Spies Super Market of Flandrean, Inc.

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spies Super Market of Flandreau , Inc. and Retail Clerks Inter- national Association, AFL-CIO, Petitioner. Case No. 18-RC- 3688. April 15, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE Pursuant to the Employer's timely objections to conduct affecting the results of the election held herein, the Regional Director issued and duly served upon the parties his report on objections, a copy of which is attached hereto, in which he found that the Employer's objections did not raise substantial and material issues affecting the results of the election, and recommended that they be overruled and that the Petitioner be certified as the collective-bargaining repre- sentative of the employees in the unit. The Employer filed timely exceptions to the Regional Director's report. The Board 1 has considered the Employer's objections, the Regional Director's report, and the Employer's exceptions thereto, and hereby adopts the findings and recommendations of the Regional Director.2 Accordingly, as the tally of ballots shows that the Petitioner has received a majority of the valid votes cast in the election, we shall certify the Petitioner as the collective-bargaining representative of the employees in the appropriate unit. [The Board certified Retail Clerks International Association, AFL-CIO, as the designated collective-bargaining representative of the employees in the unit heretofore found appropriate by the Board in its Decision and Direction of Election.] 1Pursuant to the pri,visions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. 2 The Employer' s contention that the Union's representation to certain carryout em- ployees within the unit regarding a 90-cent-an-hour rate for them was false and mis- leading is without merit. Clearly, as indicated in the report , such assertion related to the rate which the Union, if it won the election , would seek to negotiate with the Employer and not, as claimed by the Employer, to the rate which it had recently negotiated with a competitor of the Employer. The fact that the Regional Director did not ascer- tain the rate provided for carryout employees in the Union's contract with such com- petitor does not, in our opinion, affect the conclusion that the Union' s statements were within the area of legitimate campaign propaganda. Moreover, we find no merit in the Employer's contention that the foregoing statement to the carryout boys warranted setting aside the election, because it was made during the balloting. As such statement was made at some distance from the polling place, and off the Employer's premises, it did not violate any Board rule against electioneering. 123 NLRB No. 87 SPIES SUPER MARKET OF FLANDREAU, INC. 765 REPORT AND RECOMMENDATION ON OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION Pursuant to a Decision and Direction of Election issued by the Board on December 10, 1958,1 the Regional Director conducted an election by secret ballot on January 7, 1959. The results of the election are set forth in the tally of ballots served on the parties on that date.2 On January 12, 1959, the Employer, through his representatives , filed timely objections to conduct affecting the results of the election , and a copy of the objec- tions was duly served on the Union. Acting pursuant to Section 102.69 'of the Rules and Regulations of the National Labor Relations Board, Series 7, as amended , the Regional Director has investigated the issues raised by the objections and hereby reports as follows: Objections The substance of the objections is that the international representative of the Union, while the voting was in progress, solicited and arranged for five eligible voters to leave the polling place and to assemble at a place off the Employer's premises; and while so assembled he made statements concerning the wages he could get for the employees if the Union was voted in and falsely asserted that a grocery store chain in a neighboring town had executed a contract with the Union that he represented and that he had seen the contract. Investigation Investigation has disclosed that there was no electioneering at the polling place. It has further disclosed that five high-school-age boys employed to carry groceries out of the store for customers were assembled at the polling place about the time the election was to begin. These employees questioned the union representative as he was leaving the polling place and he answered either that it was illegal to talk at that time or that he was going up the street to a place off the Employer's premises and that they could talk with him there . The union representative then left the polling place and the five employees , of their own accord, followed him up the street to a point three-fourths of a city block from the Employer 's store. When they reached this point the investigation disclosed that the union repre- sentative and the five employees engaged in a conversation . The union representa- tive was asked what wages the carryouts would receive if the Union was selected as the collective-bargaining representative. The union representative replied that the proposed contract provided for a rate of 90 cents per hour for carryout boys. During the course of this meeting, which was of 'approximately 10 minutes ' duration, the carryout boys also inquired about the status of negotiations between the Union and Randall Super Valu Stores of Mitchell , South Dakota. The union representative indicated that a complete agreement had been reached and that he had seen the agreement. Investigation has shown that, contrary to the contention of the object- ing party, Randall Super Valu Stores in Mitchell, South Dakota , and the Retail Clerks Union had in fact reached a complete and final oral agreement 5 weeks prior to the election held in this case . The contract had not been signed promptly because the Union delayed in framing the written contract to reflect accurately the oral agreement of the parties. There is no evidence to indicate that this was other than legitimate campaign propaganda. CONCLUSION AND RECOMMENDATION The Regional Director finds that the objections raise no substantial or material issues with respect to conduct affecting the results of the election . It is recom- mended that the objections be overruled in their entirety and that Retail Clerks International Association, AFL-CIO, be certified as the exclusive collective-bargain- ing representative of all employees in the unit defined in the Board's Decision and Direction of Election. :1 Inadvertently the Board 's Decision and Direction of Election was dated December 10,, 1959. 2 Approximate number of eligible voters -------------------------------------- 15 Votes cast for Petitioner-------------------------------------------------- 8 Votes cast against Petitioner---------------------------------------------- 4 Valid votes counted------------------------------------------------------ 12 Challenged ballots------------------------------------------------------ None