Shop-Rite Development Co., Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 777 (N.L.R.B. 1974)

SHOP-RITE DEVELOPMENT CO., INC 777
Shop-Rite Development Co., Inc . and Retail Store Em-
ployees Union , Local 36 , Retail Clerks International
Association , AFL-CIO, Petitioner. Case
7-RC-1 1801
December 16, 1974
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF ELECTION
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Pursuant to a Stipulation to Set Aside Election and
Supplemental Decision and Direction of Second Elec-
tion approved and issued by the Regional Director for
Region 7 on November 16, 1973, a rerun election was
conducted on March 7, 1974.' Thereafter, the Peti-
tioner filed timely objections to conduct affecting the
results of the election. In accordance with the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Regional Director conducted an
investigation and on April 23, 1974, issued his Second
Supplemental Decision on Objections, Order Setting
Aside Second Election, and Direction of Third Elec-
tion, in which the Regional Director overruled Peti-
tioner's Objections 1 and 3, sustained Objection 2, or-
dered the rerun election to be set aside, and directed
that a second rerun election be held. Thereafter, in
accordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for re-
view of the Regional Director's decision on the ground
that the Regional Director, in sustaining Objection 2
regarding Employer's statements, improperly inter-
preted the facts herein and law applicable thereto. On
May 30, 1974, the Board granted the Employer's re-
quest for review and stayed the third election pending
decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issue under review and makes
the following findings:
Objection 2 alleged that the Employer, at a meeting
held on March 5, 1974, 2 days before the election,
promised an across-the-board wage increase to its em-
ployees if the Union was defeated in the election. Based
upon his investigation of this objection, the Regional
Director found that Ed Ricker, the Employer represen-
tative who talked to the employees at the March 5,
1 The tally of ballots showed that, of approximately 29 eligible voters, 9
voted for, and 19 against the Petitioner , and there were no challenged
ballots
1974, preelection meeting, stated that the subject of
wage increases came up at the end of the meeting when
an employee asked, "When could wage increases be
granted if the Union lost?" Ricker admittedly replied:
If the Union loses, and the Union doesn't file any
objections or charges, changes could be made after
we received certification of the election results.
Which could be around three weeks. I want to
clarify that in no way shape or form does this
constitute a promise of a wage increase. I have
only answered factually to your question.
Employer's president and store manager , Walter P.
Goff, in his recollection of the above events stated:
Toward the end of the meeting, an employee. .
asked how quick they could get raises if the
Union was voted out. Ed told them, that possibly
in three weeks or so if the Union didn't make any
charges some wage adjustments could be made.
That was the end of the subject. Those are not Ed's
exact words, I don't recall his exact words.
In addition, the Employer posted a notice on its
bulletin board for employees on March 5, 1974, entitled
"Haslett Shop-Rite Hotline" and initialed W.P.G.,
which read as follows:
QUESTION
Could you tell us again when the company
could legally increase our wages and benefits if the
Union is voted down again, and the same if the
Union wins?
ANSWER
If the employees vote against the Union again,
and if the Union did not file charges again within
5 calendar days, we could increase wages and
benefits as soon as the NLRB certifies the results
of the election . . . normally within two to three
weeks after the election.
If the union wins it is impossible to tell. The
only fact that happens if the union wins is we must
bargain in good faith about a contract. We are not
required to sign any contract. Sometimes the time
it takes to negotiate a contract is four to six
months. Some have gone as long as a year. The
union may say, we'll get you retroactive pay! This
is subject to negotiations and many times retroac-
tive pay is not paid. Ask the union to guarantee in
writing the fact that you will be covered by ret-
roactive pay!
Remember, because the Retail Clerks Union
has been trying to organize our store, I have not
legally been able to grant a general increase in
wages and benefits. This has been since May of
1973. I personally don't think this is fair to our
215 NLRB No. 144
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, and I will be glad to get this settled so
some action can be taken . I bet the union organizer
has received a wage increase since then ! Doesn't
seem fair, does it?
In sustaining Objection 2 based on the March 5 re-
marks of the Employer at the meeting and the posted
notice of that date, the Regional Director found the
Employer intended to convey to its employees that a
union victory would delay a wage increase and possibly
foreclose it. He rejected the Employer's assertion that
it has been legally unable to grant any general wage or
benefit increases during the organization campaign,
finding this assertion "not necessarily a statement of
the law." The Regional Director, without determining
what the Employer would normally have done absent
the presence of the Union, stated the Employer "shifted
the burden and the blame for its failure to grant in-
creases onto the Petitioner." The Regional Director
concluded that the Employer's statements undermined
the Union and were not protected by Section 8(c) of the
Act. Therefore, he found the message to be an explicit
promise concerning pay raises notwithstanding the
denial of such by the Employer.
The Employer, in its request for review, asserts that
its statement that it has not been legally able to grant
a general increase in wages or benefits is true and accu-
rate. It contends there were no accepted grounds under
the law by which it could grant a wage increase, and
if a wage increase had been given it would have been
construed as having been given in defiance of the union
activity. Secondly, the Employer asserts that the state-
ment in its March 5, 1974, posting, "We are not re-
quired to sign any contract," was misconstrued by the
Regional Director to mean that the Employer intended
"to forestall the signing of any agreement in order to
deprive the employees of a wage increase for a long
period of time should the Union win the election. Em-
ployer urges that the clear intent of the above statement
was to merely advise the employees that negotiation of
a contract is not automatic. It points out that there are
circumstances such as a valid impasse and others which
privilege the failure to execute a contract. Finally, the
Employer asserts its statements fall within the purview
of Section 8(c) of the Act and that the Regional Direc-
tor's decision gave a strained interpretation of its state-
ments to sustain the objection.
Contrary to the Regional Director , we find that the
Employer's preelection statements and posted notice,
concluded as a whole and within the context in which
they were made, are within the purview of Section 8(c)
of the Act and therefore do not constitute objectionable
conduct warranting setting aside the election. Regard-
ing the oral statements , the Employer , in response to an
inquiry from an employee concerning the possibility of
a wage increase if the Union lost the election, stated
what it legally could do. We note that this was a second
election and the campaign had continued for an unusu-
ally long time. The Employer merely stated, in essence,
that if the Union lost the election and did not file
charges or objections the Employer would be in a posi-
tion to make changes which heretofore it had not been
free to do without inviting the filing of charges and
risking the commission of unfair labor practices or ob-
jections to the election. This would appear to have been
an accurate statement of what the Employer would be
privileged to do under the law , assuming no prior fixed
pattern of increases was evident. There is no contention
or evidence that such a pattern existed. Therefore, such
statement, in these circumstances, does not constitute
objectionable conduct.
The Employer's written statement in the March 5
posting regarding the possibility of a wage increase is
virtually identical to the oral response of the Employer
discussed above and is similarly unobjectionable. Nor
do we find Employer's statement, "We are not required
to sign a contract," to be objectionable or indicative of
an effort to delay the granting of a wage increase should
the Union win the election. This statement, read in the
context in which it is placed, merely states the law.
Moreover, the sentence immediately preceding this
statement clearly states, "The only fact that happens if
the union wins is we must bargain in good faith." It is
clear therefore that the Employer recognized its obliga-
tion to bargain in good faith should the Union be suc-
cessful.
Further, the Employer's statement that it has "not
legally been able to grant a general increase in wages
and benefits" does not, in the circumstances herein,
constitute a misrepresentation or misstatement of the
law, nor is it otherwise objectionable. As indicated,
there is no evidence demonstrating that the Employer
had a policy of providing periodic increases or would
normally have granted a wage increase or increased
benefits, absent the Union. Therefore, whether the Em-
ployer could have "legally" granted an increase during
the campaign is questionable.
In summary, we conclude the oral and written state-
ments of the Employer do not constitute objectionable
conduct warranting setting aside the election.'
Accordingly, we shall certify the results of the sec-
ond election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Retail Store Employees
2 We view the facts here to be different from those in Ramada Inns, Inc,
208 NLRB 697 (1974), cited by the Regional Director, where the employer
had made known its intention of remaining competitive in the area of wages
and thus more clearly led the employees to believe that, but for the union,
they would have received a wage increase
I
SHOP-RITE DEVELOPMENT CO., INC 779
Union , Local 36, Retail Clerks International Associa-
tion , AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees, in the
unit herein involved , within the meaning of Section 9(a)
of the National Labor Relations Act, as amended.
MEMBER FANNING , dissenting:
I dissented from the original grant of review in this
case and I dissent here since I think the Employer's
March 5 notice to its employees constituted impermiss-
ible campaign propaganda. I therefore conclude. that
the Regional Director correctly set aside the second
election'herein based on certain of the statements con-
tained in the notice, which is set out in full in the
majority's decision.
The notice, considered in its entirety, clearly conveys
the following message to the employees: It is Petitioner
who is solely responsible for the Employer's being "le-
gally" unable to grant a general increase in wages and
benefits for the past 10 months. Relief from this situa-
tion, which the Employer does not think is "fair" to the
employees and which it would like to correct by taking
"some action," can be promptly secured by Petitioner's
losing the election and not filing objections, since the
Employer will then be free to quickly grant long-
delayed benefits. Should Petitioner win the election,
however, an extended period of delay for any increase
in benefits, ranging up to a year and with no guarantee
any increase will be forthcoming in any event, is in the
offing, as the Employer bargains in "good faith" with
Petitioner.
This interpretation by the Employer of the em-
ployees' present economic situation, and that situa-
tion's future prospects, clearly constitutes impermissi-
ble campaign propaganda for a -number of reasons.
First, the Employer's allusion to its inability to "le-
gally" grant any benefits to the employees during Peti-
tioner's organizing campaign is not necessarily a cor-
rect statement of the law. Rather, it is well settled that
an employer, confronted with a unionization attempt,
must not grant or withhold benefits based on the
union's presence but must act as it normally would,
absent the presence of the union.' Here, the Employer
not only indicated its alleged inability to grant any
increases, it continued and leveled the blame for such
an inability solely on Petitioner. The Board has held in
similar situations that, when an employer declares its
desire to grant benefits to employees, as the Employer
here did, but then shifts to the union involved the blame
for the failure to grant such benefits promptly, the
determination is warranted that the employer is at-
tempting to discredit the union and discourage mem-
bership therein.' Clearly, the Employer engaged in ex-
actly such objectionable conduct here.'
The Employer further engaged in objectionable con-
duct by its depiction of the employees' economic future
wherein the probability of an immediate grant of bene-
fits if Petitioner lost the election was contrasted with
the long, possibly ultimately fruitless, course ahead for
the employees if Petitioner won the election. There is
no other reasonable interpretation of the notice read as
a whole other than that the Employer would grant the
employees their long-awaited increase in benefits if Pe-
titioner lost the election and, as the Board noted in
Ramada Inns, Inc.,' in a situation strikingly similar to
the instant case, such statements by an employer do not
fall within the protection of Section 8(c) of the Act.
Thus, the Employer's notice was clearly impermissi-
ble campaign propaganda and for the above reasons I
dissent from the majority's failure to so find.'
4 Northrop Corporation, Ventura Division , 187 NLRB 172 (1970), Con-
solidated Fibers, 197 NLRB 843 (1972)
5 In such circumstances, the fact there is no evidence that the Employer
did, in fact, have a policy of providing periodic increases which it withheld
because of the Union is not the necessary ingredient to find the Employer's
statement objectionable, as the majority contends What is significant, and
what occurred here, is the Employer's specifically directing his employees'
attention to the Union aspect of their situation with the implication that, but
for the Union, the Employer would take action it was now precluded from
taking because of the Union
6 208 NLRB 697 (1974)
7 In light of my conclusions respecting the Employer's notice, I have not
considered whether the statements by the Employer's president at the
March 5 meeting also constituted objectionable conduct
3 See, e g, McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237
(1966), The Gates Rubber Company, 182 NLRB 95 (1970)