York Dress Shops

National Labor Relations Board - Board Decisions

Mar 23, 1955

111 N.L.R.B. 1094 (N.L.R.B. 1955)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of amiability" which must have indicated to employees that the
Employer preferred a victory by the Intervenor at the polls.
Even assuming the facts to be as alleged by the Petitioner, we find
insufficient basis in the exceptions for setting aside the election. In
so holding, we reject as too speculative in character the inference which
the Petitioner would have us draw as to the impact upon employees of
the conversation in question.4 And the exceptions do not advert to any
other evidence which would support a finding of electioneering or other
improper conduct on the part of Brooks at or near the polling place.
In the circumstances, we do not regard Brooks' presence on the Em-
ployer's premises during the election as sufficient grounds for setting
aside the election.5 We therefore find that the Employer's second
objection is without merit and it is hereby overruled.
Because the tally shows that a majority of the valid votes have
been cast for the Intervenor, we shall certify the Intervenor as the
collective-bargaining representative of the employees in the appro
priate unit.
[The Board certified Oakland Printing Pressmen and Assistants
Union, Local 125, AFL, as the designated collective bargaining repre-
sentative of the employees in the unit found appropriate.]
4 It is noted that there is nothing in the record to indicate that the observer for the
Petitioner at any time objected to Brooks' presence Furthermore , at the close of the
election the Petitioner ' s representative certified that the "balloting was fairly conducted,
that all eligible voters were given an opportunity to vote their ballots in secret, and that
the ballot box was protected in the interest of a fair and secret vote "
5 Cf Gastonia Combed Yarn Corporation, 109 NLRB 585 , wherein the Board pointed
out that "the mere presence of union representatives at or near the polling place , without
proof of electioneering or other improper conduct, is not prejudicial and insufficient
grounds for setting aside an election."
HAMMOND-HOHMAN CORPORATION D/B/A YORK DRESS SHOPS and RE-
TAIL CLERKS UNION LOCAL 1460 , RETAIL CLERKS INTERNATIONAL
ASSOCIATION , AFL, PETITIONER . Case No. 13-ROi-3484. March
23,1955
Supplemental Decision and Certification of Representatives
Pursuant to a Decision and Direction of Election 'issued on Decem-
ber 14, 1954, all election by secret ballot was conducted on January
12, 1955, under the direction and supervision of the Regional Direc-
tor for the Thirteenth Region, among the employees of the Employer
in the unit designated in the Decision and Direction of Election, to
determine whether or not they wished the Petitioner to represent them
for the purposes of collective bargaining. Thereafter, a tally of bal-
i Not reported in printed volumes of Board Decisions and Orders
111 NLRB No. 184.
YORK DRESS SHOPS 1095
lots was furnished to the parties which shows that of approximately
8 eligible employees, 7 cast ballots, of which 5 were for the Petitioner,
1 against the Petitioner, and 1 was challenged.
On January 14, 1955, the Employer filed timely objections to the
election upon the principal ground that a Board representative's tim-
ing and methods of investigation of unfair labor practice charges filed
by the Petitioner herein against the Employer had the effect of influ-
encing the Employer's employees to vote in favor of the Petitioner,
thereby preventing the employees from exercising a free choice in the
election.
Thereafter, pursuant to Section 102.61 of the Board's Rules and
Regulations, the Regional Director conducted an investigation and on
February 7, 1955, issued and duly served upon the parties his report
on objections. He found that the objections raised no material issues
with respect to conduct affecting the election and recommended that
the objections be overruled and that the Petitioner be certified as the
bargaining representative of the employees in the appropriate unit.
On February 17, 1955, the Employer filed timely exceptions to the
Regional Director's report, which exceptions, in effect, reiterated the
contentions raised in the Employer's objections to the election.
The Board has reviewed the Employer's objections to the election,
the Employer's supplement to the objections to the election with the
statement of employees annexed, the Regional Director's report, and
the Employer's exceptions thereto and, like the Regional Director, we
find that the objections do not raise material or substantial issues with
respect to the election for the following reasons :
The petition herein was filed on June 30,1953, and a hearing thereon
was held during September 1953. Pending the hearing, the Petitioner
filed unfair labor practice charges against the Employer which were
followed by two amended charges. A complaint in that proceeding
was issued on November 17, 1953. In order to expedite the instant
representation proceeding, the Petitioner filed a waiver with the
Board to the effect that it would not base objections to an election
upon the matters involved in the unfair labor practice charges. The
Decision and Direction of Election in this proceeding was issued on
December 24, 1954.' In the public interest, the Regional Director pru-
dently withheld the hearing of the unfair labor practice charges until
the decision herein, asserting jurisdiction, issued, thereby avoiding
what could well have been an unnecessary expenditure of funds had
the Board decided not to assert jurisdiction. However, upon the issu-
ance of the Board's decision, the Regional Director promptly began to
interview witnesses in preparation for a hearing on the complaint
2 The delay in issuance of the Decision and Direction of Election was caused by the
fact that the Board , during the elapsed time , was evolving new jurisdictional standards
and it therefore became necessary to obtain additional information regarding the Em-
ployer's operations.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which had been scheduled for January 15, 1955, 5 days after the date
set for the election herein. The Employer's objections go to the tim-
ing and nature of these interviews by a representative of the General
Counsel.
As indicated above, the delay in holding a hearing on the complaint
was due to the Regional Director's laudable objective of deferring
substantive litigation until the Board had resolved the jurisdictional
issue in the instant proceeding. Once that issue was resolved, the
Regional Director's action in promptly scheduling and preparing for
a hearing on the complaint, notwithstanding the pendency of the
election, was in accord with the Board's established waiver policy.
This policy of requiring labor organizations to waive matters included
in unfair labor practice charges as ground for objecting to election
results was designed to prevent undue delay in determining repre-
sentation questions by permitting simultaneous and separate litigation
in representation and complaint proceedings. We agree with the
Regional Director that the interview of witnesses in connection with
the scheduled complaint hearing did not interfere with a free choice
by the employees in the election.
In addition to the foregoing, the Employer's contention that the
questions of the General Counsel's representative in her pretrial inter-
view of witnesses could reasonably have led to an inference that the
Board favored the Petitioner and to a further inference that the
Board was biased against the Employer, is not supported by the
record. The Board, in unfair labor practice proceedings, has always
considered relevant at the hearing and therefore subject to investiga-
tion, any events which could constitute unfair labor practices even
though such events might occur subsequent to the filing of the charges
and are not included therein. Therefore, the questioning by the Gen-
eral Counsel's representative as to matters which took place after the
charges against the Employer herein were filed was proper. More-
over, while the Regional Director's report shows that the representa-
tive's questioning of the employees was vigorous in an attempt to
obtain information necessary to prepare for a proper prosecution of
the charges at the scheduled hearing, the General Counsel's representa-
tive was equally vigorous in taking precautions to emphasize the
Board's neutrality in the matter and to disassociate herself and the
Board from any possible inference of connection with the Petitioner.
Under all the foregoing circumstances, and on the basis of the entire
record, we are of the opinion that the investigation was not conducted
in such a manner or at such time as to interfere with the exercise of
a free choice on the part of the employees in the selection by them of a
collective-bargaining representative. Accordingly, the Employer's
exceptions to the Regional Director's report on elections are hereby
overruled.
W. P. R. A. INC. 1097 '
As the tally of ballots shows a majority of the ballots were cast for
the Petitioner, we shall certify that labor organization as the collec-
tive-bargaining representative of the employees in the appropriate
unit.
[The Board certified Retail Clerks Union Local 1460, Retail Clerks
International Association, AFL, as the designated bargaining repre-
sentative of the employees of Hammond-Hohman Corporation d/b/a
York Dress Shops, Hammond, Indiana, in the appropriate unit.]
W. P. R. A. INC. and GREMIO DE PRESA, RADIO, TEATRO Y TELEVISION
DE PUERTO Rico, IND . Case No. 924-CA-534. March $4, 1955
Decision and Order
On December 30, 1954, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
jurisdiction should not be asserted over the Respondent under the
Board's new jurisdictional standards, and therefore recommending
that the complaint be dismissed, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Union filed excep-
tions to the Intermediate Report and a request for oral argument.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.' The Union's request for oral argument is denied,
because the record and exceptions, in our opinion, adequately present
the issues and the positions of the parties.
[The Board dismissed the complaint.]
I See South P R. Broadcasting Corp., d/b/a Radio Station WISO, 111 NLRB 272 , where,
as in the instant case, the employer' s gross income from the operation of a radio station
in Puerto Rico was below the minimum figures established by the Board for the assertion
of jurisdiction over radio stations , and therefore the Board did not assert jurisdiction.
Also Cantera Providenoia, 111 NLRB 848. Member Murdock in signing this decision
directs attention to the fact that in the Cantera case he dissented from the adoption of
the policy of applying United States jurisdictional standards to Puerto Rico and other
Territories in place of the Board's former plenary policy.
Intermediate Report and Recommended Order
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act, was heard before the under-
signed at Santurce , Puerto Rico , on October 4, 1954 , and on October 5, 6, 7, and 8,
1954, at Mayaguez, Puerto Rico , pursuant to due notice to all parties . The case
involves W. P. R. A. Inc., herein called the Respondent , a corporation organized
and existing by virtue of the laws of the Commonwealth of Puerto Rico, with its
111 NLRB No. 186.