Gray Drug Stores, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1951

95 N.L.R.B. 171 (N.L.R.B. 1951)

GRAY DRUG STORES, INC. 171
(BRAY DRUG STORES, INC. and RETAIL CLERKS INTERNATIONAL Asso-
CIATION LOCAL No. 1059, AFL, PETITIONER . Case No. 9-RC-1140.
July 13,1951
Decision and Certification of Representatives
On April 4, 1951, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted among
1 he employees in the stipulated unit under the direction and supervi-,
sion of the Regional Director for the Ninth Region. Upon the com-
pletion of the eleotion, the Regional Director issued and duly served
a tally of, ballots upon the parties concerned. The tally shows that
the vote was distributed as follows :
Approximate number of eligible voters-------------------------- 240
Void ballots---------------------------------------------------- 3
Votes cast for Petitioner---------------------------------------- 100
Votes cast against Petitioner ------------------------------------ 81
Valid votes counted--------- ----------------------------------- 181
Challenged ballots---------------------------------------------- 13
Valid votes counted plus challenged ballots-- --------------------- 194
On April 9, 1951, the Employer filed objections to conduct affecting
the results of the election. After an investigation, the Regional Di-
rector, on May 14, 1951, issued his report on objections in which he
found that the objections were without merit and recommended that
they be overruled. Thereafter the Employer filed timely exceptions
to the Regional Director's report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Reynolds].
Upon the basis of the entire record in this case, the Board makes
the following findings of fact :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-.
ployees of the Employer.
3. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. All employees of the Employer's retail stores located in Franklin
County, Ohio, including all regular part-time employees scheduled
to work 8 hours or more per week, but excluding store managers,..
assistant store managers, pharmacists, store checkers, postal substa-
tion clerks, window trimmers, photo finishing department employees,
porters, office and clerical employees, guards, professional employees,
and supervisors as defined in he Act; constitute a unit appropriate
95 NLRB No. 28.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.,
5. In its objections, the Employer alleged that (1) a free and fair
election was prevented by the Petitioner's preelection circulation of
marked sample ballots which were identical in appearance to that
posted on the Board's official notice of election; (2) the employees'
free choice was inhibited by the distribution before election of false
and scurrilous statements by the Petitioner concerning the Company,
its officers, conduct, and policies; (3) the Employer was aggrieved
by the action of the Board's agent in refusing to allow two eligible
voters to cast their ballots when they appeared at the polls at Store
No. 62, and further, that a third voter was denied the opportunity
to vote due to the fact that she was temporarily engaged with a
customer at the time; and (4) the Employer's position was prejudiced
by the fact that the Board's agent challenged the right of a voter
to cast a ballot, and "accused" her of being a supervisor.
Objection (1) .-The Regional Director's investigation disclosed
that the Petitioner circulated among the employees before the election
marked sample ballots which were exact facsimiles (other than the
marks in the "Yes" box) of the Board's official ballot as shown on
the Regional Director's notice of election. Neither the facsimiles as
circulated nor the ballot as shown on the notice of election contained
the signature of the Regional Director or any representative of the
Board, and both of them prominently carried the word "SAMPLE"
across their face. We have previously held that where the distributed
sample ballot is clearly marked "SAMPLE" and does not bear the
name of the Board's official representative, the employees eligible
to vote are not likely to be misled and there is no prejudice to the
rights of any party to the election.2 Accordingly, the objection is
overruled.
Objection (2).-The -Petitioner distributed preelection campaign
circulars containing statements to the effect that the Employer paid
wages that were less than the "federal minimum level," and that the
Employer was not in fact willing to raise wages although it could
raise them 10 percent without Federal approval. The circulars also
purported to answer an argument by the Employer that union mem-
bers would be subject to initiation fees, fines, and assessments, by the
statement that "the federal labor law . . . makes fines and assessments
uncollectible." The Employer contends that all these statements
were false and misleading, alleging that (a) the Fair Labor Standards
Act does not apply to the Employer's retail stores, (b) under.wage
'This is the unit agreed upon in the stipulation for the consent election and used by
the parties and the Board's representative as the basis for determining voter eligibility.
2 Gate City Table Co., Inc., 87 NLRB 1120. Cf . The Am-O-Krome Company, 92 NLRB
893. See also Sears, Roebuck & Co., 47 NLRB 291. 1
GRAY DRUG STORES, INC. 173
stabilization 10-percent wage increases are granted only "in certain
circumstances," and (c) the statement as to fines and assessments is
a deliberate misrepresentation of Federal labor law.
The -Petitioner's preelection circulars, however, contain no threats
or other elements of intimidation or coercion. The Board has held
that it cannot censor the information, misinformation, argument, and
statements of opinion which accompany preelection campaigns. In
the absence of violence the Board has not undertaken to police such
campaigns, as by weighing the truth or falsity of campaign utter-
ances.3 As it is apparent that the Petitioner's statements mentioned
above were no more than mere preelection propaganda, which the
Employer, if he chose, was privileged to answer, we find no merit
in this objection and shall overrule it.
Objection (3).-In its objections, the Employer asserts that the
Board's agent prevented two eligible voters from voting who pre-
sented themselves at the polls at store No. 62; and that one eligible
voter at this store was not given the opportunity to vote because she
was temporarily engaged with a customer at the time. The Regional
Director reports the Employer's contention to be that employees Daisy
Dunno and Adelaide Mattingley were arbitrarily prevented from vot-
ing by the Board agent because they presented themselves at the.
polling place a few seconds after the scheduled voting time, and that
employee Margaret Neff was prevented from voting because she was
temporarily delayed while waiting on a customer. The Regional Di-
rector found, in effect, that Dunno presented herself to vote after
the polls were closed, and that Mattingley did not appear at the polls
-at any time. As to Neff, he found that she had ample opportunity to
become acquainted with the time of the polling and thereby safeguard
her right to vote. The Employer does not except to the Regional
Director's specific findings of evidence, disclosed by his investigation,
but only to the statement in.his report that the Employer concedes
that Dunno went to the polling place a few seconds after the close
of the scheduled voting time. The Regional Director concluded that
1zo employee who appeared at the polling place to vote during the
designated polling periods was denied an opportunity to vote. We
shall adopt the Regional Director's findings and conclusions, and
overrule the objection.
Objection (4).-The Employer further alleges in its objections that
the Board agent improperly challenged an eligible employee at store
No. 62, and "accused" her of being a supervisor. The Regional Di-
rector reported that this employee, Mattilda Brandon, was erroneously
omitted from the eligibility list submitted by the Employer, and that
the Board agent questioned her eligibility when she appeared to vote
8 Maywood Hoisery Mills , Inc., 64 NLRB 146, 150 . See also Wiley Mfg., Inc., 93
NLRB No. 267; Balboa Pacific Corporation, 92 NLRB 85.
174 DECISIONS OF;-;NATIONAL: LABOR RELATIONS BOARD
during the morning period,.-but did not deny her an opportunity to
cast a challenged ballot if she so desired. The erroneous omission of
her name was thereafter corrected by agreement of the parties, and
she cast an unchallenged ballot during the afternoon voting: period.
The Employer does not except to'these'factual findings. We find that
the action of the Board agent was proper under the circumstances.
We shall overrule the objection.
As the tally of ballots shows that the Petitioner has received a ma-
jority of the valid votes cast, and as the challenged ballots are not
sufficient in number to affect the results of the election, we shall certify
the Petitioner.
Certification of Representatives
IT IS HEREBY CERTIFIED that Retail Clerks International Association
Local No. 1059, AFL, has been designated and selected by a majority
of the employees in the unit described in paragraph numbered 4, above,
as their representative for the purposes of collective bargaining, and
that pursuant to Section 9 (a) of the Act, Retail. Clerks International
Association' Local No. 1059, AFL, is the exclusive representative of
all such employees for the purposes of collective bargaining ,with re-
tpect to rates of pay, wages, hours of employment, and other, condi-
tions of employment.
TIDE WATER ASSOCIATED OIL COMPANY and OIL WORKERS INTERNA-
TIONAL UNION, CIO . Case No. 20-CA-170. July 13, 1951
Order Dismissing Complaint
On June 28, 1949, the General Counsel issued a complaint against
the Respondent in the above-entitled proceeding alleging that ' the
Respondent had engaged. in and was engaging in unfair labor prac-
tices within the meaning of the Act. On various dates between
October 25 and November 10, 1949; a hearing in this proceeding was
held before Trial Examiner Peter F. Ward. A further hearing was
held before the Trial Examiner on June A 5, 1950. On October 10,
1950, the Trial' Examiner issued his Intermediate Report making
certain findings, conclusions, and recommendations. Thereafter, the
Respondent, the Union, and the General Counsel filed exceptions to-
the Intermediate Report and supporting briefs._
On May 25, 1951, the Respondent filed with the Board and duly
served upon the parties a separate document in which it renewed the
motion to dismiss the complaint in its entirety which it initially made
at the hearing. No responses were received from the parties in opposi-
motion. ' The motion is grounded in substance upon thetion to the
95 NLRB No. 33.