The Great Atlantic & Pacific Tea Co.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY 765 The Great Atlantic & Pacific Tea Company and Retail Wholesale and Department Store Union, AFL-CIO, Petitioner. Case No. 11-RC-985. May 2,1958 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election 1 of the Board, dated August 28, 1957, an election by secret ballot was conducted on September 19, 1957, under the direction and supervision of the Re- gional Director for the Eleventh Region among the employees in the appropriate unit. Following the election the Regional Director fur- nished the parties a tally of ballots which showed that of approxi- inately 20 eligible voters, 6 cast valid ballots for the Petitioner, 10 cast ballots against any labor organization, and 6 cast challenged ballots. No ballots were cast for the Intervenor.' The challenged ballots were sufficient to affect the results of the election. On September 23, 1957, the Petitioner filed timely objections to the election. In accordance with the Rules and Regulations of the Board the Regional Director conducted an investigation of the objections and on January 22, 1958, issued and served on the parties his report on objections and challenges in which he found that the Petitioner's objections raised substantial and material issues with respect to the election and recommended that the election be set aside. He also rec- ommended that in the event the Board decides not to set aside the election all six challenges should be overruled and the challenged ballots counted. On January 27, 1958, the Employer timely filed ex- ceptions to the Regional Director's report. 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, Bean, and Fanning]. Upon the entire record in the case, the Board finds : The Challenges At the election the Board agent challenged ballots of employees James Meggs and Sonny Turner on the ground that their names did not appear on the eligibility list. The Regional Director's investiga- tion revealed that both were part-time employees who worked for the Employer immediately before and on the day of the election. However, each of these employees had not worked for the Employer for each of the 18 weeks preceding the election. The Employer con- telided that under the terms of a stipulation entered into at the hear- ' Not published. 2 Retail Clerks International Association, AFL-CIO. 120 NLRB No. 100. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing these employees were ineligible to vote. The Petitioner contends that they had a reasonable expectation of continued employment and were therefore eligible. The Regional Director found that under the Board's Decision these employees were eligible, and Employer excepts to this finding. At the hearing the parties stipulated that all part- time employees except those working at least some of the time in each of the 18 weeks preceding the notice of election were ineligible to vote in the election and also stipulated to exclude them from the unit. In its Decision the Board construed this as a stipulation to include all regular part- time employees who have a reasonable expectancy of continued em- ployment with the Employer. Such a construction was necessary as a description of the appropriate bargaining unit could not be framed in the terms of the stipulation at the hearing. However, the Board did not thereby intend to reject the stipulation made at the hearing as a means of identifying regular part-time employees employed at the time of the election. Although it is Board policy to grant all persons including in a unit the privilege of voting,' it will nonethe- less accept stipulations of parties as to the identity of regular part- time employees,' at least where there is no evidence to indicate the unreasonableness of such stipulation. Accordingly, as there is no such evidence here, we shall follow the stipulation in determining eligibility and find that Meggs and Turner were not eligible to vote in the election. We' therefore sustain the challenges to their ballots. Although the Regional Director recommended overruling the 4 other challenges, and no exceptions were filed to this recommendation, we find it unnecessary to open these ballots as the 4 remaining ballots are insufficient to affect the results' of the election. Accordingly, we shall consider the Petitioner's objections. The Objections The Petitioner's fourth objection pertains to the arrest of Irving Lebold, the Petitioner's principal organizer, just prior to the election. The facts surrounding the incident are undisputed. By arrange- ment of the Board agent, a meeting was scheduled at the Employer's Ravinel Street store polling place at 3 p. in. on the day of election for .the purpose of inspecting the Employer's eligibility list. The election was scheduled to be held at that store from 3: 30 p. in. to 3:45 p. in. and at the West Evans Street store from 4 p. m. to 4: 15 p. in. Lebold entered the Ravinel Street store by the front entrance at about 3 p. in. Certain officials of the Employer were also present. A few minutes later two deputy sheriffs, with sidearms 5 Sears Roebuck & Company, 112 NLRB 559 , Dependable `Parts, Inc, 112 NLRB 581. 4 Crown Druq Company, 113 NLRB 117 THE. GREAT ATLANTIC & PACIFIC TEA COMPANY 767 and badges, entered the store and spoke briefly to Lebold. " They, left the store and returned 10 minutes later with a warrant for Lebold's arrest. He was told he',was under arrest for violation of a city ordinance and was taken out to a waiting patrol car by the two deputies. Lebold was released on bail at about 4 p. in. and 'the' indict- ment was subsequently quashed. At the time of Lebold's arrest a large number of eligible voters were working in the store. The statute which Lebold allegedly, violated required inter 47ia; the obtaining of a permit before soliciting memberships in, Fl'o'rence County for any union which requires payment of dus°s' or m'ak6s assessments against its members. However, there`is'no evi'derl69#tll,f the employees had any knowledge of the nature of Lebold's`alleged violation. There is also no evidence that the Employer was=r6spthfsible for procuring Lebold's arrest. The Regional Director found that Lebold's arrest destroyed the laboratory conditions in which the Board requires that its elections be held and recommended that this objection be sustained. In its exceptions the Employer contends that the election should not be set aside because there is no evidence that it was in any way responsible for Lebold's arrest or that his arrest interfered with the election. However, even in the absence of evidence attributing alleged preju- dicial conduct to one of the parties, the Board will set aside an election where it finds that conduct has occurred which creates a general atmosphere of confusion or fear of reprisal such as to render impossible the free and untrammeled choice of a bargaining repre- sentative 5 In our opinion, the arrest of the Petitioner's principal organizer before the eyes of a number of eligible voters only minutes before they were scheduled to vote under the circumstances of this case was sufficient to create an atmosphere of confusion and render impossible the free and untrammeled choice of a bargaining repre- sentative.e Accordingly, we,sustain the. Petitioner's fourth objection and will set the election aside. Although the Regional Director also found merit in the Petitioner's first objection in view of our decision to set aside the election we find it unnecessary to consider that objection or the other objections filed by the Petitioner. [The Board set aside the election held on September 19, 1957.] [Text of Direction- of Second Election omitted from publication.] 5 See for example : Poinsett Lumber and Manufacturing Company, .116 NLRB 1732; The Falmouth Company, 114 NLRB 896; New York Shipping Association, et at., 108 NLRB 135; Diamond State Poultry Co-, Inc, 107 NLRB 3; P. D. Gwaltney, Jr. and Company, 71 NLRB 371. 6 Vita Food Products, Inc. of Maryland, 116 NLRB 1215, 1219, on which the Employer relies, is clearly distinguishable. There the Board found that the mere presence of police at a plant during an election did not warrant setting the election aside.