Triangle Super Dollar Market

TRIANGLE SUPER DOLLAR MARKET Triangle Super Dollar Market and Retail Clerks Union, Local No. 31, Retail Clerks International Association, AFL-CIO-CLC, Petitioner. Case 8- RC-10156 June 30, 1976 DECISION AND ORDER DIRECTING HEARING 403 reverse the Regional Director in his conclusions with respect to Objection 2, set aside the election, and run another election. i The election was conducted pursuant to a Stipulation for Certification Upon Consent Election The tally was 16 for, and 24 against, the Petitioner, there were 3 challenged ballots 2 The Petitioner's exception to the Regional Director's findings and rec- ommendations with respect to Objection 2 raises no substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendation , or would require a hearing BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered objections to an election held on December 26, 1975,' and the Re- gional Director's Report recommending disposition of same, the relevant portions of which are attached as Appendix A. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Regional Director's findings and recom- mendations.2 ORDER It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised by the Petitioner's Objection 3. IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting such hear- ing shall prepare and cause to be served on the par- ties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said objection. Within 10 days from the date of issuance of such report, either party may file with the Board in Wash- ington, D.C., eight copies of exceptions thereto. Im- mediately upon the filing of such exceptions, the par- ty filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Offi- cer. IT IS FURTHER ORDERED that the above-entitled mat- ter be, and it hereby is, referred to the Regional Di- rector for Region 8 for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. MEMBER FANNING dissenting: For reasons which I have expressed in my dissent in Steadman Wholesale Distributors, Inc., a Division of Malone & Hyde, Inc., 203 NLRB 302 (1973), I dissent from my colleagues' decision in this case. I would APPENDIX A Objection No. 2 The gravamen of this objection is the Petitioner's claim that a sample ballot contained on a piece of campaign literature distributed by the Employer to its employees violated the Board's policy as enuncia- ted in Allied Electric Products, Inc., 109 NLRB 1270 (1954). The investigation disclosed that on December 26, 1975, the Employer distributed paychecks to its em- ployees. Attached to each paycheck stub was a red leaflet entitled "Triangle Market, Inc.," a [facsimile] of which is attached hereto as Exhibit A. In Allied Electric Products, Inc., supra, the Board stated at 1272, "The reproduction of a document that purports to be a copy of the Board's official secret ballot, but which in fact is altered for campaign pur- poses, necessarily, at the very least, must tend to sug- gest that the material appearing thereon bears this Agency's approval." The Board further stated in this decision ". . Upon consideration, the Board has decided that in the future it will not permit the reproduction of any document purporting to be a copy of the Board's official ballot, other than one completely unaltered in form and content and clearly marked sample on its face, and upon objection validly filed, will set aside the results of any election in which the success- ful party has violated this rule." In Stratford Furniture Corporation and Futorian Manufacturing Company, 116 NLRB 1721 (1956), the Board upheld the Regional Director's recommenda- tion to overrule an objection based on a leaflet which reproduced only that portion of the ballot containing the instructions "Mark an `X' in the square of your choice." the proposition "Do you wish to be repre- sented for the purpose of collective bargaining by- UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO jointly?" and the "Yes" and "No" boxes. In that matter the Re- gional Director determined that the reproduction of this particular section of the Board's official ballot was not a violation of Board policy in that the repro- 225 NLRB No. 43 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duction did not amount to, nor purport to be, a copy of the Board's official ballot within the meaning of the Allied Electric Products decision. In Stedman Wholesale Distributors, a Division of Malone & Hyde, Inc., 203 NLRB 302, the Board found merit to the employer 's exceptions to the Re- gional Director's report. The employer therein con- tended that the ballot in question did not constitute a reproduction of the Board's official ballot within the Allied Electric Products rule because the represented ballot omitted any reference to the "United States Government," "National Labor Relations Board," "Official Secret Ballot" and "Board Agent." The ballot in that matter contained the following: "Do you wish to be represented for the purposes of collective bargaining by: Teamsters, Chauffeurs Warehousemen Industrial & Allied Workers & Help- ers, Local Union No. 920," and "Mark and `X' in the square of your choice," and the "Yes" and "No" boxes beneath . The "No" box appeared with an "X" in it and an arrow pointing to it from the words "To vote against the Union , mark an `X' in the `No' square on the right hand side." Inasmuch as the reproduction of a ballot in the instant matter is substantially the same as the form of the ballot described in Stratford Furniture Corpora- tion, supra, and Stedman Wholesale Distributors, Inc., supra, I conclude that the Employer 's campaign leaf- let as a whole does not purport to be a copy of the Board's official ballot and does not suggest that the United States government or this Agency urges a vote on behalf of the Employer. I find, therefore, that Objection No. 2 is without merit and I shall recom- mend that it be overruled. Objection No. 3 The Petitioner asserts in this objection that during the critical period, head cashier Janet Hill acting as an agent of the Employer stated to several employees that if the Union got in she (Hill) would have to be harder on the employees and that one of the employ- ees to whom she was speaking would be terminated. The Petitioner further alleges that Hill stated to an- other employee that there would be lay -offs of em- ployees or a cut in hours if the Union was successful. The Petitioner further contends that produce man- ager Job Stagner told employees that the part-time employees would eventually be laid-off if the Union got in, and told an employee that that employee was voting for his job . Also the Petitioner alleges that assistant grocery manager Gordon Van Meter stated to employees that the store couldn't afford to pay part-time help and the three least senior cashiers and carryouts would probably be laid-off for several months. In addition he is alleged to have stated that the store would be a different place if the Union was voted in and the employees would constantly have someone looking over their shoulders if the Union was voted in. The Petitioner alleges that Hill, Stagner and Van Meter are agents of the Employer. The investigation revealed that Hill, Stagner and Van Meter were in- cluded on the Excelsior list submitted by the Em- ployer for the election, and that neither Hill nor Van Meter was challenged by either party at the election. Stagner was challenged at the election by the Peti- tioner as an alleged supervisor. During the investigation the Petitioner asserted that Hill, Stagner, and Van Meter were not supervi- sors, but nevertheless were agents of the Employer. The Employer asserts that none of the three individu- als are supervisors . However, employees testified that Hill, Stagner, and Van Meter possess certain indicia of supervisory authority. The investigation revealed that Janet Hill and Job Stagner have not hired, discharged or promoted em- ployees, or granted wage increases to employees, but they have scheduled work hours, trained new em- ployees, granted time-off, and have occasionally han- dled certain employee complaints regarding schedule conflicts, and have committed the Employer's credit for purchases of supplies . Hill and Stagner stated that they do have a degree of latitude in making deci- sions, related to employee labor relations matters, but claim that these decisions are subject to review by the co-owners, Robert Bell and Clair Weeder. The co-owners contend that both individuals have been given certain supervisory functions to perform, but that they do not consider them to be supervisors. Rather, the Employer considers them to be merely trusted and long term employees who by virtue of their seniority assist the owners. Employees testified, however, that they consider Hill and Stagner to be their "bosses" with significant control over their dai- ly work routine. Employees also testified that Hill and Stagner direct them in their work , have granted them time-off when ill , and have made work sched- ule changes upon request without consulting either Bell or Weeder. The investigation revealed that Gordon Van Meter has not hired, discharged, promoted or granted wage increases to employees, but is viewed by the employ- ees as third in the supervisory hierarchy under Weed- er and Bell. Weeder and Bell stated that when they are not present in the store , Van Meter is in charge because he is the most senior employee and has a working knowledge of the store operation. Van Meter testified that he conducts initial em- ployment interviews and forwards a recommenda- tion thereon to the owners . Van Meter testified he evaluates the work of 12 to 14 employees, however, TRIANGLE SUPER DOLLAR MARKET he contends Weeder and Bell make all of the final decisions on any of his recommendations. Van Meter also testified that he has sent employees home for disciplinary reasons pending the owners' decision concerning the alleged employee misconduct. As do Hill and Stagner, Van Meter schedules the hours of work for employees in his area, including carryout and stock personnel. Bell and Weeder testified that Van Meter's authority stems from his long service for the Employer and he is not considered to be a super- visor by the Employer. Inasmuch as the testimony of the parties and the various witnesses varies materially as to the duties of Hill, Stagner and Van Meter and the extent of their alleged supervisory authority, the issue of the em- ployee status of these three individuals cannot be de- termined ex parse. In Delchamps, Inc., 210 NLRB 179 (1974), the Board granted the employer's Request for Review to the Regional Director's Supplemental Decision. The case was remanded to the Region to determine the employment status of certain managers of the em- ployer at the time of the election and at the time the alleged objectionable conduct attributable to them occurred. Because this matter raised substantial and material issues of fact and credibility which cannot be re- solved in an ex parse investigation, I shall recom- mend that the issues raised by this objection be re- solved at a hearing as set forth below. TRIANGLE MARKET, INC. TO: All Employees FROM: Bob and Clair 405 THIS IS ONLY A SAMPLE BALLOT. WHEN YOU GO TO VOTE, THE OFFICIAL BALLOT WILL BE HAND- ED TO YOU BY THE N.L.R.B. REPRESENTATIVE AT THE ELECTION ON FRIDAY. I HOPE YOU WILL GIVE ME YOUR VOTE OF CONFIDENCE SO WE CAN CONTINUE TO PULL TOGETHER... BE RIGHT FOR CERTAIN EMPLOYEES OF Do you wish to be represented for purposes of collective bargaining by MARK AN "X" IN THE SQUARE OF YOUR CHOICE 0 Exhibit A