Stop & Shop, Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1966

161 N.L.R.B. 75 (N.L.R.B. 1966)

STOP & SHOP, INC. 75
(c) Notify the said Regional Director , in writing , within 20 days of the date of
the receipt of this Decision , what steps Respondent has taken to comply herewith.8
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT grant wage increases to our employees without consulting
and bargaining with Retail Clerks International Association, Local Union
No. 1564, AFL-CIO, or any other labor organization of our employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce any of
our employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representa-
tives of their own choosing, or to engage in any other concerted activities for
the purposes of collective bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain from any or all such activi-
ties, except to the extent that such rights may be affected by the proviso in
Section 8(a)(3) of the Act.
WE WILL, upon request, bargain collectively with Retail Clerks Interna-
tional Association, Local Union No. 1564, AFL-CIO, as the collective-
bargaining representative of all of our employees, including regular part-time
employees at our Store No. 1093, excluding store managers, guards, profes-
sional employees and supervisors as defined in the Act, and if an understand-
ing is reached, embody such understanding in a signed agreement.
All of our employees are free to become or to remain, or to refrain from becom-
ing or remaining, members of the above-named Union, or any other labor organiza-
tion except to the extent that such rights may be affected by the proviso in Section
8(a)(3) of the Act.
J. C. PENNY COMPANY, STORE No. 1093,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
7011, Seventh Floor, Federal Building and United States Courthouse, 500 Gold
Avenue SW., Albuquerque, New Mexico 87101, Telephone 247-0311.
8In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the said Regional Director, In writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
Stop & Shop, Inc. and Gary A. Machaby. Case 1-CA-4937. Octo-
ber 19,1966
DECISION AND ORDER
On December 23, 1965, Trial Examiner W. Gerard Ryan issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
161 NLRB No. 5.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action, as set forth in the attached Trial Examiner's Deci
Sion He also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom
mended that such allegations be dismissed Thereafter, the General
Counsel and the Respondent filed exceptions to the Trial Examiner's
Decision together with supporting briefs 1
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three member
panel [Chairman McCulloch and Members Fanning and Jenkins]
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,2 and recom
mendations of the Trial Examiner only to the extent consistent
herewith
1 We agree with the Trial Examiner's conclusion that Section 502
of the Act does not apply here, but rely solely on his findings that
the new drive in rack did not constitute an "abnormally dangerous"
working condition a
'The Respondent filed a motion to dismiss the General Counsel s exceptions on the
ground that they do not comply with Section 102 46 of the Board a Rules and Regulations
Series 8 as amended The General Counsel filed opposition thereto As the General Coun
eel a exceptions are in substantial compliance with our requirements and together with
the suppgrting brief make clear the positions taken we deny the Respondents motion
2 These findings and conclusions are based in part upon credibility determinations of
the Trial Examiner to which the Respondent and the General Counsel have excepted
Hav,pg carefully reviewed the record we conclude that the Trial Examiners credibility
Indings are not contrary to the clear preponderance of all the relevant evidence Accord
ii{gly we find no basis for disturbing those findings Standard Dry Wall Products Inc
91 NLRB 544 0nfd 188 F 2d 862 (C A 3)
8 The test for determining whether abnormally dangerous working conditions exist
within the meaning of Section 602 was stated by the Board in Redwing Carriers Inc
130 NLRB 1208 There we said that the term [abnormally dangerous conditions for
work] contemplates and is intended to insure an objective as opposed to a subjective
test and that the controlling factor is not the state of mind of the employee or
employees concerned but whether the actual working conditions shown to exist by com
petent evidence might in the circumstances reasonably be considered abnormally danger
ous This test has been utilized in all of the cases since Redwing Carriers where
Section 502 has been raised to defend against activity that was alleged to be unprotected
because the collective bargaining agreement included a no strike clause Cf Curtis Mathes
Manufacturing Company 145 NLRB 473 Fruin Colnon Construction Co 139 NLRB 894
Philadelphia Marine Trade Association 138 NLRB 737
The General Counsel excepted to the Trial Examiners finding that Section 502 did not
apply contending that even if the Board a objective test is applied the drive in rack
constituted an abnormally dangerous working condition To support his contention the
General Counsel points to the fact that the Respondent had never received a final written
report or safety clearance for the rack from the insurance company and that the iltera
tions made after March 8 1965 indicate that the rack was not considered safe by the
Respondent
We are unable to agree with the General Counsels contention in the light of the testi
mony elicited from Kenneth Sites a registered safety engineer employed by Respondent s
insurance carrier who inspected the drive in racl on March 8 1965 Sites testified that
the rack was adequate and safe on March 8 1965 and added that the alterations later
made were discussed only as possibilit (s for providing increased margins of safety
STOP & SHOP, INC 77
2 The Trial Examiner found that the Respondent violated Section
8(a) (3) and (1) by discharging Gary Machaby on March 8 , 1965, to
discourage participation in union activity , and to eliminate him
because of his zealous efforts as a union steward The Respondent
excepts, contending that Machaby was discharged for causing certain
of Respondent 's employees to refuse to perform certain work and to
refuse to obey a supervisor 's order, and also because of his previous
unlawful conduct, which included participation in three strikes in
violation of the collective bargaining agreement We find merit in
the Respondent 's exceptions
The incidents which the Trial Examiner relied on to find that the
Respondent was hostile to Machaby occurred in March , July, and
October 1964 However, even assuming that those incidents show that
the Respondent was, at those times, displeased with Machaby's con
duct, there is no evidence that the Respondent demonstrated any hos
tihty to him or treated him unfairly between October 1964 and
March 1965 To the contrary, two incidents occurring between those
dates clearly appear to indicate that the Respondent was not hostile
to Machaby
The first incident occurred in October 1964, after the September
strike in violation of contract (Machaby had participated in the Sep
tember strike and the Respondent considered him to be the leader)
It was decided at a union management conference that the Union
would do its own time study and review the production standards,
which had been established in July 1964 and were a basic cause of the
strike, to determine if they were fair Machaby was chosen to conduct
this review Machaby admitted that the Respondent cooperated fully
with him during the approximately 8 weeks he spent conducting the
review He testified that the Respondent's engineer gave him a great
deal of instruction in time and motion study and that Respondent
provided all the data necessary to conduct such a study Upon com-
pletion of the review , Respondent accepted many of Machaby's pro
posals Machaby further testified that he was commended by Downes,
the manager of warehousing , on various occasions after the review
was completed , and that on February 10, 1965, Silverman , the direc
tor of warehousing and transportation , told him he was very pleased
with the increased production in the warehouse and thanked him for
the excellent job he had done in reviewing the production standards
The second incident occurred in February 1965, when Downes
granted Machaby 's request that he be made a member of the Safety
Committee Thus, it appears that the manner in which the Respond
ent treated Machaby between October of 1964 and March 8, 1965,
effectively negates the Trial Examiner 's finding that the Respondent
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was hostile to Machaby and was seeking an opportunity to get rid
of him
We now turn to a discussion of Machaby's discharge Machaby first
^aw the new drive in rack, which had been installed on March 6,
1965, on Sunday, March 7, and felt it was unsafe Machaby called
Dunlop, the union business agent, who, after seeing the rack and
realizing that the employees were uneasy about it, telephoned Downes
and requested there be no selecting fn om the rack until it was cleared
for safety Downes agreed that there would be no selecting on that
day, Sunday, but only because the rack could not be loaded in time
to permit selecting Downes also told Dunlop that he would attempt
to have the tack inspected on Monday, March 8, by safety engineers
fiom the Respondent's insurance carrier This is based on the testa
mony of events the Trial Examiner credited Machaby, however,
testified that Downes and Dunlop had agreed there would be no select
ing until the rack was cleared for safety The Trial Examiner col-
eluded that Machaby had honestly misinterpreted the Downes Dunlop
agreement
On March 8, 1965, Machaby arrived at the warehouse at 2 40 p m
and saw the two safety engineers from the Respondent's insurance
c'.rrier examining the rack He remained in the vicinity of the rack
until ti few minutes before 3 p in , the time he was scheduled to begin
work, and then left the area to clock in without asking about the
safety engineers' findings
About 3 15 p in Machaby talked to selector John Caulfield, who
informed him that he hid received t work older that iequirecl him
to select from the new hack, he asked Machaby what to do Mtichaby
told him he would speak to Downes and then return Machaby found
Do« nes who told him the safety engineers had rated the rack ade
quate mid safe Machaby replied that he still felt the rack was unsafe
,tnd %sked permission to call the union business agent, which Downes
granted
While Machaby was trying to telephone Dunlop, Caulfield refused
to select from the rack Downes finally gave Caulfield the option of
selecting or being discharged, Caulfield subsequently refused and
Downes discharged him Another employee, Parkin, also refused to
select, but later selected when he was given the option of selecting or
being discharged
Caulfield, Downes, and Jones, a supervisor, then met Machaby, who
had been unable to reach Dunlop by telephone According to Mach
soy's credited testimony, Downes told Machaby that Caulfield had
been discharged for refusing an order, and added that Caulfield had
said his steward instructed him not to select Machaby replied, "That
is right, sir I told him that and I told all the other men the same
STOP & SHOP, INC 79
thing " Dow nes then discharged Machaby saying, "I'm sick and tired
of your interfering with management You're fired too " Downes tes
tified that he discharged Machaby because he felt he was being insub
oidinate, that he was interfering with management and was instruct
ing employees to disobey supervisors' orders
On March 9, the Respondent, at the Unions request, agreed to re
consider its decision on Machaby's discharge until Friday, March 12,
1965 On Friday the Respondent informed the Union that it had
reviewed Machaby's entice personnel file and that on the basis of
Machaby's conduct of March 8, plus his prior unlawful conduct,
which included participation in three strikes in violation of a no
strike clause, the discharge would stand
We are convinced that the record as a whole established that Mach
aby was discharged for cause Machaby, himself, had requested that
there be no selecting from the new rack until it had been cleared for
safety and apparently mistakenly believed that Downes and Dunlop
had so agreed Yet, when he learned that the safety engineer had
declared the rack safe and adequate, he refused to accept their deci
sion Machaby's reply to Downes that he had told all the men not to
select persuades us that he had determined to take matters into his
ow n hands regardless of the decision of the safety engineers concern-
ing the rack's safety, he had apparently chosen to disregard both the
authority of management and the grievance procedure of the
collective bargaining agreement
We are therefore unable to conclude, as did the Trial Examiner,
that the reason ascribed by the Respondent for Machaby's discharge
was not the real reason, but a pretext to conceal his discharge for a
disciiminatory reason violtitive of the Act The incidents relied on
by the Trial Examiner to demonstrate Respondent's hostility to
Machaby had occurred 5 months to 1 year prior to the discharge 4
During the 5 months immediately preceding his discharge, the
Respondent had treated Machaby fairly and had commended him for
his review of production standards Such treatment, including a com-
mendation, was inconsistent with a pattern of behavior which sought
ti pretext for his discharge
On March 8, Machaby had deliberately engaged in unprotected
activity and interfered with management by causing fellow employ
ees to refuse to obey the orders of their superiors An employee who
attempts to persuade fellow employees to strike in violation of a con
ti actual no strike clause or commit acts of insubordination is not
insulated from discipline by the mere fact of his holding union
* Cf Watkins Center 156 NLRB 442 General Electric Company 155 NLRB 1365
Mitchell Transport Inc 152 NLRB 1122
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office 5 We are satisfied from all the evidence that Machaby's dis
charge was not discriminatorily motivated and that he was treated
as any other employee who had been similarly insubordinate would
have been treated Viewing the record as a whole, we are not con
vinced that a preponderance of the evidence supports the Trial
Examiner's finding that Machaby was discharged because of
Respondent's hostile desire to eliminate him because of his zealous
efforts as a union steward
3 Without deciding whether, as found by the Trial Examiner,
Warehouse Superintendent Maguire's remark to Machaby on Sep
tember 24, 1964, violated Section 8(a) (1), we find that it would not
Serve any useful purpose of the Act to issue a remedial order for
such an isolated incident in the circumstances of this case
[The Board dismissed the complaint ]
MEMBER JENSINS, dissenting
I would affirm the Decision of the Trial Examiner, for the reasons
set forth therein
5 Cf Paths Laboratories Inc 141 NLRB 1290 Russell Packing Company 188 NLRB
194 Pinellas Paving Company Inc 182 NLRB 1023
TRIAL EXAMINERS DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W Gerard Ryan at a hearing
in Boston Massachusetts on 11 hearing days between June 29 and July 15 1965
on the complaint of General Counsel and the answer of Stop & Shop Inc herein
called the Respondent I The issue litigated was whether the Respondent violated
Section 8(a)(1) and (3) of the Act. The parties waived oral argument . The Gen
eral Counsel and the Respondent have filed briefs
Upon the entire record 2 in the case and from my observation of the witnesses
I make the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times herein mentioned a corporation duly
organized under and existing by virtue of the laws of the Commonwealth of
Massachusetts
At all times herein mentioned Respondent has maintained its principal office
and place of business in the city of Boston county of Suffolk and Commonwealth
of Massachusetts and is now and continuously has been engaged at said plant in
the retail sale and distribution of groceries produce meat and related products
At all times herein mentioned Respondent has maintained warehouses located
at 100 Meadow Road Readville Massachusetts hereinafter called the Readville
Warehouse and at 420 D Street South Boston, Massachusetts hereinafter called
the Perishable Warehouse
Respondent in the course and conduct of its business causes and continuously
has caused at all times herein mentioned large quantities of groceries produce
3 The charge was filed by the Charging Party Gary A Machaby on March 23 1965
and a copy thereof served upon Respondent on March 24 1965 The complaint Issued on
May 6 1965
n Respondent s unopposed motion to correct record submitted after the bearing closed
is granted The motion is received in evidence as Trial Examiners Exhibit 1
STOP & SHOP, INC 81
meat, and related products used by it in its retail sales and distribution to be pur
chased and transported in interstate commerce from and through various States of
the United States other than the Commonwealth of Massachusetts
Respondent sells and distributes groceries produce meat, and related products,
the gross value of which exceeds $500 000 annually
Respondent annually receives directly from points located outside the Common
wealth of Massachusetts products valued in excess of $50 000
The Respondent is and has been engaged in commerce within the meaning of
the Act
U THE LABOR ORGANIZATION INVOLVED
Drivers, Chauffeurs Warehouse Employees and Helpers Umon, Local 829,
affiliated with International Brotherhood of Teamsters Chauffeurs Warehousemen
and Helpers Union hereinafter called the Union , which is signatory to a current
contract with Respondent effective April 1 1963 and expiring April 1 1966, is a
labor organization within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The violation of Section 8(a) (3)
The complaint alleged the answer denied , and I find that in violation of Section
8(a)(3) and ( 1) of the Act the Respondent discharged Gary A . Machaby on or
about March 8 1965 and thereafter refused to reinstate him for the reason that
he joined or assisted the Union or otherwise engaged in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection The
answer further pleaded affirmatively that the discharge and refusal to reinstate
him was due to his improper and unlawful conduct and that such discharge and
refusal to reinstate him were not discriminatory and not violative of the Act. The
answer further averred that he was discharged by reason of the fact that on or
about March 8 1965 he was guilty of Insubordination , caused other employees of
Respondent to commit acts of insubordination and induced and caused other
employees to take part in a work stoppage which was in violation of the express
provisions of the collective bargaining agreement between the Respondent and
Drivers Chauffeurs Warehouse Employees and Helpers Union Local 829, later
national Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of
America said Union being the collective bargaining representative of the employees
at Respondents warehouse in Readville [Boston] Massachusetts and that all the
acts committed by said Machaby on or about March 8 1965, were unlawful acts
and were not protected by the provisions of the National Labor Relations Act.
The answer further averred that Machaby had on various occasions prior to
March 8„ 1965 , been guilty of other serious acts of misconduct in that he had on
such other occasions taken part in and induced other employees of the Respond-
ent to take part in strikes and stoppages which were in violation of the express
provisions of the aforesaid collective bargaining agreement and therefore unlawful
and unprotected by the National Labor Relations Act. My reasons follow*'°
Gary A. Machaby has been employed by the Respondent as a high lift operator
since May 5 1957 From June to October 1963, he was acting steward and assist-
ant shop steward on the third shift from October 1963 to March 1964, he was
shop steward on the third shift and from March 1 1964 to the date of his die
charge on March 8, 1965 was shop steward on the second shift s
The Respondent operates a chain of 141 food supermarkets and 30 general
merchandise discount-type department stores these stores being located in Massa
chusetts New Hampshire Rhode Island and Connecticut and 3 general merchan
disc stores in New Jersey and 1 food store and 1 general merchandise store in
Poughkeepsie New York The Respondent has been in business since 1915
In the Readville section of Boston Respondent operates a large dry groceries
warehouse (which is the warehouse involved in this proceeding) which is a one-
story brick building built in 1959 and having 500 000 square feet of floor space
The warehouse at Readville is responsible for maintaining a continuous flow of
dry groceries detergents and related products to all 141 Respondents food stores,
every store receiving at least one delivery a week and some stores receiving as
many as five deliveries each week
s The hours for the second shift were from 8 to 11 80 p in
264-188-67-vol 161-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merchandise is received dally at Readville arriving by rail and motor carriers
and approximately 500 000 cases of merchandise are handled and shipped out of
the Readville warehouse weekly
The Respondent employs approximately 11 000 people in its entire operations
of whom approximately 10 000 are represented for purposes of collective bargain
ing by one or another of 38 unions which are affiliated with one or another of
12 separate International unions Respondent has had labor relations and collective
bargaining contracts with such unions for more than 30 years
The Respondent has had collective bargaining agreements with Local 829 by the
Teamsters Union since 1937 each of those agreements having applied since the
opening of the Readville warehouse in 1959 to a single bargaining unit embracing
the employees at the ReadVille warehouse and the perishable products warehouse
on D Street in Boston Those agreements have over a period of years included
so-called no strike clauses as well as a procddure for arbitration of all unresolved
grievances and disputes including those involving discharges
Since the enactment of the National Labor Relations Act there have been but two
or three unfair labor practice charges filed against the Respondent and the Board
has never prior to the instant case issued an unfair labor practice complaint
against Respondent J David Fine Respondents director of industrial relations
testified that within his knowledge no such complaint had issued against Respond
ent from 1946 to the date of the issuance of the complaint in the instant case
There are approximately 300 union stewards throughout Respondents operations
and Gary A Machaby the Charging Party here is the first such steward to have
beeen discharged since 1957
Notwithstanding such a picture of surface tranquility as the foregoing would indi
cate relations between the Respondent and the employees have been marred by work
Stoppages in protest over production rates suspensions and discharges to which the
Respondent has countered by suicide notes and lawsuits against the employees
The suicide note as the record shows was a note which was signed by an employee
following reinstatement after a discharge whereby the employee waived arbitration
if he was ever discharged again
A new drive in rack was installed on March 6 1965 which was a long rack
three vertical columns deep on one side and four vertical columns deep on the
other side Each vertical column or slot had three levels the first level is referred
to as the floor level or selecting position and on each of the two levels above the
floor level a pallet of merchandise is so deposited by the high lift operators that the
pallet rests on two metal stringers or arms There is only one pallet of merchandise
stored on each of the three levels of the drive in rack
The drive-rack is of such dimensions that a standard size pallet of merchandise
when properly deposited in the rack by a forklift operator would have two inches
of each side of the pallet setting on the steel runnets or steel stringers of the rack
The drive-m rack is safer than a pallet rack since the drive in rack eliminates the
stacking of one pallet directly upon another
When the new drive in rack was first installed in the Readville warehouse on
March 6 1965 the steel uprights were not lagged or bolted to the floor but after
March 8, 1965 uprights were bolted to the floor and certain other alterations were
made in the drive in rack
The entire new drive in rack was used for storing bleaches and many slots con
tamed the same brand of bleach and the selector was to select from the slot where
there was no merchandise stored directly above the selecting position
Prior to the installation of the new rack cartons of bleaches were stacked by the
pallet on pallet method on the warehouse floor When manufacturers of bleach
changed from the use of glass containers to plastic containers the cartons contain
ing the plastic containers lost their rigidity and a hazard was created in the floor
stacking of such merchandise In order to provide a safer method of storing the
bleaches the Respondent had the new drive in rack designed and installed for the
storage of bleaches
On Sunday March 7 1965 Machaby upon seeing the new drive in rack and
being of the opinion that it was unsafe telephoned to the Union Business Agent
Dunlap Dunlap went to the warehouse that day and then telephoned to Thomas
Downes manager of Respondents warehousing In that conversation Downes told
* Macbaby was also fired on July 14 1964 at a grievance meeting by Arthur Terpestra
who told Machaby to lower his voice and get out of the office or he would fire him Macbaby
said Fire me for what 9 He was then fired by Terpestra but was recalled to work on
the following day
STOP & SHOP, INC 83
Dunlap the Company believed the new rack to be safe that since the new rack
could not be loaded in time the discussion as to selecting merchandise from that
rack on Sunday was academic and so Downes conceded there would be no select
ing from the new rack on Sunday and further informed Dunlap that he would
attempt to have the insurance inspectors come to the warehouse on Monday
March 8 1965 but he could not guarantee their coming on Monday since they were
not employees of the Respondent My findings as to this telephonic conversation are
based on the credited testimony of Dunlap and Downes Machaby heard only one
side of the conversation which was what Dunlap said Dunlap reported to Machaby
what Downes had said I believe that Machaby honestly misinterpreted what Dun
can reported that Downs had said and that Machaby believed that Downes had
promised there would be no selecting from tl}e new rack until the insurance company
inspectors had passed it for safety (not limiting it to §unday only) However the
matter appears to be of no consequence becau §e at set forth infra there was no
selecting from the new rack until after the insurance company inspectors had passed
it for safety on Monday March 8 1965
On Monday March 8 1965 Kenneth Sites called by General Counsel testified
that he is a registered professional safety engineer of more than 25 years experience
in the field of safety and that on March 8 1965 he examined the new drive in rack
and found it was safe as long as ordinary safety practices were ol?served
Gary N Bean jresident of A D Bowman Associates Inc the, company which
sold and installed the new drive in rack testified that the rack was built to order for
Respondent for the purpose of Storing bleaches and that the rack was safe for use
when installed
Machaby arrived at the warehouse about 2 40 p in about 20 mmptes before the
scheduled starting time of the second shift Macltaby saw the two insurance company
representatives examining the new rack Machally on his own testimony left the area
of the new rack since the starting time of the second shift Was nearing and went to
the timeclodk a few minutes before 3 p in where he found that all the men on the
second shift were congregated
According to Machaby the employees were firing questions at him some asking
what the result of the inspection was Machaby testified
Well I remember distinctly one employee Don Cauble said What happens if
they tell me I have to go into those racks? I said ' You know the rules as well
as I do You don t ever refuse any order You say you want to see your steward.
About 3 15 p in on March 8 Downes the warehouse manager told Machaby
that the insurance inspectors had rated the new rack to be safe Machaby replied
that he still felt the racks to be unsafe and asked Dowries permission to telephone
to the business agents Downes gave him permission but Machaby was unsuccessful
in reaching them
A little later that same day employee John Caulfield refused to select merchan
dise from the new rack stating to Downes that he was afraid Downes gave him
an alternative of selecting from the rack or being discharged Caulfield was dis
charged when he refused He was recallOd to Work the `next day as Downes testy
fled, he oensidered him to be the dupe of Machatiy Another en }ployee Ronald
Parkin refused to select from the rack but did 'select from the rack when told by
Downes that he would be discharged if he persisted in his refusal
After Caulfield was discharged Machaby left the company office after unsuc
cessfully trying to telephone the business agents He walked a few feet and noticed
Downes Jones and Caulfield walking down the main aisle Jones motioned to
Machaby to return to the office where Dbwnes Jones and Caulfield joined him.
Caulfield told Machaby that he had been fired for refusing to go underneath the
rack Downes stated to Machaby that Caulfield had refused a direct order and
he was firing him Machaby inked What did Caulfield do and Downes replied that
Caulfield refused to go into the racks to select and added that Caulfield told
him that his steward told him that he did not have to Machaby replied that is
right sir I told him that and also told all the other men the same thing Where
upon Dowries replied to Machaby I in sick and tired of your interfering with
management Your re fired too Caulfield and Machaby thereupon left the office
Downes testified he discharged Machaby because he felt he was being insub
ordinate that he was interfering with management and was instructing employees
to disobey the orders of their superiors Downes further testified that Machaby s
insubordination consisted of telling selectors not to select from a rack but Downes
admitted that Machaby had also told the selectors not to disobey the order of a
supervisor but to check with him before they did the work
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Downes further testified all the reasons for him discharging Machaby were
that he was interfering with management, persuading others to disobey the instruc-
tions of a supervisor, and being insubordinate. Downes testified that he had no
other reasons for discharging Machaby and that after his discharge on March 8,
he did not have occasion to discuss with other members of management other
reasons that the Company could have had for discharging Machaby in addition to
the ones that he was discharged for.
Later that same day Machaby returned to the plant with the business agent,
Joseph Dunlap at approximately 5:30 p.m. Connor Maguire met them at the
gate and went with them to the warehouse and Maguire told them the men on
the second shift were in the cafeteria and had refused to go back to work. Mach-
aby was told by Maguire to go to the reception room and stay there. Machaby
stayed in the reception room from approximately 6:40 until at 10:30 p.m. the
business agent came and told him to go home and they left the building together.
The employees who had engaged in the sitdown in the cafeteria returned to work
about 10 p.m .5
1. Background evidence
The record also contains the following based on Machaby's credited testimony:
In March or April 1964, following a grievance meeting Supervisor Arthur
Terpestra told Machaby that Downes wanted to see him in the office. Machaby
went to the office of Connor Maguire where Downes and Silverman were present.
Silverman, director of warehousing and transportation, told Machaby to pull up
a chair as he wanted to talk to him. Silverman began the interview by saying to
Machaby that this conversation with him was long overdue. When Machaby asked
what was the problem, Silverman replied "Well, frankly, you are nothing but a
thorn in my side. You are nothing but trouble to me and to the Union." Then Sil-
verman inquired if Machaby realized he had a very important position with the
Company as shop steward. When Machaby replied that he did realize the position
of shop steward was important, Silverman stated that he (Silverman) had a lot
of plans for the warehouse "and you are certainly not going to get in the way of
my plans." Then followed a discussion of some of the grievances that Machaby
had brought to the office. Then Silverman told Machaby "We had another shop
steward around here for years. He was vicious but we got rid of him, and that
was Jimmy DeParales ; and we got rid of him , too, and we can get rid of you.
It might take a day or a year or a month, but we can get you." 6
Machaby replied "In other words, you want me to play ball with you." Downes
then interjected and said "No, you don't understand what Mr. Silverman was trying
to say to you at all." But Silverman said to Downes "Wait a minute. He under-
stands what I mean . A woman is either pregnant or she isn 't pregnant, not just a
little pregnant." Machaby then told Silverman that he would either do the job of
steward or get off it but that he was not playing "footsie" with anybody.
After some discussion of economics in the, stores , Silverman continued the con-
versation by asking Machaby, if he owned his own house . Machaby replied "Well, I
got eight children , and I got an old house but I like it." Silverman then inquired if
Machaby would not like a better house some day and Machaby answered "Yes,
maybe some day." Machaby then said "Well, lets change the subject." After
some further discussion about economics in the stores , Machaby was excused
from the room and returned to work.
At a grievance meeting on July 14, 1964 , Supervisor Arthur Terpestra told
Machaby to lower his voice or get out of the office or he would fire him. When
Machaby inquired what he would be fired for, Terpestra replied for what Ter-
pestra had just said. After further debate with Richard Orlandi, the supervisor
involved in the grievance , Terpestra told Machaby he was fired and to punch his
card and get out of the office.
The following day the grievance meeting was continued at which Dunlap, the
business agent, was present with Machaby . After the conclusion of that grievance
meeting , Downes refused at first to reinstate Machaby but later relented and
agreed that Machaby could return to work but it would remain in Machaby's
record that he had been suspended with 2 hours loss of pay. Machaby asked the
S Machaby had nothing to do with the work stoppage which occurred after his discharge
on March 8 although the Respondent considered him to be responsible for it. He had no
contact with the employees after Downes told him the insurance inspectors had said the
rack was safe.
6 DeParales was still employed at the time of the hearing but was no longer a steward.
STOP & SHOP, INC. 85
business agents of the union to file an unfair labor practice charge with the Board
but they refused saying it had to proceed through the contract procedure to
arbitration. The date for that arbitration hearing was set for March 9, 1965.
The foregoing background evidence has been considered as relevant in determin-
ing the Respondent's reasons for discharging Machaby on March 8, 1965.
On September 24, 1964, while Machaby was away from the plant having supper
at a restaurant in Hyde Park the employees on the second shift engaged in a work
stoppage. Upon his return to the plant at 7:25 p.m. Machaby found automobiles
parked around the road and the men milling around. After calling Business Agent
Dunlap, Machaby told the men they were out on strike and they ought to go
back to work. The men ignored him.
Later Fine appeared and told Machaby the men were on strike and to get the
men back in to work. Machaby again told the men to return to work but they
continued to ignore him and Fine. Later that evening and the next day all employ-
ees joined the strike. On September 27, 1964, the employees returned to work.
At a meeting held on October 3, 1964, Sidney Rabb, chairman of the Respond-
ent's board of directors accused Machaby of initiating the September 1964 strike.
Machaby denied the accusation.
The record further shows that sometime in the fall of 1964, Connor Maguire
asked Machaby if he thought he was some kind of "professional" steward. Mach-
aby asked why Maguire had asked the question. Maguire answered by saying
Machaby was running down to the office with all these little grievances. Machaby
then told Maguire that if a grievance sounds justifiable when an employee brings
it to him it is Machaby's duty to go to the office with it.
The record shows that Machaby as steward had tried to get the Respondent to
have regular meetings of the Safety Committee as provided for in the collective-
bargaining agreement but to no avail; and he also tried to have employees who
worked after 30 days classified as regular employees because they had to join the
Union after 30 days and although they paid union dues were not entitled to any
benefits such as accident and death insurance' and Blue Cross and Blue Shield
coverage because the Respondent did not classify them as regular employees. An
example was the death of employee Stewart who had worked 8 months before he
suffered a fatal accident on the job but had not been classified as a regular
employee. Silverman rejected that suggestion.
The General Counsel contends in his brief that Section 502 of the Act applies
to this proceeding.? I find that Section 502 has no application here. In the first
place this proceeding involves only one individual, Gary A. Machaby, who did
not quit his employment-he was discharged; and, secondly, there was nothing
abnormally dangerous with respect to the new rack. The record shows that it
was safe so long as normal rules of safety were observed.
The Respondent in its brief in connection with the credibility issues involved
calls my attention to the fact that employees who testified for the General Counsel
testified that since Machaby's discharge they have been contributing weekly
to a fund used to pay Machaby the equivalent of his weekly earnings . The record
shows that not only the Respondent's employees but some of its supervisors have
also contributed and that all the members of Local 829 together with many, if
not all, other Teamster locals in the city of Boston have also been contributing to
the fund. I do not consider that the witnesses who contributed to the fund had
any pecuniary interest in the outcome of this proceeding sufficient to disqualify
them for that reason.
2 Conclusion
On the entire record I find that the stated reason at the time of Machaby's
discharge by Downes on March 8, 1965, was not the real reason but was a pretext
to conceal his discharge for a discriminatory reason violative of the Act. His
discharge stemmed from his activities as an alert, zealous, and conscientious union
steward; and such discharge could reasonably be expected to dim the ardor of the
activities of any steward or employee considering the possibility of accepting a
stewardship.
7 Section 502 provides, miter elia;
, . , nor shall the quitting of labor by an employee or employees in good faith be-
cause of abnormally dangerous conditions for work at the place of employment of
such employee or employees be deemed a strike under the Act.
'86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here as in Family Laundry & Dry Cleaning Inc 147 NLRB 251 the question
is not whether there existed valid and unlawful reasons why the Respondent might
have discharged him but rather whether those were the reasons which in fact
motivated Respondent in its decision to discharge hun It is perfectly well settled
that the mere existence of valid grounds for a discharge is no defense to a
charge that the discharge was unlawful unless the discharge was predicated solely
on those grounds and not by a desire to discourage union activity (NLRB
v Symons Mfg Co 328 IF 2d 835 837 (C A 7)) The existence of some justi
fiable ground for discharge is no defense if it was not the moving cause (Wells
Incorporated v NLRB 162 F 2d 457 460 (C A 9)) See also NLRB v Solo
Cup Company 237 F 2d 521 525 (C A 8) N L R B v Jamestown Sterling
Corp 211 F 2d 725 726 (C A 2) N L R B v Whiten Machine Works 204 F 2d
883 (CA 1)
The Supreme Court has held in The Radio Officer.? Union of the Commercial
Telegraphers Union AFL [The A H Bull Steamship Co ] v N L R B 347 US
17 39-40 that Section 8 (a)(3) includes discrimination to discourage participation
in union activities as well as to discourage adhesion to union membership
Here Machaby had long been a thorn in the Respondents side as Silverman
described him he had been discharged in July 1964 (but recalled the next day)
for activities directly involving his union stewardship he was questioned as to
whether he considered himself a professional steward and an attempt was
made by Silverman to wean him away from being such an active steward by
conjuring up the idea of a better house some day for himself and eight children
to which Machaby replied that as long as he was steward he would not play
footsie with anyone The Respondent in my opinion and I find acted to rid
itself of a steward obnoxious to it and did so by discharging Machaby
Thus it is clear that here as in Symons Mfg Co supra the discharge of
Machaby was not predicated solely on the grounds assetted but was motivated by a
desire to discourage union activity
Accordingly I find and conclude that the discharge of Gary A Machaby on
March 8 1965 was in violation of Section 8 (a) (3) and (1) of the Act since
the discharge was clearly of a nature to discourage participation in union activities
and was motivated by Respondent s hostile desire to get rid of him because of
his zealous efforts as a union steward
B The alleged 8(a) (1) violations
The complaint alleged in' paragraph 11 and the answer denied that
(a) Respondent by its officers and agents Thomas Downes and Connor
Maguire on or about September 24 1964 threatened its employees with dis
charge or other reprisals if they persisted in thew union and/or concerted
activities for mutual aid or protection
(b) Respondent by its officers and agents J David Fine on or about
March 8 1965 and Robert Silverman on or about March 8 1965 threatened
its employees by revealing that Respondent had discharged employees for their
continued and/or concerted activities for mutual aid or protection
(c) Respondent by its officers and agent Robert Silverman on or about
March 9 1965 promised an employee an excellent job recommendation if
he would resign his employment and otherwise cease and desist in his con
tinued union and/or concerted activities for mutual aid or protection
With respect to the allegations set forth in paragraph 11(a) as set forth above
General Counsels Particulars stated that it was Superintendent Maguire who in
the presence of Thomas Downes threatened Respondents employees with dis
charges and other reprisals if they persisted in their union and/or concerted
activities for mutual aid or protection I shall therefore disregard any testimony
In the record attributing such or similar remarks to Downes and limit the situation
to what was said or not said by Maguire
Machaby testified that on the afternoon of September 24 1964 8 he and employee
Powers met with Maguire Downes and Supervisor Jones at a meeting in Downes
office
Maguire stated that he was suspending Powers for 3 days for failure to meet
production standards and during that time Powers would have plenty of time to
8 The charge herein was filed on March 23 1965 and served on the Respondent on
March 24 1965
STOP & SHOP, INC 87
think the situation over and maybe he could even find himself another job Powers
then pleaded for himself saying he was doing his work and everything he possibly
could to keep up with the work standards But he was told he was suspended and
to leave the office Then Machaby stood up and said to Powers Come on Tom
There is no sense of arguing with these people I will have to call the business
agents Maguire immediately said to Machaby Sit down in that chair and keep
your mouth shut I in going to fire you After some discussion it was decided
not to fire Machaby Maguire denied Machaby s foregoing testimony and Downes
supported his denial However I credit Machaby s testimony and find that
Maguire s statement to Machaby including its threat of discharge constituted
interference restraint and coercion violative of Section 8 (a) (1) of the Act
With respect to paragraph 11(b) supra there is no evidence that Fine or Si!
verman on or about March 8 1965 threatened employees by revealing that
Respondent had discharged employees for their continued union and/or concerted
activities for mutual aid or protection Paragraph 11(b) should therefore be
dismissed
With respect to paragraph 11(c) as set forth above I do not find any violation
of the Act At a meeting on March 9 with the business agents they were asking
the Respondent to reconsider its position and rescind the discharge of Machaby
and it was in answer to this request that Silverman refused to rescind the dis
charge and the only thing the Respondent would do would be to permit Machaby
to resign as it had permitted some others to do in the past In that context I find
no interference restraint or coercion violative of Section 8(a) (1) of the Act
The complaint to that extent should be dismissed
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III above occurring in con
nection with the operations of Respondent described in section I above have
a close intimate and substantial relation to trade traffic and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V THE REMEDY
Having found that Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act
Having found that the Respondent violated Section 8(a)(1) and ( 3) of the
Act by discharging Gary A Machaby I shall recommend that Respondent offer
him immediate and full reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights or privileges , and make
hum whole for any loss of earnings he may have suffered as a result of the dis-
crimination against him by payment to him of a sum of money equal to that
which he normally would have earned as wages from the date of his discharge to
the date of the Respondents offer of reinstatement or such time as he may find
equivalent employment less his net earnings during such period with backpay
and interest thereon to be computed in the manner prescribed by the Board in
F W Woolworth Co 90 NLRB 289 and Isis Plumbing & Heating Co 138
NLRB 716
Because the Respondent by its conduct violated fundamental employee rights
guaranteed by Section 7 of the Act and because there appears from the manner
of commission of this conduct a disposition to commit other unfair labor prac(ces,
it will be recommended that Respondent cease and desist from in any manner
infringing upon the rights guaranteed employees by Section 7 of the Act
Upon the basis of the foregoing findings of fact and upon the entire record in
the case I make the following
CONCLUSIONS OF LAW
1 The Respondent is an employer within the meaning of Section 2 (2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act
2 The Union is a labor organization within the meaning of Section 2 ( 5) of the Act
3 By interfering with restraining and coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act in the manner hereinabove found
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Resppondent has engaged in unfair labor practices within the meaning of
Section, 8.(a) (1) of the Act.
4. By discriminating with respect to, the, hire and tenure of employment of
Gary A. Machaby, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Certain-Teed Products Corporation and United Stone and Allied
Products Workers of America, AFL-CIO-CLC. Cases 16-CA-
Z983 and 2387. October 19,1966
DECISION AND ORDER
On June 13,. 1966, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
brief in support, and the General Counsel filed cross-exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and. Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Trial Examiner's Decision, the excep-
tions and brief, and the cross-exceptions, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations, except to the
extent modified herein.l
We find it unnecessary to reach the question raised in the General Counsel's cross-
exception 1 concerning a continuing duty to bargain at least untilAugust 12, 1965, by
reason of the time consumed by the Respondent in requesting review of the Regional
Director's decision at the beginning of the certification year. The Trial Examiner treated
this problem at footnote 16 of his Decision. Without passing upon that facet of the
8(a) (5) violation , we fully agree with the Trial Examiner that the record here establishes
a refusal to bargain as of June 26, 1965, within a period of 1 year after the Union's
July 2 , 1964, certification.
As to cross-exception 2, we find merit in'the General Counsel's contention that pendency
Of unremedied unfair labor practices-in this case extensive 8(a) (1) and (3) violations-
found by the Board in its prior decision, 153 NLRB 495, additionally warrants the finding
of 8(a) (5) and (1) violation based upon the Respondent's July 6, 1965, withdrawal of
recognition ascribed to the Union's apparent loss of majority.
161 NLRB No. 11.