The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Feb 21, 1949

81 N.L.R.B. 880 (N.L.R.B. 1949)

In the Matter of THE GREAT ATLANTIC & PACIFIC TEA COMPANY, EM-
PLOYER and DISTRICT No. 47, INTERNATIONAL ASSOCIATION OF
MACHINISTS, PETITIONER
Case No. 2-RC-308.-Decided February 21, 19419
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. At the hearing, the Employer moved to dismiss the peti-
tion on the ground that an election held on June 30, 1948, bars a second
election within 1 year of that date. For reasons stated infra, the
motion is hereby denied.
Upon the entire record in this case, the Board 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 em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit ; the determination of representatives :
The Petitioner seeks to represent a unit of all maintenance machin-
ists and helpers employed at the Employer's Newark, New Jersey,
bakery, excluding office, clerical and professional employees, watch-
men, guards, and supervisors. The Employer contends that these
employees are not machinists, but are general maintenance employees
and should be included in the existing plant-wide unit.
There are eight or nine maintenance machinists and one helper
who work under the supervision of the machine shop supervisor.
The record discloses that they make bushings, pines, shafts, shaft keys,
and other parts used in the operation of the Employer's bakery
equipment. They also repair and replace parts of this equipment.
In order to perform this work a minimum of 4 years of experience
81 N. L. R. B., No. 136.
880
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 881
is required. The record discloses, further, that these employees are
skilled machinists who have served 4-year apprenticeships with other
Employers. There is no interchange between machinists and pro-
duction employees. We are satisfied that these maintenance machin-
ists are a craft group and may therefore if they so desire, constitute a
separate unit.' On the other hand, they may also be included in the
plant-wide unit. In these circumstances, we shall make no unit deter-
mination until we have first ascertained the desires of the employees
themselves.
The Employer contends, however, that an election conducted on
June 30, 1948, in a plant-wide unit bars an election at this time in
the smaller unit desired by the Petitioner, because of Section 9 (c) (3)
of the Act. That Section provides that "No election shall be directed
in any bargaining unit or any subdivision within which, in the pre-
ceding 12-month period, a valid election shall have been held." (Em-
phasis supplied.)
On April 12, 1948, the Petitioner filed its representation petition
with the Board seeking to represent a unit of machinists. On June 3,
1948, almost 2 months later, an individual employee filed a petition
seeking the decertification of Local 84, Bakery & Confectionery Work-
ers Union, AFL, herein called the Bakery Workers, as the bargaining
representative of all the Employer's production and maintenance
employees, including the machinists. Thereafter, the individual
petitioner, the Employer, the Bakery Workers, and the Regional Di-
rector signed an agreement for a consent election in the plant-wide
unit, including machinists. The Regional Office and all signatories
to the consent election agreement overlooked the prior petition which
had been filed by the Petitioner, which was not made a party to these
decertification proceedings.
Pursuant to the consent election agreement, an election was held
on June 30, 1948, in which a majority of the ballots were cast for
the Bakery Workers. The present Petitioner was not a participant
in the election, and the ballots cast by the maintenance machinists in
that election were not segregated. The Regional Director discovered
the oversight shortly after the election had been held. Certification
of the Bakery Workers has been withheld pending the outcome of the
present proceeding.
The election of June 30, 1948, insofar as it included the maintenance
machinists, was based upon a material mistake for which the Petitioner
was not in any way responsible. We believe, therefore, that with
respect to the maintenance machinists the election was not a "valid
' Matter at Marshall Field c6 Company, 76 N. L . It. B. 479.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election" within the meaning of Section 9 (c) (3).2 Accordingly, we
find no obstacle in Section 9 (c) (3) to conducting an election among
the maintenance machinists at this time.
We shall direct that an election be held among all maintenance
machinists and helpers employed at the Employer's bakery located
at 109 Avenue L, Newark, New Jersey, excluding office, clerical and
professional employees, watchmen, guards, and supervisors as defined
in the Act.
However, we shall make no unit determination at this time, but
shall be guided in part by the desires of the employees, as expressed in
the election directed hereinafter. If a majority vote for the Peti-
tioner, they will be taken to have indicated their desire to constitute
a separate appropriate unit.
DIRECTION OF ELECTION 3
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Second Region, and
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the unit found appropriate in paragraph numbered 4, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during said pay-roll period because they were ill or on
vacation or temporarily laid off, but excluding those employees who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, ana also excluding
employees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented, for purposes of collective bar-
gaining, by District No. 47, International Association of Machinists,
or by Local 84, Bakery and Confectionery Workers Union, A. F. L., or
by neither.
MEMBERS MURDOCK and GRAY took no part in the consideration of
the above Decision and Direction of Election.
2 The Bakery Workers won the election by a plurality of 112 votes . The votes of any
machinists who voted could not therefore have affected the results of the election in the
plant -wide unit.
3 The Bakery Workers, although served with a Notice of Hearing , did not appear at the
hearing. However, due to its present contractual interest in the plant -wide unit, we shall
place its name on the ballot In the event that it does not desire to appear on the ballot
in the election directed herein, it may, upon its prompt request to, and approval thereof
b3, the Regional Director , have its name removed from the ballot.