The Great Atlantic and Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1964

149 N.L.R.B. 94 (N.L.R.B. 1964)

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Great Atlantic and Pacific Tea Co., Inc. and Retail Clerks
Union Local No. 455, AFL-CIO. Case No. 23-CA-1677. Octo-
ber 26, 1964
DECISION AND ORDER
On July 16, 1964, Trial Examiner James A. Shaw issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in' certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, Respondent and General Counsel filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that, no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, The
Great Atlantic and Pacific Tea Co., Inc., its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Ex-
anliner's Recommended Order, with the following addition and modi-
ficat ion :
Add the following to paragraph 2(a) of the Trial Examiner's Rec-
ommended Order:
"Notify her, if presently serving in the Armed Forces of the United
States, of her right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from
the Armed Forces."
The last paragraph of the Trial Examiner's Appendix is amended
to read: "All our employees are free to become or remain members of
Retail Clerks Union Local No. 455, AFL-CIO, or of any other labor
organization, or to refrain therefrom."
1 In view of our other findings and the scope of the Order, we find it unnecessary to rule
on the General Counsel's exceptions.
149 NLRB No. 12.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 95
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed September 5, 1963 , by Retail Clerks Union Local No. 455,
AFL-CIO, herein called the Union , the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region 23 (Houston , Texas ), issued a
complaint dated October 10 , 1963, against The Great Atlantic and Pacific Tea Co.,
Inc., herein called Respondent or Company . The complaint as amended at the
hearing herein sets forth the specific respects in which it is alleged that the Re-
spondent violated Section 8 ( a)( I) and (3) of the National Labor Relations Act, as
amended, herein called the Act. The Respondent in due course filed an answer
in which it conceded certain jurisdictional facts, but denied that it had engaged in
any of the alleged unfair labor practices with which it is charged.
Pursuant to due notice, a hearing was held before Trial Examiner James A.
Shaw at Houston, Texas, on December 16 and 17, 1963 . All parties appeared at
the hearing and were given full opportunity to examine and cross-examine wit-
nesses, to introduce relevant evidence , to argue orally at the close of the hearing,
and to file briefs . The parties waived oral argument . On or about January 22,
1964, the General Counsel and the Respondent filed briefs which have been fully
considered by me.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, and the answer admits, that : "The Respondent is, and has
been at all times material herein , an Arizona corporation engaged in the operation
of food and grocery stores in several States throughout the United States. The
only store involved in this proceeding is located in Freeport, Texas; during the
past 12 months, which period is representative of all times material herein, in the
course and conduct of its business , gross sales of Respondent were in an amount
in excess of $500,000. During this same period, Respondent received goods and
merchandise directly from points outside the State of Texas, said goods and mer-
chandise being valued at an amount in excess of $50,000."
In the circumstances set forth above I find that the Respondent herein is en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent in its answer concedes and I find that the Union is a labor or-
ganization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and sequence of events
We are primarily concerned herein with what transpired at the Respond-
ent's store in Freeport , Texas, regarding the tenure of employment of Opal
Davis, the alleged discriminatee named in the complaint . It would be helpful to
all concerned herein to set forth a brief resume thereof in the light of the record
considered as a whole, and in particular her role in the operations of the store over
the years prior to her discharge on June 1, 1963.
Opal Davis was hired by the Respondent as a clerk in its Freeport , Texas, store,
the week it opened, on April 24, 1956. She worked in that capacity for 5 or 6
weeks and was then the head cashier , which position she held until April 19, 1963,
when she was relieved of her duties as such and placed back in the store as a
checker, under circumstances that will be discussed at some length herein below.
During her tenure of employment as head cashier, she had a desk in the office and
worked under the direct supervision of the store manager, who at times material
herein was Royce Roddy. Her duties as head cashier were for the most part cleri-
cal in nature, such as checking the registers at the checking stations in the store,
cashing checks for customers , handling the cash from the registers , and the usual
duties that one associates with the job of cashier . That it was a position of con-
siderable responsibility is well established in the record . In addition to her work
in the office , she worked as a checker in the store during times that the regular
checkers were away from their stations , as, for example, during coffee breaks, lunch
hours, and when the regular checkers were on vacation and other similar situations.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this point I should point out that the record shows that in addition to Roddy
and Lawrence Smallwood , who succeeded Roddy on May 20 , 1963, the following
supervisory employees of the Respondent also participated in the incidents we are
concerned with herein : Silas C. Read , area supervisor ; A. V. Carter, personnel
manager ; and John Munson , assistant store manager at the Freeport , Texas, store,
at times material herein.
As indicated above Royce Roddy and Lawrence Smallwood were managers of the
Freeport , Texas, store at times material herein . Though Roddy was succeeded by
Smallwood and transferred elsewhere by the Respondent , nevertheless certain inci-
dents occurred during his tenure as manager that have a bearing upon my ultimate
disposal of the issues herein . For example , Davis was relieved of her duties as
cashier sometime in April 1963, and assigned to a checker 's job in the store, for rea-
sons set forth in the following excerpt from her credible testimony in this regard:
What happened when you went to work Monday morning. Did you know
you were going to become a checker?
A. I did not. I had been removed from the office in April by Mr. Read, and
he told me at that time that when the shrimp season picked up and the shrimp
business got better and there was a need for a full time worker in the office,
that I would be required to help Mr . Roddy out in the office . Up until that
time I had only bundled coupons and lined up the time cards alphabetically
for Mr . Roddy and stapled them together , and just a few minor things like
that. But I didn 't go in the office whatsoever since sometime in April to do
any check cashing or anything ; I was authorized to cash checks at my register
if I had to and Mr . Roddy was out.
It is to be noted that Davis in her testimony referred to the "shrimp season."
The record shows that the shrimp season is the busiest time of the year for the
Respondent , it starts on June 15 and continues thereafter for several weeks, and,
although the record is none too clear as to the length of the season , it does show
that the volume of the Respondent 's business increases considerably during this
period, primarily because many of the owners of the shrimp boats that work out of
Freeport have charge accounts with the Respondent and purchase food supplies for
their crews at the Freeport store . The importance of the testimony in this regard
to the issues herein will be apparent below when considered in the light of one of
the major defenses of the Respondent to the issue raised by its "termination" of
Davis' employment on June 1, 1963. Suffice it to say at this point that she was
terminated on June 1 just 2 weeks before the "shrimp season " was to start , June 15,
1963.
The importance of the "shrimp accounts " to the Respondent is well illustrated in
the following excerpt from Davis' credible testimony:
TRIAL EXAMINER : What do you mean "the shrimp accounts ?" What is that?
THE WITNESS: They have a shrimp fleet, quite a few boats down there, and
A & P did a charge account business with different ones of those boats, which
incidentally , is a good business and a lot of problems too.
In view of the foregoing reference to the shrimp season , I feel that I should in-
sert some facts about the city of Freeport , Texas, that are set forth in the record,
and from impartial and recognized sources such as the Census Bureau.
Freeport , Texas, is located 55 miles south of Houston on the Gulf of Mexico. It
is a port of entry and has been since 1820 . Its principal industry is the production
and processing of sulphur products , by different companies , one of which is the
Dow Chemical Corporation . It is also known as a fishing resort, and as indicated
above is the home port of a number of shrimp boats. Its population in 1950 was
6,012, and in 1960, 11,619 . ( It is interesting to note that it almost doubled in
population in the 10-year census period. ) According to reliable sources,' one of its
most important assets is that it is the center of the Brazosport industrial area, which
is likewise referred to as the center of sulphur mining and processing industries.
Another interesting fact is that it is located at the mouth of the Brazos River, which
is one of the longest rivers in Texas.
As indicated above Royce Roddy was manager of the Freeport store until May
20, 1963. According to the record, he and Davis worked together harmoniously
throughout his tenure as manager and no serious difficulties arose between them
during this period. The only testimony offered by Roddy at the hearing that has
any bearing on Davis' conduct during this period is that she, on several occasions,
told him that she wanted to go back to Mississippi , her home State . Since his
1 See the Columbia Encyclopedia.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 97
reference to her statements in this regard is the predicate for one of the Respond-
ent's defenses to the issue herein regarding Davis, I feel that I should consider
certain controlling factors that were responsible for her tendency to refer to the
"past" in her conversations with Roddy , particularly during 1963.
The record shows that the Davis family had been beset by a series of tragic inci-
dents during the months preceding her "termination " by the Respondent on June 1,
1963, which unquestionably had an emotional effect upon her and would on most
of us if subjected thereto in the same circumstances and in a like atmosphere
condition.
According to Davis' undenied and credible testimony , her husband had been un-
employed since October 1962. That this was a factor in her statements to Roddy
and Smallwood regarding going "back to Mississippi," is well illustrated in the
record and understandable, at least, to me. On January 14, 1963, their only child,
a 14-year old boy, passed away and was buried back home in Mississippi. Then, in
April 1963, she was relieved of her job as head cashier, presumably for the
purpose of reducing the Respondent 's overhead expenses , and demoted to a
checker's job. While it is true she did not suffer a loss in pay by her "demotion,"
nevertheless it was a "loss of status ," particularly to an employee with her seniority
rating. To add to all of the foregoing was the fact that , even though she had been
informed by Read, the area manager , that she would be restored to her head cash-
ier's job when the shrimp season opened, when Smallwood was made manager his
wife was assigned to Davis' old position as head cashier . Since the record shows
Read had assured her at the time she was transferred to the checker's job that she
would be restored to her old position as head cashier when business picked up, then
the Respondent 's action in this regard was in effect a repudiation of its promise to
her, and convincingly so, since it occurred , businesswise , so to speak, on the eve of
the opening of the shrimp season, the busiest time of the year.
In such circumstances , Davis' tendencies to refer to her native State in periods of
reflection and sadness is not only understandable but was well illustrated by her
demeanor while testifying at the hearing herein, which left an impression upon me
that may be well expressed by paraphrasing an old sentimental refrain:
Backward turn Backward,
0 time in your flight,
Take me Home again , please,
And not , just for tonight.
It was in the light of the foregoing that the events with which we are primarily
concerned with herein occurred.
This brings us up to the events that led to her discharge by the Respondent on
June 1, 1963.
Lawrence Smallwood assumed his duties as manager of the Freeport store on
Monday, May 20, 1963. When Davis reported for work that morning, Royce
Roddy introduced her to Smallwood and his wife and informed her that he was
the "new store manager ," and that she was to be the cashier . After the formalities
he said to her, "Your duties now will be full-time checker." Mrs. Davis accepted
the "inevitable," so to speak , in good grace , as is well illustrated in the following ex-
cerpt from her testimony regarding a conversation she had with Smallwood shortly
after they were introduced:
After Mr. Smallwood became the manager of the store , what happened after
that?
A. Well, immediately, I went on out to my register-they assigned me num-
ber three register in the store-I went out to the register and was checking
and straightening up, and different things, and Mr. Smallwood came out and
he talked to me and told me he understood I had been with the company a
long time and had been with that store, and he wanted me to help his wife
up there in the office , cooperate with her in the shrimp charge accounts , and try
to help her identify people for check cashing purposes, and everything in
general that she didn't know because she was new, a lot of that was new to
her.
I told him at that time, I explained to him that my husband hadn't been
employed since October of 1962, and I told him, "Mr. Smallwood, I will co-
operate with you in any way I can and do everything I can to help you and
your wife, but we might not be here too long."
I don 't recall telling him any specific time. I just said "not too long."
Q. At that time did you say anything about two weeks?
A. No, sir, I did not.
770-076-65-vol. 149-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You did not?
A. No, sir.
Q. At that time?
A. No, sir, I did not.
The Respondent had around 15 employees in the Freeport store at the time
Smallwood succeeded Roddy as manager, including those who worked in the meat
department. Though the record is most "hazy," so to speak, in this regard, I am
convinced and find that at times we are primarily concerned with, May 20 to June 1,
1963, there were around seven employees in the store, excluding Mrs. Smallwood,
the head cashier, and those who worked in the meat department. Since those in
the meat department were represented by the Amalgamated Meat Cutters Union,
we are primarily concerned with the employees who worked in the store proper.
Consequently, references to Davis' union activities are, for the most part, in regard
to her conversations with her coworkers with whom she was in daily contact in the
store.
From my observation of Davis at the hearing, and from what I glean from her
testimony, I am convinced that she had had little if any contact with labor organi-
zations before the time we are primarily concerned with herein. Quite frankly
this observation is predicated upon her testimony at the hearing, as illustrated by
excerpts below, particularly regarding her rights under the Act. With that in mind
I will now consider her account of what transpired after she was replaced by Mrs.
Smallwood as head cashier and put on the floor as a checker.
On Tuesday, May 21, 1963, Davis was at her check stand when two old friends
and customers, who worked next door at Neisner's, were in the store and, after they
had made their purchases, came to her station. The two ladies referred to were a
Mrs. Mathews, union steward for the Union in. Neisner's store, and a Mrs.
Lindsey, according to Davis "a strong union person." Since what transpired
thereafter is of considerable importance to me, I feel that the following excerpt
from Davis' credible testimony would be helpful to all concerned herein:
Q. (By Mrs. OLSON.) Did you have a conversation with Mrs. Matthews
and Mrs. Lindsey where Mr. Smallwood was present?
A. Well, at the time I had a conversation with these ladies, Mrs. Lindsey
saw I was very unhappy and she walked up to the check stand and asked me
what was my trouble.
I explained to her we were having difficulties. And she made the remark,
"What you need is to get the union in here." Because we had already dis-
cussed some difficulties they had at her store. She thought it would alleviate
our problem.
At the time I talked to Mrs. Lindsey and asked her, "How do we go about
getting into the union?"
She- said, "It's very simple. You get cards, have every employee in the store
sign them and send them in and ask for a representative to come see you."
Mrs. Matthews spoke up and said, "Be quiet and I will get the information to.
Opal."
At the time of this conversation, Mr. Smallwood was standing over at the
ice cream box, standing over there with his elbow propped up like this
[demonstrating].
Q. How far is that from where you were?
A. Oh, fifteen or seventeen feet altogether, but he started walking toward
me as we carried on this conversation. And he walked within eight or ten
feet of me where he stopped. He didn't ever say a thing. He just stopped
and looked at these ladies when they went out of the door.
After she had the above conversation with the ladies from Neisner's, Davis went
among the employees who were working in the store and advised them that ". .
we could get a union in down at that store and it was a simple procedure to get
cards, sign them and send them in, and we would have a representative contact
us." 2 Though she testified that she talked to all of the employees who worked in
the store about the Union and its advantages and the like, she never did receive the
cards that Matthews had promised her and of course was unable to "sign them up
for the Union." Among the employees that Davis referred to in her testimony as
2 Quotes from Davis' credible testimony.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 99
having been contacted by tier in her'organizational efforts were Robert Tobias' and
"about six or eight" regular employees in the store, "excluding the meat market
[employees] and not the store manager and his wife...."
According to Davis and the testimony of other witnesses at the hearing, there was
considerable unrest among the employees after Smallwood succeeded Roddy as
manager. Though the evidence in this regard has little to do with the issues herein,
it does in some respects explain the difficulties Davis was faced with after Small-
wood took over the store when considered in the light of her other misfortunes that
have been referred to above.
As indicated, she testified that she talked to all of the employees in the store
shortly after her conversation with the Neisner's ladies about the Union. Among
those she mentioned in her testimony were Tobias, Salazar, and Holloway. The
gist of her testimony regarding Tobias and Holloway was to the effect that though
they agreed with her that they needed a union to represent them, they were afraid
to take either an active part in her effoits to unionize the store or to sign an appli-
cation for membership, because they both had families to support and were fearful
of being fired if they exercised their rights under the Act. As to Salazar, she testi-
fied that he just stared at her and walked away. Significantly all three were called
as witnesses by the Respondent in support of its case-in-chief and each "patently"
denied, in almost identical language, that they had had conversations with Opal
Davis about the Union during the course of her employment in the store, particu-
larly within the period of a month or so before her "termination" on June 1, 1963.
However, one of them, Tobias, testified that Davis had approached him a year or
two before and made certain disparaging remarks regarding unions in general.
Davis, in the course of her testimony, admitted that she had gone among the em-
ployees in the store a year or so before she was terminated on June 1, 1963, and
had made derogatory statements to them about the Union and labor organizations,
in general, at the behest and demand of her superiors, as is well illustrated in the
following excerpt from her testimony on cross-examination by counsel for the
Respondent.
Q. Is it correct that on several occasions prior to your discharge, that you
had made statements to various people who worked for the Freeport store that
you didn't think the union was a good thing?
A. I made that remark at one time.
Q. Who did you make it to?
A. I told Royce Roddy at one time.
Q. What did you tell Mr. Roddy?
A. Some girls from Weingarten's came down-
Mr. OLSON. Can we get a date?
A. [Continuing]-These girls from Weingarten's came down when they were
trying to organize their store, and they discussed union, and one of them asked
me how I felt about it, and I told her really and truly it was for your money.
But I had been told by Mr. Ponder, Mr. Morris and everyone to always dis-
courage union activities in the store and was told I wasn't eligible to vote or
participate in anything union whatsoever.
Q. Is this your conversation with Mr. Roddy you are telling us?
A. No.
Q. All I am interested in is your conversation with Mr. Roddy. What did
you tell Mr. Roddy about the union?
A. I told him I wasn't for it, all they did was take the money.
Q. When was that?
A. It's about a year ago at least-well, it's more than a year ago since Wein-
garten tried to organize their store.
Q. (By Mr. DEAKINS.) Did you ever have any discussion with any of the
other employees about your attitude toward the union?
A. There is not but one girl that I really ever thought about too much; that
was Betty Winkelman, and we talked about it one time, and, as I said before, I
had been told by my superiors to discourage union activities in the-
3 See infra for testimony of Tobias, Gilbert Salazar, and Emily Holloway.
4 Quotes from Davis' credible testimony
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. I am not interested in what your superiors told you. I am asking you
about these specific conversations. Did you have any other conversations with
any other employees about your attitude toward the union? [Emphasis sup-
plied.]
A. I probably have. I talked a lot.
Q. Do you recall an incident when you had a conversation with Robert
Tobias about some union organizers coming in the store?
A. It's been two or three years ago.
As indicated above, Davis admitted that she had carried out the instructions given
her by her supervisors a year or so before she was terminated. While it is true that
her testimony in this regard has little or no probative value insofar as the ultimate
disposal of the issues herein are concerned, it does cause at least a "lifting of the
eyebrows," so to speak, for the following reasons. In the first place, it was placed
in the record while she was under cross-examination, in reply and explanation of a
question posed to her by counsel for the Respondent and stands uncontradicted and
undenied in the record. Consequently, it is before me as part and parcel of the
record considered as a whole. In such circumstances it cannot be ignored as
"background" regarding the Respondent's overall attitude toward its employees who
in the past had attempted to exercise their rights under the Act.
During this same period of time , that is from May 21 to June 1, 1963, Davis also
had a conversation with Munson, assistant store manager, about the Union. Her
testimony in this regard was that she told him that the employees in the store were
"considering going union," and she asked his advice ". . . on it and what he thought
about it, and I asked him if he thought it could help us." He told her in substance
that he did not know the answer to her question, and that he did not know ".
what we are going to do about it."' Munson, in the course of his testimony, not
only denied that he had the above conversation with Davis, but in addition testified
that he had no knowledge that she had talked about the Union to the employees in
the store before she was terminated on June 1, 1963. Later on in his testimony
the General Counsel attempted to impeach his testimony in this regard by referring
to an affidavit he had given a Board agent prior to the hearing. In the course of
his interrogation by the General Counsel in this regard he testified to the effect that
the statement in the affidavit was erroneous. About this point the General Counsel
had the affidavit marked for identification as General Counsel's Exhibit No. 4 and
shortly thereafter he offered it in evidence. At this point counsel for the Respond-
ent examined Munson on voir dire regarding the authenticity of the document,
which of course was his privilege. In the course of his examination on voir dire
Munson not only admitted that he knew about her union activities prior to her ter-
mination but added other testimony that is likewise pertinent to the issues herein
which is well illustrated in the excerpt set forth below:
Q. (By Mr. DEAKINS.) Now, when you gave him this affidavit, did he ask
you some questions and you gave him the answers and he wrote some things
down?
A. Yes, sir.
Q. Do you recall whether you read that affidavit over before you gave it to
him, before you signed it?
A. Yes.
Q. You did read it over, is that correct?
A. Yes.
Q. I wish you would read the paragraph beginning "After Opal Davis," read
that whole paragraph.
A. [Reading:] "After Opal Davis was fired in June, she asked me two or
three times why she has been fired. In August, the last time she asked me this,
she asked me why she was fired, I told her that he told me, I meant Small-
wood, that Opal was terminated because she kept talking about going to Missis-
sippi. I told her also that it may have been that she was terminated for talk-
ing union talk around the store. My only reason for saying this is that I know
she did talk about the- union quite a bit around the store."
Q. All right.
A. Now, tell me your best recollection at the present time what you base
the statement on.
TRIAL EXAMINER: You can only go into the authenticity of the documents.
You have the witness on voir dire.
Q. (By Mr. DEAKINS.) Is that a correct statement?
A. Yes, sir. [Emphasis supplied.]
5 Quotes from Davis' testimony.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 10 1
The importance of the foregoing excerpt from Munson's testimony on voir dire
examination is that it refutes the testimony of both Smallwood and Read that they
had no knowledge that Davis had engaged in any union activities among the em-
ployees in the store prior to her termination on June 1, 1963 . Moreover , it must
be borne in mind that Munson , at the time in question , that is, prior to Davis'
termination on June 1, 1963, was assistant store manager at the Freeport , Texas,
store, and was admittedly a supervisor within the meaning of the Act .'
As indicated above one of the major defenses of the Respondent herein is that
neither Smallwood , Read , nor any of its supervisory employees had knowledge of
Davis' activities on behalf of the Union prior to her discharge on June 1, 1963.
Consequently, by Munson' s reluctant admission to the contrary, its contention in
this regard is of little, if any, probative value as a defense to the major issue we are
confronted with herein , which is, of course , the allegation in the complaint that
Opal Davis was discharged because of her activities on behalf of the Union in vio-
lation of Section 8(a)(3) and ( 1) of the Act. Moreover, Munson 's admission in
this regard was bolstered by the testimony of other witnesses at the hearing herein
as will be shown in more detail below.
Davis in the course of her testimony referred to a meeting she and a Mrs . Preston
Miller , an old friend , had with Munson at a "doughnut shop " in Freeport on Au-
gust 12 , 1963 . According to Davis, Mrs. Miller was an old friend and was not em-
ployed by any firm or individual but was just an ordinary housewife . As indicated
above, she and Mrs. Miller met with Munson and had lunch with him . There was
nothing unusual about these meetings since she and Munson were old friends and
had worked together for a number of years, and it had been his custom to stop by
frequently at her home and have coffee with her and her husband. During the
course of their meeting Davis asked Munson to tell her the real reason she was fired
by the Company . At the time Munson dodged the issue, so to speak , and "didn't
give her any response right then ." ' Later on , however, he did under the follow-
ing circumstances . According to the credible testimony of Mrs. Miller their con-
versation while they were in the doughnut shop was mostly about what was going
on down at the store , except as to the above question by Davis to Munson regard-
ing her discharge on August 12, 1963. Mrs. Miller 's account as to what transpired
after they left the doughnut shop is, in my opinion , of the utmost importance and
is best told' in the following excerpt from her testimony in this regard which is fully
credited:
Q. Where did the conversation take place?
A. Outside the doughnut shop on Avenue B.
Q. And tell us what you heard.
A. I was standing by Opal's car and she and Mr . Munson were standing by
his car , which wasn't very far apart, and he told her that he told him that he
terminated-
Q. This is Munson talking?
A. Yes. That he told him he terminated her because she talked union talk
in the store and was talking about moving back to Mississippi.
She asked him to repeat that and he did.
He told her that he told him ; that he terminated her because she was talk-
ing union talk in the store and was talking about moving back to Mississippi.
Q. Do you know who he meant by "he"?
A. He didn't call any names.
Q. He didn 't say who he meant by "he"?
A. No, sir.
Mrs. Miller impressed me as an honest and truthful witness. Though subjected
to vigorous cross-examination she did not waver from her original testimony, was
calm and undisturbed throughout her interrogation by counsel for the parties, and
never at any time wavered an iota from her original testimony regarding the inci-
dent we are concerned with . In such circumstances , I credit her testimony in toto
and find that Munson made the statements to Davis attributed to him by Mrs . Miller
in her testimony.
It is to be noted that Mrs. Miller in her testimony was unable to identify the "he"
referred to by Munson in his conversation with Davis . This is understandable be-
cause she was not a party to the conversation and was merely testifying as to what
she heard Munson say to Davis. In the circumstances , I direct the attention of all
concerned herein to the above excerpt from Munson's testimony regarding the same
6 See Infra for further reference to this issue.
7 Quotes from the credible testimony of Mrs. Preston Miller.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident that Mrs. Miller referred to in her testimony, where it will be noted that
Munson identified the "he" referred to in Mrs. Miller's testimony as "Smallwood,"
the manager of the Freeport, Texas, store at times material herein.'
Though I have found above that Munson made the statements attributed to him
by Mrs. Miller, and pointed out to all concerned that Davis had also testified re-
garding the same incident , I feel that for reasons other than corroboration of Mrs.
Miller's account thereof that the following excerpt from Davis' testimony in this
regard should likewise be inserted herein:
Well, as we were drinking coffee and talking, he asked me if I knew our pre-
vious manager was coming back and they had been lead to believe that he
would be manager of the store again.
I explained to John at that time, "Well, if Mr. Roddy comes back, I would
like to know if I can get my job back first." I said, "If I can't get my job
back, then I would like to know the real reason why I was fired." I explained
to him that it just wasn't a good enough reason, I didn't feel like or anybody I
went to talk to concerning a job didn't feel like it was a good enough reason
either.
Mr. Munson told me, he made the remark, "He said it was because you were
talking union talk with the girls from Neisner's and always talking about going
to Mississippi."
Q. He said, Mr. Munson said that it was because you were always talking to
the union girls and-
A. And talking about going to Mississippi.
TRIAL EXAMINER: Mr. Munson told you that or was that what somebody
else said?
The WITNESS' Mr. Munson told me that. I gathered he meant Mr. Small-
wood. He just told me what was going on in the store.
Mr. DEAKINS: I object to what this witness gathers, Mr. Trial Examiner.
Q. (By Mr. OLSON.) But you are positive that his words were-
TRIAL EXAMINER: I will sustain the objection to that conclusion.
Q. (By Mr. OLSON.) You are positive that Mr. Munson's words were, and
I am quoting-
Mr. DEAKINS: Object. He is leading the witness.
Ask her to state it.
Mr. OLSON: All right.
Q. (By Mr. OLSON.) Tell us again what Mr. Munson said.
A. The remark was: "He said because you were talking union talk to the
girls from Neisner's and always talking about going to Mississippi."
TRIAL EXAMINER: Always talking about going to Mississippi?
The WITNESS: Yes, sir.
TRIAL EXAMINER: Had you mentioned Mississippi to Mr. Smallwood?
The WITNESS: Yes, sir.
TRIAL EXAMINER: And to Mr. Read?
The WITNESS: Yes, Sir.
TRIAL EXAMINER: You had talked about Mississippi?
The WITNESS: I had, because our only son died January 14th and was car-
ried back there. That was our home, and so I was just inclined to be de-
pressed and I like to talk about it and I liked to go home.
As indicated, the above excerpt was not only for the purposes of corroboration of
Mrs. Miller's testimony, but to point out the impression that Davis made upon me
by her demeanor during the course of her interrogation by counsel, which as pointed
out above was most favorable, but also for the purpose of setting forth the refer-
ences she made to her personal problems during the course of her testimony. A
further reason for insetting the above was her testimony that she would like to
know "the real reason why I was fired." It was this phrase in her testimony that
convinced me that she was telling the truth throughout her interrogation and was
illustrative of her lack of knowledge regarding problems she and others similarly
situated have in their efforts to exercise the rights guaranteed them under the Act
In other words, I am convinced that Davis, herself, was convinced that she was
terminated by the Respondent because of her activities on behalf of the Union,
and that her testimony in this regard at the hearing herein was an honest recital of
the events that led up to the Respondent's decision to "let her go" on June 1,
8 See Davis' testimony in this same regard where she too In effect identifies the "he" re-
ferred to in her account of the conversation referred to by Mrs Miller
0 See supra for other comments In this regard.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 103
1963; 10 and that the charges filed by the Union on her behalf were made after she
was convinced that the motivating factor for the Respondent's action toward her
was because of her activities on behalf of the Union, and not for the reasons given
her by Smallwood at the time he "terminated her."
Though Davis testified at considerable length both on direct and cross-examina-
tion about her activities on behalf of the Union during the period from May 21 to
June 1, 1963, which for the most part concerned her conversations with several of
her coworkers, both Smallwood and Read, as well as other witnesses for the Re-
spondent, testified to the effect that they had no knowledge of her activities in this
regard during the period we are concerned with herein. While I have made some
reference to their testimony in this regard hereinabove, there yet remains for con-
sideration certain incidents that likewise occurred during the time in question, par-
ticularly as to what transpired on May 29, 1963, which in my opinion is of the
utmost importance for reasons that will be obvious to all concerned.
On May 29, 1963, Davis was at her checking station, No. 3, and two friends of
hers who worked at Neisner's came into the store and took their purchases to her
checking station. According to her credible testimony, Smallwood at the time was
checking at No. 2 check stand which was about 4 feet away. The two ladies were
Mrs. Lindsey and Mrs. Elsie Vaughn. It will be recalled that Mrs. Lindsey was
with Mrs. Mathews, the union steward at Neisner's, on May 21, 1963, when the
Union was first discussed with Davis" When they arrived at her station, Mrs.
Lindsey asked her what "we had done about the Union." She told her, "Not any-
thing yet. I am still waiting for the cards that they promised me they would get."
Mrs. Lindsey then asked her if she would pass out the cards "if I got you the
cards." She told her, "I sure will," and asked her to bring them in to her.12
Shortly after the two ladies from Neisner's left the store Smallwood came to
Davis' checking stand. What transpired at the time is best told in the following
excerpt from her testimony:
Q. Did you have a conversation with Mr. Smallwood later?
A. Yes, I did.
Q. About what time?
A. About fifteen or twenty minutes after these two ladies were in there, Mr.
Smallwood walked up to me and he asked me that I had decided about a
transfer. I explained to him that my husband had gone out to Dow Chemical
that morning and that he had informed me at lunch he was to go back at 9:30
o'clock Friday morning and we were in hopes he would go back to work for
Dow.
Q. Is that Dow Chemical?
A. Dow Chemical.
Q. You say go back to Dow?
A. He had been an employee there and they had a lay-off. The Magnesium
Department got closed down and he was laid off.
Q. He was in a lay-off status at the time?
A. No, sir. He worked at an ice plant after the shutdown at Dow until
October of 1962.
Q. But at this time your husband had hopes of going back to Dow?
A. That's correct.
Q. What day did they tell him to report?
A. On Friday morning.
Q. Did you say anything about this to Mr. Smallwood?
A. I did. I talked to Mr. Smallwood about it, told him my husband had
gone out to Dow that morning, that I lunch with him and he explained to me
he was to go back at 9:30 on Friday, and I said , "We don't know what we are
going to do yet. We are just not really certain."
He said, "I will tell you what, if you are still considering a transfer, we will
have to know three or four weeks in advance."
I said , "Three or four weeks9"
He said, "Yes, Mr. Read told him he would have to know three or four
weeks." I told him Mr. Carter told me he would try to help me get a
transfer if I desired one.
Q. Who is Mr. Carter?
A. He is in the Dallas office.
io See infra.
11 See supra in this regs I d
12 Quotes from Davis' testimony on cross-examination.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By referring to the transfer , Davis had reference to what she had told Smallwood
on the day he took over the store on May 20, 1963 , which was to the effect that
due to the fact that her husband was unemployed at that time , it was possible that
she might request the Company to transfer het to a store in Mississippi . However,
since her husband now had a chance to get a job with Dow Chemical Company
where he had formerly worked , she was undecided regarding whether or not she
wanted to "get a transfer to Mississippi ." However, she told him at this time "Mr.
Smallwood, I will give you a two-week notice before I ask for a transfer." In
other words she told him that if her husband didn't "get on" at Dow and "I decided
I wanted a transfer . . . I will give you two weeks notice." It is to be noted at
this point that this was the first time that Davis had mentioned a "two weeks"
notice to Smallwood.
We now come to Friday, May 31 , 1963 , which was a most hectic and eventful
day for Davis and her career with the Respondent . On that date Silas Read, the
area supervisor , came to the store and according to Davis had several lengthy con-
versations with Smallwood . Shortly after he entered the store he and Smallwood
went to the back part of the store. Sometime later Read came to Davis and asked
her how she "felt about union labor ." She told him , in substance , that she was
for "union labor one hundred per cent ." If it was not for the unions "everybody
would be working for chicken feed and eating with the chickens . " 18 Davis could
not recall Read 's response to her answer to his question . Shortly thereafter, Read
left her and went back near the meat counter and continued his conversation with
Smallwood.
Shortly thereafter Davis left her station and went back to the rear of the store
to grind some coffee and to mark cigarettes in accordance with previous instructions
from Smallwood . At this time she saw them talking near the end of the meat
counter and also noticed that Ethel Smith , an employee in the meat department,
was wrapping meat behind the counter. Though Davis did not hear any of the
conversation between Read and Smallwood , Smith did hear at least a portion of it.
As indicated above, Davis, in the course of her testimony regarding what tran-
spired on May 31, 1963, referred to Ethel L. Smith , a fellow employee who was
working in the meat department on the day in question . When Smallwood and
Read were engaged in the conversation at the end of the meat counter, Smith was a
few feet away wrapping meat . It will be recalled that Davis testified that she did
not hear any of the conversation between Smallwood and Read , however she did
refer to a conversation she had with Smith in this regard . In the circumstances,
Smith 's account of what transpired at the time in question is of importance.
In the course of her testimony on direct examination , Smith pointed out that
she was on temporary duty in the store and was working for one of the regular
employees in the meat department who was on vacation , Lucie O'Bannion, from
May 20 to June 1, 1963 . Smith was a former employee of the Respondent, but
had left its service in September 1962 . Since she had formerly worked in the meat
department , the Respondent asked her to come back and work while O'Bannion was
on vacation. According to the record , Smith was a member of the Meat Cutters
Union when she was a full-time employee of the Respondent at the Freeport,
Texas, store . The gist of her testimony insofar as we are concerned herein is that
she heard them mention "union" on several occasions , which caused her to "perk
up her ears," so to speak , particularly when she heard one of the two mention
"Mississippi" and a short time later one of them said "get rid of her." I am well
aware that Smith 's testimony regarding the above conversation is purely speculative
and of little , if any, probative value ; however , it does have some value because
Read tacitly admitted in the course of his testimony that they had been discussing
Davis' future employment with the Respondent and that he had told Smallwood "to
let her go," but not for the purposes that might be inferred from Smith's testimony.
Insofar as I am concerned the importance of Smith 's testimony is that she testified
that the conversation between Read and Smallwood lasted a "long time ," 20 or 30
minutes, and that the word "union" was mentioned by them on several occasions,
which is important when considered in the light of the fact that she also testified
that she "knew there was talk in the store of organizing a union." The latter is
important because both Read and Smallwood testified that they had never heard of
any union activity among the employees during the time from May 21 to June 1,
1963 . There remains another phase of the case at hand that arose out of Smith's tes-
timony regarding the above incident that I also consider of importance , and that is
that she told Davis shortly thereafter what she had overheard in their conversation.
13 Quotes from Davis' testimony.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 105
The gist of the conversation with Opal Davis was to the effect that she heard
"them" talking about the Union, "I heard them talking about Mississippi, and then
I heard them say 'get rid of her: " In the final analysis, the most important as-
pect of Smith's overall testimony was that she knew that the employees in the store
were discussing the Union at times material herein. And that she heard both Read
and Smallwood use the word "union" in their conversation, and that the words
"Mississippi" and "get rid of her" were uttered almost simultaneously, which, when
considered in the light of Read's admission that Davis was discussed in the conver-
sation we are concerned with, then some light is shed upon the most pestiferous
issue that I am faced with herein: the credibility of the witnesses who testified at
the hearing herein ." In passing , however, I point out to all concerned herein that
Smith impressed nie as an honest and forthright witness, which is clearly evidenced
by reading her testimony in toto as set forth in the official transcript of the testi-
mony that we are concerned with herein.
In passing , I desire to call attention to all concerned herein that one of the
principal issues herein was raised by the testimony of Smallwood and Read that
they had no knowledge that the employees in the store proper, excluding those in
the meat department, were discussing the Union between May 20 and June 1, 1963.
When their denial in this regard is considered in the light of the testimony of
Smith , referred to above, the testimony of Munson , the assistant store manager, and
that of Davis in this regard, then I am convinced and find that both Smallwood and
Read were well aware of the employees ' activities in this regard , as well as the
role of Davis therein , and reject their denials in this regard in toto; and fully credit
the testimony of Davis, Smith, and Mrs. Preston Miller regarding Davis' role in
the organizational efforts among the employees on behalf of the Union in the Free-
port, Texas, store between May 21 and June 1, 1963.
Insofar as I am concerned , the testimony of Smallwood and Read , regarding the
above issue , is not only unbelievable but inconceivable as well , when considered in
the light of the admitted fact that there were at best only six or seven employees in
the store at the times we are concerned with herein, and the fact that Munson, the
assistant store manager, not only admitted that he was well aware of her activities,
but that she had discussed the Union with him not only at times material herein,
but during working hours and, to "top it off," right on the floor of the store. In
the circumstances I deem further comment in this regard not only unnecessary but
bordering on the frivolous , so to speak , except regarding the Respondent's position
as to the testimony of Munson in this regard "
It was in the light of all of the foregoing that Opal Davis was terminated by the
Respondent on June 1, 1963. We will first consider her testimony regarding what
transpired on this "day in June," which to Davis at least was not the perfect day
visualized by James Russell Lowell in "The Vision of Sir Launfal.s 16
Davis reported for work as usual on Saturday morning, June 1, 1963. She
worked throughout the day, from 9 a.m. to 6 p.m. According to her testimony,
nothing unusual occurred until she went into the office at quitting time to check out
her "tray" with Mrs. Smallwood, the head cashier. What happened after her tray
had-been checked is best told in the following pertinent excerpt from her testimony:
. After sacking the money up, I turned around and Mr. Smallwood laid this
termination notice upon my tray.
I said , "What on earth is going on?"
And he said, "Well, turn it over and read for yourself."
And, after I read it, he asked me would I sign it. And I said, "Yes."
And then I told him, "Mr. Smallwood, I didn't tell you that I was quitting.
I never have considered really quitting. I said I wanted to transfer, but I
didn't tell you that I wanted to transfer yet."
And he said, "Well, you are free to transfer now."
14 Smith's testimony regarding the phrase "get rid of her" Is quoted below:
Q (By Mr. DEAKINS ) How long was it between the time you heard the word
"Mississippi" mentioned and you heard the words "get rid of her"?
A Immediately after that.
15 See Respondent's brief at pages 24 and 25.
16 The passage reads:
"And what is so rare as a day in June '+
Then, if ever, come perfect days ;
Then Heaven tries earth if it be in tune,
And over it softly her warm ear lays ;"
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he made the remark as I was turning though, that he was fixing to do
one of the hardest things he had to do in his life, and he explained to me all
new store managers have problems they meet like that. After I signed the
termination notice, I asked him for a copy of my termination, and he said
that he didn't have to give me a copy of it.
And I said, "Why?"
He said well, he just didn't have to. They only had to make one sheet of it.
I said, "I always thought if an employee asked for it or desired a copy of
their termination, they were entitled to it."
And then I signed my timecard, went and clocked out, signed my timecard
and I had a few groceries and I checked out and left.
I wish to point out that neither Smallwood, Read, nor any representative of man-
agement had ever advised Davis of its decision to "terminate" her or even intimated
to her prior to the time that Smallwood handed her the "termination" slip that it
was contemplating such action toward her.' Its position in this regard will be fur-
ther discussed below. Suffice it to say at this point that it terminated its oldest and
most experienced employee on the eve of the shrimp season, and also at a time,
according to both Smallwood and Read, when it was most difficult, and nigh unto
impossible, to find experienced and qualified workers in the area to work in its
Freeport store during its busiest season of the year. Consequently, the discharge of
Opal Davis at the time it did and in the circumstances described above, has per-
turbed me considerably in assaying the Respondent's contentions regarding the com-
pelling factors that led to its decision to discharge her on June 1, 1963. As indi-
cated above, one of its major contentions in this regard was, in essence, that it was
necessary to have experienced personnel in the store during the shrimp season, and
that by terminating Davis at the time it did, it could hire and train new employees
during the period in question, June 1 to 15, 1963, that would enable it to handle the
increase in business it anticipated during the period in question. It further con-
tended, in essence , that a persuasive factor in its decision in this regard to "termi-
nate" Davis was that she had already told Smallwood, at the time he took over the
store on May 20, 1963, that she intended to go back to Mississippi in 2 weeks.
Though Davis' testimony in this regard will be referred to hereinafter, I wish to
point out that she emphatically denied that she made the above statement attributed
to her by Smallwood, and that she never used the phrase "two weeks" in her con-
versations with him, except on one occasion, and that was on May 29, 1963. In all
of the circumstances discussed and described above, and in the light of the record
considered as a whole, I am convinced and find that Opal Davis did not notify
Smallwood on May 20, 1963, nor at any time material herein, that she was or
would leave its employment in "two weeks," and that the only time she ever used
the phrase "two weeks" in her conversations with him was May 29, 1963, when she
told him that if she did decide to transfer from the Freeport store she would give
.. two weeks' notice before I start work on a transfer or ask them to work on a
transfer."
In all the circumstances , I find that the Respondent 's contention in this regard
was mere pretext , predicated upon not only a "mis-interpretation" of what was said
in the conversation between Smallwood and Davis on May 20, 1963, but likewise in
complete disregard of what she told Smallwood on Wednesday, May 29, 1963, just
3 days before she was "terminated" on June 1, 1963.
The main contention of the Respondent as to why it discharged Davis on June 1,
1963, is that "it didn't," so to speak , but merely acquiesced to its interpretation of
her statement to Smallwood on May 20, 1963, which was to the effect that she
would be leaving the store in about 2 weeks and go back home to Mississippi for
reasons already referred to at great length hereinabove 's Its principal witnesses in
support of its contention in this regard were Smallwood and Read . The gist of
their testimony was, as already indicated above, that neither of them had any
knowlodge of her activities on behalf of the Union prior to her termination on June 1,
1963, and that her termination was, as indicated above, necessary in order to have
a staff of experienced and well-trained personnel on duty in the store during the
171 have considered the testimony of both Smallwood and Davis regarding their con-
versation on May 29, 1963, and have found that though the "transfer" was referred to by
Smallwood, he did not by innuendo or otherwise suggest that she was to be "terminated"
and/or discharged in the near future.
1s See sapra for excerpt from Davis' testimony regarding her conversation with Small-
wood on May 20, 1963, wherein she testified that she told Smallwood ". . . she might . . .
go back to Mississippi."
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 107
shrimp season, which was only 2 weeks away; and, that it was for this reason it
had recalled Rosalee Sublett on May 29, 1963, to replace Davis after her "termina-
tion" on June 1, 1963.
At this point it is again to be noted that both Read and Smallwood testified that
they had no knowledge of Davis' activities on behalf of the Union prior to her
termination on June 1, 1963. To me their denials in this regard are of importance,
and quite frankly have played an important role in my ultimate disposition of the
issues herein, when considered in the light of the testimony of other witnesses at
the hearing herein, one of whom was Munson.
The testimony of Munson, who not only was a supervisory employee at all times
material herein, but by the very nature of his position as assistant store manager
was in daily contact with the employees in the store, is, as already indicated above,
of the utmost importance in my ultimate disposal of the issues herein, for reasons
which should be obvious and understandable to all concerned at this stage of my
Decision. His admission that the activities of Davis on behalf of the Union during
the period in question, May 20 to June 1, 1963, were not only well known to him
personally, but to Smallwood, the store manager, as well. In the circumstances,
and in the light of the denials of Smallwood and Read in this regard, and the record
considered as a whole, I find that both Smallwood and Read were not only well
aware of Davis' union activities at all times material herein, but had discussed it
between themselves on the occasions that Read, the area manager, visited the store,
and reject their emphatic denials in this regard. Having so found, I now credit
Opal Davis' testimony regarding her conversation with Read on May 31, 1963, in
which she testified that Read asked her about her attitude toward unions in general,
and that she gave him the answer which has been set forth hereinabove, which was
to the effect that she was favorable toward them and that their efforts over the
years had been beneficial to employees in general, and reject in toto Read's denials
thereof, and find that he made the remarks attributed to him by Davis in the cir-
cumstances set forth and discussed heremabove.
B. Conclusionary findings regarding the discharge of Opal Davis
After long and careful consideration of all aspects of the case at hand, I am
convinced and find that the Respondent "terminated" and/or discharged Opal Davis
on June 1, 1963, because of her activities "on behalf of the Union or because of
her concerted activities with other employees . . ." during the period from May 21
to June 1, 1963, and that its contentions in this regard and the reasons advanced by
it in justification thereof at the hearing herein were mere pretext, and that by its
action engaged in conduct violative of Section 8(a)(3) and (1) of the Act.
Though I have pointed out above that the primary factors that were determinative
to the arrival at the above conclusions and findings in regard to the case of Opal
Davis, I feel that in justice to all concerned herein I should reiterate them at this
point. To begin with, the most persuasive factor was the ultimate resolution of the
credibility of the witnesses who testified at the hearing herein. I have particular
reference to the testimony of Smallwood and Read regarding their knowledge of
Davis' activities on behalf of the Union during the period from May 20 to June 1,
1963. As pointed out and discussed at some length herein, both denied that they
were aware of Davis' activities in this regard. When their testimony is considered
in the light of the testimony of Davis, who impressed me as an honest and forth-
right witness , and the admissions of Munson regarding not only his knowledge of
her activities among the employees but his testimony that he had discussed them
with Smallwood prior to her termination on June 1, 1963, caused me to look
askance not only at their denials as to the above but as regards their testimony in
its entirety regarding the issues herein.
It was in the light of not only the foregoing but the record considered as a whole
that convinced me that the Respondent 's position as to Opal Davis was not only
mere pretext , but incomprehensible as well when considered in the light of the
physical facts in the Freeport, Texas, store," and its animus toward the efforts of
its employees to exercise their rights under the Act, as was, well illustrated at the
hearing in the uncontradicted and undenied testimony of Davis herself as to the
instructions given her by her superiors in this regard several months prior to her
discharge on June 1, 1963.
19I have reference to the fact that there were only six or seven employees in the store
proper, and the further fact that the record shows that both Smallwood, the store man-
ager, and Munson, the assistant store manager, mingled with the employees on the floor
at all times material herein.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged independent violations of Section 8(a)(1) of the Act
According to the record herein, particularly the complaint as amended at the
hearing, the issues raised by the allegations in the complaint regarding independent
violations of Section 8(a)(1) of the Act, are concerned with incidents that oc-
curred after Opal Davis was terminated on June 1, 1963, except as to one that con-
cerns Davis herself that allegedly occurred on May 31, 1963.
The incident in question is set forth in the General Counsel's amendments to the
complaint at the hearing, and alleged that "on or about May 31, 1963, Area Super-
visor Silas C. Read, at Respondent's Freeport, Texas, store interrogated an em-
ployee about her sympathies concerning labor organizations," which the Respond-
ent denied in its answer, as amended at the hearing.
Though the incident has been referred to at some length herein, and I have found
that Read went to Davis, after he and Smallwood had been conversing for sometime
in the back of the store near the meat counter, and asked her in essence how she
"felt about union labor"; and that she told him in no uncertain language "I am for
union labor one hundred percent. If it wasn't for the union's [sic] everybody would
be working for chicken feed and eating with the chickens." Read not only denied
that he had a conversation with Davis at the time in question but that he never at
anytime talked to her about the Union. Though my findings in this regard were
part and parcel of my overall findings as to the issue concerning Davis' "termina-
tion," in which I credited Davis' testimony in toto as to what transpired on May 31,
1963, and discredited that of both Read and Smallwood, I now, in view of the state
of the pleadings in regard to this particular incident , specifically find that Read made
the remark attributed to him by Davis on May 31, 1963.
Having so found in the circumstances discussed above , at this point I further find
that Read 's interrogation of Davis regarding her personal "feelings" about unions
and/or labor organizations was in and of itself violative of Section 8(a)(1) of the
Act, in that it was uttered at a time when her tenure of employment with the Re-
spondent was under consideration , and that she was engaged in concerted activities
on behalf of the Union, which was a matter of common knowledge among her co-
workers in the Freeport , Texas, store. Consequently , such interrogation standing
alone , when considered in the light of the circumstances described above, constituted
interference , restraint , and coercion within the meaning of Section 8(a)(1) of the
Act, and I so find.
The complaint , as amended , also alleges certain other independent violations of
Section 8(a)(1) of the Act, two of which concern Smallwood's interrogation of one
Rosalee Sublett , the employee who replaced Opal Davis as a checker , on June 2,
1963. The first incident that we are concerned with occurred sometime in July
1963 under the following circumstances."
According to Sublett, Smallwood came to her sometime in July 1963 and asked
her "what the union talk was about and what was going on, and I told him, of
course, I just was so shocked, I said, I don't know." He then asked her "who
talked to me about it, and I said I couldn't give him no answer." Smallwood ad-
mitted that he had the above conversation with Sublett, and placed the date thereof
as the same date that the Board was conducting an election among the employees in
the Respondent's store in Houston, Texas, which the record shows was July 25,
1963. He further testified that it was on this date that he first heard about the
Union, or that there had been any activity in this regard in the Freeport, Texas,
store, and that this information was given him by two officials of the Company who
were visiting the store on this particular day, Mr. Feen, a vice president, and Mr.
Rinehart, superintendent of the Houston, Texas, area, which included the Freeport,
Texas, store. His version of what was said in his conversation with Sublett is
practically the same as hers, except as regards her reference to his query as to "who
talked" to her about the Union. In all the circumstances, and upon the record as
a whole, I credit Sublett's version thereof and find that Smallwood made the state-
ments attributed to him by Sublett in the conversation we are now concerned with.
In the circumstances already found above as to Opal Davis, and upon an overall
appraisal of Smallwood's inquiry regarding who had talked to her about the Union,
I am convinced and find that his interrogation of Sublett constituted interference
with, restraint, and coercion within the meaning of Section 8(a)(1) of the Act.
It is to be noted that I have cited no "authorities " to support my findings as to
the independent 8(a) (1) allegations which are disposed of above. As I see it, the
allegations involved the sort of conduct that the Board has been faced with ever
20 See Infra for approximate date the conversation occurred
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 109
since the Act became effective in August 1935, and it has consistently found it to be
violative of the Act with the approval of the courts. In such circumstances I saw
no necessity for citing cases ad infinitum as authority for findings in the already too
burdensome Decision regarding the issues herein.
The other incident in which Sublett was a participant concerns another conversa-
tion she had with Smallwood on or about August 10, 1963; the allegation in the
complaint, as amended at the hearing herein, that we are now concerned with was
as follows:
Subparagraph 7(e):
On or about August 10, 1963, Store Manager Lawrence Smallwood threat-
ened an employee with loss of time off if the Union won an election among
Respondent's employees.
Sublett's testimony in regard to the incident in question was none too clear to me,
primarily because of the issues regarding the "probabilities" of what Smallwood said
and what he might have said as raised by counsel for the parties during the course
of her interrogation in this regard. Even so, I am convinced from the interpreta-
tion of the record that what transpired and was said at the time was as follows
As I see it, here is -what happened-oh August 10, 1963. According to Sublett she
had talked to Smallwood sometime before about a change in her day off which
was due her, under "Company Policy," on Monday, September 2, to Saturday,
August 31, 1963, so that she and her family would have a 3-day holiday. The
reason for her request was that Monday, September 2, was a holiday, Labor Day,
and that by moving her day off back to Saturday, August 31, she would have a
3-day holiday without any loss of time with the Company. It was for the
foregoing reasons that she again talked to Smallwood in this regard on August 10,
1963, and also because she wanted to have the matter determined in advance so
that she and her family could make plans for the 3-day holiday. As indicated
above it was for this reason that she brought the question up with Smallwood on
the date in question, August 10, 1963.
After long and careful consideration of the testimony of both Smallwood
and Sublett regarding the incident we are concerned with, I am convinced and
find that Smallwood told her in the course of their conversation that he would see
what he could do about her request, and at the time pointed out to her that if the
store was "organized," they, meaning both the Company and Sublett, would be re-
quired to process her request through the Union, and since other employees would
be involved it would require a change in the Company's schedule that would have to
be posted on its bulletin board. In other words since the employees' day off
policy was a "Company benefit" that was in effect at times material herein, then
Sublett would be required to "process" her request through the Union, and both she
and a company representative, such as Smallwood, would be prohibited from mak-
ing any personal arrangements that might possibly be of benefit to her as an indi-
vidual, or a "person." Or, putting it another way, the Company's policy in this
regard and Smallwood's role therein would not necessarily be the - same if the plant
were organized.
After long and careful consideration, I am convinced that Smallwood's remarks to
Sublett in the circumstances described above were not violative of the Act. My
reasoning in this regard is predicated upon the fact that, in the final analysis, his
remarks were not coercive, but merely his opinion regarding the policy of labor
organizations in processing requests similar to Sublett's, which was to the effect that
they consider the employees as a group and not as "persons" or "individuals." In
any event, her request was granted by Smallwood and shortly thereafter the parties
herein entered into a consent-election agreement . In such circumstances, and the
fact that no one was "injured" so to speak, what useful purpose would be served by
finding the incident we are now concerned with a "technical" violation of the Act,
particularly in view of what I have already found above? In all the circumstances,
I will recommend the dismissal of the allegation we are concerned with at this stage
of my Decision.'
There yet remains for consideration the allegation in the complaint, as amended,
regarding certain remarks made by Area Supervisor Read to the employees at a
meeting in the store on September 3, 1963, about the possibility that certain bene-
fits and working conditions that they then had with the Company might be changed
21 See Trent Tube Company, Subsidiary of Crucible Steel Company of America, 147
NLRB 538.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the event the Union was selected as the collective-bargaining representative for
the employees in the store in a Board election which was to be held on September 5,
1963. The remarks by Read in the course of his speech to the employees that
the General Counsel contends were violative of Section 8(a) (1) of the Act, were as
follows:
We would have to start from scratch as far as wages, insurance, hours of
work and other benefits are concerned.
Read admitted that he made the remarks we are concerned with in the circum-
stances described above.
As I see it, the above statement of Read to the employees was in the final analysis
nothing more than a summation of his opinion as to what the employees might ex-
pect if they chose the Union as their collective-bargaining representative in the
Board election that was to be held on September 5, 1963. The Board has had
similar questions before it on many occasions in the past and has held that a party,
such as the Respondent, has a right to ". . . inform employees of the advantages
and disadvantages of unions and of joining them as long as such information is
imparted to employees in a noncoercive manner." Since I am convinced that
Read's remarks to the employees were neither coercive nor of such a nature that the
employees who were present at the meeting in question could reasonably construe
them as threats of reprisal by their Employer (the Respondent herein) in the event
the Union won the election, I am convinced that they were nothing more than
"election propaganda," which Read as an officer of the Respondent was privileged
to make in the exercise of his rights to free speech.'
In all the circumstances, I am convinced and find that the remarks made by Read
to the employees on September 2, 1963, were privileged and not violative of Section
8 (a) (1) of the Act. In such circumstances I will recommend below that this par-
ticular allegation in the complaint should likewise be dismissed in its entirety.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. In view of its violation of Sec-
tion 8(a)(3) of the Act, it would appear that the issuance of a broad order is
warranted.
Having found that Respondent discriminatorily discharged Opal Davis, I shall
recommend that it offer to her immediate and full reinstatement to her former or a
substantially equivalent position, without prejudice to her seniority or other rights
and privileges.
It will be further recommended that Respondent make said Opal Davis whole for
any loss of pay suffered by reason of the discrimination against her by payment to
her of a sum of money equal to that amount of wages she would have earned, but
for said discrimination, from the date to which she was paid after her discharge to
the date she is offered reinstatement, together with interest thereon, as provided be-
low. Isis Plumbing & Heating Co., 138 NLRB 716. The loss of pay shall be
computed in accordance with the formula and method prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289. The interest payable shall be com-
puted at the rate of 6 percent per annum on the amount due in each instance for
each calendar quarter (under the Woolworth formula) beginning with the end of
the first calendar quarter and continuing for each succeeding calendar quarter until
payment of such amount is properly made.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
'-'See Board's decision in Trent Tube Company, etc., 147 NLRB 538, and cases cited
therein
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 111
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. Respondent discharged Opal Davis, in violation of Section 8(a) (3) and (1) of
the Act, because of her union activities.
4. By interrogating its employees as to their union adherence and threatening
them with economic reprisals because of it, Respondent engaged in conduct consti-
tuting interference, restraint, and coercion within the meaning of Section 8(a)( I) of
the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of the Act, as
amended, it is hereby ordered that Respondent, The Great Atlantic and Pacific Tea
Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging activities on behalf of, or membership in, the Union, or any
other labor organization, by discharging any of its employees, or in any other man-
ner discriminating against any employees or applicants for employment in regard too
their hire or tenure of employment, or any term or condition thereof, because
of their union affiliation or activities.
(b) Unlawfully interrogating its employees as to their interest in, or activities on
behalf of, the Union, or any other labor organization.
(c) In other manner interfering with, restraining, or coercing employees or appli-
cants for employment in the exercise of their right of self-organization, to join or
assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Opal Davis immediate and full reinstatement to her former or a sub-
stantially equivalent position, without prejudice to her seniority or other rights and
privileges.
(b) Make said Davis whole for losses suffered as a result of the Respondent's
discrimination against her, together with interest thereon at 6 percent per annum,
as provided in the section entitled "The Remedy." It shall also preserve and, upon
request, make available to the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
relevant to a determination of the amount of backpay due under the terms of this
Recommended Order.
(c) Post at its plant in Freeport, Texas, copies of the attached notice marked
"Appendix." 23 Copies of said notice, to be furnished by the Regional Director for
Region 23, shall, after being duly signed by Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for at least 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
employees and applicants for employment are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision, what steps Respondent has taken to comply herewith."
The complaint is dismissed insofar as it relates to certain independent violations
of Section 8(a)(1) of the Act, as alleged in subparagraphs 7(c) and 7(e) in the
complaint.
23 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial- Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
' =4 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activity on behalf of , Retail
Clerks Union Local No. 455, AFL-CIO, or any other labor organization, by
discriminating against our employees in regard to their hire or tenure of em-
ployment, or any term or condition of employment.
WE WILL NOT unlawfully interrogate our employees with respect to their
interest in, or activities on behalf of, said Union, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor or-
ganizations , to join or assist the above-named Union or any other labor organi-
zation, to bargain collectively through representatives of their own choosing, to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , and to refrain from any or all such activities.
WE WILL offer Opal Davis reinstatement to her former or a substantially
equivalent position , without prejudice to her seniority or other rights and privi-
leges, and we will make her whole for any loss of pay suffered as a result of our
discrimination against her.
All our employees are free to become or remain members of Retail Clerks Union
Local No. 455, AFL-CIO, or any other labor organization , or to refrain therefrom
except to the extent such right may be affected by an agreement authorized by Sec-
tion 8(a)(3) of the National Labor Relations Act of 1947, as amended.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC.
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of her right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston , Texas, Telephone No. 8-0611, Ex-
tension 4271 , if they have any question concerning this notice or compliance with
its provisions.
Caldwell Mfg. Co., Inc. and Garyl L. Bartlett. Case No. 17-CA-
2353. October 26, 1964
DECISION AND ORDER
On July 20, 1964, Trial Examiner Sidney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. He also found that Respondent had not engaged in other un-
fair labor practices alleged in the complaint and recommended dis-
149 NLRB No. 20.