Stride Rite Corp.

STRIDE RITE CORPORATION Stride Rite Corporation and Local 138, United Food & Commercial Workers International Union, AFL-CIO, CLC, Petitioner. Case -RC-16893 January 14, 1981 ORDER REMANDING PROCEEDING TO REGIONAL DIRECTOR FOR HEARING BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties, and ap- proved by the Regional Director for Region I of the National Labor Relations Board on May 19, 1980, an election by secret ballot was conducted in the above-entitled proceeding on June 20, 1980, under the direction and supervision of said Region- al Director. Upon the conclusion of the election, a tally of ballots was furnished the parties in accor- dance with the Board's Rules and Regulations. The tally of ballots shows that there were ap- proximately 26 eligible voters and that 26 ballots were cast, of which 13 were for the Petitioner, and 13 were against the Petitioner. There were no chal- lenged ballots. On June 27, 1980, the Petitioner filed timely ob- jections to conduct affecting the results of the elec- tion. The Regional Director conducted an investi- gation of the objections and thereafter, on August 1, 1980, issued and served on the parites his Report on Objections. In his report, the Regional Director recommended that a hearing be directed for the purpose of determining whether the election should be set aside based upon the conduct involved in Objection I and that Objection 5 be overruled.' On August 11, 1980, the Petitioner filed timely exceptions to the Regional Director's report. Thereafter, the Employer filed a brief in support of the Regional Director's Report on Objections and in opposition to the Petitioner's exceptions to said report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has duly considered the Regional Di- rector's report, the Petitioner's exceptions, and the I With the approval of the Regional Director the Petitioner withdrew Objections 2, 3, and 4 by letter dated July 16, 1980. That portion of the Report On Objections regarding Objection 5 is attached hereto as Appen- dix A. 254 NLRB No. 29 Employer's brief, and hereby adopts the Regional Director's findings 2 and recommendations.3 Accordingly, It is hereby ordered that the Petitioner's Objec- tion 5 be overruled. IT IS FURTHER ORDERED that a hearing be held before a duly designated hearing officer to deter- mine whether the election should be set aside based upon the conduct involved in the Petitioner's Ob- jection 1. IT IS FURTHER ORDERED that the hearing officer designated for the purpose of conducting the hear- ing shall prepare and cause to be served on the parties a report containing resolutions of the credi- bility of witnesses, findings of fact, and recommen- dations to the Board as to the disposition of the Pe- titioner's Objection 1. Within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party, and shall file a copy with the Regional Director. If no exe- ceptions are filed thereto, the Board will adopt the recommendations of the hearing officer. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, remanded to the Re- gional Director for Region I for the purpose of conducting such hearing and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. MEMBER JENKINS, dissenting: I would find that the Employer's preelection conduct interfered with the employees' free choice as to whether they desired representation by the 2 Our dissenting colleague seeks to raise a question with respect to the truthfulness of the campaign material on which the Employer's contest was based. However, the Petitioner did not assert in its objections that any of this material was untruthful. Its naked claim to that effect in its exceptions to the Regional Director's report is insufficient to raise the issue. Therefore, we find that there is no basis for questioning the accura- cy of the Employer's literature. Furthermore, we do not see how the at- tachment of prizes to answering this questionnaire renders what without the prizes would be "no more than campaign puffery" into the improper solicitations of votes with such prizes. The prizes were not conditioned on voting in the election, on its outcome, or on the employees voting against the Petitioner. 3 In the absence of exceptions thereto, the Board adopts, proforma, the Regional Director's recommendation that a hearing be held to resolve the issues raised by the Petitioner's Objection I. During the course of his investigation the Regional Director received evidence that the Employer's supervisors created the impression of sur- veillance of the unit employees' union activities, conduct which the Re- gional Director characterized as not specifically alleged in a timely filed written objection, and recommended that this issue, inter alia., be resolved in a hearing. Member Penello finds that the Petitioner's specific timely filed Objection I encompassed the aforementioned conduct. For reasons stated in his concurring opinion in American Safety Equipment Corpora- tion, 234 NLRB 501 (1978), he agrees that a hearing should be held with respect to such conduct. Compare Member Penello's dissenting opinion in Dayton Tire and Rubber Co., 234 NLRB 504 (1978). 297 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and, accordingly, I would set aside the elec- tion. Several weeks prior to the election the Employer began a contest entitled "remember the facts" which consisted of a questionnaire bearing multiple choice and true and false questions, the answers to which were to be found in the Employer's cam- paign literature. After completion of the question- naires, which were numbered, the employees re- tained the matching stubs and deposited them in a box on the warehouse floor. A few hours after the election, the Employer held a party where contest winners were drawn at random, but only from questionnaires having perfect scores, and a $359 color television set and an $89 tape deck were awarded as prizes. My colleagues agree with the Regional Director that the Employer's conduct was not objectionable because the contest did not provide the Employer with means of determining how and whether em- ployees voted, did not condition participation or winning on supporting the Employer in the elec- tion, and did not provide prizes sufficiently sub- stantial as to induce voters to support the Employ- er. These conclusions, in my view, fail to address the impropriety inherent in Respondent's conduct. Among the 19 "Remember the Facts" questions to be circled or checked were the following: 1. This union can guarantee me absolutely nothing. 3. In just two years this union has been kicked out by employees in at least how many factories? 1, 7, 16, 72? 5. This union has never negotiated a $1 an hour increase or better in the shoe industry. 6. In a two-year period, this union (formerly called the Retail Clerks) called at least how many strikes? 10, 25, 75, 1,390? 7. If I join this union, I can be fined for 'dis- rupting the harmony of a union meeting' or for other reasons the union determines. 8. If I earn $4.00 an hour or $160 per week (based on 40 hours) and I am called out on a 10-week strike and win a 10¢ an hour increase, how long will I have to work to make up what I lost? 10 weeks, 20 weeks, 52 weeks, 400 weeks? 14. Union dues can be raised whenever a union wants to. 16. During a strike, I get no unemployment compensation. While normally the type of statement involved in the questions might be termed no more than cam- paign puffery, I find it difficult to reach that con- clusion when the employees' belief or disbelief is sought to be influenced by valuable prizes related to union attitudes. Further, although the question- naires admonish the employees to "Remember the Facts," neither my colleagues nor I have any way of knowing, on this record, the truth of falsity of the "Facts" the Employer emphasized during the campaign. In my view, the contest was designed to solicit and influence votes improperly and to re- flect and harden attitudes toward the Union by awarding prizes of a substantial nature and on the basis of the employees' agreement with the Em- ployer's antiunion position. I have no doubt that the Employer's "contest" tended to interfere with the employees' free election choice, and I would set aside the election and order a second election. APPENDIX A Objection No. 5: On or about May 23, the Employer announced to its employees that it would conduct a contest, entitled "Re- member the Facts." The contest consisted of a question- naire bearing multiple choice and "true or false" ques- tions. The answers to these questions were to be found in the Employer's campaign literature. Each questionnaire bore an arbitrary number, in no way identifying any em- ployee, and a matching numbered stub. The question- naires were distributed to all employees by two supervi- sors on June 17. The supervisors instructed the employ- ees not to sign their questionnaires and not to show their number to anyone. The employees were permitted to take the questionnaires home to complete them and were to deposit the completed questionnaires, while retaining the matching numbered stubs, in a box placed for that purpose on the warehouse floor. Questionnaires were supposed to be returned by the close of business on June 19, but when the Employer learned that a few of the em- ployees had left their questionnaires at home on June 19, the deadline was extended to the morning of June 20. The box was removed from the floor prior to the open- ing of the polls at 10:00 A.M. on June 20, and no further entries were submitted. The election was concluded at 11:00 A.M. Contest winners were drawn at random from those questionnaires having a perfect score. The drawing took place at a party on the evening of June 20. The party and drawing had been scheduled in advance by the Em- ployer, and it was announced that the party was held re- gardless of the outcome of the election. There were two prizewinners, who merely had to present their stubs to demonstrate that the prizewinning questionnaires drawn at the party belonged to them. First prize was a color television set; second prize was a tapedeck. The Board's policy with respect to pre-election con- tests of this sort is that they do not constitute a per se basis for setting aside the election. The Board does, how- ever, consider all the attendant circumstances in deter- mining whether such a contest has destroyed the labora- tory conditions necessary for assuring empoyees full free- dom of choice in selecting a bargaining representative. Based on the above facts, which are not disputed, I con- clude that the contest here did not impair employees' ex- 298 STRIDE RITE CORPORATION ercise of their franchise under the Act. The size of the two prizes, which had a combined value of less than $450.00, was not so great as to divert the attention of the employees away from the election and its purpose. Nor were the prizes so substantial as to inherently induce eli- gible voters to support the Employer's position. Thrift Drug Company, 217 NLRB 1074 (1975), and cases cited therein at fn. 3; Marathon Le Tourneau Company, Gulf Marine Division of Marathon Manufacturing Company, 208 NLRB 213 (1974); Tunica Manufacturing Company, Inc., 182 NLRB 729, 743 (1970). Cf. Drilco, A Division of Smith International, Inc., 242 NLRB 5 (1979). The con- test did not provide the Employer with any means of identifying whether, or how, anyone had voted, nor was winning or participating in the contest in any way con- tingent on supporting the Employer's position, or upon voting in the election. Thrift Drug Company, supra. Cf. Drilco, A Division of Smith International, Inc.. supra. Accordingly, I find no merit to Objection No. 5 and recommend that it be overruled. 299