Cherry and Webb Co.

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record discloses that the Employer, upon its request, has been provided with the.assistance of a representative of Butler Brothers in arranging merchandise for display, that an auditor supplied.by Butler Brothers has visited the store for the purpose of auditing the books, that a representative of Butler Brothers assisted the Em- ployer in negotiating the lease for store No. 2 which was opened in November 1950, and that the Employer has requested Butler Brothers to supply an expert to assist the manager of store No. 2 in ordering and displaying merchandise. The record discloses, however, that Butler Brothers has no control over the personnel or labor policies of the Employer, has no financial interest in the stores, has no requirement that the Employer maintain any minimum stock inventory, and that the merchandise sold by the Employer does not carry a "Ben Franklin" label. In addition, the Employer is not required to purchase any merchandise from Butler Brothers and does purchase a substantial quantity of merchandise from competitors of Butler Brothers. In view of all these circumstances, we find that the Employer's operations are not so related to those of Butler Brothers and the degree of control exercised by Butler Brothers is not so extensive as to war- rant the assertion of jurisdiction over the Employer as an integral part of a multistate enterprise .5 As the record discloses that the Employer's operations fail to meet any of the other recently an- nounced standards for the assertion of jurisdiction, we shall dismiss the petition. Order IT IS ORDERED that the petition be, and it hereby is, dismissed. 5 Cf Baxter Bros, 91 NLRB 1480; see Pacific Dental Laboratory of San Franctisco, 91 NLRB 1140. CHERRY AND WEBB COMPANY, PROVIDENCE and RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION, CIO, PETITIONER. Case No. 1-RC- 1993. May 22, 1951 Supplemental Decision and Order On February 5, 1951, pursuant to a Decision and Direction of Election issued herein by the Board,' an election by secret ballot was conducted under the direction and supervision of the Regional Direc- tor for the First Region among the employees in the unit found appropriate in the Board's decision. Upon the completion of the election, a tally of ballots was furnished the parties. The tally 1 93 NLRB 9 94 NLRB No 105 CHERRY AND WEBB COMPANY 781 showed that, of the approximately 206 eligible voters, 185 cast valid ballots, of which 71 were for and 114 against the Petitioner. On March 1, 1951, the Petitioner filed timely objections to conduct affecting the results of the election, alleging that the Employer had engaged in conduct which interfered with the rights of the employees freely to designate their bargaining representative. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation and, on March 29, 1951, issued and served upon the parties his report on objections, in which he found that the objections were without merit and recommended that the objections be overruled and the petition herein dismissed. On April 9, 1951, the Petitioner timely filed exceptions to the Regional Director's report on objections. The Petitioner requests that the election be set aside on the grounds : (1) That the Employer granted certain wage benefits to some of its employees while the petition was pending; (2) that the Employer interfered with the free choice of a bargaining representative by promises of benefits and threats of reprisal made in speeches by a member of the firm at various stages during the organizational cam- paign; and (3) that one week before the election the Employer posted a sketch of a proposed new lounge and rest room for employees. We 2 agree with the Regional Director's finding that, as the wage increases were granted, to the Petitioner's knowledge, more than 2 months prior to the election, and as the Petitioner neither protested holding the election nor filed unfair labor practice charges, it waived its right to attack the result of the election on the basis of those wage increases.3 We also agree with the Regional Director's finding that the speeches made by William Cherry, a member of the-Employer's firm, while openly antiunion, did not contain any promises of benefit or threats of reprisal and were not of such a nature as to make the free selection of a bargaining representative impossible. We further agree that posting the sketch for a new lounge, under the circumstances of this case,4 does not constitute a ground for setting aside the election. Having found that the objections filed by the Petitioner do not raise substantial and material issues, we hereby overrule the objections and deny the Petitioner's request for a hearing thereon. As no collective bargaining representative was chosen in the election, we shall dismiss the petition. 2 Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel [Members Houston, illmdock, and Styles] 3Denton Sleeping Garment Mills, Inc, 93 NLRB 329, Inteinatxonal Harvester Com- pany, West Pullman Works, 93 NLRB No 48 4 The Regional Director' s ini estigation revealed that the proposed lounge was in line with the Employer's model nization policy , and that the sketch was posted without comment or explanatory letter 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. BILL HEATH and INTERNATIONAL ASSOCIATION OF MACHINISTS, DIS- TRICT LODGE #727. Case No. 21-CA-783. May 203, 1951 Decision and Order On January 15, 1951, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report and supporting briefs. The Respondent's request for oral argument is hereby denied, as the record and briefs, in our opinion, adequately present the issues, and the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner found that Engilman, by various state- ments set forth in the Intermediate Report, violated Section 8 (a) (1) of the Act. We agree with the Trial Examiner except with respect to his finding based on Engilman's alleged statement that "the Respondent would not sign a contract with the Union." The record does not show that Engilman made this statement. 2. The General Counsel excepted to the Trial Examiner's failure to make a finding with respect to Service Manager Miller's interro- gation of employee Kenneth Reed concerning the latter's desire for union representation. Reed testified, without refutation, that Miller, on the day of the Board-conducted election, asked Reed "how was he [Reed] going to vote." We find that such interrogation by Miller, a supervisor within the meaning of the Act, is per se violative of Section 8 (a) (1) of the Act.2 1 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 to a three -member panel [ Chairman Herzog and Members Reynolds and Murdock]. 2 Supreme Bedding and Furniture Manufacturing Company, Inc., 93 NLRB 1616; Standard-Coosa-Thatcher Company, 85 NLRB 1358. 94 NLRB No. 124.