Triangle Super Dollar Market

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 403 (N.L.R.B. 1976)

TRIANGLE SUPER DOLLAR MARKET
Triangle Super Dollar Market and Retail Clerks
Union, Local No. 31, Retail Clerks International
Association , AFL-CIO-CLC, Petitioner . Case 8-
RC-10156
June 30, 1976
DECISION AND ORDER DIRECTING
HEARING
403
reverse the Regional Director in his conclusions with
respect to Objection 2, set aside the election, and run
another election.
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was 16 for, and 24 against , the Petitioner,
there were 3 challenged ballots
2 The Petitioner 's exception to the Regional Director 's findings and rec-
ommendations with respect to Objection 2 raises no substantial issues of
fact or law which would warrant reversal of the Regional Director 's findings
and recommendation , or would require a hearing
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Pursuant to authority granted it under Section 3(b)
of the National Labor Relations Act, as amended, a
three-member panel has considered objections to an
election held on December 26, 1975,' and the Re-
gional Director's Report recommending disposition
of same, the relevant portions of which are attached
as Appendix A. The Board has reviewed the record
in light of the exceptions and brief, and hereby
adopts the Regional Director's findings and recom-
mendations.2
ORDER
It is hereby ordered that a hearing be held before a
duly designated Hearing Officer for the purpose of
receiving evidence to resolve the issues raised by the
Petitioner's Objection 3.
IT IS FURTHER ORDERED that the Hearing Officer
designated for the purpose of conducting such hear-
ing shall prepare and cause to be served on the par-
ties a report containing resolutions of credibility of
witnesses, findings of fact, and recommendations to
the Board as to the disposition of said objection.
Within 10 days from the date of issuance of such
report, either party may file with the Board in Wash-
ington, D.C., eight copies of exceptions thereto. Im-
mediately upon the filing of such exceptions, the par-
ty filing the same shall serve a copy thereof on the
other party and shall file a copy with the Regional
Director. If no exceptions are filed thereto, the Board
will adopt the recommendations of the Hearing Offi-
cer.
IT IS FURTHER ORDERED that the above-entitled mat-
ter be, and it hereby is, referred to the Regional Di-
rector for Region 8 for the purpose of conducting
such hearing, and that the said Regional Director be,
and he hereby is, authorized to issue notice thereof.
MEMBER FANNING dissenting:
For reasons which I have expressed in my dissent
in Steadman Wholesale Distributors, Inc., a Division of
Malone & Hyde, Inc., 203 NLRB 302 (1973), I dissent
from my colleagues' decision in this case. I would
APPENDIX A
Objection No. 2
The gravamen of this objection is the Petitioner's
claim that a sample ballot contained on a piece of
campaign literature distributed by the Employer to
its employees violated the Board's policy as enuncia-
ted in Allied Electric Products, Inc., 109 NLRB 1270
(1954).
The investigation disclosed that on December 26,
1975, the Employer distributed paychecks to its em-
ployees. Attached to each paycheck stub was a red
leaflet entitled "Triangle Market, Inc.," a [facsimile]
of which is attached hereto as Exhibit A.
In Allied Electric Products, Inc., supra, the Board
stated at 1272, "The reproduction of a document that
purports to be a copy of the Board's official secret
ballot, but which in fact is altered for campaign pur-
poses, necessarily, at the very least, must tend to sug-
gest that the material appearing thereon bears this
Agency's approval."
The Board further stated in this decision ". .
Upon consideration, the Board has decided that in
the future it will not permit the reproduction of any
document purporting to be a copy of the Board's
official ballot, other than one completely unaltered
in form and content and clearly marked sample on
its face, and upon objection validly filed, will set
aside the results of any election in which the success-
ful party has violated this rule."
In Stratford Furniture Corporation and Futorian
Manufacturing Company, 116 NLRB 1721 (1956), the
Board upheld the Regional Director's recommenda-
tion to overrule an objection based on a leaflet which
reproduced only that portion of the ballot containing
the instructions "Mark an `X' in the square of your
choice." the proposition "Do you wish to be repre-
sented for the purpose of collective bargaining by-
UPHOLSTERERS' INTERNATIONAL UNION
OF NORTH AMERICA, AFL-CIO jointly?" and
the "Yes" and "No" boxes. In that matter the Re-
gional Director determined that the reproduction of
this particular section of the Board's official ballot
was not a violation of Board policy in that the repro-
225 NLRB No. 43
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction did not amount to, nor purport to be, a copy
of the Board ' s official ballot within the meaning of
the Allied Electric Products decision.
In Stedman Wholesale Distributors, a Division of
Malone & Hyde, Inc., 203 NLRB 302, the Board
found merit to the employer 's exceptions to the Re-
gional Director 's report . The employer therein con-
tended that the ballot in question did not constitute a
reproduction of the Board 's official ballot within the
Allied Electric Products rule because the represented
ballot omitted any reference to the "United States
Government," "National Labor Relations Board,"
"Official Secret Ballot" and "Board Agent."
The ballot in that matter contained the following:
"Do you wish to be represented for the purposes of
collective bargaining by: Teamsters, Chauffeurs
Warehousemen Industrial & Allied Workers & Help-
ers, Local Union No. 920 ," and "Mark and `X' in the
square of your choice ," and the "Yes" and "No"
boxes beneath . The "No" box appeared with an "X"
in it and an arrow pointing to it from the words "To
vote against the Union , mark an `X' in the `No'
square on the right hand side."
Inasmuch as the reproduction of a ballot in the
instant matter is substantially the same as the form of
the ballot described in Stratford Furniture Corpora-
tion, supra, and Stedman Wholesale Distributors, Inc.,
supra, I conclude that the Employer 's campaign leaf-
let as a whole does not purport to be a copy of the
Board 's official ballot and does not suggest that the
United States government or this Agency urges a
vote on behalf of the Employer . I find, therefore, that
Objection No. 2 is without merit and I shall recom-
mend that it be overruled.
Objection No. 3
The Petitioner asserts in this objection that during
the critical period , head cashier Janet Hill acting as
an agent of the Employer stated to several employees
that if the Union got in she (Hill) would have to be
harder on the employees and that one of the employ-
ees to whom she was speaking would be terminated.
The Petitioner further alleges that Hill stated to an-
other employee that there would be lay -offs of em-
ployees or a cut in hours if the Union was successful.
The Petitioner further contends that produce man-
ager Job Stagner told employees that the part-time
employees would eventually be laid -off if the Union
got in , and told an employee that that employee was
voting for his job . Also the Petitioner alleges that
assistant grocery manager Gordon Van Meter stated
to employees that the store couldn ' t afford to pay
part-time help and the three least senior cashiers and
carryouts would probably be laid-off for several
months. In addition he is alleged to have stated that
the store would be a different place if the Union was
voted in and the employees would constantly have
someone looking over their shoulders if the Union
was voted in.
The Petitioner alleges that Hill, Stagner and Van
Meter are agents of the Employer. The investigation
revealed that Hill, Stagner and Van Meter were in-
cluded on the Excelsior list submitted by the Em-
ployer for the election , and that neither Hill nor Van
Meter was challenged by either party at the election.
Stagner was challenged at the election by the Peti-
tioner as an alleged supervisor.
During the investigation the Petitioner asserted
that Hill, Stagner , and Van Meter were not supervi-
sors, but nevertheless were agents of the Employer.
The Employer asserts that none of the three individu-
als are supervisors . However , employees testified that
Hill, Stagner , and Van Meter possess certain indicia
of supervisory authority.
The investigation revealed that Janet Hill and Job
Stagner have not hired, discharged or promoted em-
ployees, or granted wage increases to employees, but
they have scheduled work hours, trained new em-
ployees, granted time-off, and have occasionally han-
dled certain employee complaints regarding schedule
conflicts , and have committed the Employer's credit
for purchases of supplies . Hill and Stagner stated
that they do have a degree of latitude in making deci-
sions, related to employee labor relations matters,
but claim that these decisions are subject to review
by the co-owners, Robert Bell and Clair Weeder. The
co-owners contend that both individuals have been
given certain supervisory functions to perform, but
that they do not consider them to be supervisors.
Rather , the Employer considers them to be merely
trusted and long term employees who by virtue of
their seniority assist the owners. Employees testified,
however , that they consider Hill and Stagner to be
their "bosses" with significant control over their dai-
ly work routine. Employees also testified that Hill
and Stagner direct them in their work , have granted
them time -off when ill , and have made work sched-
ule changes upon request without consulting either
Bell or Weeder.
The investigation revealed that Gordon Van Meter
has not hired, discharged , promoted or granted wage
increases to employees, but is viewed by the employ-
ees as third in the supervisory hierarchy under Weed-
er and Bell. Weeder and Bell stated that when they
are not present in the store , Van Meter is in charge
because he is the most senior employee and has a
working knowledge of the store operation.
Van Meter testified that he conducts initial em-
ployment interviews and forwards a recommenda-
tion thereon to the owners . Van Meter testified he
evaluates the work of 12 to 14 employees, however,
TRIANGLE SUPER DOLLAR MARKET
he contends Weeder and Bell make all of the final
decisions on any of his recommendations. Van Meter
also testified that he has sent employees home for
disciplinary reasons pending the owners' decision
concerning the alleged employee misconduct. As do
Hill and Stagner, Van Meter schedules the hours of
work for employees in his area, including carryout
and stock personnel. Bell and Weeder testified that
Van Meter's authority stems from his long service for
the Employer and he is not considered to be a super-
visor by the Employer.
Inasmuch as the testimony of the parties and the
various witnesses varies materially as to the duties of
Hill, Stagner and Van Meter and the extent of their
alleged supervisory authority, the issue of the em-
ployee status of these three individuals cannot be de-
termined ex parse.
In Delchamps, Inc., 210 NLRB 179 (1974), the
Board granted the employer's Request for Review to
the Regional Director's Supplemental Decision. The
case was remanded to the Region to determine the
employment status of certain managers of the em-
ployer at the time of the election and at the time the
alleged objectionable conduct attributable to them
occurred.
Because this matter raised substantial and material
issues of fact and credibility which cannot be re-
solved in an ex parse investigation, I shall recom-
mend that the issues raised by this objection be re-
solved at a hearing as set forth below.
TRIANGLE MARKET, INC.
TO: All Employees
FROM: Bob and Clair
405
THIS IS ONLY A SAMPLE BALLOT. WHEN YOU GO
TO VOTE, THE OFFICIAL BALLOT WILL BE HAND-
ED TO YOU BY THE N.L.R.B. REPRESENTATIVE
AT THE ELECTION ON FRIDAY. I HOPE YOU WILL
GIVE ME YOUR VOTE OF CONFIDENCE SO WE
CAN CONTINUE TO PULL TOGETHER...
BE RIGHT
FOR CERTAIN EMPLOYEES OF
Do you wish to be represented
for purposes of collective
bargaining by
MARK AN "X" IN THE SQUARE OF YOUR
CHOICE
0
Exhibit A