Food Fair Stores of Florida, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1958

120 N.L.R.B. 1669 (N.L.R.B. 1958)

FOOD FAIR STORES OF FLORIDA, INC . 1669
terials or commodities or to perform any services , where an object thereof
is to force or require any of said employers to cease doing business with any
other person.
LOCAL No . 475, HOD CARRIERS , BUILDING
& COMMON LABORERS INTERNATIONAL
UNION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Food Fair Stores of Florida , Inc. and Retail Clerks Interna-
tional Association , Local 1636, AFL-CIO, Petitioner
Food Fair Stores of Florida , Inc. and Amalgamated Meat Cut-
ters and Butcher Workmen of North America, Local 282, AFL-
CIO. Ca8es Nos. 12-RC-183 and 12-RC-184. June 26, 1958
SUPPLEMENTAL DECISION, DIRECTION, ORDER, AND
DIRECTION OF SECOND ELECTION
Pursuant to a Decision and Direction of Elections issued on Novem-
ber 25, 1957,' elections by secret ballot were conducted simultaneously
under the supervision and direction of the Regional Director for the
Twelfth Region among the employees in the units found appropriate
by the Board. Following the elections, the parties were furnished
tallies of ballots.which show the following results:
Case No. 12-RC-183 (Unit I-Retail Clerks)
Approximate number of eligible voters------------------------ 239
Votes cast for Retail Clerks---------------------------------- 19
Votes cast against Retail Clerks------------------------------ 39
Valid votes counted----------------------------------------- 58
Challenged ballots------------------------------------------ 119
Case No. 1.2-RC-184 (Unit II-Meat Cutters)
Approximate number of eligible voters------------------------ 64
Votes cast for Meat Cutters---------------------------------- 19
Votes cast against Meat Cutters--------------------------..--- 33
Valid votes counted----------------------------------------- 52
Challenged ballots------------------------------------------ 10
It is clear from the foregoing that the number of challenged ballots
in Case No. 12-RC-183 is sufficient to affect the results of the election
in that case, and that the number of challenged ballots in Case No.
12-RC-184 is insufficient to affect the results of the election in that
case.
2119 NLRB 608.
120 NLRB No. 212.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Disposition of the Challenges in Case No. 12-RC-183
With a few exceptions 2 all of the challenges were made by' the
Employer pursuant to its general contention that the Board erred in
including in the unit of retail clerks, certain employees who exercise
supervisory authority, certain part-time employees, and employees of
the dairy departments - -
The Regional Director concluded that the assistant store managers
and the various department managers are supervisors within the
meaning of the Act; that the employees of the dairy department
should be included in the unit of meat department employees in Case
No. 12-RC-184; and that employees C. Glotfelter, M. Walker, and C.
Reed were ineligible to vote because they were not on the payroll on
the eligibility date and the date of the election. Accordingly, he
recommended that the challenges with respect to these employees be
sustained . As no exceptions have been taken to the Regional Direc-
tor's conclusions and recommendations with respect to these challenges,
we adopt his conclusions and we shall sustain the challenges. Further-
more , we shall amend the unit description in Case No. 12-RC-184, to
specifically include the dairy department employees therein." -
The Regional Director also found that employees P. Colton and H.
Sumner, management trainees, whose votes were challenged by the
Employer on the grounds of alleged supervisory authority, do not
presently act as supervisors, and their eventual appointment to super-
visory positions is not assured. Accordingly, he recommended that
the challenges to their ballots be overruled. In the absence of excep-
tions we adopt this recommendation 5 and we shall overrule the chal-
lenges to their ballots. -
The Employer takes exception to the Regional Director 's recom-
mendation that the challenges to approximately 90 part-time em-
ployees be overruled, contending that as such-employees do not have
a fixed work assignment from week to week or even within any par-
ticular workweek itself, and do not receive all the benefits applicable
to regular employees, they do not come within the Board's definition
of regular part-time employees.
We find no merit in such exceptions. The Regional Director cor-
rectly concluded that the part-time employees in issue are regularly
employed by the Employer. Therefore, in accordance with our usual
2 The Board agent conducting the election challenged certain employees whose names did
not appear on the eligibility list.
8 The employees of the dairy department were permitted to vote under challenge in both
elections.
* Because the inclusion of the dairy department employees in the meat department unit
does not alter the fact that the challenges in that election are insufficient to affect the
results, the Regional Director deemed it unnecessary to determine the status of the dairy
department manager.
5 See also Igleheart Brothers Division, General Foods Corporation, 96 NLRB 1005; The
Pearl Manufacturing Company, 80 NLRB 827.
FOOD FAIR STORES OF FLORIDA, INC. 1671
policy 6 we find that the part-time employees ° were eligible to vote in
the election anti we shall overrule the challenges to their ballots.
As the number of ballots, the challenges to which we have over-
ruled, is sufficient to affect the results of the election,' we shall direct
the Regional Director to open the ballots of P. Colton, and H. Sum-
ner, management trainees, and the ballots of the regular part-time
employees, to determine whether or not Petitioner, Retail Clerks, has
been chosen by a majority of the Employees in the unit heretofore'
found appropriate in Case No. 12-RC-183, as their representative for
purposes of collective bargaining.
The Objections to the Elections
On December 24, 1957, the Meat Cutters filed objections to the elec-
tion in Case No. 12-RC-184,9 and on December 30, the Retail Clerks,
filed timely objections to election in Case No. 12-RC-183.10
The Retail Clerks and the Meat Cutters raise five identical objec-
tions to the election. The Regional Director recommended that objec-
tions 2, 3, and 4 be overruled, but that objections 1 and 5 be sustained,
the elections be set aside, and new elections be directed. The Em-
ployer excepted to recommendations respecting objections 1 and 5.
No exceptions were filed by Retail Clerks or the Meat Cutters.
With respect to objections 1 and 5, investigation reveals that during-
the 10 days prior to December 18, the Employer's supervisors, Paul,
Whitley, and Vanderlike, engaged in the following conduct : Called an
employee into the supervisor's office to inform him that he had been
seen at a union meeting; informed an employee that the Company
would not continue to grant time off under union conditions; and'
promised a wage increase at a future time with the statement that
the "company would do more for you than the union." These inci-
9 See for example Greenberg Mercantile Corp., 112 NLRB 710
7 Such employees are listed in Regional Director 's report on challenges , numbers 30 to
119 inclusive.
s We deduct the number of employees found to be supervisors within the meaning of the-
Act (17) and the dairy department employees ( 10) from the approximate number of eli-
gible voters , leaving a total number of eligible voters of approximately 212. Petitioner
received a total of 39 of the valid votes counted . We have overruled the challenges to
92 ballots. -
9 We find no merit in the Employer 's contention that because the Meat Cutters mailed'
copies of the objection to the Employer by regular and first-class mail that it failed to
effectuate service of such document on the Employer . The Board has held that the use
of second-class mail did not destroy the validity of service, because there is nothing in-
the Board's Rules and Regulations which prescribe the exact classification of mail that
must be employed in serving of exceptions on another party. Poinsett Lumber Company,
116 NLRB 1732. This is equally true with respect to the service of objections
10 We find no merit in the Employer 's contention that Retail Clerks objections were un-
timely filed The election was concluded on December 20, 1957. In computing the 5-day
period allowed for filing objections in accordance with Section 102.83 of the Board's
Rules and Regulations , the day of the election , Saturdays , Sundays, and holidays are
excluded but the last day of the period to be computed is included . Accordingly , Decem-
ber 21, 22 , 25, 28, and 29, are to be excluded , and December 30, was the last day on,
which the Retail Clerks could timely file its objections.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dents all involved employees in the meat department unit.ll On De-
cember 17, within the 24-hour period immediately preceding the start
of the election in the Tampa store, Supervisor Paul summoned approx-
imately 5 meat department employees into his office at the rear of the
Tampa store, where he spoke to them for approximately 25 minutes,
interrogating them concerning their feelings toward the Union, stat-
ing that they could do as well for themselves without the Union;
promising that the Employer would give specific wage increases, the
same increases as the Miami Food Fair employees would receive pur-
suant to wage negotiations between the Employer and the Meat Cut-
ters ; and that he hoped they would vote.
On Wednesday, December 18, shortly before noon, Paul commenced
a systematic effort to inform employees in the meat department unit
that specific wage increases had been put into effect on December 16,
conforming to the increases negotiated for the Employer's east coast
stores in negotiations which were concluded on December 15. Paul
spoke in his office to each of the meat department employees at the
Tampa store on December 18, during the hours set for the voting of
the employees of that store, informing the employees exactly how the
wage increase affected them individually. On December 19, Paul
went to the Clearwater and St. Petersburg stores and repeated the
process of informing the employees in the same manner. The Clear-
water employees voted on December 1911and the St. Petersburg em-
ployees voted on December 20.
The Regional Director concluded that .by the foregoing conduct,
including the summoning of employees away from their places of
work to inform them of the wage increase, the Employer interfered
with the elections and recommended that they be set aside.
The Employer excepts to such recommendation, contending that,
as the wage increase was granted in accordance with company policy,
made known in advance to the employees, it does not furnish grounds
for setting aside the elections, and the other incidents relied upon by
the Regional Director were either nonobjectionable or so isolated as
not to affect the results.
We find no merit in these contentions. With respect to the granting
,of wage increases during the pendency of an election, it is true 'that
the Board has held such conduct is not, per se, grounds for setting
aside an election. However, such cases are an exception to the general
rule that precludes an employer from granting wage increases in order
to influence the employees in their selection of bargaining representa-
11 The Regional Director found that a supervisor also advised one of the employees in
the retail clerks unit, to vote no, as the union could not do him any good at all. We
find this incident to be nonobjectionable as involving no more than an expression of the
Employer's views with respect to effectiveness of the union as the representative of the
employees , which did not impinge upon the employee 's right to do as be pleased without
fear of retaliation or expectation of special benefits
FOOD FAIR STORES OF FLORIDA, INC. 1673
fives, and in the absence of a showing that the timing of the wage
increase or announcement thereof was governed by factors other than
the pendency of the election, the Board has set aside elections on the
ground that the granting of benefits at that particular time was calcu-
lated to influence the employees in their choice of a bargaining repre-
sentative.13 The burden of showing these factors is upon the
Employer.13 In the instant case, we can perceive no reason why, if the
sole purpose of the announcement was to inform the employees that
the promised wage increase had been granted, the announcement could
not have been made in the form of a general announcement, on De-
cember 16, the day the increases became effective, or made at a date
after the election. The mere fact that the Employer had previously
promised its employees that they would get the same wage increase as
was negotiated for employees in the east coast stores, and the fact
that the information as to how the increase affected individual em-
ployees was not available until December 18, when weighed against
the fact that the announcement was made to individual employees
called away from their work stations, and was so scheduled as to
coincide with the election hours at the Tampa and Clearwater stores,
and the day before the election at St. Petersburg store, when it would
have the "maximum possible impact upon the minds of the em-
ployees,"14 does not constitute a credible explanation for the timing or
manner of the announcement. Accordingly, we find that the timing
and manner of the announcement of the wage increase, as well as the
other conduct of the Employer's supervisors described above were
calculated to and did interfere with the election in Case No. 12-RC-
184, and we shall set it aside and direct a new election.
We do not agree, however, with the Regional Director's conclusion
that the above-described conduct requires that the election in Case No.
12-RC-183, be set aside. That election involved different groups of
employees whose community of interests are sufficiently separate and
distinct from those of the meat department employees to warrant their
establishment as a separate appropriate unit, and who were voting on
whether they desired representation by a different union than that
involved in Case No. 12-RC-184. In these circumstances it can not
be assumed that conduct which directly involved only meat depart-
ment employees and which interfered with their freedom of choice
necessarily had the same effect on the employees in a different unit in-
volved in a different election. Accordingly, in the absence of evi-
dence that the conduct was directed against any such employees, we
find there is insufficient grounds for setting aside the election in Case
No. 12-RC-183.
12 Glasser Bros., Inc ., 120 NLRB 965 ; Bata Shoe Company, Inc., 116 NLRB 1239.
15 Glosser Bros., Inc., supra.
14 The Bata Shoe Company, Inc., supra.
1674 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD
[The Board directed that the Regional Director for the Twelfth
Region shall, within ten (10 ) days from the date of issuance of this
Direction , open and count the ballots of P. Colton and H . Sumner,
management trainees , and the ballots of employees numbered 30 to
119 inclusive in the Regional Director 's report on objections and serve
upon the parties a revised tally of ballots.]
[The Board ordered that if, the Retail Clerks receives a majority of
the valid votes cast in the election conducted in Case No. 12-RC-183,
the Regional Director shall issue a certification of representatives.
If the Retail Clerks does not receive a majority of the valid votes cast,
the Regional Director shall issue a certification of results of election.]
[The Board further ordered the previous election conducted in Case
No. 12-RC-184, set aside.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision , Direction , Order , and Direction of Second
Election.
'Tung-Sol Electric , Inc. and Triangle Radio Tube Corp . and In-
ternational Union of Electrical Radio & Machine Workers,
AFL-CIO, Petitioner. Case No. 22-RC-6. June 26, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Aaron Weissman , hearing
-officer . The hearing officer 's rulings made at the,hearing are free
from prejudicial error and are hereby affirmed.'
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 ton three -member panel [Chairman Leedom and Members
Bean and Jenkins].
I At the hearing, the Intervenor submitted a list of names of employees , attached to a
statement which declared that they had never signed any authorization cards for the
Petitioner and that if any cards with their signatures were submitted in support of the
Petitioner 's showing of interest , the cards were fraudulent . The record shows that the
issue of fraud had been raised by the Intervenor and that the Regional Director had made
a spot check , after which he was satisfied with the validity of the Petitioner 's showing.
The Hearing officer denied the introduction of the proposed list or any offer of proof
based thereon, ruling that all such evidence must be submitted to the Regional Director.
We agree with the hearing officer's ruling . The list which was offered in support of the
Intervenor 's contention of fraud is of insufficient probative value to cast doubt on the
reliability of the showing . Moreover , a secret election , rather than a count of authoriza-
tion cards , will determine the employees' choice of a representative . The Babcock cE
Wilcox Company, 116 NLRB 1542.
120 NLRB No. 214.