The Great Atlantic & Pacific Tea Co.

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