Stern Brothers

In the Matter of STERN BROTHERS, EMPLOYER and DEPARTMENT STORE EMPLOYEES UNION, LOCAL 5, INDEPENDENT, PETITIONER Case No. 2-RC.-824 SUPPLEMENTAL DECISION AND ORDER November 10, 1949 On March 31, 1949, pursuant to a Decision and Direction of Election issued by the Board on March 11, 1949,1 an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Second Region. Upon completion of the election, a Tally of Ballots was issued and duly served by the Regional Director upon the parties concerned. The tally reveals that of approximately 1,488 eligible voters, 1,382 cast valid ballots, of which 763 were for the Petitioner, 612 for the Intervenor, Retail Clerks International Asso- ciation, AFL, and 7 against both. Thereafter the Intervenor filed Objections to the Conduct of the Election and Conduct Affecting the Results of the Election. In ac- cordance with the Board's Rules and Regulations, the Regional Direc- tor conducted an investigation and issued and duly served upon the parties a Report on Objections to which the Intervenor filed Excep- tions. On July 25, 1949, the Board, having considered the Regional Director's Report and the Intervenor's Exceptions thereto, found that the Exceptions raised substantial and material issues with respect to the conduct of the election and conduct affecting the results of the election, and consequently ordered a hearing upon the Exceptions and directed the hearing officer to make findings and recommendations in this matter. Thereafter, a hearing was held August 29, September 6, 7, 8, 9, and 12, 1949, before C. Paul Barker, hearing officer. All parties appeared and participated but the Petitioner called no witnesses. In accord- 181 NLRB 1386. 87 NLRB No. 10. 16 STERN BROTHERS 17 ante with the Board Order, the hearing officer issued and caused to be served upon all concerned a Report Containing Findings of Fact and Recommendations to the Board, a copy of'which is attached hereto. Although finding Petitioner's conduct "very close to the ex- treme limits of permissive conduct," the hearing officer recom- mended dismissal of Intervenor's objections to the election in view of the fact that the election was among "sophisticated employees accustomed to the practices in the New York Labor movement" and because of the neutralizing effect of an aggressive campaign by In- tervenor. Thereafter the Intervenor filed exceptions to the Report. The Board has reviewied,.the rulings 'made by the hearing officer and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Report Containing Findings of Fact and Recommendations to the Board, the Exceptions filed by the In- tervenor, the briefs filed by the parties, and the entire record in this case. Unlike the hearing officer, we find merit in some of the Inter- venor's objections. In reaching our conclusions we rely particularly upon the following facts as disclosed by the record : During the preelection campaign several threats of physical violence were made by officers and adherents of the Petitioner. At a meeting of a departmental group of the Petitioner held about March 7, Walker, an executive board member, threatened one of the members, Roberts, who had attended a meeting of the Intervenor, as follows, "If you dare to follow any of those tactics or go to their meetings, I will destroy you, I will make life miserable for you." A vice president of the Petitioner, Lessner, then stated that he did not think that Roberts "would vote AFL . . . but no action such as Mr. Walker stated should be taken until" Roberts was seen "on the sidewalk passing out pam- phlets." 2 On two occasions a shop steward and an executive board member of the Petitioner stood outside the Intervenor's meeting place and shouted as its members passed by, "We are here to see the rats that attend the A F of L meeting. We want to fix the traitors." Testimony further shows that an organizer for the Intervenor was warned to stay away from the employee entrance of the store or she- would be beaten up, and that another employee, a supporter of the Intervenor, was threatened with a "shellacking." Two weeks before the election a Petitioner shop steward snatched the AFL button of a member of the Intervenor from the lapel of his coat, threw it on the floor, stamped on it, and told him that he should be on the floor with it himself. This action was accompanied by a threat that the employee 0 Reference to Lessner's remark at the meeting was inadvertently omitted by the hearing officer. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and those to whom he talked would,lose their jobs when the Petitioner won the election. Not only were these threats of bodily harm made, but several as- saults actually took place. On the very night before the election, an adherent of the Petitioner attempted to prevent a member of the Intervenor from attending a meeting of that union and endeavored to drag her to a meeting held by the Petitioner. Again, on the night before the election another member of the Petitioner grabbed an adherent- of the rival union and, when she pulled away, pushed her .into, the time clock. There were other incidents of the' same kind. These were characterized by pushing and spitting and other physical contact. An organizer, for the Intervenor testified that' during one incident in the store she almost had her arm broken. As part of the campaign to prevent the free choice of a bargaining representative, the threat of economic sanctions assumed a prominent role. Fourteen employees testified to receiving threats of loss of their jobs, made by 16 members of the Petitioner. Particularly important, 3 of these were executive board members and 2 were shop stewards. Examples of these threats are : "Then she said to me that I would lose my job, and they would have me squeezed out if I didn't vote the way they wanted me to."; ". . . made a statement that if we hadn't voted Independent, that we would lose our job when they had gotten in ." ; ".... came over and told him she didn't want him talking to, me, that after the election they were going to clean out all the garbage and get rid of all the rats around the place." 3 The final attempt.to deprive the employees of their right to a free choice of a bargaining representative came on the day of the election. The official time for voting was between 7 a. in. and 10 p. in. At about 5 p. in., however, officers of the Petitioner were in the store telling the employees that the election was already over and inviting them to join a victory celebration. Shortly before 9 p. in., as employees were leaving the store, approximately 20 officers and adherents of the Petitioner were stationed at the employees' exit. They shouted ,that the election was over and that the Petitioner had won; invitations - to a free party were shouted to the departing employees. Six adherents of the Intervenor attempted to offset this conduct by shouting that the election would not be over until 10 p. in., the official time set by the Board. 3 It may he noted that physical and economic threats of the character made here have been held by a majority of the Board to constitute unfair labor practices violative of Section 8 ( b) of the Act . See e . g. United Furniture Workers of America, Local 309 C. I. 0. et at. (Smith Cabinet Manufacturing Company ), 81 NLRB 886 ; Seamprufe, Incorpo- rated, 82 NLRB 892. STERN BROTHERS 19 Even in the absence of direct proof that it resulted in keeping many employees from the polls, this conduct went far beyond the limits of legitimate. electioneering. These incidents were not mere predictions or premature celebrations of victory. They were deliberate attempts to. inhibit employees in the exercise of the franchise in a Board elec- tion, by misleading them into believing that the polls were closed and it would be futile to attempt to vote. As the hearing officer so aptly said in his careful report, the issue before us "is whether or not the employees, eligible to vote in the elec- tion had an opportunity to cast their ballots under circumstances, and in an atmosphere where they might reasonably freely express their choice for a bargaining agent." Not'only under the mandate of the National Labor. Relations Act, but pursuant to American democratic tradition, this Board should erect and maintain every practical safe- guard to ensure that the results of its elections represent the free will of employees. Board precedent makes it.clear, of. course, that isolated impropriety, or electioneering conduct that is more ebullient than polite, will not suffice to impeach an election where the balloting is secret. But here we find much more serious conduct, actively par- ticipated in by high officers of the Petitioner and arising to a planned climax shortly before and during the election. Here we find threats of bodily harm, assaults, and threats of individual economic disaster, coupled with an attempt, by misrepresenting the hour at which the polls would close, to deprive a number of employees of the opportunity of casting their ballots.4 As we said in the General Shoe case:5 In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish these con- ditions; it is also our duty to determine whether they have been fulfilled. When, in the rare extreme case, the standard drops too low, because of our faults or that of others, the requisite lab- oratory conditions are not present and the experiment must be conducted over again. That is the situation here. That is the situation here, too. We cannot condone the conduct revealed by this report by lightly assuming that it did not affect more than the reasoning faculties of the voters. Nor are we willing to set one standard for elections in New York City and another for the re- mainder of the country of which it is a part. There is no evidence in the record that the Intervenor indulged in this type of behavior. General Shoe Corporation, 77 NLRB 124, 127. 877359-50-vol. 87-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, therefore, that the afore-mentioned conducts interfered with the employees' free choice of a bargaining representative at the election held on March 31, 1949. We shall set the election aside and shall direct a new election at such time as we find that circumstances permit a free choice of bargaining representatives among these employees. ORDER IT Is HEREBY ORDERED that the election held on March 31, 1949, among the employees of Stern Brothers, New,York, New York, involved in this proceeding be, and it hereby is, set aside. MEMBERS MuRDooK and GRAY took no part in the consideration of the above Supplemental Decision and Order. 6 Like the hearing officer and contrary to the contentions of the Intervenor, we find no basis in the Employer's conduct for setting aside the election.