The Great Atlantic & Pacific Tea Co.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY Appendix B Calculation of Gross Back Pay 295 A. Gross back pay before 2/16/45 P. C. Watton D. Jr. Wood 1. Daily Average Hours (Weekly Avg. Hours 6) - -- _ - - 8 25 7.00 l.a. Date of. Discrimination-------_-_ 2/8/45 2/8/45 2. No of Working Days; date of discrimination to 2/16/45-------------------------------------- 7 7 3. Hourly Rate of Pay Before 2/16/45--------------- 1. 05 1. 00 3.a. Total Hours Before 2/16/45------- ----------- ---- 57 75 49 00 4. Gross Back Pay Before 2/16/45------------------- $60. 64 $49.00 5. Straight-time. Overtime Gross Back Pay before 2/16/45 "------------------------------------ $7 35 $.88 B. Gross back pay after 2/16/45 1. Weekly Average Hours (From Table A) - _ - - -- - - - - - 50.00 41. 25 2. Hourly Rate of Pay After 2/16/45-_ _ 1. 18 1. 18 3. Date-End of Back Pay------------------------- 8/17/45 3/10/45 4. Number of Whole Weeks in Back-Pay Period After 2/16/45-------------------------------------- 26 3 5. Number of Odd Days in Back-Pay Period after 2/16/45-------------------------------------- 0 1 6. Total Hours in Whole Weeks--------------------- 1300. 00 123. 75 7. Total Hours in Odd Days ---- ------- ------------- 0 7 00 8. Grand Total Hours of back pay in period after 2/16/45- 1300. 00 130 75 9. Straight-time. Gross Back Pay After 2/16/45 ------ $1534. 00 $154. 29 10. 40 Hours Vacation Pay-------------------------- $47. 20 $47 20 11. Overtime Gross Back Pay After 2/16/45 ----------- $153.40 $2. 36 C. Grand total-Gross back pay B_ $1802. 59 $253 73 A Computed by multiplying the number of hours over 40 for every week in the back period ( including parts of week by one-half of the claimant's pay rates). B Addition of lines A4, As, B9, B10, and 1311 THE GREAT ATLANTIC & PACIFIC TEA COMPANY and LOCAL 474, NATIONAL FOOD CHAIN STORE EMPLOYEES, CIO, PETITIONER and RETAIL FOOD CLERKS UNION, LOCAL 1500, AFL. Case No. O-RC- 0119. December 7) 1951 Decision and Order Setting Aside Election On September 27, 1950, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Second Region among the employees in the appropriate unit.' Upon completion of the election, a tally of ballots was issued and duly 'The stipulated unit was composed of all employees of the Employer ' s supermarkets and service stores serviced by the Bronx warehouse in the counties of New York , Bronx, Westchester, Putnam and Dutchess , including dairy' department heads, produce depart- 97 NLRB No. 29. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD served upon the parties concerned. The tally shows that, of approxi- mately 2,700 eligible voters, 2,444 cast valid ballots, of which 506. were for the Petitioner, 266 were for the Intervenor, and 1,672 were against participating labor organizations. The tally also shows that there were 1 void, and 58 challenged ballots. The Petitioner and the Intervenor timely filed objections to con- duct affecting the results of the election. On March 29, 1951, the Regional Director issued his report on objections to election, finding, inter alia, that the Employer interfered with the election by its dis- parate application of a rule prohibiting organizational activities in its stores during working hours, and recommended that the election- be set aside on that ground. The Employer timely filed exceptions to these findings and recommendations.' On May 21, 1951, the Board ordered that a hearing be held with respect to the objection which the Regional Director recommended- be sustained, and that the hearing officer prepare and cause to be- served upon the parties a report containing resolutions of the credi- bility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said objection. Thereafter, a hearing was held before a number of hearing officers on various dates between June 9 and August 3, 1951.3 On September 6, 1951, Hearing Officer Robert S. Fuchs issued his report, a copy of which is attached hereto, in which he recommended that the objection be sustained and that the election be set aside. The Employer timely filed exceptions to the hearing officer's report, and a supporting brief 4 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 Houston, Reynolds, and Styles]. The Board has reviewed the rulings of the hearing officers and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the hearing officer's report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings and recommendation of the hearing officer for the following reasons : ment heads , bakery department heads, and head cashiers , but excluding employees of such stores serviced by the Bronx warehouse in Fairfield County, Connecticut, journeymen butchers and apprentices , head meat cutters ( first meat men), meat wrappers, part-time- employees working less than 29 hours per week , managers , assistant managers , and other supervisors as defined in the Act. 2 No exceptions were filed to the Regional Director 's recommendation that seven other objections be overruled, and to his findings of fact, but no recommendation, as to the zeniaining objection alleging an unwarranted refusal to allow observers at the election. In the absence of exceptions, we adopt the Regional Director 's recommendations concern- ing the seven objections , and we find it unnecessary to pass upon the remaining objection because there appears to be no existing dispute with respect to it. 3 The hearing on June 9 was conducted before I. L. Broadwm ; on June 19, before Milton O. Talent ; and on July 24, 25, and 26 , and August 1, 2, and 3 , before Robert S Fuchs. 4 The Employer's request for oral argument is denied because, in our opinion, the record and brief adequately present the issues and the positions of the parties. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 297 The facts are fully set forth in the hearing officer's report. Briefly, it appears that for some years, the Employer has had in effect a rule prohibiting activities tending to disrupt the normal business of its stores. Until August 24, 1950, this rule was generally not applied to prohibit the union organizational campaign in the approximately 180 stores involved herein. However, on August 24, 1950, the Em- ployer specifically informed the unions of the above rule, stated that outside activity or solicitation of any kind on the store premises would not be tolerated, and added that its store managers had been instructed to enforce this rule. Thereafter, until September 27, 1950, the date of the election, the Employer's representatives vigorously opposed the distribution of literature and other campaigning within the stores by the unions, and in this connection, utilized such means as threatening police action and, in one instance, threatening an or- ganizer with a knife. While the union organizers attempted to continue their organizational efforts within the stores in disregard of the rule, they were not wholly successful in distributing literature and conversing with the employees. In contrast to the above rigid enforcement of the no-solicitation rule against the unions, the record shows that, during the 5 work- days immediately preceding the election antiunion petitions 5 were distributed, signed, and circulated by employees in a substantial num- ber of stores during working hours; and that the persons so engaged, although observed in some cases by the manager or assistant manager, were permitted to conduct their activities without interference. The hearing officer found that the Employer had knowledge of the contents, or at least the nature, of these petitions, and while 1 district supervisor caused the petitions to be destroyed in front of employees in 11 stores in his district, no other disavowal action was undertaken by the Employer. Under all the circumstances, the hearing officer concluded that, although the no-solicitation rule was not in itself improper, the Employer's disparate application of this rule interfered with the- election, and he recommended that the election of September 27, 1950, be set aside and a new election conducted. The Employer excepts to these findings and conclusions principally on the grounds that : (1) Even assuming the Employer's acquies- cence in the distribution of antiunion petitions while invoking its no-solicitation rule against the unions, such conduct would not, as a matter of law, constitute interference; (2) the Employer had no knowledge of the nature or contents of the petitions; (3) the action The petitions state generally that the signatories enjoy the best working conditions in the retail food industry and believe that they will continue to enjoy such working conditions and will gain further benefits without the interference of any outside organi- zation , union or otherwise. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the district supervisor in causing the petitions to be destroyed constituted an effective disavowal by management; and (4) there was no interference because the unions successfully contravened the Employer's no-solicitation policy. We find no merit in these contentions. As to the first contention, it is well established that an employer's discriminatory application of an otherwise valid 6 no-solicitation rule, by enforcing it against union solicitation while permitting other forms of solicitation, is violative of the Act and prevents a free choice of representatives.7 As to the second contention, the record, in our opinion, amply supports the hearing officer's inference and finding that the Employer had knowledge of the nature of the antiunion petitions. As. pointed out by the hearing officer, the circulation of these petitions in a substantial number of stores occurred at the climax of the campaign, during the 5 work days immediately preceding the election. The stores are of relatively limited size and employ an average of only 20 to 30 employees. It was stipulated that persons engaged in circulating, distributing, and signing the petitions were observed in some cases by the store managers or assistant managers who did not interfere with such action. And there is testimony that the circulation and signing of the petitions took up to 40 minutes in the stores involved; that the persons distributing the petitions occasionally carried large numbers of these petitions into the stores ; and that at least some of the petitions bore distinctive coloring. In view of the foregoing, and upon the entire record, we find it is a reasonable inference that the Employer had full knowledge of the nature of the petitions.,, With respect to the third contention, namely, that the action of the district supervisor in causing the petitions to be destroyed con- stituted an effective disavowal by management, it is sufficient to note that the supervisor's action was limited to 11 stores in his district; that the stipulated unit covers about 180 stores, in a substantial number of which the circulation, signing, and distribution of the petitions were conducted; and that these stores are relatively widely separated. Under these conditions, the action of the district supervisor falls far short of an effective disavowal by the Employer of the disparate application of the no-solicitation rule." As to the Employer's final contention that the unions' success in contravening the no-solicitation rule precludes a finding of interfer- , In view of our disposition of the issue , we assume, without deciding , that the rule involved herein was - an otherwise valid one. See e. g. Merrimac Hat Corporation, 85 NLRB 329. See cases cited in footnote 5 of the hearing officer's report. Cf. Bird Machine Company, 65 NLRB 311 , enforced 161 F. 2d 589 (C A. 1). I THE GREAT ATLANTIC & PACIFIC TEA COMPANY 299 ence, the record shows, as already mentioned, that during the critical period after August 24, 1950, the unions were not wholly successful in their efforts to avoid the Employer's rigid application of its rule. In any event, the Employer's discriminatory enforcement of its rule was reasonably calculated or tended to interfere with the election, and the unions' success in overcoming this impediment is not dispositive 11 We, find that the Employer's conduct interfered with the employees' freedom of choice in the selection of a bargaining representative, and we shall, therefore, order that the election be set aside. When the Regional Director advises the Board that the circumstances permit the free choice of a bargaining representative, we shall direct that a new election be held among the employees concerned. Order IT IS HEREBY ORDERED that the election held on September 27, 1950, among the employees of The Great Atlantic & Pacific Tea Company, in the appropriate unit be, and it hereby is, set aside. Report of Hearing Officer Upon a petition duly filed pursuant to Section 9 (c) of the National Labor Relations Act, as amended, hereinafter called the Act, a stipulation for certi- fication upon consent election was executed on June 9, 1950, and approved by the Regional Director, Second Region, on June 12, 1950, and an election conducted under the direction and supervision of the Regional Director for the Second Region, on September 27, 1950. The tally of ballots which was served upon the parties showed the following results : Approximate number of eligible voters_____________________________ 2,700 Void ballots----------------------------------------------------- 1 Votes cast for Local 474, National Food Chain Store Employees, CIO__ 506 Votes cast for Local 1500, Retail Food Clerks Union, AFL (hereinafter referred to as Intervenor)______________________________________ 266 Votes cast against participating labor organizations_________________ 1, 672 Valid votes counted______________________________________________ 2,444 Challenged ballots----------------------------------------------- 58 Valid votes counted plus challenged ballots --------------------------2,502 The Petitioner and the Intervenor herein filed timely objections to the conduct of the election, and to conduct affecting the results of the election.- On March 29, 1951, the Regional Director issued his report on objections to election, finding inter alia, that The Great Atlantic & Pacific Tea Company, hereinafter called the Employer, had interfered with the election by its disparate application of a rule prohibiting organizational activities in its stores during working hours, and recommended that the election be set aside. On April 9, 1951, counsel for the Employer filed exceptions thereto. On May 21, 1951, the Board ordered a hearing with respect to "Objection 8" as numbered in the said Regional Director's report on objections to election, wherein both the Petitioner and the Intervenor allege that the Employer improperly interfered with organizational activities by re- 11 See Somerset Classics , Inc, 90 NLRB 1676, 1678. Cf. Lake' Superior District Power Company, 88 NLRB 1496. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fusing union adherents admittance to stores during working hours, while en- couraging and permitting antiunion employees to circulate freely in the stores during working hours and to solicit signatures on antinnion petitions Pursuant to the order directing hearing on objection, on June 5, 1951, the Regional Director for the Second Region issued his notice of hearing under Section 102.61 (b) of the Board's Rules and Regulations-Series 6, and after notice to the parties, a hearing was conducted before Milton O. Talent, the duly designated hearing officer, on June 19, 1951, at 2 Park Avenue, New York, New York. When it appeared that the Petitioner and Intervenor were not ready to immediately go forward with their cases, counsel for the Employer moved to dismiss the objection. The motion was denied by Hearing Officer Talent who thereafter allowed a motion made by counsel for the Employer for adjournment until July 16, 1951. By agreement of parties the hearing was further adjourned until July 24, 1951, at which time the hearing resumed pursuant to notice of further hearing issued by the undersigned who was duly designated to replace Milton O. Talent as hearing officer. On August 2, 1951, the Petitioner rested its case, reserving the right however, to produce two or three more witnesses (who were then unavailable) at the close of the Intervenor's case. At this point in the hearing the parties pre- sented a stipulation of facts with the understanding that all parties to the proceeding would then rest. Accordingly, no further evidence was adduced. The parties were given until August 24, 1951, for the filing of briefs. Briefs were filed by the Intervenor and the Employer, and have been duly considered by the hearing officer. The Intervenor, by letter dated August 23, 1951, informally requested oral argument. This request for oral argument before the hearing officer was denied. THE OBJECTIONS TO THE ELECTION 1. Background During the fall of 1949, the Petitioner commenced its organizational activities among employees of the Company, although it was not until January of 1950 that it launched a full-fledged campaign. There are approximately 180 branch stores within the appropriate unit under consideration' The procedure generally adopted by the Petitioner was for groups of organizers, implemented by union members from other chain stores, as well as employees of the Employer on their days off, or during their vaca- tions, to enter the various stores of the Employer for organizational purposes. These organizers passed out circulars to employees within the appropriate unit who were not engaged with customers. In the latter instances, the organizer called the employee's attention to the circular with a remark, "Good morning, C. I. 0.," or words to that effect. The organizers in groups of from three to five men also engaged employees in conversation? I It was stipulated that the unit herein concerned consists of all of the stores serviced by the Bronx warehouse and includes stoies in Manhattan, the Bronx, Westchester County, all of Putnam County, and part of Dutchess County, New York 2 As a result of the stipulation entered into by and between the parties, no evidence was presented by the Intervenor with respect to the frequency of visitations by its organizers. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 2. Events prior to August 24, 1950 301 From January 1950 until August 24, 1950, the evidence discloses that the Petitioner's organizers visited the stores of the Employer in a steady flow, on the average of once or twice a week ; that they handed 'out literature and talked to employees who were not busy for short periods of time. Based upon the testi- mony of business agents, William Coleman and Thomas Gloster , and Patrick Reape, business manager for the Petitioner , it is found that these organizers generally experienced but slight opposition from the store managers during this phase of the campaign . According to the credited testimony of Gloster, prior to August 24, 1950, the Petitioner 's organizers had "scarcely any" trouble dur- ing the visitations . Gloster, when warned by the store managers not to hold up the clerks , assured them that they would not hold anybody up inasmuch as the organizers all "came from the chains" themselves and "knew the setup." Patrick Reape described some 12 outstanding incidents wherein the manager of the store directed him to quit the premises , in some instances advising him that if he did not leave the store , police aid would be summoned. During the first day of his testimony Reape was vague about the dates of these incidents, placing them generally from sometime in the spring of 1950 through the summer of 1950. On the following day Reape contended that his memory had been refreshed to the extent that he could place some of the incidents with greater definiteness as being on or after August 24, 1950. Without placing any reliance upon Reape's testimony of the second day with relation to the dates involved, it is clear from the record as a whole, that prior to August 24, 1950, some store managers did attempt to prevent the organizers from freely campaigning in the stores on occasion , but that these attempts were the exceptions , rather than the general rule. The Employer has had a rule in effect against activities tending to disrupt the normal flow of business for some years . This rule was known to the Peti- tioner prior to the commencement of the organizational campaign involved herein. Patrick Reape, business manager for the Petitioner, admitted the cow- pany rule that the Petitioner "could not campaign" within the stores was known to him at the inception of the 1949-1950 campaign . It is found that throughout the campaign , representatives of the Petitioner ignored this policy and continu- ously entered the stores for organizational purposes. 3. Events on and after August 24, 1950 Counsel for the Employer directed a letter dated August 24 , 1950, to the coun- sel for the Petitioner , a copy thereof going to the Intervenor , calling attention to the rule against solicitation within the stores. In this letter ( C. I. 0. Exh. #1) Counsel for the Employer pointed out that organizers for the Unions had been entering the Employer's stores during business hours and were interfering with employees as well as customers ; that organizers had no legal right to enter stores for the purpose of organizing during business hours ; and that the com- pany rule, which had been in effect for many years , prohibited "activity of any kind tending to disrupt the normal business of the store ." Consistent with its established policy, the Unions were warned that the Employer ". . . will not tolerate any outside activity or solicitation of any kind on the store premises." The letter went on to advise that "Store Managers have been instructed to en- force this rule." 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Due to the nature of the Employer's business, the undersigned concludes and finds that this rule, impartially applied, is reasonably adapted to the operation of a retail grocery chain store and is not violative of the Act 3 The evidence discloses and the undersigned finds that after the letter of August 24, 1950, the store managers consistently and conscientiously endeavored to rigidly enforce the company rule, as distinguished from the negative, mild, sporadic, or isolated attempts at enforcement engaged in by some of the managers prior to August 24, 1950. Thomas Gloster, who impressed the undersigned as being a credible witness, testified that on August 24, 1950, while a group of Petitioner's organizers were assembled in a restaurant adjacent to one of the Employer's stores, District Supervisor McNally met them and stated, "I have to tell you fellows you are not allowed in any stores in my territory. I got a letter this morning. All the Managers in my territory got a letter advising us not to allow you people into the store." Thereafter, in making visits to various stores, Gloster was told substantially the same thing by'managers who requested and/or ordered him to keep out of the company stores. Generally, as soon as an organizer or organizers were observed by the store manager or assistant store manager, they would be ordered to leave the premises at once. According to the credible testimony of Thomas Gloster, "After the 24th of August, practically every store that I visited, that would be 50 or 60 a week, in each of those stores, either the Manager or the Assistant Manager, the minute they observed me, came up and advised me to leave the store." With the exception of one instance testified to by Patrick Reape, occurring in a store on 155th Street and Amsterdam Avenue, the Petitioner's witnesses admitted that they were successful in distributing "some" of their leaflets before being requested or ordered to leave the premises. In this instance it appears that the organizers were met by the store manager as they were about to enter the premises, as distinguished from the routine instances where organizers ffeely entered the store to be accosted upon observation by the manager or assistant manager after they had gained entrance to the store. Reape testified upon cross-examination that this same store was revisited at a later date and organizers were successful in distributing circulars there. Organizers also engaged clerks in conversation after August 24, 1950. The extent of the distribution of circulars, and conversations with the Employer's clerks varied with the speed in which the organizers were observed by representa- tives of the Employer and evicted from the particular store. Testimony by the three union organizers reveals that they not only ignored, but openly defied the company rule against solicitation within the stores by continuing to visit the stores for organizational purposes both before and after August 24, and up to the date of the election. Further, their testimony discloses that upon being observed by representatives of the Employer, requests to quit the premises were often met by arguments and open defiance on the part of the organizers. Thomas Gloster testified that some managers "just asked you (to leave). They weren't too insistent. Others were very insistent and, followed you around if you didn't leave immediately . . . With reference to an incident occurring in one of the Employer's stores, Patrick Reape testified that before he had completed distribution of his circulars, 3 Marshall Field & Co., 34 NLRB 11; Goldblatt Bros., Inc., 77 NLRB 1262; Meier & Frank eo., Inc, 89 NLRB 1016. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 303 "The Manager came out after the Assistant Manager had stopped me from distributing circulars and told me I had to get out, that he would call the Police Department and have us thrown out." He further testified that "I gave him an argument. I argued with him over the policy of picking up circulars in the store which we were distributing. I said I felt he didn't have any right, that he was using dictatorial policy by picking up the circulars and keeping them away from the employees, which was information they had a right to have." Reape also testified he returned to the same store and distributed circulars there. On another occasion when Reape was told by a manager that he had no right to be in the store acid that the manager had been instructed to keep him out of the store, Reape replied, "I told him that I felt the employees in that store, that many of them belonged to the Union and they had a right to know what was going on and that they should know the questions and the problems that confronted them in the coming election " Reape testified that he left the store only after the manager forced the issue. William Coleman testified to an incident arising in one of the Employer's stores after August 24, 1950 Having been ordered to leave the store by the assistant manager and subsequently the manager, an argument ensued during which time a customer of the Employer entered into the conversation. Several em- ployees of that particular store were also present in the group Coleman testi- fied, "They refused to let us hand out any more literature. They tried to show us out of the store and I refused to leave, so he (the manager) went to call the cops. So we stayed there for, I would say ten or fifteen minutes, to see if the Police Department would arrive, and nobody came along after ten or fifteen minutes and we left the store at that time " On cross-examination Coleman testified that lie refused to leave the store when ordered to do so by a manager Coleman told the manager : " . . I would not leave the store ; I was there for a purpose-to hand out those leaflets, and I was going to insist on giving them to the employees." In another instance Coleman testified that the manager of one of the stores "said he had orders from the Company that we do not enter the stores any more for the purpose of organizing the employees. However, we were successful at that time in handing out maybe a half-dozen leaflets." Coleman further stated that his group visited about 75 stores a week. Buddy Manning, a former employee of the Employer, testified that on August 24, 1950, he was told by his manager that if he distributed literature on his days off he would be discharged. Any implication that Manning was told he would be discharged for his union activities on his days off, without limitation, is not credited by the undersigned. On cross-examination Manning admitted that lie had seen the Employer's letter of August 24 and that the letter said exactly what the manager had told him. It is noted that the letter of August 24, 1950, informed the Unions that employees going into stores with union literature on their off days would be subject to discharge. Apart from the afore-mentioned general situation occurring after August 24, 1950, additional specific instances were testified to involving clashes between the Employer's supervisory personnel and the organizers. These clashes re- sulted in heated arguments, bickering, and mutual recriminations between the Employer's representatives who sought to rigidly enforce the company rule, and organizers who adamantly contested the right of the Employer to curtail the dissemination of union literature within the stores . It would serve no purpose to further enlarge upon these incidents in this report . Such incidents, some 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which clearly occurred after August 24,1 1950, serve to illustrate, however, the extremes to which the Employer's representatives went to enforce the rule, and the extent to which the Unions opposed these efforts. In concluding that some managers went to great extremes in their efforts to evict union organizers, including warnings that police aid would be enlisted, as well as one incident where a manager threatened an organizer with a knife, the undersigned does not mean to infer nor does he find that the Employer's representatives engaged in illegal threats or other proscribed activities in their attempts to enforce the com- pany rule in accordance with their instructions.' The undersigned also credits the testimony of Lorraine Gionotti, a former employee, that the manager of her store picked up union literature and tore it up in the presence of the employees, making derogatory remarks about the Union at the time. This occurred, according to her evidence, between April and August 1950. Thus, from August 24 until September 27, 1950, the date of the representation election, the Employer's representatives rigidly opposed the distribution of lit- erature and campaigning within the 'stores, while the organizers continued to visit each of the stores on the average of once or twice a week in disregard of the company rule and successfully distributed some literature and engaged in some conversation with the clerks they sought to represent, yet not to the ex- tent that they enjoyed prior to August 24, and generally falling short of the full coverage of the employees. The average number of employees in each store approximates 20, depending upon the size of the store. Some stores employ more than 20 and others have less. As a result of the general pattern of conduct engaged in by the Petitioner and by the representatives of the Employer between August 24 and September 27, 1950, the undersigned infers and finds that the employees of each store could not help but be aware of the above-described activities engaged in by the organizers, and the attempts made by the Employer to prevent any solicitation or campaigning by the Petitioner on company time and premises during this period. This inference is further supported by the credible evidence of Petitioner's witnesses who testified that company employees gathered around the manager and assistant manager when arguments arose between the managers and organiz- ers in the stores over the enforcement of the company rule. 4. The antiunion petition Counsel for the Petitioner read a stipulation, entered into by and between the parties, into the record. Board Counsel did not join in the stipulation but expressed no objection to it. In accordance with agreement of counsel that upon acceptance of the stipulation all parties would rest, no further evidence was taken and all parties thereupon rested. The stipulation reads-as follows: The parties stipulate that petitions now in evidence as CIO Exhibits, and similar petitions, were circulated and distributed throughout a substantial number of stores on September 21, 22, 23, 25 and 26, 1950, and that these peti- tions were circulated, distributed, and signed by employees in the stores during Company working hours and at times during which the employees were engaged in their regular work, and that during the aforesaid cir- culation, distribution, and signing, the persons so engaged, when observed in some cases by the Manager or Assistant Manager, were permitted to do so without interference by either the Manager or the Assistant Manager. 4 See administrative ruling of NLRB General Counsel Case No. 161 (August 17, 1951). THE GREAT ATLANTIC & PACIFIC TEA COMPANY 305 The parties further stipulate that at the instructions of one of the Dis- trict Supervisors to whose attention the circulation of the aforesaid peti- tions was called, such petitions were destroyed by the Manager or Assistant Manager in eleven of the stores in front of the employees who had signed them. There is no evidence contained in the record by way of testimony or stipula- tion, indicating that Employer prepared, published, or circulated the above-re- ferred-to petitions. The undersigned finds, therefore, that the Employer did not prepare, publish, or circulate said petitions. The introductory paragraph of one of the petitions above referred to (CIO Exhibit #2) reads as follows: We, the undersigned, believe that at present we have the best working conditions in the retail food industry, and it's our belief we will continue to enjoy these benefits and that our employer will continue to improve our working conditions voluntarily without the aid of any outside organization, union or otherwise. We have signed this statement of our own free will without any threat or promises. The other petitions were worded to the same effect. The evidence discloses that the petitions were distributed by nonsupervisory employees with the above-quoted introductory paragraphs then being in hand- written form. In accordance with the stipulated facts these petitions, as well as similar petitions, were circulated, distributed, and signed by employees in a substantial number of the stores during company working hours at a time during which the employees were engaged in their regular work. In some instances they were observed by the manager or assistant managers and were permitted to sign, distribute, and circulate the petitions without any interference by either the manager or the assistant manager. After the signatures were affixed, the petitions were mimeographed, and' copies bearing the name of the signator, his or her capacity, and clock number, were circulated and distributed among the employees of the various stores. According to the testimony of one of the Petitioner's witnesses, Lorraine Gianotti, the signing of the hand-written petition consumed a period of from 40 to 45 minutes in the store in which she was employed. She testified that she received the petition in the company of some four or five fellow employees, and that it required 15 minutes to circulate the petition among this group. The witness explained that "you always talk when you have an opportunity, perhaps 15 minutes." On cross-examination the witness admitted that the employee who solicited the signatures was not in her sight at all times, but that she estimated it took 40 to 45 minutes to circulate the petition. She admitted that the period may have been more or may have been less than this estimated time. At any rate, the undersigned finds that the circulation and signing of the petition took from 15 to 40 minutes in the one instance testified to in this connection. According to her testimony which is credited in this regard by the undersigned, the hand-written petition was brought into the store in which Gionotti worked by an outsider but circulated for signatures by a nonsupervisory employee of her store. With regard to the distribution of the mimeographed copies of the signed petitions, Petitioner's witness, Walter Dorritie, testified that it took about 5 to 6 minutes to distribute it among the employees in the store in which he was employed. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin Garvey credibly testified that it required 2 or 3 minutes to distribute the mimeographed copies to himself and 4 of his fellow employees. The distribution was made by the head cashier who had from 20 to 30 copies in her possession at the time of the distribution to Garvey. After making distri- bution to Garvey and the 4 employees who were then engaged in checking out packages for customers, or in attendance at the check-out counter, she walked towards the back of the store with the remaining mimeographed petitions in her hand. At the time that she made distribution to Garvey and his 4 fellow workers there were several customers at each check-out booth. Walter Dorritie credibly testified that the distribution of the mimeographed copies of the antiunion petitions took about 5 or 6 minutes in his store, a store in which about 30 employees were employed. The Employer denies knowledge of the contents of the antiunion petitions. The undersigned finds, contrary to this contention, that the contents or at the very least, the nature of the petitions were known to the Employer. According to the stipulated facts, one district supervisor caused such similar petitions to be destroyed by the managers of 11 stores within his district. He would not have taken this action unless he was aware of the petition's contents. His knowledge is imputed to the Employer. It was also stipulated that the employees engaged in the circulation, distribution, and signing of the petitions, and when observed in some cases by managers and assistant managers were permitted to do so without interference. Under these circumstances it is illogical to assume that representatives of the Employer observed this activity in the stores during working hours, at the climax of the campaign, within the 5-day period preceding the election, without inquiring into the nature, if not the contents, of the petitions. Such an assumption would be unrealistic in the light of the instructions'received by the managers as expressed in the Employer's letter of August 24, 1950 (CIO Exh. #1) and the small sizes and physical layouts of the individual stores.` The undersigned infers and finds that the Employer bad knowledge of the nature of the petitions being circulated within the stores on September 22, 23, 24, 25, and 26. 5. Other issues raised by the Petitioner Reference is made to CIO Exhibit #6, a question and answer document directed to all supervisors, managers, and assistant managers, and passed around among employees upon instructions of the managers sometime between September 6 and September 27, 1950. The data contained therein purported to be a response to questions put to management by employees throughout the voting unit. This document was distributed on company time and premises. The undersigned does not consider this document to be an antiunion petition within the scope of "Objection 8" and does not rely thereon as a basis for his ultimate recommendation to the Board. The Employer warned the Unions in its letter of August 24, 1950, that employees who campaigned in violation of the no-solicitation rule would be sub- ject to discharge. Petitioner's witness, William Ross, credibly testified that he had been threatened with discharge if he continued his organizational activi- ties within the stores on his days off. The undersigned finds no act of interference in this connection. However, the above circumstances do serve to illustrate the extent to which the Employer 6 Jasper National Mattress Co., 89 NLRB 75 at p. 92; Central Wisconsin Motor Trans- port Company, 89 NLRB 1204 at 1208, 1209; N. L. R. B. v. Abbott Worsted Mills, Inc., 127 F. 2d 438 (C A. 1). THE GREAT ATLANTIC & PACIFIC TEA COMPANY 307 went in its attempt to apply the rule against solicitation within the stores, insofar as the Unions were concerned. 6. Contentions of the parties a. The Employer's position The Employer contends that the election can only be set aside if the facts indicate that the employees voted with only one-sided information and without knowledge of the arguments , literature, and propaganda of the Unions involved in the election and thus did not enjoy the free exercise of their ballot . To deter- mine these facts according to the Employer , on one side must be weighed the facts regarding the Unions ' organizational efforts and success in circulating and distributing campaign literature to employees in the Employer 's stores through- out the 10 months preceding the election , as against the facts regarding the circularizing by certain rank-and -file employees of the so-called antiunion petition for a period of 5 days before the election. The undersigned does not agree that this test is the criteria governing the issue involved . Even assuming that the employees did have knowledge of the arguments and views of the respective Unions, the fact remains that for the cli- mactic period of 5 days prior to the election , the Employer favored one faction over the others by permitting the antiunion employees freedom of distribution and circulation on company premises during working hours in sharp contrast to its rigorous and open opposition to the Unions ' attempt to campaign in the stores. The company rule, as manifested by its letter of August 24, 1950, pro- hibited " ... any outside activity or solicitation of any kind on the store premises. The test in not whether the employees were in possession of one-sided informa- tion but " . . . whether the conduct charged was reasonably calculated to inter- fere with the employees' free choice." ° b. The Unions' position The Intervenor takes the position that the 'petitions were signed by employees under such circumstances as would tend to make the employees believe that the petition was being circulated by the Employer , and that absence of the employees' signature on the petition would place the employees in fear as to the possible continuation of employment. Certain of the antiunion petitions circulated requested the employees to sign them and thereby give a vote of confidence to the Employer. The mimeographed copies of the petitions which were distributed throughout a substantial number of the stores could, under the circumstances, become a permanent record tantamount to the polling of employees, for the Employer's file. Without relying in toto upon the contentions of the Intervenor as set forth above, the undersigned concludes that the inconsistent application of the com- pany rule, occurring as it did during the 5 days preceding the election under the circumstances as outlined in this report , did tend to raise varied and confusing questions in the minds of the employees , which in turn tended to create an atmosphere incompatible with freedom of choice by the employees. The disparate application of its rule is found to be coercive in character' and so related to the election in time as to have a probable effect upon the employees' action at the polls. ° Lane Drag Stores, Inc., 88 NLRB 584 'Macon Textiles, Inc., 80 NLRB 1525 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. Alleged act of disavowal by a district supervisor It was stipulated at the hearing that one district supervisor caused the man- agers of 11 out of approximately 180 stores to destroy the antiunion petitions in the presence of the employees. It is noted that the branches extend from lower Manhattan up through the Bronx as far as outlying towns and cities such as Beacon, Tuckahoe, and Ossining, New York. There is no evidence whatsoever contained in the record which would. warrant the undersigned in drawing an inference that the action by the district supervisor taken in the 11 stores in his district would be com- municated to the employees of the Employer's remaining 169 stores. Thus, the alleged act of disavowal in the 11 stores was executed on an inter- mediate level only and does not serve to purge the Employer of any objectionable acts of omission in which it might have engaged insofar as the employees of the other stores are concerned. 8. Findings of fact and conclusions (a) From August 24, 1950, until September 27, 1950, the Employer instructed its managers to prevent union organization of any kind within the stores in support of its no-solicitation rule. The managers of the 180 stores attempted to enforce this rule in the presence and to the knowledge of its employees and were partially successful in so doing. (b) During this period, the representatives of the Unions continued to enter the stores for organizational purposes despite their knowledge of the company rule against solicitation and were consistently successful in eftecting at least partial distribution of union literature and engaging in limited conversations with the employees whom they sought to represent, within the stores. (c) From September 21 to September 26 antiunion petitions were circulated by nonsupervisory employees during working hours in a substantial number of stores (d) In some cases, the manager or assistant manager observed particular employees engaging in such activity, and did not interfere (e) Said managers had knowledge of the nature of the document or documents being signed and circulated. (f) One district supervisor learned of the circularization of the antiunion petitions in his district and caused the manager or assistant manager to destroy the petitions in the presence of employees who had signed them in the 11 stores in his district. This action, executed an an intermediate level rather than the level of management having jurisdiction and control over the employees of all of the stores included in the geographical unit, does not constitute an act of dis- avowal as to all of the employees in the appropriate unit. It is concluded that the rigid attempt to enforce its no-solicitation rule against any outside activity, or solicitation of any kind on the store premises, as well as its objection against activity of any kind tending to disrupt the normal business of the stores where the Unions were concerned, while permitting the circulation, signing, and distribution of the antiunion petitions during working hours within the stores, without interference, constitutes disparate application of the aforesaid rule. It is further found that the disparate application of the company rule, and the marked reversal of the Employer's policy where the antiunion faction was concerned, occurring during the 5 days preceding the representation election, viewed in its sharp contrast to the vigorous- attempt to enforce this policy from August 24, 1950, to the date of the election where the Intervenor and the Peti- tioner were concerned and based upon the entire record of the case, created an FOREST LAWN MEMORIAL-PARK ASSOCIATION, INC. 309 atmosphere tending to impair the untrammeled and uninhibited, choice by employees under the statutory conditions required by the Act. It is the function of the Board to provide a forum under which an election can be conducted under conditions as ideal as possible. It is concluded that the disparate application of the rule under all of the circumstances involved herein rendered it impossible for the Board to fulfill its functions in accordance with the strict standards designed to assure that the participating employees have the opportunity to register their free choice for or against a bargaining representative. Accordingly, it is recommended that the election conducted on September 27, 1950, be set aside and a new election conducted. FOREST LAWN MEMORIAL-PARK ASSOCIATION, INC. and MORTUARY EMPLOYEES UNION7 LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, A. F. OF L. Case No. 21-CA-1077. December 107 1951 Decision and Order On August 15, 1951, Trial Examiner Bruce Hunt 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 copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The request of the Respondent for oral argument is hereby denied, as the record, including the brief and exceptions, adequately presents the issues and positions of the parties. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications : Like the Trial Examiner, we find that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction in this case. In computing the dollar volume of the Employer's out-of-State shipments during the 12-month period ending April 30, 1951, the Trial Examiner properly included the value of embalming and other services rendered in each case within the State prior to shipment, I Pursuant to Section 3 (,p) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Reynolds and Styles], 97 NLRB No. 62. 984209-52-vol 97-21