Stride Rite Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 297 (N.L.R.B. 1981)

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