Great Atlantic and Pacific Tea Co.

National Labor Relations Board - Board Decisions

Sep 17, 1979

244 N.L.R.B. 1097 (N.L.R.B. 1979)

GREAT AI L.A\NI 1' AND) PA('IFIC I A ('COMPANY
Great Atlantic and Pacific Tea Compan>, Incorpo-
rated and United Food and Commercial Workers
International Union,' Local Union No. 157. AFL-
CIO. Case 5-CA 9378
September 17. 1979
DECISION AND ORDER
BY MEMBERS PENE.IO., MURPHlY. ANI) TRIl'SI)AI-
On April 20, 1979, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding and, on May 3, 1979. he issued an errata
to that Decision. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.4
The name of Retail Clerks International Union, Local Union No 157.
AFL-CIO. is amended to reflect the change resulting from the merger of
Retail Clerks International Union and Amalgamated Meatcutters and
Butcher Workmen of North America on June 7. 1979.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established polico not to overrule
an administrative law judge's resolutions with respect to credibilit unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products. In.. 91 NI.RB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings
In agreeing with the Administrative Law Judge that the failure to schedule
employee Betty Bishop violated Sec. 8(aX3) and (I) of the Act, we note that.
while the contract in effect provided that fitness for the work involved might
be considered in addition to seniont) in making la)off decisions. there is no
evidence that Bishop was not able to do the work assigned to ther less
senior employees from February 26 to March 22. 1978.
Also. in affirming the Administrative Law Judge's conclusion that Respon-
dent imposed more onerous duties on Bishop because she engaged in pro-
tected grievance activity, we note that no other employee before Bishop had
ever been specifically assigned to operate the jack used in unloading the
trucks nor had an) employee before Bishop ever been specifically denied the
assistance of a fellow employee in operating the jack by the direct order of
the store manager.
'With respect to the Administrative Law Judge's independent finding of a
separate violation of Sec. 8(a I ) of the Act in Store Manager Toone's requir-
ing employee Ryland to assist in imposing more onerous working conditions
on a fellow employee, we find that the issue was fully litigated. nlike the
situation in Chandler Motors, Inc., 236 NLRB 1565 (1978). where we over-
ruled the finding of a violation not alleged in the complaint. Respondent In
this case was aware that Store Manager Toone's alleged nstructions to
Ryland were an issue in the case since they were closely related to allegations
in the complaint with respect to the onerous working conditions mposed (in
Bishop. Both Toone and Ryland were questioned about the incident on
direct examination and Respondent had ample opportunity for cross-examl-
nation. Moreover, the fact that the order was given was never in dispute We
conclude that the record is sufficient to support a finding of the violation
Member Murphy further notes that the instant case is distinguishable from
Alerander Dawson, Inc, d/b/a Alexander'v Restaurant and lmunge. 228
NLRB 165 (1977), cited b the Administrative Law Judge. in which she
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent. Great
Atlantic and Pacific Tea Company. Incorporated.
South Hill. Virginia. its officers, agents, successors.
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph l(f):
"(f ) In anv like or related manner interfering with.
restraining, or coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act."
2. Substitute the attached notice tbr that of' the
Administrative aw Judge.
dissented from the majority's finding of an unfair labor practice not alleged
in the complaint. In 41evander', the additional conduct found unlawlul was
not related to other allegations of the complaint. whereas in the instant case,
as noted. Toone's statements to Ryland bore a close connection to Respon-
dent's imposition of more onerous working conditions on Bishop. further-
more. in Alexanders the Administrative Law Judge had not found the siola-
tion and the General Counsel did not file an exception to the Adminlstratise
Law Judge's failure to make such a finding.
4 In par. I(f) of his recommended Order. the Administrative Law Judge
provided that Respondent shall cease and desist from "in an) other manner"
interfering with, restraining. or coercing its employees in the exercise of their
nghts guaranteed by Sec. 7 of the Act. ltowever, it is the Board's polic that
such a broad order is warranted only when a respondent is shown to have a
proclis ity to violate the Act, or has engaged in such egregilus or widespread
misconduct as to demonstrate a general disregard for the employees' tunda-
mental statutory rights. Hickmott Foods. Inc. 242 NLRB 1357 1979). Wilh
respect to the instant dispute, we find that the broad injunctive order issued
against Respondent is unwarranted and that a narrow order is sufficient to
remedy the violations here Accordingly. we will modify the Administratise
Law Judge's recommended Order and nite
APPEN DIX
NOTIC To EMPI.OvELS
POSTED BY ORDER OF 1HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to schedule 4you for work.
or impose more onerous working conditions on
you, or otherwise discriminate against you be-
cause you file or pursue grievances, or for engag-
ing in union activities or other protected con-
certed activities for mutual aid or protection.
WE WI.I. NOT threaten you with more onerous
working conditions because you engage in griev-
ance or union activity.
WE '1.l. N()I require you to help us impose
more onerous working conditions on employees
because they file or pursue grievances. or engage
in union or other concerted activities for mutual
aid or protection.
WE WIIL1 NOT create the impression that we
are spying on employee meetings concerned with
244 NLRB No. 162
1()97
I)t('ISIONS () NA I INAI l.ABO()R R.AIIONS BOARI)
union11 (1'or ote conceiLted tctix tics for lmutuail aid
or rolcttction.
\Wi \\111 \() ill anl\ like or related mrianner
interfere with, restrain, or coerce youl ill the exer-
cisc of' the rights guaranteed ou by Section 7 of
the National l.abo Relations Act.
WI \\it i offer to Belty Bishop reinstatement
to her forrllc position at such time as she is
ph! sically able to pertfori the work, and w
,i\ l I make her whole ifor wages lost, with inter-
est computed thereon, as a result of' our refusal
to schedule her lbr work and our imposition of
more onerous duties on her.
GR;KAI AI.ANHl( ANI) PA(IFI( TA COM-
PANY, IN('ORPORAIH)
DE(CISION
SIAltMFN OF 111 CASt
CL.AL :F R. WOiF.I Administrative Law Judge: This case
was heard by me in Lawrenceville and South Hill. Virginia,
on November 8 and 9. 1978. The complaint alleges that
Respondent violated Section 8(a)(3) and (I) of the Act by
discriminatorily refusing to schedule work for Betty Bishop,
assigning her to more onerous work, threatening employees
with more onerous working conditions, and other reprisals,
and creating an impression of surveillance of employees'
union activities.
From the entire record, including my observation of the
demeanor of the witnesses as they testified, and after due
consideration of the post-trial briefs and the Union's closing
argument. I make the following:
FINDIN;S AND CON('I.USIONS
1. JURISDI)X(ON
Respondent is a Maryland corporation engaged in the
retail sale of meat, produce and related products at its store
located in South Hill, Virginia. During the 12 months pre-
ceding the issuance of the complaint, a representative pe-
riod. Respondent's gross revenues were in excess of
$500.000. and Respondent purchased and received. in inter-
state commerce, products valued in excess of $50,000 from
points located directly outside the State of Virginia. At all
times material to this case. Respondent is, and has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2). and (6). and
(7) of the Act.
I. Te I.ABOR ORGANIZATION
Retail Clerks International Union. Local Union, No. 157,
AFL CIO'. herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
I have amended the Union's name to show the affliation of the Charging
Party with the AFL -CIO. as reflected in its collective-bargaining agreement
with Respondent.
111. Ili Al.1(,1i.1) tUNIAiR ABO()R PRA( ('IS
A. The Fcl 2
On January 19. 1978.' employee Betty Bishop and meat
manager Jack Rainey.' who was not working but in the
store as a customer at the time, engaged in a brief argument
over her conversation with a customer.' Rainev reported
the incident to Store Manager Marshall Toone. oone
called Bishop to his office on January 25 and asked her to
sign a statement to the effect she had cursed RaineN in the
customer's presence. She declined on the ground the state-
ment was not true. Toone said he would note that she re-
fused to sign and would send the paper to corporate Person-
nel Director Arthur Little. He did not send the statement to
Little.
On January 27. Bishop called Union President L.ewis and
told him of the Rainey-Toone episode and other complaints
she had about company break practice and other matters.
Lewis told her to write her complaints up and send the
writing to him. She did so, and he arranged a meeting with
Little for February 23, in order to discuss Bishop's com-
plaints.
About a week prior to the February 23 meeting, em-
ployee Nichols invited Betty Bishop. Agatha Hardy, and
Estelle Gaskill to her home where the four discussed the
various work related complaints that they wanted to voice
at the meeting.
The meeting of February 23 was attended by Lewis, busi-
ness agent Pollard, Bishop, Little, Toone, and several other
employees. Lewis gave Little the letter that Bishop had
written. Little discussed the letter with Toone who had not
previously been made aware of its content.' Bishop's com-
plaints were the first topics of discussion, with other em-
ployees joining in with their views on matters that con-
cerned them. Bishop's primary concerns were the statement
prepared by Toone on the Rainey affair. Respondent's al-
leged failure to allow sufficient break time, and pay she
considered due her for reporting as scheduled but finding
no work available on arrival. Other employees joined
Bishop in expressing their grievances including failure of
Toone to schedule work strictly by seniority,' the handling
of money in cash registers, and other work related prob-
lems.
During the discussion over scheduling. Little remarked
that going strictly by seniority could mean that the least
senior person would get no work hours. and Toone stated
that if he went by seniority Bishop would get no hours.8
2 The facts set forth herein are based on a snlhesis of the credited aspects
of the testimony of all witnesses, the exhibits. stipulations of the parties, and
careful consideration of the logical consistency and inherent probability of
the facts found. Although I may not. in the course of this decision. advert to
all the record testimony it has been carefully weighed and considered. and to
the extent that testimony not mentioned herein might appear to contradict
the findings of fact that evidence has not been disregarded but has been
rejected as incredible, lacking in probative worth. surplusage. or irrelevant.
All dates are 1978. unless otherwise specified.
Rainey does not supervise Bishop.
I credit Rainey and employee Helen Jones that Bishop told Rainey it was
none of his business and he was just like "that damn Marshall Toone."
6 This letter was not offered into evidence.
7 Bishop, as well as other employees, complained of rxoones disregard of
seniority in scheduling.
3I perceive no reason to discredit the testimony of Little and Io)ne relat-
ing to these statements the) made.
I O98
GREAT ATLANTIC AND PACIFIC TEA COMPANY
Little resolved the break and cash register problems, and
agreed to pay Bishop for the times she had reported and
found no work.' He instructed Toone to follow seniority in
scheduling work" and Toone asked him to forward a se-
niority list. Little sent him such a list on February 24, set-
ting forth the seniority dates of "part time grocery clerks"
which included employees performing cash register and
stock duties."'' With respect to the Bishop-Rainey incident,
Little asked Toone to destroy the statement he had written
on the matter. 2 Toone had not done so at the time of the
hearing, and testified that he does not follow Little's
instructions on what to do with the letter.
Although Toone applies the job titles "checker" and
"stocker" to different employees in accordance with their
predominant duties, these titles are of his own invention.
The contract between the Union and Respondent mention
part-time food clerks, part-time porters, and part-time cour-
tesy clerks." The seniority list furnished Toone by Little
shows that employees Larry Capps and Richard Owen have
less seniority than Bishop. Bishop's primary duty was run-
ning a checkout register, and Capps and Owen performed
miscellaneous stocking and clean-up duties most of the
time. In any event, it is clear from the contract, and the
parties' expressed understanding of its seniority provisions,
that all part-time grocery ("food") clerks were on the same
seniority roster. I am persuaded that Toone, store manager
at South Hill for 14 years, knew this, and that there was no
ambiguity in Little's express instruction of February 23 that
employees' relative positions on the seniority scale were to
henceforth control the scheduling of their work hours.
Toone prepared on February 23. and posted on February
24, a work schedule for the following week with no work for
Bishop, 5 more hours for Owen, and the same hours for
Capps that he had the preceding 3 weeks. No one but
Bishop was denied work completely. Capps continued to
work 29 hours per week through the week ending March
I I, and then was scheduled 35 hours during the week end-
ing March 18. Owens went from 24 hours the week ending
February 25 to 29 the week ending March 4, and 30 during
the weeks ending March II and 18. Bishop was offered no
work for the weeks of March 4, II, and 18.
On March 7, Bishop visited Union President Lewis, and
complained that Owen and Capps were doing checkout
work while she was laid off.'" Lewis told her that he would
tell Little that Bishop was claiming Owen's work. Bishop
assured Lewis that she could do Owen's work. She was
Contrary to Bishop's claim that she received this money through the mail
at her home, I find it was delivered to her by Toone at the store on March 3,
and that she then and there signed a receipt for it.
0o Toone concedes that Little made it plain that Toone was to follow con-
tractual senionty provisions.
I do not credit Toone's testimony that he asked for a list of checkers I
do not believe that Little would have answered such a request with a list of
all part-time employees. The list is clearly not, as Toone rst stated, limited
to part-time checkers. Further. Toone conceded that contractual seniority
covers all the part-time employees, and I cannot conceive of any value a list
of checkers alone would be in scheduling among all part-time employees All
checkers are part-time employees.
2 Toone's claim that he does not recall Little suggesting he tear up the
letter i discredited.
13 It does not appear that there are any part-time porters or courtesy
clerks
m4 Whether or not Owen or Capps were then doing such work is not clear.
aware that Owen had done some truck unloading. Little
met with Pollard and Lewis on March 17, and agreed to
give Owen's hours to Bishop with the understanding that
she would have to perform Owen's duties satisfactorily. Lit-
tle then called Bishop on March 18. and told her that she
could work the hours of Owen and would he expected to do
the work involved in a satisfactory manner." He also told
her to contact Toone to get her schedule. After this conver-
sation. Little called Toone and told him Bishop would be in
to claim Owen's hours. Toone had already, on March 16.
made out the work schedule for the following week and
posted it on March 17. Owen had been scheduled to unload
trucks on March 22 and 24.1'
Bishop went to the store on March 20 to talk to Toone.'
Toone told Bishop that Little had called him, and advised
her of her work schedule and duties. One of these duties
was unloading freight trucks. Bishop opined that she
thought she could do that." Toone cautioned her that if she
did not satisfactorily perform the duties assigned he would
write her up, and, in the course of enumerating these duties,
mentioned cleaning up the entire parking lot, using a shovel
and wheelbarrow to fill holes with dirt, and that although
she might get Owen's hours he was going to "work her tail
off."
When Bishop came to work on March 21. Assistant
Manager Bowers gave her a list of jobs for her to do that
day. The list had been left by Toone. Bishop finished all the
jobs but one, and received no criticism. That same evening
Bowers instructed her. for from 5 to 10 minutes. on the use
of the wheeled jack which was used to move pallets of
goods weighing several hundreds or thousands of pounds.
The purpose of this instruction was to enable Bishop to
unload trucks as she was scheduled to do. On the afternoon
of this same day, Toone instructed employee Clyde Ryland,
who had never before unloaded the truck, but was assigned
to do so that week, that Bishop was to use the jack and
Ryland was to neither help her use it or use it himself.
Toone further told Ryland to report to him if Bishop could
not handle the jack. Accordingly. Ryland refused Bishop's
request that he help her with the jack, and told her what
Toone had said." I credit the testimony of Marvin Arring-
i I credit Little's version, which he confirmed by letter of March 20 to
Bishop, and do not credit Bishop that Little told her she would have to quit
or be fired if she did not do the job as well as Owen. Little was the more
believable witness of the two.
is There is no evidence to support the General Counsel's speculative sug-
gestion that Toone may have made out the schedule in anticipation of
Bishop claiming Owen's hours.
1i Bishop impressed me as a witness inclined to occasionally embellish her
testimony in her favor, and Toone did not impress me as an entirely candid
witness In my opinion, neither is entirely credible on all points. Estelle
Gaskill., who overheard some of the conversation, seemed frank and forth-
nght, and I do not believe she would be likely to give false testimony adverse
to Toone, who controlled her wages, hours, and working conditions. Federal
Stainless Sink Div. of Unarco Industries. Inc., 197 NLRB 489 (1972). Accord-
ingly, the account of the conversation between Bishop and Toone is a com-
posite of the credible portions of the testimony of all three. with due regard
for logical probability and consistency. Testimony to the contrary is discred-
i ted.
i I credit Toone on this point, and I do not credit Bishop's claim that she
protested to Toone that Owen had never unloaded. At another point in her
testimony, she conceded that she had been told on February 24 that Owen
had done this on one occasion.
1 I find that Ryland did not tell Bishop that Txone said she would be fired
if she did not do the job right, and I do not find that Toone in fact so said.
1099
I)Il(ISIONS OF NATIONAL L.ABOR RELATIONS BOARD
ton, easily the most impressive and forthright witness ap-
pearing hefore me. that he regularly works unloading the
trucks and handles the jack because that is the most difficult
and dangerous portion of the job and he is the largest man
on that job. No woman before Bishop had ever been as-
signed to this job. 2"
After arriving home from work on March 21, Bishop
called Pollard and complained about her assignment to un-
load the freight truck. Pollard called Little after 8 p.m. that
night, and reported Bishop's freight truck assignment. Little
had just returned that day from several days hospitaliza-
tion. He told Pollard that he was tired of hearing com-
plaints from South Hill. from Betty Bishop, and from Mar-
shall Toone, and that inasmuch as Bishop had claimed
Owen's hours she would be expected to perform the work
included in those hours, including unloading the freight
truck if that was part of the work.
On March 22, Bishop and Ryland unloaded the freight
truck without incident. On March 23, Bishop bagged gro-
ceries and did general store duties. The following day,
March 24, her hand slipped off the jack as she was pulling a
load from the truck. She fell backward, injuring her head
and back, was hospitalized for 18 days, and has not since
been physically able to work.
Richard Owen, although not scheduled, was called in to
work on March 22, 23, and 24. On March 22. he worked for
a short time on a register. The rest of those days he did
stock work. He received 2 or 3 hours notice on March 22
and 23, and was told to come in immediately on March 24,
the day of Bishop's injury.
On March 25, while discussing her salary and register
shortages with employee Mary Nichols, Little told her that
she was talking against the company and that he under-
stood that meetings were being held in the homes. 21
B. Discussion and Conclusions
Although Respondent introduced various statistics from
company records, and Toone explained how he prepared
his employee work schedule in accord with projected sales.
profits or losses, and manpower needs, Toone never specif-
ically explained why he did not schedule Bishop to work
after the week ending February 25. Respondent contends
there was economic justification, in effect. for laying off
Bishop, and urges that her selection was caused by Toone
beginning to "assign hours more by seniority among the job
classifications he assigned," and that seniority was used by
Toone "almost2 2 exclusively" to other factors "such as quali-
fications, experience, etc." I have carefully examined the
statistics proffered by Respondent, and I am not at all con-
vinced that they reflect an economic necessity for Bishop's
layoff. The increased hours of Owen and Capps would seem
to militate against such a conclusion. The parties, as may he
expected, argue to opposing conclusions re economics on
the basis of Respondent's records. These records only con-
2 That women may have unloaded meat is. in my view, irrelevant.
1 Little did not controvert Nichols' testimony on this topic, and I credit
her.
22 Emphasis supplied.
vince me that they are not convincing either was, and there
is no need to belabor them further.
Respondent's position, with respect to the slection of
Bishop for layoff: is itself an admission that loone did not
obey Little's order to schedule by seniority. ittle's un-
equivocal instruction left no room for scheduling "more" or
"almost exclusively" b seniority, and when loone contin-
ued to use his self-constructed job classifications. as I find
he did and Respondent's brief concedes when it refers to
"job classifications he assigned," as a tool to modify the
seniority scheduling directed by l.ittle. he disregarded
Little's order and the agreement reached between Respon-
dent and the Union on February 23.2' Any argument that
Bishop lacked the "qualifications, experience, etc." requisite
to perform the work of Owen or Capps is unsupported by
the evidence. Owen and Capps performed routine duties
requiring minimal skill, some of which Bishop had done.
That Bishop could handle these jobs was shown by her later
performance of Owen's work until she was injured through
an accident which does not reflect on her ability to do his
work.
The February 23 meeting was held because Bishop wrote
her grievance letter. It is plain that she was the most out-
spoken complainer among the employees present, and it
was she who caused Toone's actions vis-l-v.is the Bishop-
Rainey incident to be then publicly aired. Furthermore, she
was a leading critic, during this meeting, of loone's sched-
uling methods. Toone was opposed to ittle's request that
he tear up the note on Bishop-Rainey and indignant that he
should be asked to. This is shown by his retention of' the
paper to the very day of the trial before me and his flat
statement that he was not amenable to I.ittle's instructions
on the matter. Little's agreement with the Union and result-
ing insistence on scheduling by seniority effectively disman-
tled Toone's established scheduling practice. Bishop's pur-
suit of grievances was the precipitating cause of Toone's
discomfiture. Toone saw and heard her voice her com-
plaints, and saw and heard Little remedy those complaints
with what amounted to admonitory instructions to Toone.
Toone was in no position at the February 28 meeting to
openly refuse to obey Little's instructions, but he was in a
position to retaliate against the cause of those instructions.
Betty Bishop was that cause.
I have rejected Respondent's proffered reasons for failing
to schedule Bishop, and Toone, who actually did all sched-
uling of hours, gave none. The failure of the proffered rea-
sons, and the failure of Toone to specifically explain why
Bishop was not scheduled, warrant an inference of an un-
lawful reason."4 I am persuaded that Toone took L[ittle's
instruction on scheduling by seniority and applied it to
"checkers," contrary to Little's instruction which was
clearly directed toward the application of strict seniority to
contract classifications,25 for the purpose of reaching
23 That L.itlle later granted Bishop's request fr Owen's hours on the basis
of seniority affirms that the agreement was to schedule by strict seniority.
The caution by Little to Bishop that she must perform satisfactorily does not
affect this conclusion. but, rather. demonstrates that an employee's work
performance was to be evaluated after assignment and an opportunity to
show whether or not the employee could do the work
2 Shatruck Denn Mining Corporation (Iron King BranchJ v. NL R.B.. 362
F.2d 466, 470 (9th Cir. 1966); Sinclair & Ialentine (mpanf,. 223 NLRB
1043, 1046 (1976).
25 That litile's instruction was so directed is illustrated by the content ol
the seniority list he sent to Toone.
I l00
GREAT ATLANTIC AND PACIFIC TEA COMPANY
Bishop, who could not have been reached by application of
seniority to the contract food clerk classification which en-
compasses "checkers" and "stockers." I am further per-
suaded that, in the absence of any other tenable reason
supported by the evidence, the General Counsel has shown
by a preponderance of the evidence, direct and circumstan-
tial, that Toone's action in failing to schedule Bishop was
motivated by his anger at her initiation of and participation
in the grievance procedure which caused him to be publicly
instructed by Little to take actions contrary to his own de-
sires. Contractual grievance activity is protected by the Act,
as is enlistment of union assistance in such activity, and
Toone's failure to schedule Bishop because she engaged in
such activities plainly violated Section 8(aX3) and (1) of the
Act.
Bishop claimed Owen's hours and she, the Union, and
the Company agreed that she could have those hours and
would do the work that was scheduled to be done by Owen
during those hours. The freight truck unloading had been
scheduled for Owen by Toone, and the schedule had been
posted, before he was aware Bishop was claiming Owen's
hours. I see no reason that Respondent was obligated to
otherwise re-schedule its work force after Bishop and
Toone were advised she was replacing Owen and would do
his work, nor do I find any discriminatory motive behind
the scheduling. I am reasonably certain that what Bishop
really wanted was cash register work,'" but that was not the
agreement. It does not appear that Little was discriminator-
ily motivated when he acquiesced in the Union's request to
replace Owen with Bishop. Thus is no evidence that he was
aware of the scheduling of truck unloading for Owen when
he agreed to the employee substitution. Bishop testified that
she knew Owen had unloaded the truck, and that she told
Union President Lewis and Little that she could do Owen's
work. She may not have been contemplating unloading the
truck when she said this, but this was not imparted to Lewis
or Little." Accordingly, I conclude that the General Coun-
sel has not shown by a preponderance of the evidence that
either the scheduling of truck unloading or the assignment
of Owen's work to Bishop was anything more than a bona
fide effort to settle Bishop's grievance over the failure to
schedule her. That the failure to schedule was unlawful
does not, in my view, render unlawful the effort to settle her
complaint in a manner which appeared to be satisfactory to
all concerned.
Toone's treatment of Bishop, after he claimed Owen's
hours and reported to him, is quite another matter. His
threats to write her up for unsatisfactory performance, to
make her clean the entire parking lot, use a wheelbarrow
and shovel to fill holes back of the store, and to "work her
tail off," coupled with the remark that he was going to do
this although she might get Owen's hours, reveal that he
was incensed at her claiming the hours and were threats to
make it harder on her than he had on Owen, even though
she had Owen's hours. Bishop's insistence on the hours of
Owen was patently a protected grievance designed to secure
X The evidence does not show there was sufficient hours of cashier work
available to warrant recalling her to work primarily on the register.
v Moreover, I have found that she told Toone she could do this work.
contractual rights. These March 20 threats by oone to
impose harder working conditions on Bishop were clearly
in retaliation for Bishop's exercising her contractual and
statutory rights, were designed to discourage the exercise of
those rights, and violated Section 8(a)( 1) of the Act.
I regard Toone's orders to Ryland forbidding him from
operating the jack or helping Bishop with it to be a imple-
mentation of his threat to work her harder by making sure
that she did the most difficult part of truck unloading.?'
Toone's orders to Ryland to report if she could not handle
the jack strike me as an effort to gather some evidence of
inability to perform upon which he could rely to further
retaliate against Bishop. This is certainly disparate treat-
ment of employees working on the same job with the delib-
erate assignment of more onerous work to Bishop. I find
and conclude that the disparate treatment and more oner-
ous working conditions following the threats to work
Bishop harder, were visited on her because of her griev-
ances and related union activity and violated Section
8(a)(3) and (1) of the Act. Moreover, I am persuaded that
Toone's action in requiring Ryland's assistance in carrying
out his unlawful purpose put Ryland on notice of his stance
against grievants and restrained and coerced R)land in the
exercise of his Section 7 rights, in violation of Section
8(a)( ) of the Act.2'
Little's remarks to Nichols, on March 25, that she was
talking against the Company went unexplained by Little.
Viewing this statement in conjunction with Little's addi-
tional comment that he understood meetings were being
held in employees' home, which I conclude referred to the
meeting held in Nichol's home T with regard to grievances
to be presented on February 23, 1 am persuaded that Little
was referring either to her participation in that home meet-
ing or the February 23 grievance meeting, or both when he
mentioned talking against the Company. These activities of
Nichols were obviously related to the presentation of griev-
ances and protected by the Act. The remarks bh Little. a
relatively high ranking supervisor of Respondent. to Nich-
ols about her anti-company statements was inherently coer-
cive. tended to restrain her in the exercise of her right to
pursue grievances and other protected activities. and vio-
lated Section 8(a)( ) of the Act. Similarly, his comment
about home meetings was a notification that he was aware
of the meeting she had held, and that he disapproved of
such meetings. This not only interferes with, restrains, and
coerces employees in the exercise of their right to come
together and discuss their grievances, and other Union ac-
tivities but also creates a restraining and coercive impres-
sion that Respondent is monitoring such meetings. Accord-
ingly, I conclude that Little's comment about home
meetings violated Section 8(a)( ) of the Act.
2 I have credited Amngton's testimony on the difficult) of operating the
jack, and note that there is also credible testimony from Arrington that he
was slightly injured once and narrowly missed injury on other occasions
when he was operating the jack. There is also credible evidence that loads
had fallen off the jack in the past.
" Toone's instructions to Ryland were fully litigated, and are closel re-
lated to the complaint allegations with respect to the onerous work imposed
on Bishop. See, generally, Alexander Dawson, Inc d/ba Alexander's Restau-
rant and Lounge. 228 NLRB 165 (1977); Crown Zellerbach Corporation 225
NLRB 911. 912 (1976).
:o There is no eivdence of other home meetings.
l101
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions
drawn therefrom, and upon the entire record in this case. I
make the following:
CONC USIONS OF LAW
1. The Respondent, Great Atlantic And Pacific Tea
Company, Incorporated, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By laying off Betty Bishop, effective the week com-
mencing February 26, 1978, and by imposing more onerous
duties on her effective March 22, 1978, because she engaged
in statutorily protected grievances and Union activities, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
4. By creating an impression of surveillance of employ-
ees' grievance and other Union activities, Respondent has
violated Section 8(aX I) of the Act.
5. By expressing disapproval of employees actively par-
ticipating in grievance and Union meetings, Respondent
has violated Section 8(a)(1) of the Act.
6. By threatening employees with more onerous working
conditions because of their grievance and Union activities,
Respondent has violated Section 8(a)( I) of the Act.
7. By requiring employees to assist it in imposing more
onerous working conditions on other employees who have
engaged in statutorily protected activities, and because said
other employees did so, Respondent has violated Section
8(a)(1) of the Act.
8. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Til R MFI)Y
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist from further violations, post an appropri-
ate notice to all employees, and to make Betty Bishop
whole for wages lost during the period February 26 to
March 22. 1978, for which period Respondent refused to
schedule her to work.
Additionally, I agree with the General Counsel that Bet-
ty Bishop should be made whole for wages lost during the
period commencing March 24, 1978, when she was physi-
cally unable to work due to her injury of that date. Al-
though it cannot be said with absolute certainty that Bishop
would not have been injured had Ryland been permitted to
help her operate the jack, it is probable that she would not.
Toone's firm instructions to Ryland were designed to assure
that his program of working Bishop's "tail off' was imple-
mented. and it is reasonable to conclude that Ryland's as-
sistance to Bishop in operating the jack would have signifi-
cantly reduced both the difficulty and the degree of danger
that accompanied that job, which Arrington convincingly
described. The previous injury to Arrington and previously
spilled loads could not have escaped the attention of Re-
spondent, and I find that Toone was aware of these inci-
dents when he forbade Ryland from helping Bishop. But
for Toone's unlawful restrictions on Ryland's assistance, for
no legitimate cause shown, Bishop's accident and injury
were not as likely to have happened. Placing the sole bur-
den on Bishop to perform the most difficult and dangerous
aspect of the unloading job has been found herein to be an
unfair labor practice. Her disability arose from her attempt
to perform this discriminatory assignment and is patently
not a "usual incident of the hazards of living generally."''
Respondent's unfair labor practice was a substantial con-
tributing factor to her injury, and reason and equity require
she be made whole." Accordingly, I recommend that Betty
Bishop be made whole for wages lost during her period of
disability commencing March 24, 1978." Any portion of
workmen's compensation or other compensation made to
Betty Bishop in replacement of these lost wages shall be
treated as interim earnings and deducted from her gross
backpay.
All backpay herein provided for and interest thereon is to
be computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (19774). Florida Steel requires a rejec-
tion of the General Counsel's request for 9 percent interest.
I shall further order the reinstatement of Betty Bishop to
the position she enjoyed prior to the refusal to schedule her
occurred, at such time as she is physically able to return to
that job.
Upon the foregoing findings of fact. conclusions of law.
and the entire record in this case, and pursuant to Section
10(c) of the Act. I hereby issue the following recommend:
ORDER"
The Respondent. Great Atlantic and Pacific ea ('om-
pany Incorporated, South Hill. Virginia. its officers, agents.
successors, and assigns. shall:
I. Cease and desist from:
(a) Refusing to schedule work for. or imposing more
onerous duties on, employees because they engage in griev-
ances or other union activities.
(b) Threatening employees with more onerous working
conditions because of their grievances or other protected
activities.
(c) Requiring employees to assist in imposing more oner-
ous working conditions on other employees because said
other employees engage in statutorily protected activities.
(d) Interfering with. restraining, and coercing employees
in the exercise of their Section 7 rights by expressing disap-
proval of employee participation in grievance and other
protected activities.
(e) Creating an impression of Respondent surveillance of
employees' meetings concerned with grievance or other pro-
tected concerted or union activities.
" American Manufacturing Companty of Texas, 167 N L.RB 520. 522 (1967)
32 Ibid
a The conclusion of this period shall be determined in compliance pro-
ceedings subsequent to this decision.
"See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962)
i In the event no exceptions are filed as provided by Sec 102.46 or the
Rules and Regulations of the National Labotr Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1102
GREAT ATLANTIC AND PACIFIC TEA COMPANY
(f) In any other manner interfering with, restraining. or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Reinstate Betty Bishop, at such time as she is physi-
cally able to perform the work, to the same position she
occupied prior to February 26. 1978.
(b) Make Betty Bishop whole for any loss of pay she
may have suffered by reason of Respondent's discrimina-
tion against her. Such backpay shall be computed in the
manner set forth in the section of this decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports and all other records required to
ascertain the amounts, if any, of any backpay due under the
terms of this recommended Order.
(d) Post at its South Hill, Virginia, facility, copies of the
attached notice marked "Appendix." Copies of said notice
on forms provided by the Regional Director for Region 5.
after being signed by Respondent's authorized agent. shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter. in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that these notices are not
altered, defaced, or covered by any other material.
(e) Notify' the Regional Director for Region 5. in writing.
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply with this Order.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted hb Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1103