters, 192
cast ballots, of which 99 were for, and 90 were
against, Petitioner, with 3 challenged ballots The
challenged ballots are not sufficient to affect the
results of the election Thereafter, the Employer filed
timely objections to the results of the election
The Regional Director, in accordance with Nation-
al Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended,
conducted an investigation and, on November 12,
1971, issued and served upon the parties his
Supplemental Decision, wherein he overruled, in
their entirety, the Employer's objections Thereafter,
on December 6, 1971, the Employer filed with the
Board a request for review of the Supplemental
Decision and Direction of Election with respect to all
of the objections The Board denied the request for
review on January 24, 1972 Thereafter, on February
3, 1972, the Employer filed a motion for reconsidera-
tion of the Board's denial of its request for review
and, thereafter, the Petitioner filed opposition to the
motion On April 10, 1972, the National Labor
Relations Board issued an Order granting Employ-
er's motion for reconsideration as it relates to the
Petitioner's payments to eligible voters who acted as
election observers and directing a hearing to obtain
evidence to resolve the issues raised by the Petition-
er's payments
The Board in its Order granting a hearing found
that the instant proceedings raised issues arguably
1 All employees of the Employer employed at its retail stores located in
the Metropolitan St Louis area of St Louis City, St Louis County,
Jefferson County and St Charles County Missouri including warehouse-
men but excluding store managers assistant store managers temporary
summer employees office clerical and professional employees guards, and
supervisors as defined in the Act
2 The Hearing Officer correctly denied the Employer s request that it be
allowed to question its witnesses under Federal Rules of Civil Procedure
similar to those ordered to hearing by the court in
N L R B v Commercial Letter, Inc, 455 F 2d 109
(1972) The court found that when a union subpe-
naed 8 of the unit's 12 employees for a representation
case hearing held on June 5 and 19, 1970, with no
indication that their presence was necessary, and
paid them, within 15 days before the election, an
amount equal to their lost wages , the payments on
their face are questionable and substantial factual
issues are raised that should be further investigated,
calling for a hearing
Pursuant to the Board's Order, a hearing was held
on May 8, 1972, before William T Coleman, Hearing
Officer All parties participated in the hearing and
were given full opportunity to examine and cross-
examine witnesses and to introduce evidence bearing
on the issues On July 31, 1972, the Hearing Officer
issued and duly served upon the parties his report on
objections In his report, the Hearing Officer found
that the Petitioner's payments to eligible voters who
acted as election observers did not interfere with the
election and recommended that the Employer's
objections to the election held on September 29,
1971, insofar as they relate to payments by the
Petitioner to its observers, be overruled Thereafter,
the Employer filed timely exceptions to the Hearing
Officer's report
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds no prejudicial
error was committed The rulings are hereby af-
firmed 2 The Board has considered the Regional
Director's Supplemental Decision, the Employer's
request for review, the Employer's motion for
reconsideration, and the entire record3 in the case,
and hereby adopts the Hearing Officer's findings and
recommendations
The Hearing Officer found that there were no
union requests that the payments serve as an
inducement to influence employees votes, that none
of the observers considered the payments as induce-
ments, and that the payments were not so grossly
disproportionate as to influence the employees, and
that therefore the Employer's burden of proof as the
objecting party has not been met
The Employer, in its exceptions to the Hearing
Rule 43b inasmuch as the Hearing Officer found that the witnesses were
answering all the questions completely and the Employer never attempted
to show that they were either hostile or unwilling
3 The Employer s request for oral argument and the filing of amicus
briefs is hereby dewed as in our opinion the record, including the briefs,
adequately presents the issues herein and the positions of the parties For
like reasons the Employer s request for a new hearing is denied
200 NLRB No 120
QUICK SHOP MARKETS 831
Officer's report, argues that the Umon's payment of
$15 to six eligible voters for their services as election
observers represented such a large sum to these
employees that it must have influenced their vote and
that the Union should have had the burden of proof
The Employer, in its exceptions, also raises for the
first time the allegation that the payments were part
of a deliberate union attempt to misrepresent the
union wage scale We disagree
The Umon paid six eligible voters $15 for their
services as election observers The Union did not
suggest to the observers that the payments should
influence their vote and the six observers testified
that they would have voted the same regardless of
the payments At the time of the election the union
observers believed that they would only be paid by
the Union, only after the election did the Employer
decide also to pay the Union's observers as if they
had worked their regular hours
The union observers worked approximately 4 1/2
hours as observers, most, but not all of the observers
were assigned to polling places that were less
accessible than their regularly assigned work loca-
tions One of the observers was driven by the Union
to and from the polling area and one was driven part
way to and from the polling area The observers'
regular pay was between $1 60 and $1 75 an hour
The Union told one observer that the $15 was its
usual payment for observers, three were told that it
was only a payment for their services as observers
without an explanation on how the amount was
computed, one was told it was union scale, and one
was told approximately 2 days before the election
that the $15 was the amount union employees were
paid for approximately 4 1/2 hours work The
Employer claims that this misrepresented the union
wage scale by between 28 percent and 54 percent 4
Our dissenting colleague finds objectionable any
payments to an observer greater than his normal rate
of pay plus expenses Because an observer is not, as
an observer, doing what he usually does, there is no
logical basis for saying the two jobs must be paid at
the same rate This is not to say that there is no
relationship between the two and we see no reason
not to compare them to decide whether there is so
gross a disproportion as to establish a taint Our
dissenting colleague thinks it inappropriate to in-
dulge in what he calls quantitative speculation We
would rather say that the question, like many
questions in the law, is one of degree, and this Board
constantly makes judgments on such questions
We find that the $15 payments, although approxi-
4 The Employer contends that, since most of the eligible voters were
part time employees the Umon s grocery division s recently signed contract
giving $2 60 per hour for part time employees should be compared with the
Union s actual payments of $3 33 per hour ($15 for 4 5 hours) resulting in a
mately twice the observers' usual pay for 4-1/2 hours
when engaged in their customary duties for the
employer, were not so grossly disproportionate to
their usual pay rate or to what the Union could
reasonably consider was the value of their 4-1/2
hours work as observers, that possible misrepresenta-
tions made approximately 2 days before the election
to I or 2 of 209 eligible voters are not sufficient to
overturn the election, and that the Hearing Officer
correctly placed the burden of proof on the Employ-
er as the objecting party
Accordingly, as we have overruled the Employer's
objections to the election, held on September 29,
1971, insofar as they relate to payments by the
Petitioner to its observers, and as the Petitioner
received a majority of the valid ballots cast in the
election, we shall certify it as the representative of the
employees in the unit found appropriate
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Retail Store Employees'
Union Local No 655 a/w Retail Clerks International
Association, AFL-CIO, and that, pursuant to Sec-
tion 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment
CHAIRMAN MILLER, dissenting
As set forth in the majority opinion, the Union
paid its employee observers an amount equal to
approximately twice their usual hourly pay
In my view, it is bad practice for this Board to
sanction payments by either unions or employers to
an election observer in an amount substantially in
excess of reimbursement for time lost for work at the
employees' regular rate of pay, plus any expenses the
employee might have to incur by reason of his
serving as an observer
The majority opinion rests on what seems to me a
difficult and potentially dangerous premise-1 e,
that double the employee's regular rate of pay is not
"so grossly disproportionate to their usual rate to
taint their vote in the election" I do not know
whether the majority would consider three times,
four times, six times, or twenty times their rate
"grossly disproportionate," nor do I think it appro-
priate to enter upon this kind of quantitative
speculation
In my view, any time an employer or a union offers
misrepresentation of $ 73 or 28 % The Employer also contends that its
employees could be compared to bagger carryout employees who earn $2 10
per hour resulting in a misrepresentation of $123 per hour or 54%
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an observer an extra payment over and above
reimbursement at his regular rate of pay plus
expenses, there is a lurking danger that, no matter
how pure the heart of the payor, such payments will
be regarded by the recipient as a form of monetary
inducement to demonstrate his support of the paying
party's cause and also as an inducement to secure his
unspoken commitment to vote in the manner desired
by the payor
In order to protect the integrity of our election
processes, I would set aside this election and any
other one in which payments of this kind were made