National Caterers of Virginia, Inc

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) All mechanics employed in the Employer's truck shop, small truck shop, company garage, and cat shop at Ray, Arizona, including their apprentices, but excluding helpers, steam cleaner operators, laborers, welders, all other employees, office clerical employees, watch- men, guards, professional employees, and supervisors as defined in the Act If the majority in unit (b) vote for the Machinists, they will be taken to have indicated their desire to constitute a separate appropri- ate unit, and,the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for such unit, which the Board, under such circumstances, finds to be appropriate for purposes of collective bargaining In the event a majority do not vote for the Machinists, these employees shall remain a part of the existing unit and the Regional Director will issue a certification of results of election to such effect [Text of Direction of Elections omitted from publication ] National Caterers of Virginia, Inc. and Hotel & Restaurant Employers & Bartenders International Union, AFL-CIO, Peti- tioner. Case No 5-RC-2705 November 12, 1959 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director on April 17, 1959, among the employees in the unit described below After the election, the parties were furnished with a tally of ballots which showed that of 34 eligible voters, 16 cast valid ballots for and 18 cast valid ballots against the Petitioner The Petitioner filed timely objections to conduct affecting the results of the election Auer investigation the Regional Director on July 24, 1959, issued and served upon the parties his report on objections in which he recommended that the objections relating to interviews with em- ployees in the storeroom at the Seventh and Stockton location prior to the election be sustained and that the election be set aside and that a new election be ordered by the Board He found no merit in the other objections, but in the course of his investigation uncovered evi- dence concerning conduct affecting the results of the election and recommended that if the Board did not agree that the election be set aside that a hearing be directed to resolve material and substantial issues raised by the evidence uncovered therein The Employer filed timely exceptions to the Regional Director's recommendations 125 NLRB No 10 NATIONAL CATERERS OF VIRGINIA, INC. 111 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 [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner is a labor organization claiming to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The parties stipulated and we find that all food production and food service employees of the Employer working in the cafeterias located at the Philip Morris Tobacco Company plants located at 7th and Stockton Streets and at 20th and Main Streets in Richmond, Virginia, but excluding all office clerical employees, managers, assist- ant managers, guards, watchmen, professional employees, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. In its objections, the Petitioner alleged during the period be- tween the date the stipulation upon consent election was executed and the date of the election, representatives of the Employer called employees individually into the manager's office for the purposes of persuading them to vote against the Petitioner.' The investigation revealed the following facts : The Employer operates an industrial catering service at the two locations involved herein. At each of the locations, there is a dining room, a serving line, a kitchen, and a stock- room for maintaining supplies and for the storage of food. At the Seventh and Stockton location, the manager has a desk in a corner of the storeroom without any separating partition. At the 20th and Main location, there is a glass-enclosed office in the dining room. It is undisputed that a few days before the election, Daniel Holland, assistant to the president, who is normally at the Employer's Wash- ington, D.C., headquarters, called all the employees at each location individually into the respective storerooms for the purpose of per- suading them to reject the Petitioner in the election. The individual interviews at the Seventh and Stockton location were conducted away from the manager's desk in a corner of the storeroom where two chairs were set up without a table. In order to reach the location of the interviews, employees had to pass the manager's desk at which it appears the manager was not present. During the interviews other i As no exceptions were made as to the Regional Director 's overruling the Petitioner's objections based upon the activity of supervisors in the polling area, we shall adopt his recommendation pro forma. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees from time to time passed in and out of the storeroom in order to obtain supplies in connection with their work. The Regional Director, relying on the principles enunciated in Peoples Drug Stores, Inc., et al., 119 NLRB 634 ; Economic Machinery Company, Division of George J. Meyer Manufacturing Co., 111 NLRB 947; and other cases applying the General Shoe doctrine,3 found, on the basis of the above-described interviews at the Seventh and Stockton location, that the Employer had utilized the technique of calling its employees in- dividually away from their normal work stations to a locus of mana- gerial authority for the purposes of urging them to reject the Peti- tioner and thereby interfered with their free choice in the election. Accordingly, he recommended that the election be set aside and a new election conducted. In its exceptions, the Employer contends that the Regional Director erred in concluding that the interviews were conducted away from their "work places" at the "locus of managerial authority" of the Seventh and Stockton location. In support thereof, the Employer asserts that the storeroom where the interviews were held was a place where the employees were accustomed to being in connection with their work and, contrary to the Regional Director's finding, was a place where employee meetings were frequently held, and that the interviews were not conducted at the manager's desk, the only location in the storeroom which could be called "the office" of the cafeteria. We find no merit in the Employer 's contention . It is clear from the record that the employees at the Seventh and Stockton location were called individually from their work duties to a situs selected by a top management official for the purpose of urging them to vote against the Petitioner in the election . It is also clear that at the time they were called to the storeroom the employees were engaged in their duties elsewhere in the cafeteria. The fact stressed by the Employer that the interviews were not held at the cafeteria manager's desk is not here controlling. The unusual act of setting up two chairs in a corner of the storeroom which also contains the manager 's desks for the purpose of conducting private interviews by a management official, in our opinion, reasonably led employees to believe that that location was a locus of managerial authority. In the circumstances , like the Regional Director, we conclude that this conduct, under our General Shoe doctrine,' had a coercive effect upon the employees ' free choice 2 General Shoe Corporation (Marman Bag Plant ), 97 NLRB 499. 8 See also, e .g., The Great Atlantic and Pacific Tea Company . 120 NLRB 204 ; Campbell Steel Company, et al., 120 NLRB 168 ; Armour and Company, 120 NLRB 522 : Veeder-Root Incorporated , Altoona Branch, 120 NLRB 967 ; Columbus Division, Colonial Stores Incorpo- rated, 121. NLRB 1384 . Cf. Mead-Atlanta Paper Company. 120 NLRB 832: Crane Carrier Corporation, 122 NLRB 206 ; Tuttle d Kift, Division of Ferro Corp ., 122 NLRB 848. We find no merit in,the Employer's further contention that an exception to the doctrine should be made herein because, as it argues , the storeroom was the only feasible location for such interviews . See Peoples Drug Stores, Inc., supra, at 636 . Like the Regional Director, we do not deem it necessary in the circumstances to reach the question whether the inter- INT'L ORGANIZATION OF MASTERS , MATES & PILOTS, ETC. 113 in the election 4 We shall therefore set the election aside and order a new election.' [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] views with individual employees conducted at the 20th and Main Streets cafeteria also came within the doctrine 's proscription . See Columbus Division, Colonial Stores Incorpo- rated, supra; Hook Drugs, Inc., 117 NLRB 846; The Gallaher Drug Company, 115 NLRB 1379. 4 We find no merit in the Employer 's contention that such a finding is contrary to the rights of free speech guaranteed employers in the Act. We have held that the Act does not prevent the Board from holding in a representation case that expression of views, whether or not protected by Section 8(c), can be a basis for upsetting an election. See Metropolitan Life Insurance Company, 90 NLRB 935, 938. 5 As the facts alleged by the Employer in its exceptions, even if accepted as true, in no way affect our disposition of this objection , we find no merit in the Employer 's contention that it has been denied an opportunity to be heard. The Employer's request for a hear- ing is therefore denied. Finally , in view of our decision to set aside the election on the basis discussed above we need not consider the other recommendations of the Regional Director or the Employer's exceptions thereto. International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47, International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO and Chicago Calumet Stevedoring Co., Inc., Charging Party International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47, International Organization of Masters , Mates and Pilots of America, Inc., AFL-CIO and P & V Maritime Corporation, Charging Party International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47, International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO and North Pier Terminal Company, Charging Party International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO, and International Vice-President Captain Rolla R. Johnson and Cleveland Stevedore Company; Lederer Terminal Warehouse Company; National Terminals Corporation ; and Shipping Federation of Canada, Charging Parties. Cases Nos. 13-CC-168, 13-CC-169, 13-CC-170, and 13-CC-180 (formerly 8-CC-76). November 12, 1959 DECISION AND ORDER On April 20, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceedings, finding that the 125 NLRB No. 19.