Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1959

124 N.L.R.B. 343 (N.L.R.B. 1959)

MONTGOMERY WARD & CO., INCORPORATED 343
Montgomery Ward & Co., Incorporated and Retail Store Em-
ployees Union , Local 344, affiliated with Retail Clerks Interna-
tional Association, AFL-CIO, Petitioner. Case No. 14-RC-3548.
August 6,1959
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to stipulation for certification upon consent election, an
election by secret ballot was conducted on March 3, 1959, under the
direction and supervision of the Regional Director for the Fourteenth
Region. Following the election, the Regional Director served upon
the parties a tally of ballots which showed that of approximately
seven eligible voters, six cast valid ballots, of which three were for and
three were against the Petitioner.
On March 9, 1959, the Petitioner filed timely objections to conduct
affecting the results of the election. In accordance with the Board's
Rules and Regulations, the Regional Director conducted an investiga-
tion and on June 11, 1959, issued and served apon the parties his re-
port on objections,'a copy of which is attached, recommending that
one objection be sustained, that the election be set aside, and that a new
election be ordered. The Employer filed exceptions to the Regional
Director's report and a brief in support of its exceptions.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. As stipulated by the parties, the following employees of the
Employer constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All employees employed at the Employer's Alton, Illinois, catalog
store, excluding store manager, guards, watchmen, professionals, and
supervisors as defused in the Act.
5. The Board' has considered the Petitioner's objections, the Re-
gional Director's report, and the Employer's exceptions thereto, and
hereby adopts the findings and recommendations of the Regional Di-
rector with the modifications and additions noted below.'
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers, Bean,
and Panning].
2 In the absence of any exceptions thereto, we adopt pro forma, the Regional Director's
recommendation that Objection No. 2 relating to the manner in which notices of the elec-
tion were posted be overruled.
124 NLRB No. 44.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue presented by the Employer 's exceptions to the Regional
Director 's report is whether the Regional Director erred in holding
that a question -and -answer session with six of the seven eligibles in
the above unit held within the 24-hour period immediately preceding
the election interfered with the election.
The Employer contends that the question -and answer session was
not an "election speech" within the meaning of the Peerless Plywood
rule,3 and that the gathering in any case was voluntary and attendance
was not required by the Employer . We find these contentions to be
without merit . In our opinion , the question -and-answer session was,
as detailed in the attached Regional Director 's report, arranged by the
Employer to give the employees information concerning the desir-
ability of selecting a bargaining representative in the election. It is
also clear that the Employer 's response to certain questions indicated
its opposition to employee organization . Although there was no
formal speech in the usual sense, the Employer 's expression of its anti-
union views is the type of campaign electioneering which was intended
to be regulated under the Peerless Plywood rule . We therefore agree
with the Regional Director that under the facts of this case the ques-
tion-and-answer session was a "speech."
As to the use of company time for the meeting, the investigation
revealed that one employee was off duty and attended on her own time
and two employees , as conceded by the Employer , were paid by it for
the time spent at the meeting . With respect to the remaining three
employees , it is not clear whether they attended on their own or com-
pany time, as the group assembled shortly before or about the time
they finished work. In any event , for purposes of applying the rule,
it is sufficient that some of the employees attended the meeting on com-
pany time.4 Nor is it material that the two employees who admittedly
attended on company time, deemed it necessary to request permission
to attend , as the rule was designed to bar absolutely the use of com-
pany time for campaign speeches during the 24-hour period immedi-
ately preceding the election .. Indeed, there is language in the Peer-
less Plywood case itself which makes it clear that the issue of
"voluntary" attendance only arises if the employees are attending on
their "own time. " 5 We therefore find the above conduct violated the
Peerless Plywood rule . Accordingly , we adopt the Regional Director's
recommendation and shall set aside the election and order a new one.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
S 107 NLRB 427.
4 See Texas City Chemicals, Inc., 109 NLRB 115. 11.6.
s Thus , in defining the scope of the rule, the Board stated that it would not "prohibit",
employers or unions from making campaign speeches on or off company premises during
the 24-hour period if employee attendance is voluntary and on the employees ' own time."
[Emphasis supplied .] See, e . g., Falmouth Company, 115 NLRB 1533 , 1535; Robbins
Packing Corp., 115 NLRB 1429, 1430; Rinn Corporation, 119 NLRB 1410, 1411.
MONTGOMERY WARD & CO., INCORPORATED 345
REPORT ON OBJECTIONS TO ELECTION
Pursuant to a stipulation for certification upon consent election executed
February 17, 1959, and approved by the Regional Director on February 19, 1959,
an election was conducted on March 3 , 1959, among the employees described in
section 11 of the stipulation . The tally of ballots shows the results of the election
to be as follows:
Approximate number of eligible voters------------------------------ 7
Void ballots----------------------------------------------------- 0
Votes cast for Petitioner----------------------------------------- 3
Votes cast against participating labor organization -------------------- 3
Valid votes counted- --------------------------------------------- 6
Challenged ballots----------------------------------------------- 0
Valid votes counted plus challenged ballots-------------------------- 6
A majority of the valid votes counted was not cast for Petitioner.
The Objections
On March 9, 1959, the Petitioner filed timely objections to conduct affecting the
results of the election.
Objection No. 1
The Company District Manager, a Mr. Schott, addressed the employees at a
meeting at about 5:30 p.m. on Monday, March 2, 1959, in the store at 1802
East Broadway in Alton, Illinois, and attempted to discourage membership in
the Union by telling employes that they could do better for themselves by
dealing directly and individually with the Company than they could through
collective bargaining with the Union representing them. The RC Election in
the matter had been scheduled for Tuesday, March 3, 1959 at 9:15 a.m. to
9:45 a.m. in the store at the location hereinabove set forth. Ignorance of the
Board's "24 hour rule" can not even be pleaded even if pertinent, because the
Regional Director warned Mr. Schott of the consequences of his holding said
meeting when I talked to him in person in the store at about 5:00 p.m. Monday,
March 2, only about 30 minutes before his meeting was held.
Objection No. 2
Said "NOTICE OF ELECTION" and the corrected copy of same sent out by
the Board, were fastened to a bulletin board in the folded condition in which
they were removed from the envelope in which they were received, that is,
the letter of transmittal and the "Instructions to Election Observers" were
stapled to the front of the folded "NOTICE OF ELECTION" and fastened with
thumb tacks to the bulletin board with the said "NOTICE OF ELECTION"
being almost completely obscured by said letter of transmittal and "Instructions
to Election Observers." This matter was called to the attention of the Election
Examiner, Mr. Howard W. Solomon, who removed same and took them with
him, after they had been photographed by the undersigned in his presence.
Subsequent to filing of the objections the Employer filed a statement of its posi-
tion , admitting certain facts in respect to each objection, but contending that there
was no basis for setting aside the election.
Pursuant to section 5 of the stipulation and Section 102.69 of the Board's Rules
and Regulations, Series 7, as amended, the Regional Director has caused an investi-
gation to be made and reports thereon as follows:
Conclusions as to Objection No. 1
The investigation revealed that sometime during the week immediately preceding
the week of the election, Store Manager Maxwell advised employees that District
Manager Schott would be in the store the following Monday for the purpose of
talking to employees and answering any questions they might have. Maxwell did
not mention whether employees would be required to talk with Schott when he did
arrive.
On Monday, March 2,1 Schott arrived at the store sometime before 5 p.m.
Shortly after his arrival Schott was engaged in conversation by Petitioner's repre-
sentative, Paul Jones, who told Schott that a meeting such as Schott was planning
The election was conducted on Tuesday, March 3, between the hours of 9 :15 and
9 :45 a.m.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hold had been ruled by the National Labor Relations Board to be a basis for
setting aside elections. After some conversation, Jones left the store. Store Mana-
ger Maxwell then told several employees that now was the time to ask their ques-
tions of Schott.
Schott then went to the rear of the store to the area known as the "pit" room.
Employees present in the store at the time followed him to his area. Maxwell
herself remained in the front of the store waiting on customers. Several of the
employees state that they went to the rear of the store because it was expected of
them, and some employees state they went to meet with Schott because they had
questions to ask.2
Schott told the assembled employees that he couldn't make a speech to them
because it would be breaking a rule, but said that he would try to answer any
questions that they might have. 'Several employees asked if they could not be
paid for the overtime they worked from time to time, and Schott replied that they
would only be paid straight time. Another employee asked Schott why her present
rate was lower than the rate which had been paid to her predecessor. Schott an-
swered that he did not know, but that he would have to look into the matter.
The only direct mention of the Union, according to employees, occurred when an
employee asked if the commissions would be cut if the Union won the election.
Schott replied that he would personally guarantee that the commissions would not
be cut if the Union got in. Employees seem to be in substantial agreement that
the meeting lasted about 30 to 45 minutes. The employees then left the rear of
the store. Some of them returned to work; others whose workday had ended left
the store .3
The Union contends that this meeting falls within the rule of Peerless Plywood
Company,4 in which case an election was set aside because of a noncoercive speech
made by an employer. In this case the Board enunciated the following rule:
Accordingly, we now establish an election rule which will be applied in all
election cases. This rule shall be that employers and unions alike will be
prohibited from making election speeches on company time to massed assem-
blies of employees within 24 hours before the scheduled time for conducting an
election. Violation of this rule will cause the election to be set aside when-
ever valid objections are filed.
... Moreover, the rule does not prohibit employers of unions from making
campaign speeches on or off company premises during the 24-hour period if
employee attendance is voluntary and on the employees' own time.
The issue presented is whether the Employer violated the rule thus set forth.
First, it is clear that the meeting took place within the 24-hour period preceding
opening of the polls.
The second factor to consider is whether the meeting took place on company
time. Investigation shows that on the day in question the working schedule $ was
as follows:
9:00 a.m.-5:30 p.m.-Ramsey
Miller
Littleton
12:30 p.m.-9:00 p.m.-Shakleford
5:00 p.m.-9:00 p.m.-Sunderland
The Employer's position is that the employees assembled voluntarily in the back
room sometime after 5:30 p.m. by which time Littleton, Miller, and Ramsey had
completed their regular work schedule, and that Sunderland and Shakleford sought
and received permission from Manager Maxwell to join the group.
The Regional Director concludes, from all the evidence, that the meeting with
the employees began between 5:15 and 5:30 p.m. and lasted until about 6 p.m. It
thus appears that some, if not all, the employees working that day were on duty
(i.e., "company time") at the time of the meeting.6
2 Various times are given by employees as to when the meeting began. These esti-
mates range from 4 :45 p.m. until shortly before 5 :30 p.m. Most employees are in agree-
ment that the session lasted for about a half or three-quarters of an hour.
8 None of the employees had pay deducted for time spent at the meeting.
4 107 NLRB 427.
5 Although employee Mary Jane Taylor was not scheduled to work that 'day, she came
to the store on her own time in order to be present at the meeting.
6 See Mid-South Packers, Inc., 110 NLRB 628.
MONTGOMERY WARD & CO., INCORPORATED 347
The Regional Director also concludes from the evidence that there was no clear
indication to the employees that their attendance was voluntary. Therefore, the
employees justifiably assumed that attendance at the meeting was compulsory?
The next question is whether the utterances of Schott at the meeting were such
as to constitute "an election speech" within the meaning of the Peerless Plywood
case. The Employer contends that they do not.
It is quite true that Schott's remarks cannot be literally described as "an election
speech." However, the fact that Schott did not make a formal speech, but an-
swered questions asked by the employees, is not of itself sufficient to take the meeting
out from under the Peerless Plywood restriction. Rather, the purpose and content
of the meeting must be considered in the light of the stated objective of the Peerless
Plywood rule. The Employer describes the meeting of Schott with the employees
as follows:
There were one or two questions concerning the union. Mr. Schott indicated
that he preferred not to answer the questions about the company's position on
unions in view of the 24-hour rule of the board. However, several of the
employees insisted that they wanted to know precisely what the company's
policy was. At their urging Mr. Schott told them they were free to join the
union or not to join the union as they saw fit. He also indicated that he felt
the company's present system of appraisal of the employee's performance as
well as their own productivity and aggressiveness was the best kind of plan
for them. He indicated that the employees could earn more money through
their own ability than they could through any outside organization.
It is the view of the Regional Director that the above statement clearly reveals
that the purpose of the meeting was to make certain that the employees fully under-
stood the policies and practices of the Company with respect to wages, commis-
sions, and other benefits so as to enable them to evaluate these benefits against
prospective benefits to be obtained from union representation. The meeting thus
constituted a "campaign" against the Union within the Peerless Plywood rule. The
prohibition of the Peerless Plywood rule is not to be defeated by the subterfuge of
terming the meeting with employees as "a question and answer period" instead of
"an election speech."
The Regional Director therefore concludes that objection No. 1 has merit and
that it be sustained.
Conclusions as to Objection No. 2
Objection No. 2 concerns the manner in which the notices of election were
posted in the store several days prior to the election.
The Board's standard "Notice of Election" 8 is set out on a sheet of paper 14
inches long and 17 inches wide. On the left side of this sheet is printed general
informational matter under headings of "Rights of Employees," "Purpose of Elec-
tion," "Secret Ballot," etc. On the right-hand side of the notice appears in mimeo-
graphed form a description of the voting unit, the time and place of election, and a
sample ballot.
On February 24 the Regional Office mailed to .the Employer's store three copies
of the notice of election which had been prepared for this case. With the notices,
which were folded to accommodate to the mailing envelope, were copies of the form
entitled "Instructions to Election Observers" together with a letter of transmittal.
Store Manager Maxwell states that she read the notice to employees and then
posted the notice and the accompanying material on the side of the storage bin
which informally serves as a bulletin board for employees. In so doing she did
not unfold the notices but fastened them and the other material on both upper
corners just as they had been arranged in the envelope. The result was that most
of the election notice was obscured although the bottom of the sample ballot re-
mained visible. The lower corners of the sheets of paper were not fastened down
so that employees were free to lift the forms on top of the notice and thus could
read the entire right-hand half of the notice. They could not, however, read the
left-hand side of the notice since it was folded under.
On February 27, the Regional Office discovered that the notice of election had
stated the year of the eligibility date as 1949 instead of 1959. Accordingly, that
same day a corrected set of notices was mailed to the store which gave the correct
year. The store manager posted this set of notices beside the original notice and
in the same manner as she had posted the original notice.
7 Robbins Packing Company, 115 NLRB 1429.
8 Form NLRB 707.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union states in its objection that the notice was improperly displayed, con-
tending that because of this one eligible employee was not advised of his right to
vote and thus failed to cast a ballot in the election.
The investigation showed that the only eligible employee who did not vote was
James Covington, who is employed as a part-time janitor. Covington attends high
school 8:30 a.m. to 3:30 p.m. daily. After school he spends 2 hours daily in the store,
cleaning desks, sweeping the floor, dusting displays, and emptying waste baskets.
This work takes him to all parts of the store. Covington states in his affidavit
that: "I didn't vote in the election for one thing because I didn't know about it
[the time and date] and also because of the early hour I couldn't have been there
anyway since it was during my school hours and I would have been in school."
Covington states that he seldom reads the various notices posted on the bulletin
board because they usually did not concern him. He admits that although he was
aware that an election was scheduled, he failed to read the notice or to make any
inquiries as to the scheduled date and time.
Under these circumstances, Covington's failure to vote is not attributable to the
manner in which the notices were posted. Since he did not see the notice at all,
the manner of posting becomes immaterial as to him. The notice of election was
available in the place where notices to employees are customarily posted. Fur-
thermore, Covington could have determined the election date and hours by simply
asking the store manager, who did remark at one time to Covington that an election
would be held soon, although she did not specify the date.
The Regional Director therefore concludes that the manner in which the election
notices were posted did not cause any eligible employee to refrain from voting.
The Regional Director having concluded that objection No. 2 lacks merit, recom-
mends that it be overruled.
[Recommendations omitted from publication.]
Robertson Paper Box Company , Incorporated and General Team-
sters, Chauffeurs and Warehousemen, Local Union No. 493,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Petitioner. Case No.
1-RC-5455. August 6, 1959
SUPPLEMENTAL DECISION AND SECOND DIRECTION
OF ELECTION
On March 2, 19591 the Board issued a Decision and Direction of Elec-
tion in this proceeding, finding a unit of production and maintenance
employees appropriate for the purposes of collective. bargaining.'
Thereafter, on March 20, 1959, Norwich, Connecticut, Printing Spe-
cialties and Paper Products Union, Local No. 494, subordinate to In-
ternational Printing Pressmen and Assistants Union of North Amer-
ica, AFL-CIO, herein called Local 494, one of the Intervenors herein,
filed a motion to amend the Decision and Direction of Election by
severing a craft unit composed of the Employer's printing pressmen,
cutting pressmen, and creasing pressmen, their apprentices and help-
ers. On March 26, 1959, the Board issued a telegraphic notice to show
cause why it should not find appropriate for purposes of collective
bargaining a craft unit as requested by Local 494, and a residual pro-
1 Unpublished.
124 NLRB No. 45.