Harris-Teeter Super Markets, Inc

National Labor Relations Board - Board Decisions

Apr 20, 1989

293 N.L.R.B. 743 (N.L.R.B. 1989)

HARRIS TEETER SUPER MARKETS
Harris-Teeter Super Markets , Inc and United Food
and Commercial Workers Union , Local 204, af-
filiated with United Food and Commercial
Workers Inteiational Union , AFL-CIO, CLC
Cases 11-CA-12664
April 20, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On December 14, 1988, Administrative Law
Judge Lawrence W Cullen issued the attached de
cision The Respondent filed exceptions and a sup-
porting beef, and the General Counsel filed an an-
swering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order 3
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We grant the General Counsels motion to correct the transcript re
garding the testimony of salvage dock employee Craig concerning the
8(a)(5) direct dealing violation The corrected sentence reads He asked
like James what do you think about it and I said I don t like it
In quoting the testimony of Leadman Hatley regarding a conversation
between Hatley and Director Kiser the judge inadvertently omitted the
word not The sentence correctly reads I said well it s not been like
that in the past and he said-in the fork lifts job and he said well that s
not the fork lift shop we re talking about the maintenance department
These corrections do not affect our decision
We make the following corrections in the judge s citations Peerless
Publications 283 NLRB 334 (1987) and Allied Products Corp 218 NLRB
1246 (1975) The judge inadvertently gave the wrong case number for
the second case it is Case 11 -CA-12844
9 In sec IV D of his decision the judge found that the Respondent
made a unilateral change in the terms and conditions of employment of
the employees in its forklift and maintenance departments The judge
found that prior to February 1988 the Respondent promoted employees
from mechanic III to mechanic II to mechanic I on the basis of merit
without requiring a vacancy in the higher positions The judge found that
after February 1988 the Respondent refused to promote employees with
out there being a vacancy in a higher level position In adopting the
judge s findings we rely inter alia on the following credited testimony
[General Counsel to Hatley a I in the forklift dept ] Based on your
experience as fork lift mechanic lead man what would happen to
employees in the fork lift mechanics helpers classification [a
III] after they worked in that position for a period of time and
learned what was going on and how to do the work?
They progressed and went to the two and then from two to the
one
Was anything [said ] to you at that point [Dec 16 1985] about
there having to be a position place for them9
No
ORDER
743
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and 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 Order
George Carson Esq for the General Counsel
John 0 Pollard Esq (Blakeney Alexander & Machen), of
Charlotte North Carolina, for the Respondent
DECISION
STATEMENT OF THE CASE
LAWRENCE W CULLEN Administrative Law Judge
This case was heard before me on September 12 and 13
1988, at Monroe, North Carolina pursuant to a consoli
dated complaint issued by the Regional Director for
Region 11 of the National Labor Relations Board (the
Board) on August 29 1988, and is based on charges filed
by United Food and Commercial Workers Union Local
204, affiliated with United Food and Commercial Work
ers International Union, AFL-CIO, CLC (the Union)
The complaint in Case 11-CA-12664 is based on an
amended charge filed on March 23, 1988 The complaint
in Case 11-CA-12844 is based on a charge filed on
August 1, 1988 The consolidated complaint alleges that
Harris Teeter Super Markets, Inc (the Respondent) vio
lated Section 8(a)(1) and (5) of the National Labor Rela
tions Act (the Act) by instituting unilateral changes in
terms and conditions of employment of employees in the
bargaining unit represented by the Union and by engag
ing in direct dealing with its unit employees thereby by
passing the Union Respondent has by its answer filed on
September 2, 1988 denied the commission of any viola
tions of the Act
On the entire record in this proceeding, including my
observation of the demeanor of the witnesses and after
considering the briefs filed by the General Counsel and
Counsel for Respondent, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find
that Respondent has been at all times material a North
Carolina corporation with warehouse facilities located at
Charlotte, North Carolina where it is engaged in the dis
tribution of groceries , produce meats and other goods
to its various retail sale stores , that during the past 12
month period preceding the filing of the complaint a
representative period of all times material Respondent
sold and distributed goods of a gross volume in excess of
$500 000 and purchased and received goods directly
from points located outside the State of North Carolina
valued in excess of $50 000 I find based on the foregoing
admitted facts that Respondent is now , and has been at
all times material an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act
293 NLRB No 93
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION
The complaint alleges and Respondent admits that the
Union is a labor organization within the meaning of Sec
tion 2(5) of the Act
III THE APPROPRIATE UNIT
The complaint alleges and Respondent admitted at the
hearing and I find that the following employees of Re
spondent constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act
All employees employed by Respondent at its Char
lotte North Carolina,' distribution center and
bakery including leadmen, dispatchers warehouse
clerical employees, drivers forklift maintenance em
ployees refrigeration mechanics and regular part
time employees, excluding office clerical employees,
managerial employees professional employees,
guards and supervisors as defined in the Act
The complaint further alleges, Respondent admits and
I find that the Union has been since August 5, 1976, and
continuing thereafter the exclusive representative of the
employees in the aforesaid unit for purposes of collective
bargaining with respect to wages, salaries, working con
ditions, and other terms and conditions of employment
IV THE ALLEGED UNFAIR LABOR PRACTICES
A The Alleged Unilateral Promulgation of a Sexual
Harassment Policy
It is undisputed that on October 19, 1987, Mike Kiser 2
Respondents director of distribution called Union Chief
Shop Steward Kenneth Bailey into his office showed
him a document entitled Harrassment Behavior which
is an internal management policy with an effective date
of December 9, 1982 (G C Exh 2) and which discusses
and prohibits sexual harassment and informed Bailey
that he was probably not aware of the policy and that
Kiser would discuss it shortly with the warehouse unit
employees At that time Bailey told Kiser he wanted to
review the policy with the Union s negotiating commit
tee Shortly after this meeting (within the hour) Kiser
called a meeting of all employees and reviewed the
policy with them Then Steward John LeGrande (who is
now chief steward) contended that he had not seen the
policy During the meeting the question was raised re
garding what would happen if the alleged perpetrator of
the sexual harassment denied the allegations by the al
leged victim and Kiser informed the employees that the
parties to the dispute would be required to take stress
analysis tests to determine who was telling the truth It is
' The distribution center and bakery is actually outside the city of
Charlotte North Carolina in the adjacent metropolitan area in a locale
known as Indian Trail and is referred to as the Indian Trail distribution
center
2 It was stipulated that Director of Distribution Mike Kiser Personnel
Administrator Bill Murray Personnel Manager John Brewer Distribu
tion Manager Dwight Johnson and Supervisors Don Dunegan John
Chandler Cliff Stokes and James Pate are all supervisors within the
meaning of Sec 2(11) of the Act
undisputed and Bailey and LeGrande testified and Kiser
acknowledged on the stand that there is no evidence that
the Union was ever made aware of the existence of this
internal management policy The Respondent raises as an
affirmative defense its assertion that the policy was pro
mulgated on December 9, 1982 during a period when
the Respondent had withdrawn recognition from the
Union between December 2 1982, until April 29, 1983
when it voluntarily recognized the Union again in settle
ment of an unfair labor practice charge filed against it
From this Respondent reasons that the Union had a duty
to demand that Respondent identify and rescind all uni
lateral changes made by it during this period as the Re
spondent made several unilateral changes that were al
leged by the Union as violations in the unfair labor prac
tices charge but that this particular charge was not listed
by the Union in its unfair labor practice charge filed at
that time
Analysis
I find that Respondent violated Section 8(a)(5) and (1)
of the Act by its unilateral promulgation of its sexual
harassment policy on October 19 1987, to its employees
without affording the Union an opportunity to bargain
concerning it I find the Respondent's affirmative defense
that the Union should have somehow been charged with
knowledge of the internal management policy in the face
of the uncontroverted facts that it did not have such
knowledge to be totally without merit Allis Chalmers
Corp, 234 NLRB 350 (1978), Peerless Publications, 283
NLRB 334 (1987)
B The 4 day Workweek
There were rumors at Respondents Indian Trail facili
ty that Respondent was considering going from its cur
rent 5 day workweek schedule to a 4 day workweek
similar to that at another of its facilities James Craig a
salvage department employees testified that he was in
formed by his supervisor, Don Dunegan that the 4 day
workweek was under consideration and would be dis
cussed at an upcoming meeting among the salvage em
ployees Craig testified that at the meeting Dunegan
pointed to each of the six salvage employees and asked
them what they thought about the 4 day workweek that
three were against it and three were in favor of it that
Dunegan advised that their department would not be of
fected unless they wanted it, and that it would have to
be negotiated with the Union Craig also testified that
Dunegan handed out a schedule of another facility to
show them how the 4 day workweek would operate
Dunegan testified that he was asked by employees con
cerning the 4 day workweek and gave them an old
schedule from the facility where he had previously
worked to show how the 4 day workweek would oper
ate and told the employees it could be discussed at an
upcoming meeting held March 1 1988 and that at that
meeting also attended by Dwight Johnson distribution
manager of Indian Trail, three employees sat in one
corner of the room and three in the other corresponding
to three being in favor of the 4 day workweek opposed
Both Dunegan and Johnson contended that there was
HARRIS TEETER SUPER MARKETS
little discussion that no questions were asked of the em
ployees concerning the workweek, and that the employ
ees merely expressed their preference and were advised
the 4 day workweek would need to be discussed with
the Union
Analysis
I find that the Respondent violated Section 8(a)(5) and
(1) of the Act by engaging in direct dealings with the
employees in the salvage department to ascertain their
views in connection with the 4 day workweek and Dun
egan did solicit those views from the employees on
behalf of Respondent To the extent that there is a differ
ence in testimony , I credit Craig s version that Dunegan
directly asked the employees their opinions on the 4 day
workweek rather than the version of Dunegan and
Johnson to the effect that they were mere bystanders al
lowing the employees to express themselves Respond
ent s own memorandum in pertinent part states
NOTES ON MONTHLY MEETING WITH
SALVAGE DOCK
DWIGHT JOHNSON-DONALD DUNEGAN
1 Discussion with employees four day schedule Asked
how they felt There were three for and three
against They felt they may lose some hours and
they didn t like staying until 9 30 (Emphasis sup
plied )
cc Lew Wilson
Mike Kiser
Dwight Johnson
Donald Dunegan
John Chandler
Such direct dealing in order to ascertain the desires of
the employees in preparation for bargaining with the
Union violates Section 8(a)(5) and (1) of the Act Obte
Pacific Inc, 196 NLRB 458 (1972)
C Respondent s Restroom Break Policy
It is undisputed that Respondent has long had a policy
of allowing a 15 minute warmup break out of each hour
for its freezer employees who are required to work in
frigid temperatures and who wear protective clothing In
addition these employees received an unpaid lunch
period and a 15 minute break in the morning and a 15
minute break in the afternoon that can be put together
with a 15 minute hourly warmup break for a half hour
break in the morning and the afternoon On April 18
1988 freezer employee William Young left the freezer
approximately 8 minutes early to go to the restroom and
then proceeded to take his full half hour combined break
Don Dunegan who had then only recently been charged
with the supervision of the freezer employees , called
Young into his office and advised him that restroom
breaks were to be taken during the warmup or other
scheduled breaktimes Young protested this and later
that day, he was given a disciplinary Constructive
Advice Form for overstaying his break and was in
structed by Dunegan and Indian Trail Distribution Man
ager Dwight Johnson and on the advice form signed by
745
both supervisors that warm up breaks are 15 minutes
per hour in duration and that bathroom time is to be in
cluded in this time and shall not be in addition to the 15
minutes
At the hearing Young testified that he had always pre
viously been permitted to go to the restroom as the need
arose and Johnson ackowledged that the policy set out
on the constructive advice form is not the current rest
room break policy Further, Freezer Union Shop Stew
and Frank Sullivan testified that the policy has been to
permit the employees to use the restroom whenever
mother nature called , you went Sullivan also testified
that at a negotiating meeting held between Respondent
and the Union on May 12, 1988, Director of Distribution
Mike Kiser reaffirmed to the employees that the freezer
crew were entitled to a 15 minute warmup break each
hour even if they were on the dock instead of in the
freezer and that the employees could go to the bathroom
as mother nature called so long as they did not make a
habit of it It is undisputed that the Respondent did not
at any time give the Union notice of a change in the rest
room policy and that it has not removed the constructive
advice form from Young s personnel file Johnson con
tended that the notice was given to Young because of his
belligerent behavior and because he wanted something in
writing The notice, however , makes no reference to
Young s alleged inappropriate behavior
Analysis
I find that the issuance of the constructive advice form
to Young resulted from a unilateral change in break
policy by Johnson and Dunegan as the break policy
practice had previously allowed restroom breaks during
nonbreaktime This unilateral change in policy occurred
without notice to and bargaining by the Union and vio
lates Section 8 (a)(5) and ( 1) of the Act and the issuance
of the constructive advice form to Young pursuant there
to was similarly unlawful in violation of Section 8(a)(5)
of the Act I reject Respondents contention that the
constructive advice form related to Young s inappropri
ate comments Production Plated Plastics 254 NLRB 560
565-566 (1981) It should be noted that I do not find by
this decision that Respondent is precluded from monitor
ing restroom use and taking appropriate action to stem
abuse if warranted by the circumstances However I do
not find that Respondent presented sufficient evidence in
this case to show abuse by Young It is obvious that if
employees were to routinely take substantial periods of
time in addition to their 15 minute per hour warmup
breaks and their morning and afternoon breaks that they
would spend barely over half of their time actually
working and nothing in this decision should be construed
as warranting such a result
D The Elimination of Job Progression for Mechanics
in the Maintenance and Forklift Departments
This alleged violation concerns the method of progres
lion from mechanic III (helper) to mechanic II to me
chanic I (or leadman in the forklift department ) and the
maintenance department The General Counsel contends
that the movement from mechanic III to II to I positions
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has been accomplished by the employees gaining expert
ence on the job and qualifying for the higher position on
the basis of merit similar to the manner in which an ap
prentice becomes a journeyman Respondent contends
that employees have only moved from mechanic III to II
positions to fill existing vacancies in mechanic I positions
when they occurred
Former Chief Steward Kenneth Bailey testified that in
1978 he met with Godfrey Bennett, the chief spokesman
for the Respondent, following the recall of employees
after a strike and at that time Bailey raised the question
of three employees who had complained to him as the
union steward that they had been in the position of main
tenance mechanics and had not been upgraded from the
lower level to a higher level When Bailey raised this
grievance on behalf of the employees, he was told that
the determination was made by the discretion of the
foreman as to whether an employee was qualified to be
upgraded Bailey further testified that the management
representatives at that meeting made no mention of any
need for there to be openings to promote into Bailey
also testified that he had never been informed in his role
as chief union steward for 10 years that management
contended there must be an opening in a mechanic I or
II position for either a mechanic III in the maintenance
department or the forklift department helper (essentially
a forklift mechanic III) to move up to a mechanic II or
I) Forklift Department Leadman Reggie Hatley testified
that on several occasions in his position as leadman he
recommended to management that forklift helpers be up
graded to mechanic II or I positions in his department
and that they were subsequently upgraded by manage
ment on his recommendation Prior to the 6 month
period preceding the hearing there had not been a fore
man in the forklift department Several employees
(Bailey, Hatley, Leon Person, and Johnny Davis) tests
fled concerning their understanding that upgrades within
the mechanic line of progression were made on the basis
of merit
On February 4, 1988, Respondent posted a mechanic
III position for the maintenance department Both Hatley
and Johnny Davis (a leadman in the produce depart
ment) bid on this position that actually paid less than
their current jobs as the maintenance mechanic I post
tion to which they expected to be upgraded more than
their current positions However, both Hatley and Davis
were advised by Supervisor James Pate that their pro
gression would not be certain and would depend on
whether Respondent needed a higher rated position in
this department Steward John LeGrande testified that in
1986 he had bid on a maintenance mechanic III job in
the bakery and had been told by Supervisor Cliff Stokes
that the job would always be a maintenance III position
and would not progress LeGrande told Stokes that in
the past there had been upgrading in these jobs from a
position III to II to I Stokes then made a phone call and
returned and told LeGrande that the job would progress
as it had in the past Employee Spencer McDowell took
that position and later progressed to a mechanic I I
credit the above unrebutted testimony of Bailey Hatley
Person, Davis and LeGrande After their discussions
with Pate both Hatley and Davis protested this per
ceived change in practice to Director of Distribution
Mike Kiser in separate individual meetings Kiser told
Davis that the Respondent only needed a mechanic III
and if it needed a mechanic II that this job would be
posted Hatley initially talked to John Brewer, Respond
ent s personnel manager, who told him he could not be
lieve it when Hatley told him that upgrades had been
made on the basis of merit within the jobs and referred
Hatley to Kiser Kiser told Hatley well that s the fork
lift shop, we re talking about the maintenance depart
ment The records bear out Hatley s testimony concern
ing upgrades within departments were made without job
postings Similarly Hatley also testified that on March 9
1988, he recommended to Supervisor James Pate Leon
Person for progression to a mechanic II classification in
the forklift department from his current forklift helper
(mechanic III) position which he held since September
1987 Pate said he would get back to Person and on
April 8 Pate told Person that he had spoken to Kiser
and that Person would not become a mechanic II as ev
erything was at a standstill but that there could be a pos
sibility of progression if some new equipment came in
Person then talked to Kiser who told him they were
going to start posting jobs as they needed them Neither
Pate nor Kiser told Hatley or Person that Person was
not qualified to progress Brewer and Kiser both conced
ed at the hearing that this was the first time (in Septem
ber 1987) when a forklift helper job had been designated
as a nonprogression job It is also clear and undisputed
that neither the Union nor Person informed in September
1987 that the job was a nonprogression job
Kiser contended at the hearing that there is a calling
placed on the number of mechanic I positions and that in
the past there had always been a vacancy in forklift me
chanic I or II positions on all occasions when an em
ployee had progressed through the maintenance or fork
lift lines of promotion and that when there were no va
canoes in the grade I positions no employee progressed
Kiser conceded that there was no written document tndi
cating any ceiling on the mechanic I positions and that
the Union had never been notified of any ceiling thereon
but Respondent relied on charts prepared by Kiser show
ing the actual number of employees in various mechanic
classifications for several years in support of its conten
tion that there had always been a ceiling on mechanic I
positions
Analysis
I credit the testimony of the employees as set out
above, I find that the General Counsel has demonstrated
by the preponderance of the evidence that Respondent
had a past practice of promoting and upgrading its me
chanic III employees in the maintenance department to
mechanics II and I on the basis of merit and its forklift
helpers in the forklift department to mechanics II and I
on the basis of merit I further find that this past practice
was changed without notices to the Union in February
and March 1988 when the Respondent initially acted on
this by informing employees that they would be promot
ed only as openings arose in the mechanic I positions I
find the charts prepared by Respondent do not support
HARRIS TEETER SUPER MARKETS
its contention that progression within the maintenance
and forklift lines of promotions from the mechanic III
and forklift helper positions has ever been limited by a
definite number of openings in the mechanic I position
It is also undisputed that the Union received no notice of
the unilateral change prior to its implementation in Feb
ruary and March 1988 I find that Respondent thereby
violated Section 8(a)(5) and (1) of the Act, by the imple
mentation of this unilateral change without affording the
Union an opportunity to bargain concerning it and by
the consequent denial of promotion to Leon Person See
Litton Precision Products 156 NLRB 555, 556 fn 1
(1966), and Allied Production Corp, 218 NLRB 1246
(1975)
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices as found in section IV,
above, in connection with the business of Respondent as
found in section 1, above, have a close, intimate, and sub
stantial relationship to trade, traffic and commerce
among the several States and tend to lead to labor dis
putes obstructing the free flow of commerce
CONCLUSIONS OF LAW
1 Respondent Harris Teeter Super Markets, Inc is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 United Food and Commercial Workers Union,
Local 204, affiliated with United Food and Commercial
Workers International Union, AFL-CIO, CLC is a labor
organization within the meaning of Section 2(5) of the
Act
3 The following employees of Respondent constitute a
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act
All employees employed by Respondent at its Char
lotte, North Carolina distribution center and bakery
including leadmen, dispatchers warehouse clerical
employees drivers fork lift maintenance employees
refrigeration mechanics and regular part time em
ployees excluding office clerical employees mana
genal employees professional employees, guards
and supervisors as defined in the Act
4 Respondent violated Section 8(a)(5) and (1) of the
Act by its unilateral promulgation of its sexual harass
ment policy, by dealing directly with its salvage dock
employees concerning a 4 day workweek, by unilaterally
instituting a policy of deducting restroom time from
scheduled breaktime, and by issuing discipline pursuant
thereto to employee William Young Respondent also
violated Section 8(a)(5) and (1) of the Act by unilaterally
eliminating the previous upgrade progression in its me
chanic classification on the basis of merit and by denying
Leon Person a promotional upgrade to mechanic II
REMEDY
Having found that the Respondent has engaged in cer
tarn violations of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
747
affirmative actions designed to effectuate the policies of
the Act and post the appropriate notice
It is recommended that Respondent be ordered to re
scind each of the unilateral changes found unlawful
above , give notice to and on request bargain with the
Union before instituting any changes in its employees
wages , hours , and other terms and conditions of employ
ment and , if agreement is reached , embody it in a signed
agreement It is further recommended that Respondent
promote its employees Leon Person to mechanic II and
make him whole for any loss of wages or benefits3 sus
tamed by him since March 9 1988 , with interest as com
puted in New Horizons for the Retarded 283 NLRB 1173
(1987) 4 It is further recommended that Respondent re
scind and remove from its files the constructive advice
form issued to Williams Young and advise him in writing
thereof and that the advice form will not be used against
him in the future
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend
ed5
ORDER
The Respondent , Harris Teeter Super Markets, Inc,
Charlotte , North Carolina , its officers , agents, successors,
and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with United Food
and Commercial Workers Union Local 204, affiliated
with United Food and Commercial Workers Internation
al Union , AFL-CIO, CLC as the exclusive bargaining
representative of the employees in the bargaining unit
below by unilaterally promulgating a sexual harassment
policy , by dealing directly with its unit employees con
cerning 4 day workweek, by unilaterally instituting
changes in its break policy and issuing a constructive
advice form to its break policy and issuing by construc
tive advice form to its employee William Young and by
unilaterally eliminating job progression for mechanics in
its maintenance and forklift departments and denying a
promotion to mechanic II to its employee Leon Person
The appropriate unit is
All employees employed by Respondent at its Char
lotte North Carolina distribution center bakery in
cluding leadmen dispatchers warehouse clerical
employees, drivers fork lift maintenance employees
refrigeration mechanics and regular part time em
ployees excluding office clerical employees, mana
s See Kraft Plumbing & Heating 252 NLRB 891 (1980) Merryweather
Optical Co 240 NLRB 1213 1216 fn 7 (1979) and American Cleaning
Co 291 NLRB 399 (1988)
* Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977) See Ogle Protection Service 183 NLRB 682 (1970)
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
genal employees, professional employees guards
and supervisors as defined in the Act
(b) In any like or related manner interfering with, re
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Rescind its unilaterally promulgated sexual harass
ment policy
(b) Promote Leon Person to the position of mechanic
II in its forklift department and make him whole for any
loss of earnings and benefits sustained by him with inter
est as set out in the remedy section of the decision
(c) Rescind the constructive advice form issued to em
ployees William Young and remove from its M es any
reference to the disciplinary action and notify him in
writing of this and that such constructive advice form
will not be used as a basis for future personnel action
concerning him
(d) Give notice to the Union of any purposed changes
in the wages, hours, terms, and conditions of its unit em
ployees and on request bargain with the Union concern
ing them and, if an agreement is reached, embody it in a
signed agreement
(e) Post at its Indian Trail Charlotte, North Carolina
facility copies of the attached notice marked Appen
dix 6 Copies of the notice, on forms provided by the
Regional Director for Region 11, after being signed by
the Respondents authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced, or covered by any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order? what steps the Re
spondent has taken to comply
6 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
'The General Counsels unopposed motion to correct the transcript is
noted and correct
APPENDIX
NOTICE To EMPLOYEES
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT refuse to bargain collectively with
United Food and Commercial Workers Union, Local
204, affiliated with United Food and Commercial Work
ers International Union AFL-CIO, CLC as the exclu
sive bargaining representative of the employees in the
bargaining unit below by unilaterally promulgating a
sexual harassment policy, by dealing directly with its
unit employees concerning a 4 day workweek by unilat
erally instituting changes in its break policy and issuing a
constructive advice form to its employee William Young,
and by unilaterally eliminating job progression for me
chanics in its maintenance and forklift departments and
denying a promotion to mechanic II to its employee
Leon Person The appropriate unit is
All employees employed by us at our Charlotte,
North Carolina distribution center and bakery in
cluding leadmen, dispatchers, warehouse clerical
employees, drivers, forklift maintenance employees,
refrigeration mechanics and regular part time em
ployees, excluding office clerical employees, mana
genal employees, professional employees, guards
and supervisors as defined in the Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act
WE WILL notify United Food and Commercial Work
ers Union Local 204 affiliated with United Food and
Commercial Workers International Union AFL-CIO
CLC of any proposed changes in the wages hours, and
terms and conditions of employment of the employees in
the above described unit and on request bargain con
cerning the changes and, if an agreement is reached
embody it in a written agreement for our employees rep
resented by the Union in the appropriate bargaining unit
WE WILL rescind the sexual harassment policy unilat
erally promulgated by us on October 19, 1987
WE WILL immediately promote Leon Person to me
chanic II in the forklift department and WE WILL make
him whole for all loss of earnings an benefits sustained
by him by reason of our unlawful refusal to promote
him, with interest
WE WILL rescind the disciplinary constructive advice
form issued to employee William Young and remove
from our files of any reference thereto and WE WILL
notify him in writing that this has been done and that
constructive advice form shall not be used as the basis
for any future disciplinary actions against the employees
HARRIS TEETER SUPER MARKETS, INC