Piggly-Wiggly #011

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Piggly-Wiggly #011 and #228 Eagle Food Centers, Inc. and Retail Clerks Union, Local 98, Retail Clerks International Association (AFL-CIO), Peti- tioner. Case 38-RC-352 December 8, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING, JENKINS, AND ZAGORIA Pursuant to a Stipulation for Certification upon Consent Election approved on March 30, 1967, an election by secret ballot was conducted on April 13, 1967, under the direction and supervision of the Regional Director for Region 13, among the em- ployees in the stipulated unit described below. At the conclusion of the election, the Regional Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation, and on July 26, 1967, issued and duly served upon the parties his Report on Challenged Ballots and Objections, in which he recommended that the Board sustain the Employer's objection 2 and direct that a new election be held, and overrule Em- ployer's objections 1, 2, 3, and 5. In addition, the Regional Director sustained the Employer's chal- lenge as to one employee and made no resolution as to the remaining challenges since they were insuffi- cient in number to affect the results of the election.' The Petitioner filed timely exceptions, together with a supporting brief, to the Regional Director's report and recommendation with respect to the Em- ployer's objection 2. Upon the entire record in this case, including Petitioner's exceptions and brief, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claimimg to represent certain employees of the Em- ployer. 3. A question affecting commerce exists con- cerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. In accordiance with the stipulation of the parties, we find that the following employees con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees at the Piggly Wiggly Food Stores located at 1213 West Fourth Street, Sterling, Illinois, and at 920 First Avenue, Rock Falls, Illinois, ex- cluding meat department employees, store managers. guards. professional employees, and supervisors as defined in the Act. 5. Employer's objection 2 is as follows: These representatives (Union) had in their pos- session. in full view of all employees coming in to vote and employees leaving after voting, a sheet of paper on which notations were being made and other writings being entered thereon. The Regional Director's investigation as to ob- jection 2 disclosed that representatives of the Union, at all times during the voting period, sta- tioned themselves 4 to 6 feet in front of each store. One of the union representatives had a sheet of paper in his hand and as employees passed him to enter the store, he made notations. The Union ad- mitted that its r' presentatives had in their hands a list of eligible employees, and as employees entered the store during the voting periods their presence was noted on the list. This use of such a list the Union informed the Regional Director "was neces- sary because of the complication in the election procedure which allowed employees of either store to vote at either location."-' The Regional Director, finding this conduct of the union representative objectionable. states in his Report: ... that under all the circumstances the Peti- tioners' activity at each of the stores where it admittedly ". . . checked off employees' names as they entered the store for the purpose of determining which employees had voted" con- stituted a material and substantial departure from permissible election activity. Petitioner's representatives were open in their note taking. as employees passed the stores. The Board's policy, in the interest of free elections, of prohibiting the keeping of any list, apart from the official voting list. of persons who have voted in a Board election, was enunciated in the International Stamping, Inc., (97 NLRB 921) and Belk's Department Store of Savan- nah, Georgia, Inc., (98 NLRB 280) ... deci- sions. In A. D. Julliard and Co., (110 NLRB 2197, 2199) the Board commented on that pol- icy and the fact that in these cases "it was either affirmatively shown or could be inferred from the circumstances, that the employees knew that their names were being recorded by In the absence of exceptions to the Regional Director's recommenda- tions sustaining the challenge to employee Michael Brown's ballot and to his recommendations that the Employer's objections 1, 3, 4, and 5 be overruled, we adopt pro forma his recommendations. 2 The Petitioner in its brief alleges that the union representatives had an "Excelsor" list (a list of eligible voter' names and addresses required by Board rule to be furnished the Union and other interested parties (Excelsior Underwear Inc., 156 NLRB 1236)) which was used by the union representatives for the sole purpose of ascertaining whether em- ployees who were off duty appeared at either of the stores and entered such stores obviously for the purpose of voting . Further, Petitioner alleges such list was used to ascertain the identity of off duty employees who failed to appear at the store "during election hours and to contact such em- ployees for the express purpose of urging them to vote in the election." 168 NLRB No. 101 PIGGLY-WIGGLY # 011 793 the Employer." In the opinion of the under- signed. it can be inferred in the instant case that at least some of the employees knew that their names were being recorded. and the Peti- tioner's position that "This procedure was necessary because of the complication in the election procedure which allowed employees at either store to vote at either location" does not justify or excuse the recordation of voters' names, contrary to Board policy. Accordingly. it is recommended that Objection No. 2 be sustained. We agree. In International Stamping Co., supra at 922. we reiterated a preexisting policy pertaining to the conduct of elections when we stated: It has ... been the policy of the Board to prohibit anyone from keeping any list of per- sons who have voted, aside from the official eligibility list used to check off the voters as they receive their ballots.; 7 Thus, for example, NLRB Form 722, entitled " Instruction to Elec- tion Observers" directs observers not to "keep a list of those who have and those who have not voted. Accordingly, we shall adopt the Regional Director's recommendation as to Employer's objec- tion 2 by setting aside the instant election and directing a new one. ORDER It is hereby ordered that the election conducted on April 13, 1967, be, and it hereby is, set aside. [Direction of Second Election3 omitted from publication.] a An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 13 within 7 days after the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. No extension of time to file this fist shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.