The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1962

140 N.L.R.B. 133 (N.L.R.B. 1962)

THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 133
refute the conclusions of, this dramatic film .5 Thus, the Board is con-
fronted with a campaign device where the art of the playwright and
the acting profession are employed to give substance to the Employer's
position that all unions are irresponsible organizations and that a vote
for union representation is a vote for strikes, violence, and perhaps
even murder. Although an employer is free to state his opinion and
make his predictions, there is a thin line between a prediction and a
threat, between truth and fiction. Having viewed the film "And
Women Must Weep," we are satisfied that the Employer effectively
tarred the Petitioner with the alleged reprehensible conduct of the
Princeton union. In our opinion, the impact of this film upon the
average viewer, who could reasonably accept the characters and events
as true, was in the nature of misrepresentation which exceeded the
bounds of permissible campaign propaganda and an interference with
the election of the following day.
We shall therefore set the election aside, and we shall direct that a
new election be conducted.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBERS RODGERS and LEEDor, dissenting :
We can see nothing in the motion picture involved herein, "And Wo-
men Must Weep," 6 which supports the conclusion of the majority that
the showing of this movie constitutes "misrepresentation" within the
meaning of existing Board precedent. Nor do we find that the movie
itself, or the timing thereof, interfered with the freedom of choice of
the employees who participated in this election. Accordingly, we
would sustain the Regional Director and certify the results of the elec-
tion herein.
6 In voting to set aside the election here, Chairman McCulloch does not find the fact
that the film was shown on the eve of the election controlling.
6 We reach this conclusion after viewing the film. Unlike our colleagues , however, we
do not here undertake to write a review of the picture . We do not presume to say
whether, as a motion picture production , "And Women Must Weep," is worthy of three
stars, four bells, or any other designation of relative excellence.
The Great Atlantic & Pacific Tea Co., Inc. and Retail Clerks
International Association, Local 1435, AFL-CIO , Petitioner.
Case No. 1-RC-6627. December 13, 1962
DECISION ON REVIEW AND DIRECTION
OF THIRD ELECTION
On March 1, 1962, the Regional Director for the First Region issued
a Supplemental Decision and Certification of Results of Election 1
i Not published in NLRB volumes.
140 NLRB No. 10.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overruling the Petitioner's objections to conduct affecting the results
of the election, and certifying the results of the election. Thereafter,
the Petitioner filed a timely request for review of the Regional Direc-
tor's Supplemental Decision with respect to the Petitioner's objection
No. 1.2 On May 8, 1962, the Board, by telegraphic order, granted the
request for review.
The Petitioner's objection No. 1 alleges that "the Employer, by its
supervisors and agents, interrogated employees as to their union sym-
pathy and activity." The Regional Director found that the Em-
ployer's area supervisor, O'Donnell, held individual interviews with
five employees in four different stores during the critical period. In
each case, the employee was called away from his duties, and asked to
come to the cellar or backroom of the store. He further found that
O'Donnell's remarks during these interviews, though antiunion in
tenor, were not coercive. The Regional Director held, in view of the
fact that only 5 employees in 4 stores were involved in these inter-
views, out of approximately 119 eligible voters in a 16-store unit, that
this conduct did not constitute a "systematic" use of the interviewing
technique which the Board has consistently proscribed.' We do not
agree.
When individual employees are taken from their workplaces and
subjected to antiunion propaganda at the hands of a supervisor in
the privacy of a company office 4 or in an isolated area 5 away from
other employees, there is likelihood that outright fear or uneasiness
tinged with fear as to the consequences of unionism will be created in
the mind of the employee thus singled out for special attention. This
general proposition is exemplified by what happened in this very case.
Thus, Area Supervisor O'Donnell who conducted the individual inter-
views admitted that, in the course of his interview with an employee at
the Lewiston store, the employee said to him: "You think I'm pro-
Union." According to the employee's own account, credited by the
Regional Director, O'Donnell said after urging the employee to vote
against the Petitioner, that he wanted to make sure that the employee
knew "what he was getting into" in connection with this election. The
employee replied that he saw things pretty clearly and asked why he
had been called downstairs. O'Donnell answered, "We've been pretty
friendly and I wanted to make sure you know what you're doing-I
2 The request for review concerns only this objection.
3 See, for example, General Shoe Corporation (Harman Bag Plant ), 97 NLRB 499;
Gallaher Drug Company , 115 NLRB 1379; Hook Drugs, Inc , 117 NLRB 846; Peoples
Drug Stores , Inc and Peoples Service Drug Stores, 119 NLRB 634; Carter-Lee Lumber
Company, 119 NLRB 1374; The Great Atlantic & Pacific Tea Co, 120 NLRB 204,
Columbus Division, Colonial Stores , Incorporated , 121 NLRB 1384 ; Jasper Wood Prod-
vets Co, Inc , 123 NLRB 28, National Caterers of Virginia , Inc, 125 NLRB 110r, Aragon
Mills, a Unit of United Merchants & Manufacturers , Inc, 135 NLRB 859.
4E.g., General Shoe Coi poration , 97 NLRB 499; 77 NLRB 124.
5 E g, Peoples Drug Stores, Inc., supra (Members Rodgers and Jenkins dissenting)
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 135
just wanted to explain it to you." 6 This employer-created fear or un-
ease is inimical to the holding of the Board's concept of a free election.
It is for this reason that the Board has held : 7
. . . that the technique of calling employees, individually or in
small groups, into a private area removed from the employees'
normal workplaces and urging them to reject the union is in itself
conduct which interferes with the conditions necessary to a free
choice by the employees in the selection of a bargaining repre-
sentative and warrants setting aside the election.
The Regional Director did not consider that the individual inter-
viewing of 5 employees in 4 different stores out of a total of approxi-
mately 119 eligible employees in 16 stores constituted the "systematic"
interviewing by an employer which has been held objectionable de-
spite the absence of coercive statements made during the interviewing.
We note, in this connection, that the election results were extremely
close, 52 votes being cast for the Petitioner, and 60 against. A change
of five votes, the number of objectionable interviews, could have
changed the final outcome of the election. Individual interviews took
place in 25 percent of the total number of stores in the unit. This is
hardly an isolated number of interviews, and it is not unreasonable
in the circumstances to infer, as we do, that the ramifications of the
interviewing technique extended beyond the employees immediately
involved.
Because we believe that the employer-conducted interviews before
the election destroyed the requisite laboratory conditions for holding
a free election, we shall set it aside and direct a new one.
[The Board set aside the election.]
[Text of Direction of Third Election omitted from publication.]
MEMBER RODGERS, dissenting :
The facts of this case are not in dispute. The appropriate unit in
this case consists of 16 stores and approximately 119 employees. Prior
C In his dissent Member Rodgers mentions that the majority sets forth only a portion
of the conversation between Supervisor O'Donnell and an employee of the Lewiston store.
Our colleague apparently misconceives the majority's purpose in citing this conversation.
As the body of the opinion makes clear, a majority of the Board believes that to take an
employee from his workplace for the purpose of subjecting him to antiunion propaganda
in the privacy of an office or an isolated area has a tendency to create in the employee a
state of mind which is inimical to the holding of a free election For that reason the
Board majority believes that when such interviewing takes place on a sufficient scale the
election should be set aside. Actual proof that in any given case the interviewing did
have an objectionable effect is not required The Lewiston store conversation was cited
to support the general proposition. The omitted portion of the conversation which the
dissent cites does not disprove it. On the contrary, the very fact that Supervisor
O'Donnell deemed it necessary to reassure the employees interviewed at the Lewiston
and Auburn stores supports the majority's view of the effect upon employees of such
private interviews
7 Peoples Drug Stores , Inc., supra , at p 636.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the election, which the Union lost, the Employer' s area supervisor
visited four of the stores in the unit and had individual conversations
with a total of five employees. He told these five employees, in effect,
that he did not think the employees needed a union and that the
Employer did not favor unionization.
The Regional Director found, inter alia, that these conversations
were not coercive, and overruled the Petitioner's objection to the elec-
tion based on the above-described conduct. Although my colleagues
have adopted this finding, they are nevertheless setting aside the
election on the ground that the circumstances under which these law-
ful conversations occurred converted them into an unlawful "tech-
nique" which "interfered" with the employees' free choice. I do not
agree.
The circumstances upon which my colleagues place such great em-
phasis, and which, in their opinion, is the gravamen of the interfer-
ence, is the fact that these individual conversations were held at some
location other than the employees' "work stations." For, admittedly,
had the identical conversations occurred at the employees' "work
stations," they would not be found to have interfered with the em-
ployees' free choice." In support of their position, my colleagues cite
the General Shoe case."
The application of the General Shoe doctrine in the instant case is,
in my opinion, the final deviation in a succession of cases which have
distended the rule and rationale of that case far beyond its original
intent. In the General Shoe case 10 the president of the company had
the employees brought into his office where he read them an "intem-
perate" antiunion speech. In the second General Shoe case, involv-
ing another plant of the same employer, the plant manager and per-
sonnel manager had the employees brought into their offices and urged
them, in somewhat "more temperate" tones, to reject the union. The
Board, in explaining why the aforementioned conduct has a coercive
effect, set forth the following rationale (97 NLRB at 502) :
When rank-and-file employees are brought to the company
offices in small groups, they do not deal in an "arms length" rela-
tionship with the company officials they are directed to see. Anti-
union opinions, and the suggestion that the employees reject the
union, when uttered in that locus of final authority in the plant,
take on a meaning and a significance they do not possess under
other circumstances. [Emphasis supplied.]
B Mall Tool Company, 112 NLRB 1313; Bryant Electric Company, 118 NLRB 232;
Schick Incorporated, 118 NLRB 1160; Peoples Drug Stores, Inc , and People Service
Drug Stores , 119 NLRB 634, 636; Pyramid Mouldings, Inc., 121 NLRB 788.
e General Shoe Corporation, 97 NLRB 499.
is 77 NLRB 124.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC . 137
Clearly, the General Shoe doctrine in its present application does
not remotely resemble the rule which the Board originally adopted."
What began as a rule which permitted all noncoercive individual
conversations except those held at "the locus of final authority," has
now become a rule which prohibits all noncoercive individual conver-
sations except those held at the employees' "work stations." i3 I am
thus compelled to come to the conclusion that, in reality, the decision
in this case represents an almost complete rejection of the principle
that the Employer has a right to address the employees, individually,
in a noncoercive manner."
Moreover, my colleagues, in finding, contrary to the Regional Di-
rector, that the conduct herein was "systematic" and did constitute a
use of the proscribed technique, note that the "election results were
extremely close," and that "a change of 5 votes . . . could have
changed the final outcome of the election." In my opinion, this is a
faulty approach. Conduct alleged to be objectionable should be evalu-
ated by the Board on the merits; and the merits, in my view, do not
encompass consideration of the degree of closeness of the election re-
sults. See, for example, Zimmer Industries, Inc., 120 NLRB 317, 319;
Shovel Supply Company, 118 NLRB 315, 316; Goodyear Clearwater
Mill No. 2,109 NLRB 1017, 1019-1020.
ix See National Caterers of Virginia , Inc, 125 NLRB 110, in which the storeroom of a
cafeteria was held to be a locus of "managerial" authority , in spite of the fact that the
employees were used to being in the storeroom in connection with their regular duties.
Frisch's Restaurants, Inc., Case No . 9-RC-4674, not published in NLRB volumes, where
the plant cafeteria was held to be a locus of "managerial" authority , in spite of the fact
that there were other employees in the cafeteria at the time . "Locus of final authority"
has now become "locus of managerial authority ." National Caterers of Virginia, Inc.,
supra.
12 My colleagues do not bother to explain why conversations , which are not coercive
when held at the employees ' "work stations ," become coercive when held at any other
location , I, for one, cannot subscribe to a theory which is grounded in the assumption
that all areas of a plant or store, except the employees ' "work stations ," are permeated
with a subtle presence which strikes fear in the hearts of the employees causing words
of discussion or persuasion to be transformed into words having the force and effect of
threats or promises . Surely, the backroom and basement of these stores , where the con-
versations occurred, must have been every bit as familiar to the employees as their "work
stations." In fact, in the typical retail grocery or supermarket operation , the backroom
and basement are as much a part of the employees ' "work stations" as the aisles of the
selling floor . Whatever the special aura which may pervade the "boss' office ," It does not
exist in these nonselling areas of the store which are as much the employees ' domain as
the employer's.
In support of the rationale of their decision , my colleagues cite only a portion of the
conversation between Area Supervisor O'Donnell and an employee of the Lewiston store.
However , when that conversation is reported in its entirety , it takes on an entirely differ-
ent complexion . Thus when the employee stated, "You think I'm pro -Union," O'Donnell
answered, "That is none of my business . I have no right to judge anyone on this situa-
tion . It's your own persona l matter." And in another of the conversations , not specifi-
cally set forth, but relied on by my colleagues to set aside the election , that of the
conversation between O'Donnell and an employee of the Auburn store, O'Donnell con-
cluded by stating to the employee "that no matter how the election comes out, there will
be no hard feelings and that it was a free country and the employee could vote as he
saw fit."
is See my dissenting opinion in Peoples Drug Stores , Inc., 119 NLRB 63'4, 637.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, as I find nothing in the Employer's conduct which
could reasonably have impaired the employees' ability to evaluate, on
the merits, the election issues, or their ability to vote objectively, with-
out fear or favor, and as, in any event, I agree with the Regional Di-
rector that the .conduct involved is minimal and too isolated to consti-
tute a "technique," I would overrule the objection and certify the
results of the election.
Union Electric Steel Corporation and United Steelworkers of
America, AFL-CIO, and its Local 1552. Case No. 6-CA-2348.
December 14, 1962
DECISION AND ORDER
On July 23, 1962, Trial Examiner Leo F. Lightner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
'The Respondent excepts to the Trial Examiner's ruling whereby he rejected Respond-
ent's offer of proof to the effect that the Union ' s sole purpose or motive in requesting the
subject information and data relating to the Respondent ' s hourly employees ' incentive pay
plan was to enable it to harass , pressure , or otherwise dissuade employees from participat-
ing in the plan. The implementation of this purpose , according to the Respondent , would,
in turn , harass the Respondent through the resultant decrease in production.
We are cognizant of the following circumstances in connection with the Respondent's
offer of proof. It was couched in general and conclusionary terms and failed to recite
the identity or description of the witnesses , or other evidence , to be introduced by the
Respondent. Further , the offer did not delineate the nature, content, or scope of any
such prospective evidence with any degree of exactitude . Indeed , the form -of the offer
more nearly approximated a bare contention by the Respondent rather than an offer
of proof. For these reasons, we find that the Respondent 's offer failed to satisfy the
standards of specificity required by Rule 43(c), Rules of Civil Procedure for the District
Courts of the United States. The Act, in Section 10(b), requires that any proceedings
under Section 8 shall be conducted , so far as practicable , in accordance with the rules
of evidence contained in these Rulers of Civil Procedure.
Moreover , when Respondent 's counsel made the offer of proof, he admitted that all but
a "very small part" of the evidence he expected to develop in order to prove his con-
tention concerning the Union ' s harassment objective would have to be adduced through
the testimony of union officials called by him as witnesses pursuant to Rule 43 ( b), Rules
of Civil Procedure , cited supra . Consequently , it appears that the Respondent only pro-
posed to prove its contention by means of the highly speculative and unpredictable method
of cross-examining adverse , if not hostile, witnesses. Parenthetically, we note that at
the hearing the Respondent began its defense by calling the vice president of Local :1552
140 NLRB No. 15.