F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Sep 20, 1954

109 N.L.R.B. 1446 (N.L.R.B. 1954)

1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the activities of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. The Trial
Examiner has found that the Respondent has discriminated in regard to the hire
and tenure of employment of Thomas D. Monigan, Hugo Zappa, and Joseph
DiCaprio.
It will be recommended that the Respondent offer to each of them full and imme-
diate reinstatement to his former or substantially equivalent position and make him
whole for the loss of pay he may have suffered as a result of the discrimination against
him by payment to him of a sum of money equal to that which he would have earned
as wages from the date of his discharge to the date of the offer of reinstatement, less
his net earnings, the loss of pay to be computed on a quarterly calendar basis in
accordance with the formula adopted by the Board in F. W. Woolworth Company,
90 NLRB 289.
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, the Trial Examiner has arrived at the following:
CONCLUSIONS OF LAW
1. Local No. 807, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment of Thomas
D. Monigan, Hugo Zappa, and Joseph DiCaprio, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By such discrimination, and by interrogating its employees concerning their
membership in and activities on behalf of the Union, and by interfering with, re-
straining, and coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
F. W. WOOLWORTH Co. and RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION, LOCAL 631, A. F. OF L., PETITIONER . Case No. 19-RCi-1313.
September 00, 1954
Supplemental Decision and Certification of Results of Election
Pursuant to a Decision and Direction of Election issued by the
Board on July 22, 1953,' as amended on January 11, 1954,2 an election
by secret ballot was conducted on February 9, 1954, under the supervi-
sion of the Regional Director for the Nineteenth Region, among the
employees in the appropriate unit at the Employer's store in Yakima,
Washington. Upon completion of the election, the parties were fur-
1 Nnt renorted in printed volumes of Board Decisions and Orders.
2 107 NLRB 732.
109 NLRB No. 203.
F. W. WOOLWORTH CO. 1447
nished with a tally of ballots which showed that of approximately 33
eligible voters, 31 cast valid ballots, of which 14 were for and 17 were
against the Petitioner . There were two challenged ballots, a number
insufficient to affect the results of the election , and no void ballots.
On February 12, 1954, the Petitioner filed timely objections to con-
duct by the Employer allegedly affecting the results of the election.
In accordance with the Board 's Rules and Regulations , the Regional
Director conducted an investigation and, on April 5, 1954, issued and
duly served upon the parties his report on objections and challenges.
In this report, the Regional Director found that Petitioner 's objections
2, 3, and 4 raised substantial and material issues and recommended
that a hearing be held thereon . The Regional Director also recom-
mended that Petitioner 's objections 1, 5, 6, 7, 8, 9, and 10 be overruled,
tind that the challenged ballots remain unopened and uncounted be-
cause they were not determinative of the results of the election. None
of the parties filed exceptions to that report.
On April 23 , 1954, the Board issued an order directing hearing, in
which it adopted the Regional Director 's recommendations and di-
rected that a hearing be held on Petitioner 's objections 2, 3, and 4. A
hearing was conducted on May 27, 1954, before Robert E. Tillman,
hearing officer . The Petitioner and the Employer appeared and par-
ticipated. Full opportunity to be heard , to examine and cross-ex-
amine witnesses , and to introduce evidence bearing on the issues, was
accorded the parties.
On June 28 , 1954, the hearing officer issued and duly served upon the
parties his report, in which he recommended that Petitioner 's objec-
tions 2 and 3 be overruled, but that objection 4 be sustained and that
the results of the election be set aside . The Employer filed timely ex-
ceptions to the hearing officer's report . No exceptions were filed by
the Petitioner.
The Board has reviewed the hearing officer's rulings made at the
hearing and finds that no prejudicial error was-committed . The rul-
ings are hereby affirmed. The Board has considered the hearing of-
ficer's report, the exceptions thereto, and the entire record in this case,
and finds merit in the Employer's exceptions.
In its objection 4, the Petitioner alleged that "Several employees were
questioned at various times by the Company 's representative, individ-
ually, regarding their Union sentiments ." The hearing officer found
that Assistant Manager Roberts interrogated at least four employees
concerning their views about the Petitioner and how they were going
to vote. He concluded that, as all but one of the incidents of inter-
rogation occurred after issuance of the Board's Amended Decision
and Direction on January 11, 1954, they were sufficiently related in time
to the election held on February 9, 1954, so as to interfere with the em-
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees' free choice of representatives and to warrant setting aside
the election.
Before passing upon the hearing officer's findings and recommenda-
tions in this connection, we deem it appropriate to set forth here the
Board's recently adopted policy respecting objections to preelection
conduct in Board-ordered elections. In The Great Atlantic di Pacific
Tea Company,' the Board considered the question whether and when
a party should be permitted to object to an election on the basis of
conduct of which it had knowledge before the election, if it neither
filed charges nor otherwise protested such conduct to the Board until
after the election was concluded. In consequence, the Board was
persuaded that, contrary to past practice,' a policy which would
permit parties to urge preelection conduct as a basis for postelection
objections should be formulated in order to insure a more equitable,
and at the same time, a more orderly administration of the Act. This
policy was expressed by the Board in the A i P case as follows :
. . . whether or not charges have been filed, the Board has
decided to consider on the merits any alleged interference which
occurs or has occurred after either (1) the execution by the parties
of a consent-election agreement or a stipulation for certification
upon consent election, or (2) the date of issuance by the Regional
Director of a notice of hearing, as the case may be; . . . The
Board will not, however, consider election objections based upon
interference which may occur prior to these dates.
Recently, we have had occasion to reconsider our decision in the
A d P case.' In doing so, the Board continued to subscribe to the
policy that any substantial interference which occurs during the
crucial period before an election may be urged through postelection
objections as a basis for setting aside the election. However, in its
reappraisal of the A ci P case, the Board recognized the disparity in
time lapse between the execution of a• consent-election agreement or
stipulation for certification upon consent election and the date of the
resultant election, with the lapse between the issuance of notice of
hearing and the election in contested cases. Accordingly, to more.
closely equate the time factor in both consent and Board-ordered
elections, the Board decided to modify the A i P policy by providing
that it will consider on the merits any objectionable conduct which
occurs after the date of issuance of the decision and direction of
election in a Board-ordered election, rather than the date of issuance
of the notice of hearing. Election objections based upon interference
which occurs prior to the issuance of the decision and direction of
8 ] O1 NLRB 1118
4 Denton Sleeping Garment Mills, Inc., 93 NLRB 329.
5 Cf. The Liberal Market, Inc., 108 NLRB 220
F. W. WOOLWORTH CO. 1449,
election will not be considered by the Board. In cases where an
amended decision and direction issues, this marks the cutoff date
rather than the original direction of election. However, objectionable
conduct occurring after the execution of a consent-election agreement
or a stipulation for certification upon consent election will continue
to constitute a basis for setting aside an election when urged in a
timely manner after the election.
With this statement of the Board's revised policy respecting post-
election objections in Board-ordered elections behind us, we turn now
to its application to the instant proceeding.
We cannot agree with the hearing officer's findings that Assistant
Manager Roberts' interrogation of employees, with but one exception,
occurred after issuance of the Board's Amended Decision and Direc-
tion of Election on January 11, 1954. The record discloses that
Roberts interrogated employees Bigby, Harris, Jones, and Thomas.
Bigby testified that she had been questioned by Roberts "before the
election," but was unable to fix any date on which the interrogation
occurred. Harris testified that Roberts inquired about Harris' feel-
ings toward the Petitioner "in December [1953]." Jones averred that
Roberts asked how Jones was going to vote "probably around Decem-
ber [1953] and January [1954], around in there." Thomas testified
that Roberts inquired of her views about the Petitioner and that this
inquiry occurred either "three weeks," "one month," "three months,"
or "six months" before the election on February 9, 1954. On the basis
of the foregoing, and the entire record, we find, contrary to the hearing
officer, that the record fails to affirmatively establish that Roberts' acts
of interrogation occurred after the issuance of the Board's Amended
Decision and Direction of Election on January 11, 1954. Accord-
ingly, without deciding whether the recorded incidents of interroga-
tion would have afforded a basis for setting aside the election, if they
had occurred after the January 11, 1954, cutoff date, we find that the
Petitioner is estopped under the Board's policy set forth above from
protesting such conduct in this postelection proceeding.
As the Petitioner failed to receive a majority of the valid ballots
cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for the Petitioner, Retail Clerks International Association, Local
631, A. F. of L., and that the Petitioner is not the exclusive representa-
tive of the employees at the Yakima, Washington, store of F. W.
Woolworth Co.]
MEMBERS MURnocx and RODGERS took no part in the consideration of
the above Supplemental Decision and Certification of Results of
Election.