The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Feb 25, 1960

126 N.L.R.B. 820 (N.L.R.B. 1960)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed by 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.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The Great Atlantic & Pacific Tea Company, Inc. and Retail,
Wholesale and Department Store Union , AFL-CIO. Case No.
10-CA-4026. Februanj 25, 1960
DECISION AND ORDER
On October 6, 1959, Trial Examiner Louis Libbin issued his Inter-
mediate Report 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices, and recommended that the complaint be dismissed with
respect thereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman Leedom and Members Bean and Jenkins.]
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner?
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
'No exceptions were filed to the Trial Examiner ' s finding that the General Counsel
failed to sustain his burden of proving that Respondent discriminated against Com-
plainant Field Consequently, we adopt this finding
The Respondent has excepted to the Trial Examiner's credibility findings As it is
the Board's established policy not to overrule a Trial Examiner's resolutions as to
credibility except where, as is not the case here, the clear preponderance of all the
relevant evidence convinces it that the resolutions were incorrect, we find no ba:s,s for
disturbing the Trial Examiner's credibility findings. Standard Di,j Wall Products, Inc.,
91 NLRB 544 enfd 188 F 2d 362 (C A 3)
3 Contrary to the Respondent, we find insufficient reason for denying reinstatement to
Complainant Kirby in the Huffstetler incident occurring prior to his discharge, wli.ch is
reported in the Intermediate Report.
126 NLRB No. 102.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 821
Relations Board hereby orders that the Respondent, The Great At-
lantic & Pacific Tea Company, Inc., its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, or any other labor organization of its
employees, by discharging or refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to their hire
or tenure of employment, or any term or condition of employment.
(b) Interrogating employees concerning their interests in, and in-
tentions with respect to joining, the above-named or any other labor
organization, in a manner constituting interference, restraint, or
coercion violative of Section 8(a) (1) of the Act.
(c) Informing employees not to mention the Union to employees
at any time, that they could not work for the Union and the Company
at the same time, that the Company will fight the Union, and that the
Company will not recognize the Union even if it won a Board-
conducted election.
(d) Threatening employees with discharge or other economic re-
prisals for their union activities.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Bill Kirby immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of the Respondent's
discrimination against him, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the National
Labor Relations Board or its agents, for examination and copying,
all payroll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(c) Post at its stores located in the city of Knoxville, Tennessee,
and the communities of Alcoa and Oak Ridge, Tennessee, copies of
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the notice attached hereto marked "Appendix A."' Copies of such
notice, to be supplied by the Regional Director for the Tenth Region,
shall, after being duly signed by Respondent's representative, be
posted by Respondent immediately upon the receipt thereof, and
maintained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the aforementioned Regional Director for the Tenth
Region, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply therewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated Section 8 (a) (1) ,
(3), and (4) of the Act by its treatment and discharge of Bonnie K.
Field.
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."
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 our employees that:
WE WILL NOT discourage membership in Retail, Wholesale and
Department Store Union, AFL-CIO, or any other labor organiza-
tion, by discharging or refusing to reinstate any of our employees,
or in any other manner discriminating in regard to their hire
or tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate employees concerning their interests
in, and intentions with respect to joining, the above-named or any
other labor organization, in a manner constituting interference,
restraint, or coercion violative of Section 8(a) (1) of the Act.
WE WILL NOT inform our employees not to mention the above-
named Union to employees at any time or that they should not
Work for said Union and the Company at the same time, or that
the Company will fight said Union, or that the Company will not
recognize said Union even if it won a Board-conducted election.
WE WILL NOT threaten our employees with discharge or other
economic reprisals for their union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist the above-
named or any other labor organization, to bargain collectively
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 823
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by
an agreement authorized in Section 8 (a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of
1959.
WE, WILL offer to Bill Kirby immediate and full reinstatement
to his former or a substantially equivalent position without
prejudice to his seniority and other rights and privileges and
make him whole for any loss of pay suffered as a result of the
discrimination against him.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor organization, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
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 material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Retail, Wholesale and Department Store Union, AFL-CIO,
herein called the Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued
his complaint, dated May 8, 1959, against The Great Atlantic & Pacific Tea Com-
pany, Inc., herein called the Respondent. With respect to the unfair labor practices,
the complaint alleges, in substance, that Respondent (1) engaged in specified acts
of interference, restraint, and coercion; (2) discharged employee Bill Kirby on or
about October 20, 1958, and thereafter refused to reemploy him because of his
union and concerted activities; (3) refused to grant full-time employment status
and a wage increase to employee Bonnie K. Field, discharged her on or about
December 4, 1958, and thereafter refused to reemploy her, all because of her union
and concerted activities and because she gave testimony under the Act; and (4)
by the foregoing conduct has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of
the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its duly
filed answer , Respondent admits the jurisdictional allegations and the discharge of
employees Kirby and Field but generally denies all unfair labor practice allegations.
Pursuant to due notice, a hearing was held on July 14, 1959, at Knoxville,
Tennessee . The General Counsel and the Respondent were represented at the
hearing. All parties were afforded full opportunity to be heard , to examine and
cross-examine witnesses , to introduce relevant evidence , to present oral argument
at the close of the hearing, and thereafter to file briefs as well as proposed findings
of fact and conclusions of law. Respondent 's motion to dismiss the complaint, made
before the close of the hearing and upon which I reserved ruling, is denied in part
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and granted in part, in accordance with the findings and conclusions made below.
After the close of the hearing, the General Counsel and the Respondent filed briefs,
which I have fully considered.
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
Respondent is an Arizona corporation engaged in the operation of retail grocery
stores in various States throughout the United States, including the State of Tennessee.
During the 12 months preceding the date of the complaint, which period is repre-
sentative of all times material herein, the Respondent, in connection with its opera-
tions in the State of Tennessee, purchased and received goods, valued in excess
of $1,000,000, directly from suppliers located outside the State of Tennessee.
Upon the above-admitted facts, I find that Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find, that Retail, Wholesale
and Department Store Union, A51-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues in this proceeding are whether Respondent (1) unlawfully discriminated
with respect to the hire, tenure, and terms of employment of Bill Kirby and Bonnie
K. Field, and (2) engaged in certain specified acts of interference, restraint, and
coercion. As much of the testimony bearing on these issues is directly in dispute,
the resolution of the credibility of the witnesses will have an important bearing on
the determination of these issues.
A. Prior pertinent proceedings
Pursuant to a representation petition filed by the Union on July 3, 1957, the Board
issued a Decision and Direction of Election on November 25, 1957, in Case No.
10-RC-3909,1 directing that an election be held on December 11, 1957, among
the Respondent's employees in nine stores located in the city of Knoxville, Tennessee,
and in the communities of Alcoa and Oak Ridge, Tennessee. On March 21, 1958,
the Board issued a Second Direction of Election, scheduling the election for April
9, 1958. Of the 163 ballots cast in the election held on that date, 76 were for the
Union, 82 for no labor organization, and 5 ballots were challenged. On or about
April 14, 1958, the Union filed timely objections to the conduct of the election and
on October 4, 1958, the Board directed that a hearing be held on certain of these
objections.
Meanwhile, on September 11, 1958, the General Counsel issued a complaint,
alleging that Respondent had engaged in unfair labor practices violative of Section
8(a)(1), (3), and (4) of the Act. Thereafter, the unfair labor practice proceeding
was consolidated with the hearing on objections, and a single hearing was held before
Trial Examiner Wheatley in Knoxville, Tennessee, on November 18, 19, and 20, 1958.
On August 5, 1959, the Board issued its Decision in this consolidated proceeding,2
finding that Respondent violated Section 8 (a) (1) of the Act by threats of economic
reprisals and unlawful interrogation engaged in by Store Managers Jarnigan, Whit-
ley, Bishop, and Huffstetler, and dismissing the allegations of discriminatory dis-
charges in violation of Section 2(a) (3) and (4) of the Act. In addition to the usual
order based on such findings, the Board ordered that the election be set aside and
that a new election be conducted at such time as the Regional Director "deems that
circumstances permit the free choice of a bargaining representative."
B. Discrimination in employment
1. Bill Kirby
a. Kirby's union activities
• When the Union began its organizational campaign in the summer of 1957, Kirby
had been employed in Respondent's Alcoa store in the produce and stock depart-
1119 NLRB 603.
2 124 NLRB 329.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY) INC. 825
ments for about 2 years. He immediately became active on behalf of the Union,
and during the lunch period and in the evenings solicited the store employees to
sign union authorization cards. He attended all union meetings, testified for the
Union at the representation hearing held in Atlanta, Georgia, on August 8, 1957,
and acted as an observer for the Union in the Board-conducted election on April
9, 1958. Kirby continued his union interests and activities after the election. He
had made no secret of his union activities and interests, and Hubert Huffstetler,
manager of the Alcoa store, was well aware of them.
b. Relevant events preceding Kirby's discharge
(1) At the Alcoa store
On Saturday, September 20, 1958, Kirby refused to sign the 6-month work
progress report prepared by Manager Huffstetler because of his belief that he merited
a better report. Huffstetler reported the matter to Area Supervisor Davis, when
the latter visited the Alcoa store the following Tuesday, September 23. Davis
discussed the matter with Kirby, in Huffstetler's presence. In response to Davis'
query, Kirby stated his reason for not signing the report and explained that he felt
that in downgrading him on some of the factors Huffstetler was discriminating against
him because of his activities on behalf of the Union.3 Davis asked Kirby why he was
for the Union. Kirby replied that he had studied unionism in school, that he lived
in a union town, and that he was raised by a union family. Davis also asked if
Kirby would join the Union if it got in. Kirby answered that he would be one of
the first to join. Davis then stated, "Well, the Union can't do a thing for you and
you can't work for the Company and the Union at the same time." Kirby replied
that he felt that he could. When Davis stated that he could work with a union or
without a union and that it did not make any difference to him, Kirby then asked
if that was his attitude "why was he fighting the Union so?" Davis replied that "we
have not even began to fight this union yet" and that they would not recognize
the Union even if it got voted in. The conversation ended with Davis stating that
he did not like Kirby's "attitude" and that he was going to transfer Kirby to another
store. Davis asked Kirby if he would prefer to go to the Knoxville store or to the
Oak Ridge store. Kirby replied that he would prefer the Knoxville store because it
was nearer to his home. The conversation lasted about 30 minutes.4
(2) At the Oak Ridge store
Despite Kirby's expressed preference for the Knoxville store, he was informed at
the end of the week that Davis had ordered his transfer to the Oak Ridge store,
9
Kirby's feeling in this regard is understandable in view of Huffstetler's prior un-
successful efforts to persuade Kirby to drop his activities on behalf of the Union and
Huffstetler's threat that if the Union won the election Kirby's "two raises a year"
would not be forthcoming, as found by the Board in the unfair labor practice proceeding,
supra.
4 The findings as to this conversation are based on the credible testimony of Bill
Kirby Contrary to Respondent's erroneous assertions in its brief, Kirby's testimony in
this proceeding is neither inconsistent nor in conflict with his testimony given in
November 1958 in the prior unfair labor practice hearing In the prior hearing Kirby
was not questioned, and consequently did not testify, about any of the conversations
concerning which he testified at the hearing in the instant case
Davis testified that he did not get into any discussion about the Union and denied
having made the statements about the Union hereinabove set forth. He admitted, how-
ever, that he told Kirby "he couldn't work for the Union in our store, on our time." If
there had been no discussion about the Union or Kirby's union activities, there would
have been no occasion for making such a statement Davis further testified that he said
he felt there was ill feeling between Kirby and Huffstetler and that Kirby might be
transferred to another store, without mentioning any particular store Huffstetler merely
denied that Davis asked Kirby anything about joining the Union. He did not give any
direct answer to corroborate Davis' denials about having made the statements concerning
the Union, as set forth in the text. On cross-examination, he testified that he did not
"remember" whether Davis said anything else about the Union. Both Davis and
Huffstetler admitted that the conversation lasted from 25 to 30 minutes.
Under all the circumstances, including my observation of the demeanor of the witnesses
and for the reasons hereinafter discussed with respect to Davis' asserted reasons for
discharging Kirby, I do not credit the testimony of Davis and Huffstetler to the extent
that it conflicts with that of Kirby.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located about 40 miles from Knoxville. Kirby reported for work at the Oak Ridge
store on Monday morning , September 29. While employed at the Oak Ridge store,
Kirby continued to talk to the store employees in favor of the Union . About Friday
morning, October 3, Store Manager Ken Silvers called Kirby into the backroom,
told him that some of the employees had complained that he had been talking to
them about the Union on company time or property , and announced that he did not
want to hear Kirby mention the Union around here at any time to any of his
employees . Kirby denied that he had been talking about the Union on company
time or property and asserted his intention to continue to talk about the Union
on his own time and off company property . Silvers warned that "If I was you, I
would not be so brave for this Union, or the Company will bump you off." Silvers
then ordered Kirby to go back to work and "not to mention Union to any of his
employees any more."
About a week later Silvers again called Kirby into the backroom and told him
that he was to report to the Chapman Highway store the following Monday night
to work the night shift . In reply to Kirby's query as to whether his work had been
satisfactory , Silvers replied in the affirmative , adding that Kirby "was a good
worker." Silvers then warned Kirby again that "if you are going to be for this
Union , that I would keep my mouth shut , and wouldn 't be so brave, or the Com-
pany might bump you off."
The foregoing findings are based on the credible testimony of Bill Kirby. Silvers
testified that he received a complaint from one of his employees on the afternoon of
Kirby's first day of employment and from three other employees a few days later to
the effect that they resented the fact that Kirby was discussing the Union on the
job and "downing the A & P Tea Company ," and that he talked to Kirby about these
complaints in the backroom .5 Silvers admitted that Kirby had denied talking about
the Union on the job. Silvers , however, denied having made any of the other state-
ments concerning the Union , hereinabove set forth , and further denied mentioning
the Union in his second conversation.
Area Supervisor Davis testified that shortly after Kirby began working at the Oak
Ridge store , Manager Silvers informed Davis by telephone that some of the em-
ployees were complaining that they resented Kirby "running down the A & P Tea
Company" and carrying on union talk during working time; that Davis told Silvers
to talk to Kirby about it; and that Silvers replied that he had already talked to him
about it. Davis further testified that a few days later Silvers telephoned to him
again , reported that Kirby was "still doing some of it," and that he did not want
Kirby in his store any longer . Davis testified that he then found a place for Kirby
in the Chapman Highway store to stock in the store at night.
However, Silvers ' version differs in some material respects from that of Davis. He
testified to only one telephone conversation with Davis a few days after Kirby began
working in the Oak Ridge store ; that he told Davis that Kirby "is not going to work
out here, because we are going to have trouble if he keeps knocking the A & P Tea
Company" and that it would be test to transfer Kirby somewhere else. He further
testified that Davis telephoned to him later and told Silvers to inform Kirby to report
to the Chapman Highway store
Respondent did not call as witnesses any of the employees who allegedly made the
complaints to which Silvers testified , and made no claim or showing that they were
unavailable . Nor did Silvers testify to having received any further complaints after
having talked to Kirby the first time or that Kirby thereafter continued to engage in
union talk on company time or property . Moreover, by Silvers ' own admission,
his report to Davis made no mention of any activity on company time or property.
In view of all the foregoing , and the credible testimony of Kirby that he did not
engage in any union activity on company time or property , I am convinced and find
that Kirby's transfer was truly motivated by a desire to keep him from propagandiz-
ing the store employees in favor of the Union as against the Company , and not
because of any alleged belief or genuine concern that this was being done during
working time. Under all the circumstances , including my observation of the
demeanor of the witnesses , I do not credit Silvers' testimony to the extent that it
conflicts with that of Kirby with respect to the two conversations held in the back of
the Oak Ridge store.
(3) At the Chapman Highway store
On Monday night , October 13 , Kirby reported for work at the Chapman High-
way store , located about 18 miles from the Alcoa store . That night he stocked
the merchandise on the shelves with incorrect prices and did not rotate the stock
c Respondent ' s statement in its brief that the conversations reported to Silvers were
not regarding the Union is erroneous and contrary to Silvers ' own testimony.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 827
according to company policy. Kirby made the corrections the next morning when
it was called to his attention. Store Manager Jarnigan testified that it was reported
to him on Wednesday that Kirby had stocked 2-pound bags of sugar and had mis-
marked them, and that he had Kirby make that correction.6 Jarmgan further testified
that he reported to Davis that he could no longer use Kirby because of these errors.
On Saturday night, October 18, Jarnigan informed Kirby that he was to report to
the Broadway store the following Monday morning to work in the produce
department.
c. The discharge of Kirby on October 20
Kirby lived about 1 mile from the Alcoa store, which was located about 20 miles
from the Broadway store. Before reporting for work at the Broadway store on
Monday morning, October 20, Kirby went to the Alcoa store to buy some bacon and
eggs for his children While there, he was talking to some of the employees at the
produce counter. Manager Huffstetler came over and told Kirby to leave because
he was interfering with the work of the employees or he would have Kirby thrown
out. Kirby thereupon made an obscene remark to Huffstetler, and left the store.?
Kirby had worn a sport shirt when he was working at the Chapman Highway
store. He reported for work at the Broadway store Monday morning, also wearing
a sport shirt. Store Manager Spencer Ross asked Kirby why he was not wearing
his dress shirt and bow tie. Kirby replied that Davis had given him permission to
wear a sport shirt, but promised to wear a dress shirt and bow tie the next day.
He also volunteered to go back home and get it then. However, Manager Ross told
Kirby to fill out his timecard, and then put him to work in the produce department.8
Later that day Davis came to the Broadway store and, together with Manager
Ross, called Kirby into the backroom where Davis confronted him with his state-
ment to Ross that Davis had told hem he could wear a sport shirt and no tie. When
Davis denied that he had ever discussed this subject, Kirby replied that it must have
been Hubert Huffstetler or someone else. Davis told Kirby that he did not like
Kirby's attitude" and did not want to see him around anymore. Kirby asked if
Davis was referring to Kirby's "attitude toward the Union." Davis replied, "That
damn Union is the big thing, and your attitude toward this tie." Davis then dis=
charged Kirby and told Manager Ross to get Kirby's pay During the course of the
conversation, Kirby had asked Davis if he knew anything about the incident that
morning with Manager Huffstetler and if Huffstetler had the right to throw Kirby
out of his store. Davis replied that he did not know anything about it, that he had
not seen or talked to Huffstetler, and that what Huffstetler did with his store was
his own business.
Davis and Ross denied that the Union was mentioned or that Davis said he had
not talked to Huffstetler and knew nothing about the incident that morning at Huff-
stetler's store, as Kirby had credibly testified. Davis admitted that "there was
mention about attitude," and Ross admitted that Davis said he did not like Kirby's
"general attitude about the whole thing " Davis also admitted that Kirby had asked
if Huffstetler had a right to run him out of the store and that he had replied that
Huffstetler had a right to run anyone out whom he did not want in the store. Davis
further testified that he had received a telephone call from Manager Huffstetler that
morning and that Huffstetler told him about the incident with Kirby at the Alcoa
store, that he at that point decided to discharge Kirby because "he can't talk to one
of my managers like that and work for me," and that he went to the Broadway store
for the express purpose of discharging Kirby. He further testified that when he
arrived at the Broadway store, Manager Ross asked if Davis had told Kirby he could
wear a sport shirt without a tie, that Davis denied discussing the subject with Kirby,
that Ross replied that Kirby had made such a statement to him, and that Davis
and Ross then decided to call Kirby into the backroom to talk to him about this
matter. Yet, both Davis and Ross admitted that Davis did not mention the Huff-
stetler incident to Kirby at all Nor did Davis tell Ross at any time that he had
decided to discharge Kirby It seems unlikely to me that, if Huffstetl_er had in fact
already reported the incident to Davis and Davis had come to the store for the
6 Kirby denied at the hearing that he had stocked the 2-pound bags of sugar that day
He testified that he had stocked the 5-pound bags of sugar, that no one had said anything
to him about the 2-pound bags of sugar, and that he did not change any prices on the
2-pound bags I find it unnecessary to resolve this conflict
7I do not credit Huffstetier's testimony that Kirby made the obscene remark before
be told Kirby to get out of the store
s The findings in this paragraph are based on the mutually consistent testimony of
Kirby and Ross
$28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
express purpose of discharging Kirby because of it, Davis would not have mentioned
this to Kirby as a reason for his discharge or told Ross that he had already decided
upon Kirby 's discharge when Ross discussed the matter of Kirby's statement about
wearing a sport shirt without a tie. Davis' testimony becomes even more unbeliev-
able in view of his silence in this regard when the opening for such an explanation
was afforded by Kirby who, according to Davis' own testimony, stated that Huff-
stetler had run him out of his store that morning and asked if Huffstetler had a
right to do so. Moreover, Davis testified that when Ross said that he no longer
wanted Kirby working in his store, Davis replied, "If you don't want him, I can't
move him anywhere else, so get his money and pay him off." This is hardly
the response normally to be expected from one who had come to the store for the
express purpose of discharging Kirby because of the Huffstetler incident.
Under all the circumstances, and upon my observation of the demeanor of the
witnesses, I find that Davis had not been informed of the Huffstetler incident at
the time of Kirby's discharge,9 and do not credit the testimony of Davis and Ross
to the extent that it conflicts with that of Kirby, as hereinabove set forth.
d. Kirby's efforts to seek reinstatement
On December 1, 1958, Kirby went to the Alcoa store, which is located about a
mile from his home, and asked Manager Huffstetler for an employment application.
Huffstetler replied, "Bill you know better than that. It won't do you any good. I
will give you an application but it won't do you any good." 10
e. Concluding findings
The Respondent contends in its brief that Kirby was discharged for "inefficiency
and insubordination and his inability to get along with other employees .
coupled with his obscene statement to a Store Manager and his deliberately mis-
representing a conversation with the Area Supervisor" relating to wearing apparel.
The foregoing constitutes Respondent's description of the incidents hereinabove
related. Significantly, except for Kirby's statement regarding Davis' permission to
wear a sport shirt without a tie, none of these incidents were admittedly mentioned
to Kirby at the time of his discharge. The explanation for this silence lies in the
fact that (1) the incident concerning the obscene remark to Manager Huffstetler
had not yet been reported to Area Supervisor Davis when he discharged Kirby, as
previously found, and (2) it had not been Respondent's practice to regard the other
matters as grounds for discharge.
Thus, Davis admitted that an employee is not required to sign the work progress
report if he does not wish to do so, and that Respondent does not hold it against
any employee for refusing to sign because he does not agree with the ratings. Joe
Kanipe, Respondent's own witness who was in charge of the stock clerks in the
Chapman Highway store, testified that it was not uncommon for stockboys to put
up the wrong prices on stock. All that happened on such occasions, according to
Kanipe's testimony, was to point out the errort to the clerk and have him make the
corrections; none were transferred to other stores because of such errors. The record
is devoid of any probative credible testimony that Kirby was unable to get along
with other employees. As previously found, Kirby's activities in propagandizing
the employees of the Oak Ridge store in favor of the Union as against the Company
were not carried on during working hours, and his transfer from that store was
not motivated by any bona fide belief or genuine concern that working time was
involved, as previously found.
Davis testified that it was his policy to require the clerks who came in contact
with customers to wear a dress shirt and bow tie, and that other clerks could wear
anything they wanted. Kirby was required to wear different apparel at each of the
stores in which he worked. When he was working in the Alcoa store in September
1958, he was wearing a sport shirt. When he reported at the Oak Ridge store
wearing a sport shirt, Manager Silvers told him to wear a long sleeve dress shirt and
bow tie the next day. Kirby complied with this request. When he reported to the
Chapman Highway store wearing a long sleeve dress shirt and bow tie, Manager
Jarnigan told him to wear a sport shirt the next day. Kirby complied with this
request. He reported for work in a sport shirt at the Broadway store because he
had been wearing that type of shirt in the previous store. He volunteered to go
9I do not credit Huffstetler's testimony that he had informed Davis of the incident that
morning.
10 The findings in this paragraph are based on the credible and undenied testimony of
Kirby. Huffstetler merely testified that he did not remember the incident.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC . 829
home that morning to change his apparel when Ross indicated he should be wearing
a dress shirt and bow tie. Davis and Ross later accused him of having misrepre-
sented that Davis had given him permission to wear a sport shirt without a tie.
Although Kirby then explained that he was mistaken and that it must have been
Hubert Huffstetler or someone else, he was summarily discharged.
During the discussion over Kirby's refusal to sign Manager Huffstetler's Work
Progress Report, Area Supervisor Davis displayed his union animus and resentment
over Kirby's militant advocacy of the Union. When Davis warned Kirby that he
could not work for the Company and the Union at the same time, Kirby indicated
his disagreement with this position. As a result of this discussion, Davis transfered
Kirby to the Oak Ridge store because he did not like Kirby's "attitude." At the Oak
Ridge store, Kirby defied Davis' prior warning and continued his vigorous advocacy
of the Union. Manager Silvers warned Kirby not to be "so brave" for the Union
or the Company would "bump" him off, and ordered him not to mention the Union
to any of the employees at any time. Kirby, however, asserted his right to advocate
the Union on his own time and off company property and thereafter continued to
do so. Manager Silvers reported Kirby's conduct to Davis and complained that "we
are going to have trouble if he keeps knocking" the Company. To prevent Kirby
from propagandizing the store employees in favor of the Union as against the Com-
pany, Davis transferred Kirby to the Chapman Highway store, as previously found.
When Kirby made some errors in stocking merchandise, he was immediately trans-
ferred again, contrary to the prior practice with respect to other employees who had
made similar errors. As Kirby had received different instructions with respect to
his wearing apparel from the managers of each store in which he had worked, he
reported to the Broadway store wearing a sport shirt, which was the type of apparel
he had been wearing at the previous store to which he was assigned. Ignoring Kirby's
explanation that he was mistaken about Davis giving him permission to wear a sport
shirt and that it must have been one of the other store managers who had given him
such permission,,, Davis stated that he did not like Kirby's "attitude" and sum-
marily discharged him. When Kirby asked if it was his attitude toward the Union
which Davis did not like, Davis admitted that "that damn Union is the big thing."
Thereafter, in an effort to bolster his defense of the discharge, Davis asserted as
afterthoughts the other incidents, hereinabove set forth, as additional grounds
therefore.
Under all the circumstances, and upon the basis of the entire record considered
as a whole, I am convinced and find that Davis seized upon the bow tie incident as
a suitable pretext for ridding the Respondent of an employee who had become
undesirable because of his continued militant advocacy of the Union.12 By such
conduct, Respondent has discriminated with respect to the hire and tenure of em-
ployment of Bill Kirby, thereby discouraging membership in the Union, in violation
of Section 8(a)(3) and (1) of the Act.
2. Bonnie K. Field
In 1958 Bonnie Field was reemployed in the Respondent's Fountain City store
as a part-time employee at $1.18 per hour. At that time, Store Manager Whitley
promised to employ her on a regular full-time basis when an opening arose. When
Manager Bull replaced Whitley, sometime in August, Field told him about Whitley's
promise and Bull replied that if he should have occasion to put on a full-time em-
ployee he would consider her for that opening. She also asked Bull for a wage
increase, and Bull promised to make every effort to get one for her. On November 1,
Field received a wage increase of 5 cents per hour.
On Saturday evening, November 15, Bull had a conversation with Area Supervisor
Davis and received Davis' permission to use Field full time on a temporary basis;
this would result in Field getting a raise. Bull informed Field of this conversation.13
ii
As previously found, Kirby wore a sport shirt in the Alcoa store under Manager
Huffstetler and in the Chapman highway store under Manager Jarnigan
12 Respondent erroneously states in its brief that in his testimony at the previous un-
fair labor practice hearing Kirby "specifically denied any discrimination of any kind
subsequent to April 1958 " Kirby gave no such testimony As previously stated, Kirby's
case was neither litigated nor mentioned in the prior hearing; Kirby neither was ques-
tioned nor gave any testimony concerning any of the matters hereinabove set forth.
"Field testified that she heard Davis instruct Bull to put Field on a regular full-time
basis the following Monday morning with a $2 raise, and that Bull reported this con-
versation to her I find that Field was mistaken as to the purpoit of the conversation
between Davis and Bull and as to the nature of Bull's reiloit to her I do not credit her
version.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following week Field stayed out of work to attend the hearing in the prior
unfair labor practice proceeding and also testified as a witness on behalf of the
Union. When she received her pay that Saturday night, she noticed that she had
not received a $2 wage increase which, as previously found, she mistakenly believed
had been promised her. Bull told Field that he had been instructed by Davis not to
put on any more full-time help.
The following week Field worked 33 hours with Thanksgiving Day off. On
Saturday night, November 29, Bull told her not to report the following week until
Thursday morning because he had been instructed by Davis to cut down the store
hours Field protested that she could not work less than 36 hours, that she could
not afford to go all the way out there and pay a babysitter, and that if Bull did not
have any more time for her than he was proposing, why did not Bull fire her. Bull
replied that he did not want to fire her.14
That evening Field's husband telephoned to Area Supervisor Davis to inquire why
Field's hours had been cut. Davis explained that they had to curtail the hours of
people in the Fountain City store because the work performance of that store was
not up to the average of Respondent's stores in the area. Mr Field stated that his
wife could not afford to go all the way to Fountain City unless she worked 33 or 36
hours a week. Davis replied that if Mrs. Field could not work the hours everyone
had to work, it would be best for Mr. Field to keep his wife home.
The following Monday, Davis reported his conversation with Mr. Field to Man-
ager Bull. Davis told Bull that he received the impression from Mr. Field that his
wife would not return to work because she could not afford to come out there with a
reduction in the hours and that they had beter look around to get someone who was
willing to work the number of hours that were available. However, no steps were
taken to find a replacement for Field.
Field did report for work at 8:30 a.m. the following Thursday, December 4, and
was was scheduled to work until 7 p.m. About 6 p.m. Manager Bull asked her if
she had reconsidered and was willing to work the number of hours the store had to
offer her. She indicated that she had not changed her position and that she could
not afford to work for less than 30-36 hours a week. Bull thereupon made out her
termination slip which states the following reason for her termination: "Unable to
promise employee over thirty hours per week, she says not worthwhile to pay baby
sitter and drive this distance unless she can be guaranteed certain no. of hours."
Field refused to sign the termination slip, contending that she had never said any-
thing about a babysitter. Field was terminated that day.is
That evening, Field telephoned to Davis to protest her termination. She com-
plained that she was being discriminated against and could not afford to go out there
unless she worked 36 hours. Davis replied that he reserved the right to run his own
business.16
On June 26, 1959, Respondent offered Field employment in one of its stores.
Field refused because she had other employment.
The General Counsel's Contentions and Concluding Findings
The General Counsel contends, as alleged in the complaint, that Respondent
refused to grant Bonnie Field previously promised full employment status and a
wage increase and discharged her because of her union activity and because she had
testified on behalf of the Union at the hearing in the prior unfair labor practice
proceeding in November 1958.
Field's union activity consisted of no more than signing a union authorization
card in June 1958 Her testimony at the prior unfair labor practice proceeding was
very brief and related solely to a conversation held before the election of April 9
with Store Manager Whitely, who was subsequently replaced by Manager Bull. The
record shows that a number of employees from the Fountain City store had also
testified on behalf of the Union at the prior hearing and that additional employees
from that store were present at the hearing room on the Union's behalf. Indeed,
so many employees from the Fountain City store were present at the hearing room
14 Field denied saying she could not afford to pay a babysitter and drive all that dis-
tance. Field impressed me as a highly excitable person At one point she testified that
she was so mad that she did not know what she said Bull impressed me as a forthright
and reliable witness Under all the circumstances I do not credit Field's testimony to
the extent that it conflicts with that of Bull
16I do not credit Field's testimony to the extent that it may conflict with that of Bull
ie I do not credit Field's testimony to the extent that it may conflict with that of Davis
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 831
on the Union's behalf, that Respondent was required to get other help to take their
place.
On the other hand, the record shows that at that time the Fountain City store
was below the average of other Respondent's stores in the area with respect to the
pounds sold per man-hour of work, that for that reason Davis instructed Manager
Bull to cut down on the number of hours that he was using in manning that store,
and that it is Respondent's practice in such situations to cut down first on the hours
of the part-time employees. Moreover, the record further shows, as Bull credibly
testified, that about the same time Manager Bull also reduced the hours of about five
other employees, none of whom had testified at the hearing in the prior unfair labor
practice case. No new full-time employees were hired during that period, nor was
any full-time status given to any part-time employee.17 Nor does the record
support the testimony of Field and the contention of the General Counsel that
another part-time employee, Parnell, received more hours than Field prior and
subsequent to Field's termination.
Upon the basis of the entire record considered as a whole, I am not persuaded that
the General Counsel has sustained his burden of proof with respect to the allegations
concerning Bonnie K. Field by a preponderance of the credible evidence. Accord-
ingly, I will recommend the dismissal of these allegations.
C. Interference, restraint, and coercion
The parties stipulated that Area Supervisor Davis and all store managers are
supervisors within the meaning of the Act. As previously found, Area Supervisor
Davis interrogated Kirby as to why he was for the Union and if he would join the
Union if it got in; told him that the Union could not do a thing for him and that
he could not work for the Union and the Company at the same time; stated that "we
have not even began to fight this Union yet"; and warned that Respondent would
not recognize the Union even if it got voted in. Also, as previously found, Store
Manager Silvers instructed Kirby not to mention the Union to any of his employees
at any time, and, on two occasions, warned him not to be "so brave for the Union
or the Company will bump you off."
I find that by the foregoing conduct, Respondent interfered with, restrained, and
coerced the employees in the exercise of their rights guaranteed in Section 7 of the
Act and thereby violated Section 8(a) (1) thereof.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, which occurred
in connection 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
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent discriminated in regard to the hire and tenure of
employment of Bill Kirby, I will not recommend that the Respondent offer to him
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason of the Respondent's discrimi-
nation against him, by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of his discharge to the date of
the Respondent's offer of reinstatement, less his net earnings during said periods, to
be computed on a quarterly basis in the manner established by the Board in F. W.
Woolwoi th Company, 90 NLRB 289, 291-294.
In view of the nature of the unfair labor practices and the fact that the Board
has found that Respondent has violated the Act in a prior proceeding, there exists
the danger of the commission of other unfair labor practices proscribed by the Act.
I will accordingly recommend that Respondent cease and desist from in any other
manner infringing upon the rights guaranteed employees by Section 7 of the Act.
Bull admitted that he may have hired a package boy or two for Friday evening and
Saturday, which is the stores busiest period
18 See, e g, The Great atlantic if Pacific Tea CoinpanV, Ine, 124 NLRB 329.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARDi
Upon the basis of The foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Bill Kirby,
thereby discouraging membership in Retail, Wholesale and Department Store Union,
AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
2. By the foregoing conduct, by interrogating an employee as to why he was for
the Union and if he would join the Union if it got in, by telling him that the Union
could not do a thing for him and that he could not work for the Union and the
Company at the same time, by stating that "we have not even began to fight this
Union yet," by warning that Respondent would not recognize the Union even if it
got voted in, by telling an employee not to mention the Union to the employees at
any time, and by warning him "not to be so brave for the Union or the Company will
bump you off," the Respondent has interfered with, restrained, and coerced its
employees employees in the exercise of rights guaranteed in Section 7 of the Act and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a)( 1 ) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (4) of the Act by its treatment and discharge of Bonnie K.
Field.
[Recommendations omitted from publication.]
Local 401, International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers , AFL-CIO;
International Brotherhood of Boilermakers , Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers , AFL-CIO; and John
Stender, International Vice President and Orran Lyman
Chamberlain and M. A. Roberts and James' G. Roberts, Part-
ners, d/b/a M. A. Roberts & Company , Parties to the Contract
Local 401, International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO
and George B. Seybold and M. A. Roberts and James G.
Roberts, Partners , d/b/a M. A. Roberts & Company, Parties
to the Contract. Cases Nos. 36-CB-203 and 36-CB-204. Feb-
ruary 25, 1960
DECISION AND ORDER
On February 10, 1959, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above -entitled proceedings , finding
that the Respondents 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 Re-
spondents filed exceptions to the Intermediate Report and a support-
ing brief.'
1 As the record, exceptions, and brief adequately reflect the issues and positions of the
parties, the Respondents' request for oral argument is denied.
126 NLRB No. 91.