Red's Novelty Co.

National Labor Relations Board - Board Decisions

Feb 13, 1976

222 N.L.R.B. 899 (N.L.R.B. 1976)

RED'S NOVELTY CO.
Jerome J. Jacomet , d/b/a Red's Novelty Co. and
R-N Amusement Corporation and Teamsters, Local
344, Sales and Service Industry , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , Petitioner. Case
30-RC-2540 -
February 13, 1976
DECISION AND ORDER REMANDING
PROCEEDING TO HEARING OFFICER
Pursuant to a Stipulation for Certification Upon
Consent Election - executed by the parties and ap-
proved by the Regional Director for Region 30 of the
National Labor Relations Board on April 7, 1975, an
election by secret ballot was conducted in the above-
entitled proceeding on April 18, 1975, under the di-
rection and supervision off-said Regional Director.
Upon the conclusion of the election, a tally of ballots
was furnished the parties in accordance with the
Board's Rules and Regulations.
The tally of ballots shows that there were approxi-
mately 10 eligible-voters and that 10 ballots were
cast, of which 4 were for, and 6 were against, the
Petitioner.
On April 24, 1975, the Petitioner filed timely ob-
jections to conduct affecting the results of the elec-
tion. The Regional Director investigated the issues
raised by the objections and, thereafter, on April 25,
1975, issued and served on the parties a notice of
hearing on objections to conduct affecting results of
election, in which he notified the parties that a hear-
ing would be conducted to resolve the issues raised
by the Petitioner's objections.
Pursuant thereto, a hearing was held and, thereaf-
ter, on June 23, 1975, the Hearing'Officer issued and
served on the parties his report on objections with
findings and recommendations. In his report, the
Hearing Officer recommended to the Board that the
Petitioner's objections be overruled and that the re-
sults of the election be certified. Thereafter the Peti-
tioner timely filed exceptions to the Hearing Officer's
report and a brief in support of the exceptions.
The Board has considered the Hearing Officer's
report, the exceptions, the brief, and the entire record
in the case and hereby adopts the Hearing Officer's
findings and recommendations except as to
Petitioner's Objections 1, 2, and 3.1
i The dissenting members disagree with the Hearing Officer's recommen-
dation to overrule Petitioner 's Objection 6 insofar as it involves the "polling
incident" included as part of that objection.
According to the findings of the Hearing Officer , a meeting was held
between the Employer and the employees at the request of the latter at
which a spokesman for the employees told the Employer that the employees
had decided that they did not want to join the Union The Employer then
899
The Hearing Officer overruled Objections 1, 2, and
3 upon the basis that, as the alleged objectionable
conduct occurred on March 18, 1975, the day on
which the petition was filed, such conduct cannot
form the basis for setting aside the election, citing
Goodyear Tire and Rubber Company, 138 NLRB 453
(1962). Although the literal language of the Goodyear
decision lends itself to the interpretation placed upon
it by the Hearing Officer, the Board has in fact con-
strued it to mean that any objectionable conduct oc-
curring on or after the day of filing of the petition
would be considered on its merits as the basis for
setting aside an election. West Texas Equipment
Company, 142 NLRB 1358, 1360 (1963); Allied/Egry
Business Systems Inc., 169 NLRB 514, 516 (1968);
Colonial Lincoln Mercury Sales, Inc., 197 NLRB 54,
67 (1972).
Inasmuch as the Hearing Officer failed to rule on
the merits of -these three objections because of his
erroneous interpretaion of the Goodyear Tire deci-
sion, we shall remand the case to him so that he may
prepare a supplemental report ruling on Objections
1, 2, and 3 and making appropriate recommenda-
tions.
ORDER
It is hereby ordered that his proceeding be, and it
hereby is, remanded to Hearing Officer Cecil Sut-
phen, for the purpose of making credibility resolu-
tions and findings with respect to Petitioner's Objec-
tions 1, 2, and 3.
IT IS FURTHER ORDERED that the Hearing Officer
shall prepare asupplemental report, containing such
resolutions and findings, conclusions, and/or recom-
mendations as he finds are necessary. Upon the
issuance of such report, the provisions of Section
102.69 of the Board's Rules and Regulations, Series
1, as amended, shall be applicable.
said, "Nobody wants to join the Union?" Whereupon everyone nodded yes
The Employer then said, "Well, fine. That's excellent. Is this everybody
here? Nobody wants to join the Union" About this time employee Jacques
walked in and the employees told him of the decision ; Jacques stated that
he would go along with the rest of them. The Hearing Officer found that the
so-called poll and subsequent remarks of the Employer were not violative of
Struksnes Construction Co., Inc., 165 NLRB 1062 (1967), and therefore did
not justify setting aside the election We agree.
Recently in Bushnell's Kitchens, Inc, 222 NLRB 110 (1976) (Member
Jenkins dissenting), a Board panel majority decided that the Struksnes for-
mula for determining when polling of employees is coercive was inapplica-
ble to a stituation where, after employees had openly proclaimed their
adherence to a union and impliedly invited verification , the employer com-
plied with their request Here, the Employer did not ask the employees if
they wanted a union until after the employees' spokesman in their presence
had told the Employer that they did not wish to be represented by a union.
Thus the Employer merely verified what the employees had already told
him By no stretch of the imagination can we conceive that this sort of
questioning coerced the employees in their choice of a bargaining represen-
tative . Accordingly, we affirm the Hearing Officer's finding that Objection 6
is without merit.
222 NLRB No. 145
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBERS FANNING and JENKINS, dissenting:
We agree with our colleagues concerning the fail-
ure of the Hearing Officer to consider the alleged
objectionable conduct which occurred on the day
that the petition was filed. However, in our view, the
Hearing Officer also erred in his consideration of the
"polling incident" included as part of Objection 6,
and we would find such conduct to be objectionable,
and that it warrants the setting aside of the election
and the direction of a second election without further
hearing.
In this regard, as more fully described by the
Hearing Officer, at a meeting with the employees on
the morning of March 26, Jacomet inquired as to
why the employees wanted to talk to him and "what
we didn't have that we wanted . . . why we were
starting the union procedures?" Thereafter, the dis-
cussion revolved around a five-point program of im-
provements sought by the employees, but there was
no consensus as to what they wanted to do regarding
their interests in the Union. A second meeting was
suggested for that evening to which Jacomet agreed
and employee Rodemacher stated that the employ-
ees, in the meantime, would meet among themselves.
That evening, the second meeting to which Jacom-
et had earlier agreed took place. All agreed that Ro-
demacher opened this meeting by stating, "Well we
[employees] had a meeting at 5 and we have decided
that none of us want to join the Union." According
to the admissions of Jacomet, he said, "Nobody
wants to join the Union?" As an answer, "everyone
nodded yes." Jacomet then said, "Well fine. That's
excellent. Is this everybody here. Nobody wants to
join the Union?" At this point, employee Jacques
walked in and, when told of the employees' decision,
he agreed to go along. Thereafter, the meeting was
adjourned with an invitation from Jacomet to the
employees to go to a local bar for drinks.
The Hearing Officer found that, as "the so-called
poll and subsequent remarks by Jacomet were made
after Rodemacher's statement," the poll was lawful
within the meaning of Struksnes Construction Co.,
165 NLRB 1062, 1064 (1967). Whether or not Jacom-
et asked each employee separately whether he want-
ed to join the Union is beside the point in the circum-
stances herein. It is clear from his own admissions
that he asked, "Nobody wants to join the Union .. .
and . . . everyone nodded yes." Thus, Jacomet elic-
ited a response from every employee present, includ-
ing Jacques who arrived late.
Contrary to the conclusions of the Hearing Office,
Struksnes does not sanction or approve of polls mere-
ly because there is no evidence of threats, reprisals,
or hostility.2 Rather, it cautions against the use of
polls except in unusual circumstances, and requires
that even then such polls must adhere to specific and
stringent safeguards. These safeguards clearly were
not met here?
Accordingly, we would find such conduct objec-
tionable and would set the election aside and direct a
second election without further hearing.
2 Nor are we convinced that the atmosphere was free of hostility and
coercion as found by the Hearing Officer Indeed, it would appear from the
facts set forth that the employees could plainly observe that Jacomet was
opposed and hostile to the Union because at the very time of the polling he
announced it was "excellent" that "Nobody wants tojoin the Union ... "
3 In Struksnes, it should also be noted, the Board specifically held at 1063:
On the other hand, a poll taken while a petition for a Board election
is pending does not , in our view, serve any legitimate interest of the
employer that would not be better served by the forthcoming Board
election . In accord with long-established Board policy, therefore, such
polls will continue to be found violative of Section 8(a)(1) of the Act.