Harris-Teeter Super Markets, Inc.

National Labor Relations Board - Board Decisions

May 10, 1979

242 N.L.R.B. 132 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harris-Teeter Super Markets, Inc. and Local 525,
Meat, Food and Allied Workers Union, Amalga-
mated Meat Cutters & Butcher Workmen of North
America, AFL-CIO. Cases I CA-6827, I-CA-
6964, and 11-CA-7122
May 10, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On December 27, 1978, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed an answering brief and cross-exceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.
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-
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir, 1951). We have carefully examined the
record and find no basis for reversing his findings.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full con-
sideration of the record, we perceive no evidence that the Administrative
Law Judge prejudged the case, made prejudicial rulings, or demonstrated
bias against Respondent in his analysis or discussion of the evidence.
2 In his remedy, the Administrative Law Judge provided that the backpay
period for the unfair labor practice strikers entitled to reinstatement shall
commence February 27, 1977-5 days after Respondent's receipt of the
Union's unconditional reinstatement request-and continue thereafter until
an offer of full reinstatement is made. The Board has found that the 5-day
period is a reasonable accommodation between the interests of the employ-
ees in returning to work as quickly as possible and the employer's need to
effectuate that return in an orderly manner. Drug Package Company, Inc.,
228 NLRB 108 (1977). Accordingly, if Respondent already has rejected or
hereafter rejects, unduly delays, or ignores the unconditional offer to return
to work or attaches unlawful conditions to its offer of reinstatement, the 5-
day period serves no useful purpose, and backpay will commence as of the
unconditional offer to return to work. National Car Rental System, Inc., Car
Rental Division, 237 NLRB 172 (1978); Newport News Shipbuilding & Dry
Dock Company, 236 NLRB 1637 (1978). For the reasons set forth in their
dissent in Drug Package Company, Inc., supra, Chairman Fanning and Mem-
ber Jenkins would not automatically grant this 5-day grace period. Neverthe-
less, they acknowledge that, until such time as the majority view approving
this practice changes, they are institutionally bound by this position.
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Harris-
Teeter Super Markets, Inc., Charlotte, North Caro-
lina, 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 paragraphs 2(a) and
2(b):
"(a) Offer William Huntley immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole in ac-
cordance with the recommendation set forth in the
section entitled 'The Remedy.'
"(b) Offer the employees listed on Appendix B
[Appendix B omitted from publication] immediate
and full reinstatement (to the extent it has not already
done so) to their former positions or, if such positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges previously enjoyed, and make them whole
for any loss of pay or other benefits suffered (com-
mencing February 27, 1977) as a result of the refusal
to timely reinstate such employees upon their uncon-
ditional offer to return to work from an unfair labor
practice strike engaged in by such employees. Such
backpay and other benefits are to be computed in the
manner set forth in the section herein entitled 'The
Remedy.'"
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
not found herein.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their union interests, sympathies, strike
intentions, or other union activities in a manner
constituting interference, restraint, or coercion of
employees engaged in the exercise of rights un-
der Section 7 of the Act.
WE WILL NOT create the impression in employ-
ees that their union activities are regularly being
kept under surveillance by telling our employees
that individual employee union activists in our
different departments have been identified or by
seeking to determine from our employees the
names of leading strike proponents and indicat-
ing to employees that we intend to suppress the
protected activities of those employees.
242 NLRB No. 32
132
HARRIS-TEETER SUPER MARKETS. INC.
WE WILL NOT in an unlawful manner more
strictly enforce our tardiness and doctor certifi-
cate rules contrary to our practices thereon exist-
ing prior to August 5. 1976.
WE WIl. NOI promise raise increases to em-
ployees to influence them to refrain from joining
employees on strike.
WE WILl NO threaten our employees with
discharge for engaging in protected activity in
support of the Union. including strike activity, or
threaten that we will make it as hard as possible
on our employees who have supported the
Union. or threaten that identified leading union
adherents will be the first to be discharged.
WE WILL NOT discourage our employees from
membership in, or support of, Local 525, Meat.
Food and Allied Workers Union. Amalgamated
Meat Cutters & Butcher Workmen of North
America, AFL CIO, or any other labor organi-
zation or from engaging in protected concerted
activities by discharging our employees, by oth-
erwise discriminating against employees, or by
refusing to timely reinstate unfair labor practice
strikers upon their unconditional offer to return
to work.
WtE WIl. NOI in any other manner interefere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them under Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WIlu.I offer William Huntley immediate
and full reinstatement to his former job or, if
such job no longer exists, to a substantially
equivalent job, without prejudice to his seniority
or any other rights or privileges previously en-
joyed, and WE WILL make him whole for any loss
of earnings he may have suffered by reason of
our unlawful discrimination against him, with in-
terest.
WE WtIt offer the employees listed on Appen-
dix B (to the extent we have not already done so)
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges enjoyed, and WE WILL make them whole
for any loss of pay or other benefits suffered
(commencing February 27, 1977) as a result of
the refusal to timely reinstate such employees
upon their unconditional offer to return to work
from an unfair labor practice strike engaged in
by such employees. with interest.
HARRIS-TEETER SUPER MARKETS, INC.
DECISION
SIA rEMENII OF ItF CASI
RoBiRI G. ROMANO. Administrative Law Judge: A hear-
ing in consolidated Cases 11-CA 6827 and 11 ('A 6964
was held initially at Gastonia, North Carolina. on June 14
17, 1977, and then at Charlotte, North Carolina. on July
13 14, 1977. Further, a hearing on ordered consolidation of
Case I I ('A-7122 was held on March 28-30. 1978. at Cias-
tonia. North Carolina. On a charge in Case I1 ('CA 6827.
filed by the Union on November 23, 1976. an original com-
plaint had issued on January 25., 1977. Following the
Union's filing of a charge in Case I I CA 6964 on March
17, 1977 (amended April 6). an order consolidated cases
and consolidated complaint in cases I1 -CA 6827 and 11
CA-6964 issued on April 7, 1977 (amended May 10). That
consolidated complaint, as amended, and as further
amended at the opening of the hearing. alleged: (a) exten-
sive violations of 8(a)( I) generally in the period of mid-
July-August and November 1976,1 (b) discriminatory dis-
charges of employee William Huntley on September 29 and
employees Joseph Nicholson and Kirkpatrick Carr on De-
cember 6. and (c) that a certain strike which commenced on
November 17 was an unfair labor practice strike in that it
was caused and prolonged by the above-alleged discrimina-
tory discharges and by the failure of Respondent to remed`
certain other unfair labor practices in previously heard con-
solidated Cases I -CA 6308 and II CA 6542.: Helpful
briefs on the initial consolidated proceeding Cases 11 CA
6827. 6964) were timely filed by General Counsel and the
Charging Party on or about September 12. 1977.
In the interim. the original charge in Case 11 C(' 7122
had been filed by the Union on July 21. 1977 (amended
December 13). A complaint in Case II CA 7122 issued on
January 11. 1978. alleging that on February 19. 1977. 152
(named) employees. who had engaged in the above-alleged
unfair labor practice strike or other concerted activities,
had made an unconditional offer to return to their former
or substantially equivalent positions of employment and
that since that date Respondent had failed and refused to
immediately reinstate the named employees, all in further
violation of Section 8(a)( I) and (3) of the Act. On January
20, 1978. Respondent filed timely answer in Case II ('A
7122, denying the commission of any' unfair labor practices
and praying that the complaint be dismissed. On January
24, 1978. General Counsel filed a motion to reopen record
(in consolidated Cases I I CA 6827 and 11 CA 6964) and
a motion for Case I 1-CA-7122 to be ordered consolidated.
contending these matters had already been fulls litigated.
On January 31. 1978, an Order To Show Cause issued with
response by the parties returnable by February 14, 1978.
B All dates referred to herein are in 1976 unless shown otherwise.
2On February 23. 1977. Administrative Law Judge Henry L. Jalette issued
a Decision wherein he found that Respondent had engaged in certain unfair
labor practices in iolation of Section 8(aX I). 3), and (4) of the Act On
August 31. 1977. the Board affirmed. Harris-Teeter Super Markets, Inc., 231
NLRB 1058 11977). As requested b General Counsel and the Charging
Party I shall take official notice (as appropriate) of those prior proceedings
as background bearing on matters of the instant pro,'eeding. (See sec. Ii. D)I.
infra). Reinforcing Iron Workers, Local mnion 426, Internainal .4ssotiauion,
of Bridge, Structural and Ornamental Iron Workers, A FL -CIO Bro. n Bros .
Inc J. 238 NRB 4 (1978).
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 6, 1978. the Charging Pary filed a second
amended charge in Case1 CI-CA 7122. Thereupon, the
General ounsel filed a motion to amend complaint' (in
Case 11 (CA 7122) and a further response in support of a
reopening and consolidation; as did the Charging Party.
Respondent filed a response (in opposition) contending that
although the prior consolidated complaint had alleged an
unfair labor practice strike, the complaint in Case I -CA
7122 has now specifically named 152 individuals as "strik-
ers" who allegedly had made unconditional offers to return
to work and asserting that certain of its available defenses
thereto had not been litigated: namely, that certain jobs
had been legally abolished, that certain of the named em-
ployees had not in fact gone on strike, that others had never
in fact offered to return to work, and that still others had
subsequently refused offers of reinstatement. Respondent
thus demanded that hearing be provided on such issues,
while alternatively urging that the complaint in Case II-
CA-7122 be dismissed in its entirety and that such matters
as were raised in that complaint be handled in a future
compliance proceeding in Cases I -CA-6827 and 11 CA-
6964, when and if appropriate. None of the prior consoli-
dated complaint proceedings in Cases 11 -CA-6827 and I
CA-6964 had specifically alleged a refusal by Respondent
to reinstate any strikers as being violative of Section 8(a)( I)
and (3) of the Act. Upon full consideration of all the above
premises shown, the record in consolidated Cases I1 CA
6827 and 11-CA-6964 was ordered reopened, the com-
plaint allegations of Case 11 -CA-7122 ordered further con-
solidated, and the amendment of complaint in I I-CA 7122
allowed. As noted, the latter consolidated issues came on
for hearing on March 28-30, 1978. All parties have now
filed timely and helpful briefs on or about May 16, 1978.
On the second day of resumed hearing Respondent for the
first time raised a contention that Section 10(b) of' the Act
effectively bars all complaint allegations of failure to rein-
state strikers as being in violation of Section 8(a)(3) and (1),
excepting to three named strikers as alleged in initial charge
filed in Case II CA-7122 on July 21, 1977. 1 find such
contention to be without merit for reasons fully discussed
infra. (See sec. 11, El.)
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Company, and
the Union, I make the following:
FINDINGS OF FACT
I. JURISDI('TION
The Company is engaged in the retail sale of groceries,
produce. meats, and other goods, with retail store facilities
located throughout the States of North Carolina and South
Carolina and with its general office and central warehouse
located at Charlotte, North Carolina. During a material 12-
month representative period the Company sold and distrib-
uted goods valued in excess of $500,000, and during the
same period the Company purchased and received goods
The desired amendment essentially was to add the name of an employee
who inadvertently had been omitted in the amended charge in Case I ICA
7122 and subsequently in the complaint issued thereon.
(at its warehouse) valued in excess of $50,000 directly from
points located outside the State of North Carolina. There is
no dispute, and I find that the Company herein is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act. I further find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. HE AI.I.EG(ED UNFAIR ABOR PRA(CI1CES
A. Background
1. Respondent's operations
Respondent is engaged in the operation of some 62-64
retail stores located essentially throughout the States of
North Carolina and South Carolina. Respondent operates a
large warehouse and distribution center at Charlotte, North
Carolina, servicing its retail stores. Respondent presently
employs some 3,000 or more employees in all its operations.
However, Respondent's Charlotte warehouse facility is the
only facility involved in this proceeding. Presently Respon-
dent employs some 290 employees in an appropriate unit
essentially of warehouse employees, drivers, and garage me-
chanics, for whom the Union presently is the certified col-
lective-bargaining representative.
2. Statement of the issues
The essential issues presented for resolution in the instant
proceeding appear to be:
a. Alleged interler/erence, restraint, and coercion in violation
of Section 8(a)(lJ
A determination must be made as to whether Respon-
dent, in a period immediately preceding an election, inter-
rogated employees as to who would vote for the Union in
certain departments, by certain statements created the im-
pression of surveillance of employees' protected activity,
threatened employees with a proposed discharge of known
union activists. in the period immediately following the
election initiated a more strict enforcement of its tardiness
and doctor certificate rules, and otherwise told certain of its
employees that it was going to make it as rough as possible
on employees who had voted for the Union; and whether
Respondent (in a prestrike and immediate poststrike pe-
riod) continued interrogations of its employees as to the
names of union members or of employees with union sym-
pathies and who would go out on strike, threatened em-
ployees that if they went out on strike they would be termi-
nated and not rehired, sought to dissuade employees from
engaging in strike activity by unlawful promise of raises,
informed employees who participated in the strike that they
were discharged for striking and told employees to tell other
employees the same thing, and coercively told employees it
was futile to support the Union.
b. Alleged discriminatorv discharges in violation of Section
8(a)(3) and (1)
It must also be determined whether the September 29
discharge of William Huntley, a conceded top truckdriver
134
HARRIS-TEETER SUPER MARKETS, INC.
with approximately 5 years' service and known to be a
member of the employees' negotiation committee since Sep-
tember 20, was based on pretextual reasons and was in fact
discriminatorily accomplished in violation of Section
8(a)(3) and (1) of the Act and whether alleged terminations
on December 6 and subsequent refusal to reinstate striking
employees Joseph Nicholson and Kirkpatrick Carr were
also pretextual and acts accomplished in violation of Sec-
tion 8(a)(3) and (I) of the Act.
c. The alleged unfair labor practice strike
It must be determined whether a certain strike which
commenced at 3 p.m., November 17, was caused and/or
prolonged by Respondent's prior and presently alleged un-
fair labor practices.
d. Reinstatement of strikers Respondent's defenses
If the allegation in section c, above is true, it must be
determined whether Respondent has unlawfully refused to
reinstate, or timely reinstate, 155 unfair labor practice strik-
ers specifically named in the complaint (as amended), in
violation of Section 8(a)(3) and (1) of the Act.
Noteworthy subordinate issues of defense as raised by
the Respondent would appear to be whether there was un-
lawful refusal to reinstate striking employees Margie F.
Kiser, Pamela Ledford, and John Thomas Caddell, whose
former jobs, it is conceded, were in the interim lawfully
abolished, and whether certain other of the named employ-
ees never went on strike, have never offered to return un-
conditionally to work, or have refused lawful offers of rein-
statement.
e. Remedy
The issue here is one of the fashioning of an appropriate
remedy for any violation(s) of the Act which may be found
warranted by the evidence, with requests for certain special
remedies being urged by the Charging Party.
B. The Alleged Acts of Interference, Restraint and Coercion
Preliminary Statement
August 5 and November 17 are the two central event
dates about which most of the independent 8(a)(l) com-
plaint allegations are observed to revolve. Thus, an election
was scheduled and held on August 5. The Union was at
that time designated by a majority of the employees in an
appropriate unit essentially of warehousemen, drivers, and
garage mechanics as their collective-bargaining representa-
tive by a vote of 163 to 116. The General Counsel argues
that just prior thereto Respondent had promptly resumed
its unlawful campaign against the Union despite, and im-
mediately after, the hearing on the earlier consolidated pro-
ceedings which had closed on July 1.4 General Counsel con-
tends that the evidence herein established that the
Employer has continued its antiunion campaign unabated.
4 Harris Teeter Super Markers, Inc., supra.
The Charging Party has also urged that the matters of con-
solidated complaint before me should be addressed in chro-
nological sequence and also in relationship to prior pro-
ceedings. in order that there may be evidenced the
continuing pattern of conduct by Respondent in resistance
before and after the employees selection of the Union as
their collective-bargaining representative and the manner in
which its acts intensified in degree of hostility to the Union
thereafter, all of which conduct, unremedied, led inexorably
to the certain strike which occurred on November 17.
Both General Counsel and the Charging Party thus con-
tend that the strike was in nature, from its inception and
throughout its duration, an unfair labor practice strike. To
the extent deemed feasible, such approach is made to the
allegations and the consideration of the supporting evi-
dence. At the outset, I note that a not insignificant number
of the complaint allegations of interference, restraint, and
coercion on which General Counsel and the Charging Party
presented supporting evidence were ineffectively or even
simply not met at all by Respondent. Respondent nonethe-
less urges that the strike was an economic strike brought on
simply by contended union economic dissatisfactions with
the progress of negotiations during the several negotiation
meetings which were held following the commencement of
negotiations on September 29.
I. Election period 8(a)(1)
Employee Douglas Dover worked as a leadman in the
produce department for some 8 months and did so up until
about 3 weeks after the election, at which time Dover asked
for and received a transfer. Tom Nance was the supervisor
of the produce department. John Crawley was a night fore-
man in the meat department. Both Nance and Crawley are
admitted supervisors within the meaning of the Act. Dover
testified that in Jul3 Supervisor Nance had questioned him
in the produce office' as to how many employees Dover
thought would vote for and against the Union and specifi-
cally had asked Dover who in the produce and frozen foods
department would vote against the Union. Dover replied
that he was going to vote against the Union and also iden-
tified by name four other employees who would similarly
vote against the Union, also telling Nance that, other than
that, everyone he knew would vote for the Union. Nance
told Dover that the Company knew the people who were
pushing for the Union, that they knew employee John
Johnson was one of the people that had been pushing to get
the Union in, and that Johnson would be one o the first
people fired because of his activities. Dover's testimony in
the above matters was given with clarity and conviction. In
contrast, neither Nance nor Jonas testified at all. I credit
Dover. I find that Respondent, during the month of July
and prior to the election, unlawfully interrogated employees
The record reveals that Jim Jonas, health and beauty aids manager talso
an admitted supervisor), was in the room with Nance and had initially asked
Dover how Dover thought the union election would go. and that Dover had
initially replied to Jonas that he thought the Union would be voted n The
inquiry of Jonas was not alleged as an independent violation Jonas did not
testify. Under the circumstances of the violations otherwise found herein, I
deem it unnecessary to reach the issue whether this matter should be consid-
ered as one full) litigated What is deemed noteworthy is the fact that neither
Nance nor Jonas testified in contradiction of Dover.
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to who and how many employees in the produce and
frozen foods department would vote for and against the
Union in the upcoming election; effectively created the im-
pression that the union activities of employees were being
kept under surveillance by informing an employee who had
been so interrogated and who had revealed the union inter-
ests of certain other employees that the Company knew
who was actively pushing the Union, identifying one such
employee by name; and that Respondent had then further
coerced and threatened its employees by stating that the
identified active union adherent would be one of the first
people discharged because of his union activities, all in vio-
lation of Section 8(a)(1) of the Act.
Dover also testified that around July 12 foreman John
Crawley had walked through the produce department and
also engaged Dover in a conversation about the Union as
Dover was working on the produce loading dock. Thus,
Dover related that Crawley had asked Dover how he
thought the election would go. Dover replied that he
thought the Union would be voted in. Crawley then told
Dover that if the Union were voted in, a lot of people
would be disappointed because the Union would not be
able to keep all of the promises that it had made. According
to Dover, Crawley also told him that the Company knew
who had been pushing for the Union. Crawley added that
he knew that in his department (composed of 22 employees)
Arthur O'Shields was one of the people trying to get the
other people to join the Union and that O'Shields would be
one of the first people gone. Crawley, when called as a wit-
ness by Respondent, confirmed he had told Dover that
O'Shields was a supporter of the Union, explaining, how-
ever, that O'Shields had previously told Crawley that he
supported the Union. Crawley denied he had told Dover
that O'Shields was going to be terminated and that on one
occasion prior to the strike he had said that Respondent
was going to operate regardless of the walkout or who
walked out and that employees would be replaced. On
cross-examination Crawley admitted that he had received
earlier instructions from his superiors to talk the Union
down, but he nonetheless asserted he did not try to discour-
age any employee from supporting the Union. Crawley ac-
knowledged that in mid-July he was aware Dover was not a
union supporter and in contrast admitted that O'Shields
was then known by him to be a big (active) supporter of the
Union. Finally, Crawley eventually admitted that he did
not really remember the conversation with Dover, confirm-
ing that he originally had told a Board investigator also that
he did not recall a conversation with Dover about any
union supporter. I have earlier found that Dover's testi-
mony was credibly given without contradiction on other
matters. As to the Crawley conversation, Dover's recollec-
tions also remained substantially unaffected by cross-ex-
anination. In contrast, Crawley's recollections in these
matters became noticeably weakened with cross-examina-
tion, to the point of appearing much less plausible, and his
recollections, accordingly, I find substantially less convinc-
ing. I credit Dover on these matters as well. I further find
that by the above acts of interrogation and statements
which reasonably tended to create an impression of surveil-
lance, and which included coercive threats of future dis-
charge of a specific employee for engaging in union activi-
ties, that Respondent has additionally violated Section
8(a)(1) of the Act.
The complaint herein alleges that Respondent more
strictly enforced its tardiness rule after the election. There
was considerable evidence offered on this allegation. Do-
ver's transfer out of the produce department was accom-
plished some 3 weeks after the election. I have earlier noted
that for a period of 8 months prior to that transfer, Dover
had been leadman in the produce department. Within a few
days after the election, Department Supervisor Nance in-
structed' Dover that if any employee was late, even a min-
ute late. Dover was to write the employee up. According to
Dover, the prior unwritten rule (practice) had been that
employees were not written up before being 15 minutes late,
indeed, if written up at all. Dover testified without testimo-
nial or documentary contradiction that he subsequently
had written up everybody in his department at one time or
another (in those 3 weeks). It is noteworthy also that Nance
had specifically instructed Dover that Dover was not to
inform the employees that they were being written up for
being tardy, though Nance told Dover the writeups were
nonetheless to be put in employees' files. As Nance did not
testify, Dover's testimony, again, was uncontradicted. I
credit it.
Hugh Ashcraft has been president of Respondent since
1973 and a member of its board of directors since 1963.
Testifying as to Respondent's tardiness policy, generally
Ashcraft related that there never was a time when an em-
ployee could come in late less than 15 minutes without the
Company making some note or record of it and that he
presumed the rule on tardiness was that an employee who
was I minute late was tardy. With the exception of drivers,
employees punched a timeclock, which thus generated a
permanent record of the time of arrival of the employee. No
evidentiary claim is made by any of General Counsel's wit-
nesses that they did not have established schedules or that
they could be 14 minutes late and expect to be paid for that
time. Rather, the thrust of the testimony of Dover and of
other employees, in the meat department, supported by
considerable documentary evidence, was that there was a
change in the writeup procedure on incidents of tardiness.
Ashcraft's testimony thus does not squarely address Gen-
eral Counsel's evidence as to the contended changes in the
implementation of the tardiness rule, viz, the evidenced
changes in tardiness rule writeup procedure.7
President Ashcraft did acknowledge that he was not di-
rectly involved in definitive implementations of tardiness
(and sick leave) policy for the distribution center, as were
Bill Mitchell, director of distribution, and Godfrey Bennett,
the newly hired vice president of employee relations. Ben-
' All parties agreed and I find that Dover was not a supervisor within the
meaning of the Act, but functioned routinely as a leadman in these matters,
following supervisory instructions.
At one point at the hearing, it appeared Respondent was contending the
writeups were of no real significance, as they were not necessarily put into
the employees' files or disciplinary in themselves. However, Godfrey Ben-
nett, vice president of employee relations (since arrival on September 20).
testified that such writeups when forwarded to him in personnel were placed
in the employees' files: and there is record support to warrant conclusion
they were then serviceable to form the basis of further disciplinary evalu-
ations, including written reprimands. I thus would reject any contention by
Respondent that tardiness writeups here under discussion were not intended
in nature to constitute part of a potential disciplinary process or may be
regarded otherwise as matters of no substance.
136
HARRIS-TEETER SUPER MARKETS, INC.
nett testified that the overall policy implementation for the
distribution center was (at that time) one previously devel-
oped by Bill Mitchell and that it was Mitchell who deter-
mined whether certain forms and reports went into an em-
ployee's file. Bennett confirmed that if forms (writeups)
were forwarded to personnel, they were then put in the
given employee's file. However, Bennett was unable to tes-
tify whether all writeups made had been forwarded to per-
sonnel. Mitchell testified that the rule on tardiness was that
if an employee was a minute late, the employee was tardy.
According to Mitchell, the policy further was that an em-
ployee who was tardy was to be written up. Mitchell con-
firmed that all writeups went through him. Mitchell testified
that the tardiness policy was contained in certain written
rules and procedures.' However, the rule, in pertinent part,
did not so specifically provide.9 It was also Mitchell's recol-
lection that he had held a supervisory meeting prior to La-
bor Day in which there was discussion of the subject matter
of employees (as customary) working the upcoming holiday
and that the subject of writeups for late arrivals had also
been mentioned. Mitchell recalled that Supervisor Tom
Nance (produce department) had stated that in his depart-
ment he had been allowing 15 minutes before writing up an
employee for tardiness. According to Mitchell, Nance in his
practice of allowing an employee to be 15 minutes late be-
fore writing the employee up had simply misunderstood the
rule's reference to 15 minutes and had acknowledged such
in the meeting. Mitchell testified Nance was the only super-
visor doing so.'0 Mitchell confirmed that he had been told
all the supervisors that there was nothing in the company
rules which requires employees to be allowed 15 minutes
(grace) and instructed them that (tardy) employees should
be written up. I note in passing that even the contended
written rule relied upon by Mitchell is at best silent on a
policy implementation of when employees are to be written
up for being tardy. The matter thus involves consideration
of unwritten established practice (if any) of Respondent.
Not only did Nance not testify at all, and thus fail to cor-
roborate Mitchell in the above particulars, but I further
note that none of the other supervisors (including John
Watson and Doug Jones, who did testify on certain other
matters) have corroborated Mitchell in his recollections of
that discussion with Nance or other supervisors in that
meeting as to their actual past practice, i.e., tardiness
writeups. On the point of written rules relating to tardiness,
I do note that Dan Price, supervisor of transportation (over
some 60 drivers), did testify there was a written notice
The matter of wntten rule posting and/or distribution is discussed more
fully infra. Suffice it to note at this juncture that although these wntten rules
(in form) provided for employee signature in acknowledgment of having read
and understood the rules, no individual execution by any employee was
offered in evidence.
9 The rule provided in full:
(14) LATE TO WORK-ABSENTEEISM: All employees must call his
supervisor no later than fifteen (15) minutes before reporting time if he
is going to be late reporting for work. Employee arriving late must
report to their supervisor or foreman before beginning work.
The direct phone numbers are-Grocery Department-394-5955, Meat
Department-399-6873, Produce Department-394-5065, Warehouse
Office-394-5498, Transportation Office-394-5963.
10 This meeting was attended by some seven department supervisors. Not
present were some 14 (first-line) foremen under the above supervisors.
posted by him on that subject, dated May 2, 1974.' That
notice, addressed to all company drivers, provided:
SUBJECT: REPORTING FOR WORK AS SCHED-
ULED
Effective this date each driver is to report for work on
or 5 minutes before scheduled reporting time.
If for any reason you should report for work later than
your scheduled reporting time a written notice will be
prepared stating the facts of your lateness. The notice
will then be placed in your driver file for review each
month.
EXAMPLE: John Doe - Due in at 5:00 am
- Reported - 5:05 am (late)
However, Price's testimony in support of Mitchell other-
wise that drivers were to be written up for being I minute
tardy was not corroborated by the testimony of Transporta-
tion Foreman Preston Little as to the practice relative to
even the drivers. Thus, Little (on rebuttal) testified that a
driver was not written up until he was 5 minutes late. (I
note the relation of such practice to the specific example
given on the notice.) Perhaps more significantly, Price was
not corroborated by any documentary evidence that a
driver was ever written up for being less than 5 minutes
late, either before or after the election.
General Counsel offered other evidence in support of the
complaint allegation that Respondent had effected a
change in its tardiness rule implementation, which I find
Respondent also has unconvincingly met. Thus, employee
James E. Mobley, who was seldom late, testified that it was
either Supervisor Doug Jones or Supervisor John Watson
who told him shortly after he started to work (June 1974)
that if he came in up to 15 minutes late, nothing would be
held against him, though Mobley understood that he would
not be paid for such time. Mobley also testified in a con-
vincing manner on this matter. In contrast, neither supervi-
sor Jones nor Supervisor Watson, both of whom testified on
other matters, contradicted Mobley. I thus credit Mobley
that on initial hire in June 1974 he was informed in sub-
stance and effect that it was Respondent's practice to per-
mit an employee's occasional tardiness of up to 15 minutes
without any resulting discipline to the employee. Mobley. a
loader in the meat department, also testified that such pol-
icy after the election changed in that if the employee was a
minute late, the employee was then written up. Mobley also
testified that leadman Terry Givans, in early September,
wrote him up, telling him at the time that it was not he
(Givans) who was doing it, but that his supervisors had
instructed him to do it, so he had to do it. John Henry
Crawley, foreman in the meat department, did not deny
issuing such an instruction to leadman Givans, but rather
confirmed that Givans had succeeded John Chandler as
leadman in his department, about May or June, and con-
firmed that it was customary for either Crawley or the lead-
man (at his direction) to write up employees. Crawley oth-
erwise testified that his employees could hit the clock any
time from 5 minutes before up to scheduled report time, but
i While there is considerable conflicting evidence as to (any) posting of
the above notice. I am fully convinced a practice of writing up drivers upon
their being 5 minutes late was in effect during material times
137
DE.CISIONS OF NATIONAL LABOR RELATIONS BOARD
that the tardiness rule was that if an employee was I minute
late, he was tardy. Crawley further testified that such a
tardy employee was written up by himself or the leadman.
Crawley, a foreman since June 1974. related that he had
never done it any other way, though he confirmed that
there had been a 15-minute grace period sometime in the
past. Crawley also testified the above rule was posted on the
bulletin board." As compared with a substantial number of
records introduced by General Counsel (including files of
employees at one time or another supervised by Crawley).
Respondent has introduced no documentary record support
for Crawley's recollection to establish that during his fore-
man tenure, any employee was written up by Crawley (or
leadman Chandler or leadman Givans prior to the election
for being less than 15 minutes late. Neither Givans nor
Chandler testified at all. Under these circumstances. I con-
tinue to credit the testimony of Dover and credit as well the
mutually consistent and substantially corroborative testi-
mony of Mobley. Additionally, I find their testimonies far
more convincing under the total circumstances than the
recollection of Crawley, uncorroborated as it is testimoni-
ally or by any of Respondent's records. There is other cor-
roborative, consistent, and equally convincing evidence.
Employee Nathaniel Harris was employed in meat re-
ceiving. Harris also testified that prior to the election Re-
spondent's practice on tardiness was that employees were
allowed to be 15 minutes late before they were written up.
Even more pointedly, it was Harris' recollection it was
about the day after the election that Foreman Dwight
Johnson' came up to Harris in the meat department office
and told Harris that they had checked the rule and did not
find anywhere that they had to give employees 15 minutes
before a writeup; that if one was I minute late, he had a
writeup slip: that they had orders from the plant office to
write employees up: and that the front office would decide
whether or not to put the writeup in the employee's folder.
According to Harris, prior to the election, whether there
was a writeup (at all) was essentially up to the discretion of
the foreman, but after the election, everybody tardy was
written up. Harris also testified that after the election he
had actually received writeups for being I minute late.'4
Foreman Johnson (called as a witness by Respondent) testi-
fied that the rule was that if an employee was I minute late,
he was tardy, and that he knew of no 15-minute leeway.
However, again, Johnson was not supported by any actual
employee writeups. I note also that in testifying as to policy
postings, Johnson identified one certain policy as posted
which Respondent otherwise has conceded was not ever
posted on its bulletin boards.
In summary, the testimony of General Counsel's wit-
nesses in this area was essentially consistent, mutually cor-
12 Crawley referred in his testimony to rules under the name of Ralph
Wilson. Mitchell's predecessor, and rules under Mitchell's signature after the
latter was promoted. It is unclear what rules Crawley referred to as being
posted. Crawley's recollection was in any event that the rules were the same.
It has been noted that the above written rule under the signature of Mitchell
is silent on when wnteups would be made for tardiness.
" Johnson testified he was meat receiving foreman during this period.
'* Harris testified he had received three such writeups for being I minute
late after the election. The record reveals that only I- and 2-minute reports
were to be found in his file. I do not view this variance as critical on Harris'
testimony, particularly in view of his testimony and other evidence as to the
procedure of selective forwarding of writeups to personnel.
roborative, plausible, and independently supported by the
thrust of a significant number of record exhibits on tardi-
ness writeups and other documentary evidence, while the
testimony of Respondent's witnesses in this area was nei-
ther consistent nor convincingly corroborated, let alone
supported by any substantial documentary evidence of rec-
ord." I am thus wholly convinced and I now find that
shortly after the election and prior to Labor Day. Respon-
dent began to more strictly enforce its tardiness rule by
instructing its supervisors, and by their in turn instructing
subordinate foremen and leadmen, to commence writing
employees up for any tardiness, even of a I minute; and the
above circumstances otherwise warrant the further conclu-
sion that Respondent did not do so solely or even directly to
enhance or correct individual employees' attendance per-
formance, but tightened and made more restrictive its tardi-
ness rule and practices thereunder because its employees
had recently designated the Union as their collective-bar-
gaining representative, in violation of Section 8(a)( ) of the
Act. The complaint, as amended at the hearing, alleges
similarly that Respondent more strictly enforced its rule
requiring employees to produce a doctors' certificates be-
cause its employees solicited the Union. Evidence bearing
upon this issue is conveniently considered injra in connec-
tion with the discharge of truckdriver William Huntley.
The complaint alleges that Foreman Fred Erwin. on two
occasions in early August after the election, threatened em-
ployees by telling certain employees that he knew "all the
damn niggers" had voted for the Union and that he was
going to make it as rough as possible on them. It is to be
noted at the outset that the complaint does not allege that
Respondent has violated the Act by changing any policy or
practice in regard to breaks provided its employees, al-
though one of the above incidents took place in the context
of a change in the procedure by which certain employees
began their morning break. The issues relate soley to
whether either of the remarks were made as alleged in vio-
lation of the Act.
Respondent's warehouse is the size of a city block and
contains some 425,000 square feet of warehouse space. On
one side or end of the warehouse, there are (front and back)
railcar unloading docks. On the opposite side of the ware-
house are located the truck unloading docks. For 3 years or
more, Erwin, an admitted supervisor within the meaning of
the act, has been dry grocery receiving foreman under Gro-
cery Department Supervisor John Watson. Erwin was, and
is, in charge of all the truck and railcar unloading and re-
ceiving for the warehouse. At material times, there were 13
employees (including I leadman) working on the two rail-
car dock areas and 7 8 employees working on the truck
1t While the finding herein is not to he deemed controlled thereby. it is
nonetheless warranted to note General Counsel's argument from the inci-
dence of the reports in a significant group. Thus. of some 75 tardiness reports
in evidence, some 62 reflect tardiness of 15 minutes or more. Of the remain-
der, nine writeups on incidents of less than 15 minutes' tardiness occurred
after the election, while only three occurred before the election tone being
undated). Two of the latter writeups prior to the election ere applicable to
a driver (Huntley) for a 5-minute tardiness on October I, 1974, and an 8-
minute tardiness on April 21. 1976. notably consistent with the notice of
Price dated May 1974 as interpreted and actually heretofore applied in prac-
tice in that department. according to ittle. The periods covered by the files
from which the reports emanate are such as to further render the sampling
even the more convincing.
138
HARRIS-TEETER SUPER MARKETS. INC.
docks. In early August, and for a period extending through
October 3 (3 months), Erwin was assigned additional fore-
man responsibilities over some 21 employees working in the
drug department.
Drug employee Brenda Fowler testified that on August 6.
the day after the election, Foreman Erwin told Fowler that
he knew that "all the damn niggers" had voted for the
Union. and he intended to make it as rough as possible on
them. Fowler relates that this was the only conversation she
had with a supervisor about the Union. Fowler could not
recall who started the conversation, though Fowler testified
affirmatively that she had never personally asked Foreman
Erwin how he felt about the Union. However, according to
Erwin. Fowler had asked his opinion about the Union and
had asked how the Union would affect the employees there.
Erwin then told Fowler that he did not know that much
about a union, that he had never dealt with one, but that he
did not know if Fowler would be able to be out like she had
been in the past when necessary with her (sick) daughter.
Erwin categorically denied making the above remark con-
taining the racial slur to Fowler or to drug employee Beatty
(discussed infra). asserting, without objection, that he would
not make such a statement. Other than that which is attrib-
uted to him by Fowler (and Beatty, inra). no evidence to
the contrary was presented. Before reaching consideration
of the testimony of Beatty as to a second such incident
which allegedly occurred in relation to breaktime alter-
ations, sone additional background is warranted.
Respondent provides two 15-minute breaks per workday
for its employees. It is uncontested that a morning break
was regularly scheduled for its pickers (grocery department)
at 9 a.m. and that the ending of that break period was
regularly signaled by an announcement to the pickers of
worktime made over the public address system at 9:15 a.m.
Truck dock employees had no scheduled breaktime. It is
also uncontested that the scheduled breaktime for the drug
employees and for the railcar employees was from 9:15 to
9:30 a.m. However, there are separate clocks in the grocery
and drug departments. These clocks were not kept synchro-
nized, and the drug clock apparently regularly ran ahead of
(in time) the grocery clock. though the record is unclear
which clock, if either, was actually accurate. According to
Beatty (hired in November 1975), drug and rail dock em-
ployees had regularly used the time shown on the drug de-
partment clock to synchronize their personal watches and/
or to key the start of their morning break. I credit Beatty
that these employees (at least for the period of her employ-
ment), had not previously been required to key or cue the
commencement of their break to the announcement of
worktime for the grocery pickers. I further credit Beatty
that, resultingly, it was not infrequently the case prior to the
election that the pickers and drug and rail dock employees
were able to be together on break in the cafeteria (at least)
for a few minutes of their respective breaks.
Beatty testified that it was during the week of August 9.
following the election, on an occasion when the drug em-
plovees had started to leave to take their break as usual.
that Foreman Erwin had come out shaking his hands at
them, telling them to go back to their work area and to wait
until they' heard worktime announced for the grocery em-
ployees before they began their break, which the employees
then did. Later that afternoon Beatty asked Foreman Erwin
why he had done this. According to Beatty. Erwin told her
at the time that he knew "all the damn niggers" on the rail
dock had voted for the Union and that he was going to
make it just as hard on them as possible. This immediately
led Beatty ( find not unreasonably) to believe that the drug
employees were to be similarly punished. As earlier noted,
Erwin has denied he made any such statement to either
Beatty or Fowler.
Erwin does confirm that in early August. shortly after he
took over the supervision of the drug employees. he had
occasion to stop the drug employees from going to break,
though not the rail dock employees. as their break was con-
trolled by his leadman on the rail docks. Erwin's version of
this incident otherwise was that when he took over the drug
employees he had noticed the drug employees were leaving
earlier and earlier and that he had stopped them one day as
they began to go to break at 9: 10 am.m. According to Erwin,
when he directed the employees to return to work. Beatty
was the sole employee who did not go immediately back to
work as instructed. While the record is unclear how long it
was thereafter, according to Erwin, Beatty eventually came
back to Erwin and at that time asked Erwin why the, could
not go on break in time to get a sandwich and have time to
eat it. Erwin then told Beatty essentially that the Compan
provided only a 15-minute break and that theirs was sched-
uled for 9:15 9:30 a.m. It is preliminarily noted that the
conflict between Beatty and Erwin as to this incident does
not extend to a substantial disagreement as to the month of
the incident's occurrence. with both placing it in August.
On cross-examination of Beatty. Respondent established
that in an affidav it provided by Beatty to a regional investi-
gator on December 15. Beatts had narrated herein that the
above remark she ascribed to Erwin had occurred on or
about October II. Beatt readily admitted she had done
this and acknowledged that it was a mistake on her part.
However. Beatty then reaffirmed her testimony that the de-
scribed incident had occurred during the week after the
election and also that the expletive "damn" had been
used.'" Beatt 3 further testified in explanation for the ari-
ance as to the date that, accompanied by another employee,
she had earlier in October reported Erwin's remark to
Mitchell. director of distribution, along with reporting to
him certain other personal complaints of alleged conduct of
Erwin towards her which had then recently occurred in Oc-
tober and had greatly disturbed her."l Beatty explained that
when she gave the affidavit in December, she had gotten the
remark of Erwin datewise "tangled" up in the affidavit with
the other matters that had occurred in October and all of
which at that time were reported to Mitchell. Beatts also
testified that when she reported to Mitchell that the above
remark had been made by Erwin, Mitchell had agreed with
her that Erwin's terminology had been bad. Quite signifi-
cantly. Mitchell. though testifying on other matters, did not
I Beattiy estified that upon receiving a copy of her statement prior toi the
hearing, she had recognized the error on the date and brought it to the
attention of the General Counsel. is ell as volunteered that she had addi-
tionally noticed that the remark as recorded in the affidavit did not contain
the word "damn." which (as noted) she reaffirmed had been used
r It appears Beatts's conference with Mitchell Has held on Wednesday.
Oclober 13. According to Beatt,. Jnas took oser as super.isor of the drug
employees the tollil ing ecek
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute Beatty's testimony as to the nature or timing of her
report to him or even of the comments she ascribed as made
by Mitchell about Erwin upon receiving the reports. An
inference is warranted that the report incidents were not of
recent fabrication. Furthermore, I have noted that Beatty's
notation in the affidavit clearly describes as the incidental
framework of the remark the very incident (Erwin's action
taken on the drug employees' breaktime) which even
Erwin's testimony confirms occurred in early August, not
October. Under all of the above circumstances, I conclude
that Beatty's testimonial explanation of her oversight on the
date variance in the affidavit appears generally plausible.
Nonetheless, the above variances seem to present cause for
some degree of additional care in resolving this matter of
credibility. To begin with, I detected nothing in the demea-
nor of either Beatty or Fowler in describing this incident to
warrant discrediting either of them. No significant prior af-
fidavit infirmity is deemed present as to witness Fowler at
all. The Charging Party, in addressing the issue of credibil-
ity resolution on this matter, has urged that since the dis-
criminatory or threatening remark involved also contained
a racial slur, consideration should be given (of a probabil-
ity) that Erwin understandably would not now want to ad-
mit he had made such a comment about his rail dock em-
ployees. There is some support to be derived for General
Counsel's witnesses from this observed circumstance, but
not such support as may be deemed controlling.' However,
in several other areas, as urged by General Counsel, I do
find that Erwin's testimony gives clear appearance of being
strained, particularly in a seemingly unusual reluctance on
his part to acknowledge that Respondent had ever cam-
paigned against the Union, and as well in the nature of his
testimony relative to his own awareness of the union senti-
ment of the railcar dock employees whom he supervised. In
respect to the first above, for example, Erwin acknowledged
that the Company did not want the Union and that his own
supervisor, Watson, had even individually instructed him
that if employees asked him what he thought about the
Union, he should tell them, and he admitted further that he
had done so; yet he steadfastly denied the Company had
campaigned against the Union. In regard to the issue of his
awareness of the union sentiments of the railcar dock em-
ployees, Erwin appeared to be especially sensitive. While
maintaining that he was unfamiliar with and had no idea
how the rail dock employees under him felt about the
Union, Erwin on yet another occasion admitted to having
personal feelings of how the railcar dock employees felt
toward the Union. In passing, I note Supervisor Watson's
testimony that Foreman Erwin was among his foremen
who, as requested, had subsequently reported to him the
number of employees (under his supervision) likely to
strike. There is also the consistency of this foreman's re-
" Respondent holds itself out to be an equal opportunity employer. The
railcar dock employees under Erwin's supervision were predominately black.
Further, unlike the truck receiving and unloading employees, who essentially
were racially evenly divided, work together and had no set break period, the
13 railcar dock employees, who had the same scheduled break period as did
the drug employees, were composed of 9 black and 4 white employees. The
latter group worked at one dock area some 400 feet distant from the former's
work area. Though all apparently had the same break period, it nonetheless
seems clear to me that there is no warrant to reject evidence of an utterance
of such a remark because of its being one that would have been made with
an improbable plant application
mark with other supervisor activities, e.g., in re the tardi-
ness rule. While the issue remains one not wholly free from
doubt, I am nonetheless persuaded that General Counsel's
evidence predominates in this matter, and I am thus satis-
fied that there is sufficient evidentiary support to warrant
the finding I now make that Erwin uttered the remarks
substantially as ascribed to him by witnesses Fowler and
Beatty and that more pointedly thereby Respondent has
additionally threatened and coerced its employees by telling
employees it was going to make it as hard as possible on
employees who had voted for the Union, in violation of
Section 8(a)( 1 ) of the Act.
2. Strike period 8(a)( 1 )
Employee Margie Kiser, hired March 1974, was one of
II employees employed in Respondent's salad kitchen.
During material times, Kiser was supervised by Salad
Kitchen Foreman Bill Williams, an admitted supervisor
within the meaning of the Act. Kiser, active with the Union
since May, subsequently served on the Union's committee
during the negotiations which commenced September 29.
Kiser had a good relationship with Foreman Williams, and
the two frequently had discussed the ongoing negotiations.
On November 5, Kiser related, she was with Williams in his
office at 10:30 a.m. On that occasion Foreman Williams
told Kiser that he had been told at a meeting that employ-
ees who walked out on strike would be fired. Williams said
that, not believing it, he had called his own lawyer. Wil-
liams then repeated to Kiser that they would fire employees
for going out on strike. Williams asked Kiser if the employ-
ees in the salad kitchen would go out on strike. Kiser re-
plied that they would. Williams inquired how many people
Kiser thought would go out on strike, and how many would
remain. Kiser replied she thought 10 would go out on
strike, and I would remain. Kiser also testified that there
then developed considerable argument between them over
the subject of employees being fired for striking, with Kiser
asserting that the Company could not legally fire employees
for going out on strike and Williams insisting that they
could and would. As Kiser prepared to leave the office,
Williams then told Kiser to go tell the employees that if
they went out on strike, they would be fired. After leaving
the office, Kiser had the question put to a union represent-
ative through a fellow employee and subsequently received
the answer back that employees could not be fired for going
out on strike.
Later that afternoon, at 1:30 p.m., armed with this union
assurance, Kiser again spoke to Williams near his office.
Kiser then told Williams she had checked and found out for
sure that the Company could not fire employees for going
out on strike. At that point Williams told Kiser that he had
also done some checking and that they would not fire them
but that they would be replaced. Williams again asked
Kiser how many would go out on strike, and Kiser repeated
that 10 would. Williams asked how many would remain,
and Kiser answered that probably one would. When Wil-
liams inquired about that one crossing the picket line, Kiser
replied she had no idea. Williams did not testify. I credit
Kiser. I find that on November 5 Respondent interrogated
an employee concerning her union strike sympathies and
those of other employees in the salad kitchen; threatened
140
HARRIS-TEETER SUPER MARKETS. INC
an employee that if employees went on strike. they would
be fired: and instructed an employee to inform other em-
ployees that if they participated in a strike, they would be
fired and later, in substance and effect. threatened (unfair
labor practice strikers) that they would be permanently re-
placed, all in violation of Section 8(a)( ) of the Act.
Pamela Ledford, hired in June 1974, also worked in the
salad kitchen. Ledford testified that on November 16, after
discussion of a requested transfer, Williams had asked Led-
ford individually if she was going to walk out with the
Union or stay. Ledford replied she did not know. Williams
said that they were not going to have the Union and that
Harris-Teeter had tried to keep the Union out and was
going to continue to try to keep the Union out." Picking up
a stack of papers in his hand, Williams then said that every-
body who walked out would be given termination papers.
Again I note Williams did not testify. I credit Ledford in
the above particulars. I find that on November 16 Respon-
dent continued individual interrogation of employees as to
whether they would go out on strike, coerced employees by
telling an employee Respondent was not going to have the
Union, and threatened employees with discharge for going
out on strike by causing an employee to reasonably believe
that termination papers had already been prepared for em-
ployees in the event they went out on strike. As to the issue
of whether Respondent has informed its employees that it
would be futile to support the Union, I am satisfied that the
above statements of having tried and of the intention to
continue trying to keep the Union out in context of the
other statements made, e.g., that the Company was not
going to have the Union coupled with the circumstances of
exhibiting documents described as termination papers, are
more than sufficient to support the further finding I make
that Respondent, in substance and effect, by this conduct
had expressed to its employees at this time that it would be
futile for them to attempt to support the Union in a strike.
I find that by engaging in such conduct, Respondent has
thereby additionally violated Section 8(a)( ) of the Act.
Employee John D. Bowman, hired September 1975,
worked in dry groceries under the immediate supervision of
Foreman Green McClain, who, in turn, reported to Super-
visor John Watson. Watson supervised approximately 100
employees. Bowman testified that on November 8 Watson
had stopped Bowman as Bowman was on the way to the
dock, with Watson telling Bowman that Watson had infor-
mation from a reliable source that Bowman was confused
about what was going on between the Company and the
Union. Watson asked Bowman if he had any questions
about it. Bowman, who had not joined the Union at the
time, told Watson that he was trying to decide whether or
not to join the Union and had some questions about
whether or not to join the Union. Watson inquired what the
19 In making this finding I have considered Ledford's prior affidavit refer-
ences both that the Company was not going to have the nion and that iit
had already tried and was going to continue trying to keep the Union out.
The record is clear that witness Ledford drew no distinction in her testimony
between Williams' saying the Company had kept the Union out and his
saying the Company had tried to keep the Union out. etc In view of other
statements made and other circumstances of this conversation. this impres-
sion left with Ledford, in my view, is one wholly understandable It in no
way detracts from findings based upon her uncontradicted testimony as to
other remarks made.
questions were. Bowman asked Watson if in his opinion the
majority of the people had joined the Union. Watson then
inquired what made Bowman think anybody was on the
union side. Bowman replied that from conversations with
most of his friends, there appeared to be only a few left on
the company side. Watson then told Bowman that the peo-
ple telling Bowman that might just be saying it to get Bow-
man on their side. Watson asked if these employees had
threatened Bowman in any way. Bowman told Watson they
had not. Watson then asked Bowman where he had re-
ceived his information. Bowman then specifically asked
Watson if Watson meant for him to name names. At that
point. Bowman testified, Watson told him that Bowman
could help him put out the fire, but if Bowman did not
name their names, it would seem to Watson that Bowman
was just adding to the kindling. Bowman then told Watson
that he would not name their names because they were
friends of his, and Bowman did not want to get them into
any kind of trouble. Watson told Bowman that if there was
a strike and if Bowman decided to come to work like he was
supposed to, Watson wanted Bowman to know the Com-
pany would provide protection for him. Watson asked
Bowman if he had cleared him up on the matter. Bowman
replied that he had.
Supervisor Watson essentially confirms much of Bow-
man's testimony. However, Watson denied that he had
asked Bowman to identify any employees. On cross-exami-
nation, Watson's testimony as to the "kindling" statement
attributed to him was only that he could not recall making
it. Cross-examination also established that Watson, with in-
formation supplied by subordinate foremen, had made two
reports to Mitchell on the number of employees under his
supervision likely to strike, the first report being 4-6 weeks
before the strike and the second being about 2 weeks before
the strike: that in the interim, in a supervisory meeting held
2-4 weeks before the strike, he had been informed that they
could expect a strike; that in his first report he reported to
Mitchell it would be about half and half: and that in the
second report to Mitchell. about 2 weeks before the strike,
he had reported that probably a little more than half of the
employees would stay in the plant.?0 Watson also acknowl-
edged that he had not been able to read employee Bowman
and that he had talked to other employees in the same way
he had talked to Bowman and that though most were vol-
untary, he had initially contacted a few employees, as he
had with Bowman. Bowman's testimony was consistent and
wholly plausible. I am convinced Watson made the above
inquiries of Bowman, including requesting that Watson
name the names of his coemployees who were at that time
informing other employees that most of the employees were
for the Union, and that Watson had coercively pressed the
interrogation with a remark that if Bowman did not do so,
he would be viewed by supervisor Watson as adding kin-
dling to the fire. By such conduct, I thus find Respondent
has unlawfully and with coercion interrogated an employee
as to his union activities and sympathies and in similar
fashion as to the union activities and sympathies of other
employees, all in violation of Section 8(aX I) of the Act.
20 Following such testimony Respondent stipulated that Respondent in
anticipation of a strike made every effort to find out how many employees
would walk and how many would stay. in an effort to plan how many
replacements they needed.
141
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
The complaint alleges that on November 10 Bakery
Manager Melvin Moore threatened employees that if they
went on strike, they would be terminated and not rehired.
Employee Frank D. Dunlap. hired in July 1970, worked
in Respondent's bakery department under the supervision
of Bakery Manager Melvin Moore. Dunlap testified as fol-
lows: On approximately November 10 Moore called him
into the office. Coordinator Barbara Stewart (Moore's sec-
retary) was also present. Moore began by explaining to
Dunlap that the reason he had called Dunlap into the office
was because Moore had heard that the Union was going on
strike. Moore then told Dunlap that the Union did not have
a contract, that it was trying to get one, and that "[wlithout
a contract, if you goes out on strike, it would be a wildcat
strike because the union don't have a contract with the
Company."' Moore said he called Dunlap in to tell him
this because if Dunlap went out on strike, he could not hire
Dunlap back, that Dunlap would be out of a job. Moore
also told Dunlap that had the Union had a contract, and he
struck, he would (then) get his job back. Moore told Dun-
lap that he felt a man with a family the size of Dunlap's
would not want to be out of work. Moore said he wanted
Dunlap to know that the Company could 2 replace every
man and woman in the bakery: that if it wanted to it could
close the salad kitchen down, and the bakery, too; and that
it did not make any difference to them (company officials).
Moore added he had never told Dunlap a lie and was not
doing so then. I find presently that, inter alia, Dunlap has
essentially acknowledged that at one point Moore told him
that if he went out on strike, he could be replaced. How-
ever, I further conclude that the thrust of the other remarks
of this conversation (if credited) would warrant the further
finding that Dunlap, in substance and effect, was clearly
told at that time that if he did strike, he would be perma-
nently replaced. Such to me is the least interpolation of his
being told he would then be out of a job.
Moore, as bakery manager, did not report to Mitchell but
rather reported directly to Ashcraft. Moore denied that he
had received any written instructions from Ashcraft that
employees who did strike would be replaced, a denial which
I do not credit as being one of several significant factual
assertions in conflict with Stewart's testimony. Rather, I am
convinced this was an instance of an overly cautious (mis-
guided) attempt to isolate Ashcraft from even any connec-
21 Moore denied referring to a wildcat strike. Stewart did not remember. I
credit Dunlap. I note the above reference comported with Moore's under-
standing of a wildcat strike. The Charging Party seemingly argues in its brief
that Moore's misunderstandings in this matter were either irresponsible or
more likely evidence that Moore did not want to understand what the rights
of striking employees actually were. I do not agree. While I have serious
misgivings as to Moore's testimony in several other respects (discussed infra).
I am not persuaded that Moore's expressed interest and concern for the
bakery employees (including Dunlap, who had worked with him well and fi)r
a long time) was not genuine. Further, that very concern is wholly compati-
ble with the forceful remarks I find were made by Moore. In any event, the
issue is not whether Moore was in error-e.g.. as to application of a wildcat
strike or, more pointedly, as to striker replacement rights but rather
whether what he actually told an employee, under all the attendant circum-
stances, constituted interference or coercion of Section 7 rights or, alterna-
tively, was no more than lawful prediction or permissible information being
imparted to employees as to the Employer's intended action in the event
employees did strike.
22 This is based on Dunlap's December 15, 1976, affidavit, most favorable
to Respondent. Dunlap's testimony on direct was that Moore said that the
Company was set up to replace every man and woman, etc.
tion with this incident. I am persuaded to accept Moore's
testimony otherwise that at this time he had not been in-
structed by any others as to what he could and could not
say to his employees.
Moore's version of his conversation with Dunlap was one
of steadfast, and in my view unconvincing. oversimplication
that the only thing he told Dunlap (and each of the other 20
employees to whom he similarly spoke in his department)
was that if they walked out on strike, they would be re-
placed, because the Company was going to continue to op-
erate as long as possible. Moore's demeanor on the stand
was that of a clearly volatile personality. Moore evidenced
as well, as clearly appears of record, on a significant num-
ber of occasions a proneness on his part to evade probing
questions in pertinent areas of inquiry by counsel other
than his own, which in my view would have presented jus-
tification in that respect alone to render his limited testi-
mony the more suspect, particularly where in conflict with
that of Dunlap. However, there was another person in the
room who presented testimony on this incident and as to
whom I observed no such demeanor infirmity, namely,
Moore's assistant, coordinator Barbara Stewart. Although
Stewart's testimony was in a number of areas not support-
ive of or consistent with that of Moore, I find that Stewart
was a generally more credible and careful witness.2 It was
Stewart's recollection, though unsure, that Moore spoke to
his employees during the week of the strike, and in any
event not a long period of time before the strike began.
Stewart's testimony as to her recollections concerning
Moore's interview with Dunlap were as follows: She re-
called that Moore told Dunlap that if he went out on strike,
he would be replaced and that Moore had told Dunlap that
he was a good worker, a breadwinner, and that he would
hate for Dunlap to walk out. Although she frankly testified
that she could not recall the exact words used, she was sure
that Moore had told Dunlap that he would be replaced and
had not referred to a discharge or termination. (I note in
passing Dunlap has not testified to the contrary in the sense
of attributing such words, in haec verba, to Moore.) How-
ever, I note also that in a number of other respects Stewart's
testimony was simply not supportive of Moore. Nor was it
really in conflict with that of Dunlap. To begin with. Stew-
art testified (contrary to Moore) that she did not remember
any specific instruction from Moore that she was not to go
on about her regular duties while the interviews were being
conducted; rather, she recalled that as she regularly occu-
pied the same office, she simply was not asked to leave.
Stewart confirmed that, in fact, she had gone about her
regular duties and testified as well that Moore had dis-
cussed many things with employees which were not covered
by the letter. In that regard Stewart testified that Moore
had not read from the letter in conducting his interviews.
Significantly. Stewart testified only that she did not remem-
ber references by Moore to Dunlap about a wildcat strike.
about Dunlap's large family or concern about Dunlap's
23 Despite some confusion and/or inconsistency in the record bearing
upon the identification of a certain letter as the one received by Moore. in
regard to distribution, timing of receipt and letter date, and thus timing
relationship to the interviews, I am nonetheless persuaded that Moore had
received such an instructive letter prior to the conducting of interviews, as
Stewart has recalled. Moore's testimony' of receiving a letter generally was
contradictory re replacing strikers.
142
HARRIS-TEETER SUPER MARKETS. INC('
family,. about bringing employees in from other stores,
about closing the salad kitchen or bakery, or about Dun-
lap's not being able to get his job back. Such inconclusive
evidence does not persuade me against Dunlap's testimony
in these particulars, which I find remain credible. I credit
Dunlap's testimony in those areas. Not only was Dunlap a
generally credible witness, but I view it more likely than not
under all the circumstances that Moore would have ad-
dressed such subjects and, accordingly, in the manner Dun-
lap has testified. I note the letter in question did address
both loss of jobs and family.24
Under the total circumstances attendant to this incident,
I am persuaded that it is highly likely that Moore. in not
reading to employees the material referred to and in view of
his personality, would not have spoken on these subjects
with the precision of well-turned phrases, such as a state-
ment that the strikers would only "run the risk of losing
their jobs completely." Rather, based on Dunlap's credited
testimony that Moore had told him of an outright inability
to hire Dunlap back if he went on strike and such assertions
as that Dunlap would then be out of a job. etc.. I am con-
vinced that Moore, in substance and effect, told Dunlap
that if he went out on strike, he would be permanently
replaced and lose his job. Of course, as an unfair labor
practice striker. Dunlap could not be permanently replaced.
He did not run any risk of losing his job. I thus conclude
that the unequivocal nature of the replacement and lost-job
remarks as made by Moore have interfered with the pro-
tected right of Dunlap to engage in an unfair labor practice
strike without running the risk of permanent replacement. I
so find. Moreover, this conclusion seems to be further but-
tressed when other credited remarks ascribed by Dunlap to
Moore are considered. Thus, the aforementioned possible
closure of the bakery and salad departments and their clos-
ing being a matter of indifference to the employer officials
in no wise may reasonably be viewed as related to or re-
stricted to events being carried along by economic neces-
sity. Rather, such statements encompass an implication that
the Employer may or may not take the action, should em-
ployees strike, for reasons that might be totally unrelated to
economic necessities, and this might be accomplished for
reasons known only to the Employer. Such statements are
not construable as reasonable predictions based upon avail-
able economic facts and arguments which employees may
then evaluate, but rather in a real objective sense constitute
not very veiled threats of potential retaliation on a subject
concerning which employees are especially sensitive and
thus are concluded as going well beyond parameters of
"first amendment" constitutional free speech and its imple-
mented permissible 8(c) expression of"any views, argument
or opinion." Rather, they clearly constitute evidence of
(being in themselves coercive) unlawful threats of job loss
to employees for engaging in protected strike activity, in
U4 The letter in part specificall) provided:
Those who do strike or stay away from work. will not only lose pay.
they will also not draw any unemployment compensation. Most impor-
tant of all. they will run the risk of losing their jobs completely, for it is the
intention of Harri Teeter tofill jobs and replace those who go on strike
in order Jbr our company to continue to operate.
Think about these things carefully. Think about them earnestly
while there is yet time. This matter is of vital importance to you and
your family and your future.
violation of Section 8(a)(I) of the Act. .L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 618 (1969): Ludwig Mfotor
Corp., 222 NLRB 635, 636 (1976). In such circumstances, it
makes little difference in effect generated whether such re-
marks are clothed in words of discharge, termination, or job
loss. As such, these remarks thus lend still additional sup-
port for the conclusion earlier reached that the remarks of
Moore, in total context-that if Dunlap struck, he would be
(permanently) replaced. could not be rehired, and would be
out of a job were coercive and violative of the Act. I so
find.
The complaint alleges that on November 18 Meat and
Dairy Department Foreman George Hamilton had also
threatened employees by telling them that if they went on
strike, the, would be terminated and not rehired and that
Hamilton also attempted to dissuade an employee from
joining the strike by informing the employee that employees
who did not strike would get raises after the strike ended.
Emploee Nathanial Harris. hired August 1972. was one
of five emploxees who worked in meat receiving under the
supervision of George Hamilton, also an admitted supervi-
sor within the meaning of the Act. Curtis G. (George)
Hamilton had become a supervisor only about 3 4 weeks
before the strike, which began on November 17 at 3 p.m.
Harris testified that on November 18, at 9 a.m.. Hamilton
told Harris in the meat receiving office that employees
Frank (Sullivan) and Roosevelt (Patterson) had not shown
up for their shift and with an obscenity remarked they were
terminated and could not return. (Harris had observed em-
ployee Sullivan on the picket line that very morning.) Har-
ris asked Hamilton, What if an employee wanted to honor
the picket line, but did not want to picket? Hamilton re-
plied he would consider that employee to be out there with
them. With that, Hamilton walked to the timeclock. pulled
two timecards (which Harris later determined were in fact
the cards of Sullivan and Patterson), and put them in the
desk drawer in the office. Harris acknowledged on cross-
examination that he was friendly with Hamilton and at that
time felt he could talk to Hamilton about anything that he
wanted. Harris testified that at the time he personally was
undecided about whether he should join the strike or not.
At about 10 a.m., in the office, Harris asked Hamilton
about his joining the strike. Hamilton replied that one more
body would not make that much difference to the Union,
adding that he knew for a fact that some money would be
paid out after the strike in the form of raises for the employ-
ees that stayed in. Harris joined the strike the next day,
November 19.
Hamilton confirmed that he was good friends with Har-
ris. Hamilton initially did not recall any conversation with
Harris about Sullivan and Patterson going on strike. He
denied that he had told Harris that they were terminated.
While confirming that he had pulled the cards of Sullivan
and Patterson, he asserted he pulled the cards of anyone
that was out and did not call in. However, on cross-exami-
nation, Hamilton's testimony became significantly con-
fused. Thus, he testified each employee had been told if he
went on strike he would be replaced, but then could not
recall discussing that subject with Harris, still later recalling
he had told Harris that Sullivan and Patterson would be
replaced if they did not show up on the job but then seem-
ingly justifying his belated acknowledgement in this area
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the observation that he thought that was what his su-
perior Doug Jones had told him to say. Hamilton's version
of the conversation with Harris otherwise was that it was
not in this conversation but rather about 3 days before the
strike that Harris had asked Hamilton for advice as to
whether Harris should stay with the Company or walk out.
According to Hamilton, he had only told Harris that he
should do what benefited him. Hamilton could not remem-
ber an inquiry by Harris about not wanting to picket but
wanting to honor the picket line. However, Hamilton con-
firmed that they did have a conversation on November 18
and that it was the next day that Harris joined the strike.
Hamilton also could not remember if he had cursed Sulli-
van and Patterson when they did not show up, though he
conceded that the failure of two of five workers to show up
that day had made it much more difficult at that time to do
the work. Hamilton's initial version also has Harris asking
him if the Company was going to give out any more raises
anytime soon and him replying to Harris only that there
would be the periodic raises that they always got, which the
Company would probably give them as the cost of living
went up. Hamilton denied he said anything about raises to
employees for not striking. Then, unconvincingly, on cross-
examination, Hamilton could only remember there was a
conversation about wage raises, but was not sure exactly
what was said. On cross-examination, Hamilton finally ac-
knowledged he could not remember exactly what their con-
versations were. I do not find such vacillating denials, if not
clearly resulting in wholly inconsistent testimony, in any
event very convincing or persuasive testimony on these is-
sues. In contrast, Harris' testimony remained substantially
unaffected by cross-examination and plausible with other
facts, while that of Hamilton was not. I credit Harris. I thus
find that Hamilton, on November 18, the day after the
strike began, informed an employee that two striking em-
ployees were terminated and could not return and that on
the same day Hamilton attempted to dissuade employee
Harris from joining the strike by holding out to him the lure
of wage increases after the strike to those employees who
did not strike, all in further violation of Section 8(a)(l) of
the Act.
Summary
I have found that on various dates prior to the election of
August 5, Respondent, by acts and conduct of its depart-
ment supervisors and firstline foremen, had unlawfully in-
terrogated employees as to which and how many employees
would vote for and against the Union in the upcoming elec-
tion, engaged in conduct and uttered remarks reasonably
tending to create effectively an impression in employees
that the union activities of employees were regularly being
kept under surveillance, and coerced and restrained em-
ployees by informing its employees that individual em-
ployee union activists in different departments had been
already identified and by threatening that those same em-
ployees would be among the first to be discharged by Re-
spondent. I have also found that shortly after the election
Respondent, then being aware that its employees had desig-
nated the Union as their majority representative, through
its aforesaid supervisors and agents continued to interfere
with, restrain, and coerce employees by commencing to
more strictly enforce its tardiness rule in writing up employ-
ees for any tardiness (even for a minute), contrary to prior
practice and under such circumstances (timing, individual
concealment, and publicized selective forwarding) warrant-
ing the further conclusion that the change was accom-
plished in retaliation because the employees had continued
their union activity and because they had designated the
Union as their representative. Finally, also clearly and con-
vincingly evidenced were varied coercive and threatening
remarks made to employees directly related to their contin-
ued pursuit of protected union activity and the futility of it;
as later evidenced, particularly in the prestrike period, in-
tensified interference, restraint, and coercion directed at
employee engagement in protected strike activity, through
systematic interrogations of employees as to their strike
sympathies and intentions, with specific attempts to identify
principal union adherents (or strike proponents) expressing
employee solidarily coupled with expressed intent to sup-
press same; and, finally, and beyond the point for reason-
able questioning, widespread instances of various coercive
remarks and threats to employees that they would be dis-
charged for striking, with an evidenced use of promised
reward of raise increases to influence working employees
considering strike activity not to do so. The above is base
enough to warrant conclusion of established strong animus
on the part of Respondent as background to consideration
of other matters raised in the present proceeding. I so find.
C. The Alleged Discriminator)y Discharge of William
Huntley; the Alleged Change in Respondent's Policy and/or
Practice Re Requirement of Doctor's Certificate
William Huntley was hired in January 1972 as a truck-
driver. Thereafter, he received a safe driving award, in
1973. Huntley won the Company's annual rodeo in October
1975.26 It is uncontested that Huntley was an excellent
driver. In point of fact, Ashcraft testified Huntley was Re-
spondent's top driver. Following the election Huntley was
selected by certain of his coemployees (drivers) to serve on
the Union's negotiation committee. This activity became
public through a union flier distributed to employees
around Labor Day and of which management concurrently
became aware. 7 Negotiations were scheduled to commence
on September 29.
Respondent's 60 or more truckdrivers daily transport
merchandise and supplies to its 62-64 retail stores, which
are open 7 days a week. Departing times varied, though
drivers generally had regular workdays. Driver Huntley
had worked September 23 (Thursday) and was scheduled to
work Friday and Saturday, having Sunday and Monday
then off. At 12:30 a.m., Friday, September 24, Huntley
timely called night dispatcher Larry Lefler advising he
would be unable to make his 3:15 a.m. shift that morning,
27 The complaint additionally alleged that Supervisor of Transportation
Dan Price had also stated that certain striking truckdrivers were fired. Evi-
dence bearing on this allegation, though appearing cumulative, is considered
infra in connection with the alleged discriminatory discharges of striking
employees Joseph Nicholson and Kirkpatrick Carr on December 6.
26 The competition of drivers was accomplished over a course prescnribed
by the American Trucking Association.
27 I further find that Ashcraft was also notified by the Union, approxi-
mately September 20. as to the employees who would serve on the Union's
committee, which included Huntley.
144
HARRIS-TEETER SUPER MARKETS. INC.
as he was then taking a cold. Huntley told Lefler he would
report later as to his ability to work his shift the next day.
However, day dispatcher Jack Cochran called Huntley ear-
ly (7:30 a.m.) at his home and inquired of Huntley about
his availability for his Saturday shift. Huntley told Cochran
that he did not then know if he would be available, that he
had a toothache and was going to try to see a dentist. and
asked Cochran if he could let Cochran know later as to his
availability. Cochran told Huntley he needed to know then.
Thus pressed, Huntley again told Cochran he did not know
and then asked Cochran if there was any way Cochran
could work around him. Cochran told Huntley he would
rather do that than set Huntley up for a run and have
Huntley never show up. It was thus mutually agreed early
Friday morning between Huntley and Cochran that Hunt-
ley would not be assigned a run for early Saturday morn-
ing28 rather than await later determination of Huntley's
availability. Huntley testified that every time he takes a
cold, it affects his sinuses and his teeth. Huntley frankly
confirmed that he had not mentioned to Cochran that he
had a cold. Neither Cochran nor Lefler testified. I credit
Huntley as to the above conversations with Lefler and
Cochran both as to timing and as to their content.
Supervisor of Transportation Price testified that he had
been informed by night dispatcher Lefler at or about 5:30-
6 a.m. that Huntley had earlier called in to report that he
had a cold and would not be at work that day. Price also
recalled that Cochran informed him about 9:30 10 a.m.
that same morning that upon calling Huntley to see if he
was going to be able to report for work the next day, Hunt-
ley had told Cochran he would not be in, that he had a
toothache and was going to the doctor. According to Price,
Cochran had not told him that Cochran himself had indi-
cated to Huntley that if Huntley thought he was (still) going
to be sick, he did not have to come in, as he could schedule
someone else.2 Price's recollection also was that he had no.
known at this time that Huntley was going to serve on the
Union's negotiation committee. Price's recollection in that
respect is wholly unsupported by Mitchell. To the contrary,
based on Mitchell's testimony that both he and Price were
aware of Huntley's status from the distributed union flier, I
find that both Mitchell and Price were aware at this time
that Huntley was to serve on the Union's negotiation com-
mittee. Furthermore, although Price did not testify as to
having promptly reported this development on Huntley to
Mitchell on Friday, it is clear from Mitchell's testimony
that he did so. Thus, on cross-examination Mitchell ac-
knowledged that it was on Friday afternoon that Price had
informed him that Huntley had initially reported that he
would not be in because he had a cold and felt sick and
later had reported that his teeth were hurting very badly
and that he was going to see a dentist. Mitchell testified that
he knew even at that time that Price was going to ask Hunt-
ley for a doctor's excuse, significantly explaining that it was
because "we" felt Huntley was abusing the sick leave pol-
21 Under Respondent's absence rules, drivers were only required to call in
15 minutes before departure time if they were going to be late or report a
(second) day of absence.
n On this point, I note in passing that Director of Distnbution Bill Mitch-
ell was not responsive when questioned as to his awareness of Cochran's
willingness to schedule around Huntley. I find it either incredible or reveal-
ing that Price and Mitchell would not have become aware of that circum-
stance,
icy. It would seem an opportune time to initially address
Respondent's applicable sick leave and pay policy (written
rules and practices) and its policy in regard to requiring
doctors' excuses, the latter being alleged in the complaint to
have been more strictly enforced after the election.
President Hugh Ashcraft testified generally that the
Company has had a sick leave policy since his association
with the Company in 1963 and that there had been no
change of which he was aware in the Company's right to
ask for medical certificates or excuses in an enforcement of
its sick leave policy. Although I find Ashcraft generally
credible and his testimony as to general policy supported in
the record, I find it not so supported as to written or prac-
tice implementations of that policy in the warehouse. In-
deed, Ashcraft himself generally conceded that he was not
directly involved in the implementation of such policies, as
were Mitchell and Bennett. However, it must be borne in
mind that Bennett had only arrived in September. Ash-
craft's lack of direct knowledge as to the implementation in
the warehouse appears rather demonstrably in the record.
Thus. Ashcraft at one point related it as being his under-
standing that a certain form setting forth Respondent's sick
leave policy had been distributed to employees and posted
on the employee bulletin boards. (The form, entitled "Sick
Leave Policy for Hourly Employees." with a date of March
10, 1975, contains the specific statement: "The Company
reserves the right to request a doctor's certificate at an!
time.") In the face of a significant number of employees
from several departments having testified that they had
never seen the above (policy bulletin) form, Respondent
identified the aforementioned form as actually a policy bul-
letin distributed to supervisors and contained in a supervi-
sor's manual and conceded it had not been generally dis-
tributed to employees or posted on employee bulletin
boards. I find accordingly that the aforesaid policy had not
been distributed or publicized to employees. ° Nonetheless.
I am convinced and I credit Ashcraft that such policy ex-
isted. Respondent during material times had a sick leave
policy whereby it provided employees with 5 days of paid
sick leave a year, with no deduction being made for a first
or second day of absence due to illness; unused sick leave
could be accumulated by an employee up to 25 full day's
and thereafter, though at the rate of 10 half days per year.
to a maximum of 25 additional half days. It was Respon-
dent's policy that employees save their sick leave to enable
them to continue to receive their paycheck when an unex-
pected illness occurred. Respondent, I find plausibly so.
also had a policy that its beneficial sick leave program
should not be abused. I thus further credit Ashcraft that the
company sick leave policy included a right to require a
doctor's certificate. The issue nonetheless remains as to the
parameters of application of that policy, including the writ-
ten implementation of that requirement and of Respon-
dent's established practices thereon. Moreover, I would ad-
ditionally note Ashcraft's acknowledgments that the policy
in the past was to ask the employee initially to bring in a
doctor's excuse, not to discharge an employee: and his view
was that the policy should be that if a man had excess
M The record is wholly supportive in that many employees were not even
fulN versant with the policy, e.g., not all knew of the provisions for accumu-
lation of sick leave. Their testimony as to Respondent's practice with regard
to requiring a doctor's certificate is discussed in/fra
14S
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absences or tardiness, the employee should be warned to
look out and warned that if it kept up, the Company was
going to have to start asking the employee for doctor's cer-
tificates. The criterion would thus be the nature of the em-
ployee's prior attendance record. Ashcraft also testified,
and I credit him in this also, that there was no requirement
that the employee be previously warned and that the super-
visor had the discretion when an employee called in sick to
then request the employee to bring in a doctor's certificate.
However, Ashcraft testified further that if a supervisor
thought there was some question about an employee's ab-
sence, the supervisor should notify the employee to bring in
a doctor's certificate and that in circumstances of a bad
attendance record, he would expect the supervisor to tell the
employee to get a doctor's certificate. Finally, Ashcraft ac-
knowledged (what appears to me to be no more than a rule
of reason) that if an employee had never been to a doctor,
the employee could not get one. I have earlier noted that
Mitchell related that on Friday afternoon both Mitchell
and Price had felt there was a question about Huntley's
abusing the sick leave policy. Wholly apart from consider-
ation of actual awareness of Huntley's initial reluctance to
prematurely release his scheduled worktime and Cochran's
part in scheduling around him, I presently observe that nei-
ther Mitchell nor Price at that time directed that a request
be made to Huntley for a doctor's certificate. Rather, Re-
spondent's agents elected to wait until Huntley called in
(Monday) (thus knowingly), at a time when Huntley was
ready for work. On its face such action suggests the ap-
proach was one of employee entrapment rather than polic-
ing of sick leave policy. This is not the case where the em-
ployee had failed to call in. Nor did any of Respondent's
agents ever ask Huntley for his explanation of the pur-
ported variance in his reported illness.
Huntley, who was not regularly scheduled to work Sun-
day or Monday, was thus off September 26 and 27, respec-
tively. By Monday morning Huntley felt well enough to
return to work. On Monday morning (September 27), at I
a.m., Huntley called to inquire what time he was to be
scheduled out Tuesday (early) morning, September 28. At
this time Huntley spoke to Dan Price, supervisor of trans-
portation. Price instructed Huntley he was to report at 4:15
a.m., adding however, that Huntley was to bring a doctor's
excuse. Huntley replied, "Okay." It was only after hanging
up, however, Huntley realized the significance of what he
had been asked to do. (Huntley quickly realized that since
he had no actually gone to the dentist and was already well
enough to report for work, he would be unable to get a
doctor's certificate.) Huntley promptly attempted to call
back Price. However, Cochran, whom he then reached, in-
formed Huntley that Price was already at a meeting. Hunt-
ley asked Cochran if there was any way he could reach
Price. Cochran told Huntley that Price would be at the
meeting until 5:30 or 6 p.m. and that he probably would
not be able to get in touch with Price. As Cochran did not
testify, I credit Huntley that he made this immediate effort
to reach Price to explain that he had not been to a doctor
and would be unable to produce a doctor's certificate. Un-
able to reach Price, Huntley reported at 4 a.m., September
28 (Tuesday), for his scheduled 4:15 a.m., shift. Night dis-
patcher Lefler asked if he had brought a doctor's excuse,
informing Huntley that word had been left with Lefler not
to let Huntley punch in if Huntley did not have a doctor's
excuse. Since Huntley did not have a doctor's excuse, Lefler
told Huntley that he did not know what the problem was,
but that Huntley would have to call back after 7 a.m. that
day (Tuesday, September 28) and talk to Price. Again, as
Lefler did not testify, I credit Huntley as to the above par-
ticulars.
At 7:30 a.m. on September 28, Huntley called Price as
directed. Huntley then explained to Price that he did not
have a doctor's excuse because he had not gone to the doc-
tor, but had instead stayed at home and used some medi-
cine left over from a prior illness. According to Huntley,
Price then said all he wanted was a doctor's certificate for
September 24 and 25. Huntley then asked (was it to be
required) even though he had not been to the doctor. Price
repeated that all he wanted was a doctor's excuse for Sep-
tember 24 and 25. Huntley then asked when they had
started requiring doctors' excuses for being off I day,' add-
ing that both of them knew other employees had been out
more days without a doctor's excuse being required of
them. Price replied the Company had a right to ask any-
body it wanted for a doctor's excuse at any time. Huntley
asked Price if Price was saying he did not have a job until
he produced a doctor's excuse. Price replied he was not
saying that and told Huntley that he should stay in touch.
Huntley told Price that he needed to know. Price replied
that he had to hear from Mitchell. Price essentially confirms
the above conversation, except he relates that Huntley did
not tell him at that time he had not been to a doctor and
that he had learned that only later from Mitchell after
Huntley called Mitchell. (On cross-examination, Price ac-
knowledged Huntley had told him that he did not have an
excuse.) According to Price, although he had not viewed
Huntley's absentee record prior to requesting a doctor's cer-
tificate, he had recalled that Huntley had a problem getting
to work on time and was out quite a bit, and he relates that
that had a bearing on his requesting a doctor's certificate
from Huntley. I do note at this juncture that Price testified
on the one hand that he had nothing to do with actually
terminating Huntley, that he did not make any recommen-
dation, and, on the other, that he told Huntley he had to
talk it over with Mitchell and did so. On Tuesday, Septem-
ber 28, Price reported to Mitchell that Huntley had told
Price he would bring a doctor's statement and that Huntley
did not have it, and Lefler sent him home with instruction
to see Price; Price also reported that Huntley had called
Price and wanted to know if he had been terminated, and
Price had informed Huntley he would have to talk it over
with Mitchell.3
According to Huntley, not having heard from the Com-
31 Although some of Huntley's testimony makes reference on Huntley's
part to being off I day (no doubt a testimonial vestige of his recollection of
his arrangement with Cochran), he was actually off 2 scheduled workdays.
Similarly, I reject as without foundation Price's testimony that he felt Hunt-
ley was trying to rip him off for 4 days' sick leave. noting that with cross-
examination on the point, Price readily conceded Huntley was off but for 2
days.
32 I do not credit Mitchell's version (in/ra), of receiving a report from Pnce
that Huntley had asserted he would not get one. I do not view such as being
plausible under all the circumstances. I have rather credited Huntley's ver-
sion. (I would note further that even Price's record (incident report) does not
record such a statement as made by Huntley, nor did he testify to that
effect.)
146
HARRIS-TEETER SUPER MARKETS. INC.
pany. Huntley called on Mitchell on September 29
(Wednesday) at 9 a.m. and asked Mitchell if he had as yet
met with Price. Mitchell told Huntley he had not. Huntley
asked what his job status was, and Mitchell related that
Huntley had not brought in a doctor's excuse. According to
Huntley, Mitchell at that time only advised him that they
would stay in touch with him. Huntley replied he needed to
know if he had a job or not; if he had a job he would like to
go to work, because he had a family to support and bills to
pay just like everybody else; and if he did not have a job, he
would like to know if he was terminated. Mitchell confirms
receiving the call from Huntley but recalls it as occurring
on Tuesday, September 28. Mitchell also asserts he told
Huntley he had just finished having the meeting with Price.
Mitchell's version is that Huntley at that time told Mitchell
he had not been to a doctor, did not have a doctor's certifi-
cate, and was not going to get one and that Huntley said
that he wanted to be terminated, that he could not sit
around the house, and that he had to go out and find a job.
There is variance in Mitchell's testimony in that at one
point he recalls he had then told Huntley he would take
care of it shortly, and on another occasion he relates he told
Huntley he would terminate him. (Huntley denies he ever
asked to be terminated.) According to Mitchell. he subse-
quently discussed the matter with Bennett (and counsel) but
not Ashcraft, that they then reached a decision to terminate
Huntley, and that he had informed Price not to schedule
Huntley further. Mitchell related that the decision was
made that morning to terminate Huntley because he did
not produce a doctor's certificate and for his unexcused ab-
sence.
Mitchell asserts that rules and procedures applicable in
this area have existed since 1974, that copies were distrib-
uted to employees (and signed), and that a copy was posted.
(These rules also referred to Respondent's right to request a
doctor's certificate at any time.) Huntley testified he never
saw the printed rules. The rules have, in their printed form,
a provision for employee signature acknowledgment. None
signed by Huntley (or, for that matter. by any other em-
ployee) were produced covering any material period, let
alone prior to the election. Numerous employees supported
Huntley that the pertinent rules had not been distributed or
posted or that the doctor's certificate requirement had not
applied to them prior to the election. I credit Huntley and
employees generally that they were unaware of these
printed rules and find further that they had never been re-
quired to produce doctors' certificates, although many had
been absent more than Huntley. Respondent answers that
the requirement was not always exercised. I otherwise note
that Huntley had fully conformed with sick leave absence
policy in regard to timely notifying the Company of his
absence. The pertinent rules provided:
(15) Any employee desiring to be off for personal rea-
sons for one-half (1/2) or more days most notify his
supervisor no later than twenty four (24) hours prior to
the time he wishes off. It will then be the judgment [sic]
of his supervisor as to employee being off with permis-
sion. Any employee off without permission will be sub-
ject to dismissal. (The above policy does not apply to
sickness, but employee must call in 15 minutes prior to
reporting time if sick and talk directly to his supervisor
or foreman.) The company reserves the right to request
a doctor's certificate at any time.
(16) Any employee off work for more than one day
must make arrangements before leaving or must call
their supervisor daily so as to keep him posted as to
when he (employee) expects to return to work. Anone
violating this procedure will forfeit an, sick p due.
I note that the rules provide for no standards or specifica-
tions for excuse application. At best, it is thus discretionary
and involves a consideration of Respondent's practices (dis-
cussed inJfra).
Mitchell's recollection of his conversation with Huntle 3
contained other inconsistencies. Thus, on direct examina-
tion, he acknowledged that Huntley had told him in their
initial conversation that he had not been to a doctor, but on
cross-examination Mitchell asserted that he had not been
told by Huntley or Price that Huntley had not gone to a
doctor. I am convinced, and I find, that at the time the
decision was made, not only Mitchell but also Price, were
aware that Huntley had not gone to the dentist or to a
doctor. Mitchell acknowledged that Huntley would not he
able to furnish a dentist certificate for those days if he had
not been to a dentist, then adding Huntley should hae
never said he was going to do so. As noted, Mitchell at one
point related he told Huntley that he was going to termi-
nate him. Price offered testimony in corroboration that he
was present for Mitchell's conversation with Huntlex and
that he heard Mitchell ask Huntle,. "Do ou want me to
terminate you?" and heard Mitchell add that he svould do
so immediately. Unfortunately, such was wholly inconsis-
tent with Mitchell's other relations that Huntle's alleged
request for termination was not a factor. indeed, that the
decision was not made at that time. but rather later and
only after a consultation with Bennett (and counsel): such
precautions assertedly were undertaken by Mitchell, ironi-
cally, because of his awareness of Huntley's strong union
activities and his membership on the negotiating committee
and because of Mitchell's awareness that they might be fac-
ing unfair labor practice charges over the discharge of
Huntley. Under the total circumstances, I credit Huntley's
version that on the occasion of calling Mitchell on the
morning of September 29, he was informed b Mitchell
only that he had not as yet spoken to Price, that Huntley by
then had not been allowed to work on two shifts, and that
Huntley had pressed upon Mitchell a need to know if he
had a job or not in the manner he reports. I note that Ben-
nett's references to a meeting with Mitchell and Price on
the morning of September 29 further convinced me of the
accuracy of Huntley's recollection as to the date of his con-
versation with Mitchell being the morning of September 29.
especially in view of Price's documentary recording that
Huntley had called Mitchell on September 29. I so find.
The Events of the First Negotiation Meeting on
September 29
Huntley testified that when he arrived for the negotiation
meeting on September 29, he found the union committee
and the representatives of the Union already there. There-
after, Ashcraft entered and stated that he saw that Mr.
Huntley was there and that Huntley had called that morn-
147
DEC(ISIONS OF NATIONAl LABOR RELATIONS BOARD
ing and asked that he be terminated, and they had ac-
cepted." Huntley told Ashcraft that it did not happen that
way, that he had only called Mr. Mitchell to find out what
his job status was, and that he only wanted to know if he
had a job or not. Ashcraft stated that that was his under-
standing and that he would have to check it out with
Mitchell, and he then asked for a 4- or 5-minute recess fior
that purpose. 4 Ashcraft subsequently returned and stated,
"Mr. Huntley, you are terminated." Coutlakis then in-
quired of Ashcraft what the reason was for firing Huntley.
Ashcraft replied that they were firing him for excessive ab-
senteeism and past job performance. '5 Coutlakis immedi-
ately questioned Huntley's discharge for the above reasons,
asserting his understanding that Huntley had a good at-
tendance record and that his job performance had not been
all that bad. Coutlakis stated that the Union wanted the
Employer to take another look at this, because they wanted
the Employer to understand the impact of what they were
doing. The Union also brought up the names of several
other individuals who had been discharged or had work
assignments changed, with the request that these matters
also be looked into. Ashcraft said that it would take some
time, and they would have to look into the records. It was
agreed that a special meeting on October 13 would be held
to discuss these matters. Huntley testified with corrobora-
tion and without contradiction that there was no mention in
this meeting of his failure to produce a doctor's certificate
1
3 The following findings of fact are based upon essentially mutually con-
sistent and corroborative testimony of employee Huntley, Union Represen-
tatives Emanuel Coutlakis (secretary-treasurer of Local 525 and an interna-
tional representative for the Amalgamated Meat Cutters) and Tony I)ean
Muncus (an organizer for Local 525), and employee members of the Union's
negotiating committee. In many respects, the testimony of Ashcraft and Ben-
nett was not inconsistent therewith. In those instances where there is a vari-
ance of substance, such is noted, and the matter is resolved.
3 Ashcraft testified that he had been informed by those in charge of Hunt-
ley that he had been terminated, but at that time he had no details. He had
been informed that Huntley had called in and had wanted to be terminated.
Although Ashcraft did not think he had stated that Huntley had requested to
be terminated, he did not deny that he made that statement. Bennett recalls
that Ashcraft had made the statement in substance. When called as a witness
by Respondent, Ashcraft denied that he left the negotiation meeting to check
with Mitchell, recalling then that he had only left once to check on certain
wage increases that the Employer was desirous of putting into effect. Bennett
has the Union calling the caucus. However, Mitchell testified that at that
time he was called to Ashcraft's office, where Ashcraft directed that he re-
port to him the things leading up to Huntley's discharge. Significantly,
Mitchell learned from Ashcraft's secretary at that time that Huntley had
already arrived and was in the negotiation meeting. I am thus wholly con-
vinced that Ashcrafl misrecollects and that he did, in fact, leave the negotia-
tion session for the purpose of checking Huntley's termination out with Mr.
Mitchell, as Huntley and the others relate.
15 When called by Respondent, Ashcraft testified that he did not say that
in this meeting. However, when initially called as a witness by the General
Counsel at the outset of the hearing, Ashcraft's testimony had been that he
did not deny he had said it but did not recall saying the reason for the
discharge of Huntley was excessive absenteeism and past job performance.
Bennett's testimony was that there was no reference to a reason made at that
meeting. However, on cross-examination Bennett conceded that Coutlakis
had made it clear from the very beginning that the Union was interested in
Huntley's case. I note that on October 4, 1976, Huntley obtained from the
personnel office of the Employer the separation notice required for the Em-
ployment Security Commission of North Carolina. Therein it is provided
that a detailed reason for separation be given. Shown on the form is "unac-
ceptable attendance record." Under all of the above circumstances, includ-
ing the credible testimony of Huntley, corroborated as it is by other wit-
nesses. I credit Huntley that he was first informed in this meeting that he was
being terminated for excessive absenteeism and past job performance.
being the reason for his discharge.', Muncus testified that
the discharge of Huntley was left open, with Muncus to call
the Company about it. Pursuant thereto. Muncus did call
Ashcraft, who advised him that he had not had a chance to
discuss it further with Bennett and with Mitchell and that
he would get back in touch with him. (Muncus testified
(without contradiction) that he later received a call from
Ashcraft's secretary advising him that Ashcraft was tied up
and had had no chance to have the meeting. Muncus left
word that Ashcraft should call him. Coutlakis testified that
on October 4 he received a telephone call from Ashcraft.
('outlakis testified without contradiction that Ashcraft told
him on that occasion that they had reviewed the record,
and their suspicion was strengthened that the discharge of
Huntley was because he had a bad absentee record. Coutla-
kis testified that there was no mention even at this time of a
doctor's excuse or failure to produce a doctor's excuse as
being a reason. I credit C'outlakis, having noted previously
that the collateral termination slip of the same date, pre-
pared for the state employment office, listed an unaccept-
able attendance record as the sole reason for separation. On
October 7 Coutlakis telephoned Ashcraft to receive assur-
ances that the Company would have the records of Huntley
available for the meeting of October 13, and Coutlakis con-
firmed that conversation by letter dated October 8. At that
time Coutlakis had not received a certain letter, dated Octo-
ber 6, from Ashcraft. The latter letter provided:
This will confirm our conversation of' October 4th
regarding the reasons for Mr. Bill Huntley's discharge.
Mr. Huntley had a record of tardiness and failing to
report for work. Hle had been instructed on a recent
day's absence to bring a doctor's certificate which he
first promised to do. Sometime later he refused to bring
one in and said that he was not going to bring one in.
He reportedly said, "Why don't you just go ahead and
terminate me so that I can get another job?" He was
discharged for his unacceptable attendance record and
his attitude about it.
The meeting to discuss discharges was held on October
13, as scheduled. Ashcraft read off the attendance and ab-
sentee record of Huntley, and Coutlakis copied it. In perti-
nent part, for 1976 the record reflected four incidents of
tardiness during a 6-week period in March and April, with
Huntley receiving a consultation report on April 28 from
Price recording the employee being advised that he must
report as scheduled." Huntley's file also records but one
'6 1 have noted that a form was prepared by Mitchell which lists as reason
for separation "insubordination-refusal to obey instructions." Significantly,
the form was to be submitted as soon as termination was known, and it bears
the date September 29, 1976. The execution of the form on September 29
thus lends support to the earlier finding that a decision on Huntley was made
on that date.
37 The consultation report is a procedure utilized by the Employer to bring
to an employee's attention that his work habits in some respect have become
deficient. The specific and acknowledged tardinesses are March 11 (15 min-
utes). April 9 (20 minutes), April 21 (8 rmnutes), and April 23 (35 minutes).
Huntley's record in years past reflected that in 1972 he was 3-3/4 hours late
and had received a written reprimand, in 1973 was 2 hours late and had
received a written repnmand on April 17, and on May 4 received a second
reprimand with a notation that if a third incident occurred by July 3, he
would receive a 5-day suspension. In 1974 he received a written reprimand
for I hour and 10 minutes with notice that if he was to have a second
incident by April 3, he would receive I days suspension. There were other
148
HARRIS-TEETER SUPER MARKETS. INC.
incident of absence for illness, on May 4. The file contained
two other incidents of significance. Thus there was a consul-
tation report with a date of April 3. 1976. for tardiness and
not reporting for work as scheduled and absenteeism from
work. (I note in passing that as of that date there had been
no incident of absenteeism by Huntley reported in his file
since October of 1975 and no recent absence at that time.)
Finally, apart from matters relating to the instant absences
and discharge, there was one other incident report reflecting
a tardiness of 15 minutes on August 19.
After Coutlakis had recorded the respective incidents, he
stated that Huntley's record was not a bad record at all.
Ashcraft replied that they thought it was bad. Huntley
stated that their record was not right anyway, as he had had
only one written warning on April 28. and that he was not
tardy or absent on August 19, as he had not worked that
day. Coutlakis then requested the records. Ashcraft replied
that they were not there to go into a kangaroo court. Cout-
lakis reiterated that Huntley's record was not as had as
those of other employees. At that point Ashcraft inquired:
"What about the doctor's excuse? The man said he would
bring one and did not." Coutlakis pointed out that nor-
mally Respondent asked for a doctor's excuse when a man
had a bad record and wanted to point it out to him and get
it corrected. Ashcraft replied that Huntley was a winner of
their truck rodeo, a top driver, and they did not want to
discharge a man like that. Coutlakis testified without con-
tradiction that the Union was not allowed to review the
records at that time. However, the April 3 and August 19
incident records were introduced in the instant record.
Huntley testified concerning the April 3, 1976, written rep-
rimand (employee consultation), that not only had he never
seen it before but also, as to his purported signature
thereon, he was absolutely positive that it was not his signa-
ture. It is especially noteworthy, particularly in the face of
such claim, that Price, also a purported signer, which would
thus indicate Price had conducted the interview, did not
testify at all to this document and that Mitchell. to whom
such documents were regularly forwarded, had no recollec-
tion as to it. Under the circumstances, I credit Huntley. I
further reject the aforesaid document as being totally unre-
liable evidence, and I shall afford it no probative value in
support of the incident depicted by it. I further am con-
strained under these circumstances to review the more
closely other documentary evidence as to Huntley's termi-
nation and find such in many respects also questionable.3 8
reflections of two incidents of being a few minutes late and one incident of
being 10 hours late due to car breakdown. without apparent reprimand.
There was another incident reflected of an absence without calling on May
27. More recently and thus more pointedly, in 1975 there were about four
incidents reflected, with no repnmands or consultation reports. Indeed, in
1975 there were only two incidents of tardiness, on October 10 (20 minutesl
and November 6 (30 minutes). The other two incidents related to absences
due to sickness, with the first on January 24 reflecting timely report and the
second on October 23 reflecting that the call reporting illness was 10 minutes
after the scheduled report time. Huntley's 1975 record clearlb is not support-
ive of excessive tardiness or absenteeism.
n I note that the written warning of April 3, 1976, for absenteeism is the
only item listed out of chronology on the sheet that was prepared of Hunt-
ley's record of attendance and absenteeism provided to president Ashcraft
for the October 13 meeting I find that coincidence and Bennett's explana-
tion therefor as being simply because of an untrained secretar' as coming
close to the point of straining credulity: as does its disappearance from
Huntley's personnel file at time of investigation of this matter at the regional
level as is also evidenced in this record occurred.
Huntley also testified that in regard to the incident report of
the tardiness of August 19, 1976, he had also never seen it
before. More significantly, Huntley testified that he did not
even work that da 5. Huntley's daily driver's log was then
introduced into evidence, and it establishes the fact per ad-
venture that he did not work that day. Huntley offered ex-
planatory testimony that, in fact, on that day he had
swapped his regular schedule with another driver to accom-
modate the latter driver. an incident of which it appears
Price was not aware. Even more pointedly, the record
clearly reflects that this particular incident during investiga-
tion at the regional level reflected an incident with onl) the
date of "August 19." with the notation of the ear "76"
not entered. In contrast, the exhibit introduced into evi-
dence reflects the year "76." It was subsequently estab-
lished from Huntley's timecard that the particular tardiness
in all probability was tbr August 19. 1975. Unexplained
satisfactorils in my view, was the entrO of the ear 1976
and, more pointedly, the utilization of that tardiness at an
obvious time when the year was not entered on the card,
itself suggesting that such an investigation of Huntley's cir-
cumstances as was being accomplished by the Employer
was not one reasonably to be viewed as directed at deter-
mining actual performance but rather at bolstering a prior
position taken. The significance of these two documents
cannot he overemphasized. For if neither event occurred,
the resulting record of Huntley simply pales when consid-
ered with the records of many other employees, including
several drivers who were retained with many more attend-
ance and absentee incident reports, which the Employer
obviously found acceptable theretofore. Nor is this some-
thing that Respondent may reasonably be concluded to
have overlooked, for even Ashcraft recalls at least a general
protestation by Huntley concerning some of the reports
being wrong in the October 13 meeting. Bennett also re-
called that Huntley seemed to disagree with the documents.
I have also considered Bennett's assertion, in explanation
of Huntley's seeming disagreement and Bennett's nonre-
cording of the question, that such loses sight of the fact that
absenteeism and tardiness were not the issues but rather
that the man had been asked to furnish the doctor's certifi-
cate, had agreed to do so, and had then refused to do so.
However, Bennett acknowledged that he was not at that
time familiar with Respondent's sick leave policy imple-
mentations in the warehouse and also that he was not
aware that Huntley had not gone to a doctor prior to the
hearing. Finally. I have considered Bennett's assertion that
others a few weeks earlier had been terminated for being
asked to furnish documentation and having also refused to
do so and that Respondent's position was that Huntley
should not be afforded privileged treatment. However, I
find on the record before me that the instances relied upon
(Mills, Reece. and Cornelius) are totally dissimilar on their
facts.
Respondent provides its employees certain paid holidays,
including Labor Day. However, Respondent's retail stores
are open every day. Thus, it is required that certain employ-
ees be scheduled to work on holidays, including Labor Day.
To avoid incidents which have occurred in the past, where a
substantially insufficient work force reports for work on a
holiday, it was Mitchell's practice prior to the (work) holi-
day to hold supervisory meetings and instruct the supervi-
149
I)DECISIONS OFI NATIONAL LABOR RELATIONS BOARD
sors to remind the employees that they were expected to
work their schedules and that if they were not present, they
would have to get proof (provide reason). Mitchell further
testified without contradiction that 2 weeks before a holi-
day he posts a notice to all employees with respect to the
upcoming holiday and their requirements as a regular
scheduled workday. Thus, as to employee Mills, Watson
testified that Mills, scheduled to work Labor Day, did not
show up on Labor Day and that when he reported on Tues-
day, Watson inquired what the problem was. Mills asserted
that he had gone to the beach and had mechanical break-
down problems. Watson inquired about a repair bill and
directed Mills to provide it to him the following day. Super-
visor Watson related that the Reece situation was essen-
tially comparable, with Reece not working on the scheduled
Labor Day. Reece was allowed to work on the Tuesday
following Labor Day, but was directed to produce a certain
repair bill that he said he had. However, when Reece re-
ported the next day, he told Supervisor Watson that the
repair bill had gotten misplaced. Watson then directed that
he needed to see a duplicate before Reece could report to
work. On the following day Reece did not show for work
but did come in at lunch to pick up his check. At that time
Watson informed Reece that he would have to see the re-
pair bill by Friday, or he did not have any choice but to
terminate him. Watson did not see Reece thereafter, and.
accordingly, he did terminate him on Friday. Watson re-
ported both incidents to Mitchell. Grocery Supervisor
Doug Jones testified that Cornelius was scheduled also to
work on the Labor Day weekend and that rather than call
his foreman (as required), Cornelius had simply sent word
by another employee that he would not be in, that he was
sick. When Cornelius reported for work the next day, Jones
refused to allow Cornelius to go to work and instructed him
to bring in a doctor's certificate. On the following day
Cornelius came in and told Jones that he did not have a
doctor's certificate and that he had no intentions of getting
one. Jones brought Cornelius to Mitchell, and Cornelius
repeated to Mitchell what he had told Jones.',
There are obvious differences in Huntley's situation from
the situation of employees who are absent on a holiday
schedule when scheduled for work, particularly after being
prewarned that proof will be required of them if they are
absent, and also of an employee who similarly fails to re-
port as scheduled on a holiday weekend and has failed to
call in directly to report his illness and then subsequently
advises his superiors that he has no intentions of getting
one. Huntley had not been prewarned, and he was not ab-
sent on a holiday. Huntley had called in timely and directly
to report his illness. Finally, I have credited Huntley that he
never told his superiors insubordinately that he had no in-
tentions of getting a doctor's certificate, but rather had in-
formed them prior to termination that he had not been to a
doctor. The more is this difference apparent when it is clear
that the employee involved is a top driver of the Employer
and had not even used accumulated sick leave from prior
years, let alone used sick leave in the instant year in a man-
ner reasonably suggestive of an abuse. There is not even a
9 Cornelius did not testify. I thus credit Supervisor Jones that employee
Cornelius had told Jones and later Mitchell that not only did he not have a
doctor's certificate, but also he had no intentions of getting one.
shred of' evidence that Respondent, by any of its supervi-
sors, ever inquired of Huntley for his explanation, which
would appear to me to be the most fundamental inquiry if
they were genuinely concerned with only the variance in his
reports to the dispatcher. Thus, Huntley was never afforded
the opportunity to explain that taking a cold always has
affected his sinuses and teeth, a matter which he well may
have been able to establish independently to Respondent's
complete satisfaction, had he been asked. However, I am
wholly convinced from the state of this record, from the
testimony of Huntly which is substantially corroborated
and consistent with the testimony of many other credible
witnesses, and in contrast with the testimony of Respon-
dent's supervisors in this matter, which not only contain
inconsistency but also actually provide indicated documen-
tary discrepancies of an unacceptable and of a totally unre-
liable nature, that in fact Respondent in its treatment as to
Huntley's absence was not interested in ascertaining all the
facts relating to Huntley's situation for a determination of
whether this valuable employee should be retained but
rather that Respondent's supervisors and agents, Price and/
or Mitchell, opportunistically seized upon Huntley's cir-
cumstance and discharged him with real motivation of dis-
charging a recently revealed leading union adherent who
was to take part in the negotiations shortly to commence. If
the seriousness of such violation gives cause for any pause,
the background of the unfair labor practices earlier found
in the present proceeding (as well as official notice of the
prior proceeding) render this evidence weighted conclusion
congruous and all the more factually convincing. I thus
conclude and find that the reason ultimately advanced for
Huntley's discharge, failure to provide a doctor's certificate,
was itself pretextual. as were all the other vacillating rea-
sons advanced, and that Respondent rather did discharge
its top driver. William Huntley, on September 29, because
of his union activities, in violation of Section 8(a)(3) and (1)
of the Act.4
I have been also persuaded by the weight of the credible
evidence and find that the Respondent utilized its doctor
certificate rule as a pretext for the discharge of William
Huntley. The record supports the conclusion that this rule
was discriminatorily applied to Huntley as compared with
many other employees, including drivers, whose attendance
records were far poorer than Huntley's.
The complaint has also alleged by amendment made at
the hearing that after August 5 Respondent more strictly
enforced its rule requiring employees to produce doctors'
certificates because its employees had elected the Union as
their bargaining representative. The record reveals that a
significant number of employees testified that to their
knowledge, the rule was never enforced before the election,
but after the election supervisors had begun regularly re-
questing a note from the doctor upon absences. Employees
from various departments (for example, drug and grocery
departments, meat and meat receiving, salad kitchen and
bakery), many of whom had themselves had occasions for
i Nor do overlook Mitchell's revealing testimony on cross-examination
that the reason for Huntley being terminated was what was determined
through Mr. Bennett through counsel, but not what he had reported to Ash-
craft in their conversation on September 29. Bennett testified he was new at
the time and a listener, though he had taken Ashcraft aside to warn him of
the impact of discharging a member of the Union's negotiating committee.
150
HARRIS-TEETER SUPER MARKETS. INC.
significant numbers of absences. testified variously that
prior to the election they were not aware of any employees
being required to bring certificates in, whereas thereafter
they were. Respondent does not contest the above-men-
tioned requirements of doctors' certificates postelection. It
is Respondent's position that doctors' certificates had been
required in the past, though not in all circumstances or
from all employees. Such a position places no little burden
upon the General Counsel in prevailing on this allegation,
particularly where I am convinced that such a rule did exist
and that it had in fact been used, e.g., with appropriate
warnings to insure employees' attendance as scheduled on
holidays and over holiday periods. Employee Doug Dover.
whose testimony I have found wholly credible in a number
of other instances, testified that Nance had instructed him
after the election that if any of the employees working un-
der him were off for 2 or more days, Dover was to make
sure they had doctors' excuses before they clocked in. It will
be recalled that Nance did not testify. Dover also testified
that, being a leadman of some 8 months prior thereto, he
was not aware of any employee ever being asked to bring in
a doctor's certificate for an absence. I credit Dover.
Respondent did offer the testimony of Bennett that he
had made a random selection of employees' files. which
contained doctors' certificates which reflected that doctors'
certificates were received on various dates before and after
the election. Thus, Respondent offered a compilation cover-
ing some 33 employees supervised by various supervisors.
Specifically, the files of four such employees employed un-
der the supervision of Price reflected doctors' certificates
received prior to August 5, 1976. I note in passing General
Counsel's contention that even the weighted proportion of
doctors' certificates reflected in these random file selections
occurring after August 5, 1976, is supportive of and war-
rants the conclusion that doctors' certificates were required
with much greater frequency after the election than before
and thus evidence an altered implementation of the rule.
There is some support and merit to General Counsel's con-
tention. Thus, I note there are 26 such incidents preelection
and 46 such incidents postelection. However, I do not re-
gard the number alone dispositive of the issue, since the 26
preelection incidents cannot be regarded as insubstantial if
they reflect incidents in which doctors' certificates were ac-
tually required. However, significantly, essentially no proof
was offered from the respective files that reflected that a
doctor's certificate was required versus being voluntarily
produced. Strangely, Respondent then produced the testi-
mony of only one of the listed supervisors to support the
contention that the listed doctors' certificates were pro-
duced as results of supervisors' requirements. Price initially
acknowledged only one individual as having produced a
doctor's certificate for him voluntarily (J. P. Knuckles).
There were four other individuals whose files reflect pre-
election doctors' certificates (Bobby Glenn, Terry Hender-
son, John A. Cash, and James F. Horn). Price testified gen-
erally that with regard to the I employees listed under his
supervision (with the exception of Knuckles), if a file re-
flected a doctor's certificate, it was one that he had re-
quired. However, after an extensive cross-examination as to
individuals whose files reflected doctors' certificates present
prior to the election, Price acknowledged that he had no
independent recollection of the details of those incidents. (I
note in passing that each of the abo\ e individuals also had
more incidents of tardiness and absence tIhin did lluntle
in comparable periods.) Even more pointedl,. one em-
plovee. Hlorn, was present and available and testified that
no supervisor had required him to bring in the doctor's
certificate contained in his file. While the other three em-
ployees did not testilf, the record nonetheless does reflect
various circumstances further substantiallly weakening
Price's assertions.4 Equally strangel, Supervisor Watson
offered no testimony in support of the exhibit and his prac-
tice, though some 14 of the instances preelection related to
employees (100) under his supervision. In contrast. Michael
Frick (testifying as to two such incidents) testified that his
doctor's excuses were given to the Compan\ oluntarily, as
did employee McMurray. Similarl., Supervisor Jonas did
not testify at all, while employee Beatt testified that her
doctor's certificates had been presented voluntaril (t\wo in-
cidents).
Bennett also testified that the rules were posted on all of
the bulletin boards and that when new people start they are
given a cops of the rules. However, it must be recalled that
Bennett did not come on board until September 20. 1976.
Even the rule itself provides onl that the Employer may
require a doctor's certificate. Bennett's testimony as to the
implementation of the rule was that the doctor's certificate
could be required by a supervisor when an employee had
less than a good absenteeism tardy record, when it was
suspected that the individual was not giving an accurate
reason for being absent. or when it was beneficial to the
employee and the Company to continue to work. Howeer
Bennett acknowledged that his understanding of the (prac-
tice) implementation was not something that he posessed
when he first started, but rather something which he arrived
at over a period of time. However, even Bennett was totally
unconvincing with regard to the application of the rule to
an individual after the fact when the individual had not
been to a doctor. Supervisor I)oug Jones testified only that
it was common knowledge that a supervisor could ask for a
doctor's excuse and was not definitive as to the implementa-
tion. In final analysis, I am satisfied that the weight of the
evidence from General Counsel's witnesses and the docu-
ments of record continue to predominate and support the
conclusion that although doctors' certificates had on occa-
sion been required from time to time in the past, e.g. on
work holidays, in the case of employees with bad attend-
ance records, they were required after the election in far
greater frequency than they were prior to the election. I am
thus convinced and I now find, that the Employer. follow-
ing the election and as part of a hostile reaction to the
selection of the Union as their representative, began to re-
quire of its employees a greater accounting on their ab-
sences and that the same constitutes restraint on exercise of
Section 7 rights and an independent iolation of Section
8(a)( I) of the Act.
4 Included would he: an instance of a recited doctor's certificate not being
present in the file, with other documentary evidence indicating the individual
had worked, though reporting late H(enderson), with another oi same rea-
usnahbl relating to an industrial accident (Henderson). as was the case with
the final emplosee (('ash)
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Alleged Unfair Labor Practice Strike
1. The prior proceeding as background 4
Before proceeding to a consideration of the evidence
bearing upon the nature of the strike and related alleged
violations of Section 8(a)(3), some additional reflection on
the prior unfair labor practices as motivational background
to the above is warranted.
I have treated in considerable depth above the state of
certain independent evidence of this proceeding, finding
that such established that a significant number of specific
acts and instances of conduct of Respondent's warehouse
department supervisors and/or agents had occurred and
constituted interference, restraint, and coercion of employ-
ees engaged in protected activity. However, both General
Counsel and the Charging Party in their initial briefs have
essentially argued that the matters considered herein fairly
are to be viewed as but a continuation of an overall and
unabating deliberate strategy of Respondent to defeat and
ultimately destroy the Union's organizational effort initi-
ated at its warehouse. It is thus deemed wholly warranted
at this juncture to reflect a proper awareness by me of the
specific unfair labor practices which the Board has already
(adopted) found to have occurred in the earlier proceeding
brought before it and which unquestionably constitute still
additional relevant background both to a determination of
the true nature of the strike and, as well, to a proper evalu-
ation of Respondent's true motivation in regard to certain
additional 8(a)(3) allegations of the instant proceeding. I
take notice of the following.
Employee organizational activity initially began at Re-
spondent's warehouse in December 1974 and continued
there in 1975 and on into 1976. The new-adopted findings
reveal that employee protected activity was unlawfully and
substantially impeded during the above period and through
April 1976 by certain conduct of Respondent heretofore
determined to be in violation of Section 8(a)(l), (3), and (4)
of the Act.
More precisely, the Board has now affirmed earlier find-
ings made in consolidated Cases 11 CA 6308 and I I-CA
65424' that during the material time of the employees' ini-
tial organizational activity in 1975 through April 1976, spe-
cifically: (a) that Respondent had promised and granted
raises to employees to induce them to refrain from support-
ing the Union or engaging in union activities, solicited em-
ployees to inform on the union activities of other employees
and to engage in surveillance of their union activities, and
interrogated employees unlawfully about their union activi-
ties, about the union activities of other employees, or about
their participation in a Board proceeding, all in violation of
Section 8(a)(l); (b) that Respondent advanced pretextual
reasons for its discharges of truckdriver Jimmy Martin (an
employee of 23 years' service) on October 7, 1975, and of
forklift operators Jerome Little (an employee of 16 years'
service) and James Wright (an employee of II years' ser-
vice) on October 10 and 16, 1975, respectively, and that
rather the above discharges (accomplished over but an 11-
day period), viz, of Wright (general chairman of the em-
42 Harris-Teeter Super Markets, Inc., 231 NLRB 1058 (1977).
al Harris-Teeter Super Markets, Inc., supra.
ployees' organizing committee) and of Martin and Little
(each cochairman of same), who were 3 of the (then 250)
employees most actively involved in the Union's organiza-
tional campaign, were in fact accomplished for discrimina-
tory reasons and in violation of Section 8(a)(3) and (1) of
the Act: and (c) that employee Earl Nixon, who had testi-
fied in the earlier proceeding, on March 10, in support of
certain such matters, was himself also discharged on April
15 (during adjournment) by Respondent for the dual reason
of discouraging employees in their union activities and be-
cause Nixon had given testimony earlier in that proceeding,
in violation of Section 8(a)(3), (4), and (1) of the Act.
While, on the one hand, a caveat is still in order that
other alleged unfair labor practices herein still to be evalu-
ated must receive convincing support from credible evi-
dence of the instant record, on the other hand, it seems to
me that it would be nothing short of naivete to assume that
the above widespread and serious continued interferences
which I have now found occurred and were committed by
various warehouse department supervisors and firstline
foremen. which are further observed to follow so closely on
the heels of the earlier and substantial unfair labor practices
as determined by Administrative Law Judge Jalette and
adopted by the Board, were not accomplished without basic
awareness of' the superiors of these warehouse supervisors
and foremen. Indeed, it seems to me the more reasonably to
be concluded under those circumstances that such are but
mirror reflections of a deep-seated hostility toward the
Union on the part of those superiors. I so conclude.
2. The nature of the strike which commenced on
November 17
The General Counsel and the Charging Party contend
that the strike which commenced on November 17 was an
unfair labor practice strike from its inception and through-
out its duration. Respondent would contend that the strike
was essentially occasioned by the Union's displeasure over
the progress of negotiations. Subsequent (material) negotia-
tion meetings were held on October 27 and November I I,
16, and 18. The General Counsel presented credible evi-
dence of employees who served on the negotiating commit-
tee and of the union representatives conducting the Union's
negotiations that the subject matter of the negotiations did
include the (prior) discharges of its chairman and two
cochairmen on the organizing committee (Wright, Little,
and Martin) and of Nixon (who testified in the prior pro-
ceeding) and, more recently, of Huntley (who served on the
negotiating committee) as well as threats by the Company
made against other employees. Although Ashcraft un-
equivocally denied that there was any mention of the dis-
charges in the meeting of November 6, Ashcraft frankly
conceded that the discharges had come up inferentially in
negotiations in regard to the parties' discussions on arbitra-
tion. Bennett conceded that there were several references
concerning Huntley during the negotiations, and I have
previously adverted to Bennett's initial counseling of Ash-
craft as to the impact of firing Huntley, who was a member
of the negotiation committee.
Wholly apart from the Company's position with regard
to no mention of the particular discharges in the final nego-
tiation session (prior to the strike), the evidence is over-
152
HARRIS-TEETER SUPER MARKETS, INC.
whelming that the Company was on advance notice that
the Union was contending that unjustified firings had oc-
curred. Clearly, the Company was aware at this time that
the Union had filed earlier charges contending such were
unlawful and that a hearing thereon had been already held.
The Company had received notice of unjustified firings
from several sources. The evidence is overwhelming in this
respect, and I see no useful purpose in reciting the full de-
tails thereof; recitation of sources will suffice. This finding is
further supported by a certain letter, dated October 25,
from Coutlakis directly to Ashcraft: by the reports of the
union representatives and negotiating committee to assem-
bled employees on October 30, prior to a strike being au-
thorized; by the discussions in negotiations with respect to
the arbitration clause;" by the nature of certain letters (ini-
tially drafted by Coutlakis) addressed from affiliated or
friendly organizations (to the Union) to Ashcraft reciting
references to unjustified firings and Respondent's antiunion
campaign; by contemporaneous (union) literature; by the
picket signs themselves, which variously related that the
Company was unfair and had committed unfair labor prac-
tices; and finally, totally convincing under all of these cir-
cumstances, by (a) a certain press release on November 17.
1976, which contained specific references:
The Union claims the Company is unfair to its workers
and cites the firing of three Chairmen of its Organizing
Committee during the organizational drive and the fir-
ing of a member of the Negotiating Team after Con-
tract Negotiations had begun as an example of the
Company's contempt for modern industrial relations,
and (b) a press release of November 20, 1976, in which the
Union reported that the Company's offer to reinstate em-
ployees Martin, Little, Wright, and Nixon had been made,
but that there had been a failure to offer to reinstate others,
including William Huntley, who was a member of the
Union's negotiating team. 4 Thus, the weight of the evi-
dence in this case is overwhelming, and I readily conclude
and find that the strike which commenced on November 17.
1976, was from its very inception and throughout its dura-
tion an unfair labor practice strike. General Drivers and
Helpers Union, Local 662 (Rice Lake Creamery Co.) v.
N.L.R.B., 302 F.2d 908, 911 (D.C. Cir. 1962), cert. denied
371 U.S. 827 (1962); and Northern Virginia Steel Corpora-
tion v. N.L.R.B., 300 F.2d 168, 174-175 (4th Cir. 1962). It is
enough that the Employer's unfair labor practices herein
"The Company had proposed (after the Union had requested company
counterproposals in the meeting of October 27) in the meeting of November
II its arbitration proposal. The arbitration proposal of the Company pro-
vided for the resident judge of North Carolina to control the selection of the
arbitrator and alternatively offered to allow the Union the right to strike.
Neither was acceptable to the Union.
45The record reveals that at the November 18 meeting held before the
Federal mediator, Ashcraft delivered offers of reinstatement to the Union of
the above four employees, having also sent a copy of same to the individuals.
The Company had given the Union no indication throughout all the prior
negotiations of willingness to do so. On November 19 each of the individuals
sent a letter to Ashcraft accepting the offer of employment but advising:
"[Wle understand there is an unfair labor practice strike against your Com-
pany in progress now. It is against my conscience to cross a picket line. I will
be happy to return to work as soon as dispute is settled." It has been astutely
observed that a withdrawal of a causitive force in an unfair labor practice
strike, "after the orchestrated momentum of the combined elements has been
achieved, does not necessarily lessen that momentum." Head Division, A MF,
Inc., 228 NLRB 1406, 1418 (1977). 1 find it did not do so here.
and heretofore found are established as substantial factors
in the strike. It makes no difference to the character of the
strike that other reasons may have been present and also
contributing causes. N.L.R.B. v. Stillev Plywood Co., Inc.,
199 F.2d 319 (4th Cir. 1952), cert. denied 344 U.S. 933
(1953); Richardson Transfer & Storage Inc., 176 NLRB 504,
513 (1969); and The Lundv Packing Conmpany, 223 NLRB
139. 156-157 (1976).
E. The Alleged Failure to Reinstate Strikers; Respondent's
Defenses
1. The 10(b) defense
Respondent contends that Section 10(b) of the Act effec-
tivelv bars the Board's consideration of Respondent's al-
leged failure to reinstate striking employees other than the
three employees specifically named in the charge in Case
11 -CA 7122 as initially filed. Respondent presents no other
authority in support of its position. For reasons explicated
hereinafter, I conclude Respondent's 10(b) defense is with-
out merit.
Uncontestedly, the original charge in Case I -CA-7122,
alleging violation of Section 8(a)(l) and (3) and encompass-
ing Respondent's alleged failure to reinstate strikers Tom
Caddell, Margie Kiser, and Pamela Ledford in February
1977, was timely filed on July 21, 1977.6 On December 13,
1977, the Charging Party filed an amended charge in Case
11-CA 7122, which continued to allege the violation of
Section 8(a)(l) and (3) but added the names of the other
unfair labor practice strikers. Complaint issued alleging
that the above-named unfair labor practice strikers were
not timely reinstated, and, on motion, the complaint was
ordered consolidated for hearing in the instant proceeding,
held on a consolidated complaint in Cases I 1 CA-6827 and
II -CA-6964, which itself had timely alleged that the strike
was an unfair labor practice strike.
It has long been established that a complaint may prop-
erly address violations of the same class as those set up in
an initial timely charge. National Labor Relations Board v.
Fant Milling Co., 360 U.S. 301, 307 (1959). Thus, in Fant
Milling, the Supreme Court stated, at 307-309:
A charge filed with the Labor Board is not to be
measured by the standards applicable to a pleading in
a private lawsuit. Its purpose is merely to set in motion
the machinery of an inquiry. National Labor Relations
Board v. . & M. Electric Co., 318 U.S. 9, 18. The
responsibility of making that inquiry, and of framing
the issues in the case is one that Congress has imposed
upon the Board, not the charging party. To confine the
'* Respondent placed in evidence the August 22, 1977, dismissal letter of
the Regional Director in which he initially dismissed the charge in Case I I-
CA 7122. concluding there was insufficient evidence that "the Employer's
failure to rehire" the three named employees was "for reasons violative of
Section 8(aXl) and (3) of the Act." Upon dismissal, the Charging Party filed
timely appeal with the General Counsel's office. Pending disposition of such
appeal, the Regional Director elected to reconsider his prior determination,
thereupon concluding that sufficient evidence had been presented of an un-
fair labor practice commission in violation of Section (a)() and (3) as
charged in that Respondent had failed to reinstate these employees as unfair
labor practice strkers. With the above reconsideration by the Regional Di-
rector and subsequent action thereon, the General Counsel's office consid-
ered the Charging Party's appeal mooted
153
DI)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board in its inquiry and in framing the complaint to
the specific matters alleged in the charge would reduce
the statutory machinery to a vehicle for the vindication
of' private rights. 'This would be alien to the basic pur-
pose of' the Act. The Board was created not to adjudi-
cate private controversies hut to advance the public
interest in eliminating obstructions to interstate com-
mercc. as this Court has recognized from the begin-
ning. ationa/l Labhor Relations. Board v. Jones &
Laughlin Steel Corp., 301 U.S. 1.
Once its jurisdiction is invoked the Board must be
left free to make full inquiry under its broad investiga-
tory power in order properly to discharge the duty of'
protecting public rights which Congress has imposed
upon it. There can be no justification for confining
such an inquiry to the precise particularizations of' a
charge. For these reasons we adhere to the views ex-
pressed in Vational Licorice Co. v. ational Labor Re-
l(tions Board.
What has been said is not to imply that the Board is,
in the words of the Court of Appeals, to be left "carte
blanche to expand the charge as they might please, or
to ignore it altogether." 258 F.2d at 856. Here we hold
only that the Board is not precluded from "dealing
adequately with unfair labor practices which are re-
lated to those alleged in the charge and which grow out
of them while the proceeding is pending before the
Board." Na'ional icorice Co. v. National Labor Rela-
tions Board, 309 U.S. 350, at 369....
To be sure, the above-cited cases involved conduct which
had occurred subsequent to the filing of' the charge. How-
ever, it is also well established that conduct occurring
within the 10(b) period, prior to the filing of the charge, is
similarly covered ift' encompassed within a timely charged
matter or of the same class of violation as that set up in the
charge. N.L.R. RB. v. Gaivnor News Co. 197 F.2d 719 (2d Cir.
1952), affd. 347 UI.S. 17, 34 (1953): N.L.R.B. v. Southern
Materialsv Co., Inc.. 447 F.2d 15. 17- 18 (4th Cir. 1971), and
L.ubank Co., Marl Corporation. e al., 175 NLRB 213, 298
(1969). Moreover, where, as here, an amended charge is
filed, although it be filed more than 6 months after the oc-
currence of the alleged unfair labor practice, it will be con-
sidered timely "if it relates to an unfair labor practice inher-
ent in or connected with the original charge." Sunrise
Manor Nursing Home. 199 NLRB 1120, 1121 (1972) and
Gulf States Manujicturers, Inc., 230 NLRB 555 (1977).
Contrary to Respondent's contentions, there can be no
question that Respondent's refusal to reinstate other unfair
labor practice strikers is inherently of' the same nature and
class as Respondent's refusal to reinstate unfair labor prac-
tice strikers Caddell, Kiser, and Ledford, which was not
questioned as encompassed within the original charge
timely filed in Case I -CA-7122. 4 7 The unfair labor prac-
tice individually charged may, in the complaint issuance,
cover a significant additional number of' victims. N.L. R.B.
47See also Evergreen Convalescent Home, Inc.. 209 NLRB 990, tn. I
(1974); Humboldt Readvmi,. Inc.. 228 NLRB 733. 734, fn. 7 (1977); and
application may he even as to other incidents so long as "closely related" or
"of the same class," N L.R. B. v. International Union of Operating Engineers.
Local 925, A Fl. ('10, and is Business Manager, H. B. Roherts [J L. Mania
Inc.], 460 F.2d 589. 596 (th Cir. 1972).
v. Gainor News Co., 197 F.2d 719, 721 (2d Cir. 1952), affd.
347 U.S. 17, 34. fn. 30 (1953). Accordingly, I find Respon-
dent's argument based on the prescription of 10(b) to be
without merit in the circumstances of this case.4 8
2. The General Counsel's burdens
It was the responsibility of the General Counsel, in order
to establish additional violations by Respondent of Section
8(a)(l) and (3) in refusing to reinstate strikers, to establish
that the named individuals were unfair labor practice strik-
ers and that they were discriminatees. Prima Jacie showing
on the former is made in establishing participation in the
strike. The burden of the latter is to be met as cogently
stated by Administrative Law Judge Jerry B. Stone in C. K.
Smith & Co., Inc., 227 NLRB 1061. 1075, 1076 (1977).
It is General Counsel's burden to establish whether
the employees who were unfair labor practice strikers
in this case are discriminatees or not. If he proves that
such unfair labor practice strikers have made uncondi-
tional offer to return to work and have not been rein-
stated or have not been timely reinstated, he has met
his burden. If he does not establish the foregoing. the
General Counsel has failed to meet his burden of
proof.
I conclude and find that the General Counsel has made
primau facie showing as to the identities of individual unfair
labor practice strikers during material times.45 I further con-
8 It is thus unnecessary to consider, apart from alleged 8(a)(1) and (3)
violations, these matters as raising possible remedial issues, e.g., in regard to
providing remedy for a timely alleged unfair labor practice strike. Cr Joseph
H. Bliss, d/hb/a Artcraft Mantel and Fireplace Co., 174 NLRB 737, 745
1969).
4' This finding is founded on credited testimony of Union Representative
Muncus that certain named employees had participated in vanous strike
activities and/or activities in support ofI the strike, on consistent and cor-
roborative testimony of a significant number of employees who participated
in the strike, on evidence of substantial individual striker requests for rein-
statement and their subsequent reemployment, on other documentary evi-
dence, and on the weight of' the evidence of the record as a whole. In regard
to certain of the documentary evidence relied upon, a few additional remarks
appear in order. Received in evidence at the initial heanng was a determina-
tion by the employment commission of the State of North Carolina that
some 140 named employees had participated in the November 17 strike at
Respondent's warehouse premises and were thus determined disqualified for
unemployment insurance benefits while participating in the labor dispute
under North Carolina general statutes 96 14(5). The Employer had ac-
knowledged in the original hearing before me that it had initially supplied
the state agency a list of the strikers as of' November 18. Respondent at
initial hearing identified the above document as containing names of the
stnkers as of that date. At the resumed hearing Respondent sought to clarify
its position as being that it had not intended to vouch for the accuracy of
that list or for the accuracy of certain other insurance lists provided the
Union. Thus, similarly at the initial hearing before me documentary evi-
dence was received in the form of a list provided by the Employer to the
Union, which list contained the names of striking employees, together with
the insurance benefit cost information for each of the striking employees.
Moreover, at the resumed hearing additional documentary evidence was re-
ceived which reflects Respondent was the source of striker identification for
the employment commission on December 16. which led to the above deter-
mination (Decision No. 937-L) on January 31, 1977. Thus, while the Em-
ployer has sought to clarify its position at resumed heanng that it had not
intended to vouch for the accuracy of these documents in identifying strikers,
I am nonetheless persuaded that the foregoing lists, in identifying striking
employees under the circumstances of their generation and use and in con-
junction with the other evidence earlier referred to, are probatively reliable
and are thus further corroborative in identifying the striking employees.
154
HARRIS-TI-ETER S PER MARKETS. INC5
clude and find that the General Counsel established that all
of the employees listed on Appendix B were unfair labor
practice strikers during material times. "' It remains to con-
sider the General Counsel's evidence as to requested rein-
statement of striking employees and of Respondent's other
contended defenses and responses thereto.
3. The reinstatement correspondence
On February 21 Respondent received letters ' (dated
February 16 or 18, 1977) from 107 of the strikers named on
Appendix B. On February 28 Respondent received a simi-
lar letter (dated February 23, 1977) from seven additional
strikers listed on Appendix B. On February 25. 1977. the
four previously determined discriminatees (Little Martin.
Nixon, and Wright) wrote individual letters to Ashcraft re-
questing notification of when to return to work 5 2 Thus, the
record reveals that the Respondent received 118 individual
letters seeking unconditional reinstatement from unfair la-
bor practice strikers, most named on Appendix B. The rec-
5 Each of the strikers named on Appendix B appears on both of the above
lists. At the conclusion of the hearing. General Counsel, with the approal oft
the Charging Party. withdrew the names of 15 employees from the complaint
for various reasons, but essentially 12 who the record had established were
not striking employees at time of requested reinstatement and 3 employees
who the parties agree were previously fully reinstated to their former or
substantially equivalent positions of employment Thus, withdrawn were
Tump Anthony (uncontestedly discharged for strike misconduct: voluntarily
resigning: RaundiF A ver (December 17), Dwight L Barker November 19).
Walter R. Davis (November 10), and Darrel W1 Hagetr (December 16): dis
charged with no unfair labor practice charge filed thereon: Lonard S Daii
(November 16) and Kenneth Reese (September 7): Reginald Hatles, injured
prior to the strike, who returned to work when physically able, on Januar
31: Lary E. Huffman, an applicant who never reported for work: Donni' E
l ofton and Michael Mcl 'ev, who Muncus testified had not participated in the
strike: and the name of Pamela B Walker, who the record reveals is the
same individual as listed under the name of Pam L.edford. Additionally with-
drawn were reinstated employees Willi S Hunt (February 7, 1977). Ronnie
L. Hurst (December 28). and Harne- L. ungro (February 3. 1977) Al
hearing, General Counsel also moved to withdraw the name otf l.lm Bi ru
from the complaint. Charging Party's position was that Byrum w as ill the
entire penuod of the strike and was still ill Respondent contends that By rum.
initially disabled, was released by his doctor to come back o work. but did
not report as scheduled (pror to the strike) and was terminated. Ruling on
General Counsel's motion as to Byrum was reserved. Having now fully re-
viewed the record. I find that Byrum did not report for work as scheduled on
November 15, 1976. and that there is insufficient evidence to establish that
he ever participated in the strike. The record thus reveals that after Byrum
received treatment for an injury sustained on June 11, 1976, it was the con-
clusion of the examining medical authority on October 27. 1976. that B rum
was "capable of returning to full work at this time." Respondent. in due
course, was so notified. On November 8 Mitchell wrote Byrum. inter alia "I
must have you return to work by Monday, Nosember 15, 1976, or I must
assume you have quit your job at Harms-Teeter." Bennett testified that
Byrum's file showed no response to that letter Byrum did not testify. His
name does not appear on either the insurance list of strikers or the state
commission list. Nor is there any other evidence to warrant conclusion he
was an employee who participated in the strike. I thus find, on the evidence
before me. insufficient evidence that Byrum as an unfair labor practice
striker and thus warrant to grant General Counsel's motion to withdraw the
name of Lloyd Byrum from the complaint.
5 The aforesaid individual letters were addressed to Ashcraft and pro-
vided:
This is to advise you I am hereby making unconditional offer to return
to work in your plant.
~: The letter provided:
On November 17, 1976 it was my desire to strike with m fellow
employees in protest against the unfair labor practices which the com-
pany was committing. I now accept our prior offer of reinstatement
and ask that you notify me when I may return to work
ord reseals that no individual requests or reinstatement
were made by approximately 20 other unfair labor practice
strikers.
On Februlars 18 John Russell. president o tLocal 525,
also sent the following letter t Ashcraft. which xNas re-
ceived on ebruar '21:
Th is is to notits sour (Compan' i that l.ocal 525
herebx makes an imnlediate and unconditiollral request
to reinstate all of the Harris-Teeter workers currently
engaged in the strike against our Charlotte. North
Carolina \Varehotuse as of the date of our receipt of'
this letter or at any reasonable time filloming such
date.
Ashcraft replied to Russell hb letter dated Februarx 23,
1977, as follows:
We have received our letter dated Fehruary 18,
1977. in which ou advise that local 525 is requesting
this company to 'reinstate' all the 'workers currently
engaged in the strike' against the Harris-Teeter Super
Markets. Inc.
Since we have received communication both from
you and from a large number ot' strikers in the form of
individual letters concerning the return to work of
those currently on strike. we feel it necessary to hase
clarification from ,Oiou at this time as to whether ou
expect us to deal only with bour U nion on this matter.
or whether ou expect us to communicate and deal
directly with the individuals who havse written to us.
Additionally we obserse no indication as et that
the strike has ended. Please advise us when the strike
activity is to he terminated.
On Februar 2 Russell ssrote to Ashcraft as fIollowAs:
In answer to our letter ofx February 23. 1977. IHar-
ris-Teeter empl%ees have been on strike since Novem-
her 17. 1976 in protest against the ('ompany's unfair
labor practices. IThe individuall ., and the ininil col-
lectielN. have made an unconditlional offer to return to
work.
Should you so desire, the Union would be willing to
assist the (compan) in locating and notifying the strik-
ing employees as to when they should report to work.
and/or any other assistance we might offer should the
Company ask for it. The offer to return to work is
unconditional.
As long as the Cornpanx continues to commit unfair
labor practices. including its refusal to reinstate the
striking employees. the Union is left with no alterna-
tive but to continue its strike actisity.
We urge you to return the striking workers to their
jobs and limit your back pat liabilit!.
On February 28. 1977. Respondent's Bennett sent a letter
to each of the first group of employees initially w riting a
letter to the Company. which provided as follows: "Please
call me as soon as possible concerning your letter o'f Febru-
ary 16. 1977."
On March 1. 1977. Russell sent a Mailgram to Ashcraft.
which provided:
We reiterate our unconditional offer to return to work
made on February 18 1977 on behalf of the employees
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by Local 525 who have been on strike
against your Company in protest against unfair labor
practices. At your request we have withdrawn our
picket lines. Please advise our strikers when they can
return to work
On March 2, 1977, Ashcraft sent Russell the following
letter:
This is in further reference to your letter of February
18, 1977, which is supplemented by your telegram of
March 1, 1977. It also has reference to a large number
of letters we have received from individuals who for-
merly worked here stating that they offer uncondition-
ally to return to work.
We asked in our letter of February 23, 1977,
whether you wished us to deal directly with the em-
ployees or with the Union but you have not responded
to that question. We fully recognize your right to rep-
resent strikers and we do not intend to interfere with or
disregard that right.
However, circumstances have come to our attention
which prove that a number of the letters we received
from individuals, stating that they desire to return to
work, are not factually correct. This is causing substan-
tial confusion which necessarily slows down the pro-
cess of recall.
It appears to our Company, therefore, that it is
highly desirable, if not necessary, that you have all in-
dividuals represented by your Union who are actually
available for work to come by our office and sign a
registry or otherwise personally signify their readiness
to return or, if they are not now ready, to advise us
when they will be available. It may also be desirable,
moreover, to have them state preferences as to jobs
and shifts under post-strike circumstances which now
exist.
By wire of March 7, to Ashcraft, Russell notified the
Company:
Reference yours of March 2, we would repeat the sec-
ond paragraph about February 25 letter stating, should
the Company request it. the Union would assist the
Company in locating and notifying the striking em-
ployees as to when they should report to work.
To our knowledge all offers by the striking employees
to return to work has been sincere. Circumstances of
each striker changed from day to day, and is the Com-
pany's legal duty to advise the striking worker when he
may return to work, a responsibility the union will not
assume. If the striker no longer wishes to work for Har-
ris-Teeter it would behoove the Company to secure
this refusal in writing and end his backpay liability.
The Union would not want to be placed in the position
of speaking for each individual striker in this matter.
We would suggest a certified letter to each striking em-
ployee offering reinstatement and advising them when
they can return to work. If this is an inconvenience I
would point out the inconvenience I was caused by the
Company's unfair labor practices and failure to negoti-
ate in good faith.
On March 10. 1977, Bennett sent a letter to the employ-
ees (only) who had by that time sent a written request for
reinstatement to the Employer. Bennett's letter provided:
We recently received a letter which appeared to bear
your signature stating that you were unconditionally
offering to return to work at our warehouse. At or
about the same time, we received a large number of
identically worded letters which were purportedly
signed by your fellow workers.
Circumstances have arisen, however, which make it
clear that many such letters were sent with respect to
strikers who are not interested in coming back to work
at any time or who are not immediately available for
work.
The foregoing, combined with the imbalance and
uncertainty of operations which were caused by the
strike, have made it most difficult for us to make rea-
sonable plans for utilization of the work force and
strikers who sincerely desire to return at this time.
We have received a communication from the Union
which suggests that we contact you individually and
states that "The Union would not want to be placed in
the position of speaking for each individual striker in
this matter."
Accordingly, if you are actually available for work
now or in the near future, please report in person to the
Employee Relations Department during business
hours as soon as you can do so. At that time, you will
be requested to signify personally your availability,
your job and shift preference, etc. Following that, we
will make an appraisal of our work force requirements,
including future prospects.
If you do not appear as requested on or before 4:30
pm on March 16, 1977, we will assume that you are
not actually interested in returning to work here.
Party Contentions and Analysis
It is the position of the General Counsel that the Union's
letter of February 18, 1977, constituted a valid uncondi-
tional offer to return to work which was effectively made on
behalf of a/l the striking employees. It is thus the position of
the General Counsel that individual offers were not re-
quired, that Respondent could not delay the effective date
of the unconditional offer by its correspondence, and that
Respondent could not in any manner toll (or put off) its
backpay liability by demanding subsequently a personal re-
sponse to its inquiry from each striker. It is General Coun-
sel's position that remedial backpay for the strikers should
commence February 26, 5 days after February 21 (the day
the unconditional offers were received and by their terms
were effective). In that respect it is General Counsel's con-
tention also that the circumstance that employees may have
been picketing on February 18, or actually continued to
picket after February 21, is of absolutely no consequence.
Thus, the General Counsel argues that once an uncondi-
tional offer of an unfair labor practice striker to return to
work is received by an employer, the burden is then shifted
to the employer to reinstate such strikers desiring reinstate-
ment within 5 days or incur backpay liability. The Charg-
ing Party's position is the same. In also contending that the
156
HARRIS-TEETER SUPER MARKETS. INC.
exchange of correspondence in no way postponed the re-
quired reinstatement date, the Charging Party also argues
that the Company's confused and evasive responses and the
dates and manner of reinstatement of strikers is to be ex-
plained. in part at least, by the fact that the Company, as it
subsequently stipulated, was treating its striking employees
as economic strikers rather than as unfair labor practice
strikers. The record fully supports the latter to be the fact,
and I so find.
Thus, Bennett specifically testified that the Company had
considered the strike an economic strike and had treated
strikers who indicated an interest in coming back to work as
economic strikers who had by then been permanently re-
placed. The Company put them on a preferred rehiring list.
but not in any order, and individual strikers were then hired
when an opening came up for which they were qualified.
Positions were filled in consultation with Mitchell, who was
then the director of distribution. Bennett did testify that.
insofar as possible, strikers were hired into the job they held
when they began the strike, but significantly acknowledged
that no replacement was released to make way for any re-
turning striker. Bennett confirmed that they filled jobs only
as they needed to be filled.
The parties stipulated as to dates that certain strikers
were reemployed. The parties also stipulated generally that
(apart from timeliness) 28 employees were offered reinstate-
ment to their former jobs: 42 employees were offered jobs
other than the jobs they initially occupied at the time the
strike began, but subsequently have been transferred to
their former jobs: and 15 were offered and presently occupy
jobs which are not the same jobs as or substantially equiv-
alent jobs to the jobs these employees had initially occupied
prior to the strike. It was also stipulated that an undisclosed
number were offered jobs and declined them. However. the
record reveals that there were very few immediate reem-
ployments. and, as I eventually find, for specific reasons
hereinafter related, none (of those remaining in complaint)
were reinstated timely." All parties are in general agree-
ment that issues of late reinstatement and other matters
bearing on mitigation of damages are matters for compli-
ance.
It is essentially Respondent's contention (apart from its
contentions that the strike was an economic one and as to
the applicability of Section 10(b), as to which contentions I
have already found no merit) that there was no effective
unconditional offer to return to work by the strikers. Thus,
the last general contention of Respondent is that the Febru-
ary 18, 1977, letter of the Union, which purported to be an
unconditional offer to return on behalf of all strikers, and
the certain individual letters purporting to be from strikers
were contradicted by the facts, namely, that the strike was
continuing in effect at the time all the letters were received
and thereafter until March 4, 1977. In that respect, Respon-
dent relies on the stipulated fact that picketing did not
cease at all locations until March 4, 1977. Respondent also
argues in its brief that no further correspondence was re-
ceived from individual strikers after that date, though this
13 Only nine of the employees listed on Appendix B were reemployed b)
March 7, 1977; six of them were reinstated to their initial jobs, and three
received later reinstatement. None were reinstated prior to February 27.
1977.
may be questioned in a few instances. Respondent also con-
tends that the wire sent by the Union and received by Re-
spondent after March 4 admitted that the Union was not
making an offer to return on behalf of each individual
striker and suggested that the Company contact employees
directly, which it thereupon did. Respondent additionally
contends, therefore, that not until the Company received a
response to its letter of March 10 did it have any true notice
as to which employees were actually making unconditional
offers to return, all of which responses apparently it con-
tends were received no later than April . 1977 (hence 10(b)
applicable). Apart from the above, the Employer raises cer-
tain individual defenses and contentions as to individual
strikers which are considered hereinafter individually.
Inasmuch as I have found that the strike in this matter
was an unfair labor practice strike from its inception and
throughout its duration, I find that Respondent's arguments
based upon the nature of the strike being an economic one
must in turn be concluded to be ineffectual. Further, it will
be observed many ramifications unfavorable to Respon-
dent's positions follow the conclusion that the strike was an
unfair labor practice strike, particularly with respect to the
to-be-observed individual factual patterns of reemployment
as they developed under Respondent's erroneous treatment
of strikers as merely economic strikers. Thus, in regard to
unfair labor practice striker rights, it is appropriate to note
at the outset that:
Unlike those who strike to secure economic objectives
in an atmosphere untainted by employer unfair labor
practices, unfair labor practice strikers are not required
to assume the risk of being replaced during the strike.
but instead are guaranteed a right to return to their
former positions as soon as they unconditionally seek
active reemployment.
Colonial Press, Inc., 207 NLRB 673. 674 (1973), modified
(in other respects) 509 .2d 850 (8th Cir. 1975). Some sup-
port for an employer's belief that a strike was an economic
one is no defense to a failure to timely reinstate otherwise
determined unfair labor practice strikers. Head Division
AMF, Inc., 228 NLRB 1406, 1417. Nor is delay in returning
unfair labor practice strikers to their jobs defensible be-
cause their jobs may have been during the strike performed
by nonstriking employees being moved to their positions
from other classifications or positions, as the latter are but
replacements in those positions. Mosher Steel Compan'. 226
NLRB 1163, 1164 (1977). The basic principle is settled that
unfair labor practice strikers are entitled to reinstatement
immediately upon their application, even if replacements
have been hired. If required, in order to make way for re-
turning strikers, replacements must be released. An employ-
er's refusal to timely reinstate such strikers violates Section
8(a)(3) and (1) of the Act. Mastro Plastics Corp., and
French-American Reeds MJg. Co., Inc.. v. N.L.R.B., 350
U.S. 270 (1956). Unquestionably, the union which repre-
sents employees may serve valid notice of the termination
of a strike by requesting an immediate return to work of
(named or unnamed) unfair labor practice strikers, as a
group, and individually. Ekco Products Company, 117
NLRB 137. 147, 148 (1956): National Business Forms, 189
NLRB 964 (1971). enfd. 457 F.2d 737 (6th Cir. 1972); and
Acme Wire Works, Inc., 229 NLRB 333 (1977). As con-
157
I)1CISIONS OF NATIONAL ABOR RELATIONS BOARD
tended by General ounsel. commencement of remedial
backpay 5 days after strikers have offered to return in the
circumstances of this case would appear to be appropriate.
Ramona's Mexican Food Procots., Inc(., 203 NILRB 663
(1973), enfd. 531 F.2d 390 (9th ('ir. 1975). In that connec-
tion, the Board has recently reviewed the balance it has
struck in allowing 5 days as providing a reasonable period
of time for employers to accomplish administrative tasks
that may he necessary for orderly and timely reinstatement
of unfair labor practice strikers and reconfirmed this bal-
ance as previously struck. Drug Package ('ompanyl' Inc., 228
NLRB 108, 113, 114 (1977). It has similarly previously
struck the balance between an allowance on the part of the
employer to immediately commence the rehire of unfair la-
bor practice strikers in less than the entire group and, thus.
toll backpay for those so offered (Soulthwesern Pipe, Inc.,
179 NLRB 364, 365 (1969)), though with the continued
right of strikers to an immediate reinstatement with reme-
dial backpay after 5 days if' not timely reinstated or to con-
tinue unfair labor practice strike status (foregoing backpay
remedy) while holding out for an entire group reinstate-
ment, should they elect to do so. National Businevs Forms,
mupra. Here, the Union's February 18 letter addressed to
Respondent and received by it on February 21 was un-
equivocal in terms constituting an immediate and uncondi-
tional request of Respondent to reinstate all of the unfair
labor practice strikers as of' the date of Respondent's receipt
of the letter or at any reasonable time following such state-
ment, which I conclude is reasonably to be construed to be
within the 5 days allowed by the Board in such cases. 'Ihe
substantiality of this letter was significantly (though unnec-
essarily) buttressed by contemporaneous receipt of individ-
ual letters from two-thirds of' the individual strikers. Re-
spondent could not have been reasonably confused as to the
Union's or strikers' intent thereon or evade the etficac of
the Union's request. 4 I thus conclude that there was an
effective request fr reinstatement made on behalf of' all
strikers by the Union, which was effective when received by
the Employer on February 21, 1977. Since I have found
that the employees named on Appendix B were unfair labor
practice strikers and since all there named were not rein-
stated prior to February 27, 1977, 1 further conclude and
find that Respondent has failed to reinstate or timely rein-
state the unfair labor practice strikers named in Appendix
B, in violation of Section 8(a)(I) and (3), absent some fur-
ther justification shown. Such justification is not to be
found in Respondent's letter of February 23. 1977, to the
Union based on required clarification of whether the Union
wished it to deal with the Union or with employees. The
Union already had made the unconditional request for rein-
statement on behalf of all employees, which I have found
was clear and effective. The burden then became the Em-
ployer's to reinstate employees in timely fashion, within the
5 days provided.
The reiteration by the Union of its unconditional offer to
return to work in its communications of February 25,
March 1, and March 7 only serves to substantiate that the
initial unconditional request for reinstatement was made, as
does Respondent's continued failure to timely reinstate em-
5 Nor does the Union's reference in its letter of February 25 to forced
continuation of strike activity reasonabls constitute. in my view, either a
conditioning or withdrawal of the earlier unconditional offer clearly made.
ployees in large measure thereafter. even after the Union's
termination of all picketing on March 4, 1977, itself serve to
spotlight that Respondent was not confused by the Union's
initial offer but that its delay was occasioned by its treating
employees as returning economic strikers. In any event,
convincingly established is Respondent's failure in its obli-
gation to return immediately to work the unfair labor prac-
tice strikers upon their application. Nor do I find any merit
in Respondent's argument based upon the continuance of
picketing activity as precluding an unconditional offer on
the part of the Union to terminate the strike on behalf of
employees or as conditioning the requests of strikers for
reinstatement, M Store, Inc., 147 NLRB 145, 153, 157
(1964), enfd. 345 F.2d 494 (7th Cir. 1965). Neither is picket-
ing necessarily equatable with strike activity, the latter in its
essence alone involving the voluntary withholding of labor,
as the statute itself differentiates. Shell & Anderson Furni-
ture Manuficturing Co., Inc., 199 NLRB 250. 263 (1972),
enfd. 497 F.2d 1200 (9th C'ir. 1974): Edir, Inc., d/bh/a
Wolfie's, 159 NLRB 686 (1966); see Shoppers Drug Mart,
In(c., 226 NLRB 901, 910 (1976). Nor may Respondent law-
fullyjustify its failure to timely reinstate unfair labor prac-
tice strikers while requesting initial information (e.g., as to
availability and interests of individual strikers) as to which
it has no lawful right. Allied Indlustrial Workers, AFL-CIO,
Ixocal Union No. 289 [('ovalier Div,. of Seehurg Corp. and
Cavllier Corp.] v. N.L.R.B., 476 F.2d 868, 874, 883, fn. 24
(D.C. Cir. 1973). The employer has both the obligation and
the facility to meet its burden as to unfair labor practice
strikers as to whom it has received an unconditional request
fir reinstatement by timely offering the required reinstate-
ment and thus determining which strikers will actually ac-
cept the required reinstatement when offered. It may do so
as to the entire group or partially, and it effectively tolls its
backpay liability proportionately in the latter approach in
any event. National Busines.s orms, supra. It may do so
expediently by mailing the required offer of reinstatement
to the striker's last known address. Rental Unijbrm Serice,
167 NLRB 190. 198 (1967). However. this it elected not to
do. Accordingly. I conclude and find that Respondent's
general defenses for its failure to reinstate the unfair labor
practice strikers are all nonmeritorious and resultingly con-
clude and find that the unfair labor practice strikers listed
on Appendix B were not reinstated or not timely reinstated
by February 26, 1977, upon their earlier application for
unconditional reinstatement to their jobs as was made on
their behalf by the Union. effective February 21, 1977.55
I further find myself in agreement with General Coun-
sel's contention that the circumstance that picketing was
still going on was immaterial. Essentially, it is my view that
"5 Respondent's assertion that the Union, by its wire of March 7. 1977,
admitted that it was not making an offer to return on behalf of each striker
and invited the Employer to make individual inquiry is, in my iew. simply
an unreasonable interpretation, if' not a patent distortion of the Union's
correspondence in this matter. Accordingly. I conclude such argument is
desoid of an5 merit. Rather, I conclude and find that the matter as to which
the Union had therein clearly informed Respondent was that the Union
would not speak lir an unfair labor practice striker's rejection of an offer of
reinstatement when made. Continuously and unmistakably, the Union had
urged Respondent to make such offers of reinstatement timely to the strikers
if Respondent was to limit its backpaNl iability. I conclude it did so effec-
ively the first time.
158
HARRIS-TEET ER SUPER MARKETS. IN('
just as there may be a strike with or without picketing. there
may be picketing without a strike. The conclusion as to
which is present must rest on analysis of all of the facts of
the given case. I would note in passing, however. that even
should I be in error in my view above contrary to the Em-
ployer that the circumstance of picketing occurring at the
time an unconditional offer was made by the Union does
not preclude an efficacious unconditional offer and that Re-
spondent on the facts of this case was in some manner privi-
leged to await the Union's clarification 56 (or even await a
cessation of picketing at all locations, stipulated to have
occurred on March 4, 1977), the result would not be appre-
ciably changed, as it would appear that only six of the em-
ployees listed on Appendix B would (even in the latter in-
stance) be affected thereby.'
4. Poststrike allegations of 8(a)(3) and ( I ) violation
a. Kirkpatrick Carr and Joseph Nicholson
As alleged in the initial consolidated complaint in Cases
11 -CA-6827 and 11CA-6964, issues are presented
whether Respondent discharged and thereafter failed and
refused to reinstate employees Kirkpatrick Carr and Joseph
Nicholson on December 6. Essentially. General Counsel
and the Charging Party contend that these two employees
were striking employees who, after inquiry of their Em-
ployer concerning the possibility of abandoning the strike
and returning to work, subsequently elected not to return to
work but rather to continue in their strike activit. Conse-
quently, upon their application for reinstatement, the argu-
ment goes, they were entitled to he reinstated. Respondent
contracontends that upon inquiry by these individuals, each
was offered employment, resigned, and was terminated.
General Counsel and the Charging Party contracontend
that on the facts established by the record the position of
Respondent is groundless and based on token argument
and merely an attempt to deprive Carr and Nicholson of
their entitlement to reinstatement in an effort to reduce Re-
spondent's backpay liability.
Kirkpatrick Carr. The facts are essentially not in dispute.
Hired in 1974, Carr was employed as a truckdriver, signed a
union authorization card, attended union meetings, and
participated in the strike commencing on November 17. As
I have found that the strike was from its inception an unfair
5 See and compare Rice Lake Creamers (ompaun. 131 NL.RB 1270(), 1300
11961), enfd. sub nom. General Drivers and Helpers nimn, 1, ocal 662, Interna-
tional Brotherhood Teamsters, Chauffiur, Warehousemen and Helpers of
America v. N R.. 302 F2d 908 (DC' C ir 1962) cert denied 371 UI.S
827 1962).
" The parties have stipulated that there was an initial reinstatement: o'
Wade L. Carpenter and William D. Lower, on Februars 28, 1977; of Doro-
thy Ledford and Silas Spann on March 1. 1977: of Lamar Leung on March
2, 1977; and of Catherine L. Love on March 3. 1977. The only others Davis,
Hager. McKinnes, and Patterson) reemployed in this period were stipulated
as not initially reinstated but reinstated some time later. All others on Ap-
pendix B Appendix B omitted from publication) were reemployed or rein-
stated after March 9, 1977, or have not have been reemployed to date. The
underlying simple explanation for all of this is, of course, as this record
convincingly has disclosed. that Respondent was treating all these employees
as replaced economic strikers. There is thus considerable merit to the C(harg-
ing Party's contention that most of Respondent's marshaled general argu-
ments are but attempts to salvage what it can from its basic error as to the
nature of the strike being an economic one; and understandably the argu-
ments Respondent travels on must founder repeatedly on that ver shoal.
labor practice strike. Carr was at that time an unfair labor
practice striker. In late November or early December Carr
contacted Mitchell and inquired if it was possible for him to
get his job back. Mitchell gave Carr an appointment to
meet with him some days in the future. In late November or
early December Carr went to Mitchell's office and had a
conversation with Mitchell and Bennett. Carr acknowl-
edged that he told them that he was interested in getting his
job back. According to Carr., he was introduced to Bennett
by Mitchell, who told him that Bennett would be working
directly with the people returning from the strike. Bennett
told Carr that they were glad to have him back, and upon
his returning he would probably have a little difficults with
some people who were already there because of the act
that he did go on strike. but he should not kworry about it.
because it would not last. Carr was not given a specific date
to report to work at the time. It was shortly thereafter that
Carr began picketing again. HIis wife next reported to him
that he had received a call from Harris-Teeter. Carr called
Mitchell on Fridas December 3. Mitchell instructed Carr
to report on the following Tuesday.' " However, Carr did not
report for work on Tuesday. nor did he subsequently advise
the Company that he was not coming in to work. Instead,
Carr (corroborated by employee Henderson) continued his
strike activity. including picketing from that time until the
end of the strike at the warehouse and at other locations.
Carr testified that Respondent's supervisors were well
aware of his picketing activity and that he, in act. had had
his picture taken on one or two occasions by Respondent's
supervisors.5? Mitchell did not contest the facts as related bh
Carr. Bennett essentially agreed with Carr's version except
that he placed their initial meeting on December 2 and
recounts that his remarks to arr about difficulties that
Carr might encounter covered also that he was likely to his
car kicked as he crossed the picket line but that it ,ias their
intention to protect him. Contrarn to Carr's recollection.
Bennett denied that he told Carr the Company was going to
try to keep the nion out of Hlarris-Teeter. Bennett in-
formed arr that they would be in touch as to a specific
starting date, and he relates that C'arr was subsequently
called and told to report on December 6. When ('arr did
not report tfor work on December 6. Bennett sent ('arr the
following letter on December 8:
This will confirm that you told us that ou were
giving up our strike activity. fiolloing which we of-
fered to reinstate you to your former job without loss
of seniority.
You were to report for work on December 6. 1976
and since we have not heard from you, we will have to
assume that you declined our offer of emplo, ment.
I conclude and find on the basis of the above facts that
Carr elected to continue his protected strike activity along
with his coemployees, exercising a right which the statute
provides him. Accordingly. it follows that he continued in
5, According to ('arT, he as, instructed to report at 10:40 a.m on Tues-
day. Tuesda) Sas December 7. (The (Compans would place the direction to
report on December 6.) I find the ariance immaterial under the circum-
stances More significantl,. ('arr testified without contradiction that he was
picketing at the lime he receied Respondent's letter t)ecember 8 /in,ra
'5 There is no issue nt unlawful ictls it5 with regard to the photographing
of strikers.
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his unfair labor practice strike status. Whatever may have
been the reasonableness of the Employer's immediate view
of Carr's failure to report for work as scheduled, it could
not affect his protected status in continuing his striker ac-
tivity. I note in passing that Bennett's letter to Carr did not
relate a termination. The complaint allegation is that on
December 6 Respondent unlawfully terminated employee
Carr. The General Counsel did offer other evidence bearing
on that allegation. That evidence, however, must be viewed
in the context of the Union's unconditional request for rein-
statement and subsequent developments. Momentarily,
apart from consideration of the Union's unconditional re-
quest for reinstatement of all strikers, I note Carr made an
individual request (dated February 16) for reinstatement
which was received by the Company on February 21. On
March 15, 1977, having received no word from the Com-
pany, Carr called Bennett and asked when he could come
down to register or to sign the list for returning to work as
others were doing. Carr was informed by Bennett that there
was no need. Bennett then referred Carr back to the De-
cember 6 incident. Bennett told him that he was supposed
to return on December 6 and that when he did not the
Company had assumed that he had quit.6
Following his telephone conversation with Bennett, Carr
went out to the warehouse and met with Mitchell and Ben-
nett. Carr asked Bennett for something in writing. Bennett
then gave him a form 502 showing the last date of work as
November 17 and his separation date as December 6, with
detail reason for separation as "voluntarily resigned." How-
ever, the form signed by Bennett was dated March 15, 1977.
The form is a separation notice provided for the employ-
ment security commissioner of North Carolina. As noted,
the record reveals that in North Carolina an employee's
involvement in a labor dispute, such as is present in the
instant matter, disqualifies the employee from obtaining un-
employment compensation. Carr had been so disqualified
through at least March. The record reveals that a termina-
tion report was also made out on Carr dated March 15,
1977, showing as reason for separation: "[A]sked for and
offered reinstatement on 12-6-76. Did not show up for
work."6' Carr subsequently received a second form 502 with
same stated reason for separation. This form was dated
March 21, 1977, with signature of C. L. Teeter, Jr. I am
wholly satisfied, on the basis of the above evidence and the
record as a whole, that Respondent did not discharge Carr
on December 6, unless it is to be concluded that Respon-
dent constructively discharged Carr as of that date by its
March 15 acts. This finding and conclusion has other rec-
ord support in the circumstances that the Employer contin-
ued to accept insurance payments from the Union on be-
half of Carr throughout December and into January 1977.
However, I am persuaded with equal conviction to General
Counsel's contention in this matter that the tack that the
Employer had taken in March 1977 was to opportunistical-
ly relegate Carr to occupying the position of an employee
6°On direct examination, Carr's recollection was that Bennett had told
him that he had forfeited his chance to return to the Company. However,
Carr acknowledged that in an earlier affidavit he had recorded that Bennett
had told him that the Company assumed that he had quit. In this incident I
credit the latter.
61 In passing, I note that this termination report, made out by Bennett and
dated March 15, 1977, indicates that Carr would not be recommended for
rehire. This consideration is discussed in greater depth infra.
who had voluntarily resigned. In doing so, I find that Re-
spondent not only has refused to timely reinstate Carr, who
continued to occupy an unfair labor practice striker status
and on whose behalf the Union had made unconditional
request for reinstatement, but has also, in fact, wrongfully
discharged him. I shall provide an appropriate remedy. 62
Joseph Nicholson. The circumstances attendant to the al-
leged discriminatory discharge of Joseph Nicholson on De-
cember 6 follow an essentially similar factual pattern to
that of Carr, with a few notable factual matters in dispute
which must be resolved.
Nicholson, hired in 1969, in due course signed a union
card and attended union meetings. Nicholson testified that
he participated in the strike which commenced on Novem-
ber 17. However, Nicholson relates that on November 18
he contacted day dispatcher Lee and inquired whether or
not his brother was working. Upon being informed that his
brother was working, Nicholson then inquired of Lee if he
could come to work. At this point, Nicholson was trans-
ferred to Price, supervisor of transportation. Nicholson
asked Price if he could come in to work. According to Nich-
olson, Price then told him he could not, as he had been
fired, and told Nicholson that all the truckdrivers that
walked out on strike had been fired. Nicholson related also
that he replied, "Okay," and Price then said that he would
talk to Nicholson later.
Price testified that on November 17 day dispatcher Lee
had reported to Price that Nicholson had called in, advising
him that the pickets would not let him come in and that he
was going to come back that afternoon and go to work, but
that Nicholson had not shown up for work at all.6 Price
confirmed, in any event, that on November 18 Nicholson
called him, wanting to know what his reporting time was.
Price advised Nicholson that he did not have him on the
schedule and did not have any runs available. According to
Price, Nicholson asked Price if he was terminated, and
Price told Nicholson that he was not, that it was just that he
did not have any openings right then, and that he would be
back in touch with him. Price denied that he had told Nich-
olson that he was terminated. The initial factual dispute to
be resolved is whether Price told Nicholson that he and the
other truckdrivers who participated in the strike were termi-
nated, as Nicholson recalls; or simply that Price did not
have any openings right then, as Price recalls; or something
else again. It is initially observed that both Nicholson and
Price essentially confirm each other that at the end of the
conversation, Price had told Nicholson he would talk to
him later or be back in touch with Nicholson. Such a re-
" Under the unique circumstances present, I find it unnecessary to resolve
whether the Respondent's act of dating back the termination to December 6
technically supports a constructive discharge on December 6 or whether
Carr was simply discharged on March 15, 1977. as the facts would appear to
show. As the finding is warranted in either event that Carr had remained an
unfair labor practice striker, the further finding is warranted that employee
Carr was unlawfully refused reinstatement commencing February 26, 1977. 1
note the appropriate backpay remedy is not affected by his discharge circum-
stances. I shall provide an order of reinstatement, as Carr was reemployed,
but not reinstated on August 2, 1977.
61 In contrast, witness Beatty, whom I credit, testified that, although the
strike commenced November 17 (at 3 p.m.), picketing was not established
until November 18. Nicholson's absence on November 17 was not attribut-
able to picketing, as Nicholson claims, but rather evidenced individual strike
action.
160
HARRIS TEETER SUPER MARKETS. INC.
mark appears seemingly incongruous with an earlier re-
ported termination remark as recalled by Nicholson. I must
further note that some confusion exists in the record in
Nicholson's testimony as to that remark in relationship to
reference to the strike. Thus, on two or more occasions
Nicholson related Price made no mention of the strike. yet
inexplicably recalls Price saying the truckdrivers who went
on strike were terminated. However, although Price and
Nicholson recall Price said he would contact Nicholson lat-
er, both report he did not do so. I find revealing Price's
additional testimony that he assumed Nicholson was strik-
ing and, indeed, may have seen him on the picket line.
However, I simply am not persuaded by General Counsel's
evidence re the remark. Rather, I am convinced that in this
instance Price's testimony that he told Nicholson he had no
opening for him appears plausible under all the circum-
stances, particularly when also taken into account is Mitch-
ell's testimony that he had received a report from dis-
patcher Lee that Nicholson had called and that Price had
told him he was replaced. I conclude and find that Price, in
substance and effect, told Nicholson that he had no opening
for him, as Nicholson had been replaced along with all the
other truckdrivers who went on strike.6 Of course, Nichol-
son at this time was an unfair labor practice striker and
entitled to an immediate reinstatement upon his uncondi-
tional request. I am satisfied that, pragmatically viewed,
that is precisely what his inquiry of Lee and then Price
amounted to. However, I am equally convinced (discussed
infra) that when not immediately returned, Nicholson im-
mediately continued with his strike activity and, as we shall
see, was not at all anxious thereafter to even communicate
with Mitchell about a job offer, independently evidencing
he thereafter did not forego his strike activity.
As noted, Mitchell received reports from both Lee and
Price concerning Nicholson's request to come back to work
and Price's refusal. Mitchell reports that on Friday an
opening developed, and he called Nicholson's wife on Mon-
day morning, November 22, and told her that Nicholson
had called wanting to come back to work and asked that
Nicholson contact him. When Mitchell received no contact
from Nicholson that day, he again called Mrs. Nicholson at
5 p.m., with Mrs. Nicholson indicating that Nicholson had
been given the message. Mitchell again asked that Nichol-
son get in touch with him. He called in the evening when
Tuesday came and went without Nicholson contacting him.
On Wednesday, November 24, Mitchell was handing out
checks to the strikers. Nicholson approached for his check.
According to Mitchell, he at that time asked Nicholson if
Nicholson had gotten Mitchell's earlier messages. Nichol-
son acknowledged that he had. Mitchell told Nicholson
that they had a job for him and to report to work on Friday
morning. According to Mitchell. Nicholson, a man of very
few words, simply said, "I quit," took his check, and walked
off. Nicholson acknowledges receiving from his wife Mitch-
ell's message about coming back to work. He also confirms
I do not overlook the substantial evidence that other supervisors, partic-
ularly Williams, had told employees variously that they would be terminated
or fired if they did strike. However. I note Williams later acknowledged to
Kiser that if employees struck, they would be replaced. Weighing the plausi-
ble to determine the probable, I am persuaded by the evidence the above
reflects what probably occurred at that time. It also comports with Mitchell's
recollection of what Price later told him.
having a conversation with Mitchell on Wednesday as he
was picking up his check. According to Nicholson. after he
acknowledged receiving Mitchell's message. Mitchell asked
him what he was going to do, and he told Mitchell that he
guessed he was going to stay out on strike. Mitchell testified
that Nicholson did not say he was going to stay out on
strike. Nicholson testified that he never told Mitchell or
anybody else that he quit and that he first heard Mitchell
say he had quit at an unemployment hearing. The second
material dispute of fact is thus whether Nicholson contin-
ued striking or resigned on November 24.
Bennett sent Nicholson a letter on December 6, which
provided:
This will confirm that you called to say that you are
giving up your strike activity following which we of-
fered to reinstate you to your former job as a driver
without loss of seniority and that you declined such
offer.
I note Mitchell's testimony was to the effect that he had
related the offer only in terms of having a job for Nichol-
son, with instruction to report on Friday morning. Addi-
tionally, Bennett's letter narrates that the job offer was one
of reinstatement to Nicholson's former job. However, it did
not relate any claim that Nicholson had quit or even volun-
tarily resigned, but only that he had declined the offer
made. Like Carr, Nicholson's name appears on both lists of
strikers, i.e., as provided by the Employer to the Union and
to the state commission. Nicholson testified without contra-
diction that he had immediately continued to support the
strike by picketing activity at various locations and that
various named supervisors and managers of Respondent
had observed him on the picket lines. I am wholly per-
suaded and convinced by the weight of the above evidence
that Nicholson did not quit or resign his employment but
that he declined the offer of employment, electing to con-
tinue as an unfair labor practice striker with his coemploy-
ees.
An unconditional request for reinstatement was made for
Nicholson generally by the Union and individually by
Nicholson in February 1977. When Nicholson did not re-
ceive a letter at the time the other employees did, he was
advised by Union Representative Lawrence to go out and
see Bennett.6 ' On March 14, 1977, he met Bennett in his
office, and Bennett asked Nicholson what had brought him
out there. Nicholson told him he had come to register to go
back to work, as all the other employees had gotten a letter
to register to come back to work. Bennett, however, told
Nicholson that Bennett had written him a letter back in
December and that he had not answered, so Bennett fig-
ured he had quit, and he did not have a job there. Nichol-
son said, "Okay," and left. On the following day, March 15,
Nicholson met Carr, who had at that time a slip (502 form)
from the Employer, and Carr suggested to Nicholson that
he go back out and get one for himself. Accordingly, Nich-
olson went out on March 15 and again talked to Bennett
with Mitchell present, in Mitchell's office. Bennett again
asked Nicholson what he could do for him, and Nicholson
stated that he had come out to pick up a layoff slip. The
65 It appears that Nicholson and Carr did not receive a March 10. 1977,
letter
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff slip referred to by Nicholson is a form 502 (like
Carr's) and is also dated March 15. 1977. It also related the
last day worked as November 17, 1976, with date of separa-
tion December 6. 1976. The detailed reason for separation
shown is "voluntary resignation." Nicholson acknowledges
that he began receiving unemployment in March-April of
1977.
Although I have not been persuaded by the General
Counsel's oered evidence and consequently have not
found that Price had told employee Nicholson on Novem-
ber 18 that the truckdrivers had been discharged for engag-
ing in strike activity as alleged in the complaint as amended
at the hearing, nonetheless, I am wholly satisified that
Nicholson had engaged in strike activity on November 17,
which is not diminished by the circumstance that he indi-
cated he had second thoughts about continuing to do so on
the following day in his inquiry as to whether his brother
was working and his request to come back to work. Since
the strike was an unfair labor practice strike from its incep-
tion, Nicholson at the time occupied the position of an un-
fair labor practice striker, with entitlement to immediate
reinstatement upon application for reinstatement. It is clear
that that is exactly what he was endeavoring to do on No-
vember 18 in his conversations with dispatcher Lee and
subsequently with Supervisor of Transportation Price. In
point of fact, he was not returned to his job immediately,
and no effort to do so was thereafter made by Price. How-
ever, Mitchell did make repeated efforts to contact Nichol-
son through messages left with his wife on November 22
and thereafter, which Nicholson acknowledges he received.
I am thus persuaded that it was Nicholson's immediate de-
termination to continue with his initially commenced strike
activity that led him not to promptly respond to Mitchell's
repeated inquiries in the following days. I am convinced
that Nicholson promptly resumed and continued his strike
activity thereafter and that the same soon became known to
Respondent's supervisors. I am thus persuaded that Re-
spondent's offered evidence does not adequately meet, nor
may it be deemed to prevail over, the credited evidence that
Nicholson had promptly continued his strike participation
immediately upon being denied reinstatement by Price. As
with Carr, I am persuaded that Respondent did not termi-
nate Nicholson on December 6, for the reasons I have elu-
cidated above in consideration of Carr's alleged discrimina-
tion.6 However, I have equal conviction that, as with Carr,
Respondent again opportunistically seized upon Nichol-
son's earlier declining of a job offer and did so under cir-
cumstances amounting to a constructive discharge. As with
Carr, I find it unnecessary to resolve whether by virtue of
the dating of the form 502 the Employer has constructively
discharged Nicholson on December 6 or effectively as of
March 15. Rather, as with Carr, I am satisfied that Respon-
dent, in any event, failed to timely reinstate unfair labor
practice striker Nicholson by February 26 and that a rein-
statement offer is required, and an appropriate backpay
remedy is in order. I shall so provide.
Clearly, the date of December 6 does not relate to the contended quit-
ting conversation, which occurred November 24. The 2-week delay not only
is unaccounted for, it further renders Respondent's position on Nicholson
less convincing. Nicholson was reemployed, but not reinstated, on July 26,
1977.
b. The abolition of the ham operation in the salad kitchen;
Respondent'sfailure to reinstate Thomas Caddell, Margie
Kiser, and Pamela Ledford
Prior to the strike I employees 67 worked in Respondent's
salad kitchen. There were six production employees who
worked on rotation, three in the kitchen (cooking) and three
(on production work) in the finishing room. Two additional
employees worked a salad-cupping machine in the finishing
room. Three employees also worked on a ham operation.
The salad kitchen is under the supervision of Bill Williams.
Thomas Caddell was emloyed in the salad kitchen as
assistant salad plant manager at the rate of $4.65 per hour.
Employed by the Company since 1966, Caddell had held
many jobs both in Respondent's stores and later in its ware-
house, including, in the latter location, work involving driv-
ing a forklift. Immediately prior to the strike Caddell spent
most of his time in the ham operation, though he had had
occasion to perform all tasks within the salad kitchen. Mar-
gie Kiser was employed as a production worker in the salad
kitchen and also worked in the ham operation. Kiser has
had broken employment since 1970, last being rehired by
the Employer in March 1974. Prior to the strike Kiser was
paid an additional sum as a relief person, since from time to
time she performed the other jobs in the salad kitchen.
Pamela Ledford had also worked in the salad kitchen for a
year and a half, and for the last 9 months in the ham opera-
tion.
In the summer of 1976 there was some talk of a possible
discontinuance of the ham operation. It is uncontested that
at that time supervisor Williams informed both Kiser and
Ledford that if the ham operation were to cease, other posi-
tions in the salad kitchen would be then made available to
them on the basis of their seniority. The record reveals that
it had been also Respondent's prior practice to transfer em-
ployees to other available jobs for which they were qualified
when jobs were abolished.
By letter dated November 30 Ashcraft notified Coutlakis
of certain proposed changes, with an offer to negotiate
thereon. Included was notification that the Company did
not propose to restart the ham operation in the salad
kitchen, as it had not been a profitable operation. (No other
jobs were to be abolished.) The Union did not request nego-
tiation thereon. All parties agreed that no claim is raised
herein that the abolition of the three jobs in the ham opera-
tion was for other than legitimate business purpose.
Each of the above employees participated in the strike
from its inception on November 17. The Union on their
behalf and each employee individually requested reinstate-
ment effective February 21. On March I1, 1977, Ashcraft
notified Coutlakis that there were no jobs to which these
strikers were entitled as returning strikers. On March 12,
1977, Respondent issued a form 502 to each of the employ-
ees showing as the last date worked November 17, 1976,
with a separation date of February 16, 1977. Reason for
separation was related as "layoff-lack of work." On March
15, 1977, Bennett made out termination reports for each of
these employees, with reason for separation again shown as
b7 The record reveals that after the strinke and as of September 1977, there
were then nine employees employed in the salad kitchen, six production
workers. two cupping machine operators, and one lead person.
162
HARRIS-TEETER SUPER MARKETS. INC.
"laid off-lack of work-closed ham operation." Each report
bore a notiation that the employee would not be recom-
mended for rehire. Mitchell testified in explanation that the
Employer's policy at the time was not to rehire employees
who terminated. The record reveals such policy was not
uniformly adhered to prior to the strike or after the strike
commenced. On July 18, 1977, Bennett wrote Coutlakis
that the Company's position on the above employees was
that they were terminated employees. However. Respon-
dent asserts that it in the interim reassessed its policy on
rehires. In any event, at that time Bennett notified Coutla-
kis that when it began to employ from the outside after the
other strikers were reinstated. Respondent would give these
employees equal consideration for jobs along with other
applicants. Bennett testified that each of these employees
had a good employment record.
It is General Counsel's position that Respondent has un-
lawfully refused to reinstate these three strikers after the
Union's unconditional offer to return to work on their be-
half, on the grounds: (a) that prior to the strike it was the
unbroken policy of Respondent to transfer warehouse em-
ployees to other jobs when the jobs on which they were
working were abolished and (b) that other jobs were avail-
able which were then held by replacements or which had
opened up through strike interim resignations of other un-
fair labor practice strikers, as to which positions General
Counsel argues these employees enjoyed right of reinstate-
ment. General Counsel thus contends that although the
jobs of these employees had been initially lawfully abol-
ished, the right of reinstatement of unfair labor practice
strikers was not thereby extinguished and entitled them to
these certain other positions if available. General Counsel
appears to say that other unreturned unfair labor practice
strikers had (paramount and initial) claim to their own jobs.
However, after any of such strikers had been reinstated and
resigned, or offered reinstatement and declined, each of the
above employees' claims by virtue of right to reinstatement
would next follow. General Counsel thus contends their
right to reinstatement was superior to any position claim by
striker replacements hired after the strike began. The Gen-
eral Counsel effectively lays superior claim on their behalf
to: (I) all positions of emloyees who initially joined the
strike but who, for one reason or another, resigned from
Harris-Teeter during the strike and (2) to all positions of
striking employees who, after being properly offered their
former position, elected not to return to work for the Com-
pany, whether or not replacements currently held positions
in those categories. The Charging Party essentially joins in
General Counsel's position, urging that the abolishment of
unfair labor practice jobs is not a valid defense to a charge
that the Company failed to reinstate unfair labor practice
strikers if the affected employees have qualifications to hold
other positions within the plant which are presently being
held by replacements. The Charging Party would appar-
ently extend that right to claim all positions held by em-
ployees hired after the strike commenced, irrespective of
whether a striker or nonstriker was being replaced, inas-
much as it argues that evidence that others had been hired
after the strike is probative of the availability of positions
that these employees could have held, citing Fire Alert
Company, 207 NLRB 885 (1973). The Charging Party addi-
tionally argues that the record reveals employees with less
seniority were given positions which could have been of-
fered to Caddell, Ledford, and Kiser. Finally, the Charging
Party contends that when Respondent did offer jobs to
Kiser and Caddell, Ledford not having been reemployed at
all, it treated them only as new hires, with no seniority,
which affected vacation benefits, and such was not full rein-
statement. Respondent's position may be simply stated as
being that since the jobs of these three strikers were abol-
ished for legitimate business reasons, they consequently
have no claim to reinstatement at all.
I conclude that I must reject the oversimplified position
of Respondent. As it is clear that economic strikers who
have their jobs abolished do not thereby have their em-
ployee striker status extinguished if they are qualified to
perform other jobs which are available (Fire Alert Comn-
pan'. supra68), I find the basic position of General Counsel
and the Charging Party meritorious, that strikers' continu-
ing right to claim certain positions is a fortiori applicable to
unfair labor practice strikers. Moreover. I am persuaded. in
view of the Board's prior holding that unfair labor practice
strikers are not required to assume any risk of being re-
placed during the strike, that their right of reinstatement is
one with paramount claim to other positions held by any
replacements (whether of strikers or nonstriking employees
who terminate) hired since the start of the strike ftr which
they are qualified as well as to those similar jobs subse-
quently vacated by other unfair labor practice strikers who
decline reinstatement or have resigned fromn same. Compare
Colonial Press. Inc., sra, and Fire Alert (omepainv, supra.
This appears to me to be no more than is included in the
traditional approach of required dismissal of an, replace-
ments upon unfair labor practice strikers' unconditional ap-
plication to return and an inherent consideration in estab-
lishing preferential hiring lists. Barnev'N Supercenter. Inc.,
128 NI.RB 1325. 1330 (1960). enftd. 296 F.2d 91 (3d Cir.
1961). Thus in Barne ,' Spercenter, at 1331. the Board in
similar circumstances remedially provided:
Accordingly, we shall order the Respondent to offer to
them and to the other unfair labor practice strikers
who make a timely and unconditional application for
reinstatement after the issuance of this Decision and
Order, immediate and full reinstatement to their for-
mer or substantially equivalent positions. without
prejudice to their seniority or other rights and privi-
leges, discharging, if necessary, any replacements in or-
der to provide work for such strikers. If, after such
dismissal or other disposition of such replacements.
there are insufficient positions available for the strikers.
the available positions shall be distributed among
them, on the basis of seniority or such other nondis-
criminative practice as mae have heretofore been ap-
plied in a reduction in force in the Respondent's busi-
ness. Thereafter, the employees for whom no
employment is immediately available shall be placed
on a preferential hiring list and recalled as soon as
work becomes available on the basis of seniority or
such other nondiscriminative manner as the Respon-
dent ma 3 apply.
6e See also Brook Research & WAtp. Int. 202 NlRB 634, 636, 637 (19731
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, clearly Caddell and Kiser were not fully
reinstated, since their seniority and entitlement to vacation
benefits based thereon were not provided them in the job
offers they did receive. It is additionally significant that it
was not until August and September that Respondent of-
fered Caddell any position, for example, in bakery ($3.70 to
$4.20) or as a selector ($4), although this record makes it
abundantly clear that there were various replacements
holding positions for which he was qualified that would
have been earlier available to him on a transfer basis had
there been no unfair labor practice strike. There were sev-
eral replacements hired as forklift drivers, selectors, receiv-
ers, and stockers who occupied those positions in February
1977, at the time of the Union's request for reinstatement
on behalf of Caddell. As the record reveals no other jobs
were abolished, it is beyond the reasonable questioning that
certain of such jobs, inter alia, were jobs which in the in-
terim were held by replacements and for which Caddell on
this record was qualified and as to which he was conse-
quently denied timely reinstatement." In denying Caddell's
seniority, with its effect on vacation benefits, it cannot be
concluded that Caddell was fully reinstated with either of
the job offers made in August or September. Otherwise, any
additional issues of his placement and/or with regard to
effect on mitigation of damages may await future compli-
ance proceedings.
Similar conclusions are even the more clearly observed
warranted as to Kiser and Ledford, as there were positions
in the salad kitchen itself for which these employees were
qualified, yet Kiser was not reemployed until September 6,
1977, and Pamela Ledford has not been reemployed at all. '0
I conclude and find that neither Kiser or Ledford was rein-
stated or timely reinstated upon the Union's request for
their reinstatement. I further find that in its treatment of
Kiser as a new employee, with consequent denial of senior-
ity affecting vacation rights, that the Respondent has also
failed to fully and properly reinstate Kiser. Of course, Re-
spondent has wholly failed to effect timely reinstatement of
Ledford. I shall provide an appropriate remedy for these
additional violations of Section 8(a)(1) and (3) hereinafter.
In view of these findings, I find it unnecessary to address all
69Since Caddell was not offered any position prior to August 1977 and
since I have already found that openings were occasioned when (nonstriker)
Dwight L. Barker, a receiver, resigned November 19; when Randy F. Avery,
a selector, resigned effective December 17, 1976; and (as discussed infra)
when a forklift driver position (Terry M. Hostetler) became open in January
1977, it is clear that Caddell was not timely reinstated. Nor was Caddell
offered a full reinstatement in August or September 1977, when he was
offered a position in bakery and then as a selector in grocery (both of which
he subsequently declined), since he was not offered such positions even then
with the senionty (11 years) to which he was entitled.
17 Records reveal that Debra Love was a production employee in the salad
kitchen hired on November 29, thus after the strike began, and occupied that
position as of September 27, 1977. Love thus occupied a position for which
either Kiser or Ledford was qualified, as each had done all the other jobs in
the salad kitchen. It is enough to note as well that Mina Stoeckel, an unfair
labor practice stnker herself, who prior to the strike was classified as a
stocker but regularly operated a forklift, was not reinstated to her former
position but was reemployed as a production worker in the salad kitchen.
Obviously, a replacement was occupying Stoeckel's former position. Had
Stoeckel been properly reinstated, there would have been an additional posi-
tion in the salad kitchen available. No prestrike (nonstriking) employee
transferred out of the salad kitchen during the strike. On these facts, argu-
ments advanced based on denied right of nondiscriminatory seniority dis-
placement in a layoff would appear unnecessary to be considered.
the various other contentions of General Counsel with re-
gard to other transfer rights of I ese employees based on
their seniority. Issues of reinstatement to substantially
equivalent positions may remain a matter of compliance.
Barney's Supercenter, Inc., supra at 1330, fn. 9.71
c. Respondent's contentions concerning striking employees
who did not individually request reinstatement
Respondent has contended that as none of the 20 em-
ployees listed below made an individual written request for
reinstatement, none were entitled to reinstatement. Thus,
Respondent argues that as the Union did not make an ef-
fective unconditional request on their behalf, it was other-
wise required that a request for reinstatement be made by
them individually. Employees in this group. none of whom
(but Wallace B. Smith) were reemployed, are:
Black, Randall A.
Cloninger, David L.
Deese. Mark A.
Dorton, Steven A.
Foster, Herbert F.
Gainey. Paul T.
Hiostetler, Terry M.
Johns, Larry W.
Johnson. Coley L.
Jones. Robert B.
Lineberger, Timothy
Linker, Guice M.
Lowery, David L.
Lowery, John D.
Parsons, Caster H.
Ramseur, Reginald
Smith, Wallace B.
Tate, Manley S.
Wright, Charles H.
Yoxtheimer, John H.
The short answer to the above contention of Respondent is.
as I have earlier found, that the Union did make an uncon-
ditional request for reinstatement on behalf of these em-
ployees, on February 18, 1977, which was effective when
received by Respondent on February 21, 1977. Timely rein-
statement by Respondent was then required by February
26, 1977, and was not accomplished." The failure to do so
was violative of Section 8(a)(1 ) and (3) of the Act.
Respondent has raised several additional defenses with
71 In that connection, I do find specifically that Caddell had demonstrated
on this record forklift operation ability and qualification in that position in
the warehouse. In contrast, Kiser expressed only some familiarity with posi-
tions of receiver, sanitation worker, and picker in the freezer department.
The record as well warrants the conclusion that Kiser, as in the case of other
employees, might have been entitled in other than unfair labor practice
circumstances) to performance opportunities as a forklift operator (although
a higher rate job) if that position was available. With regard to Ledford I
further find that in addition to the above position, Ledford credibly claimed
ability to perform position functions within the shipping and receiving de-
partment. drug cage, and bakery and meat departments, which went unchal-
lenged. These are all matters which can be more effectively handled at the
compliance stage, but only if shown necessary, for example, if it can be
shown that the available positions in the salad kitchen would not have been
substantially equivalent positions of employment for Kiser and Ledford had
they been timely reinstated and granted their full seniority rather than
treated as new employees.
12 Unfair labor practice strikers who do not apply for reinstatement are not
entitled thereto or to preferential hiring status until such application is made,
unless it is to be concluded that such application would have been futile.
Where the employer has commenced reinstatement of other strikers, such
presumption will not lie. Barney's Supercenler, Inc., supra at 1330. fn. 8.
1 I would observe as to this group the same conclusion would apply with
increasing firmness on the basis of the reiterated requests by the Union on
February 25, and March I and 7. 1977. There clearly has not been timely
reinstatement as to these employees. However, an additional defense is pre-
sented as to Terry M. Hostetler and Herbert F Foster, discussed infra.
164
HARRIS-TEETER SUPER MARKETS, INC
varying applicability to the individual strikers listed on Ap-
pendix B.
d. Respondent's c ontentions contcrning striking emiplove's
who did not respond to Respondent's Mtarch () letter
Respondent contends that certain striking employees
who failed to respond to its March 10, 1977, letter are not
entitled to reinstatement, as it reasonably appears that they
did not really desire reinstatement or were not really ready
for it. Seemingly, included in this group would be: Lynne P.
Hastedt, Johnnie M. Gilbert, Billy J. Morrison. Edward M.
Preslar, and Arthur L. Spears.
Again. I have found heretofore that each was established
as an unfair labor practice striker and that each of them
was covered by the Union's unconditional application for
reinstatement made on their behalf. 4 None of these em-
ployees have been reemployed. Accordingly, Respondent's
refusal to reinstate them was also violative of Section
8(a)(l) and (3), absent some other business justification ap-
pearing to explain and justify its failure to do so. Essen-
tially, Respondent's letter of March 10. 1977, upon which it
seeks to rely, called for each striker to personally register
with Respondent as to the striker's availability and job and
shift preference. I note that it further advised the individual
striker only that the Employer would thereafter make an
appraisal. It did not offer the striker a job, let alone rein-
statement.' It cannot prevail for Respondent, either as a
valid offer of reinstatement or as engendering a requirement
for some additional response from strikers before their right
to timely reinstatement became established and effective.
National Business Forms, 189 NLRB 964 (1971) Accord-
ingly, I conclude and find that all of Respondent's argu-
ments to the contrary, based on its March 10, 1977, letter.
are without merit. Consequently, I conclude and find that
Respondent has failed to reinstate unfair labor practice
strikers Lynne P. Hastedt, Johnnie M. Gilbert, Billy J. Mor-
rison, Edward M. Preslar, and Arthur L. Spears as of Feb-
ruary 26, 1977, in violation of Section 8(a)(1) and (3) of the
Act.7
e. Miscellaneous individual defenses: the matter of late
alleged reinstatements
There remains to consider Respondent's individual con-
tentions as to employees Herbert F. Foster, Terry M. Hos-
7, All employees in this group had also made individual requests for rein-
statement, which were received by Respondent on either February 21 or 28,
1977.
7' The letter, inter alia, provided: "Following that, we will make an ap-
praisal of our work force requirements, including future prospects."
76 Similarly, for the above reasons. I find that Johnnie M. Gilbert's con-
tinuation of his recently acquired work in Jacksonville. Florida. was wholly
justified at the time, he not having received the required clear offer of rein-
statement to his prior position which was existent at the time. Bennett's
subsequent relation to Gilbert, on the occasion of Gilbert's later individual
inquiry in May 1977, that Gilbert had lost his right to reinstatement in
failing to reply to that letter is wholly erroneous as a legal conclusion of
Gilbert's true status and ineffective to defeat Gilbert's lawful continuing
nright to receive a proper offer of reinstatement As Gilbert was not sent a
valid offer of reinstatement in the material period prior to his own renewed
inquiry of Respondent for reinstatement, consideration of a valid offer sent
to his last known address is not involved. Of course. the March 10. 1977.
letter similarly did not constitute a valid offer of reinstatement to any other
striker receiving it or create on their part any required response thereto
which bore on reinstatement issues.
tetler. Ronald J. Hudson, and James E. Terrell and its al-
leged late reinstatements. Respondent contends that the
named employees either never went on strike or have re-
fused lawful offers of reinstatement. Respondent has con-
tended that Foster had resigned prior to the strike and
therefore was not an unfair labor practice striker, that strik-
ers Terrell and Hudson were offered reinstatement and re-
jected it, and that striker Terry Hostetler initially accepted
reinstatement and then resigned. General Counsel and the
Charging Party contracontend that each of the above em-
ployees was an unfair labor practice striker and that none
were offered full or timely reinstatement. The latter point
will require some additional factual presentment in its dis-
cussion.
Herbert Foster. Essentially, Respondent contends that
Foster resigned prior to the strike (quit on November 16)
and thus was not a striking employee when the strike com-
menced the next day. Respondent noted also that no indi-
vidual request for reinstatement was ever received from
Foster. However, called on rebuttal by General Counsel,
Foster testified, and I find credibly so, that he had not quit.
To the contrary. Foster testified he had worked on Novem-
ber 17 in his job (selector) and that when the strike started.
he had walked out with the other strikers at 3 p.m. and that
he had engaged in picketing thereafter until he "started get-
ting hungry." at which time he was forced to look elsewhere
for work. Foster testified he finally was able to secure other
employment in February or March 1977 that an employer
for whom he had worked prior to commencing work with
Respondent in September 1976. credit Foster. I note addi-
tionally that Respondent offered no counterevidence to
Foster's direct testimony that he was working November
17, although it is reasonable to presume that Respondent's
emplotyment records on Foster would have readily estab-
lished the contrary had such actually been the case. It is
apparent and I find that Foster did not quit on November
16 but rather participated in the strike commencing No-
vember 17. I further find that Foster occupied unfair labor
practice status on February 21. when Respondent received
the Union's unconditional request for reinstatement on be-
half of him and all other unfair labor practice strikers. It
was thus unnecessary for Foster to make a personal request
for immediate reinstatement, as the Union had already ef-
fectively done so for him. As Foster has not ever been of-
fered reemployment, it is equally apparent that Respondent
has failed to timely reinstate him, in violation of Section
8(a)(l) and (3) of the Act. I so find.
Tero Hostetler. Essentially, Respondent's evidence was
to the effect that reinstatement was not due to Hostetler
because he had earlier resigned, on January 3, 1977.7' Ben-
nett concedes that Hostetler went out on strike on Novem-
ber 17. However, Bennett, testifying from Hostetler's file,
related that Hostetler had called Respondent on January 3,
1977, and resigned. Respondent also notes Hostetler made
no individual written request for reinstatement. Bennett tes-
tified that he sent Hostetler a letter (dated January 4) con-
firming that Hostetler had reported to the Company that he
" In its brief Respondent apparently Inadvertently asserts that Hostetler
initially accepted reinstatement and then resigned.
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had resigned.7 " Bennett related that Hostetler did not re-
spond to the letter in writing. However, Bennett acknowl-
edged that on March 2 he had received a call from Hostet-
ler, who told Bennett that he was then ready to go to work.
Bennett reminded Hostetler of his prior resignation and the
confirming letter sent to him. Bennett candidly related that
Hostetler at that time asserted he had not resigned and had
not received the letter. General Counsel and the Charging
Party apparently rely on that frank report and the claimed
failure of Mitchell (called on other matters) to testify as to
his conversation with Hostetler which Hostetler's file re-
flected and which Bennett testified Mitchell had reported to
Bennett.79 However, if Bennett is not shown corroborated
by Mitchell or secretary Beverly Meggs, Bennett did testify
as to his own action following reports of the resignation,
and he did present documentary sustantiation. In contrast,
General Counsel did not establish by any direct testimony
that Hostetler did not resign in January 1977, as Hostetler
was not called as a witness by the General Counsel, nor was
his failure to testify satisfactorily explained in the record.
Essentially, the General Counsel and the Charging Party
appear to rely on Bennett's testimony that during the con-
versation of March 2, it was reported that Hostetler seemed
to feel he had not resigned and denied receiving the letter.
Although I find General Counsel had initially established
that Hlostetler was an unfair labor practice striker in No-
vember and, of course, that the Union had requested rein-
statement on behalf of all strikers in February, Bennett's
testimony that, as a consequence of the reported resigna-
tion, he had terminated Hostetler and confirmed it in writ-
ing constitutes sufficient showing for inference that Hostet-
ler had in fact resigned, particularly where employee
Hostetler has not testified to the contrary. The case was not
heard on any other basis.
If I have any indication to the contrary, it lies not in
Hostetler's nonreceipt of the letter but in a question of the
voluntary nature of the resignation. Thus, Bennett's testi-
mony that he sent the letter is credible, and a presumption
lies therefrom that such a letter placed in the mail was de-
livered in due course to the addressee, particularly where
Bennett has also testified credibly that the letter was not
returned. Such direct evidence warrants inference that Hos-
tetler did receive the letter and that Hostetler's reported
remark to the contrary was factually inaccurate. I so find. If
I am given pause in the matter at all, it stems from a refer-
ence in a memo from Respondent's file on Hostetler (unelu-
cidated by any of' the parties) which provides:
7 The letter was not sent certified mail. The letter specifically related:
Bill Mitchell has told me that you called him yesterday and voluntar-
ily resigned your position with Harris-Teeter.
I am enclosing your copy of Employment Security Form 502. Please
let me know if' you have any questions.
Bennett also testified that the effect of the issuance of the 502 form was that
Hostetler would no longer he barred as a striker from receiving unemploy-
ment compensation on the account of involvement in a labor dispute.
79 The ('harging Party's additional argument that there was no motive or
reason shown for Hostetler to resign in January fails to take into account
Bennett's additional testimony that an effect of' Hostetler's resigning was
issuance to him of the form 502, with a lifting of disqualification before the
North Carolina Employment Security Commission due to his involvement in
a labor dispute. For reasons not clear of record, it may have some such
effect. Compare Nicholson's situation.
Beverly (Meggs) transferred him (Hostetler) to Bill
Mitchell and he told Bill Mitchell that since we had no
jobs available for him, he would resign rather than re-
main on strike.
The memo was written by Bennett and may constitute an
admission against interest. In this instance, I view it as in
nature res gestae evidence. The question rises whether it is
sufficient to establish that the resignation was involuntary
and only a result of a prior wrongfully denied individual
request by unfair labor practice striker (Hostetler) for an
immediate return to his prior position or whether Hostetler
voluntarily made such statement on his own, desiring at the
time to resign to be able to approach the commission with a
claim for unemployment benefits. The issue appears close
to me. However, to conclude the former, it seems to me,
would necessarily rest on drawing an impermissible double
inference. It was General Counsel's ultimate burden to es-
tablish that Hostetler was an unfair labor practice striker at
the time of requested reinstatement. I am persuaded in this
instance he failed in such burden. Accordingly, I shall rec-
ommend that the complaint allegation as to Terry Hostetler
be dismissed.
James Terrell. At the time of the strike Terrell was a
selector, with the hourly rate of pay being $4.80 per hour.
Respondent's position is based on its evidence that Terrell
was offered a position in building and grounds on March 7,
1977, at $3.90 per hour and that Terrell had declined that
offer. It is readily apparent that the aforesaid reemployment
offer was neither timely nor an offer to Terrell of full rein-
statement to his former or a substantially equivalent posi-
tion. Terrell's job had not been abolished. I thus conclude
and find that Respondent has failed to timely reinstate
striker James E. Terrell. in violation of Section 8(a)( ) and
(3) of the Act.
Unresolved Contended Late Reinstatements
Respondent also offered to introduce evidence as to offers
of reinstatement made to employees after March 20, 1977.
General Counsel objected, contending that whether other
strikers were eventually offered reinstatement or substan-
tially equivalent positions of employment after March 20
was unnecessary to be reached in resolution of any of the
issues presented by the instant proceeding and was strictly a
compliance matter. With subsequent agreement of all par-
ties thereon, in order to limit the issues to those necessary to
be presently resolved, I ruled that the efficacy of Respon-
dent's contended offers of reinstatement made to any em-
ployee after March 20 could be effectively left to any re-
quired future compliance proceedings. Particularly is this so
with the Respondent's record acknowledgement that the
Union's requests were on February 18 and 25 and March
and 7; that the last individual written striker request for
reinstatement was received on February 28, 1977; that the
earliest offer (reinstatement or otherwise) to any striker in
this group was on March 29, 1977; and that prior to offers
made to each striker below, the strikers' former positions
were held at the time by replacements. Employees included
in this group would appear to be:
166
HARRIS-TEETER SUPER MARKETS, INC.
Alfred Brown James Knuckles
Clayton Burris James Pender
Roger Burris Sylvester Pride
Michael Hawley Eugene Puckett
Terry Henderson Janet (Quinn)
Donald Floyd Richard Rapp
Newton Lawson Jerry W. Parker
Thomas Icenhour Mark White
It is clear that none of the above employees were timely
reinstated and that the refusal to timely reinstate them was
in violation of Section 8(a)(1 ) and (3) of the Act.
Ronald Hudson. Prior to the strike Hudson worked as a
day grocery selector. Hudson's hours were then 6 or 7 a.m.
to 3:30 or 4 p.m. Hudson worked on a straight 5-day-week
basis. In addition to the Union's request on his behalf on
February 18, 1977, Hudson made an individual uncondi-
tional offer to return to work. Bennett testified that on
March 9, 1977, Hudson was offered the position of night
meat selector at his former rate, with a 15-cent night differ-
ential. This position called for work hours of 4:30 p.m. to 12
or I a.m.; did not involve a straight 5-day workweek; and.
unlike the day grocery selector position, did involve work-
ing 3 out of 4 Sundays and working in a cooler at 40°F.
Bennett related that Hudson initially accepted this position
and was given a report time for the next day, but later
called Mitchell back on March 9 and declined the position
offered. Mitchell essentially corroborated Bennett, testify-
ing to having had two conversations with Hudson. Mitchell
conceded he had not offered Hudson any day selector posi-
tion. However, Mitchell explained that Hudson had in-
formed him in their first conversation that a parent of Hud-
son's employed elsewhere (not by Respondent) had been
transferred to a day shift and that Hudson could not ork
days, as he had to watch his younger brother and sister.
Thus, Mitchell testified that the offer of the night meat se-
lector's position was made in an effort to accommodate
Hudson, and Mitchell confirmed that Hudson had origi-
nally accepted this position. Mitchell also confirmed that
later that same day Hudson had called Mitchell back and
notified him that Hudson could not accept the offered posi-
tion, without stating a reason. A confirming letter as to his
termination (resignation) was sent by certified mail and re-
ceived by Hudson without any reply. Hudson did not tes-
tify, as General Counsel could not locate him.
It will be recalled that in these matters it was General
Counsel's burden to establish that the named employee was
an unfair labor practice striker, that an unconditional re-
quest for reinstatement had been made on his behalf or by
him individually, and that Respondent had failed to timely
reinstate him. Unlike the case with Hostetler, the General
Counsel has met this burden as to Hudson. It seems to me
that any issue of late offer of reinstatement or of substan-
tially equivalent position or of mitigation of damages as to
Hudson may await compliance proceedings, as with the
above 16 employees. I so conclude.
CONCtIUSIONS OF LAW
1. Harris-Teeter Super Markets, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 525, Meat, Food and Allied Workers Union,
Amalgamated Meat Cutters & Butcher Workmen of North
America. AFL CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By unlawfully interrogating employees as to who and
how many employees would vote for and against the Union
in an upcoming election; by engaging in conduct tending to
create the impression in employees that union activities of
employees were regularly being kept under surveillance by
coercively informing employees that individual employee
union activists in different departments had been identified;
by threatening that the same employees would be among
the first to be discharged by Respondent; b threatening to
make it as hard as possible on employees who engage in
union activity; by more strictly enforcing its tardiness rule
in writing up employees for any tardiness and in a manner
contrary to practice existing before the election of August 5.
1976, because the employees had continued their union ac-
tivity and because they had designated the Union as their
representative; by other threats and various other acts of
interference, restraint, and coercion directed at employee
engagement in protected strike activity, through unlawful
interrogations of employees as to their strike sympathies
and intentions, by attempts to identify principal strike pro-
ponents, and by expressions indicating intent to suppress
their activities; by threats to employees that they would he
discharged for striking; and by use of promised raise in-
creases to influence working employees to refrain from join-
ing employees on strike. Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)( 1) and Section 2(6) and (7) of the Act.
4. By discharging William Huntley, its top driver, on
September 29, 1976, because of his union activities and
membership on the Union's negotiating committee, Re-
spondent has engaged in. and is engaging in. unfair labor
practices within the meaning of Section 8(a( ) and (3) and
Section 2(6) and (7) of the Act.
5. The strike which commenced on November 17. 1976.
was from its very inception and throughout its duration an
unfair labor practice strike.
6. By improperly treating striking employees Kirkpatrick
Carr and Joseph Nicholson as resigned employees. Respon-
dent has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)( I) and (3) and Sec-
tion 2(6) and (7) of the Act.
7. By failing to reinstate, or timely reinstate, each of the
unfair labor practice strikers listed on "Appendix B"
hereto, Respondent has engaged in, and is engaging in. un-
fair labor practices within the meaning of Section 8(a)( I)
and (3) and Section 2(6) and (7) of the Act.
8. Except as heretofore found, Respondent has not en-
gaged in any other unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Act.
THt RFMF)Y
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8a)(1)
and (3) of the Act. I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have found that Respondent has discharged William
Huntley in violation of the Act, I shall order Respondent to
offer him immediate and full reinstatement to his former
job, or, if such job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or other
rights and privileges. Although I have found that Huntley
participated in union activity in support of the strike, in
keeping with the Board's past precedent in such matters, as
Huntley was discharged discriminatorily prior to the com-
mencement of the strike and not offered reinstatement, I
shall order that Respondent make Huntley whole for any
loss of earnings he may have suffered by reason of Respon-
dent's unlawful discharge of Huntley by payment to him of
a sum of money equal to that which he normally would
have earned as wages, from the date of their discharge of
him on September 29. 1976, to the date of an offer of rein-
statement. Donna Lee Sportswear, 174 NLRB 318. fn. 5
(1969). Backpay is to be computed on a quarterly basis,
with interest thereon computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).s As to em-
ployees Jimmy Martin, Jerome Little, James Wright, and
Earl Nixon, the appropriate make-whole remedy has been
previously provided in Harris-Teeter Super Markets. Inc.,
231 NLRB 1058 (1977) which governs same. To the extent
the participation of these previously found discriminatees in
the unfair labor practice strike may nonetheless properly be
deemed an issue before me, I would note the record has
revealed that Respondent had strategically offered them re-
instatement on November 18 and that they thereafter
elected to participate in the unfair labor practice strike with
their coemployees. In that respect, I would view the addi-
tional holding of Donna Lee Sportswear, supra--that an oft
fer of reinstatement, when made, effectively, tolls backpay
for an employee determined to have been discriminated
against prior to the commencement of a strike-as appli-
cable thereto and binding on me and as effective until un-
conditional request for reinstatement was made by them on
February 25, at which time backpay would properly be
deemed to run again until their reinstatement was effected.'
Having also found that Respondent has violated Section
8(a)(3) and (I) of the Act by its refusal to reinstate, or rein-
state in a timely fashion, the employees listed on Appendix
B who I have found had been engaged in an unfair labor
practice strike against Respondent, and on whose behalf the
Union had made effective unconditional request or applica-
tion for reinstatement, it will be recommended that Respon-
dent be required to offer the unfair labor practice strikers
immediate and full reinstatement to their former jobs or. if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any persons hired as
replacements on and after November 17, 1976. 1L after
such dismissals, there are insufficient positions remaining
for any unreinstated striking employees who desire rein-
' 8See, generally, Isis Plumbing and Heating Co., 138 NLRB 716 1962).
1i Although backpay for these mployees is governed by the prior proceed-
ing, it may be appropriately noted here that the parties have stipulated in
this proceeding that Jerome Little was reinstated thereafter on October 10,
1977; Jimmy Martin, on October 3, 1977; and Earl Nixon and James
Wright. on September 13, 1977.
statement, the available positions shall be distributed
among them, without discrimination because of their union
membership, activities, or participation in the strike, in ac-
cordance with seniority or with other nondiscriminative
practices as theretofore have been applied by the Company
in the conduct of its business at its Charlotte, North Caro-
lina, warehouse. Those strikers for whom no employment is
immediately available after such distribution shall be
placed on a preferential hiring list, with priority determined
among them by seniority or by other nondiscriminative
practices as theretofore have been applied by Respondent
in the conduct of its business at its Charlotte, North Caro-
lina, warehouse, and, thereafter, in accordance with such
system, they shall be offered reinstatement as positions be-
come available and before other persons are hired for such
work. 1. W. Corporation, 239 NLRB 478 (1978). Respon-
dent shall be further required to make each said employee
whole for any loss of earnings resulting from Respondent's
failure to promptly and timely offer each of said employees
reinstatement to his or her former job or, in the case of
Thomas Caddell, Margie Kiser, and Pamela Ledford, recall
to substantially equivalent work with full rights and privi-
leges. As to all such unfair labor practice strikers (excepting
William Huntley and the four discriminatees determined in
the earlier proceeding), the backpay period shall commence
February 27, 1977,82 and continue thereafter until such offer
of full reinstatement was made, or is made, if not already
accomplished. Backpay for each of these employees during
the above period shall be otherwise computed in accord
with that provided for Huntley. The order of reinstatement
shall insure that such employees are fully reinstated without
loss of any benefits, seniority or otherwise, previously en-
joyed
The Charging Party has urged that in the light of con-
tinuing flagrant violations of the Act, the Company should
also be ordered to terminate its unlawful enforcement of
rules regarding attendance and lateness; to mail copies of
the cease-and-desist order herein provided to each of its
employees: to read the cease-and-desist order issued herein
18 To be sure, the Union's February 25 letter reasonably makes reference
to intended continuation of strike actiity because of Respondent's refusal to
reinstate striking employees. However. as I understand the seemingly appli-
cable Board precedent in this area. after the Union has made an uncondi-
tional application for reinstatement on behalf of all unfair labor practice
strikers, they individually are entitled to immediate reinstatement. A contin-
ued absence from work on the part of individual strikers cannot then be
concluded as voluntary on their part unless offers of full reinstatement are
first made and declined to continue the strike. Souhiestern Pipe, Inc., 179
NLRB 364, 365 (1969); valional Business Forms, 189 NLRB 964 (1971). If I
am in error in this regard it would seem to me the backpay period would
commence no later than March I, 1977. when the Union wired Respondent,
reiterating its earlier unconditional application on behalf of all the unfair
labor practice strikers, thus advising Respondent again of an unconditional
calling off of the strike, and also announcing (what I have heretofore deemed
unnecessary) abandonment of even its picketing, at the request of the Em-
ployer. in order to effect the prompt reinstatement of strikers,
s3 Nothing in this recommended Order however, is to be construed as
requinng Respondent to rescind an) wages or benefits heretofore granted to
employees. To the extent that Respondent has already reinstated an, of the
above employees. Respondent will he required in the compliance stage of
this proceeding to take onl such steps as may be necessary to fully comply
with the remedial Order. Respondent's right to establish factors in mitigation
of damages other than on issues raised and resolved in this proceeding are
reserved for compliance, as agreed b the parties.
168
HARRIS-TEETER SUPER MARKETS, INC.
at a meeting of all employees in the presence of a duly
authorized agent of the Union; to reimburse and pay to the
Union all fees, expenses, and costs in connection with this
proceeding; and to provide such other relief as is found fair
and proper. I shall recommend that Respondent be ordered
to cease and desist from more strictly enforcing its tardiness
and doctor certificate rules, as I have found herein has oc-
curred. I shall further recommend that an appropriate no-
tice be posted as remedial action, which I concluded is ade-
quate notice to employees under the total circumstances of
this case. However, since the discriminatory discharge of
William Huntley and the refusal to reinstate, or timely rein-
state, unfair labor practice strikers and other discriminatory
conduct evidenced herein are pervasive and go "to the very
heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d
532, 536 (4th Cir. 1941)), 1 shall recommend that the Order
to be issued be such as to safeguard employees against Re-
spondent's infringement in any manner in the future of the
rights vouchsafed to employees by Section 7 of the Act.
R & R Screens Engraving, Inc., 151 NLRB 1579, 1587
(1965). It will be further recommended that Respondent
preserve and make available to the Board or its agents,
upon reasonable request, all pertinent records and data nec-
essary to aid in analyzing and ascertaining whatever back-
pay may be due under this recommended Order. Although
the unfair labor practices found herein are concluded to
have been pervasive and serious. I conclude that the reme-
dial provisions herein being provided are adequate to effec-
tuate the purposes of the Act and decline to recommend
that Respondent be ordered to read the cease-and-desist
Order at a meeting of all employees and decline as well, at
this point, to recommend an order of reimbursement and
payment to the Union of related fees in connection with
this proceeding to date.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER84
The Respondent, Harris-Teeter Super Markets, Inc.,
Charlotte, North Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union in-
terests, sympathies, strike intentions, or other union activi-
ties in a manner constituting interference, restraint, or coer-
cion of employees engaged in the exercise of rights under
Section 7 of the Act.
(b) Creating the impression in employees that their
union activities are regularly being kept under surveillance
by telling employees that individual employee union activ-
ists in different departments have been identified or by
seeking to determine from employees the names of leading
strike proponents.
(c) Enforcing more strictly, in an unlawful manner. tar-
u In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as pro ilded 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.
diness and doctor certificate rules contrary to practices
thereon existing prior to August 5. 1976, as determined in
this proceeding.
(d) Promising pay increases to employees to influence
them to refrain from joining employees on strike.
(e) Threatening employees with discharge for engaging
in protected activity in support of the Union, including
strike activity, or threatening to make it as hard as possible
on employees who have supported the Union, or threaten-
ing that identified leading union adherents will be the first
to be discharged.
(f) Discharging or otherwise discriminating against em-
ployees, and refusing to reinstate employees or to timelb
reinstate unfair labor practice strikers upon their uncondi-
tional offer to return to work, in order to discourage em-
ployees from being or becoming union members or support-
ing the Union or engaging in concerted activities.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action, designed to ef-
fectuate the policies of the Act:
(a) Offer to William Huntley immediate and full rein-
statement to his former position in accordance with the rec-
ommendation set forth in the section of this Decision enti-
tled "The Remedy."
(b) Offer to the employees listed on Appendix B [Appen-
dix B omitted from publication] an immediate and full rein-
statement (to the extent it has not already done so) to their
former positions or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of pay or other benefits suffered (com-
mencing February 27, 1977) as a result of the refusal to
timely reinstate such employees upon their unconditional
offer to return to work from an unfair labor practice strike
engaged in by such employees. Such backpay and other
benefits is to be computed in accordance with the manner
set forth in the section of this Decision entitled "The Rem-
edy."
(c) Preserve and. upon request. make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records. timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at Respondent's warehouse at Charlotte. North
Carolina. copies of the attached notice marked "Appendix
A."' Copies of said notice, on forms provided by the Re-
gional Director for Region II11, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
g5 In the event that this Order is enforced by a Judgment of a ULited
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region II11. in writ-
ing, within 20 days from the date of receipt of this Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be dis-
missed.
170