Harris-Teeter Super Markets

National Labor Relations Board - Board Decisions

Jan 29, 1993

310 N.L.R.B. 216 (N.L.R.B. 1993)

216
310 NLRB No. 36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We find, contrary to the Re-
spondent, that the judge’s credibility resolutions were based on his
observation of the witnesses and their demeanor on the witness stand
and not merely on the ‘‘plausibility’’ of their testimony.
2 Harris-Teeter Super Markets, 307 NLRB 1075 (1992).
3 The Respondent filed a cross-exception regarding the appro-
priateness of the bargaining unit. Contrary to the Respondent’s cross-
exception and in accordance with our earlier Decision and Order, we
reaffirm our rejection there of Respondent’s exception to the unit
finding. The appropriate unit is:
All employees employed by Respondent at its Charlotte, North
Carolina, distribution center and bakery including leadmen, dis-
patchers, warehouse clerical employees, drivers, fork lift mainte-
nance employees, refrigeration mechanics and regular part-time
employees, excluding office clerical employees, managerial em-
ployees, professional employees, guards and supervisors as de-
fined in the Act.
4 The letter states: ‘‘The Company maintains the right to change
a person’s hours or shift for up to thirty days (30) without negoti-
ating this change with the Union. These thirty day changes cannot
be concurrent in order to avoid bargaining.’’
Harris-Teeter Super Markets, Inc. and United Food
and Commercial Workers Union, Local 204,
affiliated with United Food and Commercial
Workers International Union, AFL–CIO, CLC.
Cases 11–CA–13198, 11–CA–13588, 11–CA–
13911, and 11–CA–14179
January 29, 1993
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 21, 1992, Administrative Law Judge Robert
A. Gritta issued the attached supplemental decision.
The General Counsel filed exceptions and a supporting
brief. The Respondent filed cross-exceptions, a sup-
porting brief, and an answering brief. The General
Counsel filed an answering brief to the Respondent’s
cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1
and conclusions only to the extent consistent with this
Supplemental Decision and Order.
In our earlier Decision and Order,2 we adopted
Judge Gritta’s findings that the Respondent violated
Section 8(a)(1), (3), (4), and (5) of the Act when it
issued warnings to unit employees, used casual labor
in the cafeteria, changed unit employees’ workweeks,
changed work rules, and removed work from the bar-
gaining unit and assigned it to nonunit employees. The
judge also found that the Respondent engaged in direct
dealing with its employees but, in reaching his deci-
sion, the judge failed to make a crucial credibility de-
termination. Accordingly, we remanded the direct deal-
ing allegation to the judge to determine credibility and
issue a supplemental decision. That supplemental deci-
sion is now before us. We adopt the judge’s credibility
resolutions but reverse his conclusions on the direct
dealing issue.
I. BACKGROUND
The Union became the certified representative of the
Respondent’s employees3 on August 5, 1976. The par-
ties have met on numerous occasions since 1976 but
have failed to reach agreement on a contract. They
have, however, negotiated several side agreements con-
cerning specific workplace issues including an October
25, 1988 letter of understanding, in which the parties
agreed, inter alia, that the Respondent could change a
person’s ‘‘hours or shift’’ for up to 30 days without
negotiating the change with the Union.4
In 1988 Christmas fell on Sunday, a regular work-
day for the salvage dock employees. As a result, the
Respondent decided that the salvage dock employees
would work on their normal day off, Saturday, Decem-
ber 24, leaving them off on Christmas Sunday. Day-
Shift Manager Johnson subsequently decided that it
was more efficient to have the salvage dock employees
work regularly on Saturday rather than on Sunday, and
obtained Warehouse Manager Kiser’s permission to re-
vise the work schedule. Under the old work schedule,
one of the salvage dock employees worked Monday
through Friday, one worked Sunday through Thursday,
and three employees rotated schedules. Under John-
son’s revised schedule, all employees rotated schedules
and their day off changed from Saturday to Sunday.
On January 16, 1989, Johnson called the salvage
dock crew into his office and presented them with the
temporary work schedule that he said was a test of his
theory of efficiency. According to the credited testi-
mony of employees Allen, Rogers, and Craig, Super-
visor Dunegan asked if employees ‘‘liked the change,’’
and Johnson, after passing out the schedule, asked ‘‘if
anyone had a comment’’ and ‘‘who was for it [the
change]?’’ After the employees voiced their objections
to the proposed schedule, Johnson told them that the
new schedule was effective immediately.
Johnson testified that the Respondent did not notify
or consult with the Union before making the work
schedule change because the change was privileged
under the 30-day provision of the 1988 letter of under-
217HARRIS-TEETER SUPER MARKETS
5 In our earlier Decision and Order, we found that the Respondent
was not privileged under the 1988 letter of understanding to make
a unilateral change in the employees’ ‘‘work week,’’ i.e., the phrase
‘‘hours and shift’’ did not waive bargaining rights as to changes in
the workweek.
6 The cases cited by the Respondent are Western Foundries, 233
NLRB 1033 (1977); Oak Cliff-Golman Baking Co., 202 NLRB 614
(1973), on reconsideration 207 NLRB 1063 (1973), enfd. mem. 505
F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975); John-
son’s Industrial Caterers, 197 NLRB 352 (1972), enfd. 478 F.2d
1208 (6th Cir. 1973); and Huttig Sash & Door Co., 154 NLRB 811
(1965), enfd. 377 F.2d 964 (8th Cir. 1967). These cases are distin-
guishable. In Western Foundries, the respondent had instituted a
profit-sharing plan and was explaining the plan and inviting employ-
ees to participate. It did not seek employee input or seek to negotiate
on this issue. In Oak Cliff-Golman Baking Co., the respondent was
suffering financial problems and revoked a wage increase. The re-
spondent advised employees of the predetermined wage reduction
but did not bargain about the issue or solicit employee opinions as
to the reduction. In Johnson’s Industrial Caterers, the respondent an-
nounced a change in operations and thereafter discussed the prob-
lems with the new system with employees. The judge found the re-
spondent’s conduct did not constitute direct dealing with employees
in the normal sense of the word as respondent was not making offers
to employees seeking acceptances nor seeking to induce employees
to repudiate the union. Such is not the case here where the Respond-
ent was seeking employee acceptance of its proposal. And in Huttig
Sash & Door Co., conferences with employees were found to be
‘‘hollow’’ as management had already committed itself to a course
of action in cutting wages. Here, at the time the Respondent spoke
to the employees, it had not yet committed itself to permanent
schedule changes.
standing.5 On January 20, 1989, 4 days after the Re-
spondent instituted the work schedule change, the Re-
spondent and the Union met for a regularly scheduled
bargaining session. The Respondent failed to advise
the Union of the change in the work schedule of the
salvage dock employees at the January 20 session. The
Respondent did not notify the Union of the changed
workweek until the next meeting, held on February 9,
1989.
II. JUDGE’S SUPPLEMENTAL DECISION
The judge found that the testimonial evidence of
Johnson’s meeting with the employees on January 16,
1989, although not identical in substance among all the
witnesses, was for the most part undisputed. Where
dispute existed, the judge credited the testimony of
employees Allen, Rogers, and Craig.
The judge, however, further found that the testimony
of all the witnesses showed that the change in the
work schedule was already effective when the employ-
ees received their copies of the revised schedule. The
judge thus concluded that any objections voiced by the
employees had no effect on the work schedule and
were ‘‘nothing more than idle remarks’’ falling on the
ears of Johnson and Dunegan. He reasoned that be-
cause the work-schedule change was effective imme-
diately on its announcement, neither Johnson nor
Dunegan ‘‘sought employees desires or opinions as
formulative material for the new work schedule when
they assembled the employees.’’ The judge thus con-
cluded that the General Counsel’s proof did not sustain
the allegation that the Respondent had dealt directly
with its employees concerning the proposed changes in
their work schedule.
III. ANALYSIS
As noted, we adopt the judge’s credibility resolu-
tions. Having done so, however, we reverse the judge’s
conclusion that there was no direct dealing. At the
time of the alleged direct dealing, the Respondent and
the Union were engaged in ongoing negotiations and
had regularly scheduled negotiating sessions. The em-
ployees’ work schedule and their days off were clearly
subjects over which the Respondent was obligated to
bargain with the Union. Despite this, the credited testi-
mony shows that the Respondent solicited employee
sentiment with respect to a subject it was going to
raise with the Union in upcoming negotiations—the
changed workweek. It asked the employees if they
‘‘liked’’ or ‘‘were for’’ the change in the work sched-
ule, thus plainly seeking the employees’ views. Con-
trary to the Respondent’s arguments and the cases it
cites,6 the Respondent was not merely ‘‘notifying em-
ployees of a pre-determined course to which the Re-
spondent was committed.’’ Even Shift Manager John-
son admitted that the proposed work schedule change
was temporary and that there would be negotiations
with the Union prior to establishing any permanent
change in the schedule. By soliciting the sentiment of
the employees on a subject to be discussed at the bar-
gaining table, Respondent was usurping the Union’s
function and attempting to arm itself for upcoming ne-
gotiations.
Contrary to the judge, we find it to be of no con-
sequence that the Respondent did not change its posi-
tion after hearing the employees’ negative reactions to
the proposal. As set forth in Obie Pacific, Inc., 196
NLRB 458 (1972), the issue is whether the Respondent
‘‘may attempt to erode a union’s bargaining position
by engaging in a direct effort to determine employee
sentiment’’ rather than discuss such matters solely with
the Union (id. at 458–459). The Respondent ‘‘may not
seek to determine for himself the degree of support, or
lack thereof,’’ which exists for a position that it seeks
to advance in negotiations with the employee bar-
gaining representative. Id. at 459. See also NLRB v.
Wallkill Valley General Hospital, 866 F.2d 632 (3d
Cir. 1989), enfg. sub nom. Alexander Linn Hospital
Assn., 288 NLRB 103 (1988). By seeking to ascertain
employee sentiment on the changed work schedule in
advance of presenting the proposed change to the
Union, the Respondent engaged in direct dealing in
violation of Section 8(a)(5) of the Act.
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Harris-Teeter Super Markets, Inc., Char-
lotte, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Dealing directly with its employees concerning
proposed changes in the employees’ work schedules.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Bargain collectively in good faith with the Union
as the exclusive bargaining representative of all em-
ployees in the following unit:
All employees employed by Respondent at its
Charlotte, North Carolina distribution center and
bakery including leadmen, dispatchers, warehouse
clerical employees, drivers, fork lift maintenance
employees, refrigeration mechanics and regular
part-time employees, excluding office clerical em-
ployees, managerial employees, professional em-
ployees, guards and supervisors as defined in the
Act.
(b) Post at its offices in Charlotte, North Carolina,
copies of the attached notice marked ‘‘Appendix.’’7
Copies of the notice, on forms provided by the Re-
gional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and shall be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT deal directly with our employees con-
cerning proposed changes in their work schedules.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL bargain collectively in good faith with
United Food and Commercial Workers Union, Local
204, affiliated with United Food and Commercial
Workers International Union, AFL–CIO, CLC as the
exclusive bargaining representative of all employees in
the following appropriate unit:
All employees employed by us at our Charlotte,
North Carolina distribution center and bakery in-
cluding leadmen, dispatchers, warehouse clerical
employees, drivers, fork lift maintenance employ-
ees, refrigeration mechanics and regular part-time
employees, excluding office clerical employees,
managerial employees, professional employees,
guards and supervisors as defined in the Act.
HARRIS-TEETER SUPER MARKETS, INC.
Jane North and Joseph T. Welch, Esqs., for the General
Counsel.
J. Howard Daniel and E. Leigh Mullikin, Esqs., for the Re-
spondent.
Eileen Hanson, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This case
was tried before me on January 22, 23, 24, and 25, 1991,
in Charlotte, North Carolina, based on charges filed by
United Food and Commercial Workers Union, Local 204, af-
filiated with United Food and Commercial Workers Inter-
national Union, AFL–CIO, CLC (the Union) in February and
219HARRIS-TEETER SUPER MARKETS
1 Harris-Teeter Super Markets, 307 NLRB 1075 (1992).
2 Undisputed testimony and objective evidence in the record.
November 1989 and July and December 1990 and a com-
plaint issued by the Regional Director for Region 11 of the
National Labor Relations Board on January 8, 1991. The
complaint alleged that the Harris-Teeter Super Markets, Inc.
(Respondent) violated Section 8(a)(1), (3), (4), and (5) of the
Act by changing work assignments of employees, dealing di-
rectly with unit employees, changing work rules, issuing
warnings to unit employees and removing work from bar-
gaining unit employees for assignment to nonunit employees.
Respondent’s timely answer denied the commission of any
unfair labor practices.
My original decision issued September 30, 1991. The
Board’s Decision and Order issued June 30, 1992.1 In its
Order the Board remanded a portion of the case to me for
credibility findings, findings of fact, conclusions of law and
a recommended Order, without reopening the record.
On the entire record in this case and from my observation
of the witnesses and their demeanor on the witness stand,
and on substantive, reliable evidence considered along with
the consistency and inherent probability of testimony, I make
the following
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS OF LAW
The complaint alleges, Respondent admits, and I find that
Harris-Teeter Super Markets, Inc. is a North Carolina cor-
poration engaged in the retail sales of groceries, produce, and
other goods in several States with a warehouse and distribu-
tion center in Charlotte, North Carolina. Jurisdiction is not in
issue. Harris-Teeter Super Markets, Inc., in the past 12
months, in the course and conduct of its business operations
purchased and received goods and materials at its Charlotte
warehouse facility valued in excess of $50,000 directly from
points located outside the State of North Carolina and
shipped products from its Charlotte warehouse facility valued
in excess of $50,000 directly to points located outside the
State of North Carolina and derived gross revenue in excess
of $500,000.
I conclude and find that Harris-Teeter Super Markets, Inc.
is an employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, Respondent admits, and I conclude
and find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. BACKGROUND2
Respondent operates retail grocery stores in Virginia,
South Carolina, and North Carolina. When the bargaining
unit was originally described, a distribution center including
an employee cafeteria and bakery was located at Chesapeake
Drive, Charlotte, North Carolina. The retail grocery stores
were supplied from the distribution center. Sometime later
the distribution center was moved to its present location on
Indian Trail just outside the limits of Charlotte. The cafeteria
continues to operate but the bakery was closed in 1989. The
distribution center, also know as the Indian Trail warehouse,
is the only union organized division of Respondent.
Historically refrigeration service for the retail stores was
administered from the Charlotte distribution center where all
refrigeration mechanics were assigned. At the time of union
certification Respondent employed 7 refrigeration mechanics
to service 55 retail grocery stores and 17 Holly Farms out-
lets. Each mechanics geographic territory was determined by
his personal domicile and the location of retail stores approx-
imate to his domicile. The territories were basically equal in
numbers of stores to ensure proficient servicing. As new
stores were opened and old stores closed the territories were
adjusted to maintain equality and efficiency.
In 1984 Respondent merged with Food World resulting in
a nonbargaining unit group of refrigeration mechanics work-
ing out of the Greensboro warehouse of Food World and a
realignment of all refrigeration mechanics service areas with-
out regard to unit placement. Following realignment 9 bar-
gaining unit mechanics serviced 79 stores and 6 nonbar-
gaining unit mechanics serviced 48 stores. By 1986 the unit
mechanics were 8 in number servicing 75 stores and the
nonunit mechanics numbered 5 servicing 44 stores. Begin-
ning with the merger and continuing today, stores assigned
to refrigeration mechanics on the basis of geography resulted
in unit mechanics servicing stores formerly serviced by
nonunit (Food World) mechanics and vice versa. The dynam-
ics of store openings and closings made realignments nec-
essary constantly and dictate the dual service functions of the
unit and nonunit mechanics.
The April 1988 acquisition of 51 Big Star stores resulted
in 20 new store openings and a territory realignment for me-
chanics in May 1988. The most recent realignment occurred
in March 1989 utilizing eight unit and eight nonunit mechan-
ics for a substantially equal service requirement of each re-
frigeration mechanic.
I take judicial notice of the prior case involving this Re-
spondent tried on September 12 and 13, 1988, with a judge’s
decision issuing December 14, 1988, and the Board Order of
April 10, 1989 (Harris-Teeter, 293 NLRB 743 (1989)), and
the unpublished decision of the Court of Appeals for the
Fourth Circuit dated May 10, 1990 (No. 89–3326, J–2720),
enforcing the Board Order.
III. THE APPROPRIATE UNIT
The complaint alleges and Respondent admits the fol-
lowing to be the appropriate bargaining unit:
All employees employed by Respondent at its Char-
lotte, North Carolina, distribution center and bakery in-
cluding leadmen, dispatchers, warehouse clerical em-
ployees, drivers, fork lift maintenance employees, re-
frigeration mechanics and regular part-time employees,
excluding office clerical employees, managerial em-
ployees, professional employees, guards and supervisors
as defined in the Act.
The Union became the certified representative of Respond-
ent’s employees on August 5, 1976. Although Respondent, in
its answer, denies that the Union’s representation has been
continuous, there is no intervening suspension or withdrawal
of certification by the Board. Therefore the Union remains
the certified representative of Respondent’s employees. Re-
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent amended its answer to admit that the Union was the
exclusive bargaining representative for all periods relevant
herein.
Originally, the distribution center was located on Chesa-
peake Drive in Charlotte and included a bakery, an employee
cafeteria and dispatching of the refrigeration mechanics to
the various retail stores to which they were assigned. Prior
to 1989 the facility was moved to a new location in the envi-
rons of Charlotte known as Indian Trial. Thereafter the bak-
ery operation and dispatch of the refrigeration ceased but the
cafeteria remained in operation. Respecting those evolution-
ary changes the unit description remains substantially accu-
rate.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Direct Dealing with Employees on Changes in Work
Schedules, January 16, 1989
In 1988 Christmas day fell on Sunday, a regular workday
for Salvage dock employees. Sometime before Christmas it
was decided that employees would work Saturday, Christmas
eve, and be off Christmas Sunday. Johnson, day shift man-
ager, realized that the dock worked more efficiently on Sat-
urday than it did on Sunday. The inefficiency focused on the
switcher/spotter, an employee who moves trailers into posi-
tion for the salvage dock employees to work, who also nor-
mally worked Sunday. All the trailers came back to the
warehouse on Saturday and the switcher spotted them on
Sunday. With the switcher working Saturday he could spot
trailers as they came in and some drivers could back their
trailer to the dock rather than leave them shuttered in the
yard. In addition Craig who did not work weekends would
give the dock an extra employee on Saturdays. Craig’s reg-
ular work schedule was Monday thru Friday and he had got-
ten that schedule through the bidding process several years
before. Johnson reported his revised work scheduled to
Kiser, who later gave him the go-ahead. Johnson called the
dock crew into his office and presented them with the tem-
porary schedule which he said was a test of his theory of ef-
ficiency. Johnson testified that either Dunegan, Brewer, or he
asked if the employees had any questions. Johnson only re-
called Craig responding by questioning the rotation of Satur-
day as a day off and stating he wanted to continue Saturday
and Sunday off each week. Johnson then told the employees
that the new work schedule was implemented. Johnson made
the work schedule change without notification to or consulta-
tion with the Union because the 30-day agreement permitted
the Company to do so.
Kiser testified that Johnson suggested a Monday-to-Satur-
day operation for the salvage dock rather than a Sunday to
Friday to improve efficiency of the switcher. One employee
had a set scheduled Monday–Friday, one employee was Sun-
day–Thursday and three employees rotated. The new sched-
ule would rotate all five employees. The change was not ne-
gotiated with the Union because it did not have to be nego-
tiated.
Murray, personnel administrator, in response to Kiser’s
query about adjusting the work schedules of salvage dock
employees told Kiser he could do so in accord with the 30-
day agreement. Murray was on the Respondent’s negotiating
team but did not notify the Union of the change in work
schedules until the February 9, 1989 negotiating session.
Murray explained that Respondent waited until February be-
cause that was the scheduled negotiation. He was aware that
the Union after receiving a proposal usually wanted time to
consider and to investigate.
Dunegan was present when Johnson gave each employee
a copy of the new work schedule. He may have asked the
employees, ‘‘any questions?’’ Dunegan did not ask employ-
ees for opinions because of the old unfair labor practice case.
Dunegan recalled that several employees expressed dis-
pleasure with the new work schedule but it went into effect
immediately. The change was not negotiated with the Union
because the Company can make any changes necessary for
the operation for 30 days.
Several salvage dock employees testified to meeting in
Johnson’s office. Allen stated that Dunegan asked if employ-
ees liked the change and the employees said they did not like
the change. Johnson told the group he would keep track of
the new schedule for 30 days and before the 30 days is up
let the Union know and make a decision. Rogers recalled
that Johnson, after he passed out the new work schedule of
A, B, C teams asked if anyone had a comment. Rogers said
he did not like the new days off preferring his Sunday
through Thursday schedule. Johnson said the new schedule
was effective immediately. Craig remembered Johnson stat-
ing that the workweek schedule would be changed to Mon-
day through Saturday with a rotating day off, for 30 days.
Johnson said it would be better for the switcher and a super-
visor on Saturday would take some pressure off of him.
Johnson asked the group, who was for it? Some said yes,
some said no. Craig said, ‘‘No’’ and Johnson told Craig he
was against it because he now has every weekend off. John-
son said the new work schedule would go into effect the next
day for a 6-week period.
Steward LeGrand testified without contradiction that the
1983 agreement, referred to as the forerunner of the October
1988 letter of understanding respecting Respondent’s right to
change a person’s hours or shift, was based on a shift change
from night shift to day shift to accommodate production.
There was no temporary workweek schedule change and cer-
tainly no permanent change. Also the 1986 settlement agree-
ment alluding to produce employees involved Respondent’s
unilateral change of an employee’s work schedule at Christ-
mas time without negotiating the change with the Union.
LeGrand stated that Respondent has, since 1986, bargained
with the Union over changing workweek schedules during
holidays and special occasions such as Super Bowl Sunday.
Union Representative Hanson’s testimony echoed
LeGrand’s relative to the 1983 agreement as a basis for the
1988 letter of understanding and the past practice of Re-
spondent bargaining with the Union over changes in work-
weeks since 1986. Particularly 1987 that dealt with changes
in several departments including the salvage dock. Hanson
also stated that on January 20, 1989, 4 days after Respondent
initiated the new workweek schedule, the parties met in a
scheduled negotiation. The Company did not notify the
Union at that time of the changed workweek for the salvage
dock employees. At the February 9 meeting the Company in-
formed the Union of the change made on January 16 and
proposed making the change permanent. The Union objected
to the manner and means of the change and the workweek
reverted in late February.
221HARRIS-TEETER SUPER MARKETS
The objective evidence in the record shows that following
by only months the 1986 settlement agreement, which in-
cluded proscriptions against changing the working conditions
of bargaining unit employees, Respondent changed the work
schedule of a produce employee without negotiation with the
Union. The work schedule change was settled September 11,
1987, with an official, ‘‘Notice to Employees,’’ declaring
that Respondent would not unilaterally make such changes
again. Subsequent bargaining included proposed changes in
hours and days of the salvage dock employees and the build-
ing and grounds department employees. However, in March
1988 Respondent dealt directly with employees in the sal-
vage dock in an attempt to institute a 4-day workweek admit-
ting to the employees that such a change had to be discussed
with the Union. Respondent’s direct dealing was found an
unfair labor practice in December 1988, Harris-Teeter, supra.
Analysis
Dealing Direct:
The record evidence of Johnson’s meeting with the sal-
vage dock employees on January 16, 1989, to announce a
change in the work schedule, although not identical in sub-
stance among the witnesses, is basically undisputed. Dunegan
and Johnson admitted that the employees may have been
asked, ‘‘any questions’’ and Allen recalled that Dunegan
asked, ‘‘If employees liked the change.’’ Rogers recalled that
Johnson, after passing out the new schedule, asked if anyone
had a comment and Craig remembered that Johnson, after
announcing the change in the work schedule, asked the
group, ‘‘who was for it?’’ Kiser, Murray, and Johnson testi-
fied without contradiction to the genesis of the changed work
schedule. It would be most unusual for several witnesses to
recall a colloquy between supervisor and employees, identi-
cally. Here, although the words and phrases differ, the sub-
stance does not change. Allen, Rogers, and Craig had pre-
viously set days off resulting from bid procedures or senior-
ity choices and were most effected by the schedule change.
It is most plausible that they would be attentive and worthy
of belief when recalling the incident. In addition each of the
three employees testified in a forthright and direct manner
making a genuine effort to recall the event as it happened.
I therefore credit the accounts of Allen, Rogers, and Craig
with regard to statements made or questions asked at the
crew meeting. However, the testimony of the employee wit-
nesses as well as that of the supervisors shows conclusively
that the change in the work schedule was effective at the
time the employees received their copies of the schedule in
the meeting. Any objections voiced by the employees in re-
sponse to any statement or question by Johnson or Dunegan
had no effect on the substance of the work schedule. Em-
ployee responses were nothing more than idle remarks falling
on the ears of Johnson and Dunegan. In view of the undis-
puted immediate effectiveness of the work schedule change
I conclude, on reflection, that neither Johnson nor Dunegan
sought employees’ desires or opinions as formulative mate-
rial for the new work schedule when they assembled the em-
ployees. The uncontroverted and credited testimony evinces
that the changed work schedule was Johnson’s product and
was completed prior to the meeting with the employees and
without input from any salvage dock employee. Therefore,
the General Counsel’s proof does not sustain her complaint
allegation in paragraph 17(b) that Respondent dealt directly
with its employees concerning proposed changes in their
work schedules.
ADDITIONAL CONCLUSIONS OF LAW
The General Counsel has failed to prove that Respondent
dealt directly with its employees concerning proposed
changes in their work schedules.
[Recommended Order omitted from publication.]