F. W. Woolworth Co.

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. W. WOOLWORTH COMPANY and RETAIL CLERKS IN- TERNATIONAL ASSOCIATION, LOCAL 1179, AFL, Peti- tioner . Case No. 20-RC-1932. May 29, 1953 DECISION AND CERTIFICATION OF RESULTS OF ELECTION On August 14, 1952, pursuant to a stipulation for certification upon consent election, an election by secret ballot was con- ducted in the above proceeding under the direction and super- vision of the Regional Director for the Twentieth Region. Following the election, a tally of ballots was furnished the parties. The tally showed that of approximately 30 eligible voters in the stipulated unit, 27 cast valid ballots, of which 10 were for and 17 against the Petitioner. On August 19, 1952, the Petitioner filed timely objections to conduct affecting the results of the election; and on September 22, 1952, it filed supplemental objections. After an investiga- tion, the Regional Director, on October 15, 1952, issued a report on objections, in which he sustained the Petitioner's original objection No. 1, overruled the other objections, and recommended that the Board set aside the election. The Em- ployer filed timely exceptions to the Regional Director's report. Thereafter, on November 14, 1952, the Board issued an order directing hearing on objections and exceptions, in which it referred the proceeding to the Regional Director for the purpose of conducting a hearing on the issues raised by the objections of August 19 and the Employer's exceptions to the Regional Director's report, and directed the hearing officer to prepare and cause to be served upon the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said objections and exceptions. Pursuant to the Board's Order, a hearing was held on February 3, 1952, before David E. Davis, hearing officer. Both the Petitioner and the Employer appeared and par- ticipated. On March 24, 1953, the hearing officer issued his report on objections to election. In it he found that the Petitioner's original objection No. 1 raised substantial and material issues with respect to the conduct of the election, and recommended that the election be set aside. He found no merit in the other objections and recommended that they be overruled. The Employer filed timely exceptions to the hearing officer's report. The Board has reviewed the rulings made by the hearing officer at the hearing and finds that no prejudicial error was committed? The rulings are hereby affirmed. The Board has considered the hearing officer's report, the Employer's ex- i The Employer contends that the hearing officer erroneously admitted and considered evidence with respect to objections that were untimely filed or were not in issue because of the Petitioner's failure to file exceptions to the Regional Director's report. In view of our disposition of these objections, we find, without passing on the merits of the Employer's contention, that the hearing officer's action was not prejudicial 105 NLRB No. 20. F. W WOOLWORTH COMPANY 215 ceptions, and the entire record in the case, and for the reasons set forth below, finds merit in the exceptions insofar as they relate to the Petitioner's original objection No. 1. As no exceptions have been filed to the hearing officer's findings and recommendations with respect to the other objections, the Board hereby adopts them. As to objection No. 1, the Petitioner contended and the hearing officer found, in substance, that the Employer, after making an antiunion speech on company time and property on the day of the election, denied the Petitioner the equal op- portunity to present its side of the case required under the Board's Bonwit Teller rule.' The facts are as follows: The election was scheduled for 1:30 p.m. on August 14, 1952. At 9:30 that morning, the time at which the store normally opened, Yeager, the store manager , went to the restroom where the employees were gathered and read a speech to them. The speech, antiunion but noncoercive in character, lasted 9 or 10 minutes; the opening of the store was delayed until it was over. Shortly before noon, Baker, the Petitioner's international representative, entered the store and learned of the meeting for the first time. She thereupon left the store and spent the next hour in a neighboring restaurant, where she questioned one of the Employer's employees about Yeager's speech and discussed it with Luther, the Petitioner's business repre- sentative. She then called Mrs. Luther, the Petitioner's secretary, by telephone to tell her that there had been a meet- ing in the store that morning and to ask her what should be done. Mrs. Luther told her to request a meeting with the employees. At 12:50, Baker returned to the store with Luther and asked first Yeager and then Herring, the Employer's superintendent of public relations, for a meeting with the employees. Herring said that he could not close the store for that purpose, but that he could arrange for her to meet with the employees in 2 or 3 groups on condition that he be present. Baker replied that she could not agree to this condition without consulting her superiors. She then (at about 1:05) left the store and attempted, without success, to reach various union officials by telephone. At about 1:30 she returned. In the meantime, Herring had asked the Board agent to postpone the election to give Baker an opportunity to speak to the employees but the request was denied, and the election took place as scheduled. From the above facts, it is clear that the Employer was willing to permit the Petitioner to reply to Yeager's speech on company time and property, provided it did so in group meetings with Herring present.' The only question is, there- 2See Bonwit Teller, Inc., 96 NLRB 608, enforced as modified, 197 F 2d 640 (C. A 2). 3 The hearing officer found that the arrangement of three group meetings "would have required precision timing unattainable on such short notice, since the employees were scattered in many departments and some of the employees were at lunch." it appears, however, that there would have been sufficient time for two meetings, and we find no reason to assume that the Employer would have insisted on three. We note, too, that had Baker made her request when she first heard of Yeager's speech, there would have been ample time for three meetings 291555 0 - 54 - 15 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore, whether its insistence on these conditions constituted a denial of the right of the employees "to hear both sides of the story under circumstances which reasonably approximate equality." 4 Group meetings , as the hearing officer found , would have imposed on Baker the necessity of repeating her speech. We do not believe , however, that this would have been so burden- some as to have interfered with an adequate presentation of the Petitioner ' s case, nor do we believe the fact that the Union could not address all the employees simultaneously is here material . Neither are we persuaded that the mere presence of Herring would have created a prejudiced atmos- phere.5 Under the circumstances , therefore , we are of the opinion that the Employer' s offer afforded the Petitioner an opportunity to reply to Yeager's speech under substantially equal conditions . We therefore hold that the Employer's conduct did not constitute interference with the election. Accordingly, we hereby overrule the Petitioner ' s objection No. 1. As we have overruled the objections to the election, and as the tally of ballots shows that the Petitioner lost the election, we shall issue a certification of results of election to this effect. [The Board certified that a majority of the valid ballots was not cast for Retail Clerks International Association, Local 1179, AFL, and that the said labor organization is not the exclusive representative of the employees of the Employer in the stipulated unit.] 4Bonwit Teller, Inc., supra. 5 There is no evidence that Herring. intended to participate in the meetings except by his presence. As the purpose of the meetings was merely to permit Baker ( a nonemployee) to address the employees, the situation is clearly distinguishable from those cases in which the Board has found that an employer's presence at a union meeting constitutes unlawful interference with the employees' rights. BONDED FREIGHTWAYS, INC. and BONDED DRIVERS AND MECHANICS INDEPENDENT UNION, Petitioner . Case No. 3-RC-1110. May 29, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction ofElections , t elections by secret ballot were conducted on April 2 and 3, 1953, under the direction and supervision of the Regional Director for the Third Region , among the employees in the voting groups set forth in the above-mentioned Decision . The Petitioner appeared on the ballot in all the elections ; Local 182 , International t 103 NLRB 407. 105 NLRB No. 27.