Triple J. Variety Drug Co.

National Labor Relations Board - Board Decisions

Dec 26, 1967

168 N.L.R.B. 988 (N.L.R.B. 1967)

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Triple J. Variety Drug Company, Petitioner, and
Retail Clerks Union, Local 1288, AFL-CIO. Case
20-RM-964
December 26, 1967
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, BROWN , JENKINS, AND
ZAGORIA
Pursuant to a stipulation for certification upon
consent election, an election was conducted on
May 23, 1967, under the direction and supervision
of the Regional Director for Region 20 in two vot-
ing groups:
Group A: All pharmacists of the Employer
at its Fresno, California, store; excluding all
other employees, guards, and supervisors as
defined in the Act.
Group B: All selling and non-selling em-
ployees of the Employer at its Fresno, Califor-
nia, store; excluding pharmacists, coffee shop
employees, store manager, assistant store
manager, confidential employees, guards, and
supervisors as defined in the Act.
At the conclusion of the election, the Acting Re-
gional Director served on' the parties a tally of bal-
lots which showed that, in Group A, 1 void ballot
was cast; and, in Group B, 13 ballots were cast for,
and 12 against, the Union, and 2 ballots were chal-
lenged. Thereafter, the Employer filed timely objec-
tions to the election.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Acting Re-
gional Director conducted an investigation and on
June 23, 1967, issued and duly served on the
parties her report on objections and challenged bal-
lots, in which she recommended that the challenges
be sustained, that the objections be overruled, and
that an appropriate certification of representative
be issued. Thereafter, the Employer filed timely ex-
ceptions to the Acting Regional Director's report.
Upon the entire record, the Board finds:
1. The Employer 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 con-
cerning the representation of employees of the Em-
ployer' within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. We have considered the Acting Regional
Director's report, which is attached hereto as Ap-
pendix A, and the exceptions thereto, and hereby
E The exceptions, which relate solely to the Petitioner's objection to the
conduct of she election in voting Group A, in our opinion, raise no issue of
fact or law warranting reversal of the Acting Regional Director's findings
and recommendations. Absent exceptions thereto, the Acting Regional
adopt the Acting Regional Director's findings and
recommendations. I
In view of the results of the election, and in ac-
cord with the stipulation of the parties, we find that
the following employees constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All selling and non-selling employees of the
Employer at its Fresno, California, store;
excluding pharmacists, coffee shop employees,
store manager, assistant store manager, con-
fidential employees, guards, and supervisors as
defined in the Act.
Accordingly, as the tally shows that the Union
received a majority of the valid ballots cast in, the
above-appropriate unit, we shall certify it as the
representative of the employees in such unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Retail Clerks Union,
Local 1288, AFL-CIO, has been designated and
selected by a majority of the employees of the Em-
ployer in the appropriate unit as their representative
for the purposes of collective bargaining and that,
pursuant to Section 9(a) of the Act, as amended, the
said labor organization is the exclusive representa-
tive of all employees in such unit for the purposes
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions
of employment.
MEMBER ZAGORIA dissenting:
I would set aside the election for the reason that
the procedure employed for the self-determination
election of the single professional employee in vot-
ing Group A, while in accordance with established
Board procedure, was in violation of Section 9(c)(1)
of the Act and Section 102.69(a) of the Rules and
Regulations, which provide that all elections shall
be by secret ballot.
While I recognize that secrecy could not have
been preserved completely, it could have been
preserved with regard to the question of representa-
tion by a relatively simple procedure. Thus (1) two
separate ballots would be used for Group A; (2) the
first ballot, containing the inclusion question, would
contain some identifying feature or be placed in a
separate ballot box; (3) the second ballot, contain-
ing the representation question, would in no way
differ from the ballots in Group B, would be sealed
in an envelope, and deposited in the same ballot box
as the Group B ballots; and (4) if the Group A em-
ployee voted to be included, the second ballot
would be removed from the envelope, mixed with
the ballots of Group B, and counted with them. It is
the policy of the Act and the duty of the Board that
secrecy be preserved to the fullest extent possible.2
Director's recommendations that the challenges be sustained are adopted
pro forma.
' Cf. J. Brenner & Sons, Inc., 154 N LRB 656, 659, fn. 4.
168 NLRB No. 140
TRIPLE J. VARIETY DRUG COMPANY 989
APPENDIX A
REPORT ON OBJECTIONS AND CHAL-
LENGED BALLOTS
Pursuant to a stipulation for certification upon
consent election approved May 4 ,1 an election by
secret ballot was conducted on May 23 under the
direction and supervision of the Acting Regional
Director in two voting groups:
Group A: All pharmacists of the Employer
at its Fresno, California , store ; excluding all
other employees , guards , and supervisors as
defined in the Act.
Group B: All selling and non-selling em-
ployees of the Employer at its Fresno , Califor-
nia, store ; excluding pharmacists , coffee shop
employees , store manager , assistant store
manager , confidential employees , guards, and
supervisors as defined in the Act.
The stipulation provided that the one employee in
group A would vote on two questions : ( 1) Do you
wish to be included in a unit with employees of
group B? and (2) Do you wish to be represented by
the Union? If the employee in group A voted "yes"
to the first question , his ballot was to be pooled with
those of group B as to the second question. If the
employee in group A voted "no" to the first
question , he was not to be included with the em-
ployees in group B and his vote on the second
question would not be counted . The tally of ballots
in voting group A furnished the parties at the con-
clusion of the election showed that the pharmacist
cast a void ballot with respect to both questions.
The tally of ballots with respect to voting group B
showed that of approximately 27 eligible voters, 13
cast ballots for and 12 cast ballots against Peti-
tioner. Two ballots were challenged . The chal-
lenged ballots are thus sufficient in number to affect
the results of the election in voting group B.
On May 29 the Employer filed objections to the
election , a copy of which was served on Petitioner.
Pursuant to Section 102.69 of the Board's Rules
and Regulations , Series 8, as amended, the Acting
Regional Director has investigated the challenges
and the objections and hereby reports as follows:
THE CHALLENGED BALLOTS
The ballots of Joanne True and Paul Zimmer
were challenged by the Board agent because they
did not appear on the eligibility list.
The investigation disclosed that Joanne True is
an office employee , who directs the activities of two
other office employees . Mrs. True has interviewed
job applicants and has effectively recommended
employment of applicants she considered qualified.
Upon Mrs. True 's recommendation one employee
was terminated without further inquiry by any com-
pany official . The investigation further disclosed
that Mrs. True has authorized time off for office
employees without consulting her supervisors.
Paul Zimmer is manager of the garden shop and
in that capacity determines what items and quanti-
ties to purchase . Mr. Zimmer then places either a
written or phone order for merchandise and signs
the purchase order . Depending on the season of the
year, such orders vary from $1 ,000 to $ 10,000. He
also decides which items to advertise in the
newspapers , and determines the price to be
charged , either by himself or in consultation with
the assistant store manager.
Mr. Zimmer directs the activities of one em-
ployee and has in the past interviewed job appli-
cants . He has authority to terminate the employee
under his supervision . He is paid a monthly salary;
others employed in the garden shop are paid an
hourly rate . Mr. Zimmer is also covered by a life
and disability insurance program limited to himself,
the general manager, assistant general manager, and
the supervising pharmacist.
Under these circumstances , the Acting Regional
Director concludes that Joanne True is a supervisor
within the meaning of the Act and that Paul Zimmer
is both a supervisor and a managerial employee.
Therefore it is recommended that the Board sustain
the challenges to their ballots.
THE OBJECTIONS
The objections allege:
There were two voting groups. In voting
group A there was a single voter , Ed Jacobs.
Mr. Jacobs appeared at the polling place, and
requested his ballot . When handed his ballot he
observed that it was of a definitely different
color than any of the other ballots. Mr. Jacobs
immediately orally protested to the effect that
a distinguishing color on his single ballot would
destroy its secrecy, and that therefore he was
not being given the opportunity to cast a secret
ballot. He was instructed to take the ballot and
to vote , and he entered the polling booth. He
thereupon decided that he would not vote by
the use of a distinctively identifiable ballot, and
did not mark same. Mr. Jacobs then returned
to the table where were seated the Board Agent
and official observers , again stating that he
could not vote, and would not vote, unless the
secrecy of his ballot was preserved. He claims
that notwithstanding this he was instructed by
the Board Agent to deposit his unmarked blank
ballot in the ballot receptacle . When the com-
pany observer was requested to sign Form 750,
I All dates are in the year 1967 unless otherwise noted.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certification on Conduct of Election, she
stated that she could not sign in relation to Mr.
Jacobs' voting group because it was not a
secret ballot. It will be observed that her signa-
ture does not appear on one of the two Forms
750. Solely through inadvertence her signature
was taken as to the certification on voting
group A, which was Mr. Jacobs' group, and her
signature was withheld from the certification of
voting group B. However, her expressed and
actual intention at the time was to withhold her
signature from the Certification On Conduct of
Election for voting Group A, since that was the
group which she stated had not been accorded
a secret ballot. H. L. Sutton, observer for the
Union, expressed the same objection and made
the same contention that Mr. Jacobs had [sic]
not been afforded the opportunity of a secret
ballot; but upon the request of the Board Agent
did sign the certification covering the voting
group for Mr. Jacobs. The Tally of Ballots
showed that 13 votes were cast for the Union
and 12 votes were cast for No Union. There
were two challenged ballots. Assuming that the
challenges are sustained, it is obvious that the
single vote of Mr. Jacobs could control the out-
come of the election. Under the unusual factual
circumstances, present in this case, it is the
Employer's contention that the required
secrecy of the ballot was not preserved as to
voting Group A, and that the specific require-
ments of the Act were unfortunately and unin-
tentionally violated in the conduct of this elec-
tion. There is absolutely no suggestion or al-
legation of intentional improper conduct in the
matter by the Regional office or any Board
representative. We believe that the established
and usual procedures were carefully followed,
but, again, that the peculiar circumstances here
resulted in the failure to effectuate a secret bal-
lot election as to the voting Group A.
In accordance with established Board procedure
in self-determination elections for professional em-
ployees, the ballot for the pharmacist contained the
two questions referred to above. Thus, even if the
pharmacist's ballot had been the same color as the
ballots for the voters in voting group B, it would
have been distinguishable. It is also noted that the
Board has directed the opening and counting of one
challenged ballot, where such ballot was determina-
tive of the outcome of the election. Under these cir-
cumstances, it is concluded that the objections do
not raise substantial or material issues with respect
to the election and it is recommended that the
Board overrule them.
SUMMARY
In summary, it is recommended that the Board
sustain the challenges to the ballots of Joanne True
and Paul Zimmer, overrule the objections, and issue
an appropriate certification of representative.
Within the time prescribed by the Board's Rules
and Regulations, any party may file with the Board
in Washington, D. C., an original and seven copies
of exceptions thereto. Immediately upon the filing
of such exceptions, the party filing the same shall
serve a copy thereof on each of the other parties,
and shall file a copy with the Acting Regional
Director. A statement of service shall be made to
the Board simultaneously with the filing of excep-
tions. If no exceptions are filed, the Board may de-
cide the matter forthwith upon the record, or may
make other disposition of the case.