Ken McKenzie's, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1975

221 N.L.R.B. 489 (N.L.R.B. 1975)

KEN MCKENZIE'S, INC. - 489
Ken McKenzie's, Inc. and Department Store Employ-
ees Union Local 1100 , affiliated with Retail Clerks
International Association , AFL-CIO, Petitioner
Case 20-RC-12453
November 14, 1975
All full and regular part-tune employees em-
ployed by the Employer at its 46 Stonestown, San
Francisco, California location; excluding casual,
temporary, irregular part-time employees, manag-
er, assistant manager, guards and supervisors as
defined in the Act.
DECISION , ORDER , AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
on December 12, 1974, an election by secret ballot
was conducted on February 3, 1975, among the
employees in the appropriate unit. At the conclusion
of the election, the parties were furnished with a tally
of ballots which showed that of approximately 10
eligible voters, 10 cast ballots of which 5 were for,
and 5 against, the Petitioner. There were no void or
challenged ballots. Thereafter, the Petitioner filed
timely objections to conduct affecting the results of
the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Acting Regional
Director conducted an investigation and, on May 28,
1975, issued and duly served on the parties her
Report on Objections in which she-recommended
that the Petitioner's objections be overruled in their
entirety and that an appropriate certification be
issued. Thereafter, the Petitioner filed timely excep-
tions to the Acting Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer. '
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
5. The Board has considered the Acting Regional
Director's report and the Petitioner's exceptions
thereto, and hereby adopts the Acting Regional
Director's findings, conclusions, and recommenda-
tions with respect to Objections 3 and 4. However,
we do not agree with the Acting Regional Director's
recommendation that Petitioner's Objections I and 2
be overruled, and that an appropriate certification be
issued. Accordingly, we shall set aside the election
based on Objections 1 and 2 and direct a second
election.
Objection 1 alleges that the Employer, on or about
December 24, 1974, unlawfully 'granted large wage
increases to unit employees, effective as of January 1,
1975.
The election in- the, instant case was held on
February 3, 1975. The Acting Regional Director's
investigation disclosed that on December 24, 1974,
the Employer distributed Christmas Eve greetings in
envelopes to nine of the employees in the unit. Each
envelope contained a card informing the employee
that effective January 1, 1975, his pay would be
raised to $3.25 an hour, an increase of $.75 per hour.
None of the employees was informed of the increase
prior to its announcement and none was given an
explanation for it.
The investigation further disclosed that the Em-
ployer had in its two other, older stores an estab-
lished policy of making wage reviews at the end of
each year for the purpose of giving wage increases to
those employees at the.. beginning of the new year.
This policy, according to the Acting Regional
Director, was extended to the unit herein at the end
of 1974, rather than at the end of 1973, because the
Stonestown store had just been opened, in October
1973. The Acting Regional Director also noted the
Employer's contention that the size of the increase
was based on rates paid by other stores in the
Stonestown shopping area.'
Based on the Employer's established wage review
policy and the absence of any evidence indicating
that the Employer's wage increase was related to the
employees' union activities or to the election, the
Acting Regional Director concluded that the objec-
tion should be overruled. As noted' above, we
disagree.
In our view, the Employer herein engaged in
objectionable conduct when, during the course' of the
i The Acting Regional Director's investigation disclosed that two other stores in the Stonestown shopping area, have a starting rate of $3 36 an hour
221 NLRB No. 108
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational campaign and just I month prior to
the election, it granted an unannounced and unsche-
duled wage increase to unit employees for the
purpose of dissuading them from supporting the
Union. We note that the only explanation given by
the Employer to justify the timing of the wage
increase was, the mere assertion that it had decided to
extend the policy in existence at its two other older
stores of making wage reviews at the end of the year
for the purpose of granting wage increases at the
beginning of the new year. We further note that this
policy was not applied to the Stonestown store at the
end of 1973. While the Employer asserts that the only
reason it did,not apply the policy to, the Stonestown
store in 1973 was because it had just recently been
opened, we consider it crucial that it presented no
evidence to show that it ever intended to apply the
wage review policy,at the Stonestown store prior to
the advent of the Union.
We also find thafithe Petitioner's second objection,
which asserts that the Employer engaged in objec-
tionable conduct by soliciting employees' grievances
during a meeting on,the day before the election, is an
additional and 'independent ground' on which, the
election should be set- aside.
The undisputed facts recited by the Acting Region-
al,Director indicate that the Employer's two owners
invited all employees to attend a brunch on the day
before the election at,a nearby restaurant. `During
this meeting, one' of the owners discussed the
impending election and stated he would listen to any
employee grievances. The employees responded to
this solicitation by airing their complaints, among
others, about the store manager's unfair treatment of
them-a matter which directly affected the working
conditions of each and every employee, and the
major reason why 'the employees sought union
representation in the first place.
Tlie Acting Regional Director determined that
there was "no evidence that the Employer made any
explicit or implicit promise toI correct or act on any
grievances voiced" and, citing Uarco Incorporatedd2
concluded that, in the absence of such evidence, the
objection lacked merit.
We disagree with this conclusion, the effect of
which is to encourage last-minute interference with
an election by an employer who is' not in the habit of
soliciting grievances.
2 216 NLRB No . 2 (1974).
3 191 NLRB 44, 46 (1971).
4 Hadbar, Division of Pur 0 Sil, Inc, 211 NLRB 333 (1974); Swift
Produce, Inc., 203 NLRB 360 (1973), Associated Mills, Inc, 190 NLRB 113
(1971), Raytheon Company, 188 NLRB 311 (1971).
5 In its brief, to which the Employer filed no reply, Petitioner cited
additional evidence, which it claims is supported by employee affidavits,
that the owners responded to the employees ' complaints by stating at
minimum they would speak to the store manager
'In judging the coercive effect of any preelection
solicitation of grievances, the Board has long been
guided by standards articulated in Reliance Electric
Company: 3
[w]here . . . an employer, who has not previ-
ously had a practice of soliciting employee
grievances" or complaints, -adopts -such a course
when unions engage in'organizational campaigns
seeking to represent employees, we think there is
a compelling inference that he is implicity
promising to correct those inequities he discovers
as a result of his inquiries and likewise urging on
his employees ' that the combined program of
inquiry and"correction will make union represen-
tation unnecessary.
In applying this rule, we have held that, under the
circumstances described above, the' mere solicitation
of grievances, by itself, is coercive and violates the
Act without the necessity of evidentiary proof that
the Employer had indeed made explicit or implicit
promises to adjust grievances .4 We- see no 'reason
now to depart from this standard that the Employer's
solicitation of grievances, alone, prevented the
'employees from being able to freely express their
wishes in the election.
The present record indicates that the election-eve
grievance meeting was the first of its kind ever held
by the Employer. Thus, it was not until the advent of
the Union and' an election was -scheduled that the
Employer provided this means for the employees to
communicate their complaints to management.
During this meeting, the employees spoke about an
immediate and pressing concern affecting their
everyday working conditions; in fact, the employees
articulated the major complaint which initially lead
them to seek union organization. Even without
specific' evidence of a promise to act,5 the inference is
quite clear-the employees can anticipate a response
to their problems from their employer without a
-union acting as their representative or advocate .6
Finally, the grievance meeting was held shortly after
the Employer granted the unlawful wage increases,
which we have already found to be sufficient ground
for setting aside the election. By holding the
grievance meeting soon after granting the unlawful
wage increases, the Employer again demonstrated its
6 Uarco, supra, is distinguishable, in its reliance on the employer's
statements that it could not make any promises , regarding employee
complaints to rebut the presumption of objectionable conduct arising from
the solicitation of grievances . In the present case, there is no evidence of
sinular disavowals , by the Employer so that "any logical anticipation of
improved conditions which the employees might have had" would not have
been dispelled In noting the distinction , we do not find it necessary to
endorse its validity
KEN MCKENZIE'S, INC.
power to affect the immediate concerns of its
employees without their need to resort to a union.
On the basis of the present record, we find that the
Employer interfered with the freedom of its employ-
ees by inviting them to a meeting which he alone
initiated and by soliciting their grievances at that
meeting. These actions of the Employer created the
coercive atmosphere which interfered with the
employees' freedom of choice in the election held the
following day. The Employer need not have explicit-
ly or implicitly promised anything, for, by indicating
he was ready to deal directly with employees on
matters concerning their immediate working condi-
tions and that he was willing to respond to the
problems which were thus raised, he signified to the
employees exactly who had ultimate control over
their work environment. This action undermined the
Union's position by making it easy for the employees
to, conclude that they did not need a union because
the Employer, was listening directly to them. We are
unable, contrary to the Acting Regional Director, to
discern how the Employer could communicate to the
employees that all he was prepared to do was merely
listen to their complaints; 'a willingness to listen
necessarily implies, at least in the complainant's
perception, a willingness to respond to reasonable
complaints.
Accordingly,` we shall set aside the election based
on both of the objections discussed above and direct
a second election.
ORDER
It is hereby ordered that the election conducted
herein on February 3, 1975, be, and it hereby is, set
aside.
[Direction of Second Election omitted from publi-
cation. j7
MEMBER PENELLO, concurring in part and dissenting
in part:
Based solely on Objection 2, I, like my colleagues,
would set aside the election. My rationale for doing
so, however, .is somewhat different than the rationale
relied on by my colleagues in the majority.
491
In the instant case, the Employer's solicitation of
grievances on the day before the election carried with
it an inference that the Employer was implicitly
promising to correct those inequities it discovered as
a result of its inquiries. As determined by the Board
in Uarco Incorporated, 8 such an inference is rebutta-
ble. Unlike the situation in Uarco, however, where
the Board found no violation of Section 8(a)(1) of the
Act to have occurred because the employer effective-
ly rebutted the inference of any implied promises of
benefit, no evidence has been adduced to show that
the Employer herein has effectively rebutted the
presumption. In the absence of any such evidence, I
find the above solicitation of grievances to be
objectionable.
In fording that Objection 1 constitutes an.addition-
al and independent ground for setting aside the
election, my colleagues conclude that the Employer,
by granting a wage increase to employees "during the
course of an organizational campaign and just 1
month prior to the election," prevented the employ-
ees from being able to freely express their wishes in
the election. I disagree. As noted by the majority, the
Acting Regional Director's investigation disclosed
that the Employer had, in its two other older stores,
established a policy of making wage reviews at the
end of each year for the purpose of giving wage
increases to those employees at the beginning of the
new year. Since the Stonestown store opened in
October 1973, and since all of its employees, except
one, -`were hired at that time, the Employer did not
apply its wage'review policy, there at the end of 1973.
At the end of 1974, however, after the Stonestown
store had been in existence for over a year, the
Employer decided to apply that policy to the
employees at the Stonestown location. Unlike my
colleagues, I view the Employer's course of action
herein as a perfectly logical extension of an existing
wage review policy. Under these circumstances, and
in the absence of any evidence indicating that the
wage "increase was related to the employees' union,
activities or to the election, I would overrule this
objection.
7 [Excelsior footnote omitted from publication ,) 8 216 NLRB No. 2 (1974).