Peoples Drug Stores, Inc.

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peoples Drug Stores, Inc. and Peoples Service Drug Stores and Retail Clerks International Association , Local 639-A, and Joint Executive Board of the Hotel & Restaurant Employees & Bar- tenders International Union, AFL-CIO, Joint Petitioners. Case No. 5-RC-2078. November 29, 1957 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, executed by the parties on November 7, 1956, and approved by the Regional Director for the Fifth Region on November 9, 1956, an election by secret ballot was conducted on November 30, 1956, under the direction and supervision of the Regional Director. Upon con- clusion of the balloting, a tally of ballots was issued and served upon the parties. The tally shows that, of the approximately 2,002, eligible voters, 762 voted for the Joint Petitioners, 1,019 voted against the Joint Petitioners, 20 ballots were challenged, and 9 ballots were void.. The Joint Petitioners timely filed five objections to the conduct of the election. Thereafter, on February 27, 1957, following an investi- gation, the Regional Director issued and duly served upon the parties his report on objections in which he recommended that the five objec- tions be overruled. The Joint Petitioners filed timely exceptions to the Regional Director's recommendation that objections 1, 3, and 4 be overruled. No exceptions were filed to the recommendation that objections 2 and 5 be overruled. The Board, on April 5, 1957, directed that a hearing be held to resolve the issues raised by the exceptions to the Regional Director's recommendations respecting objections 1, 3, and 4, and that the Trial Examiner designated to conduct the hearing prepare a report contain- ing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the dispositions of objections 1, 3, and 4. Thereafter, a hearing was held before Louis Libbin, Trial Examiner, on May 2, 1957, at which the Employer and the Joint Petitioners appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On May 29, 1957, the Trial Examiner issued and served upon the parties his report and recommendations, recommending that objections 1 and 3 be over- ruled; but that objection 4 be sustained, the election set aside, and a new election directed. The Employer filed timely exceptions to the Trial Examiner's recommendation that objection 4 be sustained, and the Joint Petitioners excepted to the recommendation that objection 3 be overruled. 119 NLRB No. 85. PEOPLES DRUG STORES, INC. 635 The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the entire record in this case, including the objections, the Regional Director 's report, the Trial Examiner's findings and recommendations , and the exceptions, and finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion . of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All store personnel employed in all stores operated by the Employer in the District of Columbia and counties adjacent to the District of Columbia within a 25 -mile radius in the States of Maryland and Virginia , including all regular part- time employees ; but excluding all pharmacists , apprentice pharma- cists, assistant managers and managers , office clerical employees, guards, and all other supervisors as defined in the Act. 5. Objection 4: The Joint Petitioners alleged in objection 4 that during the preelection campaign representatives of the Employer called employees individually and in groups into the basements and back rooms of the stores and there interrogated them about the Union and made antiunion remarks. The Trial Examiner found that shortly before the election a substantial number of employees were interviewed by their respective store managers individually and in small groups, in locations in the stores, separate and away from their normal work areas, for the purpose of persuading the employees to reject the Joint Petitioners,in the election . This finding was based both upon testi- mony as to specific incidents at certain stores, as noted in Member Rodgers' dissenting opinion, and also upon admissions by the Em- ployer's vice president that as far as he knew all store managers had carried out the Employer 's instructions to conduct such inter- views. The Trial Examiner therefore recommended that objection 4 be sustained and that the election be set aside. The Employer does not except to the Trial Examiner's findings of fact, which are supported by the record. The Employer contends, however, that its conduct did not constitute interference with the elec- tion, because the store managers who conducted the interviews were only minor supervisors ; because, in substance , there was no other practicable method by which the Employer 's views could be conveyed to the employees ; and because the antiunion remarks were not coercive. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find no merit in these contentions. Each store manager is a responsible agent of the Employer and its ranking representative in the store which he manages. Moreover, as the Trial Examiner found, the store managers were specifically authorized by the Employer's .regional director and vice president in charge of store operations to express, and did express, the sentiments of the Employer.' Further, the nonavailability of other opportunities to present the Employer's views,2 and the noncoercive tenor of the Employer's actual remarks,' are immaterial. It is well established that the technique of calling employees, individually or in small groups, into a private area removed from the employees' normal workplaces and urging them to reject the union is in itself conduct which interferes with the conditions necessary to a free choice by the employees in the selection of a bargaining representative and warrants setting aside the election.4 We therefore adopt the Trial Examiner's recommendation and shall direct that the election be set aside and a new election conducted. We do not agree with our dissenting colleagues that our decision in this case effectively forecloses an employer who operates a retail store from talking to his employees on his premises concerning a repre- sentation election. As the Board has consistently held, except during the 24 hours immediately preceding an election, an employer is privileged to call all his employees together for the purpose of speak- ing to them concerning the election. This the Employer could have done on the premises of each of its stores, either during normal work- ing hours or, if that was not feasible, after normal working hours. In addition, the Board has not proscribed individual talks at the em- ployees' work Stations.' Instead, however, of taking a permissible course of action, the Employer chose to utilize its premises for the purpose of speaking to its employees concerning the election individ- ually and in small groups at a place removed from their work sta- tions. The very fact that employees were summoned by management representatives to a place, removed from their work stations, which has been selected for that purpose by management representatives imparts to the place selected its character as "the locus of final au- thority in the plant." 6 It is for this reason that the Board has con- 1 Supreme Trailer Company, 115 NLRB 962. 2 Red River Broadcasting Co., Inc., 115 NLRB 1212. 3 General Cable Corporation, 117 NLRB 573. 4 Hook Drugs, Inc., 117 NLRB 846; General Cable Corporation, 117 TNLRB 573; Red River Broadcasting Co., Inc., 115 NLRB 1212; Supreme Trailer Company, 115 NLRB 962. As the Board has held, the provisions of Sec. 8 (c) of the Act do not limit the Board's discretion to determine whether an expression of views has interfered with the laboratory conditions necessary for the conduct of a free election. See Metropolitan Life Insurance Co., 90 NLRB 925, 938; cf. Hicks-Hayward Company, 118 NLRB 695. e Cf. Mall Tool Company, 112 NLRB 1313. e See General Shoe Corporation, 77 NLRB 124. See also Radiant Lamp Corporation, 116 NLRB 40, and Red River Broadcasting Co., Inc., 115 NLRB 1212, where the Board set aside elections on the basis of, inter alia, such interviews conducted in a reci4ati6h "room and a conference room, respectively. Gray Drug Stores, Inc., 79 NLRB 1140, cited in PEOPLES DRUG STORES, INC. 637 sistently set" election aside for this type of conduct. Accordingly, we do no more here than apply existing precedent.' [The Board set aside the election held on November 30, 1956.] [Text of Direction of Second Election omitted from publication.] M,FMBER , RODGERS, dissenting: The election was conducted in a unit of 2,002 eligible employees, employed in a total of 88 drugstores scattered throughout the Dis- trict of Columbia and a 25-mile radius in the States of Virginia and Maryland. The Joint Petitioners lost the election by a margin of 257 votes. The Trial Examiner's Report and Recommendations on Objections to Election, which the majority adopts, indicates that in reaching his ultimate conclusions, the Trial Examiner relied on evi- dence with respect to preelection occurrences at only 3 of the 88 drugstores. With respect to these, he found that at store No. 38, the store manager talked to the employees individually in the basement stockroom and, as a group, at a meeting in the dressing room; that at store No. 9, the store manager talked to the employees in groups of 3 to 4 in the basement; and that at store No. 139, the store manager talked to the employees but made no finding as to either the place or the circumstances. On these findings, he recommended, and the majority now find, that the election should be set aside because of conduct which per se "interferes with a free choice by the employees in the selection of a bargaining representative." It should be noted in this regard that the Trial Examiner found that none of the remarks made by any of the employer' s managers or representatives was coercive. It is apparent, therefore, that the majority is basing its decision on a further extension of the already misshapen General Shoe doctrine, which in recent months has grown from, a narrow exception based on "unusual circumstances" to a broad per se rule which in effect denies an employer any right to speak to his employees as individuals. In the circumstances of this case it must be pointed out that the employer conducted these conversations in the only place that the administratively accreted General Shoe doctrine left open to him. For under this rule as extended, management could not talk to these employees in its offices,8 it could not talk to them at supervisors' desks,' and it could not talk to them in their homes.1° And now if Member Jenkins' dissenting opinion , is not inconsistent with our decision here , as there is nothing in that case to indicate that the talks did not take place at the employees' work stations. In view of our decision herein, we find it unnecessary to, and therefore do not, pass upon the Joint Petitioners' other objections to the election. 8 General Shoe Corporation, 77 NLRB 124; General Shoe Corporation, 97 NLRR 499. B Hook Driigs, Inc., 117 NLRB 846. 10 Peoria Plastic Company, 117 NLRB 545. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this rule stands it cannot feasibly talk to them anywhere. on the employer's premises." In view of the trend of these decisions, and the admitted absence of coercive statements in any of them, it is apparent that in this line ,of cases the Board is tending to set elections aside not on the basis of what was said, but on the basis of who said it. This is indeed a unique twist to a statute designed to assure freedom of speech. to all concerned. The effect of the majority's decision herein is to make the General Shoe exception a virtual flatfooted ban against an employer's speaking to his employees as individuals. The effect of this decision is in large part to nullify one of the most significant aspects of the law-the employer's right to free speech. Such a suppression of free speech is contrary to both the spirit and the letter of the law and constitutes a "policy" declaration'beyond the legal powers of this Board. For, as this Board cannot by a'direct prohibition deny a right conferred by Congress, neither can it deny such a right by an indirect prohibition which, while giving lip service to the statute, so circumscribes the place, time, and manner of the use Of such right, that the exercise thereof is to all intents and purposes substantially denied. MEMBER JENKINS , dissenting : I agree, in the main, with the dissent of Board Member Rodgers. Considering the practical considerations involved in maintaining uninterrupted operations in the retail industry, I consider. personal discussions with small groups of employees off the sales floor the. most practical method available to the Employer for appealing to its employees. Under all the circumstances in this case, I would not say that the Employer's conduct constituted an abuse of "normal cam- paign practices" or that it precluded an untrammeled choice by the employees in the election.12 I therefore agree with Board Member Rodgers that the majority fail properly to balance the conflicting employee-right of self-organization against the employer's correlative right of free speech." I would be less disturbed by the majority 11 Of course , by its very nature, the main floor of a retail store, with customers always present and business being conducted , is clearly not a feasible place to hold such discussions. 1 I paraphrase the Board's decision in Gray Drug Stores, Inc ., 79 NLRB 1140, 1141 (1948 ) which found no merit to an objection based on conduct apparently identical to that involved in this case and cited for comparison , General Shoe Corporation , 77 NLRB .124, where the president called groups of employees into his personal office "in the very room which each employee must have regarded as the locus of final authority in the plant" and instructed foremen to "propagandize employees in their homes " in a context of violations of 8 (1). 19 See John A. Bell, Jr., "The Coercive Character of Employer . Speech : ' Contest and Setting," 43 Geo. L. J. 405 ( 1955 ) ; Notes : "Limitations Upon an Employer's Right of Noncoereive Free Speech," 38 Va. L. Rev. 1037 (1952) cited with approval,by the. court PEOPLES DRUG STORES, INC. 639 decision than I am were this merely a difference of judgment concern- ing what as a practical matter is or is not the extent of interference or coercion "inherent in employer speech." lq It is not. The majority allegedly reaffirm a per se rule that an election will be set aside if the Employer uses "its premises for the purpose of speak- ing to its employees concerning the election individually and in small groups at a place removed from their work stations." 15 The basic reason for the holding is the assertion that this is the type of conduct for which the Board has "consistently set elections aside," and "we do no more here than apply existing precedent." 16 I regard precedent as a guide; but I cannot subscribe to a mechanistic application of precedent for precedent's sake, especially when, as here, the precedent to be followed is inconsistent with more funda- mental principles underlying other precedent in the area of objections which warrant setting an election aside. I recognize that "The Board need not be haunted by that `foolish consistency' which `is the hob- goblin of little minds'."" I do think the time has come for the Board at least to attempt some consistency in the assumptions which underlie the disparate results from the use of various methods and media for the presentation of views on unionism, and some consistency in its approach generally to cases involving objections to elections. Consider the attributes which the Board imputes to the employee subjected to propaganda on unionism : at one time, the Board assumed that he was more intimidated by an attempt of the employer personally to persuade him to accept the employer's view of the matter than possibly affected by the display of power inherent in a compulsory audience or by the mass psychology achieved therein.18 This was particularly true if the employer singled him out at his job site, the area in which his economic dependency upon his employer would be in N. L. R. B. v. Called Steelworkers of America, CIO (Nutone, Inc.), 243 F. 2d 593, at footnote 18 (C. A., D. C.), enfg. as modified 112 NLRB 1153, cert. granted 353 U. S. 921. 13 Ibid. See also Plant City Welding and 'l'ank Company, 119 NLRB 131, distinguish- ing union visitation at the homes of employees from employer visitation on the ground that unions "never have the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews conducted by employers." 35 See Twenty-first Annual Report ( 1.956 ), p. 72 ; Twentieth Annual Report ( 1955), p. 6; cf. Thirteenth Annual Report ( 1948 ), pp. 34-35. 19 See, however , Gray Drug Stores, Inc., cited supra, footnote 3 ; cf. the limitation implicit in General Shoe Corporation, 77 NLRB 124 , 127, to a course of conduct, con- sidered in its totality , which "went so far beyond the presently accepted custom of campaigns directed at employees' reasoning faculties" that the Board majority felt they were not "justified in assuming that the election results represented the employees' own true wishes." [Emphasis supplied.] 1T Foreman & Clark, Inc. v. N. L. R. B., 215 F. 2d 396 (C. A. 9) at 409, rejecting the employer 's contention that conduct found to have affected an election should be judged under the Peerless Plywood rather than under the then repudiated Bonwit Teller doctrine. An employer who seeks out individual employees "while at work for individual persuasion" engages in "a subtle form of coercion more potent than an employer 's address to • a forced audience of his employees." Haffner-Thrall Car Company, 65 NLRB 63, of 65 (1945). 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremost in his mind.19 At the present time, he is not affected by the employer's speech addressed to him personally if he is singled. out at his job site 20 Although he is subject to being affected by mass psychology, he is secure enough in his individual judgment of propa- ganda not to be affected thereby for more than 24 hours .2' As an individual, he can be trusted properly to evaluate the truth or falsity of campaign literature , even at the very last minute.22 However,.he cannot as an individual be trusted to evaluate employer speech addressed to him individually or to only a few other employees if made on company time and property at any place other than his job site ! The decisions do not attempt to reconcile these imputed attri- butes.23 Nor do they consider the comparative effectiveness attributed to the various media for communication of views.24 I do not think the Board should create as a fiction "employees subjected to propa- ganda on unionism" who are less than whole men,25 nor make unarticulated distinctions based solely upon the media employed 26 It seems axiomatic that where a right of free speech exists, it exists in the concrete, and where there is danger of coercion that, too, exists in the concrete as represented by particular patterns of fact. Decisions involving the question of employer speech and its effect upon an election should be made on practical considerations and in light of all the circumstances rather than upon abstract theories of constitutional or statutory interpretations or of the psychology- of employees. In cases involving conduct allegedly affecting; .ail elec- tion, the Board has stated that "each case must be decided on its own 16 This explanation seems plausible but was not articulated. 20 Mall Tool Company, 112 NLRB 1313 , 1314 ; The Bryant Electric Company, 118 NLRB 232; Montgomery Ward & Co., 119 NLRB 52. The majority in effect limits the employer's right to talk to his employees to a massed assembly either during working hours or if that was not feasible to after working hours. With such limitation, the Employer would be prevented by the Peerless Plywood rule from talking at all to his employees in the 24 hours preceding the election . I construe this as a further limitation on the ruling in the Montgomery Ward case. 21 See Chairman Farmer's explication of the Peerless Plywood rule in his dissent in The Great Atlantic & Pacific Tea Company, 111 NLRB 623 , at 628, and the extensive dis- cussion of the psychological effect of various campaign techniques in Member Murdock's dissent in Peerless Plywood Company, 107 NLRB 427, 431-435. zs Twenty-first Annual Report , p. 71 ; Allis - Chalmers Manu.tacttlring Co., 117 NLRB 744; National Furniture Company, Inc., 119 NLRB 1. 23 There is no suggestion , for example , that the lesser impact imputed to speech addressed to mass groups is based upon the employee's recognition of the collective strength of the employees as a group. The assumption was that addresses to massed audiences tended to generate a mass reaction which was hostile to individual thinking and judgment. 21 For a survey of psychological and sociological studies on the effectiveness of various media for political campaigns and in union organization campaigns see "Union Right of Reply To Employer On-The-Job Speeches : The NLRB Takes A New Approach," 61 Yale L. J. 1066 , 1073-1078 and authorities cited therein. 25 Cf. Harper and James, The Law of Torts (1956) § 16.2 "General Formula : Reason- able Man." 26 See the disparate use of Section 8 (c) as a test for "legitimate campaign tactic" when a massed audience is addressed . Peerless Plywood Company, 107 NLRB 427, 430; see Livingston Shirt Corporation, 107 NLRB 400, 408. Or literature evaluated . National Furniture Company, Inc., 119 NLRB 1. PEOPLES DRUG STORES, INC. 641 unique combination of facts." 21 It has declared that it would make "only realistic appraisals of the effect of alleged objectionable con- duct upon an election and not `lightly set aside . . . the results of a secret ballot, conducted under Government sponsorship and with all the safe-guards which have developed throughout the years... .' " 28 Any per se rule forecloses such considerations, and should, in my opinion, be rejected. The test should be whether, under all the circumstances of the particular case-and not in a vacuum or in the abstract-the con- duct complained of was reasonably calculated to interfere with the election under investigation. In this case, the employer chose a rea- sonable means of oral communication to employees consistent with the maintenance of uninterrupted operations. He spoke to them in areas where employees worked or which they frequented-the stock- room and the dressing rooms. Under the circumstances of this case, 1 would not say that that conduct, without amore, had the probable effect of interfering with the election. As Member Rodgers aptly points out, the majority in this case extend the per se doctrine involving employer speech in the office to every place in a plant or store other than the employee's normal work station. This extension of the doctrine is unrelated to its rationale as expressed in General Shoe: 21 Thp significant element;is the method selected bythis.Company's president to express his anti-union views to the employees on the day before the election. He had them brought to his own office in some 20 groups of 20 to 25 individuals, and there, in the very room which each employee 7nust have regarded as the locus of final authority in the plant, read every small group the same intemperate anti-union address. In our opinion, this conduct and the employer's instructions to its foreman to propagandize employees in their homes, went so far beyond the presently ac- cepted custom of campaigns directed at employees' reasoning faculties that we are not justified in assuming that the election results represented the employees' own true wishes. [Emphasis supplied.] Before the decision in the instant case, the Board had never based its extension of the per se office doctrine on any rationale nor had it 27 Aeronca Manufacturing Corporation, 118 NLRB 461 , citing The Liberal Market, Inc., 108 NLRIi 1481 , 1486. In Aeronca I held that an election must be set aside on totality of conduct and not because of any per se conduct. 21^Chairman Farmer, dissenting in The Great Atlantic S Pacific Tea Company, 111 NLRB 623, 629, quoting from The Liberal Market. 108 NLRB 1481, 1486. n 77 NLRB 124, at 126-127. 476321-58-vol. 119-42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempted to do so. In attempting to arrive at such rationale, it has created a "roving sites" for the "locus of filial authority" and taken the locus out of the "very room which each employee must have re- garded as the locus of final authority in the plant," substituting a person for the place of final authority. Whatever validity there might have been in the original doctrine is lost in the extension which on its face contradicts the basis of the doctrine.30 For the above reasons, I would not set the election aside. so I make this contention for the sake of argument only. I would not accept a per se rule even if limited to speeches made in offices. Bullock's, Incorporated, d/b/a I. Magnin & Company, a Division of Bullock's, Incorporated and Retail Shoe & Textile Sales- men's Union, Local 410, RCIA-AFL-CIO, Petitioner. Cdse No. 20-RC-3362. November 29,1957 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Milen C. Dempster, hearing officer. 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 National Labor Relations Act, the Board has delegated? its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Bean]. Upon the entire record in this case, the Board finds : 1. The Employer 1 is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims 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 reasons: Petitioner seeks a unit of salespeople in the Employer's shoe depart- ment. The Employer contends that such a unit is inappropriate and that the petition should be dismissed. At its San Francisco, California, store involved herein, the Em- ployer operates a retail clothing store. Depending upon the season, it employs between 900 and 1,100 employees, of whom between 265 1 The name of the Employer appears in the caption as amended at the hearing. 119 NLRB No. 86.