National Tea Co.

National Labor Relations Board - Board Decisions

Jun 6, 1942

41 N.L.R.B. 774 (N.L.R.B. 1942)

In the Matter of NATIONAL TEA COMPANY and PROGRESSIVE GROCERY
AND WAREHOUSE WORKERS UNION, LOCAL No. 1
Case No. R,0839.-Decided June 6, 1942
Mr. Lester Asher, for the Board.
rllr. L. W. Calkins and Mr. Harold R. Kamp, of Chicago, Ill., for
the Company.
Mr. Francis Heisler and Mr. Stanley F. Evans, of Chicago, Ill.,
for the Progressive.
Mr. D. D. Carmell, of Chicago, Ill., for the Teamsters.
Mr. Frederic B. Parkes, 2nd, of counsel to the Board.
SUPPLEMENTAL DECISION
AND
ORDER SETTING ASIDE`ELECTION
On September 11, 1941. the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election 1 in the
above-entitled proceeding. The Direction of Election provided that
an election by secret ballot should be conducted within thirty (30)
days from the date of the Direction among all warehouse, manufac-
turing, transportation, and maintenance employees of the Chicago
plant of National Tea Company, ' Chicago, Illinois, herein called the
Company, who were employed during the pay-roll period immediately
preceding the date of the Direction, including Tlnaglia, Larson,
-Simpson,. Ruth, Plath, Aleksy, Rappaport, Hansen, Siko, Schulte,
and Kraft,2• but excluding bakers, machinists, electricians, firemen,
engineers and oilers, truck drivers and helpers, fish handlers, egg
candlers, and supervisory and office employees, to determine whether
they desired to be represented by Progressive Grocery and Warehouse
Workers Union, Local No. 1, herein called the Progressive, or by
Grocery and Food Products Employees Union, Local 738, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, affiliated with the American Fed-
eration of Labor, herein called the Teamsters, for the purposes of
collective bargaining, or by neither.
Pursuant to the Direction, an election by secret ballot was con-
ducted under the direction and supervision of the Regional Director
for the Thirteenth Region (Chicago, Illinois) on October 3,1941. On
35 N. L R. B 340.
2 Employees discharged by the Company at the request of the Teamsters pursuant to
the terms of a closed-shop contract between the Company and the Teamsters.
41 N. L. R. B., No. 146.
774
NATIONAL TEA COMPANY 775
October 7, 1941, the Regional Director, acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Reg-
ulations=Series 2, as amended, issued his Election Report, which on
October 8, 1941, was duly served upon the Company, the Progressive,
and the Teamsters.
As to the balloting and the results thereof, the Regional Director
reported as follows :
Total on eligibility list_______________________ ____________ 627
Total ballots cast________________________________________ 577
Total ballots challenged__________________________________ 11
Total blank ballots_______________________________________ 3
Total void ballots________________________________________ 1
Total valid ballots cast___________________________________ 562
Total number of ballots cast for A. F. L. union_____________ 332
Total ballots cast for Progressive Union________________ 214
Votes cast for Neither ---------------------- -------------- 16
On October 11, 1941, the Progressive duly filed with-the Regional
Director its objections to the Election Report. On November 24,
1941, the Regional Director, acting pursuant to Article III, Section 9,
of said Rules and Regulations, issued and duly served upon the Com-
pany, the Progressive, and the Teamsters his Report on Objections,
wherein he found that the objections raised no substantial and ma-
terial issues with respect to the conduct of the ballot.
On January 17, 1942, the Board, having duly considered the Elec-
tion Report, the Progressive's objections, and the Regional Director's
Report on Objections and finding that the objections raised substan-
tial and material issues -with respect to the conduct of the ballot,
ordered that a hearing be held on the objections to the Election
Report.
On January 22, 1942, the Regional Director issued a notice of hear-
ing on objections to election report, copies of which were duly served
upon the Company, the Progressive, and the Teamsters. Pursuant to
notice, a hearing on objections was held on February 9, 10, 12, 13, 16,
and 17, 1942, at Chicago, Illinois, before Henry J. Kent, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the Company, the Progressive, and the Teamsters' were represented
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the close of the hear-
' ing, the Teamsters moved that the entire proceeding be dismissed
for the reason that the Board's rules permit an inquiry only as to
the conduct of the ballot and the testimony in the proceeding dealt
with events outside the conduct of the ballot. The Trial Examiner
reserved ruling on the motion for the Board. The motion is hereby
denied. The Progressive appeals from the ruling of the Trial Ex-
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer- in respect to exclusion of certain evidence.3 The appeal is
hereby denied and the rulings of the Trial Examiner are hereby
affirmed. The Progressive moved that six exhibits introduced into
evidence by the Teamsters, pertaining to the dismissal of criminal
charges against certain members of the Teamsters, be excluded from
evidence on the ground that the Board has no jurisdiction to inquire
into proceedings before the Municipal Court at Chicago. The Trial
Examiner reserved ruling on the motion for the Board. The motion
is hereby denied. During the course of the hearing, the Trial Ex-
aminer made several rulings on other motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. On March 5, 1942, the Progressive
and , the Teamsters each filed a brief. On March 7 and 9, 1942,
respectively, the Teamsters and the Progressive filed supplemental
briefs. The Board has considered all briefs. %
Upon the record so made, the Election Report, the objections of
the Progressive, the Report on Objections, and the record previously
made, the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
The Progressive alleged in its objections to election report that the
election and its results were unfair because of (1) the conduct of the
Teamsters, in assaulting, intimidating, and threatening members of
the Progressive and their families; (2) various acts of the Company
which gave support to the Teamsters and induced leading members
of the Progressive to shift their allegiance to the Teamsters; (3) wage
increases granted by the Company immediately before the election;
and (4) various acts and threats of supervisory employees of the
Company. -
Regarding the first objection, the testimony shows that several acts
of violence occurred in the election campaign during the period from
July 14 through September 26, 1941, whereby the Progressive was
prejudiced. On July 14, 1941, when Larsen, Plath, Cusak, Siko,
Tinaglia, and Rappaport, all of whom were members of the Pro-
gressive at that time, were distributing leaflets in front of the Com-
pany's plant, they were approached by a group of 15 or 30 men' who
8 The first day of the hearing the Trial Examiner refused to allow testimony to be
taken in respect to the meeting of September 29 and 30, 1941, between representatives
of the Progressive and the Teamsters, on the ground that such evidence was proper only
in an unfair labor practice proceeding. However, he later reversed his ruling and ad-
mitted such evidence. He refused to permit the Progressive to attack collaterally the
dismissal by the Municipal Court of Chicago of criminal charges against officers of the
Teamsters The rulings of the Trial Examiner are hereby sustained.
4 Rappaport testified that the assailants were wearing Teamsters' buttons and that he
had seen them talking with officers of the Teamsters in front of the Company's plant.
Tinaglia stated that he did not remember whether or not the men wore Teamesters' buttons.
NATIONAL TEA COMPANY 777
seized the leaflets. The members of the Progressive retreated to
Tinaglia's home, in the rear of a cleaning shop owned by his mother.
Shortly thereafter, 6 of the attackers entered the shop and requested
that Tinaglia's mother order the members of the Progressive to leave
her home.
Again on the morning of September 22, 1941,5 when the members
of the Progressive arrived at the plant to distribute campaign litera-
ture, they encountered a. group of 50 or 60 men 6 most of whom were
strangers, on the sidewalk at the entrance to the plant. One of the
strangers asked Schulte, for a leaflet and then tried' to-seize all the
leaflets, saying, "Come on and beat it. Get the hell out of here. You
ain't supposed to pass that stuff around here." Siko and Larsen,
president and trustee, respectively, of the Progressive, were beaten
during the resulting altercation. Rappaport testified, without contra-
diction, that Larsen asked the group who was responsible for the
attack and that Mitchell, an official of the Teamsters, stepped forth
and said, "I am responsible for this. What about it." Being out-
numbered, the members of the Progressive abandoned the distribution
of leaflets that morning. Two officers of the Teamsters were arrested.
On the afternoon of September 25, 1941, the members of the Pro-
gressive were again forced to cease passing out leaflets when they were
molested by a group of approximately 50 men in front of the plant.?
At this time Schulte was beaten and knocked down. On September
26, 1941, when 2 officers of the Teamsters were being arrested, one
of them struck Rappaport.
The above findings are based upon the testimony of Schulte, Rap-'
paport, Plath, Siko, and Tinaglia. The Teamsters did not specifically
deny that the above-described incidents occurred. It called as a
witness, George T. Barnes, police sergeant of the city of Chicago
in charge of the force assigned to police the area about the Company's
plant during the campaign. He testified that the only altercation
which occurred in his presence was the incident of September 26,
1941, when Rappaport was struck, but he also stated, "We were not
there all the time, and we always heard, when the police were not
around, that certain things occurred."
As to the second objection, the Progressive failed to show at the
hearing that the Company induced Tinaglia, Siko, Ruth, Simpson,
and Hansen, officers and leading members of the Progressive, to
accept a proposition made by the Teamsters and to transfer their
'The Teamsters first distributed leaflets in front of the plant on September 22, 1941.
6 Schulte testified that he had observed some of the men talking with officers and mem-
bers of the Teamsters who were distributing leaflets for the Teamsters.
T Schulte testified that some of the group had taken part in the melee of September 22,
1941 , described above.
,778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegiance from the Progressive to the Teamsters. However, the
Company granted passes to the previously mentioned renegade mem-
bers of the Progressive which enabled them to enter the plant and
to campaign actively in behalf of the Teamsters. It appears that
the justification for such action was the closed-shop contract entered
into originally on April 2, 1939, between the Company and Wholesale
Grocery Supplies Union, No. 20658, affiliated with the American
Federation of Labor, herein called Local No. 20658 , and continued in
,force between the Company and the Teamsters when the American
Federation of Labor granted the Teamsters jurisdiction over Local
No. 20658. The contract provides that representatives of the con-
tracting labor organization must be granted the privilege of inspect-
ingthe plant upon request.
The subject of the third objection of the Progressive was-but
briefly mentioned at the hearing. However, the Regional Director
in his Report on Objections states that the Teamsters on June 16,
1941, requested wage increases for all male and female employees
in the plant. After many conferences an agreement was finally
reached concerning the wage increases for the male employees, but
being unable to agree upon the wage question concerning female
employees, the Company and the Teamsters submitted the matter to
an arbitration board. On September 20, 1941, an arbitration award
was' made granting a wage increase to female employees retroactively
from August 25, 1941. The Company, however, made no announce-
ment and posted no notices concerning the resolution of the question
concerning the wage increase for female employees. During the week
of September 22, 1941, the Teamsters called a meeting of the female
employees and announced the wage increases which had been awarded
by the arbitrators.
In respect to the fourth, objection, Marianne Gyldenege, an em-
ployee of the kitchen department, testified at-the hearing that during
the last week in September, Riebel, foreman of her department, told
her and two other girls working in the kitchen to "vote for the
Teamsters' because that was a good Union, they would give us more
pay and we will get a better working condition." She further stated
that Riebel said, "We should always do what the boss told us, because
the boss always told us the right thing 'to do." Her testimony was
not denied.
According to Edward Wacek, a bus-boy in the kitchen department;
on or about September 29, 1941, Riebel asked him if he had joined
any union. Wacek informed him that he wanted to join the Team-
sters but didn't know where to obtain,an application card. Where
upon Riebel took him to Hyman, the Teamsters' steward, who gave
Wacek a button and a card.
NATIONAL TEA COMPANY 779
On the basis of the whole record, we conclude and find that, due
to the disorderly conduct and acts of violence occurring during the
election campaign, the electioneering waged by the Teamsters within
the plant, and statements made by' Riebel favoring the Teamsters,
the election does not fairly reflect the untrammeled wishes of the
employees and did not constitute a fair test of the employees' desires'
as to representation. - For these reasons we sustain the Progressive's
objections to the conduct of the election.
We shall set aside the election held on October 3, 1941. When the
Regional Director shall advise us that the time is appropriate, we
shall direct that a new election be held among the employees of the
Company's Chicago plant.8
ORDER
The National Labor Relations Board -hereby vacates and sets aside
the election held in this proceeding on October 3, 1941, and the result's
thereof.
,
Although the Progressive requested a new election at the time of filing its obJectionl
to the conduct of the election , several months have since elapsed . Inasmuch as circum-
stances may have altered since that request was made , we deem it inexpedient to order
a second election forthwith.