The Root Store

In the Matter of THE Root DRY GOODS COMPANY D/B/A THE ROOT STORE, En?LOYER and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LocAL UNION No. 983, AFL, PETITIONER Case No. 35-UA-769.-Decided January 25,1950 DECISION AND CERTIFICATION OF RESULTS Upon a petition duly filed pursuant to Section 9 (e) (1) of the National Labor Relations Act, a union-security election was conducted on October 21, 1949, by the Regional Director for the Ninth Region, among all sales employees of the Employer's Terre Haute, Indiana, store, in accordance with the provisions of Section 203.67 of the Board's Rules and Regulations. At the close of the election, the parties were furnished- a Tally of Ballots which shows that there were 84 eligible voters and that 84 votes were cast, of which 70 were in favor of, and 9 opposed to, the proposition placed before the voters.,- Five ballots were challenged. On October 20, 1949, the day before the election, the Employer filed "Objection to U. A. Election." On October 21, 1949, the Employer also filed a "Protest to Holding of U. A. Election." After an investi- gation,z the Regional Director issued his Report on Objections, in which he found that the objections were without merit and recom- mended that the Board overrule them. Thereafter, the Employer filed Exceptions to the Report on Objections. Objections 1, 2, 3, and 4 allege that the election was improper be- cause the Petitioner had, in an amendment to the existing collective bargaining contract, agreed to "dismiss" the present petition.3 The I. e., "Do you wish to authorize the union which is your present collective bargaining representative [the Petitioner] to enter into an agreement with your employer which requires membership in such union as a condition of continued employment?" 2 Although Section 203 .69 of the Board 's Rules and Regulations does not provide for the filing of objections to the conduct of an election until after the tally has been furnished to the parties, the Regional Director investigated the matters alleged in both documents. This agreement reads as follows : The Retail Clerk' s International Association Local No. 983 and the Root's Dry Goods Company, d/b/a Root's Store, hereby agree that upon the employer signing the existing collective bargaining agreement, and upon the Union dismissing its UA petition ( Union shop petition ) that both sides will not exercise their rights to open 88 NLRB No. 97. 289 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD last sentence of this "agreement" provided that "The question of the Union's right to negotiate for a Union shop remains undetermined." The contract is thus ambiguous and fails to constitute an unequivocal waiver of the Union's right to maintain its present petition. There- fore, without determining what effect we 4 would give to an unequiv- ocal waiver of the right to a UA' election, we find that the present "agreement" affords no basis for an objection to this election.5 Ac- cordingly, we shall overrule objections 1, 2, 3, and 4. Objections 5 and 6 allege inadequate notice of the election. Al- though the Employer refused to post the notices sent him by the Subregional Office, the Union posted and distributed copies; and Board agents posted copies of the notice on utility poles near the premises of the Employer. As the Employer failed to submit any evidence that eligible employees were not award of the election or that the notices were inadequate, we shall overrule these objections .6 Objection 7 alleges that "a majority of the eligible voters did not participate in the election as shown by tally thereof." The Employer refused to supply an election eligibility list, but stated that there were 110 sales employees, who, by its interpretation, would be eligible voters on the eligibility date for the election. As the tally discloses, however, the proposition voted on received a majority of the number of eligible voters even if the number claimed by the Employer to be eligible is accepted. Accordingly, we shall overrule this objection. Objection 8 alleges election interference by the Union : "threats of increased dues and initiation fees; threats to raise initiation fees of employees who failed to join before the conduct of the election" and "threats to `blackball' any employee who did not join the union if the union won the election." The investigation disclosed that the Union had, from time to time, waived the $10 initiation fee for new members, granting membership on the basis of the payment of the dues for the initial month of membership. From June 15, 1948, to October 31, 1948, and from May 31, 1949, to October 21, 1949, the date of the election herein, the Union had publicly waived the initiation fee for all nonmembers among the retail employees in Terre Haute, Indiana, including those of the present Employer. Under these circumstances, we agree with the contract in its entirety as set up under Article XI, subsection b, but will open the agreement, if opened at all, for wage adjustment only. The question of the Union's right to negotiate for a Union shop clause remains undetermined. All other parts shall be considered in full force and effect to ,September 1, 1950. * Pursuant to the provisions of Section 3 (b) of the amended Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Houston and Murdock]. 6 Cf. Utah Wholesale Grocery Co., et al., 79 NLRB 1435, 1436; Western Electric Com- pany, Incorporated, 84 NLRB 1019. 6 See Potlatch Forests, Inc., 80 NLRB 613. TIE ROOT STORE 291 the Regional Director that the Union was merely offering special organizing rates for membership during a preelection campaign, rather than threatening an increase in the initiation fees subsequent to the election over and above the rates prescribed in the Union's bylaws. The investigation failed to disclose threats by the union repre- sentatives to "blackball" employees who did not join the Union prior to the election. There is evidence that union sympathizers and repre- sentatives did predict that subsequent to the election all nonunion peo- ple would be required to join the Union as a condition of employment. We do not consider this a threat of loss of employment, because it con- tained no implication that any employees would be prevented from joining the Union later, if union membership should become a condi- tion of employment. 7 Accordingly, as recommended by the Regional Director, we hereby overrule the Employer's objections and find that its exceptions do not raise substantial and material issues with respect to the conduct of the election. CERTIFICATION OF RESULTS Upon the basis of the Tally of Ballots, and the entire record in the case, the Board certifies that : 1. A majority of the employees eligible to vote in the unit described below have voted to authorize Retail Clerks International Association, Local Union No. 983, AFL, to make an agreement with the Root Dry Goods Company, d/b/a The Root Store, Terre Haute, Indiana, re- quiring membership in such labor organization as a condition of em- ployment, in conformity with Section 8 (a) (3) of the Act, as amended. 2. The appropriate bargaining unit in which the election was con- ducted comprises : All employees engaged in selling merchandise di- rect to customers at the Employer's Terre Haute, Indiana, store, excluding guards, professional employees, and supervisors as defined in the amended Act. 7 Minneapolis Knitting Works, 84 NLRB 826. 882191-51-20