Thrift Drug Co.

National Labor Relations Board - Board Decisions

May 23, 1975

217 N.L.R.B. 1094 (N.L.R.B. 1975)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thrift Drug Company, Employer -Petitioner andRetail
Store Employees Union Local 526, Retail Clerks
International - Association , AFL-CIO. Case
30-RM-297
May 23, 1975
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and approved
by the Acting Regional Director for Region 30 on April
4, 1974, an election by secret ballot was conducted on
April 49, 1974, among the employees in the stipulated
unit. At the conclusion of the election, the parties were
served with a copy of the tally of ballots, which showed
that, of approximately 13 eligible voters, 13 cast ballots,
of which 5 were for and-8 against the Union. None were
void or challenged: Thereafter, the Union filed timely
objections to the election.
Following an investigation of the issues raised by the
objections the Regional Director issued his Report and
Recommendations on Objections wherein he recom-
mended that a hearing be held for the purpose of resolv-
ing issues raised by Objections 1 and 3. Thereafter, the
Board accepted the Regional Director's recommenda-
tion and issued an order directing such a hearing.
Pursuant to the Board's Order a hearing was held on
August 27, 1974, before Hearing Officer Mark Bur-
stein. All parties were represented at the hearing and
were afforded full opportunity to be heard, to examine
witnesses, to introduce relevant evidence, and to pre-
sent oral argument.
On November 20, 1974, the Hearing Officer issued
and duly served on the parties his Report on Objections
in which he recommended that the Union's Objections
1 and 3 be sustained, that the election conducted on
April 19, 1974, be set aside and that a new election be
conducted. Thereafter, the Employer-Petitioner filed
timely exceptions to the Hearing Officer's report and a
supporting brief.
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.
Upon the entire record in this case, the Board finds:
1. The Employer-Petitioner is engaged in commerce
within the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer-
Petitioner within the meaning of Section 9 (c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees , as stipulated by the par-
ties, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
-All employees of the Employer at its Kenosha,
Wisconsin, drug store; but excluding the store
manager, the assistant manager, professional em-
ployees, guards and supervisors as defined in the
Act.
5. The Board has considered the Hearing Officer's
report, the exceptions and brief, and the entire record
in the case, and, contrary to the Hearing Officer,- is of
the opinion that the Union's Objections l' and 3 should
be overruled and that the results of the election should
be certified.
In Objection 1 the Union alleges that the Employer,
during the preelection period, granted and promised
economic benefits in an attempt to influence employee
votes.
The facts are not in controversy. The Kenosha drug
store is one of the Employer's chain of drug stores. As
of the- time of the election it was the only union store
in the chain. During the weeks prior to the election
employer representatives conducted several meetings
with store employees. These representatives, using a
chart,. compared the wages and other benefits at the
Kenosha store with those at the Employer's other
stores. They told the employees that the benefits in
effect at the other stores were better than those in effect
at the Kenosha store. As part of this presentation they
also discussed the substance of the negotiations, includ-
ing the fact that the Employer had offered to put into
effect at the Kenosha store the benefits put into effect
at the other stores in the chain. Employer representa-
tives further noted that the disparity in benefits re-
sulted, in part, from differences in the economic condi-
tions in the various geographical areas where the
Employer's stores were located. Employer also dis-
tributed a pamphlet similar to the chart used in' the
meetings, setting forth the differences between the
benefits at the Kenosha store and other stores in the
chain. The pamphlet did not contain any explanation
of the reasons for the differences in benefits.
In our opinion this comparison of benefits is not
objectionable. As our dissenting colleague notes, we
have approved benefit comparisons under a number of
other circumstances. Absent threats of reduction of
benefits or promise of increased benefits, such benefit
comparisons are permissible campaign techniques
which fall within the bounds of free speech permitted
217 NLRB No. 171
THRIFT DRUG COMPANY
by Section 8(c) of the Act.' Our dissenting colleague
and the Hearing Officer see the situation here as being
different from other comparison cases, since the bene-
fits comparison is between the benefits enjoyed by
union represented employees at the Kenosha store and
the greater benefits enjoyed by unrepresented employ-
ees at other stores. He suggests that the employees were
being told that they could achieve these benefits by
merely rejecting the incumbent union. The difficulty
with this reasoning is that the employees were also told
that the Union, had already been offered these during
bargaining.' Thus, the employees were not being told
that they could-only achieve these benefits through re-
jection of the Union. Rather, the only inference to
be drawn is that the Union had for its own reasons not
accepted these benefits, perhaps because they were in
its view insufficient or because some other bargaining
objective had not been attained. Since the Employer
made it clear the benefits were available with union
representation, we are unable to perceive how these
comments can be said to constitute a promise of bene-
fit, the granting of which is contingent on rejection
of the Union.
In Objection 3 the Union alleges that the Employer
gave employees gifts in an attempt to affect their atti-
tude toward the election. In support of this objection
the Union points to the contest the Employer held.
About 10 days before the election, the Employer cir-
culated a questionnaire containing 10 true or false ques-
tions and a tiebreaker question for employees to an-
swer. A prize of a camera worth $40 was to be given
to the employee with the most correct answers. The
parties stipulated that the questions were based on
material that had been passed out by the Employer
during the campaign or discussions that ensued be-
tween employer representatives and employees. ,Em-
ployees were permitted to submit as many entries as
they wished. The contest ended in a tie with four em-
ployees having answered all of the questions, including
the tiebreaker, correctly. A drawing was held at a din-
ner the evening before the election among the four
employees, with the winner of the drawing winning the
camera and the other three employees, based on addi-
tional drawings, winning gift certificates of $20, $15,
and $10, respectively. -
The contest here was obviously designed to encour-
age employees to take an interest in the upcoming elec-
tion and, especially, to make sure employees were
aware of the facts which the Employer sought to em-
phasize during the campaign. Winning the contest was
not in any way contingent on supporting the Em-
ployer's position. Nor were the prizes of sufficient value
1 See, e.g ., The American Thread Company, 101 NLRB 1306, 1324
(1952). The Orchard Corporation, 170 NLRB 1297 (1968)
2 There is no contention that this constituted a misrepresentation.
1095
as to create in the minds of the winners a feeling of an
obligation to favor the Employer's position.' The Em-
ployer's award, as a result of the tie, of four prizes
instead of the single prize originally planned does not
require a different result. Each winner had received a
prize in a contest in which winning was not contingent
on support and the size of the prize was not sufficient
in value to create the feeling of an obligation to favor
the Employer's position . The fact that others also re-
ceived prizes under the same circumstances would not
create a feeling of obligation not otherwise present.'
In our view, the contest was permissible campaign con-
duct as an aid in the Employer's efforts to arouse inter-
est in the election and to assist it in making sure em-
ployees were aware of the items it wished to
emphasize.'
- Accordingly, and as the Union has failed to receive
a majority of the valid votes cast, we shall certify the
results of the 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
Union Local 526, 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 JENKINS, dissenting:
I would adopt the Hearing Officer's report and order
a second election based on the Employer's preelection
conduct which, in my view, interfered with the em-
ployees' free choice as to whether they desired repre-
sentation by the Union.
In the weeks shortly before the election, the Em-
ployer conducted several meetings during working time
with the employees at its store in Kenosha, Wisconsin.
At these meetings, the Employer's agents used a chart
which reflected the fact that the wages and other bene-
fits of the employees at the Kenosha store, which was
the only unionized unit in the chain, were not as good
3 See Hollywood Plastics, 177 NLRB 679 (1969) (raffle of groceries worth
$82); Buzza-Cardoza, a division of Gibson Greeting Cards, Inc, 177 NLRB
589 (1969) (raffle of groceries worth $84); Marathon Le Tourneau Com-
pany, 208 NLRB 213 (1974) (raffle of a color television set).
4 There is no evidence that the contest was a sham designed to enable the
Employer to give employees gifts, labeled,as prizes, designed to induce
employees to support its position Nor is there any evidence employees had
reason to believe the prizes were for the purpose of inducing their support
of the Employer's position.
5 Unlike our dissenting colleague, we-are unable to find anything in the
questionnaire which required employees to identify themselves or to state
their views as to campaign issues . All that was required was a response
which indicated the employee was aware of particular items the Employer
wanted to emphasize Further, unlike our dissenting colleague, we see noth-
ing in the questionnaire which would invite comments by employees as to
how ballots would be cast in the forthcoming election
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as those that existed at the other stores. An agent of the
Employer explained that the negotiations and the dif-
ferences in the economic conditions in the various geo-
graphic areas where the Employer's stores were located
were the reasons for the disparity between the benefits.
In addition to the meetings , the Employer also dis-
tributed a pamphlet to its employees , in which benefits
at the Kenosha store were compared to the benefits of
the employees at the remainder of the Employer's
stores. The pamphlet was similar to the chart which
was used in the meetings , but the reasons for the differ-
ences between the benefits was not explained.
Benefit comparisons usually involve a demonstration
by an employer that a union does not significantly
improve working conditions . To demonstrate this fact,
employers sometimes compare benefits at union plants
with benefits -at' a nonunion plant to show that the
union benefits do not greatly exceed , or may be less
than, the benefits available to nonunion employees. We
have approved such preelection conduct since there is
no possible inherent promise of a benefit in such a
comparison . However, the Board has never, before this
decision , approved an employer 's comparison of bene-
fits at a plant at which an election is to be held with
better benefits at a nonunion plant where both plants
are owned by the same employer . No approval has been
given heretofore because such a comparison contains
an implied promise of better benefits in the event the
union loses the election . Thus , such a comparison rea-
sonably tends to convey to the employees that, by vot-
ing against the union, the employees could receive the
better benefits which the employer , through its control
of the economic purse strings , is already making availa-
ble to its nonunion members at another location. Ac-
cordingly, I would find that the comparison of benefits
made herein constitutes impermissible preelection
conduct.'
About 10 days before the election herein the Em-
ployer began a contest in which it circulated a question-
naire containing 10 true or false questions and a tie-
breaker question for its employees to answer, with
6 Unlike my colleagues, I do not conclude that the "Employer made it
clear that benefits were available with Union representation." In fact, the
course of conduct pursued by the Employer in negotiations made it clear
that equalized benefits would , in all likelihood, never be available with union
representation . By telling its employees that one of the reasons for the
disparity in benefits was that the parties had been negotiating unsuccessfully
for 3-1/2 years, the Employer, in effect , was inferring that further negotia-
tions would be similarly unsuccessful and therefore futile. Moreover, the
evidence here is unclear as to whether, in fact, an offer was made by the
Employer to equalize benefits . Thus, although one employee testified that
she was told at a meeting that equalized benefits were offered to the Union
during negotiations , the same employee testified that a union representative
told her that the subject of equalized benefits -was "refused to be discussed
because of the, they were still trying to get over the open shop " and that
"if the Employer had brought up or proposed benefits during the negotia-
tions, the Union would have considered them." In these circumstances, I
cannot agree with my colleagues that equalized benefits were , available
whether or not the Employer's employees chose union representation.
prizes to be awarded to those with the , most correct
answers. Among the true/false questions were the fol-
lowing:
7. (Circle The Correct Answer) Local #526 has
been unsuccessful in negotiating a contract for
the past:
A. 1 year & 6 months
B. 2 years & 10 months
C. 3 years & 5 months
9. (Circle True or False) The union can guarantee
that they will be more successful in negotiating
a contract if they win this election than they
have been in the past.
10. (Circle True or False) The union has obtained
higher wages for Kenosha associates than en-
joyed by associates in other Thrift Drug Stores.
Other questions related to the Union 's bargaining abil-
ity, the Employer's right to replace economic strikers,
the employees ' freedom to reject the Union , the finan-
cial and other obligations of union members , and union
discipline.
Employees responded to the questions , put their an-
swers in a sealed box and retained a numbered stub
corresponding to the number on the sheet they had
handed in . On the night before the election , the Em-
ployer- sponsored and paid for a dinner at a local restau-
rant which all the employees were invited to attend.
The number of the contestants with the most, correct
answers were announced and a camera valued at $40
and gift certificates of $20 , $ 15 and $10 were awarded
to the winning employees.
Raffles and contests usually are designed to create
employee interest in the Board 's election process and
do not interfere with the employees' free choice as to
whether they desire union representation . Examples of
permissible raffles and contests are found in the cases
cited by my colleagues . However , the Board has never
before this decision approved a "contest " which would
reasonably tend to make one-third of a proposed unit
of employees feel an obligation to vote against a
union .' Neither has the Board approved a "contest"
which by its very nature would be likely to invite com-
ments in the presence of an employer as to how ballots
would be cast in a forthcoming election.' Nor has the
Board approved a "contest" in which eligibility for a
prize depended on an employee 's statement as to his or
her views as to campaign issues.'
Although question 10 reinforces the intracompany
comparison of benefits which I have already found to
be objectionable , the primary vice of the contest is not
7 Cf. Hollywood Plastics, Inc, 177 NLRB 678 (1969)
B Cf. Glamorise Foundations, Inc., 197 NLRB 729 (1972)
9 Cf. Jacqueline Cochran, Inc., 177 NLRB 837 (1969)
THRIFT DRUG COMPANY 1097
in the questions , per se, but in the fact that 4 of 13
employees , over 30 percent of the proposed unit, were
given substantial benefits , prizes worth $40 , $25, $15,
and $10 , on the eve of the election for disclosing their
agreement with the Employer's views-on practically
every important issue in the campaign with the excep-
tion of the ultimate question of how the employees
intended to vote . It is only natural that the recipients
of such prizes would tend to feel an obligation to favor
an employer in these circumstances . And, after disclos-
ing their views as to important campaign issues in the
presence of an employer, it is only natural that such
disclosure would tend to invite further comments from
employees as to the ultimate question of how they in-
tended to vote in the upcoming election.
In my opinion , the manner in which the Employer
in this case solicited the views of its employees is close
enough to either unlawful surveillance , interrogation,
or actually influencing votes improperly by prizes
related to attitudes toward the union to set the election
aside . In the circumstances of this case, there is no
doubt in my mind that the Employer 's "contest"
tended to interfere with the employees ' free choice as
to whether they desired representation by the Union.
Accordingly , I would find that the contest constitutes
impermissible preelection conduct.
Based on the foregoing, I would order a second elec-
tion.