Walgreen Co.

National Labor Relations Board - Board Decisions

Feb 7, 1963

140 N.L.R.B. 1141 (N.L.R.B. 1963)

WALGREEN CO . 1141
4. By certain of the aforesaid unfair labor practices committed prior to the
Board election, Respondent has interfered with and illegally affected the results of
the Board election held on May 10, 1962.
5. The aforesaid conduct constitutes conduct affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the cases, I recommend that Respondent, Bonham Manu-
facturing Company, Inc., Bonham, Texas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from:
(a) Interrogating employees in a manner constituting interference, restraint, or
coercion; threatening employees with closing down the plant, loss of jobs, or other
reprisals on account of their union activities; promising employees benefit to in-
fluence their vote in a Board election or induce antiunion activities; or creating an im-
pression among the employees that their union activities are under surveillance.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Post at its Bonham, Texas, plant, copies of the attached notice marked
"Appendix." 18 Copies of said notice, to be furnished by the Regional Director
for the Sixteenth Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof, and be maintained for a period of 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps Respondent has taken
to comply herewith.19
It is further recommended that the election conducted in a unit of Respondent's
employees on May 10, 1962, be set aside and a new election directed at an ap-
propriate time.
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
18 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
19 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
Walgreen Co. and lee Cream, Frozen Custard Industry, Em-
ployees, Drivers , Vendors and Allied Workers Union, Local
No. 717 , affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Petitioner . Case No. 13-RC-8281. February 7, 1963
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted by the Regional Director
140 NLRB No. 121.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Thirteenth Region on January 15, 1962, among the employees
in the unit described below. After the election the parties were fur-
nished a tally of ballots which showed that of approximately 41
eligible voters, 37 ballots were cast, of which 19 were for, and 18 were
against, the Petitioner. The Employer filed timely objections to con-
duct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation and, on January 29, 1962,
issued and duly served upon the parties his report on objections, in
which he recommended that the objections be overruled, and that the
Board issue a certification of representatives. The Employer
filed timely exceptions to the Regional Director's report and
recommendations.
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 employees 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. The parties stipulated, and we find, that 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 regular full-time and part-time bakery and commissary em-
ployees employed at the Employer's Chicago, Illinois, plant, excluding
office clerical employees, seasonal employees, temporary employees,
dietitians, guards, commissary manager, commissary assistant man-
ager, bakery foreman, ice cream department manager, ice cream de-
partment assistant manager, and other supervisors as defined by the
Act, and porters, ice cream inside workers, ice cream drivers and help-
ers, commissary drivers and helpers, and engineers represented in
separate bargaining units.
5. In its objections the Employer contends that misrepresentations
in a handbill distributed by the Petitioner to eligibles prior to the
election interfered with the freedom of choice of the employees. On
the eve of the election the Petitioner, a local which already represented
the Employer's ice cream department employees and its drivers, dis-
tributed among the employees in the bakery and commissary unit here
sought the handbill in question. Purportedly this handbill was in
response to a letter sent to the employees by the Employer regarding
the benefits its nonunion employees were receiving. In its handbill the
Petitioner stated that such benefits were given only because of the
Employer's desire to match benefits negotiated by the Petitioner, and
stressed that such benefits could be taken away without a union. The
WALGREEN CO. 1143
handbill also noted that the last time the unorganized employees had
received a wage increase was in November 1961, when the Petitioner
was trying to organize, and further stated that on July 1, 1961, it had
obtained for "its members" a 241/2-cent an hour increase and 3-week
vacation benefit after 8 years, plus additional benefits for 1962 and
1963. The members referred to included not only the above employees
of the Employer already represented by the Petitioner, but also em-
ployees of individual plants of the Ice Cream Council, an association
representing other employers in the industry. In its objections the
Employer contended that the handbill was incorrect on the following
points : (1) Only the union members employed by the Employer as
inside workers received the 241/2-cent wage increase; (2) the Em-
ployer's truckdrivers represented by the Petitioner received no wage
adjustments; (3) none of the members employed by the employer re-
ceived increased vacation benefits; (4) members of employers in the Ice
Cream Council received only a 121/2-cent wage increase; and (5) mem-
bers of employers in the Ice Cream Council received a 3-week vacation
only after 10 years. In his report the Regional Director found that the
handbill contained misrepresentations as alleged by the Employer.
Notwithstanding the timing and the nature of the handbill in question,
the Regional Director found that it was permissible propaganda, and
recommended that the Employer's objections be overruled. We do
not agree.
Although the Board, as a general rule, does not undertake to police
or censor propaganda material used by participants, we find that the
misrepresentations circulated here so lowered the standards of cam-
paigning as to warrant the use of the Board's corrective powers.
Thus, the Petitioner's handbill on its face purported to indicate com-
posite wage and vacation benefits obtained for all its members. This
information was distributed to employees on the eve of the election,
too late for the Employer to check the information contained therein,
and to communicate the correct facts to the employees. Moreover, the
employees themselves had no independent means of knowing that the
above information was untrue, and had every reason to accept it at
face value as they knew that the Petitioner was in fact an authorita-
tive source concerning benefits secured for its own members.' We,
therefore, are of the opinion that the handbill in question could not
be intelligently evaluated by the employees, and was reasonably cal-
culated to deceive the employees as to material matters? In view of
the importance to employees of local wage and fringe benefits as an
argument for or against unionization, we find that substantial doubt
is raised whether the results of the election reflected the free choice of
1 See The Gummed Products Company, 112 NLRB 1092
2 See Hollywood Ceramics Company, Inc, 140 NLRB 221: The Cleveland Trencher
Company, 130 NLRB 600, 602; Reiss Associates, Inc, 116 NLRB 217, 219; Thomas
Gouzoule, et al., d/b/a The Calidyne Company, 117 NLRB 1026, 1028.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees .' Accordingly, we shall sustain the Employer's objec-
tions, and set the election aside.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Decision, Order, and Direction of Second Election.
MEMBER BROWN, dissenting :
Recently, the Board restated the principles which it will apply in
cases where it is alleged that a party has misrepresented a fact in con-
nection with a representation proceeding.4 Measured by the rules of
that case, I believe that the Petitioner's handbill is not a substantial
departure from truth which warrants setting the election aside. Ac-
cordingly, I would overrule the Employer's objections and certify
the results of the election.
This case is vastly different from Hollywood Ceramics Company,
Inc., supra. There, each of the possible interpretations of the com-
parisons of the wage rates constituted a substantial departure from
the truth. Moreover, the failure of the Union to duplicate in Spanish
the key explanatory phrase in the leaflet, for a large percentage of
the employees who were fluent in or could understand only Spanish,
strongly supported the conclusion that such employees were likely to
have been misled by the Union's statements. Here, the Employer ad-
mits that there is some truth in the Union's statements by acknowledg-
ing that each of the listed benefits was received by some members of
the Union.
The Employer's objection is based on the inferences to be drawn
from the handbill. It argues that the election should be set aside be-
cause the statements imply that all members of the Union received all
of the listed benefits. The issue thus is one of interpretation and the
Regional Director found that the leaflet was susceptible of varied in-
terpretations. We said in Hollywood Ceramics 5 that we would not
set aside an election merely because a party's message is "inartistically
or vaguely worded and subject to different interpretations . . .
In my view, this case falls squarely within the ambit of that rule.
At most, this propaganda is the type of exaggeration or inaccuracy,
which though not condoned, is not a ground for setting aside the elec-
rs We think that our dissenting colleague overlooks the timing of the handbill and the
fact that it misstated the benefits of a contract not yet reduced to writing And we
cannot agree that there was adequate opportunity for employee evaluation of the state-
ments as mere exaggerations To fact, we think that the opportunity for employee con-
tact which did exist here may have operated with a contrary reault The one group
with which the commissary employees were apt to have contact-the Walgreen ice cream
employees-aetually had received the 241/2-cent wage increase , thus giving presumptive
credence to the Union's statement in its entirety
4 Hollywood Ceramics Company . Inc., 140 NLRB 221.
6 Hollywood Ceramics Company , Inc, supra.
FRED MEYER, INC. 1145
Lion. We have frequently declared that we will not police this type
of propaganda of unions and employers. I believe that in setting
aside this election the Board is injecting itself too far into the cam-
paign and is improperly establishing itself as the censor of each utter-
ance. In my view, this kind of statement does not so disturb the
laboratory conditions, which we are bound to provide, as to require
our administrative action.
Further, I would uphold the election for another reason. I would
find that in the circumstances here the employees possessed the inde-
pendent knowledge with which they could evaluate the Petitioner's
statements. According to the Employer, the employees who are the
subject of this petition work in the same building with those who are
now represented by the Petitioner, and individuals from the two
groups have contact when their lunch periods and coffee breaks co-
incide. In this situation it is most likely that during the 6 months
between the negotiation of the last contract between the Union and
the Employer, the employees involved herein would have learned of
the contract's terms. In two cases involving closely similar facts
the Board found that the employees possessed sufficient independent
knowledge to evaluate the propaganda and refused to set aside the
election.6
Accordingly, I find that the facts here do not warrant setting aside
the election and would adopt the recommendation of the Regional
Director.
9 See Allis - Chalmers Manufacturing Company, 117 NLRB 744, 748; Hook Drugs, Inc.,
119 NLRB 1502, 1505.
Fred Meyer, Inc. and International Union of Operating Engi-
neers, Local 87, AFL-CIO, Petitioner. Case No. 36-RC-1762.
February 7, 1963
DECISION AND ORDER
Upon a petition filed under Section 9(c) of the National Labor
Relations Act, hearings were held before Robert J. Wiener, hearing
officer.' The hearing officer's rulings made at the hearings are free
from prejudicial error and are hereby affirmed.
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 [Chairman McCulloch and Members Rodgers and Leedom].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
I The original hearing was held on July 17, 1962. Pursuant to an order of the Board
reopening the record and remanding the proceeding , a further hearing was held on
October 25, 1962.
140 NLRB No. 107.