S. S. Kresge Co.

National Labor Relations Board - Board Decisions

Aug 7, 1958

121 N.L.R.B. 374 (N.L.R.B. 1958)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A All production and maintenance employees including the rotary
kiln firemen "A," but excluding office clerical employees, plant clerical
employees, professional employees, administrative employees, testers,
the master mechamc, the maintenance group leader, and all super-
visors as defined in the Act
B All mechanics Class "A," -shaft firemen "A," head sorters, and
the head driller, excluding all other employees and all supervisors as
defined in the Act
If a majority of employees in voting group B vote against the Pe-
titioner, they will be taken to have indicated their desire to remain
outside the presently recognized unit, and the Regional Director is,
instructed to issue a certificate of results of election to that effect If
a majority in voting group A only cast their ballots for Petitioner,,
they will have indicated their desire to be represented by the Peti-
tioner, and the Regional Director is instructed to issue a certification
of representatives to the Petitioner as to this unit, which we find under
the circumstances to be appropriate
On the other hand, if a majority in voting group B vote for the
Petitioner, that group will appropriately be included in the presently
recognized unit and their votes shall be pooled with those in voting
group A 6 If a majority of the pooled group select the Petitioner,
the Regional Director is instructed to issue a certification of repre-
sentatives to Petitioner for such unit, which, under the circumstances,
we find appropriate
[Text of Direction of Elections omitted from publication ]
In the event the votes are pooled , they shall be accorded their face value
S. S. Kresge Company and Retail Store Employees Union, Local
344, affiliated with Retail Clerks International Association,
AFL-CIO and Hotel and Restaurant Employees and Bartend-
ers International Union , Local 243, AFL-CIO, Petitioners.
Cases Nos 14-RC-3310 and 14-RC-4313 August 7, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by the
Board on January 30, 1958,1 an election by secret ballot was con-
ducted on February 20, 1958, under the direction and supervision of
the Regional Director for the Fourteenth Region among the em-
ployees in the unit found appropriate by the Board At the close of
the elections, the parties were furnished a tally of ballots which
' Not published
121 NLRB No 50
S. S. KRESGE COMPANY 375
'showed that there were approximately 33 eligible voters and that
of 31 who cast ballots, 24 were against and 7 were for the Petitioners.
Thereafter the Petitioners filed timely objections to conduct af-
febting the results of the election. In accordance with the Rules and
Regulations of the Board, the Regional Director investigated the
objections and on May 15, 1958, issued and served on the parties his
report on objections, in which he found the objections without merit
and recommended that they be overruled. Thereafter, the Peti-
tioners filed timely exceptions to the Regional Director's report.
The Board 2 has considered the objections, the exceptions, and
the entire record in the case and finds as follows :
The Petitioner • obj ected to the election on the grounds that :
(1) The Employer interfered with, restrained, and coerced em -
ployees by :
(a) Refusing to bargain in good faith with the Petitioner and
by demanding a formal hearing in order to delay the election.
(b) Refusing to consent to an election after the hearing, and by
laying off union members.
(c) Rebuking and threatening to discharge employee Mildred
Braughton on December 19, 1957, because she had gone to the
union office across the street from the store.
(d) The Regional Office setting the election for February 20, 1958,
and using the payroll for the week ending January 23, 1958, nearly
60 days after the Petitioner had claimed to represent a majority of
employees.
(e) Conducting an antiunion meeting on store premises on Feb-
ruary 18, 1958, which the employees were required to attend.
(2) The election examiner engaged in irregular conduct during
the time the election was conducted by :
(a) Leaving the room while the balloting was being conducted.
(b) Permitting the Employer's observer to check off the names of
the employees who voted.
(c) Permitting a company supervisor to circulate among em-
ployees during the election.
The Regional Director in his report found as follows :
(1) (a) The substance of this objection was made the subject of
an unfair labor charge and was dismissed by the Regional Director.
It is therefore not available as an objection 3
(b) No evidence was submitted in support of this objection. Both
the refusal to consent to an election and the layoffs occurred before
9 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 Rodgers and Bean].
8 Cuneo Pre8s of Indiana , 114 NLRB 764.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the, date the Board issued its Decision and Direction of Election and
are therefore unavailable as a valid objection 4
(c) Both the, threat to, and the discharge of, employee Braugh-
ton occurred before the date of issuance of the Decision and Direc-
tion of Election and therefore is not a valid objection to the elec-
tion.5
(d) The payroll eligibility date was determined by the, Board's
Decision. Any delay in holding the election was attributable to the
Petitioner's representative. '
(e) Two days before the election', the Employer conducted a meet-
ing of store employees on store premises . The meeting began about
3: 30 p. m. after the doors of the store were locked. The employees
were addressed by District Superintendent Keller who told the em-
ployees before beginning his speech that anyone who cared to do so
could leave. The speech delivered was noncoercive. The meeting
ended at 4 p. m. Employees were told that they could leave for the
day and would be paid until the regular closing time at 5 p. m.
There is no substantial evidence that a supervisor required employees
to surrender their union buttons on leaving the meeting.
(2) (a) On several occasions during the balloting the examiner
conducting the election was forced to leave the polling area and go
to the selling floor to notify employees that it was time to vote.
However, on each occasion the examiner carried the ballot box and
ballots with him and an observer for the Employer accompanied him
(the Petitioner failed to furnish an observer). At no time were the
ballot box and the blank ballots out of the possession of the Board
agent.
(b) The Employer prepared several copies of the list of eligible
voters and gave them to the Board agent. The originalcopy was
used at the polling place to check off employees as they appeared to
vote. One of the copies was used by an employer observer as an aid
in notifying employees to vote. She made no marks on this list.
Neither of the Employer's observers was permitted to make a list
of employees who did or did not vote.
(c) At the request of the Board agent the store manager and the
district superintendent absented themselves from the store during the
balloting. A Miss Berry, whose supervisory status is in doubt, was
permitted to remain on the sales floor while the voting was going
on at the third floor polling place. She substituted for the sales
clerks as they went to the third floor to vote. There is no evidence
that Miss Berry's conduct was objectionable and the polling area
was too remote from the sales floor for her presence to have any effect.
4 F. W. Woolworth Co., 109 NLRB 1446.
5 F. W. Woolworth, supra
I DURO FITTINGS COMPANY 377
The Regional Director concluded that the objections were without
merit and recommended that they be overruled. The Petitioner's
exceptions do not seriously challenge the factual findings with respect
to the objections. We find that, for the reasons stated by the Regional
Director in his report, the objections do not raise substantial and
material issues with respect to the conduct or results of the election.
Accordingly, they are hereby overruled. As the Petitioner has not
secured a majority of the votes cast in the election, we shall certify
the results thereof.
[The Board certified that a majority of the valid ballots was not
-cast for Retail Store Employees Union, Local 344, affiliated with
Retail Clerks International Association, AFL-CIO, and Hotel and
Restaurant Employees and Bartenders International Union, Local
'243, AFL-CIO, jointly, and that said Petitioners are not the exclu-
sive representative of the employees at the Employer's store in Alton,
Illinois, in the unit heretofore found appropriate.]
Duro Fittings Company and International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America-UAW (AFL-CIO). Case No. 21-CA-2787. August 8,
1958
DECISION AND ORDER
On February 11, 1958, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act,
and recommending that it, cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, Respondent filed exceptions to the
Intermediate Report and a supporting brief.
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 Fanning].
'The Board has reviewed the, rulings made by the Trial Examiner
at' the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the ` case, and hereby adopts. the findings, conclusions, and recom-
mendations of the Trial Examiner with the followilig additions and
modifications. '. ' . '
As the complaint does not allege independent violation of Section 8 (a) (1) of the Act,
and the issue was not litigated , we do not pass upon or adopt the Trial Examiner's find-
'121 NLRB No. 52.