Gray Drug Stores, Inc.

GRAY DRUG STORES, INC. 171 (BRAY DRUG STORES, INC. and RETAIL CLERKS INTERNATIONAL Asso- CIATION LOCAL No. 1059, AFL, PETITIONER . Case No. 9-RC-1140. July 13,1951 Decision and Certification of Representatives On April 4, 1951, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted among 1 he employees in the stipulated unit under the direction and supervi-, sion of the Regional Director for the Ninth Region. Upon the com- pletion of the eleotion, the Regional Director issued and duly served a tally of, ballots upon the parties concerned. The tally shows that the vote was distributed as follows : Approximate number of eligible voters -------------------------- 240 Void ballots---------------------------------------------------- 3 Votes cast for Petitioner ---------------------------------------- 100 Votes cast against Petitioner ------------------------------------ 81 Valid votes counted--------- ----------------------------------- 181 Challenged ballots---------------------------------------------- 13 Valid votes counted plus challenged ballots-- --------------------- 194 On April 9, 1951, the Employer filed objections to conduct affecting the results of the election. After an investigation, the Regional Di- rector, on May 14, 1951, issued his report on objections in which he found that the objections were without merit and recommended that they be overruled. Thereafter the Employer filed timely exceptions to the Regional Director's report. 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 Houston and Reynolds]. Upon the basis of the entire record in this case, the Board makes the following findings of fact : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em-. ployees of the Employer. 3. A question affecting commerce has arisen concerning the repre- sentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All employees of the Employer's retail stores located in Franklin County, Ohio, including all regular part-time employees scheduled to work 8 hours or more per week, but excluding store managers,.. assistant store managers, pharmacists, store checkers, postal substa- tion clerks, window trimmers, photo finishing department employees, porters, office and clerical employees, guards, professional employees, and supervisors as defined in he Act; constitute a unit appropriate 95 NLRB No. 28. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act., 5. In its objections, the Employer alleged that (1) a free and fair election was prevented by the Petitioner's preelection circulation of marked sample ballots which were identical in appearance to that posted on the Board's official notice of election; (2) the employees' free choice was inhibited by the distribution before election of false and scurrilous statements by the Petitioner concerning the Company, its officers, conduct, and policies; (3) the Employer was aggrieved by the action of the Board's agent in refusing to allow two eligible voters to cast their ballots when they appeared at the polls at Store No. 62, and further, that a third voter was denied the opportunity to vote due to the fact that she was temporarily engaged with a customer at the time; and (4) the Employer's position was prejudiced by the fact that the Board's agent challenged the right of a voter to cast a ballot, and "accused" her of being a supervisor. Objection (1) .-The Regional Director's investigation disclosed that the Petitioner circulated among the employees before the election marked sample ballots which were exact facsimiles (other than the marks in the "Yes" box) of the Board's official ballot as shown on the Regional Director's notice of election. Neither the facsimiles as circulated nor the ballot as shown on the notice of election contained the signature of the Regional Director or any representative of the Board, and both of them prominently carried the word "SAMPLE" across their face. We have previously held that where the distributed sample ballot is clearly marked "SAMPLE" and does not bear the name of the Board's official representative, the employees eligible to vote are not likely to be misled and there is no prejudice to the rights of any party to the election.2 Accordingly, the objection is overruled. Objection (2).-The -Petitioner distributed preelection campaign circulars containing statements to the effect that the Employer paid wages that were less than the "federal minimum level," and that the Employer was not in fact willing to raise wages although it could raise them 10 percent without Federal approval. The circulars also purported to answer an argument by the Employer that union mem- bers would be subject to initiation fees, fines, and assessments, by the statement that "the federal labor law . . . makes fines and assessments uncollectible." The Employer contends that all these statements were false and misleading, alleging that (a) the Fair Labor Standards Act does not apply to the Employer's retail stores, (b) under.wage 'This is the unit agreed upon in the stipulation for the consent election and used by the parties and the Board's representative as the basis for determining voter eligibility. 2 Gate City Table Co., Inc., 87 NLRB 1120. Cf . The Am-O-Krome Company, 92 NLRB 893. See also Sears, Roebuck & Co., 47 NLRB 291. 1 GRAY DRUG STORES, INC. 173 stabilization 10-percent wage increases are granted only "in certain circumstances," and (c) the statement as to fines and assessments is a deliberate misrepresentation of Federal labor law. The -Petitioner's preelection circulars, however, contain no threats or other elements of intimidation or coercion. The Board has held that it cannot censor the information, misinformation, argument, and statements of opinion which accompany preelection campaigns. In the absence of violence the Board has not undertaken to police such campaigns, as by weighing the truth or falsity of campaign utter- ances.3 As it is apparent that the Petitioner's statements mentioned above were no more than mere preelection propaganda, which the Employer, if he chose, was privileged to answer, we find no merit in this objection and shall overrule it. Objection (3).-In its objections, the Employer asserts that the Board's agent prevented two eligible voters from voting who pre- sented themselves at the polls at store No. 62; and that one eligible voter at this store was not given the opportunity to vote because she was temporarily engaged with a customer at the time. The Regional Director reports the Employer's contention to be that employees Daisy Dunno and Adelaide Mattingley were arbitrarily prevented from vot- ing by the Board agent because they presented themselves at the. polling place a few seconds after the scheduled voting time, and that employee Margaret Neff was prevented from voting because she was temporarily delayed while waiting on a customer. The Regional Di- rector found, in effect, that Dunno presented herself to vote after the polls were closed, and that Mattingley did not appear at the polls -at any time. As to Neff, he found that she had ample opportunity to become acquainted with the time of the polling and thereby safeguard her right to vote. The Employer does not except to the Regional Director's specific findings of evidence, disclosed by his investigation, but only to the statement in.his report that the Employer concedes that Dunno went to the polling place a few seconds after the close of the scheduled voting time. The Regional Director concluded that 1zo employee who appeared at the polling place to vote during the designated polling periods was denied an opportunity to vote. We shall adopt the Regional Director's findings and conclusions, and overrule the objection. Objection (4).-The Employer further alleges in its objections that the Board agent improperly challenged an eligible employee at store No. 62, and "accused" her of being a supervisor. The Regional Di- rector reported that this employee, Mattilda Brandon, was erroneously omitted from the eligibility list submitted by the Employer, and that the Board agent questioned her eligibility when she appeared to vote 8 Maywood Hoisery Mills , Inc., 64 NLRB 146, 150 . See also Wiley Mfg., Inc., 93 NLRB No. 267; Balboa Pacific Corporation, 92 NLRB 85. 174 DECISIONS OF;-;NATIONAL: LABOR RELATIONS BOARD during the morning period,.-but did not deny her an opportunity to cast a challenged ballot if she so desired. The erroneous omission of her name was thereafter corrected by agreement of the parties, and she cast an unchallenged ballot during the afternoon voting: period. The Employer does not except to'these'factual findings. We find that the action of the Board agent was proper under the circumstances. We shall overrule the objection. As the tally of ballots shows that the Petitioner has received a ma- jority of the valid votes cast, and as the challenged ballots are not sufficient in number to affect the results of the election, we shall certify the Petitioner. Certification of Representatives IT IS HEREBY CERTIFIED that Retail Clerks International Association Local No. 1059, AFL, has been designated and selected by a majority of the employees in the unit described in paragraph numbered 4, above, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the Act, Retail. Clerks International Association' Local No. 1059, AFL, is the exclusive representative of all such employees for the purposes of collective bargaining ,with re- tpect to rates of pay, wages, hours of employment, and other, condi- tions of employment. TIDE WATER ASSOCIATED OIL COMPANY and OIL WORKERS INTERNA- TIONAL UNION, CIO . Case No. 20-CA-170. July 13, 1951 Order Dismissing Complaint On June 28, 1949, the General Counsel issued a complaint against the Respondent in the above-entitled proceeding alleging that ' the Respondent had engaged. in and was engaging in unfair labor prac- tices within the meaning of the Act. On various dates between October 25 and November 10, 1949; a hearing in this proceeding was held before Trial Examiner Peter F. Ward. A further hearing was held before the Trial Examiner on June A 5, 1950. On October 10, 1950, the Trial' Examiner issued his Intermediate Report making certain findings, conclusions, and recommendations. Thereafter, the Respondent, the Union, and the General Counsel filed exceptions to- the Intermediate Report and supporting briefs. _ On May 25, 1951, the Respondent filed with the Board and duly served upon the parties a separate document in which it renewed the motion to dismiss the complaint in its entirety which it initially made at the hearing. No responses were received from the parties in opposi- motion. ' The motion is grounded in substance upon the tion to the 95 NLRB No. 33.