The M. O'Neil Co.

National Labor Relations Board - Board Decisions

Mar 17, 1970

181 N.L.R.B. 710 (N.L.R.B. 1970)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The May Department Stores Company d/b/a The
M. O'Neil Company and Retail Clerks
International Association , Local 698, AFL-CIO.
Case 8-RC-7117
March 17, 1970
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Pursuant to a Decision and Direction of Election'
issued by the National Labor Relations Board on
April 23, 1969, an election by secret ballot was
conducted on May 22, 1969, under the direction and
supervision of the Regional Director for Region 8,
among the employees in the following described
unit:'
All regular selling and nonselling employees at the
Employer's Akron, Ohio, store, including
employees of Audiophone Company of Akron,
Incorporated, and all qualified "pink card"
employees, but excluding professional employees,
casual employees, temporary employees, seasonal
employees, guards, confidential employees,
supervisors as defined by the Act, and employees
represented by other labor organizations.
The test established in the Decision for
determining eligibility of the "pink card" employees
included any employee who "regularly averages 4
hours or more per week for the last quarter prior to
the eligibility date."
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that
of approximately 1528 eligible voters, 1420 cast
ballots, of which 682 were cast for, and 609 against,
the Petitioner, and 6 were void. There were 123
challenged ballots, a number sufficient to affect the
results of the election. Thereafter, the Petitioner
filed timely objections to conduct affecting the
results of the election and the Employer filed timely
objections to the conduct of the election and conduct
affecting the results of the election.
In accordance with Section 102.69 of the Board's
Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director conducted an investigation and, on October
15, 1969, issued and duly served upon the parties his
Report on Challenged Ballots and Objections. The
Regional Director found that, of the 123 challenged
ballots, 2 "pink card" and 11 "white card" full-time
employees were eligible to vote. Of the remaining
challenged ballots, more than 75 involved "pink
1175 NLRB No 97
'The Decision ordered elections to be held in three separate units This
Supplemental Decision deals only with the unit involved in Case
8-RC-7l 17
card" employees. In order to determine the
eligibility of these "pink card" employees, the
Regional Director said that it was necessary to
construe the meaning of "regularly averages 4 hours
or more per week" as used in the Board's Direction
of Election.
According to the Regional Director, the words
"regularly averages" should not be construed to
mean that the employees had to have worked each
week during the eligibility quarter, but rather that
they worked a sufficient number of hours during the
quarter with a "substantial degree of regularity." He
therefore found that any "pink card" employee who
"worked at least 52 hours during the quarter (13
weeks x 4 hours) and worked some time during at
least 9 of the 13 weeks was eligible to vote in the
election." On the basis of this formula, the Regional
Director determined that 21 "pink card" employees
were eligible to vote and 34 were ineligible.
Seven other employees were found ineligible
because they terminated their employment prior to
the election, were not employed by the Employer on
both the eligibility date and the day of the election,
or were excluded by stipulation. Forty-eight
remaining challenges were found to raise issues of
fact and law which could not be resolved ex parte,
but rather required a hearing.
The Regional Director thus concluded that the
challenges to the ballots of 34 employees (the 13
"pink card" and "white card" full-time employees
and the 21 eligible "pink card" employees) were
without merit and recommended that they be
overruled and these ballots be opened and counted;
that the challenges to the ballots of the 41 other
employees discussed above be sustained; and that
the challenges to the ballots of 48 employees be
resolved at a hearing to be held before a duly
designated Hearing Officer , unless the opening and
counting of the aforementioned 34 ballots showed
that the 48 ballots could not be determinative of the
election.
Thereafter, on November 20, 1969, the Employer
filed timely exceptions to the Regional Director's
Report on Challenged Ballots and Objections and a
brief in support thereof. The Petitioner filed an
answering brief in support of the Regional
Director's Report. The Employer filed a reply to the
Petitioner's brief.
The Employer excepted to the Regional Director's
recommendation with regard to 22 of the 34 "pink
card" employees found ineligible by him, but did
not except to the recommendation that the
challenges to 34 of the employees be overruled and
their ballots be opened and counted. The Board
thereupon issued , on December 18, 1969, an Order
Directing the Regional Director to Open and Count
Challenged Ballots. In accordance with this Order,
33 challenged ballots were opened, with the revised
tally of ballots showing 690 votes for Petitioner and
634 votes against . Sixty-nine contested challenged
ballots remained in issue . One challenged ballot
181 NLRB No. 109
THE MAY DEPARTMENT STORES 711
which the Board had ordered counted was not
counted because of a discrepancy in the spelling of
the name. The undetermined challenged ballots are
.still sufficient to affect the results of the election.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The appropriate unit is as previously described.
5. The Board has considered the Regional
Director's Report, the exceptions and briefs, and the
entire record in this case, and finds as follows:
In addition to its exception urging that 22 of the
34 "pink card" employees found ineligible by the
Regional Director should have their ballots counted,
the Employer asserts that the Board's original
formula was vague and uncertain and provided
insufficient guidance to the parties. Thus, the
Employer argues, the stated formula which
enfranchised "any employee who regularly averages
4 hours or more per week for the last quarter prior
to the eligibility date" could be construed in a
variety of ways. In compiling the eligibility list, the
Employer construed the formula broadly, according
to a liberal eligibility formula which it had urged
upon the Board prior to issuance of the Decision
and Direction of Election. At the election, the
Employer charges, the Union was able to challenge
the ballots of those part-time employees whom the
Union preferred not to vote and to pass without
challenge other "pink card" employees with work
records similar to those challenged. In construing
the Board's formula after the election, the Regional
Director settled upon a standard (52 hours and 9 out
of 13 weeks) which was more stringent than the
formula used by the Employer in compiling the
eligibility list. This procedure has resulted, the
Employer alleges, in a large number of "pink card"
employees having been placed on the eligibility list
and having voted unchallenged who did not, in fact,
meet the minimum work history requirements now
announced by the Regional Director as essential to
qualification.
It appears to us that the Board's failure to
prescribe more precise standards for the eligibility of
"pink card" employees has resulted in a situation in
which the potential for inequity to all parties looms
large. The most direct and expeditious way of
righting the situation is to require that another
election be held, under a more well-defined formula.
It is regrettable that the parties must be put to the
burden of waging another election campaign. We
believe, however, that the paramount consideration
before us is the right of the employees to an
equitable and democratic election. In the hope of
achieving fairness to all parties, we shall order that
a new election be held.3
As noted in our earlier Decision, "pink card"
employees are either full-time probationary
employees or employees who work less than 20
hours per week. Included in the category of "pink
card" part-time employees are students, social
security annuitants, and other employees. While the
record discloses the hours that such employees have
worked in the past, it is inconclusive as to the
certainty with which they are generally scheduled. It
appears that some are regularly scheduled for at
least 4 hours a week (even though in what is a
weekly "on call" status); others work only during
busy retail seasons, such as the Christmas season;
and still others work irregularly when the Employer
needs them. While there is disagreement as to the
extent of turnover among these employees, there is
no disagreement that there is, in fact, high turnover.
Thus, the problems presented by "pink card"
employees are different from those present in
dealing with regular employees.
In the selection of an equitable formula for
determining the eligibility of these "pink card"
employees, we are concerned with assuring the
existence of a sufficient community of interest
between the "pink card" employees and the other
employees in the unit. A showing of regularity and
currency of employment, as demonstrated by
meeting minimum requirements of hours and
distribution of days worked over a recent period of
time, would indicate that such a community of
interest exists.
With these considerations in mind, we conclude
that any "pink card" part-time employee who
worked 4 hours or more per weekly payroll period
in 9 of the 13 weekly payroll periods preceding the
date of this Direction of Election; and any "pink
card" employee who began work after the start of
such 13-week period, but no later than in the
seventh week of such 13-week period, and who
worked 4 hours or more per week in two-thirds of
the weeks between the week in which he began work
and the end of the 13-week period, should be eligible
to vote. The latter requirement shall be construed to
mean that an employee who began work in the
'See N L R B v Joclin Manufacturing Company, 314 F 2d 627 (C A
2), in which the Court was dealing with the validity of a certification which
had given rise to an 8 (a)(5) charge The Court held that there were errors
of law or factual issues that entitled the Employer to a hearing in the
representation case and it remanded the case to the Board . The Court also
noted that it saw nothing "that would prevent the Board, if so advised,
from determining that , in view of the lapse of time, a new election, with a
more clearly defined bargaining unit, to be held on consent or other
appropriate proceedings , would serve the purpose of the statute more fully
than further inquiry into this old and at best exceedingly close one "
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
second week of the 13-week period must have
worked 4 hours or more in 8 weeks of the period; an
employee who began work in the third or fourth
week must have worked in 7 weeks of the period; an
employee who began in the fifth week must have
worked in 6 weeks; and an employee who began in
the sixth or seventh week must have worked in 5
weeks of the period.
The requirement of 4 hours or more per payroll
period and of two-thirds of the payroll periods is
designed to insure that an employee has worked a
minimum amount of time, with regularity, over a
reasonable period in the quarter, so as to have a
community of interest with other employees in the
unit. It is also designed to indicate currency in
employment - to sift out employees who worked a
large number of hours in the first few weeks of the
quarter with no indication that they will work again.
Of course, any employee terminated prior to the end
of the eligibility period or the election shall not be
permitted to vote. In like manner, a minimum of 7
weeks' experience is used as the eligibility period for
measuring new hires to insure that their employment
demonstrates some regularity and currency.
We find that the following employees of the
Employer, at its Akron, Ohio, store, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of the Act: All
regular selling and nonselling employees, including
employees of Audiophone Company of Akron,
Incorporated , and all qualified "pink card"
employees , but excluding professional employees,
casual employees , temporary employees , seasonal
employees , guards, confidential employees,
supervisors as defined by the Act, and employees
represented by other labor organizations.
ORDER
It is hereby ordered that the election previously
conducted herein on May 22, 1969, be, and it hereby
is, set aside.
[Direction of Second Election's omitted from
publication.]
As it is clear that "The May Company" is not part of the Employer's
name, and as inclusion on the ballot may be misleading or confusing, the
Employer 's name on the ballot shall appear as "the M O',Neil Company "
We note the parties have agreed to the above
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that 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 8 within 7
days of the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list 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