John Irving Stores of Chicago, Inc.

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.