Harlem River Consumers Cooperative, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 314 (N.L.R.B. 1971)

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harlem River Consumers Cooperative , Inc. and 777
Harlem Employees Union, Petitioner . Case 2-RC-
15261
June 21, 1971
SUPPLEMENTAL DECISION AND
DIRECTION
BY MEMBERS FANNING, BROWN, AND KENNEDY
Pursuant to a Decision and Direction of Election
issued by the National Labor Relations Board on April
10, 1970 (not printed in NLRB volumes), an election
by secret ballot was conducted on April 20, 1970, under
the direction and supervision of the Regional Director
for Region 2 among the employees in the unit found
appropriate. At the conclusion of the election the par-
ties were furnished with a tally of ballots which showed
that of approximately 48 eligible voters, 44 cast ballots,
of which 14 were cast for the Petitioner, 15 for the
Intervenor,' none were cast against representation, and
15 were challenged. The challenged ballots were suffi-
cient in number to affect the results of the election.
On April 22, 1970, the Employer filed timely objec-
tions to conduct affecting the results of the election and
to the conduct of the election, and on May 22, 1970, the
Regional Director for Region 2 directed a hearing
before a Trial Examiner for the purpose of receiving
evidence to resolve the issues raised by the 15 chal-
lenged ballots and the Employer's objections. A hear-
ing was held before Trial Examiner Henry L. Jalette on
June 22-25, 1970. On August 21, 1970, the Board
granted the Employer's motion to reopen the record to
receive evidence concerning an allegation that the In-
tervenor should be disqualified because of a conflict of
interest . Pursuant to that order, further hearing was
held before the Trial Examiner on September 21-23,
1970. All parties were given full opportunity to exam-
ine and cross-examine witnesses and to introduce evi-
dence bearing on the issues. On January 8, 1971, the
Trial Examiner issued and duly served on the parties
his Report on Challenges and Objections, attached
hereto. In his report, the Trial Examiner recommended
that the Employer's objections be overruled. He further
recommended that the challenges to 3 ballots be sus-
tained and their ballots not be opened and counted, and
that the challenges to 12 ballots be overruled and that
their ballots be opened and counted and a revised tally
be issued . Finally, the Trial Examiner concluded that
Intervenor's business agent , Overton, had a business
interest incompatible with the Intervenor's disinter-
ested representation of the Employer's employees, and
I Retail, Wholesale and Chain Store Food Employees Union, Local 338,
Retail, Wholesale and Department Store Union, AFL-CIO, hereinafter re-
ferred to as Intervenor.
therefore, if the Intervenor wins the election, it should
not be certified so long as Overton remains in that
capacity in the Employer's geographical area . The Em-
ployer and the Intervenor filed timely exceptions to the
Trial Examiner's report and briefs in support thereof,,
and the Intervenor filed a brief in support of the Trial
Examiner's report and a brief in answer to the Em-
ployer's brief.
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 powers
in connection with this case to a three-member panel.
The Board has considered the objections and chal-
lenges, the Trial Examiner's report, and the exceptions
and briefs, and, upon the entire record in this case and
for the reasons fully expressed by the Trial Examiner,
we hereby adopt his findings and recommendations in
all respects,3 except as to the challenged ballot of Ar-
thur Lee Gray.'
DIRECTION
It is hereby directed that the Regional Director for
Region 2 shall, within 10 days from the date of this
Supplemental Decision, open and count the ballots of
Milton Andrews, Jacqueline Creque, Raymond
Medina, Clarence Mangin, Lee Walker, McCullen
Smith, Estelle Daniels, Julia Miller, William Howard,
Kenrich Chandler, Henry Jefferson, and Virginia
Gaines, and thereafter prepare and cause to be served
on the parties a revised tally of ballots, including
therein the count of said ballots; and take such further
steps as may be necessary in accordance with this Di-
rection and the Board's Rules and Regulations.
S Exceptions were filed to the Trial Examiner 's recommendations that the
challenges to the ballots of Joseph Gadison, Brenda Mickens, and Arthur
Lee Gray be sustained , and the challenges to the ballots of Jacqueline
Creque, Raymond Medina , Clarence Mangin, and Lee Walker be overruled
Exceptions were also filed by both the Employer and the Intervenor to the
Trial Examiner's findings , conclusions, and recommendations concerning
the alleged conflict of interest.
I The Trial Examiner recommended overruling the Employer 's objec-
tions to the conduct of the election and to conduct affecting the results of
the election in their entirety . The Trial Examiner also recommended over-
ruling the challenges to the ballots of Milton Andrews , McCullen Smith,
Estelle Daniels, Julia Miller, William Howard, Kenrich Chandler, Henry
Jefferson , and Virginia Gaines. In the absence of exceptions to these recom-
mendations, we adopt them pro forma.
We neither adopt nor reject the Trial Examiner 's recommendation that
the challenge to Gray's ballot be sustained. If upon the opening and counting
of the ballots, the challenges to which are herein overruled , the revised tally
of ballots indicates that Gray's ballot is not determinative, the issue is
rendered moot. If his vote is determinative , the Board will consider the issue
at that juncture.
191 NLRB No. 48
HARLEM RIVER CONSUMERS COOPERATIVE
REPORT ON CHALLENGES AND OBJECTIONS
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner: The Employer is a
cooperative operating a retail supermarket at 2555 Seventh
Avenue, New York City. It began operations about June 4,
1968. Shortly thereafter, the Employer and Retail, Wholesale
and Chain Store Food Employees Union, Local 338, AFL-
CIO, (hereinafter referred to as Intervenor), entered into
negotiations on a contract which culminated in the signing of
a contract on January 20, 1969. Before the contract was
signed, a strike had been narrowly averted, but unfortunately
for all concerned, the signing of the contract failed to resolve
the differences between Intervenor and the Employer, and on
April 21, 1969, the employees went on strike.
On October 3, 1969, 777 Harlem Employees Union, an
independent organization of the Employer's employees filed
a petition for an election which marked the genesis of this
case. After a lengthy hearing, on April 10, 1970, the Board
issued a Decision and Direction of Election. At that time, the
strike and picketing had been in effect almost 1 year. In order
to preserve the rights of the strikers to vote under Section
9(c)(3) of the Act, an election was held on April 20, 1970, 1
day short of the anniversary date of the strike and picketing.
The tally of ballots shows that there were approximately 48
eligible voters. Of the ballots cast, 14 were cast for Petitioner,
15 for Intervenor, and none against representation by the
participating labor organizations. Fifteen votes were chal-
lenged and the challenges were determinative.
On April 22, the Employer filed timely objections to con-
duct affecting the results of the election, and on May 22, the
Regional Director for Region 2 directed a hearing before a
Trial Examiner for the purpose of receiving evidence to re-
solve the issues raised by the 15 challenged ballots and the
objections to the election. Pursuant to such order a hearing
was held before me on June 22, through June 25, 1970.
At the time of such hearing, there was pending before the
Board a motion of the Employer to reopen the record to
permit it to introduce evidence in support of its claim that the
Intervenor should be disqualified as a representative of its
employees because of a conflict of interest of the Intervenor.
On August 21, 1970, the Board granted the motion and or-
dered that the hearing be reopened. Pursuant to such order,
further hearing was held before me on September 21, 22, and
23, 1970.
All parties were afforded full opportunity to participate in
this proceeding and to file briefs. The Employer and the
Intervenor filed briefs which have been duly: considered.
Upon the entire record in the case, and from my observa-
tion of the witnesses, it is hereby found as follows:
I THE CONFLICT OF INTEREST ISSUE
A. The Basis of the Claim
The Intervenor has been in existence well over 40 years and
it represents, or seeks to represent , employees in the food
service industry . Intervenor has about 15,000 members and
over 1200 contracts . In the Harlem area, which is where the
Employer is located , the Intervenor has a contract with a
multiemployer association known as the Associated Grocers
of Harlem . Generally speaking , this is the contract adopted
by all operators of food stores in the area who recognize
Intervenor as bargaining representative of their employees.
It has as officers a president , a secretary -treasurer, and a
recording secretary, and it has an executive board consisting
of about 40 members. It has six business agents who are
elected by the members . Each business agent is in charge of
a particular territory within the jurisdiction of Intervenor.
315
Lenwood Joseph Overton (hereinafter referred to as Joe
Overton) is the business agent in charge of the territory in
which the Employer's store is located. He is alleged to have
financial interests in a corporation known as Co-Ordinated
Community Service, Inc. (hereinafter referred to as CCS),
which presents a conflict of interest in any possible dealings
between Intervenor and the Employer.
Lawrence Joseph Overton (hereinafter referred to as Larry
Overton) was a member of Intervenor's Executive Board un-
til July 1970 when he resigned. He claims to be the owner of
a 25 percent interest in CCS and is the owner of grocery stores
in the Harlem area. These ownership interests are alleged to
present a conflict of interest in any possible dealings between
Intervenor and the Employer.
Leonard Faust is brother-in-law to Joe and Larry Overton
and was a member of Intervenor until March 1968, and prior
thereto he had served as a section chairman of Intervenor. He
is employed as a marketing supervisor by CCS. Such employ-
ment is alleged to present a conflict of interest in any possible
dealings between Intervenor and the Employer.
CCS is a corporation engaged in providing marketing and
merchandising services for manufacturers of national brand
products in the Negro market. Simply stated, CCS tries to
induce operators of supermarkets (such as the Employer) to
feature the products of its clients in their stores. According
to Cora Walker, legal counsel and former coordinator of the
Employer's operations, on May 27, 1968, just before the Em-
ployer began operations, Joe Overton approached her in a
restaurant and told her she was going about setting up the
cooperative in the wrong way, that she was putting in Canada
Dry instead of White Rock, McCormick's instead of Ehler's,
and another item. (White Rock and Ehler's are firms repre-
sented by CCS.) Overton asked Walker if she had been con-
tacted by Hulan Jack (president of CCS) and when she said
no, Overton said he would have Jack contact her. On May 28,
Leonard Faust visited the Employer's store and left his busi-
ness card to be contacted. On May 29, Jack telephoned
Walker about the merchandise in the store and was told to
write a letter. On May 31, a letter from Jack solicited the
Employer to consider the products of the firms represented
by CCS.
B. Analysis and Conclusions
In the preceding section, I have merely set forth the basis
of the Employer's claim of conflict of interest. It serves as a
means of introducing a preliminary legal issue which is raised
by the Employer's claim; namely, that the conflict of interest
which the Employer asserts, exists, if attributable to anyone
at all, is attributable not to Intervenor itself, nor to its activi-
ties, but to the personal activities of Intervenor's agents. The
Intervenor contends that it may not be disqualified from
representing employees who desire representation by it be-
cause of the personal activities, of its agents.
It is evident at the outset that in at least one respect this
is not a Bausch & Lomb situation; there the union was the
owner of a competing firm; here it is the Union's agents'
ownership interests which are challenged.' Similarly, in Bam-
bury Fashions, Inc., et al., 179 NLRB No. 75, the petitioner
itself, not its agents, was engaged in the business of selling
apparel in direct competition with the employer with whom
it sought bargaining rights. N.L.R.B. v. David Buttrick Co.,
361 F.2d 300 (CA. 1), is also distinguishable from the instant
case because the alleged conflict was based on interests of
' Bausch & Lomb Optical Company, 108 NLRB 1555 To be precise, the
competing firm was owned by members of the Union as stockholders, but
the Union actually controlled and operated the competing business.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged affiliates of the certified local rather than personal
interests of its agents.
In short, none of the conflict of interest cases has consid-
ered the personal activities of a union's agents as a basis for
disqualification. There is one case, however, which persuades
me that it is inappropriate to disqualify a labor organization
because of the personal activities of its agents. In Alto Plastics
Manufacturing Corporation, 136 NLRB 850, the Board
refused to consider evidence of corruption on the part of
union agents on the ground that these were internal union
matters outside of its statutory competence. As the Board
stated:
The allegations made by the Intervenor, which it
sought to prove through the records and documents it
had subpenaed, concern improper or corrupt practices in
the administration of internal union affairs. In titles I
through VI of the Labor-Management Reporting and
Disclosure Act of 1959, Congress expressly dealt with
such matters. It is particularly significant that the reme-
dies provided in the LMRDA were given to individual
employees directly, and to the public through the mter-
vention of the Secretary of Labor or the Department of
Justice. The theory underlying this type of remedial
legislation is not to "illegalize" the organization itself,
but to afford protection to all parties concerned by creat-
ing specific Federal rights and remedies whereby the
activities of the organization and its officers and agents
are regulated and subjected to judicial review in the
vindication of those rights. Had Congress desired to
strike directly at the organization itself, Congress would
have said so.
Moreover, in Leedom v. International Union of Mine,
Mill and Smelter Workers, 352 U.S. 145, the Supreme
Court held that the Board did not have any implied
power to withhold its processes from a union as a
remedy for the filing of a false non-Communist affidavit
by the union's president under Section 9(h) of the Act,
as the only remedy for a violation of that section was the
one provided in the Criminal Code. We believe the same
rationale is applicable in the instant case. Congress pro-
vided certain remedies in the LMRDA for parties ag-
grieved as a result of unlawful activities in the conduct
of internal union affairs. It would be manifestly improper
for the Board to fashion a remedy under the National
Labor Relations Act which Congress did not see fit to
authorize. There is not the slightest indication in the
LMRDA that Congress intended to place the regulation
of internal union affairs within the Board's province.
Nor did Congress, in amending the -Act, seek to amend
it in this respect. On the contrary, Section 603(b) of the
LMRDA provides: " ... nor shall anything contained in
[titles I through VI] . . . of this Act be construed to con-
fer any rights , privileges , immunities, or defenses upon
employers, or to impair or otherwise affect the rights of
any person under the National Labor Relations Act, as
amended." [Emphasis supplied.] 'Thus Congress gave
very explicit expression in the law to its intent that the
Board should not withhold its procedures or remedies
where unions or employers, or their officers or agents,
breached the obligations laid down in titles I through VI
of the LMRDA.
I am unable to see any real distinction between that and
this case. Like the petitioner therein, Intervenor is a labor
organization within the meaning of the Act. While it acts
through agents and is responsible for their conduct when
acting in their capacity as agents, it is distinct from its agents
and has rights that appertain to it as a labor organization. It
was such rights the Board was recognizing in Alto Plastics, as
well as the right of the employees under Section 7 of the Act
"to bargain collectively , through representatives of their own
choosing ." To hold that the employees of the Employer do
not have the right to select Intervenor as their bargaining
representative because one of its agents has personal interests
which conflict with his duties as agent of Intervenor would
do violence to that right.
It may be argued , however , that Alto Plastics is distinguish-
able because the alleged corruption related to the administra-
tion of internal union affairs , whereas here the activities of
Intervenor's agents have nothing to do with Intervenor's in-
ternal union affairs; rather ; such activities relate to a matter
about which the Employer has a serious concern because of
its possible effects on him.' Whatever factual differences there
may be in the nature of the agent 's alleged disabling activities,
the fact of the matter is that Intervenor has no conflict of
interest , and in order to disqualify it inquiry must be made
into the identity , authority, and integrity of its agents. Such
an inquiry appears to me to be clearly an inquiry into internal
union matters.
Apart from the question of the statutory competence of the
Board to inquire into the personal activities of a labor organi-
zation 's agents in a proceeding under Section 9 of the Act, the
rule of Alto Plastics is a salutary one. A hearing into the
personal activities of a union's agents can be a prolonged
affair, and there is almost no limit to the variety of disabling
personal interests that may be urged , including as in this case
a sibling relationship . In this case , a hearing which should
have been closed on June 25 , closed on September 23. The
preparation of this decision has been delayed by the necessity
to review and analyze the evidence presented on this addi-
tional issue. After all this, depending on the outcome of the
challenged ballots, it may very well eventuate that Intervenor
will have lost the election, and , all of this will have been for
naught. I say this not in criticism of the Board 's decision to
hold a hearing on the Employer 's motion , but only to empha-
size the wisdom of applying Alto Plastics to an allegation that
a labor organization is disqualified from representing em-
ployees of an employer by reason of disabilities attributable
to its agents rather than the organization itself. This is not to
say that any personal disqualifying characteristics the agents
may have are not germane to the integrity of the collective-
bargaining process, but only that the agent's disqualifications
are not germane to an initial determination of the right of the
labor organization to participate in a Section 9 proceeding
and to be certified if selected by ,a majority of the employees.
If an agent of a certified union becomes involved in activities
inconsistent with the proper operation of the collective-bar-
gaining process, the Employer can always invoke the Board's
power to police the certifications it issues , as the Board
pointed out in Alto Plastics. Additionally , the agent's disabili-
ties can be asserted as a defense to a refusal to bargain charge.
Cf. N.L.R.B. v. Kentucky Utilities Co., 182 F.2d 810 (C.A.
6).
Whatever merit there may be to the foregoing , the fact of
the matter is that the Board did direct a hearing and order
that I make findings of fact and recommendations . I begin by
addressing myself to two main ' questions : ( 1) Do the alleged
agents of Intervenor whose personal activities form the basis
of the assertion of a conflict of interest occupy positions with
Intervenor which could be used to subordinate their own
personal interests for the interest of the employees whom
' Actually, the Employer is suggesting the possible existence of corrup-
tion in this case, too, because he refers to the possibility of the existence of
violation of Section 302(b) of the Act. In Chicago Pottery Co., 136 NLRB
1247, the Board indicated that such matters do not disqualify a labor organi-
zation from participation in a representation election
HARLEM RIVER CONSUMERS COOPERATIVE 317
Intervenor seeks to represent; (2) are the personal activities
of Intervenor 's alleged agents such as to create a potential
conflict of interest. I answer both questions affirmatively,
although only partly so with regard to the first question.
As to the first main question, it was noted earlier that the
activities of three individuals have been brought into ques-
tion: Joe Overton, Larry Overton, and Leonard Faust. I do
not believe it is necessary to detail the evidence respecting the
positions which Larry Overton and Leonard Faust have oc-
cupied in the past. Both have been section chairmen which
are not positions of significant authority . A section chairman
is not an officer of the Union; the pay is nominal ($5 per
month) and the duties of the position are very limited in
scope. While both Larry Overton and Leonard Faust have
attended negotiation meetings , it does not appear either that
they played any role in the negotiations or that they had any
authority to direct or guide the negotiations in any way.
Thus, their status as section chairmen would not present a
danger that their personal interests could infect the bargain-
ing process.
In the case of Larry Overton, until July 15, 1970, he was
an executive board member of Intervenor and, from this
position, the Employer asserts, in effect, that he could affect
the collective-bargaining process to further his own personal
ends. Since there are about 40 members on Intervenor's ex-
ecutive board , it is doubtful that one member could influence
the entire Board to act in such a way to further his own
interests rather than the interests of the employees. However,
it is not necessary to decide such an issue, because I am
persuaded that since July 15, 1970, the date he submitted his
resignation, Larry Overton has not been an executive board
member . As the Employer asserts, there is ground for viewing
Overton 's resignation with suspicion and it appears that the
resignation was submitted solely because of the pendency of
this proceeding. Larry Overton's testimony about the circum-
stances of his resignation is completely at odds with that of
Intervenor 's President Julius Sum, and Sum's own testimony
is less than completely satisfactory. Be that as it may, I credit
Sum's testimony that he requested Overton's resignation and
I find that Overton effectively resigned from the executive
board on July 15, 1970, and is not now an agent of Inter-
venor.' In these circumstances , there is no present basis for
finding a potential conflict of interest because of Larry Over-
ton's personal interests and activities . If it develops , contrary
to present indications, that Larry Overton has not effectively
removed himself from positions of authority with Intervenor,
and, if his personal activities constitute grounds for disquali-
fying Intervenor , procedures exist to protect the Employer."
In the final analysis, this case reduces itself to Joe Overton.
There is no question about Joe Overton 's position and agency;
he is a business agent of Intervenor with "exclusive control
or jurisdiction over the Harlem area." The Employer has
placed great emphasis on this last-quoted phrase extracted
from the witnesses , a phrase which Intervenor characterizes
as a loose statement meaningless in the fact of constitutional
' The Employer also predicates its assertion of Overton's agency status
on the fact that Overton was a member of the health and welfare fund in
which Intervenor participates and there is no evidence he resigned his
position with the fund. Julius Sum testified that Overton has not attended
any meetings of the fund since his resignation as executive board member
and, in effect, that Overton is no longer a member of the fund I credit Sum's
testimony. Moreover, even were it established that Overton was still a
member of the fund, I would find such membership insufficient to constitute
him an agent of Intervenor for any purposes beyond those of the fund, and
those purposes could only be remotely connected to the collective-bargain-
ing process
Cf. National Food Stores of Louisiana, Inc.. 186 NLRB No 12
provisions of Intervenor which make the business agent sub-
ject to the direction and supervision of the president and
executive board . But the statement is not meaningless. Al-
though Intervenor has six business agents, only Joe Overton
has jurisdiction over the affairs of Intervenor in the Harlem
area, and the question is not, as Intervenor would have it,
whether he is subject to the supervision of the president and
executive board, or whether he has final authority to regulate
Intervenor's affairs in his area of jurisdiction . Rather, the
question is does he have sufficient authority to administer the
affairs of Intervenor in his jurisdiction that he could use the
collective-bargaining process to serve his own ends rather
than the interests of the employees . In my judgment, there
can be no serious dispute that Joe Overton can substantially
affect collective bargaining and the interests of employees in
the Harlem area.
The testimony of Julius Sum is uncontradicted that con-
tract conditions are determined by the executive board and
approved by the membership and that a citywide contract
generally prevails and new signatories sign a preprinted con-
tract. In the Harlem area, new signatories agree to be bound
by the contract between Intervenor and the multiemployer
association , Associated Grocers of Harlem . Any variations
from this contract must be approved by the executive board.
No business agent may execute a contract which varies from
the standard contract without such prior approval.
If this were the whole story, one might well conclude that
Joe Overton has no discretion in collective -bargaining mat-
ters and his personal interests cannot impair the collective-
bargaining process. But this is not the whole story . That he
has considerable discretion can be seen in the negotiations
between Intervenor and the Employer . Joe Overton was in
charge of these negotiations and the agreement which was
signed on January 20, 1969, differed in significant respects
from the association contract . According to Sum , Overton
spoke to him about the proposed agreement and the varia-
tions from the standard agreement and Sum told the execu-
tive board and the board approved . It is evident, however,
that both Sum and the executive board accepted Overton's
representations about the variations and the reasons therefor
and made no independent inquiry about the negotiations. In
effect, they deferred to Overton . In effect, the agreement
represented the concessions and demands of Joe Overton. If
Joe Overton had personal interests to be served in his dealings
with the Employer he could very well have served them.
But the foregoing treats the collective-bargaining process
as though it began and ended with the negotiation of a con-
tract. The execution of a contract might be termed as the real
beginning of the collective-bargaining process. The contract
must be administered ; the union must see that its provisions
are lived up to; employee complaints must be adjusted. This
is a fertile field for reaping personal gains and Sum's tes-
timony indicates clearly that in this field Joe Overton is over-
seer. For the foregoing reasons, therefore, I conclude that Joe
Overton occupies a position which could be used to subordi-
nate the interests of the employees to his personal interests.
The second main question is whether Joe Overton is en-
gaged in personal activities which create a potential conflict
of interest . The answer to that question depends on a deter-
mination about the ownership of stock in CCS. As noted
earlier, CCS is a corporation operating as a representative, of
manufacturers of national brand products in the Negro mar-
ket. According to Joe and Larry Overton, Joe Overton is not
an officer, director, or stockholder of CCS; Larry Overton
testified he is the owner of 25 percent of the stock of CCS and
is secretary of the corporation . Theodore Solomon (who also
testified that Larry Overton is an officer of CCS and owns 25
percent of the stock) is vice president and owns 25 percent of
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the stock of CCS; Harry Rosenblum is treasurer and owns 25
percent of the stock; the remaining 25 percent of stock is
owned by Hulan Jack, president of CCS.
The foregoing testimony, if credited, would dispose of any
contention that Joe Overton is an owner, officer, or director
of CCS. An examination of the records of CCS, however,
compels a finding that Joe Overton is, in fact, the owner of
25 percent of the stock of CCS and the testimony that Larry
Overton is the owner is not deserving of credence.'
CCS was incorporated in May 1964. According to a Certifi-
cate to Corporate Banking Resolutions and Bank Agreement
dated May 14, 1964, L. Joseph Overton was one of the au-
thorized signatories of CCS.
On'January 25, 1966, a meeting of the board of directors
of CCS was held at which L. Joseph Overton presided as
chairman of the board of directors. On January 21, 1966, L.
Joseph Overton had received a check of $1,100 as a commis-
sion for services to CCS, which he endorsed over to CCS in
payment of 55 Class A shares and 1,045 Class B shares of $1
per value each. On January 25, 1966, Stock Certificate 1 was
issued to L. Joseph Overton for the Class A shares and Stock
Certificate 1 for the Class B shares.
On the same day, L. Joseph Overton assigned the Class A
and B shares to Emancipation March, Ltd., a corporation
formed in September 1963, which Larry Overton described as
a dormant corporation of which he was president and sole
stockholder. The certificate of incorporation, however, gives
the name of Joe Overton (Lenwood J. Overton) as the in-
dividual for receipt of a copy of any process served on the
secretary of state.
Between March 1965 and May 1970, CCS issued checks
payable to L,. Joseph Overton in an amount between
$20,228.10 and $25,111.25.6 Many of these checks are in
amounts identical to the amounts paid on the same dates to
the stockholders of CCS, Solomon, Jack, and Rosenblum.
Business Agent Joe Overton's full name is Lenwood Joseph
Overton, and, since he normally signs his name as L. Joseph
Overton, the documentary,evidence referred to above belies
the testimony that Larry Overton is the stockholder of CCS.
But Joe and Larry offer an explanation; namely, they have
names so similar that both , on occasion, sign their names as
L. Joseph Overton, the name that appears on the corporate
records and on so many canceled checks.
Larry Overton's full name is Lawrence Joseph Overton,
but he asserts that he signs his name variously as L. J. Over-
ton, Lawrence Overton, and L. Joseph Overton. Almost with-
out exception , the checks made payable to L. Joseph Overton
as described were said to have been payable to and endorsed
At the time the instant hearing was held, records of CCS were in the
custody of the U. S Attorney for the Southern District of New York as a
result of subpenas served ' on CCS upon request of a grand jury . Certain of
these records were produced at the instant hearing by an Assistant U. S.
Attorney who identified the records merely as records which had been
produced by CCS pursuant to a grand jury subpena for corporate records
of CCS.,In my judgment, this was sufficient authentication of the records for
the purpose of this proceeding and they were received into evidence and
form .the basis of the conclusions that follow . Even were such records not
admissible in a court of law because of inadequate authentication , they were
clearly admissible in a representation hearing, which is investigatory in
nature, and wherein "The rules of evidence prevailing in courts of law or
equity shall not be controlling " Section 102 66, National Labor Relations
Board Rules & Regulation , Series 8, as amended
6 According to my calculations,' check stubs received into evidence of
checks made payable to LJoseph Overton total $20,228 10 however, can-
celled checks made payable to L. Joseph Overton total $25,111.25. It ap,
pears that not all check stubs were placed into evidence Any discrepancies
that may appear , or any omissions , are insufficient to effect the decision
herem
by Larry Overton. In the main, these checks are said to have
been Larry's share of the profits of CCS.
I do not credit Joe and Larry's explanation that the L.
Joseph Overton referred to in the records of CCS and whose
name appears on the canceled checks is Larry Overton. In
every instance where Larry Overton transacted business on
his own behalf, he signed his name as Lawrence J. Overton
or perhaps Larry Overton.' On the incorporation papers of
Emancipation March, Ltd., the agent to receive copies of
service of process is Lenwood J. Overton, 312 ' West 125th
Street. While Larry Overton may claim the right to sign
himself L. Joseph Overton, his name is not Lenwood J. Over-
ton and his address is not 312 W. 125th Street. In any event,
Joe Overton admitted he was the endorser of check no. 1529,
and the records of CCS indicate the proceeds were used to
pay for the CCS stock. This stock was thereafter assigned to
Emancipation March , Ltd., and such a transfer could only
have been made by Joe Overton.
Additional proof that Joe Overton is the real owner of a
quarter interest in CCS is the evidence that CCS paid his
Diner's Club bill.' On several occasions when a bill was paid,
a separate check was made payable to L. Joseph Overton for
the balance of his share of the firm's profits so that his total
share equalled the share received by his partners. It is admit-
ted by both Joe and Larry Overton that he performed services
for CCS for which Joe was paid not by CCS, but by Larry
through CCS. According to the Overtons, CCS was too nig-
gardly to pay Joe Overton for his services and Larry Overton
directed that CCS pay moneys due and owing to him to his
brother. It was as part of this arrangement that CCS paid Joe
Overton's Diner's Club bills. I do not credit this story. In my
opinion, the evidence discussed above, while not exhaustive
of the record, compels the finding that the monies paid to Joe
Overton by CCS were paid to him as his share of the firm's
profits.
But even were I to accept the Overton's story, the conflict
of interest issue would still remain . If it is improper for Joe
Overton to be a part owner of CCS because of the nature of
its business, as will be discussed below, it is improper for him
to receive fees as a consultant for CGS. According to Joe
Overton, the services for which he received fees consisted of
arranging block parties, helping design displays and emblems
for softball games, and helping with community programs.
He denied performing any services for CCS as a manufactur-
ers' representative. I cannot credit him. The moneys paid to
Joe Overton are too substantial and appear to have been paid
with too much regularity to represent payment for com-
munity programs divorced from representation of the inter-
' Certain records of CCS and Emancipation March appear to lend sup-
port to the contention that Larry Overton, not Joe, Overton, is the owner
and officer of CCS and the owner of Emancipation March. Thus, minutes
of a meeting of the board of directors of CCS, dated February 11, 1966, have
an attached "Waiver of Notice of Special Meeting of Board of Directors of
Co-Ordinated Community Service, Inc " signed by Lawrence J Overton.
An "Agreement among Stockholders" of the same date refers to Lawrence
J. Overton as president of Emancipation March. These documents also
contain interlineations which show changes of the name L Joseph Overton
to Lawrence J. Overton. But if the L. Joseph Overton referred to was Larry
Overton, there was no need for the interlineations. Other discrepancies or
inexplicable entries could be averted to, but I see no need to do so. In my
opinion, the docurpentary evidence which appears to show Larry Overton
to be the part owner of CCS is overwhelmed by documentary evidence
which shows the contrary.
8 With its posthearing memorandum, the Employer submitted a photo-
static copy of Joe Overton's application for a Diner's Club membership
showing his occupation and account number. CCS check stubs indicate
clearly that the Diner's Club bills paid by CCS were Joe Overton's bills. No
objection has been made to the Employer's tender of the photostatic copy
which is hereby received into evidence as Employer's Exh 41
HARLEM RIVER CONSUMERS COOPERATIVE 319
ests of the clients of CCS. In any event, those moneys are
derived from fees paid by manufacturers to CCS purportedly
so that CCS will procure acceptance of their products by
retailers. To that extent, even on the Overton's admissions, it
is in Joe Overton's interest that their products be accepted by
retailers such as the Employer.
In light of the preceding findings, it is necessary to consider
the nature of the disability assertedly created by Joe Over-
ton's ownership of stock in CCS. The disability, if there is
one, has two facets: (1) by virtue of his ownership of stock in
CCS,-Joe Overton is in effect a partner with Harry Rosen-
blum, the owner of several food markets, and with Theodore
Solomon, the executive secretary of a multiemployer associa-
tion of food market operators, all of which may be said to be
competitors withthe Employer; (2) by virtue of his ownership
of stock in CCS, Joe Overtonas an agent_of suppliers (poten-
tial, if not actual) of the Employer.• Do either of these rela-
tionships present a conflict of interest?
As a starting point for discussion, I construe the effect of
the Board's order directing a hearing on the Employer's mo-
tion to disqualify Intervenor to be that I evaluate the activities
of Intervenor's agents as though they were the activities of
Intervenor itself. Under this approach, the questions to be
answered are. can Intervenor be engaged in a business ven-
ture with competitors of an employer whose employees it
seeks to represent, although the business venture is not com-
petitive with the employer's business, and/or can Intervenor
act as agent of suppliers (potential, if not actual) of such
employer.
The general principles are clear. As the Board stated in
Bausch & Lomb, supra, a union must approach the bargain-
ing table "with the single-minded purpose of protecting and
advancing the interests of the employees who have selected
it as their bargaining agent, and there must be no ulterior
purpose." And the union may not acquire " ... a special
interest which may well be at odds with what should be its
sole concern ... that of representing the interests of the [Em-
ployer's] employees." Bausch & Lomb, supra, 1559. How-
ever, before a finding of a conflict of interest will be made the
Employer has the "considerable burden" ofshowing that the
"danger of a conflict of interest interfering with the collective-
bargaining process is clear and present" N.L.R.B. v. David
Buttrick Company, 399 F.2d 505, 507 (C.A. 1).
With these principles in mind, I conclude that the mere fact
that Intervenor, through Joe Overton, is engaged in a busi-
ness venture with owners of competing stores is insufficient
basis to hold that Intervenor should be disqualified from
representing the Employer's employees. The business venture
is not itself a competing one, so that all one can draw from
the fact of the business relationship is that Intervenor enjoys
an amicable and close relationship with competitors of the
Employer. This could well be true if the only intercourse
between Intervenor and the Employer's competitors was that
arising out of the fact that Intervenor represented their em-
ployees and had a collective-bargaining agreement with them.
Conceivably, Intervenor and the Employer's competitors
could conspire against the Employer, but they are neither
more nor less likely to do so simply because they are engaged
in a separate business venture. In my judgment, the Employer
must show more than that.
The foregoing assumes that the business venture in which
Intervenor is engaged through Joe Overton does not itself
raise questions of a conflict of interest. Thus, if Joe Overton
and the Employer's competitors were engaged in a business
venture as movie distributors, there would be no basis for
finding a conflict of interest. Such is not the case, however,
when the business is one of a manufacturers' representative
dealing in the goods which the Employer has occasion to
purchase. It seems clear that because of the special interest
he has acquired in CCS Joe Overton may be tempted to make
demands, or grant concessions, not in the interests of the
employees Intervenor seeks to represent, but to further his
own interests. At the very least, " ... the situation created by
[his] dual status is fraught with potential dangers." Bausch &
Lomb, supra, 1559. In my opinion, it is improper for a union
agent to have financial interests which require him to deal
with the Employer in a capacity other than as union agent.
The employees he represents are entitled to his undivided
loyalty and the employer is entitled to know that in his deal-
ings with the representative of his employees the relationship
will be governed by the legitimate concerns of collective bar-
gaining and not special concerns unrelated thereto.
Summarizing the foregoing, I conclude that Joe Overton is
part owner of CCS, and, in light of the nature of CCS"busi-
ness, such ownership interest (or the receipt of consultant fees
as indicated above) is incompatible with the disinterested
representation owed by Intervenor to the employees it seeks
to represent. However, since in my opinion the Board lacks
statutory competence to direct a blanket disqualification of
Intervenor from seeking to represent the Employer's em-
ployees because of the personal activities of Intervenor's
agents, I shall not recommend that Intervenor be disqualified
except to the extent necessary to assure the integrity of any
collective bargaining that may ensue should Intervenor re-
ceive a majority of the valid votes cast in the election of April
20. Accordingly, in the event the results of the election held
on April 20 show that Intervenor received a majority of the
valid votes cast, I shall recommend that Intervenor not be
certified as representative of the Employer's employees so
long as Joe Overton is business agent in the Harlem area.
I have considered an alternative recommendation whereby
Joe Overton would divest himself of his interest in CCS. Joe
Overton has been business agent for'Intervenor for many
years and it seems harsh to require that he be removed if
Intervenor continues to seek to represent the Employer's em-
ployees. However, there can be no assurance that he would
divest himself of his interest in CCS. It has been clearly shown
in this hearing that Joe Overton and his brother Larry are
willing and able to trade on the similarity in their names to
conceal the true ownership of a quarter interest in CCS. In
addition, Joe Overton has as partners in CCS the owners of
food stores with whom he negotiates contracts, including the
executive secretary of the Associated Grocers of Harlem,
with whom he bargains on behalf of the employees of the
employer-members of the association. He has been totally
insensitive, or indifferent, to the conflict of interest inherent
in such an arrangement insofar as it involves his duty to
represent the employees of his partners. For these reasons, it
is my opinion that the disqualification of Intervenor cannot
be cured except by the removal of Joe Overton as business
agent in the Harlem area.
One final word. It should be noted that I have made no
finding that there has been an actual abuse of Joe Overton's
obligation to the Intervenor and to the employees Intervenor
seeks to represent. Such a finding is not, necessary for deci-
sion . As the court held in N.L.R.B. v. David Buttrick Co.,
supra, p. 307, " ... it is the innate danger to be guarded
against (and) the existence of this danger does not require
proof of abuse of trust, so long as there is sufficient power and
temptation to commit such abuse." I mention this because
certain testimony was adduced in this case intimating that the
interests of Intervenor's agents in-CCS were at the root of the
Employer's labor difficulties rather than legitimate collective-
bargaining differences. I am not satisfied that this particular
aspect of the case was fully litigated and since no useful
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose would be served by my making a finding in this
particular I will eschew doing so.
II THE CHALLENGED BALLOTS
A. The Employer and Petitioner Challenges
As noted earlier, on April 21, 1969, certain employees of
the Employer went on strike under the sponsorship or leader-
ship of Intervenor . The strike was still in progress at the time
of the election and at the time of the hearing. Certain of the
striking employees cast ballots which were challenged by the
Employer and the Petitioner on the ground that they were no
longer employed by the Employer or were employed else-
where.
Milton Andrews: The ballot of Andrews was challenged by
both the Employer and Petitioner on the ground he was no
longer employed by the Employer . It is undisputed that An-
drews was an employee of the Employer who went on strike
on April 21, 1969. No evidence was offered to establish that
thereafter he abandoned the strike or found regular and sub-
stantially equivalent employment elsewhere. Accordingly, I
shall recommend that the challenge to his ballot be over-
ruled.'
Joseph Gadison: The ballot of Gadison was challenged by
both the Employer and Petitioner on the ground he was
employed elsewhere . It is undisputed that Gadison was an
employee of the Employer who went on strike on April 21,
1969. There is uncontradicted evidence that sometime there-
after Gadison returned to work for the Employer although
the strike and picketing were still in progress , and in May
1969 he was promoted from the job of grocery clerk to the
job of appetizing manager. On August 30, 1969, he quit.
On the ' basis of the foregoing , it is clear that although
Gadison was a striker at the time the strike began on April
21, 1969, he thereafter abandoned the strike when he re-
turned to work for the Employer. Since he quit his employ-
ment on August 30, 1969, and there is no evidence that he
thereafter picketed or engaged in any other conduct indicat-
ing that he was resuming his status as a striker , there is no
basis for a finding that he was a striking employee as of the
date of the' election . Accordingly, I find that Gadison was
ineligible to vote, and I shall recommend that the challenge
to his ballot be sustained.
Jacqueline Creque and Brenda Mickens: Creque was a high
school student and a part-time employee of the Employer
who went out on strike on April 21, 1969. On February 12,
1970, Creque became a part-time employee of Colonial Su-
permarkets, ' Inc., and was so employed at the time of the
hearing. At the time Creque obtained employment with
Colonial , she indicated that she was seeking only part-time
employment through the month of July, because she wanted
time off in August for personal reasons and because she
would probably be going to school thereafter.
Mickens was a high school student and a part-time em-
ployee of the Employer who went out on strike on April 21,
1969. She was employed by Colonial Supermarkets , Inc., as
a full-time cashier in August 1969, as a replacement for an
employee on vacation , and was so employed until September
1969. Since that time, Mickens has not been employed else-
where and has not sought other employment . Since Septem-
ber 1969, Mickens has been a full-time day student at Ford-
ham University.
Although the issue of Creque 's and Mickens ' eligibility was
raised in the context of their status as strikers, the Employer
contends units brief that the challenges to their ballots should
be sustained on the ground that they are students and it is
In its brief, the Employer conceded this challenge should be overruled.
established Board policy to exclude from a unit students who
work only during their vacations.
In the case of Creque, the record does not support a finding
that on the date of the election she was a full-time student
employed only during vacation periods. On the contrary, on
the date of the election, Creque was a high school student and
a regular part-time employee, the same situation she had been
in as an employee of the Employer before the strike. The only
basis for finding that she had changed her status was the
testimony that she intended to quit and probably go to school
at a time after the election. It is established Board policy that
eligibility to vote is based on an employee's status on the
eligibility payroll date and on the date of the election, and his
eligibility to vote is not affected by the fact that he intends to
quit after the election. Personal Products Corporation, 114
NLRB 959, 961. Accordingly, as Creque was a regular part-
time employee on the date of the election, and there is no
evidence she had abandoned interest in her struck job, I find
that she was eligible to vote, and I shall recommend that the
challenge to her ballot be overruled.
Mickens' case is different. On the date of the election, she
was a full-time college student. She was not employed and
had not been employed since she had begun her college edu-
cation. She was not seeking employment. In my judgment, it
is clear from Mickens' conduct that she has abandoned em-
ployment in order to attend college and that had she been
employed by the Employer in September 1969, she would
have resigned her job to attend college and would not have
been employed on the date of the election. In my judgment,
her testimony that she still considered herself a striker and
was ready to return to work on the date of the election if the
strike had been settled is not deserving of credence and I do
not credit it. I find that on the date of the election Mickens
was a full-time college student who did not share a com-
munity of interests with the employees in the unit, and I shall
recommend that the challenge to her ballot be sustained.
Arthur Lee Gray: It is undisputed that Gray was an em-
ployee of the Employer who went on strike on April 21, 1969
during the evening balloting session, an individual claiming
to be Gray cast a ballot which was challenged on the ground
that he was not the Arthur Lee Gray who had been employed
by the Employer.10
Cora Walker testified that during the evening balloting
session while in the front area of the store she observed a tall
fellow come into the store whom she did not recognize and
she called out to him to ask him where he was going. He told
her he was going to vote. She told him that he had never
worked in that store and could not come in there to vote. The
man continued I towards the voting area which was in the
basement, and 'he cast a challenged ballot." When he re-
turned, Walker, approached him and the Board agent and
asked the Board agent to get some identification from him
because he had never worked in the store. According to
Walker, at this time Joe Overton was saying that the man was
Arthur Lee Gray and Walker was replying "You know damn
well he is not Arthur Lee Gray." Overton told her that was
the man who had produced himself for union membership
and that was the man that he thought was Arthur Lee Gray.
10 The ballot was also challenged on the ground the voter was employed
elsewhere, but the record contains no evidence to deprive Gray of his status
as a striker eligible to vote if he was in fact the Arthur Lee Gray employed
by the Employer.
11 Walker, of course, did not observe this, but it is evident the individual
cast a challenged ballot. Lurlene Lowe, observer for the Petitioner, de-
scribed a dispute about an individual voting which suggested the same
incident described by Walker except that she testified the individual cast an
unchallenged ballot. She was either mistaken or was referring to some other
voter I attach no weight to her testimony on this issue.
HARLEM RIVER CONSUMERS COOPERATIVE 321
The man went out the door and Overton followed him. After
the polls were closed, this man was present for the ballot
count, and Overton offered a social security card to the Board
agent as proof of the voter's identity. Walker did not know
whether the Board agent took the card, but she persisted in
her argument that the voter in question had never worked for
the Employer, that Arthur Lee Gray was a young school kid,
whereas the man in question was a man in his 20's, and that
the contrast between him and Gray was very great.
Arthur Lee Gray did not testify. The Employer claimed to
have made several unsuccessful efforts to locate him. Inter-
venor did not represent that it made any efforts to locate the
man who voted, but on the last day of the first part of the
hearing it represented that Gray had been at the picket line
that very morning, that he had heard there was concern about
having him appear at the hearing, and that he would meet
Overton the following morning at the hearing. This represen-
tation was made to me at 3:30 p.m. on the 4th day of hearing
and based thereon Intervenor requested adjournment to the
following day to permit it to produce Gray. I denied the
request. The attorney for the Employer had indicated his
inability (for personal reasons) to attend a hearing the follow-
ing day, a Friday. Intervenor had failed to take any steps
prior to hearing to assure Gray's presence at the hearing, and
even at the time of the request for adjournment no assurance
could be given that the man who had cast the challenged
ballot would be produced.
If the testimony of Cora Walker is believed, and there is no
reason not to believe it, the voter who cast a challenged ballot
as Arthur Lee Gray was not Arthur Lee Gray. In the absence
of evidence to the contrary, I so find, and I shall recommend
that the challenge to the ballot cast by an individual purport-
ing to be Arthur Lee Gray be sustained.
Ramon Medina, Clarence Mangin, Lee Walker: The bal-
lots of Medina and Walker were challenged on the ground
they were supervisors."Z Each was a department manager, and
each was responsible for the operation of his department.
Much of the testimony received in this regard was too conclu-
sionary in form to use as a basis of decision. To say that a man
is responsible for the operation of a department is no more
meaningful than to say he is responsible for the operation of
a machine. In either case, one must determine whether such
responsibility requires that the individual exercise the super-
visory functions delineated in Section 2(11) of the Act.
Certain of the duties of the department managers are
clearly not supervisory. In this category are such duties as
ordering supplies and adjusting prices which do not involve
the supervision of the Employer's employees. If Medina,
Mangin, and Walker are disqualified from voting because
they perform such functions it would have to be because the
performance of such functions renders them "managerial em-
ployees." However, the record indicates clearly that the de-
partment managers have not been vested with discretion in
these matters, independent of established policy, but rather
that they follow prescribed procedures. Thus, the Employer
selected the suppliers and the only function of the department
managers was to place their orders with these suppliers. Each
department manager had a margin of profit to maintain
whereby prices were fixed by a predetermined formula to
which he was expected to adhere. In Walker's case, he would
obtain prices from a representative of Supermarkets General,
Inc., a retail chain which was assisting the Employer in its
experiment in community cooperative retailing. I, therefore,
'I Medina, Mangin, and Walker joined the strike and Medina was chal-
lenged on the additional ground that he was employed elsewhere and had
therefore lost his status as an economic striker The evidence does not
support such a finding If Medina is not a supervisor, he is eligible to vote
discount the testimony about the responsibility of the depart-
ment managers to run their departments insofar as it pur-
ported to show managerial functions. In my judgment, such
testimony was insufficient to warrant a finding that the de-
partment managers are managerial employees according to
the tests set forth in Retail Clerks International Assn v.
N.L.R.B., 366 F.2d 642, 644-645 (C.A.D.C.).
As to those matters which do involve supervisory criteria,
I discount the testimony respecting the authority of depart-
ment managers to direct the work of employees. It is clear
that such direction was routine and did not require the exer-
cise of independent judgment." The provision in the em-
ployee handbook that "Employees must follow orders and
directives issued by the Store Manager or Department
Managers" does not require a contrary finding.
Apart from their authority to direct the employees in the
performance of their duties, the department managers are
alleged to have had the authority and responsibility to pre-
pare the work schedules of the employees in their depart-
ments, and, according to Cora Walker, not only did they in
fact prepare the work schedules, but also, they had authority
to schedule employees to work overtime. According to
Medina and Mangin, Store Manager Holmes prepared the
work schedules. Medina testified that his own schedule was
prepared by Holmes who consulted Medina only about his
day off. Walker testified he made out the work schedule, but
the store manager would not follow it.
As to the hiring and firing of employees, Cora Walker
testified that Medina requested the hiring of Manuel Rivera;
that he hired Angel Quinones to whom he had promised a
higher rate of pay than the Employer's policies called for; that
he recommended hiring of one Copeland and later recom-
mended his discharge; and that he recommended transfer of
Leonard Washington from his department.
Medina did not testify about the hiring of Angel Quinones,
Manuel Rivers, or Copeland; he was not certain about re-
questing that Washington be transferred out of his depart-
ment, and he denied recommending that either Washington
or Copeland be discharged.
Cora Walker testified that department manager Lee
Walker recommended the hire of William Oliphant, Arthur
Lee Gray, and Sam Richardson. Lee Walker denied recom-
mending the hire of Oliphant and Gray and testified that
Richardson was his nephew and his only role in his hiring was
to tell the Employer of Richardson's availability and he was
hired after Washington was fired. As to Washington, who
worked in Walker's department for a time, Walker testified
that he suggested time and time again that Washington be
taken out of his department and he was transferred only after
the store manager made his own observations.
Cora Walker testified that Dairy Department Manager
Mangin recommended the hire of Tony Callwood. Mangin
denied this and also denied that he recommended that Call-
wood receive an hourly rate of pay higher than Mangin re-
ceived.
Conflicts in testimony are never easy to resolve and even
less so when the witnesses are as partisan as they were in this
case. Cora Walker is a founder of the Employer and has been
its spearhead ever since. I have found her to be a credible
witness. On this issue, however, I believe her testimony repre-
sented more her rationalization of the meaning of incidents
i' It is noteworthy that for many months since the strike the Employer
has been operating without supervisors except for the coordinator While the
strike has altered conditions, the Employer did have 22 employees on the
payroll for the week ending April 4, 1970, only 1 less than the week preced-
ing the strike if Medina, Mangin, and Lee Walker are found to be super-
visors
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which involved Medina, Walker, and Mangin than an accu-
rate factual statement of those events. I also believe that she
described incidents about which she, did not have first-hand
knowledge. For example, I credit Medina, Mangin, and
Walker about the work schedules insofar as they indicated
that the store manager decided what the work schedules
would be and that they had no discretion in the matter. I note,
for example, that Joseph Gadison who was designated appe-
tizing manager after the strike started quit his employment
because he resented the fact that he had to take his own lunch
at a scheduled time.
As to the hiring of employees, I do not believe that the role
played by the department managers was a supervisory role.
They had no independent authority to hire and appear to
have done no more than tell Cora Walker when they knew
of an applicant who might be suitable as in the case of Lee
Walker telling the Employer about his nephew Richardson.
The case of Angel Quinones appears to be different; it appears
he was hired by Medina and Cora Walker subsequently
ratified what he had done. In my judgment, a finding of
supervisory status should rest on more than a single instance
which can be attributed to special circumstances.
As to the firing of employees, I believe the record estab-
lishes an independent evaluation by Cora Walker of any
recommendations to discharge. The case of Leonard Wash-
ington is a case in point. According to Cora Walker, Wash-
ington was transferred at the request of Medina. However,
from her own testimony, one can readily see that Washing-
ton's work performance was independently evaluated not
only by Cora Walker, but also by the store manager . As Cora
Walker testified:
Yes, he [Washington] was a boy who had a problem
and we tried to work with him; that is why he stayed
rather than just be kicked out completely. When it came
to-since you mention him, Holmes did not want to let
him be moved because he said he would be a problem
anywhere, and Medina should keep him in his depart-
ment.
(This testimony confirms that of Lee Walker that he sug-
gested repeatedly that Washington be transferred from his
department and he was transferred only after the store
manager made his own observation.)
In the final analysis, I am persuaded that Mangin, Medina,
and Lee Walker are not supervisors by factors more signifi-
cant than an evaluation of who fired whom. The store in-
volved in this proceeding represents an experiment by the
members of a community to set up and operate a store they
believed would be more responsive to the needs of the com-
munity than existing business organizations had been. These
community members who became stockholders of the Em-
ployer were inexperienced and had to contract for expert
advice and training from a corporation which was itself en-
gaged in retailing food and other products. The operation was
begun with inexperienced employees and a plan or hope to
train employees drawn from the community to become
managers of the business. In these circumstances, it is evident
that supervisory authority would not be lightly conferred on
trainees. That it was not is evident from the fact that the
various' operations of the store were made subject to the
supervision of committees made up of stockholders, the
board of directors, the store manager; the assistant manager,
and the department managers.'" It was this group, and not the
department manager, which was to exercise supervisory au-
thority. One can see layers of supervision in this arrangement;
the committees, Cora Walker, the store manager, and the
assistant manager. Exclusive of the meat department, the
Employer had 26 employees before the strike. To add three
more supervisors to the hierarchy of supervisors just men-
tioned would mean an extremely high ratio of supervisors to
employees.
This is borne out by the size of the employee complement
in the departments headed by Medina, Mangin, and Walker.
In the dairy department, there was one employee besides
Mangin ; in the appetizing department , Medina was assisted
by one full-time and two part-time employees; in the produce
department, Walker was assisted by one full-time and two
part-time employees.
As to the rates of pay received by the department managers
they are not significantly higher than the rates of pay of the
employees, and, in the case of Mangin, he received 5 cents per
hour less than the employee he allegedly supervised."
Moreover, it is undisputed that the three department heads
spent a substantial part of their working time doing the same
work as the employees they supervised; that is, they unloaded
supplies, stocked cases, waited on customers, etc. Addition-
ally, they were subject to assignment to perform similar du-
ties in departments other than their own as needed.
On the basis of the foregoing and the entire record, I con-
clude that Mangin, Medina, and Lee Walker are not super-
visors within the meaning of Section 2(11) of the Act, and I
shall recommend that the challenge to their ballots be over-
ruled.
B. Challenges of Intervenor Local 338
Local 338 challenged the ballots cast by three employees
on the ground that they were not employed in the unit.
McCullen Smith was hired on September 2, 1969, and was
employed on a full-time basis as of the cutoff date and on the
date of the election.
Estelle Daniels was hired on September 29, 1969, and was
still employed on the cutoff date and on the date of the
election.
Julia Miller was hired on April 1, 1970, and was still
employed on the cutoff date and on the date of the election.
In its brief, Intervenor does not discuss these challenges,
but it appeared from the examination of witnesses at the
hearing that Intervenor challenged these voters on the
ground that they were meat department employees who, by
agreement of the parties, had been excluded from the unit in
the Board's Decision and Direction of Election.
No evidence was offered in the hearing before me that
Smith, Daniels, and Miller were meat department employees,
but in the original hearing Smith and Daniels testified that
they were then employed as meat wrappers. However, they
were not fully examined on this point and their testimony
must be evaluated against the evidence of their employment
records which show them, as well as Miller, as having been
hired as clerks. Their testimony must also be evaluated
against the testimony of the Employer's witnesses that
shortly after the strike began, the meat department employees
joined in the strike or ceased coming to work and since that
time the meat department has not been operated on a regular
basis. Meat is sold, but fresh meat is sold on an irregular basis
depending on the availability of a butcher who will cut meat
when the store is closed. When meat is available, all em-
ployees assist in wrapping the meat for display and sale.
11 In November 1968, all employees working more than 3 months, in-
cluding department managers, had received a 17-1/2-cent-per-hour increase
and those with less than 3 months' employment had received 12 1/2 cents
11 Half the time the committees met without the department managers per hour more . The store manager and assistant manager did not receive this
Mangin hardly ever attended committee meetings increase
HARLEM RIVER CONSUMERS COOPERATIVE 323
On the basis of this testimony , I conclude that at the time
of the election there were no meat department employees
within the meaning of the Board 's Decision and Direction of
Election . Accordingly, I shall recommend that the challenges
to the ballots of Smith , Daniels, and Miller be overruled.
The ballots of William Howard , Kenrich Chandler, Henry
Jefferson, and Virginia Gaines were challenged on the ground
they were not employed on the cutoff date. April 4, 1970, was
the cutoff date for eligibility.
Howard and Chandler were hired on February 2, 1970, and
have been continuously employed since that date.
Henry Jefferson was hired on January 19, 1970 , and has
been continuously employed since that date.
Virginia Gaines was hired on September 15, 1969, and has
been continuously employed since that date.
On the basis of the foregoing , I find that Howard, Chan-
dler, Jefferson , and Gaines were employees of the Employer
on the cutoff date for eligibility and on the date of the elec-
tion . Accordingly , I shall recommend that the challenges to
their ballots be overruled.
III THE OBJECTIONS
A. Conduct of Election
1. At the morning session of the voting the Board agent
assisting the agent -in-charge informed the company's ob-
server that she could not hold in her hands a list of names
which contained instructions respecting the making of chal-
lenges. As a result of the Board agent's statement , the ob-
server put the list away and consequently was unable to fol-
low instructions.
2. At the commencement of the voting and when the first
challenge was made by the company's observer, the same
Board agent informed both the Company's observer, and the
Petitioner's observer that, as he expected both of them to
make the same challenges, he would permit only one of them
to challenge. Since the Petitioner's observer was the first ob-
server in point of order he asked- her for her challenges first.
As a result, the Company's observer was not able to make any
challenges, although it is clear that more than one party may
challenge a voter during an election . As a consequence, cer-
tain challenges which had been intended to be made by the
Company's observer were not made.
The foregoing occurred during the morning session only.
At the request of the company's attorney the agent-in-charge
reviewed the matter with the observer prior to the opening of
the polls for the evening session and advised them of the
correct procedure.
On the morning of the election, as the, voters started to
come in, Susan McBean , the Employer 's observer , was seated
at the observer's table with a list before her indicating which
voters the Employer had instructed her to challenge. McBean
testified she was about to challenge a voter when a Board
agent assisting in the conduct of the election told her, and the
Petitioner's observer as well, that she could not have any
papers on the table. McBean placed the list on her chair and
sat on it. According to McBean , the Board agent also told her
and the Petitioner's observer that only one of them could
challenge voters and that was the observer for Petitioner.
Because of these instructions, McBean claimed she failed to
challenge three voters: Milton Andrews, David Holford, and
William Oliphant. In the evening balloting session, the Board
agent in charge of the election rescinded the instructions
given in the morning, McBean was permitted to place the list
of voters to be challenged before her, and she was told she
could challenge anyone she wanted regardless of the fact that
the voter might have been challenged by someone else.
I conclude that the instructions of the Board agent to the
observer that they were not permitted to have lists other than
the official eligibility list do not warrant the setting aside of
the election. The first list given to McBean by the Employer
was a duplicate of part of the official eligibility list," which
contained check marks by the names of the employees
McBean was to challenge. Although the Board indicated in
Bear Creek Orchards 90 NLRB 286, that the denial to an
observer of the use of a list of names of employees to be
challenged constitutes grounds for setting aside an election,
the Board has also indicated that the same holding was not
warranted where the list which the observer had in his posses-
sion was a duplicate of the official eligibility list. As the Board
stated:
Here the union observer sought to use a duplicate of
the official eligibility list, contrary to the procedure set
forth in the "Instructions to Election Observers" given
to the parties before the election, which prohibited any
observer from keeping "a list of those who have or have
not voted." While it is vital to preserve an observer's
right to challenge,- it is equally important that rules in-
suring smooth and orderly election proceedings be ad-
hered to. In our opinion, a duplicate of the official eligi-
bility list with the names of voters intended to be
challenged marked thereon was not the type list contem-
plated in the Bear Creek Orchards decision. Accord-
ingly, in agreement with the Regional Director , we over-
rule this objection."
The Employer asserts that McBean's list was not the offi-
cial eligibility list, because that consisted of two sheets of
paper, and McBean had only one . In my judgment, the
Board's reasoning in Milwaukee Cheese applies whether the
observer had a duplicate of the entire official eligibility list or
only a part of it.
It should be added that in the case the Board agent's in-
struction to McBean was provoked by the fact that she was
using her list in direct contravention of the rule against keep-
ing "a list of those who have or have not voted." Thus,
McBean admitted that she put a check mark by the name of
Dollista Valentine who voted. The Board agent saw her do
that and that is when he told her she could not have the paper
in front of her."
The'objection relative to the Board agent's statement to the
observers, about their right to challenge voters poses an initial
question as to exactly what it was the Board agent said. The
Board agent did not testify.
McBean, the Employer's observer, testified, in effect, that
the Board agent told her and the Petitioner's observer that
only one of them could challenge voters, and, since Peti-
tioner's observer was challenging voters, she could not chal-
lenge anybody. For this reason, she did not challenge any
voter in the morning session.
I do not believe the Board agent told McBean she couldnot
challenge anyone. Rather, a reconstruction of all of McBean's
testimony and that of Lurlene Lowe, Petitioner's observer,
compels a finding that the Board agent, in the mistaken belief
that McBean and Lowe had identical challenge instructions,
told them to decide which of the two would make the chal-
lenges. Thus, Lowe testified that the Board agent said , "Since
16 The official eligibility list consisted of two sheets received in evidence
as Bd. Exhs. 3A and 3B. Exh. 3A contained the names of employees of the
Employer for the week ending April 4, 1970; Exh. 3B contained a list of the
employees of the Employer for the week ending April 19, 1969, and was in
fact a list of the names of the sinkers.
Milwaukee Cheese Company, 112 NLRB 1383, 1384.
s The Petitioner 's observer also made notations on her list of those who
had voted.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you two are representing the same people, and you probably
would be challenging the same person , it wouldn't be neces-
sary for you to challenge the same person at the same time."
In her preheanng statement , McBean described his instruc-
tions as follows:
During the morning session , the same board agent
refused to let me challenge any voter , ifthe observer for
the 777 Harlem Employees Union challenged such
voter. [Emphasis supplied.]
It is clear from this that the Board agent did not intend to
prohibit any observer from challenging a voter not challenged
by another observer . However, he did not explain this, and
McBean understood his instruction to mean that she could
not challenge any voter once an election had been made by
her and Lowe that Lowe would exercise the challenge right.
I cannot hold that her understanding was an unreasonable
one, and , since it was caused by the Board agent , the election
should be set aside if it appears that it had any effect on the
results of the election . I conclude that it did not.
The voters to be challenged were all strikers presumptively
entitled to vote (Pacific Tile and Porcelain Company, 137
NLRB 1358), and there is no evidence to overcome that
presumption by a showing that they had abandoned their
interest in their struck jobs . According to McBean, she
missed three challenges as a result of the erroneous directions
of the Board agent : Milton Andrews , David Holford, and
William Oliphant . " Andrews did vote and his ballot was
challenged, but McBean claimed he was challenged only by
Petitioner and she inserted the standard challenge symbol
"C" by his name only because she knew Petitioner had chal-
lenged his ballot. As to Holford and Oliphant , all that ap-
pears is that they had accepted employment at Cam's Food
Market at a higher rate of pay than they had received before
going on strike. This is insufficient basis to warrant a finding
that they had abandoned the strike ." As to all the strikers,
the fact that they voted is an indication of their interest.
In addition to the foregoing circumstances , consideration
must be given to the possible effects of the direction of a
second election on the voting rights of the strikers. Under
Section 9(c)(3) of the Act, replaced strikers are eligible to vote
in any election held within 1 year of the date of the com-
mencement of the strike . In order to avoid the possibility of
disfranchising some 26 strikers in this case , the Regional
Director expedited the conduct of the election and it was held
one day before the anniversary date of the commencement of
" According to the check marks by the names of strikers on Emp Exh.
6, McBean should also have challenged Nelcenia Tartt, Vivian Dixon, and
Lincoln Scott, all of whom voted without challenge. There is no showing
that McBean's failure to challenge them was attributable to the Board
agent's direction and such a finding would be at odds with McBean's tes-
timony above. In Tartt's case, McBean said she had not been instructed to
challenge her Tartt was the Intervenor's observer and it is inconceivable she
would have accepted such a task had she abandoned the strike The Em-
ployer offered no evidence that she had. As to Vivian Dixon, in her prehear-
ing statement McBean stated Dixon voted at the evening session At the
time, the direction given in the morning had been revoked Moreover,
evidence offered relative to other employment obtained by Dixon is insuffi-
cient to overcome the presumption of her eligibility to vote There is no
evidence respecting Scott.
20 The Employer asserts that if Holford and Oliphant had been chal-
lenged in accordance with the instructions given McBean, ". undoubt-
edly a more extensive investigation into their eligibility to vote would have
been permitted by the trial examiner " The record indicates that the Em-
ployer was permitted, over objection of Intervenor, to offer any evidence he
had respecting the eligibility of Holford and Oliphant and his examination
of witnesses was curtailed long after it was evident that he had no evidence
but was attempting to conduct his investigation at the hearing
the strike.21 By so doing, no investigation was required as to
whether or not the strikers had been replaced because they
were eligible to vote unless rendered ineligible by reason of
some other rule.
The one year period has now long expired and in any
second election the strikers would be ineligible to vote if the
Employer could show they had been replaced, as it appears
he could as to nearly all of them. (As noted earlier, at the time
of the election the Employer had 22 employees, and there
were only 26 strikers.) In these circumstances, it appears to
me that an election should not be set aside absent a showing
that the irregularity which occurred did in fact affect the
results of the election.
For all the foregoing, I shall recommend that this objection
to the conduct of the election be overruled.
B. Conduct Affecting the Results of the Election
1. Notwithstanding the directions of the Board agent-in-
charge to all parties that there was to be no electioneering on
Seventh Avenue between 147th Street and 148th Street, as
well as on 147th and 148th Streets directly contiguous to the
voting premises, the Intervenor caused pickets to patrol in
front of the entrance way to the voting area carrying picket
signs between the hours of 9 a.m. and 7 p.m., inclusive. This
was done even though Mr. L. Joseph Overton, the Inter-
venor's business agent was aksed to restrain from picketing
on election day. Such picketing is a most blatant form of
electioneering, contrary to the instructions of the Board
agent.
2. Many months prior to the election the Intervenor had
caused to be parked directly in front of the supermarket in
which the voting took place a mobile home trailer which was
used, and known by all concerned to be used, during all of
that period as the Intervenor's headquarters in connection
with the strike and picketing it was conducting. During the
entire day of the election, including the voting hours in both
the morning and the evening sessions, such headquarters was
parked on the east side of Seventh Avenue in front of the
supermarket, that being the same side of the avenue on which
the supermarket is located. Supporters of the Intervenor were
present in said headquarters during the entire day. Any voter
proceeding to the entrance of the voting premises from 147th
Street had to pass the Intervenor's headquarters. The pres-
ence of such headquarters during such time also amounted to
electioneering.
3. While the polls were still open in the evening, a large
number of the strikers and their supporters congregated di-
rectly in front of the entrance way to the voting area. Anyone
entering the voting area to vote had to pass this group. Such
activity also constituted electioneering contrary to the
Board's instructions.
All of the conduct objected to was designed to solicit votes
in favor of the Intervenor.
There is no factual dispute about these objections. The
Intervenor had been conducting picketing of the Employer
since April 21, 1969, and'for many months prior to the elec-
tion in conjunction with its picketing, the Intervenor had
stationed a mobile trailer in front of the Employer's store. On
the day of the election, the situation continued unchanged,
except that there was no picketing during the voting periods
(7 a.m. to 8 a.m. and 7 p.m. to 8 p.m.) which were before the
store opened at 9 a.m. in the morning and after it closed at
7 p.m. in the evening. However, there is uncontradicted tes-
d1 Cf. Kingsport Press, Inc., 146 NLRB 1111, fn. 4
HARLEM RIVER CONSUMERS COOPERATIVE 325
timony that during the evening session, at least 10 pickets"
and Joe Overton were standing at or near the entrance to the
store which prospective voters had to use in order to get to
the polling place in the basement of the store.
The Employer contends that the picketing, the presence of
the mobile trailer, and the "massing" of pickets in front of the
only entrance to the store and thence to the polling area
constituted conduct sufficient to destroy the requisite labora-
tory conditions for a free and fair election. I do not agree.
There are two facets to the Employer's contention, one of
which is that in disregard of the Board agent's instructions
the Intervenor engaged in electioneering in the no-election-
eering area, which was defined as the area along the front and
side of the Employer's store. The Employer does not point
out, however, in what way the Intervenor engaged in election-
eering. The picketing was not electioneering if for no other
reason than that there was no picketing while the polls were
open. As to the mobile trailer, it had been in front of the store
for several months and there is no showing that any posters
or signs were placed on it on the day of the election to attract
any prospective voters. As to the group of "pickets" at the
entrance, there is no showing that they spoke to any prospec-
tive voter.
The other facet of the Employer's contention is that this
combination of circumstances (that is, the picketing on the
day of the election, the omnipresent trailer, and the "massed"
pickets) tended to create an apprehension in the minds of the
voters and may have "frightened away potential evening vot-
ers."
In my judgment, the picketing and the trailer cannot form
the basis for such a conclusion. The Intervenor had been
engaged in a strike and picketing for 1 year less 1 day. To
predicate a finding of election interference on the exercise by
employees of their right to strike and to picket in support of
the strike would be a serious infringement on that right.
Moreover, it is interesting to note that the Intervenor, not the
Employer, was opposed to the holding of the election at the
store.
11 The term "pickets" is used loosely and for descriptive purposes and is
not intended to contradict the stipulation of the parties that there was no
picketing when the polls were open
The testimony about the number of "pickets" at the store
entrance presents a closer question because the presence of
such a number of union supporters could very well deter an
employee from entering the store to vote. Nevertheless, I do
not believe the testimony on this score is sufficient to warrant
setting aside the election. The testimony shows only that a
number of "pickets" were at the store entrance. There is no
indication how long they were there and no showing that they
in fact interfered with any voter. In this connection, it should
be noted that nonstriking employees (who would be the only
ones to be deterred by massed pickets) were inside the store
during the voting periods; that is, if they voted in the morn-
ing, they stayed in the store to work; and, if they had not
voted in the morning, they were at work waiting for the store
to close in order to vote. The Employer asserts that four
persons did not vote. He does not identify them and no evi-
dence was offered at the hearing to show that they attempted
to vote. Under the circumstances of this case, I find that the
Employer has failed to establish that Intervenor interfered
with the conduct of a free and fair election.
Summary of Findings and Recommendations
1. Joe Overton is an agent of Intervenor and he has an
ownership interest in Co-Ordinated Community Service,
Inc., which creates a conflict of interest with his obligations
as Intervenor's agent in the representation of the Employer's
employees. I recommend that in the event the revised tally of
ballots (after opening and counting the challenged ballots on
which the challenges have been overruled) shows that Inter-
venor received a majority of the valid votes cast certification
of Intervenor as representative of the Employer's employees
be withheld so long as Joe Overton is business agent with
authority and control in the Harlem area.
2. I recommend that the challenges to the ballots of Joseph
Gadison, Brenda Mickens, and Arthur Lee Gray be sustained
and that the challenges to the ballots of Milton Andrews,
Jacqueline Creque, Ramon Medina, Clarence Mangin, Lee
Walker, McCullen Smith, Estelle Daniels, Julia Miller, Wil-
liam Howard, Kendrich Chandler, Henry Jefferson, and Vir-
ginia Gaines be overruled.
3. I recommend that the Employer's Objections 1 and 2 to
the conduct of election, and Objections 1, 2, and 3 to conduct
affecting the results of the election be overruled.