The H-P Stores, Inc.

THE H-P STORES, INC. The H-P Stores, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 453, Petitioner. Case 5-RC-7681 June 9, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Pursuant to a Decision and Direction of Election issued by Acting Regional Director David C. Sachs for Region 5 of the National Labor Relations Board on June 22, 1971,i an election by secret ballot was conducted on July 16 among the employees in an appropriate unit.2 At the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were approximately 49 eligible voters, 23 of whom cast ballots for Petitioner, 23 cast ballots against Petitioner, and 1 vote was challenged. There were no void ballots. Thereafter the Union filed timely objections to conduct affect- ing the results of the election. The Regional Director for Region 5, John A. Penello, caused an investigation of the objections to be made and, thereafter, on September 24, issued and served on the parties his supplemental decision and notice of hearing sustaining the challenged ballot,3 directing a hearing of Objections 1, 2, 3, 6, 7, and 8 and overruling Objections 5, 9, and 12.4 Pursuant to said notice, a hearing was held November 3 before Hearing Officer John L. Kluttz. All parties participated and were given full opportu- nity to examine and cross-examine witnesses and to introduce evidence bearing on the issues. On Decem- ber 15, the Hearing Officer issued and duly served on the parties his report in which he recommended that only Objections 7 and 8 be sustained and that the July 16 election be set aside and a new election conducted. The Employer and Petitioner filed timely exceptions to the report and briefs in support thereof. I All events occurred in 1971 2 The unit is All warehouse employees including warehouse advertising employ- ees, warehouse clerical employees, leadmen and truck drivers employed by the Employer at its Mountain Lake Park, Maryland, location, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act 3 Pursuant to the parties' agreement, the Regional Director sustained the challenge 4 With the approval of the Regional Director, Petitioner withdrew Objections 4, 10, and 11. 5 In adopting the Hearing Officer's conclusion that the threats by Fred Feld to Daniel L. Riley are attributable to the Employer and warrant setting aside the election, we find that even if he is not a supervisor such responsibility exists based on the facts recited by the Hearing Officer We note particularly that he is the eldest son of Irvin Feld, president and 361 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's report, the Employer's and Peti- tioner's exceptions thereto and briefs in support thereof, the Regional Director's decision and notice of hearing, and the entire record in the case, and hereby adopts the Hearing Officer's findings and recommendations, as modified herein, that Objec- tions 75 and 8 be sustained and a new election be directed. However, contrary to the Hearing Officer, we also find merit in Petitioner's Objection 6,6 which contends that the announcement of an increase in pension benefits 4 days before the election interfered with the conduct thereof.? There is no dispute concerning the relevant facts. The Employer contacted actuaries in September or October 1970 about a change in its pension plan. The actuaries prepared a report on the proposed changes and costs involved, which was received by the Employer November 22, 1970. After November 24, 1970, there was no correspondence between the Employer and the actuaries and only occasional telephone calls, the last of which occurred February 17, 1971. The Employer became aware on April 28, 1971, of the Petitioner's organizational activity, and on May 14, 4 days before the petition was filed, the Employer told an assembly of employees that it had earlier requested its actuaries to study the feasibility of liberalizing pension benefits for lower wage scale employees. The determination to adopt the plan was made and conveyed to the actuaries June 29, 1971, with directions to put the plan into effect as of July 1, the beginning of its fiscal year. The announcement to the employees was withheld for 13 days and was made 4 days before the election date. The Hearing Officer found that the plan had been under consideration prior to the onset of the principal stockholder of the Company, he is a graduate student specializing in industrial relations who has worked for three summers in managerial aspects of the business with the intention of returning to the Company in the managerial hierarchy upon completion of his studies, and his relationship and future plans are well known to the employees . Cf Foam Rubber City #2 of Florida, Inc., 167 NLRB 623. Furthermore, when Personnel Manager Wolf was informed by Riley of the conversation with and threat by Fred Feld, Wolf did not disavow the threat , but merely replied that he did not know Fred had talked to Riley, thereby adopting and affirming the said threat and lending credence to that threat. 6 Chairman Miller concurs in the result herein based only on Objection 7 for the reasons set forth in In. 5, supra, but would overrule Objection 6 for the reasons stated by the Hearing Officer in his Report on Objections r As we find merit in Objections 6, 7, and 8 , we deem it unnecessary to consider or pass upon the exceptions to other findings of the Hearing Officer 197 NLRB No. 63 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizational activity and that the change was motivated by legitimate and reasonable business considerations. While the date of adoption and effectuation of the change may not constitute objectionable conduct in this case, the timing of the announcement of the change appears to more than casually relate to the pending election. In the instant case, it would appear that in the normal course of events the Employer would have announced its final decision on or before July 1, the approximate date of decision and effective date of the change. Not having done this, we see no reason for not withholding the announcement until after the election unless there was some need for informing the employees of the increase at that particular time. No such need is 8 International Shoe Company, 123 NLRB 682, 684 9 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters , must be filed established by, or can be inferred from, the record before us. Instead the announcement was made at a time when it would have a maximum possible impact on the minds of the employees. Under these circumstances, we find that the timing of the announcement was calculated to, and did, interfere with the election.8 ORDER It is hereby ordered that the election previously conducted herein on July 22, 1971, be, and it hereby is, set aside. [Direction of Second Elections omitted from publication.] by the Employer with the Regional Director for Region 5 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list 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