The Great Atlantic and Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1969

177 N.L.R.B. 942 (N.L.R.B. 1969)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Great Atlantic and Pacific Tea Company, Inc.
and Truck Drivers & Helpers Local Union No.
728, Affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Petitioner . Case 10-RC-7662
July 23, 1969
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, BROWN , AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election, an election was conducted by
secret ballot on March 19, 1969, under the direction
and the supervision of the Regional Director for
Region 10, among the employees in the stipulated
unit . At the conclusion of the election,the parties
were furnished with a tally of ballots which showed
that of approximately 198 eligible voters, 179 cast
ballots, of which 93 were for the Petitioner, 81 for
the Intervenor,' 2 were void, 3 were challenged, and
none were cast against the participating labor
organizations. The challenged ballots were
insufficient in number to affect the results of the
election.
On March 25, 1969, the Intervenor filed 5 timely
objections to the election. In accordance with the
National Labor Relations Board Rules and
Regulations, the Regional Director conducted an
investigation and, on April 25, 1969, issued and duly
served upon the parties his Report on Objections, in
which he recommended that objections 1, 3, 4, and 5
be overruled and that objection 2 be sustained. He
further recommended that the election be set aside
and that a second election be directed. Thereafter,
the Petitioner filed timely exceptions and supporting
brief to the Regional Director's recommendation
that objection 2 be sustained and that second
election be directed. The Intervenor filed an
answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the stipulation of the
parties, the objections, the Regional Director's
report on objections, the exceptions, and briefs of
the parties. Upon the entire record in this case, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organizations here involved claim to
represent certain employees of the Employer.
'American Bakery & Confectionery Workers' International Union,
AFL-CIO, Local No. 60.
'In the absence of exceptions thereto , we adopt , pro forma, the Regional
Director's recommendation that objections 1, 3, 4, and 5 be overruled.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees of the Employer's Atlanta,
Georgia, bakery, but excluding all office clerical
employees, maintenance men, guards and
supervisors as defined in the Act.
5. The Board hereby adopts the Regional
Director's findings and recommendations only to the
extent consistent herewith.
Objection 2 relates to certain alleged threats made
by a representative of the Petitioner at a union
meeting attended by 26 employees some 3 weeks
before the election. The Regional Director's
investigation revealed that a representative of the
Petitioner, Mathis, responding to a question by an
employee about what would happen to people who
wanted to work during the course of a strike stated:
"Well, Teamsters have been known to break arms."
Mathis admitted that he made a remark similar to
that set forth above. Thus, he stated that he had
replied in response to an employee's question about
the union's attitude toward strike breakers that
employees could cross the picket line and go to
work but "Most anything could happen. You could
get your arm broke." Mathis further stated that his
answer was made in jest and that most of the
audience laughed. Three other representatives of the
Petitioner corroborated Mathis' version of the
episode. The Regional Director concluded that the
remark by Petitioner's representative Mathis
constitutes a threat warranting the setting aside of
the election. We disagree.
In our view, assuming that a remark was made
during the course of the election campaign which
could be interpreted as a threat of possible physical
harm does not, in and of itself, warrant the setting
aside of the election. Conduct upon which an
election is set aside must be found to have affected
the outcome of the election, i.e., likely to coerce
prospective voters to cast their ballot in a particular
manner. In the present instance, the remarks, made
in response to a question by an employee, neither
relate to events surrounding the election nor were
they calculated to coerce employees to vote for the
Petitioner. Indeed, the retort of Mathis referred, if
at all, to some period of time in the future after the
election, namely, at a time after the Petitioner was
selected as bargaining representative , and a strike
occurred, perhaps after collective bargaining and the
failure to arrive at a collective-bargaining
agreement . In these circumstances , it is therefore
improbable that this type of verbal threat would
have a coercive effect on the employees as to cause
them to vote for the Petitioner. "For conduct to
warrant setting aside an election , not only must that
177 NLRB No. 126
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC.
conduct be coercive, but it must be so related to the
election as to have had a probable effect upon the
employees' actions at the polls."' Accordingly, we
shall not adopt the Regional Director's
recommendation, and we hereby overrule
Intervenor's objection 2.
As we have overruled the objections to the
election, and as the tally of ballots shows that the
Petitioner received a majority of the valid ballots
cast, we shall certify the Petitioner as the
collective-bargaining representatives of the
employees in the appropriate unit.
'N L R B . v Zelrich Company, 344 F . 2d 1011, 1015 (C.A. 5).
943
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that the Truck Drivers &
Helpers Local Union No. 728, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, has been designated and selected by a
majority of the employees in the unit found
appropriate herein as their representative for the
purposes of collective bargaining within the meaning
of Section 9(a) of the National Labor Relations
Act, of all such employees for the purposes of
collective bargaining with respect to rates of pay,
wages, hours, and other conditions of employment.