Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO., INCORPORATED 343 Montgomery Ward & Co., Incorporated and Retail Store Em- ployees Union, Local 344, affiliated with Retail Clerks Interna- tional Association, AFL-CIO, Petitioner. Case No. 14-RC-3548. August 6,1959 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to stipulation for certification upon consent election, an election by secret ballot was conducted on March 3, 1959, under the direction and supervision of the Regional Director for the Fourteenth Region. Following the election, the Regional Director served upon the parties a tally of ballots which showed that of approximately seven eligible voters, six cast valid ballots, of which three were for and three were against the Petitioner. On March 9, 1959, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investiga- tion and on June 11, 1959, issued and served apon the parties his re- port on objections,'a copy of which is attached, recommending that one objection be sustained, that the election be set aside, and that a new election be ordered. The Employer filed exceptions to the Regional Director's report and a brief in support of its exceptions. 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 organization involved claims to represent certain em- ployees of the Employer. 3. A 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. 4. As stipulated by the parties, the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed at the Employer's Alton, Illinois, catalog store, excluding store manager, guards, watchmen, professionals, and supervisors as defused in the Act. 5. The Board' has considered the Petitioner's objections, the Re- gional Director's report, and the Employer's exceptions thereto, and hereby adopts the findings and recommendations of the Regional Di- rector with the modifications and additions noted below.' '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 Rodgers, Bean, and Panning]. 2 In the absence of any exceptions thereto, we adopt pro forma, the Regional Director's recommendation that Objection No. 2 relating to the manner in which notices of the elec- tion were posted be overruled. 124 NLRB No. 44. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issue presented by the Employer's exceptions to the Regional Director's report is whether the Regional Director erred in holding that a question -and-answer session with six of the seven eligibles in the above unit held within the 24-hour period immediately preceding the election interfered with the election. The Employer contends that the question -and answer session was not an "election speech" within the meaning of the Peerless Plywood rule,3 and that the gathering in any case was voluntary and attendance was not required by the Employer . We find these contentions to be without merit . In our opinion, the question-and-answer session was, as detailed in the attached Regional Director 's report, arranged by the Employer to give the employees information concerning the desir- ability of selecting a bargaining representative in the election. It is also clear that the Employer 's response to certain questions indicated its opposition to employee organization . Although there was no formal speech in the usual sense, the Employer 's expression of its anti- union views is the type of campaign electioneering which was intended to be regulated under the Peerless Plywood rule. We therefore agree with the Regional Director that under the facts of this case the ques- tion-and-answer session was a "speech." As to the use of company time for the meeting, the investigation revealed that one employee was off duty and attended on her own time and two employees, as conceded by the Employer , were paid by it for the time spent at the meeting . With respect to the remaining three employees, it is not clear whether they attended on their own or com- pany time, as the group assembled shortly before or about the time they finished work. In any event , for purposes of applying the rule, it is sufficient that some of the employees attended the meeting on com- pany time.4 Nor is it material that the two employees who admittedly attended on company time, deemed it necessary to request permission to attend, as the rule was designed to bar absolutely the use of com- pany time for campaign speeches during the 24-hour period immedi- ately preceding the election .. Indeed, there is language in the Peer- less Plywood case itself which makes it clear that the issue of "voluntary" attendance only arises if the employees are attending on their "own time." 5 We therefore find the above conduct violated the Peerless Plywood rule. Accordingly, we adopt the Regional Director's recommendation and shall set aside the election and order a new one. [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] S 107 NLRB 427. 4 See Texas City Chemicals, Inc., 109 NLRB 115. 11.6. s Thus , in defining the scope of the rule, the Board stated that it would not "prohibit", employers or unions from making campaign speeches on or off company premises during the 24-hour period if employee attendance is voluntary and on the employees' own time." [Emphasis supplied .] See, e .g., Falmouth Company, 115 NLRB 1533 , 1535; Robbins Packing Corp., 115 NLRB 1429, 1430; Rinn Corporation, 119 NLRB 1410, 1411. MONTGOMERY WARD & CO., INCORPORATED 345 REPORT ON OBJECTIONS TO ELECTION Pursuant to a stipulation for certification upon consent election executed February 17, 1959, and approved by the Regional Director on February 19, 1959, an election was conducted on March 3 , 1959, among the employees described in section 11 of the stipulation . The tally of ballots shows the results of the election to be as follows: Approximate number of eligible voters- ----------------------------- 7 Void ballots----------------------------------------------------- 0 Votes cast for Petitioner----------------------------------------- 3 Votes cast against participating labor organization -------------------- 3 Valid votes counted- --------------------------------------------- 6 Challenged ballots----------------------------------------------- 0 Valid votes counted plus challenged ballots-------------------------- 6 A majority of the valid votes counted was not cast for Petitioner. The Objections On March 9, 1959, the Petitioner filed timely objections to conduct affecting the results of the election. Objection No. 1 The Company District Manager, a Mr. Schott, addressed the employees at a meeting at about 5:30 p.m. on Monday, March 2, 1959, in the store at 1802 East Broadway in Alton, Illinois, and attempted to discourage membership in the Union by telling employes that they could do better for themselves by dealing directly and individually with the Company than they could through collective bargaining with the Union representing them. The RC Election in the matter had been scheduled for Tuesday, March 3, 1959 at 9:15 a.m. to 9:45 a.m. in the store at the location hereinabove set forth. Ignorance of the Board's "24 hour rule" can not even be pleaded even if pertinent, because the Regional Director warned Mr. Schott of the consequences of his holding said meeting when I talked to him in person in the store at about 5:00 p.m. Monday, March 2, only about 30 minutes before his meeting was held. Objection No. 2 Said "NOTICE OF ELECTION" and the corrected copy of same sent out by the Board, were fastened to a bulletin board in the folded condition in which they were removed from the envelope in which they were received, that is, the letter of transmittal and the "Instructions to Election Observers" were stapled to the front of the folded "NOTICE OF ELECTION" and fastened with thumb tacks to the bulletin board with the said "NOTICE OF ELECTION" being almost completely obscured by said letter of transmittal and "Instructions to Election Observers." This matter was called to the attention of the Election Examiner, Mr. Howard W. Solomon, who removed same and took them with him, after they had been photographed by the undersigned in his presence. Subsequent to filing of the objections the Employer filed a statement of its posi- tion, admitting certain facts in respect to each objection, but contending that there was no basis for setting aside the election. Pursuant to section 5 of the stipulation and Section 102.69 of the Board's Rules and Regulations, Series 7, as amended, the Regional Director has caused an investi- gation to be made and reports thereon as follows: Conclusions as to Objection No. 1 The investigation revealed that sometime during the week immediately preceding the week of the election, Store Manager Maxwell advised employees that District Manager Schott would be in the store the following Monday for the purpose of talking to employees and answering any questions they might have. Maxwell did not mention whether employees would be required to talk with Schott when he did arrive. On Monday, March 2,1 Schott arrived at the store sometime before 5 p.m. Shortly after his arrival Schott was engaged in conversation by Petitioner's repre- sentative, Paul Jones, who told Schott that a meeting such as Schott was planning The election was conducted on Tuesday, March 3, between the hours of 9 :15 and 9 :45 a.m. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to hold had been ruled by the National Labor Relations Board to be a basis for setting aside elections. After some conversation, Jones left the store. Store Mana- ger Maxwell then told several employees that now was the time to ask their ques- tions of Schott. Schott then went to the rear of the store to the area known as the "pit" room. Employees present in the store at the time followed him to his area. Maxwell herself remained in the front of the store waiting on customers. Several of the employees state that they went to the rear of the store because it was expected of them, and some employees state they went to meet with Schott because they had questions to ask.2 Schott told the assembled employees that he couldn't make a speech to them because it would be breaking a rule, but said that he would try to answer any questions that they might have. 'Several employees asked if they could not be paid for the overtime they worked from time to time, and Schott replied that they would only be paid straight time. Another employee asked Schott why her present rate was lower than the rate which had been paid to her predecessor. Schott an- swered that he did not know, but that he would have to look into the matter. The only direct mention of the Union, according to employees, occurred when an employee asked if the commissions would be cut if the Union won the election. Schott replied that he would personally guarantee that the commissions would not be cut if the Union got in. Employees seem to be in substantial agreement that the meeting lasted about 30 to 45 minutes. The employees then left the rear of the store. Some of them returned to work; others whose workday had ended left the store .3 The Union contends that this meeting falls within the rule of Peerless Plywood Company,4 in which case an election was set aside because of a noncoercive speech made by an employer. In this case the Board enunciated the following rule: Accordingly, we now establish an election rule which will be applied in all election cases. This rule shall be that employers and unions alike will be prohibited from making election speeches on company time to massed assem- blies of employees within 24 hours before the scheduled time for conducting an election. Violation of this rule will cause the election to be set aside when- ever valid objections are filed. ... Moreover, the rule does not prohibit employers of unions from making campaign speeches on or off company premises during the 24-hour period if employee attendance is voluntary and on the employees' own time. The issue presented is whether the Employer violated the rule thus set forth. First, it is clear that the meeting took place within the 24-hour period preceding opening of the polls. The second factor to consider is whether the meeting took place on company time. Investigation shows that on the day in question the working schedule $ was as follows: 9:00 a.m.-5:30 p.m.-Ramsey Miller Littleton 12:30 p.m.-9:00 p.m.-Shakleford 5:00 p.m.-9:00 p.m.-Sunderland The Employer's position is that the employees assembled voluntarily in the back room sometime after 5:30 p.m. by which time Littleton, Miller, and Ramsey had completed their regular work schedule, and that Sunderland and Shakleford sought and received permission from Manager Maxwell to join the group. The Regional Director concludes, from all the evidence, that the meeting with the employees began between 5:15 and 5:30 p.m. and lasted until about 6 p.m. It thus appears that some, if not all, the employees working that day were on duty (i.e., "company time") at the time of the meeting.6 2 Various times are given by employees as to when the meeting began. These esti- mates range from 4 :45 p.m. until shortly before 5 :30 p.m. Most employees are in agree- ment that the session lasted for about a half or three-quarters of an hour. 8 None of the employees had pay deducted for time spent at the meeting. 4 107 NLRB 427. 5 Although employee Mary Jane Taylor was not scheduled to work that 'day, she came to the store on her own time in order to be present at the meeting. 6 See Mid-South Packers, Inc., 110 NLRB 628. MONTGOMERY WARD & CO., INCORPORATED 347 The Regional Director also concludes from the evidence that there was no clear indication to the employees that their attendance was voluntary. Therefore, the employees justifiably assumed that attendance at the meeting was compulsory? The next question is whether the utterances of Schott at the meeting were such as to constitute "an election speech" within the meaning of the Peerless Plywood case. The Employer contends that they do not. It is quite true that Schott's remarks cannot be literally described as "an election speech." However, the fact that Schott did not make a formal speech, but an- swered questions asked by the employees, is not of itself sufficient to take the meeting out from under the Peerless Plywood restriction. Rather, the purpose and content of the meeting must be considered in the light of the stated objective of the Peerless Plywood rule. The Employer describes the meeting of Schott with the employees as follows: There were one or two questions concerning the union. Mr. Schott indicated that he preferred not to answer the questions about the company's position on unions in view of the 24-hour rule of the board. However, several of the employees insisted that they wanted to know precisely what the company's policy was. At their urging Mr. Schott told them they were free to join the union or not to join the union as they saw fit. He also indicated that he felt the company's present system of appraisal of the employee's performance as well as their own productivity and aggressiveness was the best kind of plan for them. He indicated that the employees could earn more money through their own ability than they could through any outside organization. It is the view of the Regional Director that the above statement clearly reveals that the purpose of the meeting was to make certain that the employees fully under- stood the policies and practices of the Company with respect to wages, commis- sions, and other benefits so as to enable them to evaluate these benefits against prospective benefits to be obtained from union representation. The meeting thus constituted a "campaign" against the Union within the Peerless Plywood rule. The prohibition of the Peerless Plywood rule is not to be defeated by the subterfuge of terming the meeting with employees as "a question and answer period" instead of "an election speech." The Regional Director therefore concludes that objection No. 1 has merit and that it be sustained. Conclusions as to Objection No. 2 Objection No. 2 concerns the manner in which the notices of election were posted in the store several days prior to the election. The Board's standard "Notice of Election" 8 is set out on a sheet of paper 14 inches long and 17 inches wide. On the left side of this sheet is printed general informational matter under headings of "Rights of Employees," "Purpose of Elec- tion," "Secret Ballot," etc. On the right-hand side of the notice appears in mimeo- graphed form a description of the voting unit, the time and place of election, and a sample ballot. On February 24 the Regional Office mailed to .the Employer's store three copies of the notice of election which had been prepared for this case. With the notices, which were folded to accommodate to the mailing envelope, were copies of the form entitled "Instructions to Election Observers" together with a letter of transmittal. Store Manager Maxwell states that she read the notice to employees and then posted the notice and the accompanying material on the side of the storage bin which informally serves as a bulletin board for employees. In so doing she did not unfold the notices but fastened them and the other material on both upper corners just as they had been arranged in the envelope. The result was that most of the election notice was obscured although the bottom of the sample ballot re- mained visible. The lower corners of the sheets of paper were not fastened down so that employees were free to lift the forms on top of the notice and thus could read the entire right-hand half of the notice. They could not, however, read the left-hand side of the notice since it was folded under. On February 27, the Regional Office discovered that the notice of election had stated the year of the eligibility date as 1949 instead of 1959. Accordingly, that same day a corrected set of notices was mailed to the store which gave the correct year. The store manager posted this set of notices beside the original notice and in the same manner as she had posted the original notice. 7 Robbins Packing Company, 115 NLRB 1429. 8 Form NLRB 707. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union states in its objection that the notice was improperly displayed, con- tending that because of this one eligible employee was not advised of his right to vote and thus failed to cast a ballot in the election. The investigation showed that the only eligible employee who did not vote was James Covington, who is employed as a part-time janitor. Covington attends high school 8:30 a.m. to 3:30 p.m. daily. After school he spends 2 hours daily in the store, cleaning desks, sweeping the floor, dusting displays, and emptying waste baskets. This work takes him to all parts of the store. Covington states in his affidavit that: "I didn't vote in the election for one thing because I didn't know about it [the time and date] and also because of the early hour I couldn't have been there anyway since it was during my school hours and I would have been in school." Covington states that he seldom reads the various notices posted on the bulletin board because they usually did not concern him. He admits that although he was aware that an election was scheduled, he failed to read the notice or to make any inquiries as to the scheduled date and time. Under these circumstances, Covington's failure to vote is not attributable to the manner in which the notices were posted. Since he did not see the notice at all, the manner of posting becomes immaterial as to him. The notice of election was available in the place where notices to employees are customarily posted. Fur- thermore, Covington could have determined the election date and hours by simply asking the store manager, who did remark at one time to Covington that an election would be held soon, although she did not specify the date. The Regional Director therefore concludes that the manner in which the election notices were posted did not cause any eligible employee to refrain from voting. The Regional Director having concluded that objection No. 2 lacks merit, recom- mends that it be overruled. [Recommendations omitted from publication.] Robertson Paper Box Company , Incorporated and General Team- sters, Chauffeurs and Warehousemen, Local Union No. 493, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case No. 1-RC-5455. August 6, 1959 SUPPLEMENTAL DECISION AND SECOND DIRECTION OF ELECTION On March 2, 19591 the Board issued a Decision and Direction of Elec- tion in this proceeding, finding a unit of production and maintenance employees appropriate for the purposes of collective. bargaining.' Thereafter, on March 20, 1959, Norwich, Connecticut, Printing Spe- cialties and Paper Products Union, Local No. 494, subordinate to In- ternational Printing Pressmen and Assistants Union of North Amer- ica, AFL-CIO, herein called Local 494, one of the Intervenors herein, filed a motion to amend the Decision and Direction of Election by severing a craft unit composed of the Employer's printing pressmen, cutting pressmen, and creasing pressmen, their apprentices and help- ers. On March 26, 1959, the Board issued a telegraphic notice to show cause why it should not find appropriate for purposes of collective bargaining a craft unit as requested by Local 494, and a residual pro- 1 Unpublished. 124 NLRB No. 45.