Cherry and Webb Co.

National Labor Relations Board - Board Decisions

May 22, 1951

94 N.L.R.B. 780 (N.L.R.B. 1951)

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses that the Employer, upon its request, has been
provided with the.assistance of a representative of Butler Brothers
in arranging merchandise for display, that an auditor supplied.by
Butler Brothers has visited the store for the purpose of auditing
the books, that a representative of Butler Brothers assisted the Em-
ployer in negotiating the lease for store No. 2 which was opened in
November 1950, and that the Employer has requested Butler Brothers
to supply an expert to assist the manager of store No. 2 in ordering
and displaying merchandise.
The record discloses, however, that Butler Brothers has no control
over the personnel or labor policies of the Employer, has no financial
interest in the stores, has no requirement that the Employer maintain
any minimum stock inventory, and that the merchandise sold by the
Employer does not carry a "Ben Franklin" label. In addition, the
Employer is not required to purchase any merchandise from Butler
Brothers and does purchase a substantial quantity of merchandise
from competitors of Butler Brothers.
In view of all these circumstances, we find that the Employer's
operations are not so related to those of Butler Brothers and the degree
of control exercised by Butler Brothers is not so extensive as to war-
rant the assertion of jurisdiction over the Employer as an integral
part of a multistate enterprise .5 As the record discloses that the
Employer's operations fail to meet any of the other recently an-
nounced standards for the assertion of jurisdiction, we shall dismiss
the petition.
Order
IT IS ORDERED that the petition be, and it hereby is, dismissed.
5 Cf Baxter Bros, 91 NLRB 1480; see Pacific Dental Laboratory of San Franctisco,
91 NLRB 1140.
CHERRY AND WEBB COMPANY, PROVIDENCE and RETAIL, WHOLESALE,
AND DEPARTMENT STORE UNION, CIO, PETITIONER. Case No. 1-RC-
1993. May 22, 1951
Supplemental Decision and Order
On February 5, 1951, pursuant to a Decision and Direction of
Election issued herein by the Board,' an election by secret ballot was
conducted under the direction and supervision of the Regional Direc-
tor for the First Region among the employees in the unit found
appropriate in the Board's decision. Upon the completion of the
election, a tally of ballots was furnished the parties. The tally
1 93 NLRB 9
94 NLRB No 105
CHERRY AND WEBB COMPANY 781
showed that, of the approximately 206 eligible voters, 185 cast valid
ballots, of which 71 were for and 114 against the Petitioner.
On March 1, 1951, the Petitioner filed timely objections to conduct
affecting the results of the election, alleging that the Employer had
engaged in conduct which interfered with the rights of the employees
freely to designate their bargaining representative. In accordance
with the Rules and Regulations of the Board, the Regional Director
conducted an investigation and, on March 29, 1951, issued and served
upon the parties his report on objections, in which he found that the
objections were without merit and recommended that the objections
be overruled and the petition herein dismissed. On April 9, 1951,
the Petitioner timely filed exceptions to the Regional Director's report
on objections.
The Petitioner requests that the election be set aside on the grounds :
(1) That the Employer granted certain wage benefits to some of its
employees while the petition was pending; (2) that the Employer
interfered with the free choice of a bargaining representative by
promises of benefits and threats of reprisal made in speeches by a
member of the firm at various stages during the organizational cam-
paign; and (3) that one week before the election the Employer posted
a sketch of a proposed new lounge and rest room for employees.
We 2 agree with the Regional Director's finding that, as the wage
increases were granted, to the Petitioner's knowledge, more than 2
months prior to the election, and as the Petitioner neither protested
holding the election nor filed unfair labor practice charges, it waived
its right to attack the result of the election on the basis of those wage
increases.3
We also agree with the Regional Director's finding that the speeches
made by William Cherry, a member of the-Employer's firm, while
openly antiunion, did not contain any promises of benefit or threats
of reprisal and were not of such a nature as to make the free selection
of a bargaining representative impossible. We further agree that
posting the sketch for a new lounge, under the circumstances of this
case,4 does not constitute a ground for setting aside the election.
Having found that the objections filed by the Petitioner do not
raise substantial and material issues, we hereby overrule the objections
and deny the Petitioner's request for a hearing thereon. As no
collective bargaining representative was chosen in the election, we
shall dismiss the petition.
2 Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel [Members Houston, illmdock, and Styles]
3Denton Sleeping Garment Mills, Inc, 93 NLRB 329, Inteinatxonal Harvester Com-
pany, West Pullman Works, 93 NLRB No 48
4 The Regional Director' s ini estigation revealed that the proposed lounge was in line
with the Employer's model nization policy , and that the sketch was posted without comment
or explanatory letter
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
BILL HEATH and INTERNATIONAL ASSOCIATION OF MACHINISTS, DIS-
TRICT LODGE #727. Case No. 21-CA-783. May 203, 1951
Decision and Order
On January 15, 1951, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
The Respondent's request for oral argument is hereby denied, as
the record and briefs, in our opinion, adequately present the issues,
and the positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications :
1. The Trial Examiner found that Engilman, by various state-
ments set forth in the Intermediate Report, violated Section 8 (a)
(1) of the Act. We agree with the Trial Examiner except with
respect to his finding based on Engilman's alleged statement that
"the Respondent would not sign a contract with the Union." The
record does not show that Engilman made this statement.
2. The General Counsel excepted to the Trial Examiner's failure
to make a finding with respect to Service Manager Miller's interro-
gation of employee Kenneth Reed concerning the latter's desire for
union representation. Reed testified, without refutation, that Miller,
on the day of the Board-conducted election, asked Reed "how was
he [Reed] going to vote." We find that such interrogation by Miller,
a supervisor within the meaning of the Act, is per se violative of
Section 8 (a) (1) of the Act.2
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Reynolds and Murdock].
2 Supreme Bedding and Furniture Manufacturing Company, Inc., 93 NLRB 1616;
Standard-Coosa-Thatcher Company, 85 NLRB 1358.
94 NLRB No. 124.