The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Jul 6, 1943

51 N.L.R.B. 90 (N.L.R.B. 1943)

In the Matter of THE GREAT ATLANTIC & PACIFIC TEA COMPANY and
UNITED RETAIL , WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF
AMERICA, LOCAL 363, (C. I. 0.)
Case No. R-5371.Decided July 6, .194,3
Mr. Charles R. Fox, of Toledo, Ohio, for the Company.
Mr. Louis Klein, of Toledo, Ohio, for the Association.
Mr. Lowell Goerlich, of Toledo, Ohio, for the Union.
Mr. David V. Easton, of counsel to the Board.
i DECISION
AND
ORDER
STATEMENT OF THE CASE
The United Retail , Wholesale and Department Store Employees
of America, Local 363, (C. I. 0.), herein called the Union, duly filed
an amended petition alleging that a question affecting commerce had
arisen concerning the representation of employees of The Great
Atlantic & Pacific Tea Company, Toledo,. Ohio, herein called the
Company. On April 13, 1943, before a hearing was held, the Com-
pany, the Union, and Warehouse Employees Benefit Association,
herein called the Association, and the Regional Director for the
Eighth Region, Cleveland, Ohio, entered into a "STIPULATION FOR CER-
TIFICATION UPON CONSENT ELECTION."
Pursuant to the Stipulation, an election by secret ballot was con-
ducted on April 28, 1943, under the direction and supervision of the
Regional Director, among all warehouse employees of the Company
at its Toledo, Ohio, warehouse, excluding supervisory, office, and
bakery employees, to determine whether they desired to be repre-
sented by the Union or by the Association for the purposes of collec-
tive bargaining, or by neither. On April 29, 1943, the Regional Direc-
tor issued and duly served upon the parties an Election Report on
the ballot.
As to the balloting and its results, the Regional Director reported
as follows :
51 N. L. R. B., No. 22.
90
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 91
Approximate number of eligible voters_______________________ 93
Total ballots cast___________________________________________ 89
Total ballots challenged_____________________________________ 2
Total void ballots___________________________________________ 0
Total valid votes counted___________________________________ 87
Votes cast for United Retail, Wholesale and Department Store
Employes of America, Local 363 (CIO) --------------------- 41
Votes cast for Warehouse Employees Benefit Association------- 46
Votes cast for neither_______________________________________ 0
On April 30, 1943, the Union filed objections to the conduct of the
election and to the Election Report. On May 15, 1943, the Regional
Director, having investigated the matter, issued and duly served
upon the parties a Report on Objections. The Regional Director
reported that the investigation revealed indications of unlawful in-
terference with the election, and recommended that the Board direct
a hearing on said objections.
Pursuant to an order of the Board and pursuant to notice duly
served upon the parties, a hearing was held on June 14, 1943, before
Samuel H. Jaffe, Trial Examiner. The Board, the Company, the
Union, and the Association appeared, participated, and were af-
forded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the record so made, the Election Report, the objections of
the Union, and the record previously made, the Board makes the
following :
FINDINGS OF FACT
A question affecting commerce has arisen concerning the repre-
sentation of employees of the Great Atlantic & Pacific Tea Com-
pany, Toledo, Ohio, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
All warehouse employees of the Company at its Toledo, Ohio,
warehouse, excluding supervisory, office, and bakery employees, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
The objections alleged in substance that the Company interfered
with the election in that (a) its superintendent stood by the voting
booths and intimidated employees, (b) foremen advised and coerced
its employees during the balloting, and (c) one foreman went to the
homes of workers and conveyed them to the voting booths, and in
other ways influenced the voting.
The record discloses that on the day of the election, McMillan, the
superintendent of the Company's warehouse, left the warehouse fol-
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowed by three girl employees; that they went to the voting booth,
where McMillan opened the door for them, and that the girls entered
to vote. There is 'no evidence of any conversation between McMillan
and the girls. The record further discloses that McMillan, during
the time the election was being conducted, talked to a few male em-
ployees in the neighborhood of the voting booths, but there is no evi-
dence with regard to the topic of their conversation, whether or not
these men voted, or whether or not they were eligible to vote. Al-
though union representatives saw these activities of McMillan, they
said nothing about them to the Board representatives in charge of
the election until the voting was over. In. accordance with the recom-
mendation of the Regional Director, we shall dismiss the first ob-
jection of the Union.
On the day of the election Lewis Gray, who was in charge of the
repackaging department of the Company,' told the 12 to 15 girls
employed in that department that if they voted for the Union, they
would receive a reduction in wages. He spoke thereafter in favor of
the Association, stating that he himself intended to vote for it. - These
facts were admitted by Gray.
'Joe Soinsky, an employee of the Company who acted as one of the
union observers at the election, testified, without contradiction, that
Louis Klein, the president of the Association, told Warehouse Man-
ager Epperson that Jessie Miller, an employee engaged in the cafe-
teria of the Company, had not voted; that Gray asked Epperson
for Miller's address, which the latter supplied, and that Gray proceeded
by car to Miller's home and brought her to the polls. Soinsky further
testified that Miller voted without protest, and that Gray thereafter
drove her home. Gray admitted that he brought Miller to the polls.
No contradictory testimony was offered by either the Company or
the Association, and we find, in accordance with the testimony of
Soinsky, that Gray brought Miller to the polls by car for the purpose
of voting and later drove her home.
For the purpose of ascertaining whether or not Gray was a repre-
sentative of the Company, it was necessary to take testimony with
regard to his status. Gray attempted to vote in the election, and was
permitted to do so under challenge by the Board's representative.
In his statement on the challenge, Gray admitted that he was a fore-
man in charge of the repackaging department. Roscoe Betz, vice
president in charge of the Toledo warehouse, testified that Gray in-
structs new employees and keeps records; that he is considered by the
Company as a "trainee for foreman"; that he has heretofore and now
' As hereinafter indicated , we find that Lewis Gray was the foreman of the repackaging
department , and as such was a representative of the Company with the power to bind the
Company by his acts.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 93
performs all the duties of a foreman under Epperson's instructions;
that he has the right to recommend hiring and discharge, subject to
Epperson's final judgment; and that if Gray's title were changed to
"foreman" there would be very little difference in his duties but that
'he would be put on salary and would have more authority with regard
to hiring and discharging. Betz admitted that he "expected" that the
girls in the repackaging department "figured" Gray to be a foreman,
and that it would be "up to them to please Gray." Lenetta' Frey,
who was employed in the repackaging department, testified, in sub-
stance, that Gray was the foreman of the department. The testimony
of Frey and Betz was confirmed by Soinsky. In view of the fore-
going, we find that Gray was the foreman of the repackaging depart-
ment of the Company, and as such acted as a representative of the
Company. We further, find that in view of Gray's admitted actions
the Company coerced its employees and interfered with the proper
conduct of the election.
Upon the basis of the entire record, we conclude and find that the
Company, through the actions of Gray, interfered with the freedom
of its' employees to vote without restraint in the election. Accord-
ingly, we sustain the Union's objections to the conduct of the election
and shall set aside the election held on April 28, 1943. When the
Regional Director advises us that the time is appropriate, we shall
direct that a new election be held among the Company's employees.
ORDER
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby vacates and sets aside the election held in
this proceeding on April 28, 1943, and the results thereof.
V