The Great Atlantic & Pacific Tea Co.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY 623 Accordingly we shall direct an election in a voting group consisting of all technicians A, B, and C employed in the Employer's generating stations at Dresser, Edwardsport, Noblesville, and Wabash River, in order to accord these employees an opportunity to express their de- sires as to whether they wish to be added to the established unit now represented by the IBEW. If these employees select the IBEW as their bargaining agent, they will be taken to have indicated a desire to be included in the existing unit, and the IBEW may bargain for such employees as part of that unit. If a majority of them vote against the IBEW they will be taken to have indicated their desire to remain outside the existing unit, and the Regional Director will issue a certification of results of election to that effect. [The Board dismissed the petitions in Cases Nos. 35-RC-1015, 35-RC-1016, and 35-RC-1021.] [Text of Direction of Election omitted from publication.] THE GREAT ATLANTIC & PACIFIC TEA COMPANY and RETAIL FOOD CLERKS UNION, LOCAL 1500 RCIA, AFL, PETITIONER and FooD HANDLERS' LOCALS 400 & 489 AND AMALGAMATED MEAT CUTTERS & RETAIL FOOD STORE EMPLOYEES LOCAL 342, AFFIL. AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF N. A., AFL. Cases Nos. 2-RC-6898,2-RC-6899, and 2-RC-6900. February 15,1955 Decision, Order, and Direction of Election Pursuant to a stipulation for certification upon consent election executed August 3, 1954, an election by secret ballot was conducted on September 15, 1954, under the direction and supervision of the Regional Director for the Second Region among employees in the stip- ulated unit. The tally of ballots furnished the parties after the elec- tion shows the following : Approximate number of eligible employees------------------------ 6, 500 Void ballots--------------------------------------------------- 6 Votes cast for Retail Clerks Union, Local 1500, RCIA-AFL--------- 1,942 Votes cast for Amalgamated Food Handlers Union, Locals 342, 400, 489, AFL -------------------------------------------------- 2,409 Votes against participating labor organizations ---------------------- 131 Valid votes counted-------------------------------------------- 4,482 Challenged ballots- --------------------------------------------- 210 Valid votes counted plus challenged ballots------------------------ 4, 692 On September 22, 1954, the Petitioner filed timely objections to con- duct affecting the results of the election. Pursuant to Board Rules and Regulations, the Regional Director conducted an investigation of the objections, and on December 3, 1954, issued and duly served upon the parties his report on objections recommending that the objections 111 NLRB No. 106. '624 DECISIONS-OF NATIONAL LABOR 'RELATIONS BOARD be dismissed and that the Intervenors be certified. - The Petitioner filed timely exceptions to the report on objections, the Intervenors filed reply to Petitioner's exceptions, and the Employer filed a statement in support of the Regional Director's report. The Board has considered the report on objections, the exceptions, the Intervenor's reply, the Employer's statement, and the entire record in this case, and finds : - 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All store grocery department employees in the Employer's stores ii Kings, Queens, Bronx, New York, Nassau, Suffolk, Westchester, Putnam, and Dutchess Counties, served by the Employer's Bronx, Brooklyn, and Garden City ware- houses, excluding store managers, assistant store managers, meat de- partment employees, employees working less than 20 hours per week, guards, watchmen, professional employees, and supervisors as defined in the Act. 5. The Regional Director recommended that the four objections filed by the Petitioner be dismissed. For the reasons stated in the re- port on objections, we adopt the findings and recommendations of the Regional Director as to the objections 1, 3, and 4, and accordingly dis- miss these objections. However, we do not agree with the Regional Director's ultimate conclusion and his recommendation as to objection 2, the merits of which are discussed below. There were no exceptions filed to the pertinent facts found by the Regional Director : On the day of the election, before the arrival of the Board traveling election team, District Supervisor Harris ad- dressed groups of assembled employees during their working hours on company premises. He spoke in at least 9 instances at 8 different stores to groups ranging from 3 to 10 employees. From 60 to 80 em- ployees were thus addressed.' The subject of the speeches was the Board election to be held that day. In all instances but one, Harris urged the employees to vote for the Intervenors; and in that context he told 5 employee groups at 5 stores that there would be a pay raise. Harris' district supervision embraces 10 stores employing 162 em- ployees. In the 8 stores at which Harris delivered his speeches, there 'The Regional Director found that "Harris talked to between 60 and 80 employees on the day of the election ," although he cited specific instances involving only 46 employees- THE GREAT ATLANTIC &,PACIFIC'TEA COMPANY 625 were employed 138-employees eligible to vote in the election. Involved in the election were 6,373 employees at 396 stores of the Employer, under 38 district supervisors. The Regional Director found that these speeches by Harris were "planned and systematic and, regardless of the content of his remarks, fell squarely within the Peerless Plywood rule."' However, the Re- gional Director ruled in favor of the Employer's contention that the election should not be set aside, because Harris' speeches were "de minimis or isolated in the context of the entire election." He based his conclusion upon the reasoning that "where the total number of employees directly affected by the Peerless Plywood conduct consti- tute but a small percentage of the eligible employees, no warrant exists for setting aside the election." We do not agree with the Regional Director's de minimis formula, nor with his conclusion that an exception to the Peerless Plywood rule may be made in the circumstances of this case. The rule in Peerless Plywood was stated as follows : Accordingly, we now establish an election rule which will be ap- plied in all election cases. This rule shall be that employers and unions alike will be prohibited from making election speeches on company time to massed assemblies of employees within twenty-four hours before the scheduled time for conducting an election. Violation of this rule will cause the election to be set aside whenever valid objections are filed. The essential position of the Employer and the Regional Director is that the Board, in each case, should measure the effect of Peerless Plywood violations to determine the degree of influence upon the eli- gible employees in the unit as a whole. This view, in our opinion, ignores both the purpose and the concept underlying the Peerless Ply- wood rule, which is to provide a preliminary condition and safeguard so that the election may be held in an immediate atmosphere conducive to a free expression by the employees. As the Board stated in the Peerless Plywood case : This rule is closely akin to, and no more than an extension of, our long-standing rule prohibiting electioneering by either party at or near the polling place. We have previously prescribed space limitations, now we prescribe time limitations as well. This rule arises from the same concept and has the same purpose of keeping our elections free. Violation of the Peerless Plywood rule, as in the case of improper electioneering,' constitutes ground for setting aside an election, en- * Peerless Plywood Company, 107 NLRB 427. s Continental Can Co., 80 NLRB 785. See also, e. g., Higgins, Inc., 106 NLRB 845 (use of sound trucks outside polling area) ; cf. Allied Electric Products, Inc., 109 NLRB 1270 ( use for preelection propaganda purposes of altered facsimiles of Board official ballot). 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tirely apart from the considerations which accompany findings of spe- cific interferences with an election 4 It is sufficient that Peerless Ply, wood speeches tend to prevent a free election; the actual effect upon the voters in any case-even if it could be measured-is not material .5 Nor is it necessary that such conduct affect enough employees to change the election result.' It may be noted, however, that the num- ber of eligible voters in the 8 stores in which speeches were made was sufficient to have affected the election result. Our dissenting colleague has apparently overlooked the critical por- tion of the Peerless Plywood decision, quoted immediately above, as well as other portions of that case, in all of which the Board made it clear that it was laying down a ground rule of general applicability for the conduct of elections. The present position of our colleague, we believe, is incompatible with what was actually said and held in Peerless Plywood, and in the later cases which applied the rule. There is no room for equivocation, for example, in the statement in Peer- less Plywood that-"Violation of this rule will cause the election to be set aside whenever valid objections are filed." Our colleague pro- poses that the Peerless Plywood test-"should be whether, under the circumstances of the particular case ... the conduct complained of was reasonably calculated to interfere with the election." [Emphasis sup- plied.] Such a test does not comport with the concept of a Board electioneering rule; and it would, in our judgment, severely adulterate the Peerless Plywood rule, as it has heretofore been defined and ap- plied. We see no middle ground. Contrary to our colleague in his dissent, we find nothing in the thor- oughly considered and carefully expressed Peerless Plywood decision which requires under the rule that the type of preelection speech pro- scribed be "more or less formalized." Nor do the facts in this case warrant the characterization of Harris as a "minor" official in relation to the employees to whom he spoke or of Harris' speeches as "informal." It is plainly evident that his speeches were, as found by the Regional Director, "planned and systematic," and that they conveyed substan- tially the same message to all the employees addressed, timed, and cal- culated to influence their votes in favor of the Intervenors. Nor would we construe the term "massed assemblies" in the statement of the Peer- less Plywood rule as necessarily limited to all or most of the unit em- ployees, or to any certain proportion of them, or to an assemblage of such employees whose votes would affect the outcome of the election. 4 The Liberal Market, Inc., 108 NLRB 1481. Is thus to be distinguished . That case in- volved no allegation of the breach of a Board election rule, as here. 5 Peerless Plywood Company, 107 NLRB 427, which states in part : ". . . the delivery of such speeches on the eve of the election tend to destroy freedom of choice and establish an atmosphere in which a free election cannot be held." 9 See New York Shipping Association and Its Members, 108 NLRB 135 (hearing officer's report) ; Repeal Brass Manufacturing Company, 109 NLRB 4. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 627 Bearing in mind particularly the type of chain retail business here involved, we consider the term "massed assemblies" as properly em- bracing each of the 9 groups of 3 to 10 employees at 8 separate stores addressed by Harris, equally as it would all these employees had they been addressed by Harris in a single group.? Our dissenting col- league's statement that our decision implies that Peerless Plywood is violated if a foreman or union steward in a plant speaks to 1 or 2 em- ployees in the plant within 24 hours of the election, is patently farfetched. Like the Regional Director, we reject as without merit the Em- ployer's argument that the effect of the Peerless Plywood speeches herein was neutralized by its distribution to employees before the elec- tion of a neutrality notice, and its instruction to supervisors to comply with the Employer's policy stated therein. The neutrality notice did not contain any language to cover Peerless Plywood speeches, and would not in any event serve to eradicate the nine instances of violation by a regional supervisor of this well-established election rule. Accordingly, as we find merit in Petitioner's objection 2, we shall set aside the election and direct the holding of a new election .8 [The Board set aside the election.] [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER, dissenting : The majority members are setting aside an election conducted, after a great deal of expense and effort, among approximately 6,500 employ- ees in almost 400 separate stores scattered over many square miles, because one of the Employer's minor officials, contrary to instructions publicized to employees, spoke about the election to employees at 8 of the stores having 138 employees a short time before the employees in these stores were scheduled to vote. The Intervenor received a plu- rality of almost 500 votes. The 100 votes cast by the employees in the 8 stores affected were not sufficient in numbers to affect the outcome of the election. Nevertheless, contrary to the recommendation of the Regional Director, the majority is nullifying the election results and directing a new election. I disagree. There are two issues posed to the Board: (1) Whether the talks by District Supervisor Harris to small groups of employees at 8 of the 10 stores within his jurisdiction violated the Peerless Plywood rule; and (2) whether, assuming that they did violate that rule, the viola- 7 See, e. g., The American Thermos Bottle Company, 107 NLRB 1570; Ottenheimer Bros. Mfg. Co., Inc., 109 NLRB 183. 8 Although Member Murdock dissented from the adoption of the Peerless Plywood rule, so long as it remains Board law he agrees it is properly applied to set aside this election without regard to other possible approaches. 344056-55-vol. 111-41 X628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions had sufficient possible impact upon the election to justify setting it aside. Harris spoke about the election to approximately 50 of the 6,500 employees in the unit in groups which varied in size from 3 to 10 employees. The majority says that, regardless of content, these talks violated the Peerless Plywood rule because they were made on company time within 24 hours of the election. The majority is placing a con- struction upon the Peerless Plywood rule which I, for one, did not envisage when the rule was enunciated. In the Peerless Plywood case, the Board said that employers and labor organizations are "prohibited from making election speeches on company time to massed assemblies of employees within twenty-four hours before the scheduled time for conducting an election," because last-minute speeches "delivered to massed assemblies of employees on company time have an unwholesome and unsettling effect and tend to interfere with that sober and thoughtful choice which a free election is designed to reflect. . . . Such a speech, because of its timing, tends to create a mass psychology which overrides arguments made through other campaign media. . . ." [Emphasis supplied.] As the above quotation makes clear what the Board was seeking to strike down in the Peerless Plywood case was the more or less formalized address to massed audiences, because talks made to such groups generate a mass reaction which is hostile to individual thinking and judgment. The 24-hour rule was intended to allow time for the dissipation of this undesirable effect. But informal talks to individual employees or to small groups of employees by a minor supervisor, as in this case, do not create a mass psychology in the listeners. There is no need there- fore for prescribing a 24-hour period for the elimination of a non- existent effect. The Peerless Plywood rule was never intended to authorize the setting aside of an election because a foreman or a union steward may have made noncoercive statements about the election to 1 or 2 employees at their places of employment during the day before the election. Yet, that appears to be the implication of the majority's holding in this case. I recognize, of course, that questions of more or less difficulty will arise in determining whether particular discussions with employees take on the character of speeches to massed audiences or whether they partake more of informal communications between supervisors and employees, which I had always assumed, and indeed the Board has long held, to be privileged so long as they were noncoercive. The task of drawing the line between that which is prohibited by Peerless Ply- wood and that which is not will not always be easy, and some of those difficulties are present in this case. Nevertheless, I do not think that the answer is to be found in extending the rule to prohibit all com- munication between an employer or a union and the employees on THE GREAT ATLANTIC & PACIFIC TEA COMPANY 629 company time during the 24-hour period. This is a much harsher re- sult than ever flowed from the Bonwit Teller rule. Although the Regional Director found that Supervisor Harris' talks to employees violated the Peerless Plywood rule, he nevertheless did not recommend that the election be set aside, because he felt that the violations were "isolated in the context of the entire election." It is easy to perceive why the Regional Director reached this conclusion. The employees in each of the approximately 400 stores voted on the same day. Harris' talks took place on the day of the election and shortly before the employees at the stores affected were scheduled to vote. Because of the separation of the stores and the short period in which the election was held, the inference appears legitimate that em- ployees in the stores outside of stores immediately affected were unaware of Harris' talks. Certainly that seems to have been the con- clusion of the Regional Director who supervised the election and made an exhaustive investigation of the objections. Even if we should assume that the Employer haft committed a tech- nical violation of the Peerless Plywood rule, the effect given to that vio- lation by the majority appears to me unduly harsh and unrealistic. As I understand their position, any violation of that rule, no matter how minor, will automatically call for setting aside an election without regard to the possible impact of the violation upon the election. I had thought that, in the Liberal Market case,' the Board had decided that for the future it would make only realistic appraisals of the effect of alleged objectionable conduct upon an election and not "lightly set aside . . . the results of a secret ballot, conducted under Government sponsorship and with all the safeguards which have developed throughout the years. . . ." I agree that the Board,cannot be expected to measure the precise effect of objectionable conduct in deciding whether to set aside an election. The test should be whether, under the circumstances of the particular case-and not in a vacuum or in the abstract-the conduct complained of was reasonably calculated to interfere with the election under investigation. In this case, because of the circumstances, the objectionable conduct cannot be said to have had the probable effect of interfering with the election. Obviously this was the conclusion reached by the Regional Director on the basis of first-hand knowledge gained in supervising the election and in in- vestigating the objections. I agree with him and therefore would, in accordance with his recommendation, overrule the objections and cer- tify the winning union as bargaining representative. MEMBER PETERSON took no part in the consideration of the above Decision, Order, and Direction of Election. 9 The Ltiberai Market, Inc., 108 NLRB 1481.