The Great Atlantic & Pacific Tea Co., Inc.

THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 133 refute the conclusions of, this dramatic film .5 Thus, the Board is con- fronted with a campaign device where the art of the playwright and the acting profession are employed to give substance to the Employer's position that all unions are irresponsible organizations and that a vote for union representation is a vote for strikes, violence, and perhaps even murder. Although an employer is free to state his opinion and make his predictions, there is a thin line between a prediction and a threat, between truth and fiction. Having viewed the film "And Women Must Weep," we are satisfied that the Employer effectively tarred the Petitioner with the alleged reprehensible conduct of the Princeton union. In our opinion, the impact of this film upon the average viewer, who could reasonably accept the characters and events as true, was in the nature of misrepresentation which exceeded the bounds of permissible campaign propaganda and an interference with the election of the following day. We shall therefore set the election aside, and we shall direct that a new election be conducted. [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] MEMBERS RODGERS and LEEDor, dissenting : We can see nothing in the motion picture involved herein, "And Wo- men Must Weep," 6 which supports the conclusion of the majority that the showing of this movie constitutes "misrepresentation" within the meaning of existing Board precedent. Nor do we find that the movie itself, or the timing thereof, interfered with the freedom of choice of the employees who participated in this election. Accordingly, we would sustain the Regional Director and certify the results of the elec- tion herein. 6 In voting to set aside the election here, Chairman McCulloch does not find the fact that the film was shown on the eve of the election controlling. 6 We reach this conclusion after viewing the film. Unlike our colleagues , however, we do not here undertake to write a review of the picture . We do not presume to say whether, as a motion picture production , "And Women Must Weep," is worthy of three stars, four bells, or any other designation of relative excellence. The Great Atlantic & Pacific Tea Co., Inc. and Retail Clerks International Association, Local 1435, AFL-CIO, Petitioner. Case No. 1-RC-6627. December 13, 1962 DECISION ON REVIEW AND DIRECTION OF THIRD ELECTION On March 1, 1962, the Regional Director for the First Region issued a Supplemental Decision and Certification of Results of Election 1 i Not published in NLRB volumes. 140 NLRB No. 10. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overruling the Petitioner's objections to conduct affecting the results of the election, and certifying the results of the election. Thereafter, the Petitioner filed a timely request for review of the Regional Direc- tor's Supplemental Decision with respect to the Petitioner's objection No. 1.2 On May 8, 1962, the Board, by telegraphic order, granted the request for review. The Petitioner's objection No. 1 alleges that "the Employer, by its supervisors and agents, interrogated employees as to their union sym- pathy and activity." The Regional Director found that the Em- ployer's area supervisor, O'Donnell, held individual interviews with five employees in four different stores during the critical period. In each case, the employee was called away from his duties, and asked to come to the cellar or backroom of the store. He further found that O'Donnell's remarks during these interviews, though antiunion in tenor, were not coercive. The Regional Director held, in view of the fact that only 5 employees in 4 stores were involved in these inter- views, out of approximately 119 eligible voters in a 16-store unit, that this conduct did not constitute a "systematic" use of the interviewing technique which the Board has consistently proscribed.' We do not agree. When individual employees are taken from their workplaces and subjected to antiunion propaganda at the hands of a supervisor in the privacy of a company office 4 or in an isolated area 5 away from other employees, there is likelihood that outright fear or uneasiness tinged with fear as to the consequences of unionism will be created in the mind of the employee thus singled out for special attention. This general proposition is exemplified by what happened in this very case. Thus, Area Supervisor O'Donnell who conducted the individual inter- views admitted that, in the course of his interview with an employee at the Lewiston store, the employee said to him: "You think I'm pro- Union." According to the employee's own account, credited by the Regional Director, O'Donnell said after urging the employee to vote against the Petitioner, that he wanted to make sure that the employee knew "what he was getting into" in connection with this election. The employee replied that he saw things pretty clearly and asked why he had been called downstairs. O'Donnell answered, "We've been pretty friendly and I wanted to make sure you know what you're doing-I 2 The request for review concerns only this objection. 3 See, for example, General Shoe Corporation (Harman Bag Plant ), 97 NLRB 499; Gallaher Drug Company, 115 NLRB 1379; Hook Drugs, Inc , 117 NLRB 846; Peoples Drug Stores, Inc and Peoples Service Drug Stores, 119 NLRB 634; Carter-Lee Lumber Company, 119 NLRB 1374; The Great Atlantic & Pacific Tea Co, 120 NLRB 204, Columbus Division, Colonial Stores, Incorporated, 121 NLRB 1384 ; Jasper Wood Prod- vets Co, Inc , 123 NLRB 28, National Caterers of Virginia, Inc, 125 NLRB 110r, Aragon Mills, a Unit of United Merchants & Manufacturers, Inc, 135 NLRB 859. 4E.g., General Shoe Coi poration, 97 NLRB 499; 77 NLRB 124. 5 E g, Peoples Drug Stores, Inc., supra (Members Rodgers and Jenkins dissenting) THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 135 just wanted to explain it to you." 6 This employer-created fear or un- ease is inimical to the holding of the Board's concept of a free election. It is for this reason that the Board has held : 7 . . . that the technique of calling employees, individually or in small groups, into a private area removed from the employees' normal workplaces and urging them to reject the union is in itself conduct which interferes with the conditions necessary to a free choice by the employees in the selection of a bargaining repre- sentative and warrants setting aside the election. The Regional Director did not consider that the individual inter- viewing of 5 employees in 4 different stores out of a total of approxi- mately 119 eligible employees in 16 stores constituted the "systematic" interviewing by an employer which has been held objectionable de- spite the absence of coercive statements made during the interviewing. We note, in this connection, that the election results were extremely close, 52 votes being cast for the Petitioner, and 60 against. A change of five votes, the number of objectionable interviews, could have changed the final outcome of the election. Individual interviews took place in 25 percent of the total number of stores in the unit. This is hardly an isolated number of interviews, and it is not unreasonable in the circumstances to infer, as we do, that the ramifications of the interviewing technique extended beyond the employees immediately involved. Because we believe that the employer-conducted interviews before the election destroyed the requisite laboratory conditions for holding a free election, we shall set it aside and direct a new one. [The Board set aside the election.] [Text of Direction of Third Election omitted from publication.] MEMBER RODGERS, dissenting : The facts of this case are not in dispute. The appropriate unit in this case consists of 16 stores and approximately 119 employees. Prior C In his dissent Member Rodgers mentions that the majority sets forth only a portion of the conversation between Supervisor O'Donnell and an employee of the Lewiston store. Our colleague apparently misconceives the majority's purpose in citing this conversation. As the body of the opinion makes clear, a majority of the Board believes that to take an employee from his workplace for the purpose of subjecting him to antiunion propaganda in the privacy of an office or an isolated area has a tendency to create in the employee a state of mind which is inimical to the holding of a free election For that reason the Board majority believes that when such interviewing takes place on a sufficient scale the election should be set aside. Actual proof that in any given case the interviewing did have an objectionable effect is not required The Lewiston store conversation was cited to support the general proposition. The omitted portion of the conversation which the dissent cites does not disprove it. On the contrary, the very fact that Supervisor O'Donnell deemed it necessary to reassure the employees interviewed at the Lewiston and Auburn stores supports the majority's view of the effect upon employees of such private interviews 7 Peoples Drug Stores, Inc., supra, at p 636. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the election, which the Union lost, the Employer' s area supervisor visited four of the stores in the unit and had individual conversations with a total of five employees. He told these five employees, in effect, that he did not think the employees needed a union and that the Employer did not favor unionization. The Regional Director found, inter alia, that these conversations were not coercive, and overruled the Petitioner's objection to the elec- tion based on the above-described conduct. Although my colleagues have adopted this finding, they are nevertheless setting aside the election on the ground that the circumstances under which these law- ful conversations occurred converted them into an unlawful "tech- nique" which "interfered" with the employees' free choice. I do not agree. The circumstances upon which my colleagues place such great em- phasis, and which, in their opinion, is the gravamen of the interfer- ence, is the fact that these individual conversations were held at some location other than the employees' "work stations." For, admittedly, had the identical conversations occurred at the employees' "work stations," they would not be found to have interfered with the em- ployees' free choice." In support of their position, my colleagues cite the General Shoe case." The application of the General Shoe doctrine in the instant case is, in my opinion, the final deviation in a succession of cases which have distended the rule and rationale of that case far beyond its original intent. In the General Shoe case 10 the president of the company had the employees brought into his office where he read them an "intem- perate" antiunion speech. In the second General Shoe case, involv- ing another plant of the same employer, the plant manager and per- sonnel manager had the employees brought into their offices and urged them, in somewhat "more temperate" tones, to reject the union. The Board, in explaining why the aforementioned conduct has a coercive effect, set forth the following rationale (97 NLRB at 502) : When rank-and-file employees are brought to the company offices in small groups, they do not deal in an "arms length" rela- tionship with the company officials they are directed to see. Anti- union opinions, and the suggestion that the employees reject the union, when uttered in that locus of final authority in the plant, take on a meaning and a significance they do not possess under other circumstances. [Emphasis supplied.] B Mall Tool Company, 112 NLRB 1313; Bryant Electric Company, 118 NLRB 232; Schick Incorporated, 118 NLRB 1160; Peoples Drug Stores, Inc , and People Service Drug Stores, 119 NLRB 634, 636; Pyramid Mouldings, Inc., 121 NLRB 788. e General Shoe Corporation, 97 NLRB 499. is 77 NLRB 124. THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 137 Clearly, the General Shoe doctrine in its present application does not remotely resemble the rule which the Board originally adopted." What began as a rule which permitted all noncoercive individual conversations except those held at "the locus of final authority," has now become a rule which prohibits all noncoercive individual conver- sations except those held at the employees' "work stations." i3 I am thus compelled to come to the conclusion that, in reality, the decision in this case represents an almost complete rejection of the principle that the Employer has a right to address the employees, individually, in a noncoercive manner." Moreover, my colleagues, in finding, contrary to the Regional Di- rector, that the conduct herein was "systematic" and did constitute a use of the proscribed technique, note that the "election results were extremely close," and that "a change of 5 votes . . . could have changed the final outcome of the election." In my opinion, this is a faulty approach. Conduct alleged to be objectionable should be evalu- ated by the Board on the merits; and the merits, in my view, do not encompass consideration of the degree of closeness of the election re- sults. See, for example, Zimmer Industries, Inc., 120 NLRB 317, 319; Shovel Supply Company, 118 NLRB 315, 316; Goodyear Clearwater Mill No. 2,109 NLRB 1017, 1019-1020. ix See National Caterers of Virginia, Inc, 125 NLRB 110, in which the storeroom of a cafeteria was held to be a locus of "managerial" authority , in spite of the fact that the employees were used to being in the storeroom in connection with their regular duties. Frisch's Restaurants, Inc., Case No. 9-RC-4674, not published in NLRB volumes, where the plant cafeteria was held to be a locus of "managerial" authority , in spite of the fact that there were other employees in the cafeteria at the time. "Locus of final authority" has now become "locus of managerial authority." National Caterers of Virginia, Inc., supra. 12 My colleagues do not bother to explain why conversations , which are not coercive when held at the employees' "work stations," become coercive when held at any other location , I, for one, cannot subscribe to a theory which is grounded in the assumption that all areas of a plant or store, except the employees ' "work stations," are permeated with a subtle presence which strikes fear in the hearts of the employees causing words of discussion or persuasion to be transformed into words having the force and effect of threats or promises . Surely, the backroom and basement of these stores , where the con- versations occurred, must have been every bit as familiar to the employees as their "work stations." In fact, in the typical retail grocery or supermarket operation , the backroom and basement are as much a part of the employees' "work stations" as the aisles of the selling floor. Whatever the special aura which may pervade the "boss' office ," It does not exist in these nonselling areas of the store which are as much the employees ' domain as the employer's. In support of the rationale of their decision , my colleagues cite only a portion of the conversation between Area Supervisor O'Donnell and an employee of the Lewiston store. However, when that conversation is reported in its entirety, it takes on an entirely differ- ent complexion. Thus when the employee stated, "You think I'm pro -Union," O'Donnell answered, "That is none of my business. I have no right to judge anyone on this situa- tion . It's your own personal matter." And in another of the conversations , not specifi- cally set forth, but relied on by my colleagues to set aside the election , that of the conversation between O'Donnell and an employee of the Auburn store, O'Donnell con- cluded by stating to the employee "that no matter how the election comes out, there will be no hard feelings and that it was a free country and the employee could vote as he saw fit." is See my dissenting opinion in Peoples Drug Stores, Inc., 119 NLRB 63'4, 637. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, as I find nothing in the Employer's conduct which could reasonably have impaired the employees' ability to evaluate, on the merits, the election issues, or their ability to vote objectively, with- out fear or favor, and as, in any event, I agree with the Regional Di- rector that the .conduct involved is minimal and too isolated to consti- tute a "technique," I would overrule the objection and certify the results of the election. Union Electric Steel Corporation and United Steelworkers of America, AFL-CIO, and its Local 1552. Case No. 6-CA-2348. December 14, 1962 DECISION AND ORDER On July 23, 1962, Trial Examiner Leo F. Lightner 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' 'The Respondent excepts to the Trial Examiner's ruling whereby he rejected Respond- ent's offer of proof to the effect that the Union 's sole purpose or motive in requesting the subject information and data relating to the Respondent 's hourly employees' incentive pay plan was to enable it to harass , pressure, or otherwise dissuade employees from participat- ing in the plan. The implementation of this purpose , according to the Respondent , would, in turn, harass the Respondent through the resultant decrease in production. We are cognizant of the following circumstances in connection with the Respondent's offer of proof. It was couched in general and conclusionary terms and failed to recite the identity or description of the witnesses , or other evidence, to be introduced by the Respondent. Further, the offer did not delineate the nature, content, or scope of any such prospective evidence with any degree of exactitude. Indeed, the form -of the offer more nearly approximated a bare contention by the Respondent rather than an offer of proof. For these reasons, we find that the Respondent 's offer failed to satisfy the standards of specificity required by Rule 43(c), Rules of Civil Procedure for the District Courts of the United States. The Act, in Section 10(b), requires that any proceedings under Section 8 shall be conducted , so far as practicable , in accordance with the rules of evidence contained in these Rulers of Civil Procedure. Moreover, when Respondent's counsel made the offer of proof, he admitted that all but a "very small part" of the evidence he expected to develop in order to prove his con- tention concerning the Union's harassment objective would have to be adduced through the testimony of union officials called by him as witnesses pursuant to Rule 43 (b), Rules of Civil Procedure, cited supra. Consequently , it appears that the Respondent only pro- posed to prove its contention by means of the highly speculative and unpredictable method of cross-examining adverse, if not hostile, witnesses. Parenthetically, we note that at the hearing the Respondent began its defense by calling the vice president of Local :1552 140 NLRB No. 15.