The Great Atlantic and Pacific Tea Co.

National Labor Relations Board - Board Decisions

May 13, 1957

117 N.L.R.B. 1542 (N.L.R.B. 1957)

1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with, restrained, and coerced its employees within the meaning of Section 8
(a) (1) of the Act 45
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent 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 its employees in the exercise of
the rights guaranteed employees in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section' 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not refused to bargain with the Union within the meaning
of Section 8 (a) (5) of the Act.
[Recommendations omitted from publication.]
451t may be objected that interference in the matter of the election petitions is not
specifically alleged in the complaint . It is my opinion , however, that the allegation with
respect to support of withdrawals is broad enough to cover this phase of the case, and in
any event it was fully litigated.
The Great Atlantic and Pacific Tea Company and Shibley A.
Hider
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 88, AFL-CIO I [The Great Atlantic and Pacific
Tea Company] and Shibley A. Hider. Cases Nos. 14-CA.-1390
and 14-CB-391. May 13, 1957
DECISION AND ORDER
On January IT, 1956, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents, namely, The Great Atlantic and Pacific Tea Company,
hereinafter called the Company, and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 88, AFL-CIO, herein-
after called the Union, had engaged in and Were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions and briefs.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and the briefs, and the entire record in the
case' and hereby adopts the findings, conclusions, and recommenda-
' The AFL and CIO having merged subsequent to the hearing in this proceeding, we
are amending the identification of the affiliation of the Union accordingly.
2 The Respondent Company's request for oral argument before the Board is hereby
denied as the record , exceptions , and briefs adequately present the issues and positions
of the parties.
117 NLRB No. 200.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1543
tions of the Trial Examiner with the following additions and
modifications.
The complaints allege,,in substance, that: (1) The Company and
the Union have maintained and enforced an oral agreement and
understanding requiring employees and prospective employees at the
Company's meatharkets to be approved for employment by the Union
before they are employed by the Company; (2) the Union caused
or attempted to cause the Company to discharge Shibley A. Hider by
demanding or insisting that the Company not employ him because
he did not have its approval or authorization for employment, and
that this approval or authorization was denied for reasons other than
his failure to tender periodic dues and initiation fees; (3) the Com-
pany did discharge Shibley A. Hider from his part-time employment
and did refuse to permit Hider to proceed with his full-time employ-
ment because he did not have the approval of or authorization for
employment from the Union, although the Company had reasonable
grounds for believing that union approval or authorization had been
denied for reasons other than his failure to tender periodic dues and
initiation fees; and (4) the Union, since on or about May 27, 1955,
interfered with, restrained, and coerced Hider by threatening and
intimidating remarks relating to his employment; and by the fore-
going conduct the Respondents violated the Act.
The Trial Examiner concluded that the agreement or understanding
between the Respondents, the practice or system it set up, and the
termination of Hider's employment and the denial to him of further
employment, pursuant to the agreement and the practice, are all vio-
lative of the Act, and that the Respondents committed the unfair labor
practices alleged in the complaint. For the reasons stated hereinafter
we agree.
1. The Trial Examiner finds that a hiring agreement or under-
standing exists between the Respondent Company and the Respondent
Union which requires the Respondent Company to hire only those
meatcutters or butchers referred to it by the Respondent Union. Con-
trary to the Respondent Company's and the Respondent Union's ex-
ceptions, we agree with the Trial Examiner. The record, in our opin-
ion, considered as a whole, amply establishes the existence of an
exclusive referral system.
Thus, Swast, the Company's meat superintendent, testified that it
has always been the Company's practice to call the Union whenever it
needed a butcher or meatcutters,3 that a butcher or meatcutter is never
put to work without a workcard from the Union, that if a man ap-
peared for work without a card, he, Swast, would first check with the
Union, and that in the past he never hired a man unless he had a
8 Swast testified that he knew of his own knowledge that the referral system in question
has been in effect for over 8 years
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workeard from the Union. Gieseke, the Union's secretary and treas-
urer, testified that the present referral system has been the same for
the past 28 years, and both he and'Blassie, the Union's president, testi-
fied that the system was devised to promote the welfare of union
members and that the Union, in carrying out the hiring arrangement,
always insisted upon referral cards being used.
The exclusiveness of the hiring arrangement between the Company
and the Union is further demonstrated by the credited testimony of
-Complainant Hider. On several occasions Hider's supervisor, Tyler,
told him that he could have a job with the Company only if he ob-
tained a referral card from the Union. The acting head meatcutter,
serving in Tyler's absence, also told Hider he could not work in the
store without a card from the Union. Similarly, the manager of the
Gravois store where Hider worked told him he needed a union card
to work at the store. Finally, when Hider told Company Official
Hanlon that he wanted to work full time during the summer, Hanlon's
first question was whether Hider had a union card. After hearing
that Hider did not have such a card, he never called him back, nor
did Hider work again for the Respondent Company.'
The record establishes not only the existence of an exclusive hiring
arrangement between the Company and the Union, but also that this
referral system is discriminatory in practice in that it gives preference
in hiring to union members, and we so find. Thus, Union Secretary
and Treasurer Gieseke testified that although the Union registers non-
members as well as members for referral, "members come first unless
an employer requests [a non-member]." Gieseke further stated that,
as far as possible, it was his practice to give the available jobs to union
members. Moreover, Union President Blassie testified that unless
there was a particular reason why a union man would not fit on the
job, the Union always sent a union man 5 The discriminatory op-
^eration of the referral system is further demonstrated by the unlawful
discharge of and the refusal to employ Shibley Hider, discussed infra s
4 We note that Company Official Swast testified that he did not hire journeymen butchers
from outside the Union because "there wasn't any available " Yet, when Hider indicated
he was available and wanted to work full time during the summer , lie was told by the
Company that he needed a workcard from the Union.
6 We do not consider the case of iiunkin- Conkey Construction Company, 95 NLRB 433,
relied upon by the Union, to be apposite There the Board refused to find a discriminatory
practice upon the basis of an "isolated " statement by a union official that lie would
"naturally" give preference to unemployed union men . That is obviously a far cry from
the categorical statements of Gieseke and Blassie , supra, that union members always
came first absent an unusual circumstance Moreover, in Rankin-Conkey, unlike the
instant case , the union official in question testified that in practice he never attempted
to give union members preference and that nonunion registrants had the same job
opportunities as union members.
6 It appears that the Union refers nonmembers to locations where strikes are in
progress or other places where union members cannot work However, in the instant
case, we are interested only in the referral system as applicable between the Company
and the Union , not as applicable to other employers in the area . In this connection, we
note that the written contract between the Respondent Company and Respondent Union
.contains a union-security provision requiring employees to become members of the Union
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1545
The Board, with court approval, has uniformly found that an ex-
clusive hiring agreement, or arrangement, or practice, requiring the
referral of all employees by a union, is unlawful where it discriminates
in favor of union members by giving union members preference over
nonmembers in job referrals.' As we have found that the exclusive
hiring agreement and practice in the instant proceeding gives pref-
erence in hire to union members, this agreement and practice is un-
lawful. Accordingly, we find that the Respondent Company and
Respondent Union have violated Section 8 (a) (1) and (3) and Section
8 (b) (1) (A) and (b) (2), respectively, by maintaining and enforcing
this unlawful luring agreement and practice.'
2. The Trial Examiner finds that the Respondent Company dis-
charged and refused Shibley Hider further employment because the
Respondent Union withheld its approval of his employment by the
Company. Contrary to the Respondent Company's and the Respond-
ent Union's exceptions, we agree with the Trial Examiner. The
record, in our opinion, fully supports the Trial Examiner's finding.
Hider joined the Respondent Union in October 1949. He sought
part-time work, and until February 1955 was referred by the Union
to various meatmarkets in St. Louis. Beginning in February 1955,
and until his altercation with Union President Blassie which eventu-
ally led to his discharge and denial of further employment, Hider was
regularly employed as a part-time meatcutter at the Company's
Gravois store 9 under the supervision of Martin Tyler, the head meat-
cutter.10 Hider's employment was pursuant to the exclusive preferen-
tial referral system between the Company and the Union which we
after 30 days of employment In view of this union-security agreement, and as it appears
that the Company and the Union have operated under this arrangement for many years,
we cannot infer that the Company requested nonunion registrants on the list, or that
there was some reason which prevented the Union from referring union members.
7 Alaska Chapter of the Associated General Contractors of America, Irac, 113 NLRB 41;
Carpenters Local Union No 1028, United Brotherhood of Carpenters cC Joiners of
America, AFL (Dennehy Constructtion. Company), 111 NLRB 1025, enfd 232 F. 2d 454
(C. A 10) ; Consolidated Western Steel Corporation, at at., 108 NLRB 1041; Philadelphia
Iron Wovks, Inc, 103 NLRB 596, enfd 211 F. 2d 937 (C. A. 3) , International Brother-
hood of Boileimakeis, Iron Ship Builders, Welders and Helpers of America, Local #106,
AFL (Consolidated Western Steel Corporation), 94 NLRB 1590
8As we have found that the hiring agreement and practice disciuninates in favor of
union members, we find it unnecessary to consider the Trial Examinei's conclusion that
an agreement requiring applicants to be referred from the Union is, absent evidence that
the Union unlawfully discriminated in supplying the personnel, violative of the Act.
O The record establishes that from February 1955 until his altercation with Blassie,
Hider worked every weekend at the Gravois store, except 4 weekends when he was engaged
in school activities.
:LO The Company contends that Tyler was not a supervisor within the meaning of the
Act, and that therefore it is not bound by his statements. However, it is to be noted
that Tyler regularly contacted the Union for the Company in obtaining Hider as a meat-
cutter for the Gravois store Consequently, it is clear that Tyler was an agent for the
Company in its dealings with the Union under the referral system and that the Company
Is thus bound by his statements In any event, inasmuch as Tyler regularly arranged
with Hider for his employment by the Company, it is clear that Tyler had the power to
hire and that, accordingly, he was a supervisor within the meaning of the Act, and we
so find
1546 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
have heretofore found to be illegal . Thus Hider, as a part-time' meat-
'cutter, was required to obtain a referral card from the Union for each
weekend that he worked . Early in the week Tyler would notify the
Union that he would require a part-time meatcutter for the weekend.
'There was a "standing order," as it were, at the Union that Hider be
referred to this job . And so each week Hider would go to the union
hall and would ask for and would receive from one of the clerks a refer-
ral card which assigned him by name to the Gravois store. On Friday
Hider would present the referral card to Tyler at the Gravois store
and would then be allowed to start work.
In the fall of 1953 Hider borrowed $575 from the Meat Cutters
Credit Union of which Union President Blassie is secretary and treas-
urer, and gave the Credit Union a lien on his car as security . Finding
himself unable to meet a monthly payment due on the loan March 20,
1955 ,11 Hider went to the Credit Union to obtain permission to pay
only the interest as he had been permitted to do at other times. He was
told that only Blassie could grant such a request. Hider attempted in
the next few weeks to see Blassie but was unsuccessful . Meanwhile,
he continued to work weekends at the Gravois store . During the last
week in April, Hider saw Blassie at his office and told him that he
would receive his pay from the university in about a week and that
he would then bring his account up to date. Blassie took Hider's ac-
count book and said that he would consider the matter.
On May 3 Hider went to the Credit Union's office to bring the ac-
count up to date , but when he found that a delinquency charge of 25
cents per day had been added , he refused to pay this delinquency
charge. Hider was then referred to Blassie as the only person author-
ized to waive the fine. On May 9 Hider telephoned Blassie and told
him that he would make the payments on his loan and the interest due,
but that he would not pay the fine. Blassie told Hider that "he was
going to pay the fine," and when Blassie made certain obscene remarks,
Hider hung up the phone . On May 10 Hider was requested by letter to
appear before the union executive board which was meeting that after-
noon. Hider telephoned Hicks, the Union's business agent, and told
him that, having just received the notice, he could not attend the
executive board meeting that afternoon.
On Thursday , May 19, in accordance with his customary practice,
Hider went to the union office to obtain a workcard for the coming
weekend, but was told that there was no workcard for him. The next
day Hider again went to the union office and asked the Union 's busi-
ness agent why there was no workcard for him. Hicks thereupon
showed Hider a note which read , "Don't give Shibley Hider work.
Signed, Nick Blassie." Hider then went to Blassie 's office and asked
Blassie why he was not being allowed to work. Blassie admitted, that
"All dates hereinafter are in the year 1955, unless otherwise noted.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1547
there was work available for him, but said,`"I just don't want you to
work." Blassie then told Hider that he (Hider) was on "top of his list";
that Hider was going to pay the fine if it got to be $1,000; that he was
going to get Hider before the next executive board meeting; and that
he was going to use his connections to "get Hider" at St. Louis Uni-
versity, where he was a student, as well as at the A & P. Hider offered
to bring his Credit Union account up to date but refused to pay the
fines. Blassie became abusive and in vile and obscene language ordered
Hider out of his office. The next day, May 20, Hider went to the
Gravois store and told Tyler, his supervisor, about his trouble with
the Union over the Credit Union fine and about his inability to get a
workcard. Thereupon Tyler told him that his work was in every way
satisfactory, and that Hider "could work there as long as (he) got a
card from the union." Tyler also said that he wanted Hider to work
3 days the following weekend (Memorial Day weekend), and Hider
agreed to work the 3 days.12
On Monday, May 23, Hider filed the instant charge against the
Union. Copies of the charge were received by the Union on Thursday,
May 26. However, on Wednesday, May 25, before the Union received
copies of the charges, Hider went to the union office to obtain his re-
ferral card for the 3 days over the Memorial Day weekend that Tyler
had asked him to work and which he had agreed to do. He was in-
formed that there was no referral card for him. He thereupon called
Tyler at the Gravois store and, according to the credited testimony of
Hider, told him that he was unable to get a union card, but that "I
wanted to work," and "I was available for work." Tyler told him
"I could work there if I could get a union card." Tyler also told Hider
that on the previous Tuesday he had placed a specific request with the
Union for him to work the 3-day weekend, and that he could not under-
stand why there was no card for him."
On Friday, May 27, Hicks, the Union's business agent, and Matthews
requested Hider to turn his car over to them. Hider refused, and asked
Hicks why there had been no workcard for him on Wednesday when he
had asked at the union office for it. Hicks told him that it was only a
mistake that he had not received the card, and that it was ready for
him. However, when Hider went to the union office to get the card,
he was told that the card had been on Hicks' desk earlier in the week,
and that he should have gone into Hicks' private office to pick it up.
Hider replied that this was contrary to all customary procedure, that
he would not walk into a private office and take papers from some-
12 It appears that it was customary for Hider to notify only his employer when lie was
available for an extra day's work.
13 We do not believe, as the Union would have us believe, that Gieseke crossed Hider's
name off the list because he happened to remember that Hider's work was limited to
Friday and Saturday Credited testimony in the record indicates that Hider normally
notified only his employer when he was available for an extra day's work, and in this
instance Hider had been specifically requested by Tyler, his supervisor.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one's desk, and that when he had come for his card on the previous
Wednesday, he had not been instructed to obtain it from Hicks' desk,
nor did anyone ever tell him that it was there for him. Hider then
asked for the workcard that Hicks had assured him was available. He
was refused a referral card to the Gravois store, but was told that he
could have a referral card to some other store. Hider declined to
accept since he wanted his regular job at the Gravois store.
Thereafter, Hider again told Tyler that he was unable to obtain a re-
ferral card to the Gravois store from the Union because of his refusal to
pay the Credit Union fine. In reply, Tyler repeated his earlier state-
ment that Hider "had a job there at the Gravois store if he could get a
card from the Union," and that he (Tyler) had placed a call with the
Union on the previous Tuesday for Hider to work that 3-day weekend,
and that there was no reason why there was no card for him at the
Union on Wednesday. During that same weekend, and after the Union
had received copies of the charges Hider had filed, Hider received a
number of abusive telephone calls from Union Official Gieseke. Dur-
ing these calls, Gieseke threatened Hider with physical violence if he
continued "-around with the Meat Cutters Union" and told him that
he had "better go on back where [he] came from."
On June 3, 1955, Hider's automobile was repossessed by the Credit
Union. On June 7, Hider appeared before the union executive board.
At this meeting, Blassie recommended that Hider be suspended from
the Union. He also told Hider that his Credit Union loan was called
in the amount of $312 which included the fine of 25 cents per day.
Hider then informed the executive board that he was willing to pay
both the principal and the interest on the loan, but that he refused
to pay the fine because he felt that the fine was not justified. There-
after, the executive board, adopting Blassie's recommendation, voted
to recommend to the membership that Hider be suspended from the
Union.
On the next day Hider went to the union office and asked for and
received a referral card to the Gravois-store for the weekend of June
10-11. While working Friday, June 10, Hider asked Tyler whether
he was going to work the 6 weeks' vacation period of the 3 full-time
butchers, as Tyler had previously promised him. Tyler replied that
he had placed an order with the Union for a man but that he had not
requested Hider by name. Hider then asked Tyler why he had not
requested him by name inasmuch as he had agreed to do so. Tyler
replied that "his supervisors would not permit him to commit him-
self."
On Monday, June 13, Hider called the union office and requested a
referral card for the full-time work available at the Gravois store,
commencing that night. He was told there was no full-time work for
him, and he was refused the referral card. However, on Wednesday,
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1549
June 15, when Hider requested a referral card for his regular week-
end work at the Gravois store, he received the card. At the same time,
he asked that his name be placed in the book as being available for
full-time work for the remainder of the summer. Hider saw the clerk
in the union office place his name in the book.
On June 17, Hider closed out his loan with the Meat Cutters Credit
Union without, however, paying the fine in question, and received a
release on his car. Hider also paid his union dues through June 1955.
Thereafter he asked Gieseke to refer him to the full-time vacation
work at the Gravois store which Tyler had promised him earlier, but
Gieseke told him the job had already been filled. On June 20, Hider
again asked Gieseke to give him a card for the vacation work' at the
Gravois store, and again Gieseke told him that the job was filled. On
June 24, Hider returned to the Union and requested a referral card
for his usual weekend job at the Gravois store. Gieseke refused to give
him the card requested; instead, he gave Hider a referral card for
the Woodson Road store. A note on the card stated that the Company
had requested Hider's change of assignment. This was the first time
Hider was aware of or had been informed by anyone that his place
of employment was to be changed. Hider, however, did not report
to the Woodson Road store, which was some 10 miles from his home,
but reported to the Gravois store, which was only 31/2 miles from his
home. Upon reporting to the Gravois store, both the acting head meat-
cutter and the store manager told Hider that he could not work there
"without a card from the Union." On June 27 Hider told Tyler that
he was available to finish out the full-time work which he had pre-
viously been asked to perform, and he also asked Tyler if his work was
satisfactory. Tyler told him again that his work was satisfactory
and that he "had a job there if I could get the trouble straightened out
at the Union." On June 30 Hider contacted Leo Hanlon, the company
official in overall charge of the Gravois and other markets. Hider told
Hanlon that he wanted to work full time at the Gravois market; that
Tyler had asked him to work; that he had agreed to work; and that
he was free to do so. Hanlon asked him if he had a card from the
Union, and Hider told him he did not have a card. Thereupon, Hanlon
told him he would call Tyler first, and then call him back. Hanlon
did not call him back. Thereafter, Hider was never called to work
or employed by the Respondent Company, nor was he referred to any
job whatever by the Union.
From the foregoing, and the record as a whole, it is clear, and we
so find in agreement with the Trial Examiner, that the Respondent
Union withheld its approval of Hider's continued employment by the
Respondent Company because of Hider's refusal to pay the Credit
Union file in question, and that as a result of the Union's action the
Company discharged and refused Hider further employment at the
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gravois store including the 6 weeks' full employment which he would
otherwise have had as well as his regular weekend work. It is also
clear, and we so find in agreement with the Trial Examiner, that the
Company was aware of the reason why the Union denied Hider a work-
card, and did in fact join with the Union in the discrimination against
Hider. And since the discrimination by the Company and the Union
against Hider was pursuant to a hiring arrangement which we have
found to be illegal, it follows that by their conduct the Company and
the Union have violated Section 8 (a) (1) and (3) and Section 8
(b) (1) (A) and (b) (2) of the Act, respectively. "Moreover, apart
from the illegal hiring arrangement, the discrimination against Hider
violated the Act because Hider was discharged and denied further
employment at the instigation of the Union, not for the reason speci-
fied by the proviso to Section 8 (a) (3) of the Act, namely, failure to.
tender periodic dues or initiation fees," but for a reason beyond'the
limits of the proviso, namely, Hider's refusal to pay the Credit Union
fine. As the Supreme Court held in Radio Officers' Union etc. v.
N. L. R.B., 347 U. S. 17, "the policy of the Act is to insulate employees'
jobs from their organizational rights. Thus Section 8 (a) (3) and
8 (b) (2) were designed to allow employees to freely exercise their
right to join unions, be good, bad, or indifferent members, or abstain
from joining any union without imperiling their livelihood. The only
limitation Congress has chosen to impose on this right is specified in
the proviso to Section 8 (a) (3) . . . Congress [witheld] from unions
the power to cause the discharge of employees for any other reason." ie.
3. We also find, in accordance with the Trial Examiner, that by
the threatening and intimidating remarks of its secretary and treas-
urer, Gieseke, the Union interfered with, restrained, and coerced
Hider in violation of Section 8 (b) (1) (A) of the Act.
ORDER
Upon the entire record in this case, and pursuant-to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, The Great Atlantic and Pacific Tea Company,,
its officers, agents, successors, ,and assigns, shall :
(a) Cease and desist from :
(1) Entering into or enforcing a preferential hiring agreement or
arrangement or practice with Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 88, AFL-CIO, to discriminate
14 The Company and the Union have a wlltten contract containing a union-shop provi-
sion. The validity of that provision is not disputed
15 See also Chun King Sales , Inc., 110 NLRB 1151 ; United Brotherhood of Carpenters
and Jotiness of America, Local No. 1281 , 109 NLRB 874 , Bell Aircraft Corpo,ation,
101 NLRB 132, enfd 206 F. 2d 233 (C A 2)
THE GREAT -ATLANTIC AND PACIFIC TEA COMPANY 1551
against employees or prospective employees in violation of Section
8 (a) (3) of the Act.
(2) Encouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 88, AFL-CIO, by grant-
ing preference in hiring to union members or by discriminating in any
other manner in respect to the hire and tenure of employment, or any
term or condition of employment, except as permitted by Section 8
(a) (3) of the Act.
(3) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights under Section 7
of the Act, except as permitted by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Offer to Shibley A. Hider immediate and full reinstatement to
his former or substantially equivalent position at its Gravois Avenue
store, without prejudice to his seniority or other rights and privileges.
(2) Jointly and severally with Respondent Amalgamated Meat
Cutters and Butcher Workmen of North America, Local 88, AFL-CIO,
make whole Shibley A. Hider in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(3) Preserve and make available to the Board or its agents, for
examination or copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other
records necessary or useful to analyze the amount of back pay due and
the rights of employment under the terms of this Order.
(4) Post at all its markets within the St. Louis, Missouri, area,
copies of the notice attached hereto marked "Appendix A." 18 Copies
of said notice, to be furnished by the Regional Director for the Four-
teenth Region, shall, after being duly signed by the Respondent
Company's authorized representative, be posted by the Company im-
mediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(5) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent Company has taken to comply herewith.
II. The Respondent, Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 88, AFL-CIO, its officers, repre-
sentatives, and agents, shall :
"In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Cease and desist from :
(1) Entering into or enforcing a preferential hiring agreement or
arrangement or practice with The Great Atlantic and Pacific Tea
Company, its officers, agents, successors, or assigns, or with any other
employer," to discriminate against employees or prospective em-
ployees in violation of Section 8 (a) (3) of the Act.
(2) Causing or attempting to cause The Great Atlantic and Pacific
Tea Company, its officers, agents, successors, or assigns, to discriminate
against employees or prospective employees in violation of Section
8 (a) (3) of the Act.
(3) In any manner restraining or coercing employees of The Great
Atlantic and Pacific Tea Company, its successor or assigns, or em-
ployees of any other employer, in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement permitted by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(1) Notify in writing The Great Atlantic and Pacific Tea Company
and Shibley A. Hider that the Union has no objection to the hire or
continued employment of the said employee at the Gravois Avenue
store of the Company.
(2) Jointly and severally with Respondent, The Great Atlantic and
Pacific Tea Company, make whole Shibley A. Hider for any loss of
earnings suffered by reason of the discrimination against him in the
manner set forth in the section entitled "The Remedy."
(3) Post at all its business offices within the St. Louis, Missouri,
area, copies of the notice attached hereto marked "Appendix B." is
Copies of such notice, to be furnished by the Regional Director for
the Fourteenth Region, shall, after being signed by a representative
of said Union, be posted by it immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure that
such notices are not altered, defaced, or covered by other material.
(4) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, as to what
steps it has taken to comply herewith.
MEMBERS MURDOCK and JE, NKINS took no part in the consideration
of the above Decision and Order.
"The restrictions placed on the Respondent Union are not intended to apply to any
employer over whom the Board will not assert jurisdiction . Daugherty Company, Inc.,
112 NLRB 986.
18 See footnote 16, supra.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1553
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT give effect to our agreement or arrangement or
practice with Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 88, AFL-CIO, or to any extension,
renewal, modification, or supplement thereof, or enter into any
agreement or arrangement or practice granting preference in
hiring to members of the above-named Union, except to the extent
permitted by Section 8 (a) (3) of the Act.
WE WILL NOT encourage membership in such labor organiza-
tion by discriminating in the aforesaid, or in any other manner,
with respect to the hire and tenure of employment, or any term
or condition of employment in violation of Section 8 (a) (3) of
the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
under Section 7 of the Act.
WE WILL offer to Shibley A. Hider immediate and full rein-
statement to his former or substantially equivalent position at
the Gravois Avenue store, without prejudice to any seniority or
other rights and privileges previously enjoyed, and jointly and
severally with Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 88, AFL-CIO, make him whole for
any loss of earnings suffered by reason of the discrimination
against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of the above-named Union or any
other labor organization, except to the extend that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act. -
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other Inateri al.
423784-57-vol 117-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS
OF AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, LOCAL 88, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT give effect to our agreement or arrangement or
practice with The Great Atlantic and Pacific Tea Company, or to
any extension, renewal, modification, or supplement thereof, or
enter into any agreement or arrangement or practice granting
preference in hiring to our members, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause the above-named Em-
ployer, its officers, agents, successors, or assigns, to discriminate
against its employees in the aforesaid or in any other manner with
respect to their hire or tenure of employment, or any term or con-
dition of employment, in violation of Section 8 (a) (3) of the
Act.
WE WILL NOT restrain or coerce employees of such Employer
in the exercise of rights under Section 7 of the Act.
WE WILL jointly and severally with The Great Atlantic and
Pacific Tea Company make whole Shibley A. Hider for any loss
of earnings suffered by reason of the discrimination against him,
and we will notify the above-named Company and the above-
named employee that we have no objection to the hire or continued
employment of Shibley A. Hider.
AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH
AMERICA, LOCAL 88, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings, brought under Section 10 (b) of the Act, were heard at St.
Louis, Missouri , on October 24 and 25, 1955, pursuant to due notice to all parties 1
1In this report Respondent Amalgamated Meat Cutters and Butcher Workmen of
North America, Local 88, AFL, is referred to as the Union or the Local ; Respondent The
Great Atlantic and Pacific Tea Company, as the Company ; and these two parties jointly
as the Respondents ; Shibley A. Hider, as the Charging Party ; the General Counsel of
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1555
The separate complaints, dated September 12, 1955, were issued by the General
Counsel and duly served on the Respondents. Each complaint was based on a charge
duly filed by Shibley A. Hider, a member of the Union, and a former employee of
the Company. On the same date the Regional Director for the Fourteenth Region
(St. Louis, Missouri), issued an order consolidating the cases and giving notice of
hearing to the Respondents. The complaints allege in substance that (1) the Com-
pany and the Union have maintained and enforced an oral agreement and under-
standing whereby employees and prospective employees at the Company's meat-
markets must be approved for employment by the Union before they are employed
by the Company; and (2) the Company refused to employ, and terminated the
employment of, Shibley A. Hider, because the Union withheld its approval of, or
authorization for, his employment by the Company; and by such conduct each of
the Respondents violated the Act.
Each Respondent duly filed an answer denying the commission of the alleged
unfair labor practices.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence bearing on the
issues, to argue the issues orally upon the record, and to file briefs and proposed
findings. The parties waived oral argument, but presented well-reasoned briefs
which have been considered.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
In the course of the hearing the parties executed a written stipulation setting forth
certain facts as to the nature and extent of the Company's business. The stipulation
stated that the Company is a New Jersey corporation engaged in the nationwide
purchase, sale, and distribution of groceries, meats, and produce, with an office for
the St. Louis metropolitan area located at 1625 South Grand Avenue in St. Louis,
Missouri. Included among its many retail grocery and produce stores is a retail
establishment located at 4719 Gravois Avenue, St. Louis, the store involved herein.
In the course and conduct of its business operations in the 12-month period prior
to the hearing, the Company had caused substantial amounts of groceries, meats, and
produce valued in excess of $10,000,000 to be transported, sold, and shipped to its
establishments in the State of Missouri from points located outside that State.
Upon the stipulation, and the evidence as a whole, I find that the Company was
engaged in interstate commerce within the meaning of the Act, at all times pertinent
hereto.2
II. THE LABOR ORGANIZATION
The parties likewise stipulated, and I find, that the Union is a labor organization
within the meaning of Section 2 (5) of the Act.
It was also stipulated by the parties that the Union is the representative of the
Company's butchers and meatcutters, and that the Company and the Union have a
written contract, covering the usual subjects of wages, hours, and other conditions
of employment. The contract contains a union -security provision which requires
employees of the Company to maintain membership in the Union after 30 days of
employment. The contract in effect at the time of the hearing became effective
October 1, 1953, and was to expire on October 30, 1955. There was no claim by
any party that the union-security provision of the contract was not proper or
lawful.
In. THE UNFAIR LABOR PRACTICES ; THE UNDISPUTED FACTS
A. The persons involved
As has been noted previously the central figure around whose employment this
controversy revolves is Shilbey A. Hider, the Charging Party. Hider became a
member of the Union in October 1949 by transferring his membership from a sister
local in Cleveland, Ohio, when Hider moved from that city to St. Louis for the pur-
pose of continuing postgraduate studies in chemistry at St . Louis University. At that
institution he was also employed as an instructor in the chemistry department. To
augment the salary he received as an instructor from the university, he worked as a
part-time meatcutter at various meatmarkets in St. Louis. Beginning in February
the Board and his representative at the hearing, as the General Counsel; the National
Labor Relations Board, as the Board , and the Labor Management Relations Act of 1947,
as amended , as the Act.
2 Jonesboio Grain Drying Cooperative , 110 NLRB 481.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1955 and continuing until Hider's altercation with Nicholas Blassie, president of the
Union, Hider worked continuously, without incident, as a part-time meatcutter at
the Company's Gravois Avenue store. At the hearing the General Counsel presented
as witnesses, in addition to Hider, three of his associates , all instructors or pro-
fessors at St. Louis University, who testified that they accompanied Hider on certain
occasions when he talked to representatives of the Union or the Company. These
witnesses were Dr. Leo F. Hohnstedt, assistant professor of chemistry; Angelo Pellic-
ciotto, instructor in chemistry and graduate student, and Robert Galiano, also an
assistant instructor and graduate student. Each of these corroborated some feature
of Hider's testimony.
The union representatives involved in the controversy are Nicholas Blassie, the
president of the Union, who is also treasurer of Meat Cutters Credit Union, a finance
and loan agency affiliated with the Union. The operations of both the Union and the
Credit Union are conducted from offices in a building owned by the Union located
on Venderventer Street in St. Louis. It is undisputed that the principal officers of the
Union are the principal officers of the Credit Union.3
It is the General Counsel's claim that an altercation between Hider and Blassie, in
regard to payment of a loan which Hider had obtained from the Credit Union, was
the trigger mechanism for the discrimination against Hider. Other union repre-
sentatives herein involved and who testified are August Gieseke, who is secretary
and treasurer of the Union and chairman of the credit committee of the Credit
Union, Llorell Hicks, a business agent, and Loretta O'Leary, an employee of the
Union.
The principal representatives of the Company herein involved are Robert Tyler,
the head meatcutter at the Company's Gravois store, and Leo Hanlon, the superin-
tendent of the Company's south side meatmarkets. Neither of these men testified
at the hearing. The only representative of the Company who testified was George
Swast, who occupies the position of superintendent of all the Company's meat
operations in the St. Louis district, and who was called as a witness for the General
Counsel.
At the hearing neither the Company nor the Union denied the representative author-
ity of the officers or officials named above.
B. The hiring procedure of the Company and Union
As noted previously Hider began his employment as a part-time meatcutter at the
Gravois store during February 1955. His hours of work were Fridays 5-9 p. m.;
Saturdays 9 a. m-7 p. in. At that store he worked under the direct supervision of
Martin Tyler, the head meatcutter. His employment was pursuant to a practice or
system which Hider and representatives of the Union and the Company described in
their testimony. As to how the practice or system worked, there is no dispute. By
the practice, although Hider was a regularly employed part-time employee who
worked on Friday and Saturday each week at the same job at the same store, he
was required to obtain a work referral from the Union for each period of weekend
employment. By the practice, Tyler notified the Union early in each week that he
would require a part-time meatcutter for the weekend, and asked that Hider be
referred. Each week, on approximately Wednesday or Thursday, Hider went to the
union hall, where he asked for and received from one of the girl clerks a referral
card which assigned him by name to the Gravois store. At his customary starting
time Friday, Hider presented himself at the Gravois store, gave his referral card to
Tyler, and began his customary duties. All parties to this proceeding concede that
Hider was a qualified butcher, and that his work in all respects was satisfactory to
the Company. However, during each week, to obtain his regular weekend employ-
ment, he was required to submit to this system of referral.
George Swast, meat superintendent of the Company, testified that during the 8
years of his employment by the Company, the hiring procedure of the Company had
been unchanged-when the Company needed butchers it called the Union, who sup-
plied the required number of men. When the men appeared for work they presented
a referral card from the Union. The witness explained that the workcard was re-
quired to identify the man as one sent by the Union at the request of the Company.
Swast testified that the Company made no inquiry as to the man's membership or
nonmembership in the Union-if he had a referral card, that was the sole requirement.
Swast said that the Company had no written or verbal agreement with the Union
to hire men only through the Union, or to hire only union members. He said that
he had never discussed that subject with representatives of the Union, but that the
3 meat Cutters Credit Union is hereafter referred to as the Credit Union.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1557
Company used this hiring procedure because it found it to be a convenient method of
hiring competent butchers . He said that the Company was free to hire men directly
from the street or through any other avenue, but pursued the practice because it had
found that the Union was the best source of competent butchers . He said that the
Union was under no contractual duty to supply the Company with the men requested.
However, when the Company had requested a man from the Union , it would not
hire a man from other sources for the same job.
In the course of his examination , the General Counsel confronted Swast with an
affidavit that Swast had previously given to a field examiner of the Board. He re-
affirmed his prior statement that the Company would not put a man to work unless
he had a workcard from the Union , and that during the 8 years of his employment
with the Company "it had always been the practice of the company to call the union
when a journeyman meat cutter is needed ." Swast testified that the same procedure
was followed to obtain either part -time or full -time meatcutters.
In his testimony on this subject , Nicholas M. Blassie, president of the Union, said
that the Union dispatched both union and nonunion men to employers requesting
men, on a nondiscriminatory basis, that the system was maintained and run by the
Union as a service to employers . In the course of his examination , however, Blassie
admitted that, everything being equal , union members were dispatched before non-
union butchers . August Gieseke, secretary and treasurer of the Union , testifying
on the same procedure , said that it was the practice of the Union to give available
jobs to its members as far as possible.
C. Hider's loan from the Credit Union ; his altercation with Blassie as to payment;
the sequence of events
There is no dispute between the parties as to the background facts, the sequence
of events which comprise the controversy , or the written correspondence between
the parties . The disagreement of the parties relates entirely to what was said and
done by the participants in various conferences , and to the reasons or motives which
prompted the conduct of the parties. The important conflicts of testimony will be
dealt with later herein . However, Hider's testimony , which I have credited in full,
furnishes a sequence of events of the entire controversy . The summary which follows
is based on that credited testimony.
In the fall of 1953 Hider borrowed $575 from the Meat Cutters Credit Union of
which Blassie , the president of the Union, is secretary and treasurer , and gave the
Credit Union a lien on his car as security . Hider made regular monthly payments
on the loan until March 17, 1955,4 on which date he found himself strapped for
money. On March 20 a payment would be due on his car, so on March 17 Hider
went to the office of the Credit Union and asked Mrs. Wand , an employee of the
Credit Union, if he might be permitted to forego paying the principal installment, and
pay only the interest on the loan. Hider had been permitted to do that on an
occasion in the past, and had subsequently made up the principal payment, so on
March 17 he sought a similar permission . On that date his account was up to date..
Mrs. Wand informed Hider that she could not grant his request for deferment of
the principal payment, that Blassie was the only one with authority to grant such
a request . Hider attempted in the next few weeks to see Blassie at the union office
but found that Blassie was unavailable. Meanwhile , he worked weekends at the
Gravois store.
During the last week in April, Hider finally succeeded in seeing Blassie at his
office. Hider explained to Blassie that he had attempted , without success, to see
him for 4 or 5 weeks to secure approval of this request that he be allowed to pay
only the interest on his loan, and forego the principal payment. Blassie asked
Hider if the latter was trying to give him a quick alibi . He called Hider a liar and
said that Hider had not tried to see him. Hider told Blassie that he would receive
his pay from the university in about a week , and that he would bring his account up
to date at that time . Blassie took Hider 's account book, and said he would consider
the matter.
About a week later, Hider went to the office of the Credit Union and told Mrs.
Wand that he wanted to bring his account up to date by the payment of both the
principal and interest on the loan . Mrs. Wand computed the total owed by Hider
and, in doing so, included in the computation ,a fine of 25 cents per day for delinquent
payment of the account . Hider told Mrs. Wand that he refused to pay the fine of
25 cents per day, Whereupon Mrs. Wand referred Hider to Blassie, stating that he
was the only person authorized to permit the payment without payment of the fine.
4 All dates in this section of the report are in the year 1955 , unless noted otherwise.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Hider went to see Blassie he learned that Blassie was out of town , so he con-
ferred with Mathews, president of the Meat Cutters Credit Union and asked per-
mission from Mathews to pay the interest and principal , but not the fine. Mathews
informed Hider that he must see Blassie on such a matter.
On May 9 Hider telephoned Blassie and told him that he would make the pay-
ments on his loan, including principal and interest, but would not pay the fines.
Blassie then told Hider that "he was going to pay the fine," and he obscenely asked
who Hider thought he was, trying to get out of paying the fine . Upon hearing
Blassie's obscene language , Hider hung up.
On the following day, May 10 , about 11 a . in., Hider received the following letter
on the stationery of the Meat Cutters Credit Union , signed by Nicholas N. Blassie,
president , Meat Cutters Union Local 88. The letter addressed to Hider reads as
follows: (General Counsel 's Exhibit No. 3.)
Please be advised that you are hereby requested to appear before the execu-
tive board at their meeting, Tuesday, May 10 , 1955 , at one thirty p. in. This is
of the utmost importance.
Hider immediately telephoned the union office and spoke to Business Agent Hicks,
informing him that he had just received the notice and could not attend the meeting
that afternoon . Hicks informed Hider that Blassie was the only one authorized to
excuse Hider 's absence from the executive board meeting . Despite that, Hider did
not attend the meeting.
On May 18, Hider received a second letter from the Credit Union , signed by
Nicholas N. Blassie, treasurer, Meat Cutters Credit Union . This letter addressed to
Hider reads as follows: (General Counsel's Exhibit No. 4.)
Please be advised that unless you come to our office and' bring your account
up to date no later than May 25th , 1955 , it will be necessary for us to take
further steps and present your case to the Board of St . Louis University. We
trust you will not make this action necessary.
On Thursday , May 19 , Hider went to the union office to obtain his workcard
for the coming weekend , but on this occasion he was informed by the employee
who had charge of the cards that there was no workcard for him . On the following
day Hider again went to the union office and talked to Hicks, the business agent. He
asked Hicks why there was no workcard for him . Hicks showed Hider a note which
read , "Don't give Shibley Hider work . Signed , Nick Blassie ." Hider thereupon
went to Blassie's office and asked Blassie why he wasn 't being allowed to work.
Blassie first said that "there was no work available." Hider replied , "You know this
is not true ." Blassie then answered , "Yes, this is not true, I just don 't want you to
work." Blassie then told Hider that he didn't like his attitude , and that it was
the worst of anyone in the Union ; that he had placed Hider on the top of his11- list," and that Hider was going to pay the fine if it got to be $1,000; that
Blassie was going to get Hider before the next executive board meeting of the Union;
and that Blassie had connections at St . Louis University and was going to get him
there, as well as at A & P.
Hider again offered to bring his account up to date but refused to pay the fines,
and he informed Blassie that if Blassie wasn't so stubborn they could settle the matter
then and there, as he had received his pay from the university and could bring his
account up to date. Blassie then became abusive , and in vile and obscene language
ordered Hider out of his office . Hider told Blassie that he would leave , but that
he didn't have to take that kind of crap from him or anyone else.
About 8 p. in. on the same day (May 20) Hider talked to Tyler, the head meat-
cutter at the Company's Gravois store. He told Tyler about his difficulties with the
Union, and his inability to get a workcard. In reply to an inquiry by Hider, Tyler
said that his work had been satisfactory in every way, and that Hider could work
if he could get a workcard from the Union. Tyler also said that he wanted Hider
to work 3 days the following weekend, which was the Memorial Day weekend, and
Hider agreed to work the 3 days.
Also on May 20, the Meat Cutters Credit Union, by Nicholas N. Blassie, treasurer,
dispatched another letter to Hider. This letter reads as follows: (General Counsel's
Exhibit No. 5.)
Please be advised that the committee, in a special meeting, voted that you
bring the car out to our parking lot on Monday morning May 23, 1955, and
relinquish the keys to Mrs. Wand in the Credit Union office. This is an official
notice and must be complied with on date given.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1559
D. The filing of charges
On Monday, May 23, Hider filed the instant charge against the Union with the
Regional Office of the Board. Copies of the charge were received by the Union on
Thursday, May 26.5
On Wednesday, May 25, Hider again went to the union office and asked the
employee in charge of the referral cards for his workcard for the weekend of May 27,
but she informed him that there was no card for him. On this occasion Hider was
accompanied to the union hall by Angelo Pellicciotto. Upon receiving word that
there was no card for him, Hider called Tyler at the Gravois store, and told him that
he was unable to get a union card, but that he was available for work. Tyler again
assured Hider that his work was satisfactory in every way and that there was work
for him at the store, if he could get a union card. Tyler also said that he had placed
an order for Hider at the Union on Tuesday of that week, and that he could not
understand why there was no card for Hider.
On Friday, May 27, Business Agent Hicks and Mathews, president of the Meat
Cutters Credit Union, appeared at the chemistry department of St. Louis University
where Hider was engaged in academic work. They requested that Hider turn his
car over to them. Hider asked them if they had any legal papers upon which they
based their request. They replied that they had none. Hider then asked Hicks why
there was no workcard for him on Wednesday of the previous week. Hicks said
that "there had been one there all the time," and it was only a mistake that he had
not received the card. Hider refused to surrender his car to the men, and they left.
Hider then went to the union office. Upon inquiry, Miss O'Leary, a clerk, informed
him that there had been a mistake concerning his card, and showed him a referral
card with his name on it. Miss O'Leary said that the card had been in Hicks'
private office when Hider was at the office on his previous visit, and that Hider
should have gone into Hicks' private office and picked it up. Hider said that
previously his card had always been at the clerk's desk, and that he would not enter
anyone's private office and take papers, except when invited or told to do so by the
person in charge. Hider then asked Miss O'Leary for a card for the Gravois store
for that weekend, the May 27 weekend. She refused to give him a card, saying that
she had sent another man to that job. After making a phone call to Gieseke, the
secretary-treasurer of the Union, she told Hider that she could give him a job
someplace else. Hider said that he wanted his own job at the Gravois store, and
would not accept a job elsewhere.
Hider left the union hall and went to the store and talked to Tyler. He told
Tyler that he was available for work, but that he could not get a card from the
Union because of his refusal to pay the fine. Tyler again said that Hider's work
was satisfactory in every way, and that he had a job at the store, if he could get a
card from the Union. Tyler also said that he had placed a call with the Union on
Tuesday for Hider to work the May 27 weekend, and that he could see no reason
why Hider did not receive a card at the Union when he went there. This conver-
sation was corroborated by Pellicciotto, who was present.
Beginning on the evening of Friday, May 27, and continuing through the early
morning hours of May 28, Hider received a number of telephone calls. The person
making these calls did not identify himself to Hider, but Hider recognized the voice,
which he had heard on many occasions during his 6 years' membership in the Union,
as that of August Gieseke, secretary-treasurer of the Union. These calls were
received at Hider's residence at approximately 7 p. in., 1:30 a. in., 2:30 a. in.,
6 a. in., 7 a. in., and 8 a. in. The calls were extremely profane, obscene, and
abusive, and threatened physical violence to Hider. Dr. Hohnstedt also testified,
corroborating to some extent Hider's receipt of these calls. He was a roommate of
Hider and actually answered the phone on two occasions. He could not identify
the voice.
On June 3, 1955, Hider was unable to locate his automobile, but finally learned
from the police that it had been repossessed by the Credit Union.
Also, during the same week Hider went to the union offices and was given a
referral card for his job, and worked the weekend at the Gravois store.
On June 7, Hider appeared before the union executive board pursuant to the
notice contained in the letter of May 20.6 At this meeting Blassie informed Hider
and the members of the executive board that Blassie did not like Hider's attitude, and
5 General Counsel's Exhibit No. 1-D
'6 General Counsel's Exhibit No. 6.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not think the other butchers in the Union would want to work with Hider.
Blassie recommended that Hider be suspended from the Union . Blassie also in-
formed Hider that he was calling his loan in the amount of $312, which included
principal , interest , and the 25-cents-per-day fine. Hider told the executive board
that it was no crime to be short of money, and that he was willing to pay both
the principal and the interest on his account , but that he refused to pay the fine,
because he felt the fine was not justified . The executive board adopted Blassie's
recommendation and voted that Hider be suspended from the Union. On the next
day, Hider phoned Gieseke and asked him what the suspension meant. Gieseke
said that the executive board had recommended Hider's suspension, but that the
membership had to vote his actual suspension . Hider immediately went to the union
offices, and asked for and received his referral card for work at the Gravois store
for the following weekend, June 10.
While at work on the June 10 weekend Hider asked Tyler about his working the
6-week vacation period of the 3 full-time butchers. Tyler had requested Hider to
work during these vacations on several previous occasions and Hider had agreed to
work the vacation periods, since his academic work was finished for the year. Tyler
replied that he had placed an order with the Union for a man, but that he had not
requested Hider by name. Hider asked Tyler why he had not requested him by
name as he had previously agreed to do. Tyler replied that "his supervisors would
not permit him to commit himself."
On June 10 Hider received another letter from the Credit Union by Nicholas N.
Blassie, treasurer, dated June 9, concerning the payments on his car. This letter
reads as follows: (General Counsel's Exhibit No. 7.)
Since you left us no alternative and we now hold your car, a 1949 Buick,
we hereby give you final notice that as of this date we will hold the automobile
for 10 days, namely, until June 19, 1955, to give you an opportunity to redeem
same. If, however, you have made no effort to reclaim same by that date we
will then proceed to sell same to partially take care of your indebtedness to our
Credit Union.
We trust you will make every effort to reclaim your car within the given time.
On June 13, Hider phoned the union office and talked to Miss Kennedy, a clerk.
Hider requested a card for the full-time work during the vacations at the Gravois
store, which would begin that night. Miss Kennedy told him there was no full-time
work for him. On the same day Hider consulted Paul Roberts of the Missouri
Credit Union League, to whom he explained his difficulties with the Union and
the Credit Union. Roberts agreed to discuss the matter with officials of the Credit
Union.
On June 14, Meat Cutters Credit Union, by Nicholas M. Blassie, treasurer, itemized
by letter the charges that Hider had to pay in order to reclaim his car, as follows:
Principal $288.50, interest $8.67, fines $17, towing $31.25, storage 25 cents per day,
$3 25; total due $348.67.7
On June 15, Hider received the last-mentioned letter, and went to the union
offices. Miss Kennedy gave Hider a card for work at the Gravois store for the
weekend of June 17-18, and Hider also asked Miss Kennedy to place his name in the
book as being ,available for full-time work for the rest of the summer, as his academic
work was finished for the year. He saw her put his name in the book.
On June 17, Hider closed out his loan with the Meat Cutters Credit Union and
received a release on his car, without payment of the fines. At this time, Hider
received a letter in the form of a receipt signed by Nick Blassie, treasurer, which
reads as follows:
Final payment on loan for reclaiming Hider 's car: 8
Principal $288.50, Interest to date $10.09, Towing 31.25, Storage $3.25, Total
$333.09.
Title released to Shibley A. Hider as of this date, June 17, 1955.
Missouri Credit Union League asked us and we agreed to waive all fines in
this case.
(This as per Mr . Paul Roberts)
7 General Counsel's Exhibit No 8.
s General Counsel's Exhibit No. 9.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1561
Also, on this date, June 17, Hider paid his union dues through June. After settling
the matter of his loan, Hider phoned August Gieseke, secretary-treasurer of the
Union, and requested that he be given the full-time vacation work which Tyler had
previously promised to him. Gieseke informed him that the job had been filled.
Again, on June 20, Hider asked Gieseke for a workcard for the vacation period, and
again Gieseke informed Hider that the job had been filled.
On June 21, 22, and 23, Hider made frequent attempts to get in touch with Leo
Hanlon, superintendent of the Company's south side markets, but he was unable
to contact him at either his home or at the Company's personnel office, even though
he left his name and telephone number and requested that his call be returned.
On June 24 Hider again went to the Union and requested a card for his usual
weekend job at the Gravois store, but Gieseke gave Hider a card for a different store,
the Woodson Road store. A note on the card stated that the Company had requested
that Hider be assigned to the Woodson Road store. Instead of reporting to the
Woodson Road store, Hider reported at his regular job at the Gravois store, but he
was informed by the acting head meatcutter, who temporarily occupied Tyler's job,
that Hider could not work at the Gravois store without a card from the Union as-
signing him to that store. Hider had not previously been informed by the Company
of this change in his place of employment. The first he had heard of it was when
he was given his workcard referring him to the Woodson Road store Thereafter
Hider was not called to work by the Company, nor assigned any work by the Union.
On June 27 when Tyler returned from his vacation, Hider had another conversa-
tion with him. Hider told Tyler that he was available for work. Tyler again told
Hider that his work was satisfactory and that he could work at the Gravois store, if
he would get his trouble straightened out with the Union. On the occasion of this
last conversation Robert Galliano accompanied Hider.
On June 30 Hider finally talked with Leo Hanlon. Hider asked again for work,
and Hanlon replied by asking Hider if he had received a card from the Union. When
Hider informed Hanlon that he had been unable to secure a card, Hanlon informed
him he would call Tyler, and then call Hider back. At the date of the hearing Hider
had not heard from Hanlon. Thereafter, Hider was not employed by the Company.
E. The Union's defense
It is the contention of the Union that the Union did not discriminate against
Hider; that his failure to obtain a referral card on the specified occasions was
Hider's own fault; and that Hider was the victim of his overactive imagination,9
which saw discrimination in the innocuous conduct of the Union.
Nicholas M. Blassie, previously referred to, testified on behalf of the Union. He
testified that the Meat Cutters Credit Union is a corporation operating under the
laws of the State of Missouri, and is an organization separate and apart from the
Union. Use of the facilities of the Credit Union is restricted to members of the
Union and their families, and the operation of the Credit Union is "completely
divorced" from the Union, except that the principal officers of the Union are
principal officers of the Credit Union. Both organizations operate from a building
owned by the Union on Vanderventer Street in St. Louis.
Blassie testified that in April Hider came to his office and requested that Blassie
accept an interest payment from him, and allow him time to pay the principal
payment, then due, on his loan. Blassie told Hider that under the circumstances,
the Credit Union would not accept any more payments of interest only from him;
that the Credit Union expected him to pay his arrears, and keep his account current.
Blassie explained in his testimony that under the rules of the Credit Union in
effect in April 1955, he could not accept the payment of interest without the
principal payment. In November 1954, the rules of the Credit Union had been
changed and all members had been notified that payments of interest only would
no longer be accepted. Blassie said that Hider knew of the change in rules because
on February 1, 1955, Hider had paid a fine of $1.50 for a delinquency on his January
payment.
Blassie testified that he also had a discussion with Hider on May 20. He initiated
this conference by instructing his secretary to notify Hider that Blassie wanted to
see him. He did not write the message, nor did he sign the message. He simply
told one of the girls, "When Hider comes in, I want to see him, give him a note to
that effect." Approximately at noon, Friday, May 20, Hider came to Blassie's
9 In the Union's brief the term used is "paranoia "
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office. On this occasion Hider asked Blassie about his loan, and Blassie told him-
that the Credit Union expected the payment. Hider said that he could not pay,
and that, if Blassie wanted, the Credit Union should take the car. Blassie had
advance information from one of the Credit Union employees that Hider's auto-
mobile was worth only $75, and Blassie knew that Hider's loan amounted to $300.
When Blassie questioned him about the loan, Hider said, "Well, you'll just have to
take the car." Whereupon Blassie said, "Oh, is that the way it is, you want me to
take the car; it's worth 75 bucks, you want me to take the automobile." Blassie
testified that then one word led to another, and Hider left.
Blassie also testified that he talked about the loan to Hider on a second occasion,
and that it was his recollection that he had left a note for Hider on this occasion
also. When Hider came to his office it was around 1 o'clock. Hider came in the
office and asked Blassie why he did not have any work. Blassie said to Hider, "Go
upstairs, that's where you belong." Blassie then explained in his testimony that
he did not have anything to do with the issuance of workcards, that his principal
duties were of an executive nature in the Union and in the Credit Union, and that
he had nothing to do with the referral of employees.
When asked what happened at this meeting with Hider, Blassie said that "After
Hider got heated about the argument Hider proceeded to read him off." For his
part, Blassie asked Hider to pay up his loan; then Blassie testified as follows on
his direct examination:
Q. Did you ask him to pay the loan?
A. Yes, I asked him to pay his loan up or I could proceed to contact the
officials at the university and I would write them a letter by the fact that we-
knew that this lad here was a student going to school there and we knew that
over a period of four years that we were his life-line for employment. He
could continue on with his studies. That is the only way he could exist. We
knew the background of him and we knew all of that and nothing prior to this
day of this argument that he run to the Prosecuting Attorney's office to get
somebody-run to somebody in the university to call up another; run and call
up another assistant; he run from pillar to post to get to me so I wouldn't call
the loan for the car, so he knows these things.
Q. Now, did you tell him at that time that you would contact the university
and complain to the university about his failure to pay this loan?
A. I told him I was going to contact the university and report to them there
his credit union obligations.
Q. Did you tell him that you would report the matter to the A and P as
well?
A. No, I never told him I would report the matter to the A and P.
Q. Did you ever tell him you would get his job at the St. Louis University'
and at the A and P?
A. Absolutely not.
At other places in his testimony, Blassie testified that he did not recall whether
Hider asked him why he was not letting Hider work, and Blassie denied that he
ever told Hider that no work was available for him. Blassie testified that the
subject of Hider's work the weekend of May 20 was not mentioned in the conver-
sation of that date. He charged that Hider had "concocted that because they
never discussed work at all"; they discussed only the loan.
Blassie admitted that he told Hider that he did not like Hider's attitude and that
it was the worst of anyone in the Union. Blassie denied that Hider offered to pay
the principal and interest, but not the fine. Blassie said that the interview with
Hider was terminated when Blassie told Hider to get out of his office. When asked
why he had ordered Hider out of his office, Blassie replied as follows:
A. Because he had become very obnoxious. And he said to me, "I don't
have to take none of your crap." I'm assuming he said this under his breath
and called me a son-of-a-bitch.
Mr. TRENT: I'm objecting on the grounds-you wait. When I make an
objection you wait until the Judge has ruled. I'm objecting as to what he
assumes.
A. (By Mr. Gruenberg.) Did you hear him say that he wasn't going to,
take any crap from you?
A. Oh, yes, sure he made the statement.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1563
Q. And didn't you hear him muttering something under his breath?
A. Yes.
Q. Can you tell me if you heard him what that mutter was?
A. It sounded,to me like calling me a son-of -a-bitch.
Q. What did you do as a result?
A. As a result of that I jumped up from behind my desk and tripped over
my dictaphone wire and by that time Hider was out of the building and he
hasn't been back to the building since that day with the exception that when he
was instructed to come back to the building to appear before the Executive
Board and also for an appointment by Mr. Gieseke; that 's when he came back.
Blassie denied that he ever gave orders to any of the business agents of the Union
not to give Hider a referral.
In the course of his cross -examination Blassie testified that he told Hider that he
knew the president of St. Louis University , Father Riner , and that he didn 't think
Father Riner would like to see a report come from the Credit Union , and that he
would take the matter up with St. Louis University, and that he hoped Hider would
not make it necessary for him to do that.
As to the settlement of Hider's account , Blassie stated that Mr. Roberts of the
Missouri Credit Union League, to which the Credit Union belonged , requested that
the fine be remitted in view of the fact that Hider would be compelled to pay towing
and storage charges of $30 . 50. The Credit Union agreed to comply with Mr.
Roberts' request on that point.
August Gieseke , secretary and treasurer of the Union, testified that the member-
ship of the Union is around 3,000 men and that the number of part -time employees
registered with the Union varies from week to week from 78 to 125. He also denied
that the Union had any agreement, oral or written, with the Company that only
men referred by the Union would be hired . When Gieseke was asked the reason
for the Union maintaining the referral procedures in regard to employees of the
Company, and other companies , he testified as follows:
A. Well, there are several reasons. One of the reasons is it is convenient for
the employer and it is also a courtesy shown toward the union . Number two,
when they receive these referral cards, it specifies the number of hours they are
supposed to work and the amount they are supposed to receive . And the
reason for that card is we keep a record of it to keep the employer from chiseling.
We have the health and welfare program that required employers to pay $20.93
on the employee who works 20 hours a week per month.
As to Hider's failure to be referred to the Gravois store on the Memorial Day
weekend , Gieseke testified that the Union received an order for a part-time meat-
cutter for Thursday , Friday, and Saturday of that weekend . The referral list 10
for that weekend shows that the order was received by the Union, and that the one
receiving the order noted that the Gravois store was Hider's place of employment.
Gieseke testified that on Thursday morning he noticed that the order called for
Thursday work, and that Hider had been assigned to the job. He had always under-
stood that Hider 's availability was limited to Friday and Saturday , so he instructed
Business Agent Hicks to take Hider 's name off that job, and to send someone else
to the Gravois store . He did not learn of Hider 's availability for work on that
Thursday until about 3:30 on the following day, when , in the course of a phone call,
Miss O'Leary told him that Hider was at the office demanding a card for Friday and
Saturday at the Gravois store . He told Miss O'Leary that they were not going to
take the man off the job, and to give Hider some other job. Miss O'Leary said she
had offered Hider another job but that he insisted on the job at the Gravois store.
Gieseke also testified that during the week of June 25 he had a phone call from
Swast, who requested that Hider be assigned to the Woodson store instead of the
Gravois store . Gieseke said that he did not know why the Company requested a
change in Rider 's place of employment , but that as far as he knew the Union had
nothing to do with the change . When Hider appeared that weekend, he was given
a referral card for the Woodson store, but he did not show up at that location.
On cross-examination Gieseke was questioned about a fine mentioned on the
printed referral cards. The printed cards read as follows: 11
io Union's Exhibit No. 3
11 Union's Exhibits Nos. 1 and 2.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Front of Card-(Union Exhibit No. 1)
[Insignia of Here Is My Card-Where Is Yours?
Union]
NOTICE-Failure to have a Working Card in your
possession at all times or renew same day when chang-
ing hours , will subject you to a fine of not less than
$25.00 , first offense.
PR. 3-4300
Meat Cutters' Local No. 88
Shibley Hider
report for work at
At 4719 Gravois
A&P
is ordered to
5/21, 1955 Aug. Gieseke Secy.-Treas.
(Card is about 21/4" by 3%" in size)
Back of Card
Monday ------- -------M.
Tuesday ------- -------M.
Wednesday ------- -------M.
Thursday ------- -------M.
Friday ------- 5 M.
Saturday 9 ------- M.
$31.09
to------- -------M• -------Hrs.
to------- -------M• -------Hrs.
to------- -------M• -------Hrs.
to------- -------M• -------Hrs.
to 9 ------- M. ------- Hrs.
to 7 ------- M. ------- Hrs.
Total Hrs. _______
Gieseke explained in his testimony that prior to 1947 the form of the referral
card had been adopted by the Union, and the cards were usually ordered in lots of
20,000. Either through his error, or the printer's error, the reference to the fine had
not been removed from the cards. However, he said the provision for the fine had
never been enforced by the Union, either before or after 1947. Thousands of these
printed referral cards still remained on hand at the union office.
Gieseke also testified that he has been secretary-treasurer of the Union for about
15 years, and that the Union's system of referral had not been changed in that period
of time.
'Gieseke denied that he had made a phone call or phone calls to Hider on the
night of May 27-28.
Llorell Hicks, business representative, testified that he had charge of issuing referral
cards under Gieseke's supervision. On May 20 Hider came to the door of his office
and asked if there was a workcard for him. Hicks answered in the negative, and
consulted a note in his file, and then told Hider that Blassie wanted to see him, and
that he would have a workcard for Hider. Hicks said that the note he referred
to merely said that Mr. Blassie wanted to see Mr. Hider. Hider left Hicks, ostensibly
to see Blassie, and Hicks then prepared a referral card for Hider, but Hider did not
return to Hicks' office after seeing Blassie. Hicks identified a referral card as the
one he had prepared on that date.12
Hicks also testified as to his visit to St. Louis University on May 27 in the company
of Mathews, for the purpose of repossessing Hider's car. His testimony as to his
conversation with Hider on this occasion does not differ materially from Hider's.
Hicks testified also as to Hider's failure to obtain a referral card for the Memorial
Day weekend. He said that when an order was received for a man for the Gravois
store for Thursday, Friday, and Saturday, he made out a card assigning Hider to the
job for those days. Later, however, Gieseke called to his attention that Hider was
available only on Friday and Saturday, so he crossed out Hider's name on the
assignment list and referred another man to the 3-day job.13
In his cross-examination Hicks said that he had lost or destroyed the note which
stated that Blassie wanted to see Hider, and he could not recall which of the clerks
gave it to him.
'a Union's Exhibit No. 1.
13 The assignment list is Union's Exhibit No 3.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1565
Loretta O'Leary, a clerk at the union office, testified that on May 27, Friday,
about 3 p. in., Hider came to the union office and asked her for a workcard. After
she looked through the cards, she said there was none. He said that Hicks had told
him there was one, so she looked in the workbook, but there was none listed in the
workbook. She then went over to Hicks' office and there was a card on the desk, but it
was for Thursday, Friday, and Saturday. She then checked the ledger sheets and
told Hider that he had been replaced by another man, and offered to refer Hider to
another job. When Hider said he wanted his job at the Gravois store, she phoned
Gieseke and explained the situation to him. Gieseke said he would not take the man
off the Gravois store job.
F. The Company's defense
As noted previously, the Company presented no witnesses. It should be noted in
that regard that, as a result, the testimony of Hider as to the conduct of Tyler and
Hanlon, supervisors for the Company, and their conversations with him, are
uncontradicted in the record.
Counsel for the Company filed a brief, supporting its motion to dismiss the com-
plaint , which dealt with both the law and facts as developed at the hearing.
Concluding Findings
The above narrative is not inclusive of all the evidence, but is a summary of the
highlights of the testimony upon which the parties base their contentions.
a. The issues
It is the contention of the General Counsel that the evidence as a whole establishes
the following violations of the Act: (1) The Union and the Company have main-
tained and enforced an oral agreement or understanding whereby employees and
prospective employees at the Company's stores must be approved for employment
by the Union before they are employed by the Company; this agreement or under-
standing is one separate and apart from the written contract between these parties;
(2) the Company refused to employ Hider because the Union refused to give its
approval of, or authorization for, the employment of Hider; (3) the Union, by the
phone calls of May 27-28 interfered with, restrained, and coerced Hider; and
thereby the Company violated Section 8 (a) (1) and (3) of the Act, and the Union
violated Section 8 (b) (1) (A) and (b) (2).
The Union and the Company contend that the evidence is insufficient to support a
finding that an illegal agreement existed between the Company and the Union, or
that Hider was the object of discrimination by either of the Respondents. The Union
further contends that the evidence is insufficient to sustain the allegation of inter-
ference, restraint, and coercion. Accordingly, they have asked that the complaint
be dismissed in its entirety. In support of this motion, the Union urges that the
referral system used by the Union was not illegal, and that Hider's failure to obtain
a referral card on certain occasions was entirely his own fault, and that Hider, suf-
fered from a paranoia 14 by which he attributed a discriminatory motive to the
Union's innocent conduct.
b. The credibility of witnesses
As noted previously, I have credited the testimony of Hider and his associates
on those points wherein their testimony conflicts with that of the union officials. I
have felt constrained to do that for several reasons. First, these young student-
instructors at the university all impressed me favorably by their demeanor and bear-
ing as witnesses. They appeared to testify intelligently, precisely, and fairly. They
exhibited no rancor or vindictiveness toward anyone involved in the controversy.
They appeared to be young men of serious purpose, who fulfilled the duties of
witness in a conscientious manner. Hider and his associates impressed me as witnesses
of high reliability. Second, the testimony of Hider and his associates is consistent
with all the undisputed facts of the case, so that their testimony as a whole, coupled
with the undisputed facts, constitutes a narrative which is consistent throughout, and
is highly plausible.
On the other hand, Blassie as a witness displayed a vindictiveness toward Hider
and, in places in his testimony, appeared to be more anxious to injure Hider's stand-
ing in court than in telling the truth. One of these instances occurred when Blassie
testified that Hider's account was in "terrible" shape, although the undisputed
14 This teiin is used in the Union's brief to desciibe Hider' s mental processes.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence is that when Hider first proposed to the Union that he be allowed to defer
the principal payment, his account was current . Hicks and Gieseke also gave the
impression of being witnesses deeply interested in vindicating the Union 's conduct
in the controversy, and the testimony of all three union officials, viewed as a whole,
in the light of all other evidence in the case , appears improbable and implausible.
The Union takes the position that its failure to refer Hider on certain occasions
was Hider's own fault, but due to a peculiar paranoia on Hider's part, he saw dis-
crimination by the Union where none existed. In short, the Union contends that
Hider's failure to obtain referral on several occasions was due to a series of coin-
cidences, most of which were controlled by Hider. The Union claims: (1) A refer-
ral card was prepared for Hider by Hicks for the weekend of May 20-21, but that
Hider did not go back to Hicks to get the card after his dispute with Blassie, so his
failure to obtain a card on that date was entirely Hider's fault for the card was
available. (2) A referral card was prepared for Hider to work the 3 full days of
the Memorial Day weekend, but fortuitously Gieseke saw it and remembered that
Hider was available for work on only Friday and Saturday. If only Hider had
notified Gieseke that he was available for work on that particular Thursday in addi-
tion to Friday and Saturday, he would have had the job. It was only this misunder-
standing as to his availability on the part of Gieseke which prevented his referral
for the entire period of this weekend. When Hider did show up for work at the
union office it was too late, not only for the Thursday work but even for Hider's
usual Friday and Saturday job, and when Hider refused an assignment to another
job, he made it impossible to refer him to any job. (3) Hider was actually given a
referral card to the Woodson store on the weekend of June 24, at the request of the
Company, but due to his fixation on working at the Gravois store, he refused the
Woodson referral. (4) Though Hider's place of work was at the Gravois store,
Tyler, when he asked for vacation help, did not ask for Hider by name, so again,
not knowing that Hider was available, another man was sent to the job. Again,
when Hider made his availability known, it was too late; the man assigned to the
Gravois store could not be changed.
I cannot accept such testimony, for it taxes my credulity, viewed either as a whole,
or in its component parts.
Hicks testified in regard to the May 20 incident that Blassie's note to him said
that Hider was to see him, and did not say that Hider was not to be assigned work,
but it is undisputed that Hicks was the business agent in charge of making out the
referral cards for Hider and all other part-time employees. Under the circum-
stances, it appears significant that Blassie chose Hicks, who was in charge of referrals,
as his messenger to notify Hider of Blassie's desire to see him . And further, Hicks
testified that he did not have Hider's card made out prior to Hider's entrance into
Hicks' office, which in itself was contrary to custom , but that after sending Hider
to Blassie , he made out a card for Hider assigning him to the Gravois store. When
Hider did not return for the card , Hicks made no inquiry from Blassie or Hider or
anyone else as to why Hider did not come back for the card, which Hider had
previously requested.
Nor can I accept Gieseke's testimony , that on the Memorial Day weekend Gieseke
happened to notice that Hider was assigned for work on a Thursday, and that he
happened to remember that Hider's work was limited to Friday and Saturday, and
without further consultation with either Hider or Tyler of the Gravois store, and
without discriminatory motive, directed Hicks to cross Hider's name off the list, not
only for this Thursday work, but for Friday and Saturday as well. This testimony
of Gieseke does not jibe with that of Hicks. When Hicks received the call from
the Gravois store for Hider for 3 days, he put Hider's name down for work on Thurs-
day, Friday, and Saturday. I infer he did this because it was the custom to take
it for granted , when a company requested its regular part-time employee to work
specific days, that the company had consulted with the part-time employee concerned.
However, Gieseke, who usually left the referrals to Hicks, on this occasion exerted
his authority to effect the change. That Gieseke did that, without discriminatory
motive, is hard to credit. This is especially so, in view of Gieseke's other conduct
to which I will now refer.
Hider, on the night of May 27-28, received a series of profane, obscene, and
threatening phone calls . Hider identified the voice of the caller as being that of
Gieseke, and this identification was made in the most positive fashion. In supporting
his identification , Hider said that in his 6 years' membership in the Union he had
talked with Gieseke on many occasions, and that Gieseke had a characteristic accent
and used a peculiar pronunciation of Hider's first name , and that the caller on the
night in question had the identical accent and the identical pronunciation of his first
name. When it is recalled that Hider had at least six opportunities to hear this voice,
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1567
and recheck the identity of the speaker , Hider's identification appears most reliable.
Furthermore , Hider's altercation with the Union was known to only a few persons,
Hider's intimates , the employees at the Board's Regional Office, where Hider had
filed his charge against the Union , and the officials of the Union. The tenor of the
phone calls appears to eliminate the first two groups of persons, and to fit the
third group-the union officials. They would be the only persons angered by Hider's
conduct. In this group is Gieseke . Upon Hider's testimony, I find that Gieseke
made the phone calls alleged in the complaint and I reject Gieseke's denial that
he made the calls.
In testifying on the subject of the Union 's referral system, both Blassie and Gieseke
at first sought to give the impression that the referral system was operated on a non-
discriminatory basis. However, when questioned further, Gieseke admitted that
union members were given a preference over nonunion butchers and Blassie admitted
that all things being equal , union members were preferred over nonunion butchers.
These admissions were not the result of the frankness or candor of these witnesses.
Rather, the admissions acknowledged that the practice of the Union to prefer its own
members over outsiders could not be creditably denied.
Nor can 1 accept the testimony of Swast, that he requested Hider's transfer to the
Woodson store because he needed a good man at the Woodson store. It is undis-
puted that immediately after Hider 's altercation with Blassie began , Tyler was ap-
prised of the facts of the controversy , and it is clear that officials higher in the
management of the Company knew of Hider's difficulties , because when Hider asked
Tyler why he had not requested Hider by name for the vacation work , Tyler replied
that his supervisors would not permit Tyler to request Hider by name. From all
the evidence , it is clear that the Company was working hand in glove with the
Union, and that when the altercation arose, the Company promptly placed itself on
the side of the Union and disowned Hider. In my judgment , Swast knew that he
could not transfer Hider to another store for any reason which might reflect on
Hider's character as an employee , or his ability as a meatcutter , so this transfer to
the Woodson store, allegedly in the nature of a reward for good work, but in-
cidentally to Hider's detriment and inconvenience , was fabricated . This is more
clearly seen when Hider's efforts to obtain an explanation for his transfer from
company officials is reviewed. For a period of days, Hider tried to locate Hanlon
and obtain an explanation for the transfer , but that official of the Company could
not be located , and did not return Hider's phone calls. When Hider did reach
Hanlon, the latter gave him no explanation of the transfer , but merely asked Hider
if he had a referral card for the Gravois store . He agreed to call Hider back, but
he never did . This is strange conduct, indeed , for a company official to display
toward an employee whose work was so satisfactory that the Company had trans-
ferred Hider to a place "where it needed a good man." In the light of the evidence
as a whole, I reject Swast 's testimony on this point.
c. The discrimination by the joint action of the Union and Company
In its brief the Union argues that its innocence is shown by the fact that on several
occasions in the course of the altercation between Blassie and Hider, the Union
actually referred Hider to his job at the Gravois store . In my judgment, the Union's
course of conduct is fairly obvious; it sought to force Hider to pay the Credit Union
fines by interfering with his employment , but after Hider filed charges with the Board,
the Union sought to disguise its purpose . This is demonstrated by a fairly short
review of the various incidents.
On May 9 Hider conferred with Blassie by telephone , offering to pay the principal
and interest but not the fine. Blassie abused Hider, and the latter hung up. On the
next day, Hider received a notice to appear before the Union's executive board at
1:30 p.m. that same day. Hider was unable to attend . On May 17 Hider received
a letter from the Credit Union demanding that he pay up his loan by May 25, or
Blassie would take his case before the board of the university . On May 19 Hider
called for his workcard for the weekend , and was told at that time that there was
• no card for him . On May 20 Hider talked to Hicks at the union office, and was
shown a note from Blassie which said, "Don't give Shibley Hider work." Hider then
conferred with Blassie who admitted that there was work available , but that he
would not give the work to Hider. Consequently , it appears to be very clear that
Hider's denial of a referral for the May 20 weekend was motivated by the Union's
determination to make Hider pay the Credit Union fines. On May 20 Blassie again
wrote Hider demanding that Hider bring his car into the union parking lot by
May 23. Hider, however, refused to surrender the car or pay the fine before
,either of the deadlines of May 23 or May 25. When he again sought a referral
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card for his job for the weekend of May 27, he was told by the clerk at the office
that there was no work for him. It would appear from this that the obvious
reason for the refusal of the card at this point was that Hider had refused to pay the
fine by the May 25 deadline, or surrender the car by May 23, as demanded by
Blassie.
On May 25 Hider filed charges against the Union with the Regional Office of the
Board. The charges were received by the Union on May 26. Following receipt
of the charges, the Union gave a referral to Hider for the following three weekends
of June 3, 10, and 17. However, on the day following receipt of the charges by the
Union, Hicks and Mathews went to the university and attempted to repossess Hider's
car. On the night of May 27-28 Gieseke made the telephone calls mentioned pre-
viously, and on June 3, the Union repossessed Hider's car. On June 7 Hider was re-
quired to appear before the executive board of the Union where Blassie recommended
that he be suspended from the Union. The other members of the union executive
board concurred. On June 8, 9, and 15 Hider was again in communication with the
Union, but on June 13 and 15 Hider conferred with Mr. Roberts of the Missouri
Credit League and as a result, on June 17 Hider closed his loan with the Credit
Union without paying the fines in question. However, on June 24, when Hider asked
for his referral to his usual job at the Gravois store, another one of those strange
coincidences occurred. Hider was informed that the Company wished to transfer
him to the Woodson Road store, and he was issued a card for the latter store which
was some 10 miles distant from Hider's home. That was the first knoweldge that
Hider had of his transfer.
From the above resume, I believe it is obvious that the Union at all times sought
to force Hider to pay the Credit Union fines, but after the filing of charges with
the Board, it sought to disguise that purpose. Apparently in disguising its purpose
it had the active assistance of the Company. There is no evidence in the case that
the Union requested the Company to transfer Hider, but it is a strange coincidence
that in the midst of Hider's altercation with the Union, a butcher was needed at
the Woodson store and that Hider, of all the part-time employees in all the Com-
pany's markets in St Louis, was selected to fill the vacancy at the Woodson Road
store. In my opinion, the entire defense is based on too many unusual coincidences
to be plausible. That the Company assisted the Union in the discrimination against
Hider in the loss of the 6 weeks' work at the Gravois store during the vacation period
is patent from Hider's uncontradicted testimony that Tyler told him that "his superiors
would not permit him to ask for him [Hider] by name."
The entire record establishes that in the hiring of butchers for its meatmarkets the
Company had abandoned its right to hire whom it pleased, and had permitted the
Union to become its hiring agent. With full knowledge of the cause of the dispute,
the Company joined hands with the Union in attempting to force Hider to pay the
fines in question.
d. The agreement or understanding of the Union and the Company
The General Counsel contends that the evidence establishes that the Company
and the Union had entered into a verbal agreement or understanding whereby em-
ployees and prospective employees of the Company had to be approved for employ-
ment by the Union before they were employed by the Company. Despite the lack
of evidence as to when or how the agreement or understanding was made, I find
that at all times pertinent hereto such an agreement or understanding existed between
the Company and the Union. In view of the testimony of Hider that Tyler and
Hanlon assured him on at least nine occasions that he could work for the Company
if he had a referral card from the Union, there can be little doubt of such an agree-
ment. The testimony of union officials also establishes the existence of the agree-
ment or understanding Gieseke said that the system was maintained by the Union,
unchanged since the days before the Taft-Hartley Act. In fact, the referral cards
used by the Union are the type used before the passage of the amended Act Upon
the evidence as a whole, it is clear that many years ago an agreement or understand-
ing was reached between the Company and the Union that the Company would hire
only men referred to it by the Union. Gieseke and Swast both testified that the
system of hiring on referral by the Union was of long duration.
Counsel for both the Union and the Company point out that there is no evidence
in the record as to the making of any agreement or understanding which governed
the conduct of the parties On that point I agree, but the conduct of the parties
here involved, which is portrayed as stretching over a period of years, establishes
a well-defined hiring practice or system which is of the highest probative value.
The parties here, over the years acted in concert, according to a well-defined and
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1569
long-established procedure or system. Somewhere along the line, perhaps before
Gieseke became secretary-treasurer of the Union, or Swast the meat superintendent
of the Company, some representative of the Company and some representative of the
Union had agreed, or assented, to the procedure or system to be used. That is
known with just as much certainty as a traveler knows that a stream or spring
discovered in the desert has a source somewhere beyond the range of his vision.
During the period with which we are concerned here the agreement had life and
was being enforced by both parties. Proof as to the making of the agreement under
those circumstances is not essential. The conduct of the parties establishes the
existence of the agreement or understanding.
On facts similar to the instant situation the Board has repeatedly found the exist-
ence of contracts between unions and companies which set up illegal hiring pro-
cedures. In International Brotherhood of Boilermakers, Iron Ship Builders, Welders
and Helpers of America, Local #106, AFL, 94 NLRB 1950 (June 27, 1951), the
Board wrote as follows:
The unlawful hiring practice would not have been possible without the co-
operation or participation of both the Company and the Union. On the part of
the Company, it involved the refusal to hire except on referral from the Union
so long as the latter was in a position to make referrals; on the part of the
Union, it involved preference to its own members in making referrals on the
receipt of requisitions from the Company. The practice was so long and firmly
established as to raise little doubt that each party knew of, and at least acquiesced
in, what the other was doing. In fact, the inference is warranted, and we find,
that the practice conformed to an understanding or oral agreement between the
parties. . Finally the Company's refusal to hire Dulinsky, whom it knew to
be competent and whom it wanted to employ, but who was unable to obtain a
referral slip from the Union, is hardly explainable except on the supposition
that the two parties had in some way agreed that no individual would be hired
who was unable to obtain a referral from the Union.
The Illegality of the Hiring System
The Union also argues that its hiring and employment arrangement with the Com-
pany is not unlawful. It argues that the testimony of Swast establishes that the
Employer was free to hire from any source, and that the Employer retained the
right to reject or accept applicants referred for hire by the Union, as well as the
right to discipline and discharge its employees. It attacks the complaint as being
based on the erroneous assumption that it is illegal for an employer to seek referral
of individuals for employment from a labor organization, and cites several Board
decisions as authority for its position.15
I cannot agree that either the argument or the cited authorities have proper appli-
cation here. In the first place, I must reject Swast's testimony that the Company
was free to hire from any source and that it retained the right to reject or accept
applicants referred for hire by the Union. Hider's uncontradicted testimony is that
time after time Tyler told Hider that his work was satisfactory, that there was a
job at the Gravois store for Hider if he could get a work referral card from the Union
Throughout the entire case those words appear like a refrain Furthermore, Hanlon,
in charge of all hiring in the south side St. Louis area for the Company, in his turn,
when finally reached by Hider, took up the refrain and asked if Hider had a referral
card for the Gravois store. That undisputed testimony establishes that the Company
was not free to hire or even retain an employee proven to be satisfactory without the
approval of the Union. And it establishes that in fact the Company had not retained
the right to employ whomsoever it chose. Swast testified that the Company was
free, but the conduct of all company officials who had anything to do with the con-
troversy establishes that the Company was not free to hire or retain employees
without the approval of the Union. For that reason, I reject Swast's testimony on
that point, and it follows that the cited authorities are not in point here.
As has been noted previously, the Union was the representative of the employees
of the Company and had with the Company a written contract covering the usual
subjects of wages, hours, and working conditions. This contract had a union-
security provision whereby membership in the Union was required after 30 days
as a condition of employment, a perfectly lawful provision. But I find that in
addition to their lawful contract the parties also had the agreement or understanding
15 American President Lines . Ltd, 101 NLRB 1417; Maxon Construction Company, Inc .
112 NLRB 444
423784-57-vol 117--100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged in the complaint. This agreement or understanding, the practice or system
it set up, and the termination of Hider's employment pursuant to the agreement and
the practice, are all violative of the Act.
The Supreme Court in Radio Officers' Union v. N. L. R. B., 347 U. S. 17, defined
in clear and unmistakable language the limits for union-employer action in the field
of union security. The Court wrote:
. The policy of the Act is to insulate employees' jobs from their organizational
rights. Thus §§ 8 (a) (3) and 8 (b) (2) were designed to allow employees
to freely exercise their right to join unions, be good, bad, or indifferent members,
or abstain from joining any union without imperiling their livelihod. The only
limitation Congress has chosen to impose on this right is specified in the proviso
to § 8 (a) (3) which authorizes employers to enter into certain union security
contracts, but prohibits discharge under such contracts if membership "was not
available to the employee on the same terms and conditions generally applicable
to other members" or if "membership was denied or terminated for reasons
other than the failure of the employee to tender periodic dues and initiation
fees uniformly required as a condition of acquiring or retaining membership."
Lengthy legislative debate preceded the 1947 amendment to the Act which
thus limited permissible employer discrimination. This legislative history
clearly indicates that Congress intended to prevent utilization of union security
agreements for any purpose other than to compel payment of union dues and
fees. Thus Congress recognized the validity of unions' concern about "free
riders," i. e., employees who receive the benefits of union representation but
are unwilling to contribute their share of finanical support to such union, and
gave unions the power to contract to meet that problem while withholding from
unions the power to cause the discharge of employees for any other reason.
Thus an employer can discharge an employee for nonmembership in a union
if the employer has entered a union security contract valid under the Act with
such union, and if the other requirements of the proviso are met. No other
discrimination aimed at encouraging employees to join, retain membership, or
stay in good standing in a union is condoned. [Emphasis supplied.]
I find that both the Company and the Union have committed the unfair labor
practices alleged in the complaint.
The motions of the Union and the Company for the dismissal of the complaint are
hereby dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union and the Company set forth in section III, above, to the
,extent that they have been found to constitute unfair labor practices occurring in
connection with the operations of the Company 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 as defined in Section 2 (6) and (7) of the Act.
V. THE REMEDY
Since it has been found that the Union and the Company have engaged in certain
unfair labor practices, it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Since it has been found that the agreement or understanding between the Company
and the Union is unlawful, it will be recommended that the Company and the Union
cease and desist from giving effect to, or enforcing this agreement or understanding,
and from entering into, renewing , or enforcing any agreement which requires that ap-
plicants for employment or employees of the Company obtain or retain the approval
of the Union as a condition of employment or continued employment. It will be
further recommended that the Union and the Company immediately cease and de-
sist from using the referral system or procedures set up pursuant to the above-
mentioned unlawful agreement or understanding.
Since it has been found that the Union and the Company jointly discriminated
with respect'to the hire and tenure of employment of Shibley A. Hider by discon-
tinuing Hider's employment because of his lack of approval for employment by the
Union, it will be recommended that the Company offer to Shibley A. Hider im-
mediate and full reinstatement to his former or a substantially equivalent position at
the Gravois store, without prejudice to his seniority or other rights and privileges,
and that the Union immediately notify the Company and Shibley A. Hider in writing
that it has no objection to the continuance of the employment of the aforesaid
INTERNATIONAL GENERAL ELECTRIC, S. A., INC. 1571
.employee. It will be recommended further that the Company and the Union, jointly
and severally, make whole Shibley A. Hider for any loss of earnings he may have
suffered by reason of the discrunination against him, computed in accordance with
the formula stated by the Board in F. W. Woolworth Company, 90 NLRB 289.
This requires that the Company and the Union, jointly and severally, make whole
Hider for the following periods of unemployment: (1) Friday and Saturday, weekend
May 20; (2) Thursday, Friday, and Saturday, weekend May 27; (3) Friday and
Saturday, weekend June 24; (4) the vacation period (6 weeks) while the 3 full-
time butchers employed at the Gravois store were on vacation; (5) Friday and Satur-
day, weekend June 24; and (6) Friday and Saturday of all weekends from the weekend
of June 24, 1955, until Hider's reinstatement to the Gravois store as required above,
and until the Union furnishes the Company with the notice required above. Re-
imbursement is ordered in these terms because I find that Hider was a regular part-
time employee, employed on a weekend basis Friday and Saturday each week. It
will also be recommended that the Company make available to the Board upon re-
quest, payroll and other records to facilitate the checking of the amount due the
above-named employee.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 88,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By entering into and enforcing an agreement or understanding with the Union
which requires that applicants for employment, or employees, obtain the approval,
clearance, or workcard of the Union, or retain such, as a condition of employ-
ment, the Company has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By causing the Company to discriminate against employees in violation of
Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
5. By restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
6. By abusing and threatening Shibley A. Hider, an employee, thereby restraining
and coercing him in the exercise of the rights guaranteed in Section 7 of the Act, the
Union, by August Gieseke, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
International General Electric, S . A., Inc. and International
Union of Electrical , Radio and Machine Workers, AFL-CIO,
Petitioner. Case No. f4-RC-977. May 13, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a hearing was held before H.
Stephen Gordon, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed,
with the modification noted below.'
I Petitioner's international representative testified at the hearing that Local 499, Inter-
national Union of Electrical, Radio and Machine Workers, AFL-CIO, herein referred to
117 NLRB No. 202.