Glamorise Foundations, Inc.

GLAMORISE FOUNDATIONS, INC. 729 Glamorise Foundations, Inc. and Local 306, Interna- tional Ladies' Garment Workers' Union, AFL-CIO, Petitioner. Case 4-RC-9152 June 20, 1972 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On September 28, 1971, the Regional Director for Region 4 of the National Labor Relations Board issued a Supplemental Decision on Objections to Elections and Direction of Second Election in the above-entitled proceeding in which he overruled Petitioner's Objections 2 through 6, sustained its Objection I, set aside the election hereinbefore conducted, and directed that a new election be held.' Thereafter, pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's Supplemental Decision on the ground that in sustaining Objection 1, he departed from officially reported Board precedent. The Peti- tioner filed opposition thereto and itself filed a request for review of his overruling of Objections 2 through 6, in the event the Board granted the Employer's request for review. On January 3, 1972, by telegraphic order, the Board denied the Petitioner's contingent request for review, granted the Employer's request for review, and stayed the election pending decision on review. Thereafter, the Employer and the Petitioner filed briefs on review and the Employer filed a motion for oral argument. The Board has considered the entire record in this case' with respect to the issues under review, including the briefs on review,2 and makes the following findings: Objection I relates to a contest sponsored by the Employer. The Regional Director found, and it is not disputed, that on June 30, about a month before the election, the Employer sponsored a contest in which employees were invited to guess the number of "No" votes which would be cast in the election. Superviso- ry personnel distributed flyers which read "IT IS IMPORTANT TO VOTE, HERE'S A CONTEST TO INTEREST YOU TO VOTE ON ELECTION." It also stated "We all know that the employees will reject the International Ladies' Garment Workers' Union. But who can give us the score?" The winning entry was to be identified by a numbered receipt which the employee was to retain and employees were told that it was not necessary for them to sign their names. The employees were given until the close of the following day to deposit their entries in a box placed near the plant's timeclocks. After the end of the next day, the box was sealed and it was not to be opened until after the election results were known.3 A $50 bond and a $25 bond were to be given to the two employees who came closest to guessing the total . There is no evidence that the employees were forced to participate in the contest and the Employer did not refer to the contest after the ballots were submitted. The Regional Director sustained the Petitioner's objection to the contest on the ground that it was actually a poll of sentiment as to the outcome of the election and hence a poll as to the question concerning representation within the meaning of Offner Electronics, Inc., 127 NLRB 991. The Employer contends that the contest which it sponsored was not a private poll of the type prohibited by the Board in Offner but was rather like a raffle intended to stimulate interest in the election and therefore permissible under Hollywood Plastics, Inc., 177 NLRB 678. We disagree because we view the situation as more closely paralleling Offner. Although the contest herein was not a poll of the individual voter's preferences, it did nonetheless call for an estimate by voters of the number of "No" votes they thought would be cast in the election and thus, as concluded by the Regional Director, was a poll of sentiment as to which choice would obtain a majority of the votes cast. As in Offner, which involved an employer-sponsored straw ballot, the contest here intrudes upon the Board's responsibility to resolve the question concerning representation in the carefully regulated secret ballot election it conducts. It tends to commit employees , in advance of the election and in a carnival -like atmosphere, to a position, albeit here only phrased as a prediction, as to a choice which should be made only under the safeguards we have developed for Board elections. Furthermore, such polls or contests are susceptible to abuse in that they invite comments and speculation at the workplace, close to the ears of interested supervisory personnel, as to how groups and individ- uals are likely to cast their ballots. While a union engaged in organizing employees may legitimately measure its support among the work force,4 an ' The election was conducted on July 30, 1971 The tally of ballots argument is denied therefor showed that of approximately 115 eligible voters, 46 cast ballots 3 The sealed box was never opened because the union representative for, and 65 against, the Petitioner and 4 cast challenged ballots. stated at the conclusion of the balloting that he would object to the contest. 2 As the record and the briefs, in our opinion, adequately set forth the 4 Springfield Discount Inc, 195 NLRB No. 157. While Chairman Miller Issues and the positions of the parties, the Employer's request for oral would have departed further from the Offner precedent in that case, he (Continued) 197 NLRB No. 108 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer may not properly engage in or encourage such surveillance. Thus, even in the absence of any direct proof that this contest was used by this employer as an improper means of surveillance or obtaining employ- ees' precommitments, we believe such a contest poll has inherent tendencies to jeopardize a proper election atmosphere, without having any offsetting salutary effects on our election processes. We, therefore, affirm the Regional Director's decision to sustain Objection 1 and we shall set aside the election on that basis. Accordingly, the case is remanded to the Regional Director in order that he may conduct a second election pursuant to his Supplemental Decision and Direction of Second Election, as modified herein. accepts the result reached by his colleagues therein and believes the present decision conforms to the rationale of the Springfield decision.