The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Dec 19, 1952

101 N.L.R.B. 1118 (N.L.R.B. 1952)

1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and RETAIL FOOD
CLERKS UNION, LOCAL 1500, RCIA-AFL, PETITtoNER. Cane No.
0-RC-4127. December 19, 1952
Decision and Order
Pursuant to a stipulation for certification upon consent election,
executed on December 13, 1951, and approved by the Regional Director
on December 20, 1951, an election by secret ballot was held on Janu-
ary 9, 1952, under the direction and supervision of the Regional
Director for the Second Region. Upon the conclusion of the election,
a tally of ballots was furnished the parties, in accordance with the
Rules and Regulations of the Board. The tally reflected that, of ap-
proximately 1,513 eligible voters, 1,462 cast valid ballots, of which
262 were for the Petitioner, 40 were for the Intervenor,' 1,106 were
against the participating labor organizations, and 54 were challenged.
Thereafter, the Petitioner filed objections to conduct affecting the
results of the election. In accordance with the Board's Rules and
Regulations, the Regional Director investigated the matters raised
by the objections and issued and duly served upon the parties his
report on objections in which he recommended that the objections be
overruled. The Petitioner has filed timely exceptions to the report
on objections, and a supporting brief.
The Board has considered the objections, the report on objections,
the Petitioner's exceptions and brief, and the entire record in this
case, and hereby makes the following findings of fact, and finds merit
in the Petitioner's objections, for the following reasons :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section 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 meaning
of Section 9 (b) of the Act:
All employees at the Employer's supermarkets and special develop-
ment stores serviced by the Brooklyn warehouse in the counties of
Kings and Queens, New York, including dairy department heads,
produce department heads, bakery department heads, and head cash-
iers, but excluding journeyman butchers and apprentices, head meat
A Local 474, C. I. 0., R. W. D. S. U.
101 NLRB No. 210.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 1119
cutters (first meatmen), meat wrappers, part-time employees working
less than 29 hours per week, managers, assistant managers, and all
other supervisors as defined in the Act.
5. There is no dispute on the facts bearing upon the Petitioner's
objections considered here. On December 13, 1951, after the stipula-
tion had been executed, the Employer sent the following letter to
employees in the stipulated Kings and Queens Counties' unit :
The salaries of all clerks in the Grocery Departments in our
Bronx and Garden City Units are being increased at this time
$3.00 per week. This is the maximum increase permitted under
the present Wage Stabilization Board regulations. We will con-
tinue as heretofore to take care of Department Heads on a merit
basis.
These increases are in keeping with A & P's long-standing pol-
icy of paying the most favorable wages in the retail food industry.
Your Company would be happy to make these increases avail-
able to you also, but we regret that in view of the pending union
representation proceeding in the National Labor Relations Board,
we are not permitted under the law to do so at this time or until
the legal objections are withdrawn.
An election will be conducted by the Labor Board on Wednes-
day, January 9, 1952, to determine whether you want to continue
to deal as an individual directly with your Company in matters
regarding your wages, hours and working conditions as you al-
ways have in the past or whether you want to have an outside
organization to represent you.
A & P has voluntarily agreed to this election because we want
our employees to express their choice. When our employees
have this chance we feel confident that they will show their con-
tinued trust in A & P by voting "NO UNION."
Although the Petitioner acquired knowledge of this letter on the
following day, it neither filed charges based thereon nor otherwise
protested to the Board until after the election. On these facts and
Board precedent, the Regional Director concluded that because the
Petitioner had acquiesced in the Employer's conduct 2 it was estopped
from using the letter of December 13 as a basis for its objections.3
We have carefully reconsidered the quesiton whether and when a
party should be permitted to object to an election on the basis of
2 On the merits the Regional Director assumed , without deciding , that the Employer's
conduct constituted interference with the election.
' The Regional Director relied on Denton Sleeping Garment Mills , Inc., 93 NLRB 329
(1951 ), in which the Board held that the petitioner had acquiesced in, and was therefore
estopped from objecting to, the election on the basis of improper conduct of which it had
knowledge more than a month before the election , when it neither filed charges nor other-
wise protested such conduct to the Board until after the election . The conduct in question
occurred between the date of the hearing and the date of the election.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct of which it had knowledge before the election, if it neither
filed charges nor otherwise protested such conduct to the Board until
after the election was over. On the basis of all pertinent considera-
tions and recent experience, we have concluded that retention in its
present form of the rule of estoppel, as applied in the Denton and
similar cases ,4 does not effectuate the policies of the Act.
The purpose of conducting representation elections is to effectuate
the statutory policy of minimizing and eliminating disruptions to
interstate commerce by ascertaining the labor organization, if any,
which the employees desire as their representative to engage in orderly
collective bargaining. The Board's rules on the conduct of elections
are designed to facilitate that process. Experience has demonstrated,
however, that the rule of estoppel in its present form often tends to
hinder, rather than to facilitate, a fair determination of employees'
desires.
Under present Board practice, any party may, by engaging in
conduct which interferes with an election, and by its timing of that
conduct, substantially control the course of the Board's election proc-
esses. In the event of such interference, the other parties and the
employees are confronted with the choice of either (a) requesting a
postponement of the election, with the substantial delay that involves
in ascertaining the employees' desires until the effects of the inter-
ference have been dissipated, or (b) accepting the equally difficult
choice of proceeding with the election in the face of such interference,
knowing that a second election cannot be held for at least another 12
months,5 should the interference have its intended effect and the elec-
tion therefore not reflect the employees' true desires. In either event,
the free expression of the employees' desires is inhibited, the selection-
of a bargaining representative and the orderly progress of collective
bargaining, should that be the employees' desire, may be substantially
delayed, and a wrongdoer stands to profit from his own wrong.
In view of these considerations, the Board believes that the policies
of the Act will best be effectuated by holding that any substantial in-
terference which occurs during the crucial period before an election
may constitute a basis for setting aside that election. In our opinion
such a rule will be fair and equitable to all parties and to the em-
ployees. Accordingly, whether or not charges have been filed, the
Board has decided to consider on the merits any alleged interference
which occurs or has occurred after either (1) the execution by the
parties of a consent-election agreement or a stipulation for certifica-
4 See, e. g, Cherry d Webb Company, 94 NLRB 780; R. L. Polk d Co, 93 NLRB 1079;
The Goodyear Tire and Rubber Company , 85 NLRB 135.
M Section 9 (c) (3) of the Act, in substance , prohibits more than one valid election in
any bargaining unit in any 12-month period.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 1121
tion upon consent election, or (2) the date of issuance by the Regional
Director of a notice of hearing, as the case may be; no waivers will be
required with respect to charges based thereon. The Board will not,
however, consider election objections based upon interference which
may occur prior to these dates.6
As the interference alleged in the present case occurred after the
execution of the stipulation, we find that the Petitioner is not estopped
from urging such conduct as a basis for setting aside the election.
Here the Employer informed the employees in the stipulated unit
that other employees, including employees in the Bronx unit who
were involved in another representation proceeding,' had been granted
a wage increase, but that such increase could not be granted to them
during the pendency of this proceeding. This announcement was
coupled with a plea to the employees to vote against representation
in the forthcoming election, but it did not make clear that the with-
held increase would be granted, regardless of the result of the elec-
tion;8 nor was there any contention or showing that the timing of
the announcement was governed by any factors other than the pend-
ency of the election.9 In view of these circumstances, we find that
the Employer's announcement was not made in good faith, but was
calculated to and did interfere with the employees' exercise of a free
choice in the election held herein.10 We shall therefore set the election
aside and shall direct the Regional Director to conduct a new election
at such time as he deems appropriate.
Order
IT IS HEREBY ORDERED that the election held in this proceeding on
January 9, 1952, be, and it hereby is, set aside.
IT IS HEREBY FURTHER ORDERED that this proceeding be remanded
to the Regional Director for the Second Region for the purpose of
conducting a new election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
" To the extent that they are inconsistent herewith , the cases cited in footnotes 3 and 4,
supra, as well as other cases to the same effect , are hereby overruled. The Board will
of course , continue to adhere to its present policy in cases where there are pending
charges alleging violation of Section 8 (a) (2) and 8 ( a) (5) of the Act.
P See The Great Atlantic c6 Pacific Tea Company, 97 NLRB 295, issued December 7, 1951,
in which the Board set aside an election previously held among the employees in the
Bronx unit, and directed that a new election be held when circumstances permitted the
free choice of a bargaining representative In making this finding , the Board has taken
judicial notice of its own records . Upon the filing of a timely motion for reconsideration,
any party will be given an opportunity to show the contrary . J. S. Abercrombie Company,
83 NLRB 524.
8 See Standard Coil Products , Inc., 99 NLRB 899.
8 Such as a regular or periodic review of wages, or that the employees might normally
expect an increase at this particular time. See Unm.ted Screw cf Bolt Corporation, 91
NLRB 916.
30 Maine Fisheries Corporation, 99 NLRB 604.