The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Dec 11, 1963

145 N.L.R.B. 361 (N.L.R.B. 1963)

THE GREAT ATLANTIC & PACIFIC TEA COMPANY 361
2. Schedell, Shepherd, McIntire & Quiros, and Cade & Johnson are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
3. All of the foregoing plus Glendale are engaged in an industry affecting com-
merce within the meaning of Section 8(b) (4) (i) and (ii) of the Act.
4. International Union of Operating Engineers, Local No. 12 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
5. By engaging in, or inducing and encouraging employees of Schedell, McIntire
& Quiros, and Cade & Johnson to engage in, a strike or refusal to perform services
in the course of their employment, and by coercing and restraining these employers
with an object of forcing an ultimate cessation of business between Schedell and
Shepherd, and to force Schedell to enter into an agreement prohibited by Section
8(e) of the Act, Respondent has engaged in unfair labor practices within the mean-
ing of Section 8(b) (4) (i) and (ii) (A) and (B) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
The Great Atlantic & Pacific Tea Company and Bakery Factory
Workers' Local #116, American Bakery & Confectionery
Workers ' International Union of America , AFL-CIO
P & C Food Markets, Inc. and Truck Drivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Independent
American Stores Company and Truck Drivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Independent
The Great Atlantic & Pacific Tea Company and Truck Drivers
and Helpers Local Union No. 317, an affiliate of the Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , Independent
P & C Food Markets, Inc. and David A. O'Dell, Jerome V. Gentile,
Barbara Freed, John Shiptenko, Merrill Stone, Anthony N.
Castrilli
The Great Atlantic & Pacific Tea Company and Norman F.
Maxson, Elizabeth Pixley, Gordon Flynn, Ralph Hilchey,
George Fuller, Eve Empey, Ethel Derushia, Shirley Martin,
Philip D. Charleston, Ivan G. Paquin, Maurice Rene Dufresne,
Frank Licata, Leonard A. Lowe, Betty Beyea, Maurice Bate-
man, John J. Sproveri, William F. Smith, John Chiodo, Carrie
R. Lindley, Alfred Merluzzi, Donald D. Wells, Reginald Lamb,
M. Elizabeth Bovill , Irene Gumtow, Fred Oremus , Pasquale
C. Ciccarella, William C. Anderson, Archer S. White, Kenneth
W. Burke, Paul A. Blazejewski, Harriet R. Scalise, John N.
Theis, Donald C. Seamon, James D. Flynn, Gus Aguglia, Lowell
E. Moss, Kathleen M. Hamill , Roderic L. Groff, Maurice Cote,
145 NLRB No. 39.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roger I. Wright, Peter Theodorakos , Joseph J. Tiberio, Muriel
D. Vaughan , Lester L. Snyder , Michael J. Gangemi, Jack E.
Priebe, Gerald E. Coye, Sr., Robert D. Rendsiand , James E.
Landy, Joseph Micciche
American Stores Company and Anthony Mariano, Harry J.
Naylor, Katherine O. Holmes, Hugo Albert Haas , Donald
Sims, Shirley Dabbiero, Erika Biederman , Peter F. DeRosa,
Doris I. Jackson , Donald W. Marsh, Alvon William Besley,
Peter Nicosia , Anthony Passaloogue, Anthony Cintineo , Charles
Tomaselli, Benjamin Tatanus, Elizabeth Simmons, Phyllis
Paliotti, Richard Orson Weller, David B . Potter, Jr., Philip D.
Cady, William Ives, Wayne Carter, Clair Woodward , Edward
M. Schleimer, Anna M. Simmons, Frances Wilson , Jon E. Caro,
Kenneth A. Hunt, Helen Bedient , Anthony DiPietro , Elizabeth
Simmons. Cases Nos. 3-CA-1595, 3-CA-160-1, 3-CA-1602-2,
3-CA-1603-1, 3-CA-1603-2, 3-CA-1605, 3-CA-1621-2, 3-CA-
1621-5, 3-CA-1639, 3-CA-1740, 3-CA-1744-3, 3-CA-1748, 3-CA-
1622, 3-CA-1648, 3-CA-1652, 3-CA-1659, 3-CA-1660, 3-CA-1661,
3-CA-1661-6, 3-CA-1661-7, 3-CA-1661-9, 3-CA-1661-15, 3-CA-
1661-17, 3-CA-1666, 3-CA-1667, 3-CA-1673, 3-CA-1685, 3-CA-
1689, 3-CA-1692, 3-CA-1695, 3-CA-1697, 3-CA-1697-2, 3-CA-
1697-3, 3-CA-1698, 3-CA-1699, 3-CA-1700, 3-CA-1701, 3-CA-
1704, 3-CA-1705,3-CA-1706,3-CA-1710, 3-CA-1714,3-CA-1725,
3-CA-1727-5, 3-CA-1727-6, 3-CA-1727-8, 3-CA-1733-1, 3-CA-
1733-2, 3-CA-1733-3, 3-CA-1733-4, 3-CA-1733-5, 3-CA-1741,
3-CA-1745, 3-CA-1746, 3-CA-1750, 3-CA-1751, 3-CA-1752,
3-CA-1753, 3-CA-1758, 3-CA-1759, 3-CA-1760, 3-CA-1761,
3-CA-1638-1, 3-CA-1638-2, 3-CA-1638-5, 3-CA-1638-6, 3-CA-
1643-1, 3-CA-1643-2, 3-CA-1643-3, 3-CA-1643-4, 3-CA-1649,
3-CA-1649-2, 3-CA-1657, 3-CA-1687, 3-CA-1690, 3-CA-1718,
3-CA-1719, 3-CA-1721, 3-CA-1728, 3-CA-1731, 3-CA-1737,
3-CA-1738, 3-CA-1738-2, 3-CA-1739, 3-CA-1742, 3-CA-1743,
3-CA-1747-1, 3-CA-1747-2, 3-CA-1749-1, 3-CA-1749-2, 3-CA-
1749-3, 3-CA-1754, 3-CA-1756, and 3-CA-1762. December 11,
1963
DECISION AND ORDER
On August 28, 1962, Trial Examiner John F. Funke issued his In-
termediate Report in the above-entitled case, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Intermediate Re-
port. The Trial Examiner also found that the Respondents had not
engaged in certain other unfair labor practices and recommended that
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 363
the complaint with respect thereto be dismissed.' Thereafter, the
General Counsel, Respondents, Bakery Workers, and Teamsters filed
exceptions to the Intermediate Report and supporting briefs.
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, the briefs, and the entire record in,
these cases,2 and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations 3 with the following modifications.
1. Respondents separately operate chains of retail food stores in
the Syracuse, New York, area. District 1 of the Meat Cutters is the-
collective-bargaining representative of store employees of each of Re-
spondents. For many years, the Meat Cutters and each of the Re-
spondents have bargained collectively on a separate employer basis.
Contracts so negotiated were scheduled to expire on various dates in
April 1961. Before the expiration dates of these contracts, Respond-
ents decided that henceforward they would like to bargain with the
Meat Cutters on a multiemployer basis. In preparation for the nego-
tiation of new agreements, Respondents, together with three other
retail food chains, in February 1961 formed an Employer's Council
to engage in multiemployer bargaining. The Council and the Meat
Cutters participated in negotiations for a new contract or contracts
in February, March, and early April, 1961. From shortly after the
1 Subsequent to the Issuance of the Intermediate Report, the General Counsel and the
Respondents filed a joint motion requesting that the complaint be dismissed as to 482
named individuals who had voluntarily , in writing , requested that they be permitted to
withdraw from the proceeding The motion is hereby granted
2 The Respondents ' request for oral argument is hereby denied , as the record , including-
the exceptions and briefs , adequately presents the issues and positions of the parties
3 The Trial Examiner found that the unfair labor practice charges in Cases Nos 3-CA-
1747-2, 3-CA-1753, and 3-CA-1756 were untimely filed under Section 10(b) of the Act
because the last day for filing was October 7 , 1961, and the charges were not actually
filed until October 9 , 1961. October 7 was a Saturday and the Board ' s Regional Office was
closed . Section 102 114 of the Board's Rules and Regulations provides that when the last
day for doing any act is a Sunday or legal holiday , the period "runs until the end of the
next day , which is neither a Sunday nor a legal holiday. . . . For the purpose of this sec-
tion a Saturday on which the Board ' s offices are not open for business shall be considered
as a holiday . . . .. In view of this regulation , the unfair labor practice charges in the
above numbered cases were timely filed on Monday , October 9 . Accordingly , we do not
adopt the Trial Examiner 's recommendation for the dismissal of these charges
As an affirmative defense, Respondents alleged that unfair labor practice charges Involv-
ing employees in the unit represented by the Meat Cutters had been improperly solicited
by agents in the Regional Director 's office. The Trial Examiner found that Respondents
had made out a prima facie case of such solicitation in Case No 3-CA-1748, but not in
other cases and recommended dismissal of the complaint in the numbered case. The
General Counsel has excepted . This case like others in this consolidated proceeding relates
to the legality of the lockout of employees in the unit represented by the Meat Cutters.
We have decided not to award backpay to any employees in this unit . Whether we accept
or reject the Trial Examiner's findings and recommendations in Case No . 3-CA-1748, the
Issues in these cases will remain exactly the same-the legality of the lockouts . We there-
fore find it unnecessary to, and do not decide, the merits of the Trial Examiner 's findings
and recommendations in Case No . 3-CA-1748. However, in adopting this course we ex-
pressly disavow the remarks made by the Trial Examiner about the mode and character of
operations of the General Counsel and regional personnel.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beginning of negotiations, the Council insisted that the Meat Cutters
had agreed to bargain for a multiemployer unit and that single-
employer bargaining was no longer permissible. However, the Trial
Examiner found, and the evidence supports his finding, that the Meat
Cutters had merely undertaken to explore the possibility of multi-
employer bargaining, but had not agreed to such bargaining. Unable
to reach agreement, the Meat Cutters, at a negotiating session held on
April 6, announced that it was striking Loblaw, Inc., a member of the
Council, whose separate agreement had expired on April 2, 1961.
Thereupon the Council warned that if Loblaw was struck, stores of all
other Council members would be closed and their employees laid off.
As the Meat Cutters did go through with their strike against Loblaw,
Respondents closed their stores on April 7, laying off their store em-
ployees, and subsequently their driver and bakery employees.
Respondents contend that the lockout was a defensive tactic designed
to preserve the solidarity and integrity of their Employer Group and
was therefore lawful under the Buffalo Linen decision.4 The Trial
Examiner rejected this defense and found that by threatening to close
their stores if the Meat Cutters struck Loblaw, Respondents violated
Section 8(a) (1) of the Act, and that by actually locking out their
store employees for this reason, Respondents violated Section 8 (a) (3)
and (1). We agree with these findings.
In Quaker State 0il,5 the Board said :
.. . absent special circumstances, an employer may not during
bargaining negotiations either threaten to lock out or lock out
his employees in aid of his bargaining position. Such conduct
... presumptively infringes upon the collective-bargaining
rights of employees in violation of Section 8 (a) (1) and the lock-
out, with its consequent layoff, amounts to discrimination within
the meaning of Section 8(a) (3)... . However, the Board has
recognized that there are special circumstances where the right
of employees to engage in collective bargaining is not absolute but
must be balanced against the employer's right to protect his busi-
ness against loss. Accordingly, it has held that lockouts are per-
missible to safeguard against unusual operational problems or
hazards or economic loss where there is reasonable ground for
believing that a strike was threatened or imminent. The burden
of going forward with the evidence to justify the lockout rests
on the Respondent. [Footnotes omitted.]
4 N L R.B v Truck Drivers Local Union No. 449, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America, AFL (Buffalo Linen Supply Co ),
353 U S 87
c Quaker State Oil Refining Corporation , 121 NLRB 334, 337, enfd. 270 F 2d 40 (C.A. 3),
cert denied 361 U S. 917
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 365
Among the special circumstances recognized by the Board as excusing
a temporary lockout is one where members of a multiemployer bargain-
ing unit seek to prevent disintegration of their unit threatened by a
whipsawing strike against one of their members. Thus, in the Buf-
falo Linen case,6 a group of employers and the union had bargained
on a multiemployer basis for approximately 13 years. During negotia-
tions for a new contract the employer group and the union reached
an impasse. The union then struck one of the employers in the group
and the remaining members retaliated by laying off their own em-
ployees. The Board held that in these circumstances the lockout was
not unlawful. In upholding the Board, the Supreme Court said (353
U.S. 87, 96) :
Although the Act protects the right of the employees to strike
in support of their demands, this protection is not so absolute
as to deny self-help by employers when legitimate interests of
employees and employers collide. Conflict may arise, for exam-
ple, between the right to strike and the interest of small employers
in preserving multi-employer bargaining as a means of bargain-
ing on an equal basis with a large union and avoiding the com-
petitive disadvantages resulting from nonuniform contractual
terms. The ultimate problem is the balancing of the conflicting
legitimate interests. [Footnote omitted.]
In Buffalo Linen, the lockout was defensive, that is, it was used in
an effort to preserve the existing unit from attempted destruction by
the union. In the present case, by contrast, the lockout was used not
to preserve that which existed, but to force a change in the bargaining
pattern from single-employer to multiemployer unit bargaining. In
other words, the lockout was used here as an offensive tactic. Buffalo
Linen does not excuse a lockout for such purpose.'
2. When Respondents closed their stores on April 7, they laid off
not only employees in the units represented by the Meat Cutters, but
also employees separately represented by the Teamsters and by the
Bakery Workers.8 The General Counsel contends that the layoff of
the latter was just as much a violation of Section 8 (a) (3) as the layoff
of the employees represented by the Meat Cutters. Respondents argue
in defense that ( a) employees represented by the Teamsters and the
6N.LR.B v. Truck Drivers Local Union No. 449 , International Brotherhood of Team-
sters, etc, supra.
7 The Board finds it unnecessary to decide whether, if the Meat Cutters had clearly and
unequivocally agreed during the 1961 negotiations to bargain on a multiemployer basis
despite the history of single-employer bargaining and thereafter had reneged on such agree-
ment by striking one of the employer group, the remaining members of the group would
have been justified in locking out their employees . The evidence shows, as the Trial
Examiner 'found, that the Meat Cutters had never agreed to be bound by multiemployer
bargaining.
8 Employees in the A. & P. bakery were laid off on April 9; Teamster-represented em-
ployees were laid off on various dates within a week of April 7.
:366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bakery Workers were not locked out, but were temporarily laid off
for lack of work, and (b) in any event, such layoffs were not unlawful
because Respondents were not discriminatorily motivated in making
them and the layoffs per se did not "inherently" discourage union mem-
bership. The Trial Examiner seemingly rejected the first defense,
but found merit in the second and recomemnded dismissal of the com-
plaint as to employees represented by the Teamsters and Bakery Work-
ers. In support of his finding of lack of discriminatory motivation,
the Trial Examiner states :
The lockout was not directed to employees in these units, there was
no effort on the part of the Respondents to enforce multiemployer
bargaining on these units or these Unions and there was no reprisal
against these employees for engaging in any concerted activity.
While these employees suffered loss of employment directly as a
result of the discriminatory lockout of the Meat Cutters members
they would have suffered the same loss of employment had they
belonged to any or no other labor organization.
We agree with the Trial Examiner's rejection of the lack of work de-
fense, but not with his sustaining of the nondiscriminatory motivation
argument.
If Respondents had not unlawfully closed their retail stores and
locked out their store employees, the employees represented by the
Teamsters and the Bakery Workers would not have been laid off. The
lack of work for the latter employees, to which Respondents attribute
the layoffs, was due directly and entirely to the illegal lockout of the
store employees. Accordingly, we find that the layoff of the teamster
and bakery employees was the proximate result of Respondent's un-
lawful lockout of their store employees, and that Respondents are
responsible therefor.9
The Trial Examiner found, however, that, although the lockout of
Meat Cutters' members discouraged union membership by such em-
ployees, the layoff of members of the Teamsters and the Bakery Work-
ers did not have ti similar discouraging effect on these employees and
, Rockivood Stove Works, 63 NLRB 1297, 1299 . In that case , because of the respondent's
,discriminatory refusal to reinstate certain foundry employees , other employees in the
foundry did not have enough work and either quit or were laid off. The Board found that
the termination of the employment of the latter employees was attributable to the respond-
ent's unfair labor practices and violated Section 8 (a) (3) of the Act.
Respondents rely on N.L R B. v. Continental Baking Company, et al., 221 F. 2d 427
(C A. 8), setting aside 104 NLRB 143. However, in that case the court found that the
initial lockout was lawful and that the resulting layoff of neutral employees because of
lack of work was also lawful , "particularly in view of our finding that the lockout as to
the Bakers was lawful " (221 F. 2d 427, 437.) Respondents also rely on Philadelphia
Marine Trade Association, etc., 138 NLRB 737 In that case the Board reversed the Trial
Examiner ' s finding that the unlawful lockout of one group of employees also constituted
unlawful discrimination against other employees However, the reversal was on the narrow
ground that the complaint did not allege that these employees had been locked out and the
evidence did not establish that there had been an actual loss of work for the secondary
employees.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 367
therefore that their layoffs did not violate Section 8(a) (3). The
distinction in impact which the Trial Examiner inferred from es-
sentially the same act of discrimination appears to us unreasonable and
we do not adopt it. As to employees in the Meat Cutters' unit, the Trial
Examiner found :
Locked out because the Meat Cutters had refused a demand by
Respondents and because it had struck another employer, the
employees ineluctably were discouraged from continued member-
ship and from engaging in strikes. A consequence more clearly
foreseeable would be hard to conjure and the rule of the Radio
Officers case finds application here.
It seems to us that employees in the units represented by the Teamsters
and the Bakery Workers would be just as "ineluctably" discouraged
from union membership by their layoffs as were the store employees.
This is so even though the Teamsters and Bakery Workers were
neutral in the bargaining struggle between Respondents and the Meat
Cutters. They were laid off about the same time and as a direct con-
sequence of the unlawful lockout of the store employees, and the im-
pact upon them was no less, nor different, than on the store employees.
It is not essential that the discouragement of union membership be
confined to particular employees or even to a particular labor organi-
zation.10 Section 8(a) (3) refers broadly to encouragement or dis-
couragement of membership "in any labor organization." As the
Supreme Court has noted : 11
Encouragement and discouragement are "subtle things" requiring
"a high degree of introspective perception." . . . But . . . it is
common experience that the desire of employees to unionize is
raised or lowered by the advantages thought to be attained by
such action. Moreover, the Act does not require that employees
discriminated against be the ones encouraged for the purposes of
violations of 8(a) (3). Nor does the Act require that this change
in employees' "quantum of desire" to join a union have immediate
manifestations.
Accordingly, we find, contrary to the Trial Examiner, that the layoffs
of employees in the separate units represented by the Teamsters and
the Bakery Workers discouraged membership in labor organizations
and therefore violated Section 8(a) (3) and (1) of the Act.
10 See, for example, the situation where a respondent discharges a group of employees
because of the prounion activity of some members of the group . In such a case , the re-
spondent has unlawfully discriminated against all the group members . Cf. L. J Williams,
d/b/a L J. Williams Lumber Company and Ada W. Williams d/b/a Varnville Wood Prod-
ucts Company, 93 NLRB 1672, 1675, enfd. 195 F 2d 699 (C.A 4), cert denied 344 U S 834.
11 The Radio Officers' Union of the Commercial Telegraphers Union, APL ( 4. H. Bull
Steamship Company ) v. N L.R B, 347 U.S 17, 51.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
On April 26, 1961, in settlement of the lockout and the contract dis-
pute, Respondents and the Meat Cutters agreed in writing that "in
consideration for the benefits contained in agreement," each party
would release the other from any liability arising from their labor
dispute, and specifically that the Meat Cutters would request with-
drawal of the unfair labor practice charges filed against Respondents.
The parties concede that the wage rates of employees, in an undeter-
mined amount, were increased as consideration for the withdrawal of
the charges. In accordance with the agreement, the Meat Cutters re-
quested permission to withdraw the charges. In approving the request
the Regional Director wrote that the approval "will not foreclose any
individual who may feel that he or she may have been discriminated
against and his or her rights under the Act violated . . . from filing
a charge . . . ." Thereafter, several employees in the unit represented
by the Meat Cutters filed unfair labor practice charges alleging that
they had been unlawfully discriminated against by Respondents.
On the basis of these charges, the General Counsel issued his complaint.
In their answer to the complaint, Respondents set forth the settle-
ment agreement as an affirmative defense. The General Counsel moved
to dismiss this defense on the ground that a private settlement of an
unfair labor practice does not bar issuance of a complaint by the Gen-
eral Counsel. The Trial Examiner granted the motion. And, in the
section of his Intermediate Report entitled "The Remedy," the Trial
Examiner rejected Respondents' further contention that it would be
inequitable to order backpay in view of the settlement agreement. We
disagree with the Trial Examiner's latter ruling.
The purpose of a backpay award is not to punish the respondent or
to enrich employees discriminated against, but to make the employees
whole, that is, to restore earnings lost because of the discrimination.
In the present case, as the result of arm's-length bargaining between
the representative of the employees in the unit represented by the Meat
Cutters and the Respondents, the two parties agreed to increase wage
rates as compensation for the withdrawal of the charges. As we
understand the agreement, the increase in the wage rates was to com-
pensate employees for monetary losses suffered as the result of the
lockout. If the Board were now to ignore the settlement agreement
and make its usual backpay awards, employees would be made whole
more than once. To avoid this result, we find that it will not effectuate
the policies of the Act to make backpay awards to locked-out em-
ployees in the unit represented by the Meat Cutters. This limitation
does not, however, apply to employees in the units represented by the
Teamsters and the Bakery Workers inasmuch as these employees are
not covered by the aforesaid settlement agreement.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 369
Having found that Respondents unlawfully discriminated against
employees in the units represented by the Teamsters and the Bakery
Workers, we shall direct Respondents to make them whole for any
loss of pay they may have suffered by reason of such unlawful dis-
crimination by the payment of a sum of money to each employee equal
to that which he would have earned as wages during the period of
discrimination,12 less any net earnings during said period. Backpay
shall be computed with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289, 291-294, and Isis Plumbing c0 Heating Co., 138 NLRB 716.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
1. Substitute the following paragraph for the first paragraph
therein :
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondents,
The Great Atlantic & Pacific Tea Company, P & C Food Markets,
Inc., and American Stores Company, their officers, agents, suc-
cessors, and assigns, shall :
2. Delete paragraph 1(a) and substitute the following :
(a) Discouraging membership in District Union Local 1,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, in Bakery Factory Workers' Local #116,
American Bakery & Confectionery Workers' International Union
of America, AFL-CIO, in Truck Drivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, or in any other labor organization, by locking out
or laying off any of their employees, or discriminating in any other
manner in regard to their hire or tenure of employment or any
term or condition of employment.
3. Amend paragraph 2 (a) by deleting "Meat Cutters" and substitut-
ing in its place "Bakery Workers and the Teamsters".
4. Omit entirely paragraph 2 (e) of the Recommended Order.
5. Substitute the attached Appendixes for the Appendixes attached
to the Intermediate Report.
MEMBERS LEEDOM and JENKINS took no part in the consideration of
the above Decision and Order.
'This period shall run from the time each employee was laid off until reemployed or
offered reemployment.
734-070-64-vol. 145-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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 District Union Local 1,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO; Bakery Factory Workers' Local #116,
American Bakery & Confectionery Workers' International Union
of America, AFL-CIO ; Truckdrivers and Helpers Local Union
No. 317 an affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independ-
ent, or any other labor organization , by discriminatively locking
out or laying off any of our employees , or by discriminating in any
other manner in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT threaten our employees with a lockout or layoff
in order to force them to accept a multiemployer bargaining unit
which has not been established by history or agreement between
us and the bargaining representative of our employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise or rights guaranteed
by Section 7 of the Act.
WE WILL make whole all our employees employed in bargaining
units represented by Bakery Factory Workers' Local #116,
American Bakery & Confectionery Workers' International Union
of America, AFL-CIO; and Truckdrivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent , for any loss of pay suffered by them as a result of
our discrimination against them.
THE GREAT ATLANTIC & PACInIC TEA COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-mentioned employees
presently serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training 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.
U
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 371
Employees may communicate directly with the Board's Regional
Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buf-
falo, New York, Telephone No. Ti. 6-1782, if they have any question
concerning this notice or compliance with its provisions.
APPENDIX
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:
AVE WILL NOT discourage membership in District Union Local 1,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO; and Truckdrivers and Helpers Local Union
No. 317, an affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independent,
or any other labor organization, by locking out or laying off any
of our employees, or by discriminating in any other manner in re-
gard to their hire or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT threaten our employees with a lockout or layoff
in order to force them to accept a multiemployer bargaining unit
which has not been established by history or agreement between us
and the bargaining representative of our employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of rights guaranteed
by Section 7 of the Act.
WE WILL make whole all our employees employed in the bar-
gaining unit represented by Truckdrivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, for any loss of pay suffered by them as a result of
our discrimination against them.
P & C FOOD MARKETS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-mentioned employees
presently serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buf-
falo, New York, Telephone No. Tl. 6-1782, if they have any question
concerning this notice or compliance with its provisions.
APPENDIX
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 District Union Local
1, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO; Truck Drivers and Helpers Local Union.
No. 317, an affiliate of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, In-
dependent, or any other labor organization, by locking out or
laying off any of our employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT threaten our employees with a lockout or layoff
in order to force them to accept a multiemployer bargaining unit
which has not been established by history or agreement between
us and the bargaining representative of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL make whole all our employees employed in the bar-
gaining unit represented by Truck Drivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, for any loss of pay suffered by them as a result of
our discrimination against them.
AMERICAN STORES COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-mentioned employees pres-
ently serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 373
This notice must remain posted for 60 consecutive days from the
date of posting, and must not bealtered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buf-
falo, New York, Telephone No. Tl. 6-1782, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed against The Great Atlantic & Pacific Tea Company, herein
called A & P; P & C Food Markets, Inc., herein called P & C; and American Stores
Company, herein called Acme (A & P, P & C, and Acme collectively referred to as
the Respondents), on various dates between April 13, and October 9, 1961,1 by
Bakery Factory Workers' Local #116, American Bakery & Confectionery Workers'
International Union of America, AFL-CIO, herein called the Bakery Workers, by
Truck Drivers and Helpers Local Union No. 317, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, herein called the Teamsters, and by the above-named individuals on be-
half of themselves and other individuals employed by Respondents, the General
Counsel issued a complaint and amended complaints and an order consolidating the
cases .2 The proceeding, with the General Counsel, the Respondents, the Bakery
Workers, and Teamsters represented, was heard before Trial Examiner John F.
Funke at Syracuse, New York, on February 6, 7, 8, and 9 and March 28 and 29, 1962.
Leave was given the parties to submit proposed corrections to the transcript and
the transcript was corrected by order dated May 15, 1962. A corrected transcript
was received on June 11, 1962, and the case was closed by order dated June 13,
1962. Briefs were received from the General Counsel and the Respondents on
August 10.
The complaint, as amended, alleged that Respondents, on April 6, threatened to
close down their stores in violation of Section 8(a)( I) of the Act and, on April 7,
did close down their stores and locked out their employees until on or about May 1,
in violation of Section 8(a)(3) and (1) of the Act. The answer of the Respondents
denied the commission of unfair labor practices and set forth five affirmative defenses.
Preliminary Motions and Affirmative Defenses
At the opening of the hearing counsel for the Respondents moved that the Trial
Examiner approve the requests to withdraw charges which had been submitted
to the Regional Director before the opening of the hearing. Barbara Freed, the
Charging Party in Case No. 13-CA-1639, testified that she had requested withdrawal
of the charge after consulting with the employees in her store who had been named
in the charge. It was then stipulated that Doris Jackson, the Charging Party in
Case No. 3-CA-1649; Peter F. DeRosa, the Charging Party in Case No. 3-CA-
1643-A; John Shiptenko, the Charging Party in Case No. 3-CA-1740; Anthony N.
Castrillo, the Charging Party in Case No 3-CA-1748; Reginald Lamb, the Charging
Party in Case No. 3-CA-1698; William F. Smith, the Charging Party in Case No.
3-CA-1692; and Maurice Bateman, the Charging Party in Case No. 3-CA-1685,
would likewise testify that they had requested withdrawal of their charges. The
motion was denied on the ground that Section 3(d) of the Act gave the General
Counsel final authority over the , investigation of charges and the issuance of
complaints.3
Unless otherwise specified all dates are 1961
a A pretrial motion by Respondents to sever Cases Nos. 3-CA-1595 through 3-CA-1605
from Cases Nos. 3-CA-1621 through 3-CA-1762 was denied by Trial Examiner Brown.
Section 102 9 of the Board's Rules and Regulations, Series 8, provides
. . . and such charge may be withdrawn, prior to the hearing, only with the consent
of the regional director with whom such charge was filed ; at the hearing and until
the case has been transferred to the Board pursuant to Section 102 45, upon motion,
with the consent of the Trial Examiner designated to conduct the hearing . . . .
At the hearing the Respondent moved that I approve requests for withdrawal which had
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the Respondents moved to dismiss the complaint on the ground that a
lockout did not constitute an unfair labor practice . This motion was denied on the
,ground that whether a lockout constitutes an unfair labor practice can only be
determined from the facts of the case.
Counsel then moved to dismiss the charges filed by the Bakery Workers and the
Teamsters on the ground that no labor dispute existed between Respondents and either
the Bakery Workers or the Teamsters and that, therefore , there was no lockout of
the employees who were members of these Unions but a temporary layoff due to
the unavailability of work . Such a layoff , although resulting from the dispute between
Respondents and District Union Local 1, Amalgamated Meat Cutters and Butcher
Workmen of America, AFL-CIO, herein the Meat Cutters or the Union , was not,
claimed Respondents , discriminatory within the meaning of the Act. Decision on
this motion was reserved and it is disposed of in accord with the findings , conclusions,
and recommendations herein.
At the hearing the General Counsel moved to dismiss the affirmative defenses.
These defenses were set forth in the answer as follows:
I
That on and after April 13, 1961, and at all times material herein, agents
and employees of the National Labor Relations Board, hereinafter called the
Board, particularly agents and employees of the Board's Third Regional Office,
did solicit and encourage the filing of certain charges against the Respondents,
which charges have been processed by the Regional Director of the Board's Third
Regional Office and have been made part of these proceedings.
II
That on and after April 13, 1961, and at all times material herein, agents
and employees of the Board, particularly the Regional Director, other agents
and employees of the Board's Third Regional Office, did process certain charges
which have been made a part of these proceedings, which charges were not
filed, docketed and served in accordance with the Statements of Procedure, as
amended, Series 8, of the National Labor Relations Board.
III
That on and after October 6, 1961, the Regional Director for the Board's Third
Regional Office did accept for filing, docketing and service, certain charges which
have been made a part of these proceedings, notwithstanding that these charges
are barred as being filed untimely under the provisions of Section 10(b) of the
National Labor Relations Act, as amended.
IV
(a) That on or about April 26, 1961 , the Respondents , through their duly
designated bargaining agents, Food Store Employers Labor Council of Syracuse
and Vicinity, and District Union Local No. 1 Amalgamated Meat Cutters
and Butcher Workmen of North America , AFL-CIO, through its President
and duly constituted agent, Samuel J. Talarico, entered into a Strike Settlement
Agreement , the provisions of which provided , inter alia, as follows:
In consideration for the benefits contained in agreements , the employers,
Employers Council and Union (for and on behalf of its members em-
ployees ) hereby release each other from any claims, causes of action, or any
liability whatsoever of or resulting from the labor dispute and/or resulting
work stoppages from March 2, 1961 , up to and including resumption of
normal store operations . Each party Agrees to take appropriate action to
effectuate the foregoing release. Union specifically agrees to request im-
mediate withdrawal of its pending charges with Buffalo Region , N.L.R.B.
against all companies and the approval of said withdrawal is express condi-
tion of the following wage settlement: . . . .
been received by the Regional Director after the opening of the hearing. (These requests
involved some 132 employees.) The motion was denied on the ground I would entertain
such a motion under Rule 102 9 only if made by counsel for the General Counsel or counsel
for the Charging Parties, although Rule 102 9, as drafted, makes no such distinction
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 375
(b) Notwithstanding the Strike Settlement Agreement , and that portion
thereof referred to above in paragraph IV (a), which agreement tends to
stabilize labor relations between the parties hereto and effectuate the policies of
the National Labor Relations Act, as amended , District Union Local No. 1,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, by its officers and agents, did , on and after April 26, 1961 , solicit and
encourage the filing of certain charges against the Respondents , which charges
have been processed by the Regional Director for the Board 's Third Regional
Office and have been made a part of these proceedings.
(c) Notwithstanding the Strike Settlement Agreement, and that portion
thereof referred to above in paragraph IV (a), which agreement tends to
stabilize labor relations between the parties hereto and effectuate the policies
of the National Labor Relations Act, as amended , members, stewards and other
agents of District Union Local No. 1, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, have filed certain charges against the
Respondents , which charges have been processed by the Regional Director for
the Board 's Third Regional Office and have been made part of these proceedings.
V
(a) That on or about April 28, 1961 , the Regional Director for the Board's
Third Regional Office, did , pursuant to action taken by District Union Local
No. 1, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, in accordance with the Strike Settlement Agreement , and that portion
thereof referred to above in paragraph IV (a), caused to be issued a letter
approving the withdrawal of charges filed against the Respondents by District
Union Local No. 1, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO. The Regional Director's letter provided, inter alia,
as follows:
In addition , and in further consideration of the approval of the With-
drawal Requests , I wish to make absolutely clear to you that such approval
will not foreclose any individual , who may feel that he or she may have
been discriminated against and his or her rights under the Act violated in
these matters , from filing a charge and that any such charge which might
be filed will be processed upon its merit.
(b) Notwithstanding the Regional Director 's letter, and that portion thereof
referred to above in paragraph V (a), and the strike settlement agreement, and
that portion thereof referred to above in paragraph IV (a), and the under-
standing of the parties hereto, including the Regional Director upon approving
the withdrawal of the charges filed by District Union Local No 1, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, the Re-
gional Director has processed certain charges which have been made a part of
these proceedings , contrary to the foregoing understanding, where (1) the
charges were filed by individuals for and on behalf of themselves and numerous
other individuals, and (2 ) where the individuals filing the charges have not
shown special circumstances.
The General Counsel moved to strike the first defense on the ground that it was
insufficient in law, citing N L R.B. v. Indiana & Michigan Electric Company, 318
U S 9, in which the Supreme Court stated that, "Dubious character, evil or unlawful
motives, or bad faith of an informer cannot deprive the Board of its jurisdiction to
conduct an inquiry " In Petersen Construction Corp.; et al, 128 NLRB 969, the
Board reviewed on the merits an allegation that the Regional Director had solicited
charges against certain respondents added by amendment . I therefore find that the
issue of solicitation is litigable and deny the motion
General Counsel moved to dismiss the second affirmative defense as vague, in-
definite , and lacking in specificity . The defense raises the issue of proper service
of the charges , an issue determinative of the commencement of the 10(b) period.
Since the issue is one of fact , the motion is denied.
The General Counsel moved to strike the third affirmative defense on the ground
that the charges would establish on their face that they were filed within the 10(b)
period. The charges in Cases Nos. 3-CA-1747-2; 3-CA-1753, and 3-CA-1756
show that they were filed on October 9. Since the General Counsel admits that
alleged unfair labor practices were committed on April 7, another issue of fact is
presented which cannot be determined by a motion addressed to the pleadings. The
motion is denied. The issues raised by these three motions will be disposed of in
accordance with the findings, conclusions , and recommendations made herein.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel moved to dismiss the fourth affirmative defense on the
ground that private settlement of an unfair labor practice does not bar issuance
of a complaint by the General Counsel . I agree and grant the motion.4
The motion to dismiss the fifth defense alleges that it ". . . is specious , does not
go to the law, does not go to the facts here alleged ." Since the Regional Director's
approval of the charges filed by the Meat Cutters expressly provided that no indi-
vidual employed by Respondents would be precluded from filing charges of unfair
labor practices against the Respondents , I shall grant the motion . The fourth and
fifth affirmative defenses are accordingly dismissed.
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT EMPLOYERS
A & P is a Maryland corporation engaged in the operation of retail food stores in
various States of the United States . It manufactures , purchases , sells, and distributes
groceries , meats, food products , and other related items . During the past 12
months, the sale of such products exceeded $ 500,000 and its purchases of such prod-
ucts from points outside the State of New York exceeded $50,000.
P & C is a New York corporation engaged in the operation of retail stores and
warehouses in the State of New York. It purchases , sells, and distributes groceries,
meats, food products , and other related items. During the past 12 months, its sales
of such products in the State of New York exceeded $500,000 and its purchases of
meats, groceries , and food products made from points outside the State of New York
exceeded $50,000
Acme is a Delaware corporation engaged in the operation of retail stores and
warehouses in various States of the United States It manufactures , purchases , sells,
and distributes groceries, meats, food products, and related items. During the past
12 months, the sale of such products exceeded $500,000 and its purchases of such
products from points outside the State of New York exceeded $50,000.
The answer admits and I find that A & P, P & C, and Acme are engaged in com-
merce within the meaning of the Act
II. LABOR ORGANIZATIONS INVOLVED
The Meat Cutters, the Bakery Workers, and the Teamsters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The contracts
The Respondents and District I of the Meat Cutters had been operating under
collective-bargaining contracts since 1954.5 Three contracts , all bearing an expira-
tion date of April 16, 1961,6 were in effect between the Meat Cutters and the A & P;
three contracts bearing expiration dates of April 20 were in effect with P & C; 7 and
one contract expiring April 16 was in effect with Acme.8 These contracts had been
negotiated with the Respondents on a single -employer basis and the contracts dif-
fered in form and substance.
The Meat Cutters also had collective-bargaining contracts with two other retail
food chains in the area, Loblaw, Inc., herein called Loblaw, which expired April 2,
and Victory Johnson, herein called Johnson, which expired April 9.
In addition to the foregoing Meat Cutters contracts, the Teamsters had a contract
with A & P covering its warehouse employees at Syracuse,9 two with P & C covering
its warehouse employees and its drivers at Syracuse,10 and two with Acme covering
the same units at Syracuse.ii
4 Wooster Division of Borq-Warner Corporation, 121 NLRB 1492, 1495; N L.R B V.
Walt Disney Productions , 146 F 2d 44 (.CA 9)
5 Prior to 1954 the Respondents had negotiated with various locals of the Meat Cutters
which then merged to form District 1.
6 General Counsel's Exhibits Nos. 4-a, 4-b, and 4-c
General Counsel's Exhibits Nos. 5-a, 5-b, and 5-c
s General Counsel's Exhibit No. 6.
s General Counsel 's Exhibit No. 11.
10 General Counsel's Exhibits Nos. 12-a and 12-b
11 General Counsel's Exhibits Nos. 13-a and 13-b.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 377
The Bakery Workers had a contract covering the bakery operations of A & P at
Syracuse.12
2. The Food Store Employers Labor Council
Robert J. McIntyre, assistant director of labor relations for Acme, testified that,
following a meeting between representatives of Acme, A & P, and Loblaw with repre-
sentatives of the Meat Cutters on January 10, at which industrywide bargaining in
the Syracuse area was discussed , the Food Store Employers Labor Council of Syracuse
and vicinity, hereafter called the Council, was established. The original members
were Acme, A & P, P & C, Loblaw, Victory Johnson, and Star Hart.13 Articles of
association and bylaws were drafted on February 27,14 and on the same day powers of
attorney 15 were prepared for execution by the members. The powers of attorney
authorized the Council to bargain with and execute contracts with the Meat Cutters.
The articles and bylaws were signed and adopted on March 8 and the powers of
attorney were executed on various dates between February 27 and March 8.
3. The negotiations and the lockout
The first meeting between the Meat Cutters and representatives of the Council
was held on March 2, 1962, at the Hotel Syracuse. Sam Talarico, president of
District 1 of the Meat Cutters, and Business Agents McClelland, Wells, Obrist, and
Kaiser represented the Meat Cutters, and McIntyre, Green and Gleason of Loblaw,
and Cowle and Brown of A & P represented the Council. In this and in the follow-
ing meetings Talarico generally acted as spokesman for the Meat Cutters and Mc-
Intyre and later M. Kalman Gitomer, its attorney, were spokesmen for the Council.
At this meeting McIntyre gave copies of the articles of association, the bylaws,
and the powers of attorney of the Council to Talarico. McIntyre testified that
Talarico said there must be three areas of agreement: (1) a common expiration
date to all contracts; (2) the contracts must be uniform, and (3) there must be a
new set of rules and if agreement was not reached by April 2 (the date of expiration
of the Loblaw contract), the Union would take the position, no contract, no work.
McIntyre pointed out certain difficulties, particularly with respect to uniform wage
scales, and the parties agreed to meet on March 8, when Talarico was to submit
proposals.
At the meeting of March 8, McIntyre told Talarico the Council was in general
agreement with his three points and Talarico submitted a contract proposal of some
73 pages. The Council requested time for study of the proposal and the parties met
again on March 15 at which time Talarico was given a letter stating that the em-
ployers would agree to a common expiration date of April 2.16 The Council pre-
sented its counterproposals at this meeting and there was a recess while Talarico
and his group studied them When the Meat Cutters representatives returned to
the hearing Talarico inquired if it was McIntyre's opinion that the Meat Cutters had
recognized the employers as an industry group or had engaged in industrywide bar-
gaining. When McIntyre stated that they had in fact been engaged in industrywide
bargaining, Talarico replied that the Meat Cutters had taken a "wait and see" attitude
on this point. McIntyre then stated the employers were in no position to engage in
individual bargaining because they had given powers of attorney to the association,17
that Talarico's statement was one of bad faith and that the association would have
to file unfair labor practice charges McIntyre then suggested Federal mediation
and when Talarico refused to agree, stated that the Council would call in a mediator.
This ended the meeting.
McIntyre did meet with Conciliator Carroll who then met with Talarico and it
was agreed that the parties would meet in New York on March 17 with their attorneys.
Carroll was present at this meeting and Talarico attended with his attorney, Sam
Bader, and McIntyre with the Council's, M. Kalman Gitomer. At this meeting it
iz General Counsel's Exhibit No. 14.
18 When the stores closed on April 7, Star Hart withdrew from the Council with the con-
sent of the other members and it is not involved in these proceedings Loblaw was struck
by the Meat Cutters after the expiration of the contract and accordingly it is not a
respondent herein
14 Respondents' Exhibits Nos 9 and 10.
15 Respondents ' Exhibits Nos. 11, 12, 13, 14, and 15.
19 General Counsel's Exhibit No. T. The letter also stated that the employer association
was the authorized bargaining representative of the member companies Talarico testified
that after receiving the letter he protested to McIntyre that the Meat Cutters had not yet
agreed to multiemployer bargaining.
17 In his testimony McIntyre generally referred to the Council as the association.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the Council's position that the parties had been engaging in industrywide bar-
gaining and that the Meat Cutters could not withdraw, a position with which neither
Talarico nor Bader agreed. When the meeting resumed the next day, March 18,
Bader pointed out that the Meat Cutters had individual problems with two of the
employers-the so-called Big M Market problem with P & C, and a jurisdictional
problem between District 1 and Local 34 of the Meat Cutters affecting Acme. These
problems were discussed but not solved and there was also discussion of withdrawal
of the Victory Johnson stores from the Council before the meeting adjourned to
permit Talarico to fly to Chicago.18
On March 24 the parties met in Syracuse. At this meeting Bader suggested that
if there were to be industrywide bargaining, the Meat Cutters District 2 be included
(District 2 was a new district covering Meat Cutters locals in West Virginia, Ohio, and
western Pennsylvania). He again mentioned the fact that problems which con-
cerned only P & C and Acme could shut down the entire industry. The Council's
position was reiterated-the parties had engaged in industrywide bargaining and the
Meat Cutters had broken off negotiations.
A subcommittee of both parties met to discuss the Big M and Acme problems
and then Bader proposed a 2-year contract with the right of the Meat Cutters to with-
draw from industrywide bargaining at the end of the term, a proposition which was
unacceptable to the Council.
The parties met again with the conciliator on March 28 and 29, and accomplished
nothing since the Meat Cutters refused to recognize the Council as the bargaining
representative of the Employers.19
On the next day, March 30, the Meat Cutters proposed to extend the Loblaw con-
tract 30 days (from April 2) to permit further negotiations This proposal was
rejected by the Council unless all contracts were extended 30 days, a proposal rejected
by the Meat Cutters. Gitomer again restated the Council's position that the Meat
Cutters had already engaged in multiemployer bargaining with the Council and that
an extension of a contract with an individual employer was an attempt to split the
unity of the employer association. McIntyre then asked for assurance that the Meat
Cutters would not institute a work stoppage against any member of the Council,
an assurance the Meat Cutters would not give. The meeting then recessed. Mc-
Intyre then went to Buffalo to file unfair labor practice charges against the Meat
Cutters and, while there, he received a telephone call from Talarico requesting another
meeting.
Talarico and McIntyre met on April 4 to consider proposals by Talarico respecting
contract terms which were rejected by the Council on April 5. At the meeting on the
5th, the Meat Cutters again rejected the so-called Philadelphia plan 20 proposed by
the Council and also rejected the Council's counterproposal of contract terms
The final meeting between the parties so far as this case is concerned was held on
April 6 and lasted all day. It was attended by two conciliators and before the meet-
ing the parties received a telegram from the Director of the Federal Mediation and
Conciliation Service requesting them to refrain from action which would cut off food
supplies from the public. The Council then submitted a brief statement of economic
principles 21 to Talarico. According to McIntyre the bargaining sessions were in-
1e Following these meetings Bader, attorney for the Meat Cutters, wrote McIntyre setting
forth the Meat Cutters' position with respect to industrywide bargaining In the letter he
stated, "We have agreed to meet with you this coming Friday not for the purpose of engag-
ing in collective bargaining but to explore the possibility whether collective bargaining on
an industrywide basis is feasible in view of certain obstacles We expect to advise you at
this meeting of the conditions which we would insist upon as preliminary to considering
whether we would be willing to engage in industrywide bargaining " (General Counsel's
Exhibit No. 8.) Gitomer replied in a letter to Bader rejecting the contention that the
Meat Cutters had not already engaged in bargaining on an industrywide basis (General
Counsel's Exhibit No 9.)
19 Talarico testified that at the meeting on March 29, Bader asked Gitomer if he inter-
preted the Meat Cutters' action in meeting with the employers as iecognition of the Council
and, when Gitomer replied in the affirmative, the Meat Cutters' representatives left the
room Following these meetings the Meat Cutters sent telegrams to the individual em-
ployers asking for a resumption of negotiations (General Counsel's Exhibits Nos 10-a,
10-b, 10-c, and 10-d.) The Council replied by telegram (General Counsel's Exhibit No
10-e), restating its position that the Meat Cutters' refusal to accept b argaining on an
industrywide basis was an attack upon the integrity of the bargaining unit.
20 The Philadelphia plan provided for a multiemployer contract negotiated through
industrywide bargaining but signed by the individual employers , not by the bargaining
association
21 Respondent 's Exhibit No. 17.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 379
terrupted by caucuses for both parties during the day and about 5 30 p.m Talarico
made a final proposal. McIntyre quoted Talarico as stating, "I have got to have
$5.00 or the Buffalo rates the first year and $5.00 the second. Furthermore, this
$5 00, or the Buffalo rates, whatever is lower, in other words, I am not trying to get
above Buffalo, but I have to equal them. The pension has to be $0 14 an hour per
employee." McIntyre replied that he would have to consult with his committee and
quoted Talarico as saying, "This applies to everybody; we can sign an agreement and
wrap things up tonight." The Council members discussed the proposal until late
that evening and then decided to ask Talarico for time to study it over the weekend
(April 6 was a Thursday). McIntyre and a small committee then went to Talarico's
suite in the Hotel Syracuse where McIntyre quotes himself as telling Talarico, "We
are not rejecting your proposal, but we need more time to study it, and we would
request holding off an answer until Monday." This request was refused by Talarico
who told McIntyre that "Loblaw is going to be on strike right now." McIntyre
replied, ". . . if you are going to strike any of the members, I want it clearly under-
stood that the minute you shut the doors of one of our stores, you are shutting the
door on the entire industry." Talarico repeated that Loblaw was then on strike and,
as the employer committee left, Gitomer told Talarico that he was striking every
member of the association and all members would close.
The employer members of the Council then determined to close down all opera-
tions where the Meat Cutters represented the employees, which excepted the grocery
departments in stores which were represented by the Retail Clerks 22 On the next
day, April 7, except for minor and isolated operations, the stores were closed.
Except for minor discrepancies and some variation in emphasis, I do not find
the testimony of Talarico in contradiction to that of McIntyre. Both were credible
witnesses and such differences as may be found in their testimony is no greater than
what must reasonably be expected when truthful witnesses not entirely free from the
taint of self-interest give their respective versions of protracted negotiations. I am,
therefore, accepting the testimony of McIntyre together with the documentary evi-
dence and occasional references to the testimony of Talarico as the grounds for my
findings.
B. Conclusions
1. The locko'iit of the Meat Cutters
Respondents' cogent and exceptionally candid brief states the issue as:
Removed of all frills the question before the Trial Examiner is whether a
defensive lockout is violative of Section 8(a)(3) of the statute merely because
there is no prior multi-employer bargaining history.
I think, as we shall see. that the use of the word "defensive" begs the question but in
general this is a succinct statement of the primary issue. I agree with Respondents
that since this is neither a representation case nor does it involve a refusal to bargain,
I am not concerned with the appropriateness of a multiemployer unit, but with
discrimination and motive23
Both the General Counsel and Respondents cite the United States Supreme Court
decision in Buffalo Linen 24 as proximate to and dispositive of the issue here. The
General Counsel sees this case as inapposite to Buffalo Linen and removed from the
ambit of that decision by the absence of a history of multiemployer bargaining be-
tween the parties. Having reached that result he concludes that prior Board decisions
require a finding that the lockout, unprotected by any of the exceptions established
by the Board, is presumptively illegal and violative of the Act. This is a facile dis-
position of the case assuming we accept the postulate that Buffalo Linen requires a
22 These included the stores in the Rochester area Since Star Hart had stores in the
Rochester area only, it withdrew from the Council at this time
231 agree with the General Counsel that a multiemployer unit is not appropriate in the
absence of a history of multieraployer bargaining Greater St Louis Automotive Trvmmeis
and Upholsterers Association, Inc, 131 NLRB 75; Hoisting & Portable Engineers Local
#701, International Union of Operating Engineers, AFL-CIO (Cascade Employers Asso-
ciation, Inc ), 132 NLRB fi48 The Board will however, find a multiemployer unit appro-
priate where the union and the employers agree and no other interested party interposes
objection in the absence of such a history Broward County Launderers & Cleaners Asso-
ciation, Inc , 125 NLRB 256.
24 N.L.R B. v. Truck Drivers Local Union No. 449, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL (Buffalo Linen Supply
Co.), 353 U S. 87.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior bargaining relationship on a multiemployer basis to justify a lockout. It is true
that the Court did hold that an employer association could employ a lockout to protect
the integrity of an established and recognized multiemployer unit from attack and
disintegration by strike against individual employer-members. But the Supreme Court
did not indicate, in fact it took pains to refrain from indicating, what its position
would be if the factual situation did not fit the exact framework of Buffalo Linen.
It expressly left open the very broad and unresolved question of the right to lockout
as a corollary of the right to strike and, by so doing, it foreclosed the Board from
reaching decision in this case merely by finding the Employers' conduct within or
beyond the protection of Buffalo Linen. The Court issued, on page 96, a caveat to
the Board when it stated:
The ultimate problem is the balance of conflicting interests. The function of
striking that balance to effectuate the national labor policy is often a difficult
and delicate responsibility, which the Congress has committed primarily to the
National Labor Relations Board, subject to limited judicial review.
I cannot, therefore, accept the argument that a violation must be found merely be-
cause a multiemployer bargaining unit had not been established by prior recognition
and agreement.
Respondents' counsel, and I agree, sees the case as one requiring clarification of
Buffalo Linen as to the conditions and circumstances which must exist before an
employer group may lawfully exercise the right to lock out employees to protect a
bargaining alliance from disintegrating attack. Respondents' conduct in this case
is neither expressly banned by statutory interdict nor clearly allowable, nor governed
by prior judicial construction of the Act, so again the Board, initially, is called
upon to exercise its administrative expertise for the formation of national policy
The first question to be resolved, and the one which may be decisive, is whether
the Meat Cutters agreed to and did engage in industrywide bargaining While there
is evidence, and I so find, that on January 10 and perhaps earlier, Talarico was agree-
able to multiemployer bargaining and encouraged the employers to form an as-
sociation , there is no evidence that, prior to the opening of negotiations, he had any
authority to bind the Meat Cutters to a change in the bargaining unit or that he had
committed himself to acceptance of such a change 25 In any event, no Council was
in existence at that date nor was it known with certainty what employers would be
members of the Council when formed
Briefly reviewing the facts, the first meeting between the Meat Cutters and the
newly formed Council was held on March 2 when Talarico received copies of the
articles, the bylaws, and some of the powers of attorney.26 Talarico then laid down
three principles on which agreement would have to be reached before there could
be multiemployer bargaining principles as to which McIntyre expressed some reserva-
tion. At the next meeting. March 8, Talarico submitted the Union's proposals and
the Council stated it would probably submit its counterproposal on March 15, the
date of the next meeting.
On March 15, the disagreement as to the bargaining unit came clearly into focus.
McIntyre gave Talarico the Council's letter agreeing to a common expiration date
(one of Talarico's three demands) and stating that the "Employer Association" rep-
resented the member stores. After a recess during which the letter together with the
Council's counterproposals were studied, Talarico asked McIntyre if he thought the
Union had recognized the multiemployer unit and, when answered affirmatively, told
McIntyre the Union's policy was to "wait and see." McIntyre then threatened to file
unfair labor practice charges against the Meat Cutters.
It seems clear that at this point the Meat Cutters had not agreed, except to the extent
of participation in negotiations, to a multiemployer unit. The unit question was at
best a bargainable one-with the Union willing to weigh the advantages of the
multiemplover versus the single-employer units not only apart from but in correla-
tion with other issues From March 15 to the date of the lockout it is eoually clear
that the Meat Cutters were unwilling to accept a multiemployer unit except upon
terms to which the Council never agreed 27
25 Talarico not only stated that he was appearing at this meeting against the advice of
his attorney but also that he could not agree to engage in industrywide bargaining without
the consent of his retail committee
0 This was also the first meeting scheduled for bargaining negotiations with the stores
involved.
27 Thus on March 17, Talarlco stated the Council had tried to force him into multi-
employer bargaining and Bader said they had tried to trick him into it. On March 18,
Bader pointed out two obstacles to multiemnloyer bargaining-the Big M dispute with
P & iC and District 1's own jurisdictional dispute with Local 34 at Acme The Union
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 381
I have suggested that this factual finding might be decisive . This is so because
the Respondents ' conduct then inevitably loses the protective or defensive quality
which the Supreme Court found justified a lockout , i.e., the preservation of an
historic multiemployer unit, and assumes the character of aggression , i.e., the use of
the lockout to enforce its demand for such a unit . This distinction in quality I find
significant.28
There are persuasive reasons why employers and labor organizations may find
industrywide bargaining advantageous 29 although the Board has consistently held
single-employer units appropriate . The concern of this case , however , is whether
the means used by the Council to obtain its demand involved discrimination within
the meaning of Section 8(a)(1) and (3). The Board 's own decisions are in the
affirmative , holding that such lockouts are presumptively in violation of not only
8(a)(1) and ( 3) but also of 8(a) (5).30
Two circuit courts, on the other hand, have rejected that presumption. In
Morand Brothers Beverage Co. v. N.L.R.B.,31 the court in dictum bluntly stated:
It follows that they [the Liquor Dealers Association ] had a right to counter
the strike 's effectiveness by laying off , suspending or locking out their salesmen,
who were members of the striking Union and as to whom there was not then
in effect any collective bargaining agreement . We so hold, not merely on the
basis of the implied recognition , in the 1947 Amendment to the Act, Section
8(d) (4), of the existence of such a right , but because the lockout should be
recognized for what it actually is , i e., the employer 's means of exerting eco-
nomic pressure on the union , a corollary of the union 's right to strike. Conse-
quently, once petitioners had exhausted the possibilities of good faith collective
bargaining with the Union through their Associations , any or all of them were
free to exercise their right to lock out their salesmen without waiting for a
strike, just as the Union was free to call a strike against any or all of them.
The Fifth Circuit has likewise refused to accept the Board's theory and in denying
enforcement in Dalton Brick , supra, it stated:
While, for reasons we discuss at length , we think it unwise to generalize in
absolutes or cast the decision in doctrinaire terms of "No Contract , No Work,"
we think it clear that the statutes do not support any such "prima facie" or
"presumptive" invalidity to the lockout when resorted to during bargaining
negotiations . If illegal , its illegality must be established under specific sections
such as 8 ( a)(1), 8(a )( 3), 8(a)(5 ), or the like.
The Third Circuit, on the other hand , more closely approaches the rationale of the
Supreme Court . In affirming the Board in Quaker State Oil Refining Corporation,
supra,32 it stated , page 45:
In the special circumstances confronting it the Board considered that the
petitioner had used its lockout as an offensive weapon to better its bargaining
position and as a result had distorted the bargaining process to a degree where
it obtained an unfair bargaining advantage . The lockout before us , in the view
also proposed that if industrywide bargaining took place , District 2 (a new district) be
included and that a 2-year contract permit withdrawal by the Union upon termination.
These proposals were rejected by the Council . The Union ' s offer to extend the Loblaw
contract for 30 days was rejected by the Council unless all contracts were so extended
At the last meeting Talarico offered a package deal which would have included multi-
employer recognition but, when time for study was requested by the Council , the request
was refused and the strike and lockout took place.
29I do not, of course , indicate that the use of a lockout to protect multiemployer units
upon which final agreement is reached in negotiations but which have no historic support
would fall within Buffalo Linen . That issue is not reached.
20 See Archibald Cox, Cox Cases on Labor Law , 360, 361 (cited in Respondent 's brief)
au Dalton Brick h Tile Corporation, 126 NLRB 473, enforcement denied 301 F. 2d 886
(CA. 5) ; Quaker State Oil Refining Corporation , 121 NLRB 334 , enfd . 270 F. 2d 40
(CA 3), cert. denied 361 U . S. 917 ; Great Falls Employers ' Council, Inc , etc, 123 NLRB
974 (original lockout found lawful, however , under Buffalo Linen ) ; American Brake Shoe
Company, Ramapo Ajax Division, 116 NLRB 820, enforcement denied 244 F. 2d 489
(CA 7).
ai 190 F. 2d 576 (C .A. 7), enfg . in part and remanding 91 NLRB 409.
' The Board held that on the facts there was not a sufficient imminence of strike action
or danger to plant property to justify the lockout during bargaining negotiations.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Board, had unquestionably lessened , if it had not destroyed entirely,
future strike impact. Interference with , impeding or diminishing in any way
the right to strike is affirmatively forbidden by Section 13 of the Act.
Whether we would agree with the reasoning of the Board or not is unim-
portant . What is all important is that the Board has courageously and ably
recognized its responsibility in this extremely sensitive field. , It has fully
recognized that each shut-down case must be decided on its own facts. We
think that it has properly performed its difficult assigned task. We are satis-
fied that it acted according to law in balancing the conflicting interests and
deciding that the economic lockout in this instance was unjustified and in viola-
tion of the Act.
It is my understanding of both Buffalo Linen and Quaker State Oil that neither pre-
cludes the Board from raising a presumption of illegality in lockout cases but that
both, rather , instruct the Board to examine the facts in each instance to balance and
weigh the conflicting interests . The distinction I see between these cases and
Dalton Brick and Morand Bros . is that the former would permit the presumption to
take a place on the scales and the latter cases would not. I do not think, however,
that Buffalo Linen permits an exclusive reliance on a presumption of illegality
While greater weight necessarily attaches to a presumption than to an inference, I
think the language of Justice Frankfurter in the Insurance Agents' case ,33 at page 508,
pertinent . He stated:
The Board 's function in the enforcement of the duty to bargain does not end
when it has properly drawn an inference unfavorable to the respondent from
particular conduct. It must weigh that inference as a part of the totality of
inferences which may appropriately be drawn from the entire conduct of the
respondent , particularly at the bargaining table.
So, too, must a presumption be weighed against the facts which may serve to rebut it.
The record indicates that the Union and the individual employers who formed
the Council had enjoyed a bargaining relationship over a period of years reasonably
free from rancor or bad-faith dealings and that both the Union and the newly formed
employer association entered into negotiations on March 2 with a sincere desire to
reach agreement . From the first the Council insisted ( an insistence not made known
to the Union until the third meeting ) that the Union, by merely sitting in negotiations,
had recognized the Council as the representative of the employers and had thereby
foreclosed bargaining on the all-important issue of a multiemployer unit I cannot
accede to that position as a matter of law, particularly since the Union, as soon as it
was aware of Respondents ' position , protested and continued to protest that the issue
was an open one. While I do not find that this contention that the Union was com-
mitted was advanced in bad faith (Respondents were acting on the advice of com-
petent counsel ), nevertheless the contrast between the position of the Union in agree-
ing that the unit issue was bargainable and that of the Respondents in taking the
adamant stand that the door had been closed by implied acquiescence is not ir-
relevant to an appraisal of the circumstances in toto. Bearing in mind that the
Union had problems with individual employers ( the so-called Big M dispute and
its jurisdictional dispute with Local 34 ) which might disturb the entire multiemployer
relationship , it cannot be said that its refusal to accept the new unit forthwith was
unreasonable . The Union continued to negotiate on this and other issues until after
its own announced strike deadline date (April 2, when the Loblaw contract expired)
and negotiations did not break off until the Council refused to accept the proffered
"package" deal on April 6. The facts in the record are insufficient for finding that
this offer was arbitrary or an attempt to extort unreasonable economic concessions
from the Council in exchange for recognition . When impasse had been reached, the
Union took the only action available to it in view of the no-strike clauses in its other
contracts ,34 it struck Loblaw.35 When the Union announced its strike , Respondents
retaliated by closing their stores on the specific ground that they were protecting the
a N L R B v . Insurance Agents' International Union, AFL -CIO (Prudential Ins Co.),
361 U S 477.
34 The contracts between the Meat Cutters and Respondent Employers also contained
no-lockout clauses. General Counsel ' s Exhibits Nos. 4-a, 4-b, 4-c, 5-a, 5-b, 5-c, and 6.
' The Meat Cutters , as previously found, had offered to extend the Loblaw contract
30 days
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 383
multiemployer unit against disintegrating attack. No plea was made that the threat
of further strikes as the individual contracts expired posed unusual hazards or that a
shutdown was required to safeguard either plant or property or to protect customer
relations 36 The lockout was implementation of the Council's insistence that the
Union had accepted multiemployer bargaining, not because agreement had been
reached in negotiations or through an exchange of concessions, but because it had met
with the Council. But Respondents had given the Union little choice. If it met
with the Council to bargain for new contracts the price was recognition of the
Council and the multiemployer unit without discussion and without negotiation.
If it did not meet it could create an immediate impasse-an impasse on an issue it
was willing to explore. The only rational choice, particularly since the Union was
not fully prescient of its dilemma, was to meet and, as Talarico put it, "wait and see "
The Meat Cutters had no fixed policy as to industrywide bargaining and certainly no
expressed opposition to it; the proposal was one which would have to be considered
seriously, which required study as to impact and which presented new and perhaps
novel problems in a geographical area with a history of single-employer contracts.
The implications of industrywide bargaining are far-reaching and the proposal neces-
sarily required exploration of the terms upon which the new relationship might be
established-a relationship which could conceivably create a stability and consistency
of working conditions beneficial to the Employers and the Union alike. Neither as a
matter of conscience or expediency could the Union afford to spurn such an op-
portunity. But I do not believe Respondents had the right to impose upon the Union's
seizure of that opportunity the prohibitive cost of blind acceptance. I am reluctant to
agree that a group of employers who have bargained with a union individually can,
at any time, form an association and by the use of the tactics employed here force or
attempt to force the union to accept multiemployer bargaining without prior dis-
cussion and agreement upon the terms. Derogation of the principles of free collec-
tive bargaining is inherently involved in such an approach.
When the Respondents were confronted with a continued obduracy on the part
of the Union in accepting their argument that industrywide bargaining had been
removed from the area of negotiation and were served with notice that the Union
would strike Loblaw, they resorted to the lockout at their own stores. To uphold
the lockout as lawful under these circumstances, it is necessary to accept without
reservation the dictum of Morand Bros. that the right to lockout is corollary to the
right to strike, a proposition Respondents have not urged, the Board has rejected
and which the Supreme Court has not reached.
Respondents' conduct, both in threatening the lockout and in locking out its
employees, was discriminatory within the meaning of the Act. The lockout frustrated
the right of the employees to bargain collectively through their designated representa-
tive, the Meat Cutters, as well as their right to engage in strike action.si Inevitably
the discriminatory act of closing the stores and depriving the Meat Cutter members of
employment for the purpose of obtaining agreement on a bargainable issue tended to
discourage membership in the Meat Cutters. No economic weapon has more thrust
than the power to interrupt or terminate employment. The employees had been put
on notice that Respondents were willing to exercise this power to enforce their
bargaining demands and that continued representation by the Meat Cutters thus
exposed them to involuntary loss of employment and wages. Employed for such a
discriminatory purpose, the lockout is, I hold, prohibited by Section 8(a)(3). It is
unnecessary to find that the discouragement was either the immediate, sole, or
specific objective of Respondents' conduct. Locked out because the Meat Cutters
had refused a demand made by Respondents and because it had struck another
employer, the employees ineluctably were discouraged from continued membership
w See American Brake Shoe Company (Ramapo Ajax Division) v. NLRB , 244 F. 2d
489 (C A. 7) ; Betts Cadillac Olds, Inc, et at, 96 NLRB 268; International Shoe Company,
93 NLRB 907; Duluth Bottling Association, at at, 48 ?NLRB 1335
37 In reaching this conclusion, I have considered the language of Section 13 of the Act
guaranteeing, except as specifically limited by other sections, the right to strike. On the
other hand, I have also given consideration to the fact that the counterpart of the right
to strike-the right to replace the strikers-may have been no more than a• formal one
where all of the chains over so wide an area could have been struck successively. The
record does not establish whether a reservoir of competent labor was available. Too, the
Respondents' demand for multiemployer bargaining was not one which it could impose
unilaterally after impasse was reached.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and from engaging in strikes . A consequence more clearly foreseeable would be
hard to conjure and the rule of the Radio Officers case finds application here.38
Accordingly, I find Respondents violated Section 8 ( a)(1) and ( 3) of the Act as
to employees who were members of the Meat Cutters or who were employed in bar-
gaining units represented by the Meat Cutters.39
I also find that the threat made at the meeting on April 6 by McIntyre and
repeated by Gitomer to close all the stores if the Meat Cutters struck Loblaw was,
since it was made in the presence of the Union 's negotiating committee , some of
whom were employees of the Respondents , an independent violation of Section
8(a)(1).
2. The lockout of the Bakery Workers and the Teamsters
When Respondents closed their stores on April 7, employees in the unit covered by
a contract with the Bakery Workers at the A & P store at Syracuse and employees in
the units covered by the Teamsters contracts with all three Respondents at Syracuse
were also locked out. Respondents contend that these employees were not locked
out but were laid off for lack of work as a result of the Respondents' lawful clos-
ing of their other operations and they further contend that there could be no lock-
out in the legal meaning of that term since no labor dispute existed between Respond-
ents and either the Bakery Workers or the Teamsters. Again I think Respondents
beg the question. I concede that if the layoff of the employees in these units had
resulted from a lawful closing down of its other operations and a consequent lack
of work, no violation occurred. As to the second contention, the real issue is not
whether the employees were "locked out" or "laid off" but whether their loss of
employment resulted from discriminatory action of the Respondents designed to
discourage union membership. While I have found the employees covered by the
Meat Cutters contracts were locked out for discriminatory reasons, I reach a differ-
ent conclusion with respect to the employees in other units
The lockout of the Meat Cutters employees clearly and foreseeably discouraged
membership in the Meat Cutters but I do not find that this lockout discouraged mem-
bership in the Bakery Workers or the Teamsters. The lockout was not directed to
employees in these units, there was no effort on the part of the Respondents to en-
force multiemployer bargaining on these units or these Unions and there was no
reprisal against these employees for engaging in any concerted activity. While these
employees suffered loss of employment directly as a result of the discriminatory
lockout of the Meat Cutters members they would have suffered the same loss of
employment had they belonged to any or no labor organization. Neither the mem-
bers of the Bakery Workers nor the Teamsters could feel that their loss of employ-
ment was in any way attributable to their union membership nor that they would
have escaped such loss had they not been union members. Innocent victims though
they were of a dispute not of their own making, they would have been victims in any
event. True, they might suspect that the same situation might arise (although only as
to the Teamsters) at some future time when a similar demand might be made by
Respondents for multiemployer bargaining in their units and similar lockout action
taken to enforce it. Such a suspicion is too conjectural and remote to permit a hold-
ing that it, without more, would serve to discourage membership in a labor organiza-
tion. Nor can I see that a violation may be found on the premise that the lockout
would serve to discourage membership on the part of these employees in the Meat
Cutters, absent any showing that such membership was contemplated by the mem-
bers of these unions. The foreseeable consequences rule must have its limitations.
I recommend that the complaint in Cases Nos. 3-CA-1595, 3-CA-1602-1,
3-CA-1602-2, 3-CA-1603-1, 3-CA-1603-2, and 3-CA-1605 be dismissed.
-18 The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Boll
Steamship Company) v N L R B , 347 U S 17. The Supreme Court, page 45, stated:
Both the Board and the Courts have recognized that proof of certain types of dis-
crimination satisfies the intent requirement. This recognition that specific proof of
intent is unnecessary where the employer conduct inherently encourages or dis-
courages union membership is but an application of the common law rule that a man
is held to intend the foreseeable consequences of his conduct Thus an employer's
protestation that he did not intend to encourage or discourage must be unavailing
where a natural consequence of his action was such encouragement or discouragement
Concluding that encouragement or discouragement will result, it is presumed that he
intended such consequence. In such circumstances intent to encourage is sufficiently
established [Citations omitted ]
The record does not indicate whether any employees in these units were not union
members. As to them, if any, the discouragement would run to joining the Meat Cutters.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 385
C. The subsidiary issues
1. The alleged solicitation of charges by the General Counsel
To support their contention that certain charges herein had been improperly
solicited, the Respondents requested General Counsel Stuart Rothman to permit
Jeremy Cohen (incorrectly identified in the record as Jeremiah Cohen), a Board
agent, to testify in the proceeding.40 Permission was refused by the General Counsel
(without giving reason) and Respondents then issued a subpoena ad testificandum
to Cohen. Counsel for the General Counsel then petitioned to revoke the subpena,41
citing the Board's Rules and Regulations, Series 8, Section 102.118 42 The petition
was granted by the Trial Examiner because he felt himself bound by the Board's
rules 43 and, on special appeal to the Board from this ruling, the ruling was affirmed.
Subsequently, counsel for the Respondents called as witnesses Phil Carocci, store
manager of one of the P & C stores in Syracuse, and Anthony Castrilli, an employee
of the store.
Carocci testified that Cohen was at his store on October 6 and asked to see Ed-
ward Barone, assistant manager. (Barone was in the bargaining unit.) Barone
was out with an injured kneecap and Cohen, according to Carocci, went to Barone's
home and then returned to the store. He testified that Cohen then spent about 45
minutes in the store talking to other employees.
Castrilli testified that he observed Cohen in the store talking to other employees
and that he went into a back room where Cohen was talking to employees Helen
Malone and Gloria Martin. Castrilli, whose testimony was far from clear,' stated
that Cohen said he needed one signature to a document,44 that Barone was supposed
to sign it but was sick and that Castrilli "was sort of elected by the store to sign it."
Castrilli also testified that at the time he signed he did not understand that he was
initiating unfair labor practice proceedings against his store.
0
40 A number of charges herein were received by and filed with Cohen at various cities
and towns within the Third Region immediately preceding the expiration of the 10(b)
period The charges were filed by individual employees of the stores and these circum-
stances presumably led to the charge of solicitation
41 General Counsel's Exhibit No. 16
4z This section reads:
Sec. 102 118 Same; Board employees prohibited from producing files, records, etc.,
pursuant to subpoena ad testificandum or subpoena duces tecum, prohibited from testi-
fying in regard thereto.-No regional director, field examiner, trial examiner, attorney,
specially designated agent, general counsel, member of the Board, or other officer or
employee of the Board shall produce or present any files, documents, reports, memo-
randa, or records of the Board or testify in behalf of any party to any cause pending
in any court or before the Board, or any other board, commission, or other administra-
tive agency of the United States, or of any State, Territory, or the District of
Columbia with respect to any information, 'facts, or other matter coming to his
knowledge in his official capacity or with respect to the contents of any files, docu-
ments, reports, memoranda, or records of the Board, whether in answer to a subpoena
duces tecum, or otherwise, without the written consent of the Board or the chairman
of the Board if the official or document is subject to the supervision or control of
the Board ; or the general counsel if the official or document is subject to the super-
vision or control of the general counsel. Whenever any subpoena ad testificandum or
subpoena duces tecnm, the purpose of which is to adduce testimony or require the pro-
duction of records as described hereinabove, shall have been served upon any such
persons or other officer or employee of the Board, he will, unless otherwise expressly
directed by the Board or the chairman of the Board or the general counsel, as the
case may be, move pursuant to the applicable procedure, whether by petition to re-
voke, motion to quash, or otherwise, to have such subpena invalidated on the ground
that the evidence sought is privileged against disclosure by this rule: Provided, After
a witness called by the general counsel has testified in a hearing upon a complaint
under section 10(c) of the act, the respondent may move for the production of any
statement of such witness in possession of the general counsel, if such statement has
been reduced to writing and signed or otherwise approved or adopted by the witness
Such motion shall be granted by the trial examiner. If the general counsel declines
to furnish the statement, the testimony of the witness shall be stricken.
43 No other ground was alleged in support of the petition to revoke.
44 Identified as Respondents' Exhibit No 24, it is the charge in Case No 3-CA-1748.
734-070-64-vol. 145-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination Castrilli was shown a document introduced into evidence as
General Counsel's Exhibit No. 17 and interrogated as to its contents. The docu-
ment contains the signatures and addresses of 10 persons, including Castrilh and
Barone, who were employed at the store involved in Case No. 3-CA-1748. Beneath
the signatures are the words "This form is in regard to our Back pay from the
lockout of April." Below these words appears the notation "Mail form to Edward
Barone, 909 Butternut Street, Syracuse, N.Y., % P & C Foods Market" On one
corner of the document appears the notation in pencil "Barone refused to sign,"
followed by the notation "1540 10-6-61." Then, in ink, appears the notation "svd.
Crockey 10-6-61, 1620 hrs." 45 Although the document was taken from the Gen-
eral Counsel's files and introduced into evidence by him, no explanation of the
document or its various notations was given. Counsel for the Respondent moved for
a subpoena duces tecum directed to the General Counsel for the production of books,
records, correspondence, and documents relative to all charges in the consolidated
cases. Subsequently, a subpoena ad testificandum was directed to Charles Weintraub
and permission to testify or to produce the records, documents, etc., was denied by
the General Counsel. Motions to quash the subpenas were then made by the Gen-
eral Counsel. The motion to quash the subpoena ad testificandum was granted by
the Trial Examiner and affirmed by the Board on appeal. The motion to quash the
subpoena duces tecum was denied by the Trial Examiner on the ground that the
General Counsel, by the introduction of General Counsel's Exhibit No. 17, had
waived the privilege accorded by Rule 102.118 respecting the productions of records
relating to the charges which had been received by Cohen. This ruling was likewise
appealed to the Board, which reversed the Trial Examiner and granted the motion
to quash. No further evidence in support of the allegation of solicitation other than
the charges themselves was offered by the Respondents.
The issue thus stands in a peculiar posture before me. The Board has held that
the issue of solicitation is litigable 46 but has refused to make available the evidence
which would enable the Respondents to litigate the issue. It has, instead, permitted
its General Counsel to avail himself of its rule of self-imposed and self-serving im-
munity without making any claim of public policy, security, or confidence or asserting
any reason for his refusal other than the naked claim of its protection.
It is interesting to note that the Fifth Circuit has passed upon this express issue
of immunity and resolved it against the Board. In N.L.R.B. v. Capitol Fish Com-
pany,47 the Court had this to say with respect to the General Counsel's arbitrary
refusal to permit a Board agent to testify where improper conduct had been alleged:
There is no suggestion in the record that the testimony sought to be elicited
from the Board attorney is privileged. The testimony does not involve matters
vital to national security, as in the Reynolds case, or information which should
be kept secret for other reasons. It is not necessarily related to any physical
records. The Board's General Counsel made no explanation and the trial ex-
aminer was satisfied with the bare fact that the agency head charged with
knowing what is right and good for the public to know had made his decision.
Fundamental fairness requires that Capitol Fish be allowed to introduce testi-
mony that may impeach the evidence offered against it. The N.L.R.B. cannot
hide behind a self-elected wall evidence adverse to its interests as a litigant.
5 U.S.C A. 622 does not call for a result so inimical to our traditions of a fair
trial.
This case presents an anomaly in our system of justice. The agency official
charged with responsibility for asserting the claim of privilege is also the
prosecutor whose successful prosecution of this case could depend on exclusion
of the evidence for which the privilege is claimed. And, he is one part, the
trial court (examiner) a second part, and the reviewing court (the Board) a
third part of one agency-the agency bringing the action. Impartiality is the
life of justice. It is against all concepts of impartial justice for the trial examiner
to assume that the Board, through its regulations, or the General Counsel, by
virtue of his office, is the final arbiter to decide whether a Board attorney should
testify. Responsibility for deciding the question of privilege properly lies in
45 From the scant evidence relating to this document I would find that the notation
"1540 10-6-61" referred to 3:40 pm on October 6, 1961, and the notation "svd Crockey
10-6-61, 1620 hrs." referred to service of the charge upon Crockey at 4:20 p m., October 6,
1961. This is consistent with the testimony that Cohen went to Barone's home, did not
get his signature to the charge, and returned to the store where he obtained Castrilh's
signature.
46 Peterson Construction Corp, et at, 128 NLRB 969.
47 294 F. 2d 868 (C.A. 5), remanding 126 NLRB 980.
4
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 387
an impartial, independent judiciary-not in the party claiming the privilege
and not in a party litigant. [Citations omitted.]
While the Board has accepted the remand in Capitol Fish and has reopened the hear-
ing to receive the testimony of the Board agent, it has not yet, so far as is known,
undertaken to revise Rule 102.118 to restrict the immunity therein conferred to
cases where national security, public policy, or confidence may sanction its applica-
tion. It is foreseeable that the Board may revise the rule to make it consonant with
the decision of the Fifth Circuit as it succumbed to the Second Circuit in the
Adhesive Products case 48 and made the pretrial affidavits of witnesses called by the
General Counsel available to respondents. Even after the decision of the United
States Supreme Court in the Jencks case,49 the Board had reaffirmed its position
that its General Counsel was not required to make such statements or affidavits
available to opposing counsel even after the witnesses had testified and the claim of
confidence was forfeit.50 Following the Adhesive Products decision, however, the
Board modified the rule and required their production. In the instant case, the
Board has already ruled against Respondents' right to examine Board agents on a
litigable issue and has foreclosed the production of documents from the files of its
General Counsel after a document from his files was offered in evidence on the same
issue. I have grave doubt as to the legality of such procedure and no doubt as to
its propriety. As Judge Hand stated in United States v. Andolschek, 142 F. 2d 503,
page 506:
The government must choose: either it must leave the transactions in the
obscurity from which a trial will draw them, or it must expose them fully.
It would seem that it is nothing short of administrative effrontery to permit the
General Counsel to select from his files certain documents relating to litigable issues
and to permit him to hide others behind a peremptory refusal to disclose. Adminis-
trative agencies are frequently accused of a lack of ardor for the requirements of
due process and it is rulings such as these which lend support to the accusation.
That there should be a more favorable rule for the prosecuting or enforcing agency
than for the defendant or respondent affronts any sense of fair dealing. As Judge
Prettyman has stated in "Trial by Agency":
The thrust of every program for change in administrative procedure is toward
the insurance of a full and fair hearing. To the American mind this is basic.
We cannot accept even for filing the concept of an autocrat-benign, benevolent
and lovable though he may be. When a man comes to justice, in the American
view he must-not may, or might, or maybe, but must-get justice; and
justice to that view is an unruffled, unweighted evaluation of the factors in the
dispute. That end result in the American mind follows from a full and fair
hearing and from no other means whatever. Even in those areas in which prime
national interests, such as security, necessitate deviations from the norms of
disclosure and confrontation, we still insist upon fair play for the individual.
I deeply believe the American people would discard the whole of any govern-
mental system which did not provide justice. I know they will discard the
administrative process if it does not administer law in the American tradition
of justice.
The failure of the General Counsel to reveal either the means or methods by
which certain charges were obtained makes a fair or intelligent ruling on this issue
impossible. I shall have to hold that the Respondents have established a prima facie
case with respect to the charge in Case No. 3-CA-1748 only, since no testimony
or evidence was offered with respect to other charges. It is a not unreasonable
inference that most of the individual Charging Parties were employed by Respon-
dents or were available to Respondents during the investigation of the charges and
during the hearing No proper foundation with respect to these charges was made,
either for the testimony of Cohen or Weintraub or for the production of books,
records, documents, etc.
In Case No. 3-CA-1748, there is the uncontradicted testimony of Carocci and
Casty lli which indicates that Cohen came to the Butternut store to obtain the sig-
nature of one Edward Barone to the unfair labor practice charge. Informed that
Barone was home with an injury, Cohen visited Barone there and returned to the
store where he told Castrilli he needed one signature to a document. Castrilli then
48 N L R B v. Adhesive Products Corp , 258 F. 2d 403
49Jencks v United States, 353 U.S. 657.
"See The Great Atlantic & Pacific Tea Co., 118 NLRB 1280, Member Jenkins dissenting.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed the document.51 This testimony, together with the notation on General Coun-
sel's Exhibit No. 17 that Barone refused to sign, is sufficient to require explanation or
rebuttal. The General Counsel has offered neither.52 I am aware that there is an
obligation on the part of the General Counsel to advise parties of their rights but it
seems equally clear that the General Counsel does not have the statutory right to
initiate charges. When, as here, one employee has refused to sign the charge and
another employee is induced to sign without being made aware that he is institut-
ing unfair labor practice charges against his employer, the obligation to inform
has been swallowed by solicitation. The statutory scheme set forth in Section 10(b)
did not envisage that the General Counsel's agents should visit employees at their
homes or places of employment seeking signatures to charges.53 The duty to pro-
tect public rights must stop somewhere short of importunity.
I shall, therefore, recommend that the complaint issued in Case No. 3-CA-1748
be dismissed.
2. The filing, docketing, and service of the charges and Section 10(b)
The second and third affirmative defenses allege that certain of the charges upon
which complaint issued were not properly filed, docketed, and served, and that cer-
tain charges were untimely filed and served under Section 10(b). Since these issues
are necessarily correlated, they will be subject to joint discussion and conclusion.
As to the filing of the charges,54 Section 102.10 of the Board's Rules and Regula-
tions, Series 8, provides:
Where to file.-Except as provided in Section 102.33 such charge [alleging
that any person has engaged in an unfair labor practice] shall be filed with the
regional director for the region in which the alleged unfair labor practice has
occurred or is occurring.55
The attack upon the filing of the charges relates to those which were filed during
October 1961 and is, as I understand it, directed to the fact that certain of them were
accepted by a Board agent at various towns and cities in New York State and were
dated and given a case number by him rather than by the Regional Director at the
Buffalo Regional Office. Since the General Counsel has seen fit to refuse to permit
the Board agent who received the charges to testify in this proceeding, the facts and
circumstances relating to the filing of the charges remain secret. Assuming, without
finding, that the charges were received from individuals at various cities and towns in
New York State by Cohen and were dated and given a case number by him, I find
nothing in this process inconsistent with or improper under the Board's Rules and
Regulations. It cannot be claimed and it is not alleged that charges are required
to be filed with the Regional Director in person. They are, as a matter of common
practice, filed with and docketed by the clerical division of the Regional Office. Nor
is there any requirement that they be filed in the Regional Office, only that they be
filed with the Regional Director. I, therefore, hold that filing with an agent of the
Regional Director constitutes proper filing whether the filing is at the Regional Office
or in the area embraced by the Regional Office. No party or respondent can claim
to be prejudiced by the fact that the charge has been filed with an agent in the field
51 Respondents' Exhibit No 24, the charge in Case No. 3-CA-1748, shows on its face
that the name "Edward Barone" had been typed in the space labeled "Charging Party"
and had been crossed out and the name "Anthony Castrilli" printed in pencil over it The
charge was then signed by Anthony Castrilli. As has been previously found, Castrilli was
not aware that he was filing an unfair labor practice charge
51 1 am aware that had Cohen been called to the stand, the cryptic circumstances under
which the charge was filed might have been fully explained, but the General Counsel saw
fit to prevent any explanation
53 These findings, of course, are based on inferences drawn from the uncontradicted
testimony of Carocci and Castrilli There is nothing in the record to indicate 'that Agents
Weintraub and Cohen were not willing and perhaps anxious to testify nor that their testi-
mony might not have served to rebut the findings It Is the General Counsel who closed
the door on full disclosure It is axiomatic in a free society that a man does not run
unless he is afraid and that he does not hide unless he has something to conceal
64I include docketing as part of the process of filing A charging party files a charge
by presenting it to the Regional Director or his agent. When accepted, it is "docketed"
by the simple act of dating the charge and giving it a case number. I consider the act of
filing complete when a case number has been assigned to the charge
55 Section 102.33 provides for the filing of charges with the General Counsel in Washing-
ton with his permission.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 389
rather than with an agent in the Regional Office. The jurisdiction of a Regional
Director is geographic and is fixed by the Board.
A more important issue is raised with respect to proper service of certain charges.
Section 11(4) of the Act provides:
Complaints, orders and other processes of the Board, its member, agent, or
agency, may be served personally or by registered mail or by telegraph or by
leaving a copy thereof at the principal office or place of business of the person
required to be served.
Section 102.111 of the Board's Rules and Regulations provides:
Service of process and papers; proof of service.-(a) Charges, complaints, and
accompanying notices of hearing, final orders, intermediate reports, and sub-
penas of the Board, its member, agent, or agency, may be served personally or
by registered mail or telegraph or by leaving a copy thereof at the principal office
or place of business of the person required to be served. The verified return
by the individual so serving the same, setting forth the manner of such service,
shall be proof of the same and the return post office receipt thereof when
registered and mailed or telegraphed as aforesaid shall be proof of service of
the same.
Section 102.14 of the said Rules and Regulations provides:
Service of the charge.-Upon the filing of the charge, the charging party shall
be responsible for the timely and proper service of a copy thereof upon the
person against whom such charge is made. The regional director will, as a
matter of course, cause a copy of such charge to be served upon the person
against whom the charge is made, but he shall not be deemed to assume respon-
sibility for such service.
The affidavits of services of certain of the charges 56 reveal that service was made
by delivering a copy of the charge to the manager or assistant manager of the retail
stores where the Charging Party was employed. Obviously the retail stores are not
the principal offices of the Respondents but the question remains whether the stores
are principal places of business The Board does not appear to have passed on this
issue and, since rule 4 of the Federal Rules of Civil Procedure does not provide for
such service, the decisions under that rule are not applicable. (Rule 4(d) provides
for personal service of a summons upon a domestic or foreign corporation ". . . by
delivering a copy of the summons and of the complaint to an officer, a managing
or general agent, or to any other agent authorized by law to receive service of
process ... )
I think it must first be noted that the Board, prescient of the contingency of
negligence on its own part, has fixed the responsibility for service of the charge upon
the Charging Party. Charges, however, may be filed by any person 57 and the
provision for service must be construed with that fact in mind. Where, as here, the
Charging Party is an individual he may be not only unversed in the formalities of
legal procedures and ignorant of the Board's Rules and Regulations, but unschooled
and illiterate. The vesting of responsibility for service upon the Charging Party
requires, if the policies of the Act are not to be subject to frustration by technicality,
that the provisions relating thereto must be liberally construed.58 Where the em-
ployer is corporate and has, as do the Employers herein, many places of business I
do not think it is required that the Charging Party, whether serving by mail or in
person, make such service upon a corporate officer at the corporation's main office.
Such office will, in most cases, be located at some distance and frequently in another
State. Applying a rule of reason I would hold that, as to the Charging Party, such
a corporation's place of business at which service may be made is the store, plant, or
office where the Charging Party is employed. If such service satisfies the rule as to
the Charging Party then it must be adequate when service is made by the Regional
Director who is, in effect, making service as agent of the Charging Party.
I further note that in the cases where service was made by mail by the Regional
Director, the affidavits indicate that service of charges was made by mailing to the
ae These were the charges filed in Cases Nos 3-CA-1736-2, 3-CA-1738-2, 3-CA-1741 to
3-CA-1749, inclusive, 3-CA-1751, 3-CA-1752, 3-CA-1754, and 3-CA-1758 to 3-CA-1761,
inclusive.
67 Rules and Regulations, Section 102 9.
51 The Board's Rules and Regulations so provide in Section 102 121
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store or location involved rather than to the Respondents' principal offices. No con-
tention has been made that such service was not proper nor that it did not constitute
due notice to Respondents In the absence of any showing of prejudice, I cannot
hold that Respondents, having failed to protest or reject such service when made by
mail , may now be heard to claim prejudice when the service was made in person. I,
therefore, find that service made by delivering a copy of the charge to either a man-
ager or assistant manager of the store where the alleged unfair labor practice took
place constituted proper service upon the corporate Respondents herein.59
Turning to the date of the alleged unfair labor practices and the tolling of the
10(b) period, I find that as to the Charging Parties herein the earliest date of such
practices was April 7. While the record shows that Respondents notified representa-
tives of the Meat Cutters late on the night of April 6,60 that Respondents would
close their stores, the employees, whether members of the Meat Cutters, the Bakery
Workers, or the Teamsters, were not locked out until April 7. I do not consider
that the notice given to the Meat Cutters just before midnight on April 6 that lockout
action would be taken as notice, constructive or otherwise, to the employees nor, if
I did, would I find a violation of Section 8(a)(3) until the notice was implemented
by action. It was on April 7 that the employees found themselves shut off from
their employment and that is the date of the unfair labor practices. In keeping with
the rule laid down by the Board in The Baltimore Transfer Company case,61 I exclude
from computation of the 6-month period the date on which the unfair labor practices
were committed and therefore find that the 10(b) period expired on October 7.62
All charges filed and served on that date are within the statutory limitation.
The charges in Cases Nos. 3-CA-1747-2, 3-CA-1753, and 3-CA-1756, however,
were filed on October 9. At the hearing I stated:
Let me say this with respect to those charges filed after the 7th [of October],
that is the one which was filed on October 9. I assume that you are contending
that with respect to those individuals, that they did not know of the unfair labor
practice or that there was no unfair labor practice committed with respect to
them until [6 months prior to] the date the charges were filed, but the record
would not indicate that unless those parties appear. I am confronted with the
fact that I must find, assuming October 7 is the date, October 9 would, as a
matter of course, be beyond the 10(b) period-absent explanation that's the
position as I see it . You would go forward and establish by testimony of those
witnesses whether or not an unfair labor practice, as to them, was committed on
the 9th [of April].
It is true that October 7 was a Saturday, a day on which the Board's office is not
usually open for business, and the Board has held that where the expiration date
of the 10(b) period falls on a Sunday or a legal holiday the period runs until the
next day which is neither a Sunday nor a holiday.63 No such provision has been
made for Saturday. In view of the fact that other charges were filed and served on
October 7, and in further view of the admonition to the General Counsel to establish
that October 9 would be within the 10(b) period in the above cases, I must find the
filing and service of these charges untimely and recommend the dismissal of the
complaint with respect to them.
IV. THE REMEDY
Having found that the Respondents have engaged in and are engaging in certain
unfair labor practices, I shall recommend that they cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
Having found that the Respondents unlawfully discriminated against employees
in units represented by the Meat Cutters in the stores embraced in the consolidated
complaint, I shall recommend that Respondents make whole each employee em-
ployed in said units as to whom complaint has issued, except where it has been recom-
mended that the complaint be dismissed, for any loss of pay he may have suffered
by reason of such unlawful discrimination by the payment of a sum of money equal
69Cf . Olin Industries , Inc, Winchester Repeating Arms Company Division v. N L R B ,
192 F. 2d 799 (C A. 5) ; Frank Arquillo, an Individual, dlb/a DeLuxe Motor Stages, et al.,
93 NLRB 1425.
6 The time is fixed as about 11 30 p.m.
a 94 NLRB 1680
62 See also rule 6(a), Federal Rules of Civil Procedure.
63 Crosby Construction Co, 93 NLRB 28.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 391
to that which he would normally have earned as wages during the period of discrimi-
nation ,64 less any net earnings during said period.
Respondents argue that the special circumstances of this case make the imposition
of the Board's usual backpay remedy inequitable . The settlement agreement between
the Meat Cutters and Respondents which terminated the lockout contained a mutual
release from all liability resulting from the labor dispute, including the lockout,
between the parties . 65 The General Counsel's approval of the settlement agreement,
however, reserved the right of individual employees to file charges of unfair labor
practices against Respondents and it is this reservation which I hold controlling.66
The General Counsel acts in the public interest and the fulfillment of his obligation
to enforce congressional policy is not subject to restriction by accord between
private parties . Employers and labor organizations do not have the power to frus-
trate the policies of the Act by private settlement however equitable as between each
other. I think that proposition elementary . The area of discretion left to the
General Counsel by the statute is vast and when that discretion has been exercised
by the issuance of complaint the Trial Examiner is restricted to deciding the merits
of the case and may not review the exercise of the General Counsel 's discretion.
The cases cited by the Respondents are inapposite . In N.L.R .B. v. National Bis-
cuit Company , 185 F. 2d 123 ( C A. 3), the Third Circuit refused to enforce a Board
order requiring the respondent to reinstate an employee with backpay and to post
the usual notice. Respondent , however, pursuant to a settlement agreement, had
ceased its unfair labor practices , given the employee backpay, offered him reinstate-
ment which he had refused, and posted a notice. The notice did not meet Board
approval since it did not state it was posted pursuant to a Board order and the
Board sought a court order directing reporting , backpay, and a second offer of
reinstatement . The Third Circuit denied the application per curiam , stating:
The powers conferred upon this court by the National Labor Relations Act to
enforce the orders of the Board are equitable in nature and may be invoked only
if the relief sought is consistent with the principles of equity . Those principles
do not move us to enter a mandatory injunction requiring the respondent to do
things which it has already done.
The note of sarcasm in the court 's brief comment appears justified by the facts
of that case . Here the Respondents , while they have reemployed the locked-out
employees , have not made them whole for the losses suffered from the lockout nor
can I, from this record, make the determination that the new contracts compensated
the employees for such loss by reason of the increase in wages therein provided.
That issue was not litigated before me
In Retail Clerks International Association, Local Unions Nos . 128 and 633 v.
Lion Dry Goods , 369 U.S. 17, the Supreme Court held that a strike settlement
agreement is cognizable under Section 301 (a ) of the Act . That section provides
that suits to enforce contracts between employers and labor organizations may be
brought in district courts of the United States. While the Court stated that strike
settlement agreements further the cause of industrial peace and should be enforced,
the issue in that case lay between parties. The right to sue conferred by Section 301
runs to private parties and is beyond the jurisdiction of the Board. Were the issue
here between the Meat Cutters and Respondents , a different situation would be
presented but the Meat Cutters is not a party to this case and the General Counsel,
acting on behalf of individual complainants, is not bound by its agreement
Nor do I accept the argument that an order recommending backpay would result
in a windfall to a small group of employees 67 as a sound ground for shunning such
a recommendation . If a small group chooses to assert their rights under the Act
and the majority elects to waive them, then any remedial benefits which may flow
to the former cannot be characterized a windfall. Such remedy as the Board might
find effectual in enforcing national labor policy was equally available to all em-
ployees similarly situated and the failure of the majority to seek redress , whether
deliberate or inadvertent , cannot deprive the Charging Parties of their rights.
64 This period shall run from the time each employee was laid off until he was reemployed
or offered reemployment
15 Respondents ' Exhibit No 2
61 Respondents' fifth affirmative defense which asserted the agreement as a bar to this
proceeding has been dismissed I am now considering the agreement only as an equitable
argument against a backpay order
07 Respondents argue that only about 200 of some 7.000 involved in the lockout would
benefit The General Counsel , during the hearing, fixed the number at approximately
1,400. This discrepancy I find immaterial.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do have some concern about the appropriateness of a backpay order, not on
grounds advanced by Respondents but because I think Respondents at all times
acted in good faith, however mistaken I find them as to the law. When the choice,
however, lies between relieving a wrongdoer of the consequences of his conduct or
granting the wronged the traditional remedy, logic and good conscience inevitably
dictate the latter choice.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Meat Cutters, the Bakery Workers, and the Teamsters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. Respondents are employers within the meaning of Section 2(2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of their
employees employed in bargaining units represented by the Meat Cutters, Respon-
dents have discouraged membership in the Meat Cutters and have engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
4. By threatening to lock out employees in units represented by the Meat Cutters,
Respondents have interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed by Section 7 of the Act.
5. Respondents have not discriminated against their employees who were em-
ployed in bargaining units represented by the Bakery Workers or the Teamsters
6. The aforesaid labor practices are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case, I recommend that the Respondents, The Great Atlantic & Pacific
Tea Company, P & C Food Markets, Inc., and American Stores Company, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District Union Local 1, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, by discriminatively
locking out or laying off any of their employees, or discriminating in any other
manner in regard to their hire and tenure of employment or any term or condition
of employment
(b) Threatening their employees with a lockout or layoff in order to force them
to accept a multiemployer bargaining unit which has not been established by history
or agreement between them and the bargaining representative of their employees
(c) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of the rights guaranteed by Section 7 of the Act
2 Take the following affirmative action in order to effectuate the policies of the
Act
(a) Make whole all employees employed in bargaining units represented by the
Meat Cutters as set forth in the consolidated complaint herein for any loss of pay
they may have suffered by reason of the discrimination against them, in the manner
set forth in that section of this report entitled "The Remedy "
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records. social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under this Recommended Order
(c) Post at each of their stores in the State of New York as to which violation of
the National Labor Relations Act has been found herein, copies of the attached
anpropriate notice marked "Appendix " 68 Conies of said notice, to be furnished by
the Regional Director of the Third Region, shall. after having been duly signed by
authorized representatives, be posted immediately upon receint thereof, and be
maintained by them for a period of 60 consecutive days thereafter, in conspicuous
places. including all places where notices to emnlovees are customarily nosted.
Reasonable steps shall he taken to insure that said notices are not altered, defaced,
or covered by other materials.
° If this Recommended Order is 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 If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree
of the United States Court of Appeals, Enforcing an Order" for the words "A Decision
and Order."
AMERICAN LADY DEPARTMENT STORES 393
(d) Each shall notify the Regional Director for the Third Region , in writing,
within 20 days from the date of the issuance of this Intermediate Report and
Recommended Order, what steps it has taken to comply herewith.69
(e) It is further recommended that the complaint, as to the following cases, be
dismissed:
Case No . 3-CA-1595 Case No. 3-CA-1747-2
Case No. 3-CA-1602- 1 Case No . 3-CA-1748
Case No. 3-CA-1602-2
Case No. 3-CA-1603-1 Case No. 3-CA-1753
Case No. 3-CA-1603-2
Case No. 3-CA- 1605 Case No. 3-CA-1756
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Third Region, in writing , within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith."
American Lady Department Stores and Department and Variety
Store Clerks Union, Local No. 170, Retail Clerks International
Association , AFL-CIO. Case No. 2O-CA-2512. December 12,
1963
DECISION AND ORDER
On August 14, 1963, Trial Examiner David F. Doyle issued his
Intermediate 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 attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Interme-
diate Report and a supporting brief.
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 [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
i The Respondent excepts to the Trial Examiner's finding that Vesteen White , who was
laid off on December 29 , 1962 , was "senior in point of service to two other employees." It
contends that Connie Castillo who was retained had more seniority . The record shows
that White began her employment for the Respondent early in May 1962 when the Re-
spondent purchased the men's department from its previous owner and took over its per-
sonnel. 'Castillo began her employment in January 1962 as a regular part-time employee
in the women ' s department . A few weeks after the Respondent took over the men's depart-
ment Castillo was transferred to that department as a'full-time employee . Thus , it appears
that while White had more seniority on a departmental basis, she was junior to Castillo on
the overall basis. Goldstone 's testimony shows that the length of service of an employee
far the Company was not the sole and controlling factor in the selection of employees for
the layoff. Other factors also were considered . As White admittedly was an "excellent"
145 NLRB No. 45.