The Great Atlantic & Pacific Tea Co.

In the Matter of THE GREAT ATLANTIC & PACIFIC TEA COMPANY and AMALGAMATED MEAT CUTTERS AND FOOD STORE' EMPLOYEES (A. F. OF L.) Case No. 8-5875 (1-R-1553) SECOND SUPPLEMENTAL DECISION AND DIRECTION OF RUN-OFF ELECTION I February 24, 1944 On November 3, 1943, the National Labor- Relations Board issued a Decision and Direction of Election in this proceeding." Pursuant to the Direction of Election, an election by secret ballot was conducted on November 20, 1943, under the direction and supervision of the Regional Director for the-First Region (Boston, Massachusetts). On January 11, 1944, the Board issued a Supplemental Decision and Direction herein, pursuant to which the challenged ballots of two employees were opened and counted. , On January 17, 1944, the Regional Director issued and duly served upon the parties his Supplemental Election Report. As to the final results of the balloting, the Regional Director re- ported as follows : Approximate number of eligible voters_____________' ---------- 237 Challenged ballots opened and counted_______________________ 2 Total valid votes counted__________________________________ 229 Votes cast for Amalgamated Meat Cutters & Food Store Em- ployees (AFL)-------------------------------------------- 114 Votes cast for Massachusetts Independent Food Store Workers Union ---------------------------------------------------- 113 Votes cast against participating unions____________ ________ 2 Void ballots------------------------------------------------ 1 Thereafter the Meat Cutters and the Independent each submitted timely requests for the conduct of a run-off election. The Company objects to the conduct of a run-off election on the ground that the Na-, tional Labor Relations Act contains no provision authorizing such procedure ,and cites the Board decisions in John Deere Tractor Com- pany and Ge^zeral Motors Corporation cases 2 to support its position. 1 53 N. L R. B. 360. 2 Matter of John Deere Tractor Comnpany, 41 N. L. R. B. 903 ; Matter of General Motors Corporation, 25 N. L. R. B. 258. 55 N. L. R. B., No: 10. 56 -THE- GREAT ATLANTIC & PACIFIC- TEA COMPANY 57 In the,first case cited the vote for no bargaining representative con; stituted a plurality of the votes cast, and under the then policy, of the Board, no run-off election was ordered. Again, in the, second case, the vote for no bargaining representative constituted a plurality of the votes cast, and the Board; as then constituted, was unable to agree to the terms of a run-off election, with the consequence that no such elec- tion'was' directed. Neither of these cases is analogous to the one now before us. Here, the employees have voted almost unanimously for union representation, and only two votes, were cast for "neither" union. Thus, the distinguishing features of the present case are clear. More over, the Board has recently adopted the policy of directing a ruri'off election where none of t1ie choices on the ballot has received a majority of the votes cast.3 ' As to the lack of statutory authority to conduct a run-off election, the Company is content with the averment that such authority cannot be found in the Act. This contention has had the consideration of the Board,4 and at this late date we think it is sufficient to point out that Section 9 (c) of the Act permits the Board to investi- gate questions affecting commerce 'concerning the representation of employees and to conduct a secret ballot, or utilize any other suitable method to ascertain -bargaining representatives. The Board has ordered the conduct of run-off elections when circumstances have sug-, gested the utility of such procedure, and we have no doubt as to the propriety or-legality of our orders in this respect. The Company'objects further that employees hired, since the'date of the pay 'roll- selected to determine eligibility to vote in the original election are not eligible to vote in the run-off election; and that those who were eligible to vote in the original election but who have since left the Company's employ are eligible to vote in the run-off election. The first of these latter objections correctly interprets a Board policy which was adopted in the interest of finality, certainty, and expedi- tion ; this policy is consistent with the usual practice obtaining in polit- ical elections, and we see no reason now to depart from it. Concerning the second, it need be said only that this objection is based on a premise precisely opposed-to fact. Only those who have remained, in the Com- pany's employ and are employed in an eligible category on the date of the run-off election will be eligible to vote. We find that none of the Company's objections raise substantial or material issues with respect to the-conduct of a run-off election. Ac- cordingly, we shall direct a run-off election among the employees of the Company in which they will be given an opportunity to decide whether 3 See National Labor Relations Board Rules and Regulations-Series 3, Article III, Sec- tion 11. 4 See Matter of Coos Bay Lumber Company, 16 N. L R. B. 476; see also Matter of R. K. LeBlond Machine Tool Co., 22 N. L. R. B. 465. 58 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD they desire to be represented by Amalgamated Meat Cutters & Food Store Employees (AFL) or by Massachusetts Independent Food Store Workers Union , for the purposes of collective bargaining. DIRECTION OF RUN-OFF ELECTION By virtue of and pursuant to the power, vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Sections 9; 10, and 11, of National Labor Relations Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Great Atlantic & ,Pacific Tea Company,' Boston, Massachusetts, a run-off election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the First Region, acting in this matter as agent for' the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regula- tions, among the employees,of the Company as defined in our original Decision and' Direction of Election who were eligible to vote in the election conducted November 20, 1943, and who are employed,in an eligible' category on the date of the run-off. election, to determine whether they desire to be represented by Amalgamated Meat Cutters & Food Store Employees (AFL) or by Massachusetts Independent Food. Store.Workers Union, for the purposes of collective bargaining.