Hughes & Hatcher, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1103 (N.L.R.B. 1969)

HUGHES & HATCHER, INC. 1103
Hughes & Hatcher , Inc. a/k/a Hughes Hatcher
Suffrin , and its wholly owned subsidiary,
Oppenheim 's Inc., Petitioner and Local 909,
Central States Joint Board , Amalgamated
Clothing Workers of America , AFL-CIO and
Retail Store Employees Union Locals 876 and 36,
Retail Clerks International Association , AFL-CIO.
Case 7-RM-710
June 25, 1969
DECISION OF REVIEW AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 21, 1968, pursuant to a Decision
and Direction of Election issued by the Regional
Director for Region 7, an election by secret ballot
was conducted among the Emloyer's employees in
the appropriate bargaining unit . The results of the
election were as follows: of 688 valid ballots cast,
435 were for Local 909, Central States Joint Board,
Amalgamated Clothing Workers of America,
AFL-CIO, hereinafter called Amalgamated; 226
were for Retail Store Employees Union Locals 876
and 36, Retail Clerks International Association,
AFL-CIO, hereinafter called the Retail Clerks; and
27 votes were against the two participating labor
organizations . There were also 49 challenged ballots.
The challenged ballots were not sufficient in number
to affect the results of the election.
The Retail Clerks filed timely objections to
conduct affecting the results of the election and on
December 4, 1968, the Regional Director issued a
Notice of Hearing on Objections. The Hearing
Officer issued his report on February 19, 1969,
recommending that the Retail Clerks' objections be
overruled. The Retail Clerks then filed timely
exceptions to this report. On March 27, 1969, the
Regional Director issued a Supplemental Decision,
Order, and Direction of Second Election in which he
adopted the Hearing Officer' s recommendations as
to Objections 1, 3, 4, 5, 6, and 7, but overruled his
recommendations as to Objection 2 and 8.
Thereafter, in accordance with the National
Labor Relations Board Rules and Regulations, as
amended, Amalgamated filed a timely Request for
Review of the Regional Director' s Supplemental
Decision , and a brief in support thereof, on the
grounds that he erred in sustaining Objections 2 and
8.' By telegraphic Order dated May 12, 1969, the
National Labor Relations Board granted the request
for review and stayed the second election . Retail
Clerks has filed a brief on review.
'Since no request for review was filed concerning the Regional Director's
determinations to overrule the remaining objections , they are adopted pro 'Hughes archer, Inc, 159 NLRB 1202.
forma
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has considered the entire record in this
case with respect to the Regional Director's
determination under review, and makes the
following findings:
1. In Objection 2, Retail Clerks alleged that
Amalgamated misrepresented to employees in its
electioneering that it was responsible for obtaining
their current insurance plan and that continuation' of
the plan depended upon Amalgamated winning the
election.
In considering this objection, it is helpful to set
forth certain background events leading to the
election of November 21, 1968. In May 1965, after
approximately 1-1/2 years of organizational activity,
the Employer voluntarily recognized and executed a
collective-bargaining agreement with Amalgamated.
The Retail Clerks then filed unfair labor practice
charges against the Employer. In June 1966, the
Board found that the Employer had violated Section
8(a)(1), (2), and (3) by illegally assisting
Amalgamated and by recognizing and bargaining
with the Union when it did not represent an
uncoerced majority of the employees.' Thereafter,
on April 17, 1968, the Sixth Circuit Court of
Appeals enforced in relevant part the Board's order
which required, inter alia , that the Employer
withdraw recognition from Amalgamated unless
certified and cease giving effect to any agreements
or renewals thereof entered into between the parties'
Prior to the Court's decision, in December 1967,
the Employer and Amalgamated had negotiated a
new collective-bargaining agreement which included
an insurance plan, identical to the one here in issue.
This plan was terminated as of July 1, 1968,
however, in compliance with the Board's order. The
Employer then attempted to provide alternative
group insurance . When a group of employees,
admittedly encouraged by Amalgamated, protested,
that the proposed new plan was less satisfactory
than the old, the Employer determined that it could
procure insurance coverage similar to that under the
original plan from the same carrier provided the
Amalgamated did not participate.
By letter dated June 26, the Employer advised its
employees that current benefits would continue
under the new insurance contract but that
Amalgamated was not associated with it. However,
on July 1, or in some cases a few days thereafter,
the Employer also distributed to employees a leaflet
spelling out the terms and benefits of the insurance
plan. The leaflet was, except for the deletion of the
Amalgamated letterhead, a verbatim copy of an
earlier document sent to employees in January 1968
when the original insurance plan took effect. In it
'Hughes Hatcher, Inc v N L R B, 393 F.2d 557 (C.A. 6)
176 NLRB No. 145
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there appears the following critical paragraph:
Your Employer, through labor contract
negotiations with your Union will pay to the
Trustees of the Amalgamated Department Store
and Retail Employees Insurance Fund the entire
cost of the Base Insurance Program.
Subsequently, Amalgamated distributed two letters
to employees which the Retail Clerks assert
misrepresented Amalgamated 's role in obtaining and
retaining the insurance plan. The first Amalgamated
letter dated November 9, 1968 contains the
following allegedly objectionable language:
We wish to thank all Members for their support
during the last few trying months. We have been
able to maintain our Union standards and
working conditions and one of the outstanding
examples is saving our Insurance program. This
has resulted in thousands of dollars of additional
benefits many members would have lost.
The second letter sent on November 13, was
headed "74,000 IN CLAIMS" and was attached to
a list of employees who had received insurance
benefits under the Amalgamated program. It read:
All $74,000 was incurred prior to July 1, 1968
- a period of only 6 months!4 An additional
$30,000 to $40,000 or more may be needed to
completed the claims for employees who became
ill or were injured prior to July 1st of this year.
Since July 1st, additional thousands of dollars
have been paid through the HHS office under the
same insurance program.
You won your insurance program on January
1, 1968, by Local 909 Union contract negotiations
with the company.
You saved your insurance program on July 1st
when the company attempted to switch you to an
inferior program with another insurance company.
You can continue to have this insurance
program by voting on Thursday, November 21st
for Local 909, Central States Joint Board,
Amalgamated Clothing Workers of America,
AFL-CIO.
Local 909 has been successful in protecting
your Insurance during these last few trying
months while the grocery clerks 876 stalled the
election. Local 909's strength, because of the
united support of its members , has resulted in
thousands of dollars in benefits to HHS
employees!
The Hearing Officer concluded that the alleged
misrepresentation was clearly evident to employees
as campaign exaggeration and that the Petitioner
had adequate time to respond to Amalgamated's
assertions.
The Regional Director decided, to the contrary,
that the Employer's leaflet describing insurance
benefits together with the two Union letters sent out
'Th is efers to the amount of claims paid unit employees , under the
Amalgamated plan, between January and July 1968.
10 to 12 days prior to the election misled them
into believing that Amalgamated was responsible for
the current insurance program.
As the Board stated in Hollywood Ceramics:'
We believe that an election should be set aside
only where there has been a misrepresentation or
other similar campaign trickery, which involves a
substantial departure from the truth, at a time
which prevents the other party or parties from
making an effective reply, so that the
misrepresentation , whether deliberate or not, may
reasonably be expected to have a significant
impact on the election.
In applying this standard to the present case, we
are persuaded that Amalgamated's campaign
rhetoric was not such a substantial departure from
the truth as to affect the employees freedom of
choice in the election. It is, in fact, true that
Amalgamated obtained the initial insurance plan. It
is also true that the Employer continued the
identical program albeit without Amalgamated's
participation after June 26, 1968. In spite of the
potentially misleading leaflet distributed about July
1, employees were put on notice by the Board's
posted Notice To All Employees with regard to the
unfair labor practice case, that Amalgamated was
no longer their bargaining representative and
therefore, not responsible for the new insurance
program . Also, the Employer's June 26 letter clearly
explained to employees that the insurance plan was
instituted unilaterally. Further, Amalgamated's
second letter credited the employees with salvaging
the plan. Thus, we cannot view Amalgamated's
claims as anything more than campaign puffing.
They cannot be characterized as material
misrepresentations.
Additionally, we note that the Employer's letter
and accompanying leaflet were distributed on or
about July 1, 1968, well in advance of the
November election. In our opinion, the Retail
Clerks had more than ample opportunity to correct
any misleading implications that might have ensued
from these communications. Amalgamated's letters
too were distributed at least a week prior to the
election. Here again there was sufficient time for the
Retail Clerks to inform employees that
Amalgamated was not responsible for the new
insurance plan.6
In view of the foregoing, we find no merit in the
Retail Clerk's Objection 2. Accordingly, it is hereby
overruled.
2. Objection 8 alleges that Amalgamated made
promises of discriminatory treatment with reference
to payment of dues.
Following loss of recognition in April 1968,
Amalgamated urged employees to continue paying
dues on a voluntary basis. Then, on November 8, it
'Hollywood Ceramics Company, Inc , 140 NLRB 221.
`See York Furniture Corporation , 170 NLRB No. 169, S H Lynch and
Company Inc, 171 NLRB No. 167.
HUGHES & HATCHER, INC. 1105
advised employees that the following policies with
respect to dues had been adopted:
1. INITIATION FEE. There will be no
Initiation Fee to join Local 909 for any employee
on the company payroll as of the date of an
N.L.R.B. election.
2. DUES. Dues for Members of Local 909 will
become due and payable as of December, 1968,
after the N.L.R.B . election.
a. Dues for Regular Full time employee shall
be Four Dollars monthly
b. Dues for Part time employees shall be
eighty cents weekly only for those weeks
worked.
3. CREDIT FOR VOLUNTARY DUES
PAID. All Members who have paid Local 909
voluntary dues will be given credit for one
month's future dues for each month of voluntary
dues paid.
At the same time, Retail Clerks promised that
"No dues will be collected until 30 days after the
contract has been negotiated and ratified by you."
The Regional Director analogized the dues credit
offer to a Union's gift of life insurance coverage
should it win the election. In Wagner Electric
Corp.,' the Board held this latter inducement to be a
tangible economic benefit subjecting donee
employees to a constraint to vote for the donor
union . The Regional Director concluded that the
dues credit, too, was an illegal promise of benefits.
We do not agree with the Regional Director's
analysis of the problem. Rather, we rely on
Dit-MCO, Inc., where a union's offer to waive
11 67 NLRB 75.
1163 NLRB No. 147.
initiation fees if it won the election was found
lawful.' In that case, the Board said that it could
not consider as an improper inducement the waiver
of something which could be avoided simply by
voting against the union. So too in the present case.
It is not likely that an employee would vote for
Amalgamated to avoid future dues payments for a
brief period when it could eliminate such payments
altogether by voting against any union.
We also note that the dues credit offer was made
to employees who had paid dues voluntarily without
any expectation of reward for their loyalty. In our
opinion, it is quite improbable that these employees
could have been influenced in their vote by this
promise of dues abatement.
We are persuaded, therefore, that the Hearing
Officer correctly overruled Objection 8.
Accordingly, as Amalgamated has received a
majority of the ballots cast in the election, we shall
certify it as bargaining representative of the
employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Local 909, Central
States Joint Board , Amalgamated Clothing Workers
of America , AFL-CIO , has been designated and
selected by a majority of the employees in the unit
found appropriate as their representative for the
purposes of collective bargaining , and that pursuant
to Section 9(a) of the Act, the said labor
organization is the exclusive bargaining agent for all
such employees for the purposes of collective
bargaining with respect to rates of pay , wages, hours
of employment , and other conditions of
employment.
* U 5 GOVERNMENT PRINTING OFFICE 1971 0-381-116