Roberts Brothers

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the question under comparable circumstances.' The facts of this case, however, do not warrant a finding that the Employer preempted the last opportunity for discussion and made im- possible the presentation of the Petitioner ' s views under circumstances approximating equality. We think that here there was sufficient time between the speech and the election for the Petitioner to request a similar opportunity to present its views to the employees. As no request was made by the Petitioner, we find that the Employer has not interfered with the election of March 6, 1953. Having sustained the Employer ' s exceptions to the finding of the Regional Director upon which he basedhis recommendation that the election be set aside, we find that the Petitioner's objections do not raise substantial and material issues with respect to the conduct of the election. Accordingly, the objec- tions are hereby overruled , and we shall issue a certification of results of election based on the tally of ballots. [The Board certified that a majority of the valid ballots was not cast for Printing Specialty and Paper Products Union No. 388, International Printing Pressmen and Assistants' Union of North America, AFL, and that the said labor organization is not the exclusive representative of the employees in the unit heretofore found appropriate] Chairman Farmer and Member Peterson took no part in the consideration of the above Supplemental Decision and Certifi- cation of Results of Election. 2 Hill Brothers Company, 100 NLRB 964; Foreman & Clark, Inc., 101 NLRB 40. ROBERTS BROTHERS and RETAIL CLERKS INTERNATIONAL ASSOCIATION , AFL, LOCAL 201. Case No. 36 -CA-347. July 24, 1953 DECISION AND ORDER Upon the charge duly filed on December 8, 1952, by Retail . Clerks International Association, AFL, Local 201, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for the Nineteenth Region issued a complaint dated February 26, 1953, against Roberts Brothers , herein called the Respondent, alleging that the Respondent interfered with, restrained , and coerced and is interfering with, restrain- ing, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby engaged in and is engaging in an unfair labor practice within the meaning of 106 NLRB No. 74. ROBERTS BROTHERS 373 Section 8 (a) (1) of the Act . Copies of the complaint , the charge, and notices of hearing were duly served upon the Respondent and the Union on or about February 26, 1953. With respect to the unfair labor practice , the complaint alleges , in substance , that on or about December 6, 1952, the Respondent conducted a poll among its employees on the question of whether the employees desired to be represented by the Union for the purposes of collective bargaining, in violation of Section 8 (a) (1) of the Act. Thereafter all parties entered into a stipulation which set forth an agreed statement of facts . The stipulation provides that the parties thereby waived their rights to a hearing and to the taking of testimony before a Trial Examiner of the National Labor Relations Board . The stipulation further provides that , upon such stipulation and the record as therein provided , the Board may make findings of fact , conclusions of law, and may issue the Decision and Order as if the same facts has been adduced in open hearing before a duly authorized Trial Examiner of the Board. The aforesaid stipulation is hereby approved and accepted and made part of the record in this case . In accordance with Section 102 .45 of the National Labor Relations Board Rules and Regulations , this proceeding was duly transferred to and continued before the Board. Upon the basis of the aforesaid stipulation , and the entire record in this case, the Board, having duly considered the brief filed by the Respondent , makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Respondent is an Oregon corporation , having its principal office and place of business in the city of Portland , Oregon, and operating department stores in Portland , Salem , Corvallis, and Eugene , Oregon . The Respondent in the 12-month period preceding the issuance of the complaint, in the course and conduct of its business , has caused merchandise valued in excess of $25 , 000 to be shipped to and through States of the United States other than the State of Oregon. We find that the Respondent is engaged in commerce within the meaning of Section 2 (6) and ( 7) of the Act. H. THE ORGANIZATION INVOLVED Retail Clerks International Association , AFL, Local 201, is a labor organization within the meaning of Section 2 (5) of the Act. 3 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. UNFAIR LABOR PRACTICE A. The issue and surrounding relevant facts The sole issue in this case, on the facts stipulated by the parties, is whether the Respondent violated Section 8 (a) (1) of the Act by conducting a secret poll to ascertain its em- ployees' desires as to representation by the Union which claims to represent a majority of such employees. By letter dated December 3, 1952, the Union informed the Respondent that it represented a majority of the employees employed at the Employer's store in Eugene, Oregon. On or about December 6, 1952, the Respondent' s store man- ager called a meeting of all store employees, during the course of which he addressed the employees from a prepared script concerning the Respondent' s feelings toward union organization and membership. The statements contained in this address did not exceed the "free-speech" provision of Section 8 (c) of the Act and are not alleged specifically in the complaint to consti- tute an unfair labor practice. The statements, however, clearly indicated the Respondent' s desire not to have the Union repre- sent the employees. Before concluding his speech, the store manager made the following remarks: We are interested in determining the desires of all of you. I shall pass out a slip of paper on which are typed two words, "Against" and "For." If you desire the Union vote "for." If you are against , place an "X" along side the word "against." This is a survey to determine your feelings and obviously it will be a secret ballot for our information. I thank you for your kind indulgence during this matter. Accordingly, one of the employees passed out among the employees present at the meeting slips of paper which con- tained the words "For" and "Against." Each employee indicated his desire on his slip of paper without signing his name and placed the slip into a box. The store manager counted the ballots after the employees had returned to work. Later in the day he posted a bulletin in the store cafeteria announcing that 16 employees had voted "For," 30 hadvoted "Against," and 1 ballot was " cast but not counted." At the time of the balloting, there were approximately 44 regular and regular part-time nonsupervisory employees of the Respondent working in the store. At the same time there were approximately 23 temporary employees employed by the Respondent in the Eugene store. It is not ascertainable to what extent temporary employees voted in the balloting except that there were 12 more votes cast than there were regular and regular part-time nonsupervisory employees employed by the Respondent at that time. ROBERTS BROTHERS 375 B. Conclusions with respect to the employee poll The Respondent contends that Section 8 (a) (1) of the Act was not violated because the poll was conducted in an atmosphere free from other Employer unfair labor practices. We find no merit in this contention. For the reasons stated in Protein Blenders, Inc., 105 NLRB 890, we find that the Respondent, by conducting a private poll of its employees to determine their union sentiment under the circumstances set forth above, violated Section 8 (a) (1) of the Act thereby interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has interfered with, re- strained, and coerced its employees by polling them as to their union desires, in violation of Section 8 (a) (1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Retail Clerks International Association, AFL, Local 201, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By polling its employees as to their union sentiment the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has violated Section 8 (a) (1) of the Act. 3. The aforesaid unfair practice is an unfair labor practice affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent , Roberts Brothers , and its officers , agents. succes- sors, and assigns , shall: 1. Cease and desist from conducting polls among its em- ployees to determine their union sentiment or in any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self - organization, form labor organizations , to join or assist Retail Clerks Inter- national Association, AFL, Local 201, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and pro- tection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its store in Eugene , Oregon , copies of the notice attached hereto and marked "Appendix."' Copies of such notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by the Respondent ' s authorized representative , be posted by the Respondent immediately upon receipt thereof, in conspicuous places including all places where notices to employees are customarily posted, and maintained by it for a period of sixty (60) consecutive days thereafter . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Chairman Farmer took no part in the consideration of the above Decision and Order. 'in the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES OF ROBERTS BROTHERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT poll our employees concerning their desires or wishes relative to the Retail Clerks Interna- tional Association, AFL, Local 201, or any other labor organization , or in any like or related manner interfere MONARCH FOUNDRY COMPANY 377 with, restrain, or coerce our employees in the exercise of their rights of self-organization, to form labor organi- zations , or to join or assist the above-named union or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, orto refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the above- named union or any other labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. ROBERTS BROTHERS, Employer. Dated ................ By...... ............................... ........... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. MONARCH FOUNDRY COMPANY and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL. Case No . 13-CA-1276. July 24, 1953 DECISION AND ORDER On April 23, 1953, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled pro- ceeding, finding that the Respondent engaged in and was en- gaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and 1 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 [Members Houston, Styles, and Peter- son]. 106 NLRB No. 73.