John Irving Stores of Chicago, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1952

101 N.L.R.B. 82 (N.L.R.B. 1952)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These facts are determinative of the present dispute. The Board
has held that Sections 8 (b) (4) (D) and 10 (k) "do not deprive an
employer of the right to assign work to his own employees, nor were
they intended to interfere with an employer's freedom to hire, subject
only to the requirement against discrimination as contained in Sec-
tion 8 (a) (3)."4 Consequently, in determining this dispute, it is
sufficient on the facts before us that Vega Otero assigned the work to
its own employees and that the Respondents engaged in proscribed
activities to force or require Vega Otero to assign this work to their
own members.
Accordingly, we find that the Respondents are not lawfully entitled
to force or require Vega Otero to assign the work of unloading from
its trucks and stacking refined sugar on the piers at San Juan, Puerto
Rico, to their members rather than to employees of Vega Otero.°
Determination of Dispute
On the basis of the foregoing findings of fact and the entire record
in this case, the Board makes the following determination of the
dispute, pursuant to Section 10 (k) of the amended Act:
1. International Longshoremen's Association, District Council of
Ports of Puerto Rico, AFL, its president E. G. Moreno, and its Locals
1740 and 1674 are not, and have not been lawfully entitled to force or
require Francisco Vega Otero, d/b/a Compania de Transporte Fran-
cisco Vega Otero to assign the work of unloading and stacking refined
sugar on the piers at San Juan, Puerto Rico, to members of their
organizations rather than to employees of Vega Otero.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, each of the Respondents shall notify the Re-
gional Director for the Twenty-fourth Region, in writing, as to what
steps the Respondents have taken to comply with the terms of this
Decision and Determination of Dispute.
4 United Brotherhood of Carpenters and Joiners of America, et al. (Stroh Brewery
Company), 88 NLRB 844; Juneau Spruce Corporation, 82. NLRB 050.
5 Direct Transit Lines, 92 NLRB 1715.
JOHN IRVING STORES OF CHICAGO, INC., THE NATIONALLY FAMOUS MARY
JANE SHOE STORES OF ILLINOIS, INC., and CHICAGO JOINT BOARD,
RETAIL, WHOLESALE & DEPARTMENT STORE UNION, C. I. 0., PETI-
TIONER. Case No. 13-RC-2664. October 23,1952
Decision and Order
On May 13, 1952, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
101 NLRB No. 21.
JOHN IRVING STORES OF CHICAGO, INC. 83
direction and supervision of the Regional Director for the Thirteenth
Region among the employees in the stipulated unit. Upon the conclu-
sion of the election, a tally of ballots was issued and duly served upon
the parties. The tally reveals that of approximately 23 eligible voters,
21 cast valid ballots, of which 3 were for and 14 were against the
Petitioner; there were 4 challenged ballots.
Thereafter, the Petitioner filed timely objections to conduct affect-
ing the results of the election. In accordance with the Board's Rules
and Regulations, the Regional Director investigated the matters
raised by the objections and issued and duly served upon the parties
his report on objections, in which he recommended that the election
be set aside. The Employer filed timely exceptions to the Regional
Director's report on objections.
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 Styles and
Peterson].
The Regional Director's report shows, inter alia,l that the Employer,
which operates several retail shoe stores, normally closes its State
Street store, where all but three of the eligible employees worked, at
6 p. m. The election was scheduled to be held between 7 and 9:30
p. m. on the day of the week when the employees were normally
required to remain after 6 p. m. to assist in changing window dis-
plays. During the day on which the election was scheduled to be
held, the manager of the State Street store asked the employees at
that store if they would remain after work, before going to the polling
place, to listen to a speech which he wished to read; the employees
were also told that they were not required to remain. The employees
at the other stores were not requested to attend the meeting.
After the State Street store closed, at 6 p. m., the employees for the
next half-hour assisted in changing window displays. At about 6:30,
the 16 employees then at the store, including 2 from the Employer's
other stores, assembled on the lower floor of the store, where they
listened to the manager read a prepared speech urging the employees to
vote against the Petitioner. During the course of the speech, a repre-
sentative of the Petitioner requested permission to attend the meeting,
but such permission was refused by the manager in the presence of the
assembled employees. Upon the conclusion of the speech, at about
6:45, some of the employees resumed work on the window displays,
and others proceeded to the polling place, where they arrived about
15 minutes after the polls had been scheduled to open. The employees
were not paid for the time spent at the meeting.
' In view of our findings with respect to the matters considered herein, we find it unneces-
sary to consider the Regional Director 's findings with respect to the other objections
raised by the Petitioner , or the Employer's exceptions thereto.
242305-53-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director based his recommendation that the election
be set aside upon the foregoing circumstances. The Employer con-
tends, however, that such circumstances do not constitute a basis for
setting the election aside, in substance on the grounds (1) that attend-
ance at the meeting was voluntary and not on company time; (2) that
there was no evidence of a no-solicitation rule at the store; (3) that
the Petitioner never requested permission to address the employees
at the store; and (4) that the timing of the speech did not prevent the
Petitioner from presenting its position to the employees. We find no
merit in these contentions.
As the Board has held, it is essential to a free and fair election
that the employees be able to hear both sides of the story under
circumstances which reasonably approximate equality.2 And as the
Board has also held, an employer discriminatorily prejudices the
atmosphere which is essential to the fair exercise of their franchise
by the voters, when he so times the presentation of his views on the
question of union representation, by preempting the last opportunity
for discussion and argumentation, as to make the presentation of the
union's views under equal circumstances a physical impossibility .3 We
believe that the circumstances under which the manager's speech was
delivered to the employees involved herein were prejudicial to the
free and fair exercise of that franchise. Not only was the speech
so timed as to make a presentation of the Petitioner's views under
equal conditions a physical impossibility, but the discriminatory use
of the Employer's property 4 was further emphasized to the employees
by the refusal to permit the Petitioner's representative to attend the
meeting; under such circumstances, a request for an opportunity to
address the assembled employees would obviously have been futile.b
Moreover, the employees' time, by virtue of their window trimming
duties, was effectively under the Employer's control up until the time
of the meeting and, in some cases, after the meeting, thereby assuring
the employees' availability as an audience for the speech. By the
same token, their availability as an audience for the Petitioner was
effectively foreclosed. Accordingly, the prejudice resulting from the
timing of the manager's speech was not counteracted by the absence
of evidence as to a no-solicitation rule, or the opportunities which
2 See Onondaga Pottery Company, 100 NLRB 1143.
8 The Hills Brothers Company, 100 NLRB 964
4 See J J Newberry Co , 100 NLRB 1140.
5 The Hills Brothers Company, supra. On the facts in this case , Silver Knit Hosiery
Mills , Inc, 99 NLRB 492, relied on by the Employer , is clearly inapposite.
Chairman Herzog concurs in this decision only because he regards the rejection of the
Petitioner 's express request to attend the meeting as tantamount to a denial of an oppor-
tunity for the Union to express its opinion of the issues under parallel circumstances. See,
however, the Chairman ' s dissent in Foreman & Clark, Inc ., 101 NLRB No. 12.
NORTHWEST MAGNESITE COMPANY 85
the Petitioner may have had to present its views to the employees
under other circumstances.°
Under all the circumstances of this case, we are satisfied that the
atmosphere under which the election was conducted casts serious doubt
on whether the results of that election reflect the uninhibited desires
of the employees.' We shall therefore set the election aside and shall
direct the Regional Director to conduct a new election at such time
as he deems appropriate.
Order
IT IS HEREBY ORDERED that the election held in this proceeding on
May 13, 1952, be, and it hereby is, set aside; and
IT IS HEREBY FURTHER ORDERED that this proceeding be remanded to
the Regional Director for the Thirteenth Region for the purpose of
conducting a new election at such time as he deems the circumstances
permit a free choice of a bargaining representative.
6 Onondaga Pottery Company, supra.
* General Shoe Corporation, 77 NLRB 124.
NORTHWEST MAGNESITE COMPANY and UNITED STEELWORKERS OF
AMERICA, CIO, PETITIONER. Case No. 19-RC-1120. October 23,
1950
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before E. R. Ormsbee, hearing offi-
cer. 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 Act, the Board
has delegated it powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following rea-
sons:
' At the hearing, the Intervenor moved to dismiss the petition upon the ground that an
existing collective bargaining contract is a bar. For reasons set forth infra, the motion
is hereby granted.
101 NLRB No. 28.