The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1963

144 N.L.R.B. 1571 (N.L.R.B. 1963)

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 1571
3. By revoking Cafero's regular situation and priority status, by placing his name
on the bottom of the seniority or priority list, by hiring a substitute to work in
Cafero's place for the week of July 17, 1962, by thereafter transferring Cafero's
regular situation and job to a substitute, and by thereby causing Cafero to lose his
regular job, employment opportunities, and vacation benefits, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(b)(1) (A) and
(2) of the Act.
4. The said unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication ]
The Great Atlantic & Pacific Tea Company , Inc. and Retail
Clerks International Association , Local No. 1691 , AFL-CIO
The Great Atlantic & Pacific Tea Company , Inc. and Meat
Cutters, Butchers , and Allied Food Workers, Local No. 327,
AFL-CIO. Cases Nos. 1-5-CA-V61 and 15-CA-2209. Novem-
ber 15, 1963
DECISION AND ORDER
On July 10, 1963, Trial Examiner Horace A. Ruckel 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 Inter-
mediate Report. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and
Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the Trial Examiner's findings,' con-
clusions, and recommendations to the extent consistent herewith.
1. During the summer of 1962, the clerks at the Respondent's
Opelousas, Louisiana, retail store were organized by Retail Clerks
International Association, Local No. 1691, AFL-CIO, herein referred
to as the Retail Clerks. The Trial Examiner found, and we agree,
that the Respondent, during that union's organizational campaign,
violated Section 8 (a) (1) of the Act by the following conduct : (a)
'We find no merit in the Respondent's exceptions to the Trial Examiner's credibility
resolutions as the record establishes that they are not clearly erroneous. Standard Dry
Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
144 NLRB No. 151.
727-083-64-vol. 144-100
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Thibodeaux interrogated employee Rozas as to the names
of employees who had signed union cards, and threatened Rozas with
discharge if she did not engage in surveillance for the Respondent;
(b) Thibodeaux threatened employees Ellington and Ronald Leger
that current employee benefits, including store parties, would be
eliminated if this organizing campaign were successful; (c) Super-
visor Champagne interrogated employee Ellington,as to how he in-
tended to vote in the election, and asked employee Preston Leger, Jr.,
if he were a member of the Retail Clerks ; and (d) Supervisor Brash-
ear interrogated employee Latour as to his feelings about the Retail
Clerks, and also asked him for the names of other employees who
were union adherents.
During November and December 1962, Meat Cutters, Butchers, and
Allied Food Workers, Local No. 327, AFL-CIO, herein referred to as
the Meat Cutters, organized the Respondent's meat department em-
ployees. The Trial Examiner found, and we agree, that the Respond-
ent violated Section 8 (a) (1) of the Act during that union's organi-
zational campaign by the following conduct: Supervisor Champagne
asked employee Rozas why she had signed 'a union card. On another
occasion, when Preston Leger, Jr., told Champagne that he was going
to write a letter withdrawing from the Union on the following day,
Champagne said, "Why not write it now ?" We find that Cham-
pagne's suggestion that Leger proceed immediately to write his letter
of withdrawal constituted unlawful interference with Leger's rights
under the Act.
2. The Trial Examiner found that Annie Belle La Fleur was
terminated by the Respondent in violation of Section 8(a) (3) and
(1) of the Act. We do not agree . La Fleur began work for the
Respondent as a, part-time meat department employee on September
20, 1962, working only when notified in advance by word sent through
her husband, Calvin La Fleur, head of the produce department. She
worked every Monday but one, and occasionally on other days, until
January 19, 1963, when she was terminated. La Fleur had been active
in organizing the meat department employees for the Meat Cutters,
and two union meetings were held in her home.
The Respondent contends that La Fleur was hired to replace em-
ployees scheduled for vacation and to help during the Thanksgiving,
Christmas, and New Year holidays, and that, when business declined
after the holiday season, La Fleur's services were no longer needed
and'she was therefore terminated. The Trial Examiner rejected these
contentions on the grounds that (1) the record did not show that the
Respondent customarily laid off a meat department employee after
the holidays nor that it laid off any employee in any other department,
and (2) La Fleur was terminated a few weeks after the end of the
holidays. The Trial Examiner concluded that La Fleur' s termination
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 1573
was unlawfully motivated by the Respondent's union animus and its
desire to destroy the Meat Cutters ' majority status . The Respondent's
contentions, however, are supported by the facts , established by the
record, that La Fleur worked only when notified to come in, gen-
erally only 1 day a week; -that two of the three employees in the meat
department, as well as the meat department head, took vacations dur-
ing the period of La Fleur's employment; that La Fleur had the least
seniority of anyone in the department; that the hours of all the em-
ployees in the meat department after La Fleur 's termination were
reduced; and that no one was hired to replace La Fleur. We note,
moreover, that it was apparent from the cards which the Union had
sent to the Respondent that La Fleur's discharge would not have
destroyed the Meat Cutters' majority as there were four employees
in the unit of whom three , including La Fleur, had signed cards.
Accordingly, we find that the General Counsel has failed to show by
a preponderance of the evidence that La Fleur 's discharge was un-
lawfully motivated, and we shall , therefore , dismiss that allegation
of the complaint.
3. The Trial Examiner found, and we agree, that the Respondent
refused to bargain with the Meat Cutters as the representative of its
meat department employees , in violation of Section 8 (a) (5) and (1)
of the Act.
By November 5, 1962, three of the four employees in the meat de-
partment unit, La Fleur, Rozas, and Preston Leger, Jr., had signed
cards designating the Meat Cutters as their bargaining representative.
In a letter to the Respondent dated November 21, 1962, the Meat
Cutters requested recognition as the bargaining representative of
the meat department employees, and stated it was ready and willing
to prove to the Respondent, through any impartial source, that it
represented a majority of these employees . On November 26, the Re-
spondent replied by letter that it would not recognize the Meat Cutters
on the ground that it was not the majority representative. The Union
wrote to the Respondent on November 30, again requesting recogni-
tion, and this time it included photostatic copies of the three signed
cards. Again the Respondent, in a letter , refused recognition.
The Respondent contends that it refused to bargain with the Meat
Cutters because of a good faith doubt concerning its majority status,
based in part on the fact that La Fleur was the wife of the head of
the produce department, and Preston Leger, Jr., was a stepnephew
of the meat department manager; the Respondent maintains that it
did not believe either would have signed a union card without union
coercion in view of these relationships . The record , however, contains
no evidence of any such coercion.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent further contends that La Fleur's card was obtained
through the influence of Calvin La Fleur who the Respondent con-
tends is a supervisor, and that her card must therefore be disregarded.
The Trial Examiner found that Calvin La Fleur is not a supervisor
within the meaning of the Act, and we agree. Testimony by the
Respondent's district supervisor indicates that, while Calvin La Fleur
is the head of the produce department, he works alone for all but 6
hours a week, when an employee from another department helps
him in stocking shelves, and that he exercises no supervisory authority.
Although Calvin La Fleur does attend store meetings with super-
visors, and can reduce the prices on overripe fruit, we do not find
these facts sufficient to establish supervisory status within the meaning
of Section 2(11) of the Act.2 In any event, the record contains no
evidence that Calvin La Fleur in any way coerced his wife into sign-
ing the card, or otherwise influenced such action.
Accordingly, as no reasonable basis existed for the Respondent's
asserted doubt as to the Union's majority claim, and in view of Re-
spondent's other unlawful conduct reflecting an attitude of opposi-
tion to its employees' union representation, we find that its refusal
to recognize the Union was not bottomed on a good-faith doubt of
the Union's majority status and under such circumstances constituted
a failure to fulfill the bargaining requirements of the Act.' We find,
therefore, that the Respondent, on and after November 21, 1962,
refused to bargain in good faith with the Meat Cutters as the repre-
sentative of its employees in an appropriate unit, in violation of
Section 8 (a) (5) and (1) of the Act.
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications and additions 4
(1) Delete provision 1(a) and renumber all subsequent provisions
accordingly.
2 The Respondent contends that the Board must find Calvin La Fleur a supervisor be-
cause of a determination of the Regional Director to that effect in a representation case
involving the Retail Clerks Union, but not the Meat Cutters. We note, however, that the
determination was in accordance with an agreement of the parties therein, and that the
issue of his supervisory status was not litigated in that case. See Central Cigar d Tobacco
Co., 112 NLRB 1094.
' Fred Snow, Harold Snow and Tom Snow d/b/a Snow it Sons, 134 NLRB 709, enfd. 308
F. 2d 687 (CA. 9). Mitchell Concrete Products Co., Inc., 137 NLRB 504.
d The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, The Great Atlantic & Pacific Tea Company, Inc., its officers, agents,
successors, and assigns, shall:
The notice is hereby amended as follows:
(1) Delete the second indented paragraph thereof, and add the following in its place:
WE WILL NOT interrogate our employees concerning their union activities or threaten
them with reprisals because of such activities
(2) In the third indented paragraph thereof, substitute the phrase "in any other man-
ner" for the phrase "in any like or related manner "
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 1575
(2) Delete provisions 2(a) and (b) and renumber all subsequent
provisions accordingly.
(3) Add the following as the last paragraph :
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges violation of Section 8(a) (3) of
the Act.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on September 14, 1962, by Retail Clerks International Associa-
tion , Local No. 1691, AFL-CIO, herein called Local 1691, and on December 7 and
11, 1962, by Meat Cutters , Butchers , and Allied Food Workers, Local No. 327,
AFL-CIO, herein called Local 327, the General Counsel for the National Labor
Relations Board, herein called the Board , issued a consolidated complaint dated
March 15, 1963 , against The Great Atlantic & Pacific Tea Company, Inc., herein
called Respondent , alleging that Respondent has (1 ) interrogated and threatened
.employees concerning their union affiliations , (2) failed and refused to bargain
collectively with Local 327 as the representative of its employees in its meat de-
partment , and (3 ) on January 19, 1963, terminated the employment of one Annie
La Fleur because of her activity on behalf of Local 327. These alleged acts of
Respondent are said to constitute unfair labor practices affecting commerce within
the meaning of Section 8(a)(1), (3 ), and (5 ) and Section 2(6) and (7) of the
National Labor Relations Act, as amended ( 61 Stat. 136), herein called the Act.
Respondent has filed an answer denying the commission of any unfair labor practices.
Pursuant to due notice , a hearing was held before Trial Examiner Horace A.
Ruckel at Opelousas , Louisiana, on May 6 and 7 , 1963, at which all parties were
represented . At the conclusion of the hearing the parties waived oral argument;
they have since filed briefs.
Upon the record as a whole, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent, a Maryland corporation, operates a chain of approximately 5,000
retail food stores throughout the United States and Canada, from which it has
receipts from retail sales in excess of $1 billion annually. The operations of the
retail food stores and related businesses are carried on by and through The Great
Atlantic & Pacific Tea Company, Inc., and various wholly owned subsidiaries in-
cluding, but not limited to, Great A & P Tea Co., a New Jersey corporation, Great
A & P Tea Co., an Arizona corporation, Great A & P Tea Co., a Nevada corpora-
tion, and Great A & P Tea Co., Ltd., and others.
As part of its chain of retail food stores, Respondent maintains and operates a
retail food store in Opelousas, Louisiana, the only store directly involved in these
proceedings. In the operation of its Opelousas store Respondent receives meat,
groceries, produce, and other products valued in excess of $50,000 annually which
are shipped to it, directly or indirectly, from points outside the State of Louisiana.
The complaint alleges and Respondent's answer admits that Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local No. 1691, AFL-CIO, and Meat
,Cutters, Butchers , and Allied Food Workers, Local No. 327, AFL-CIO, are labor
organizations admitting employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
On July 27, 1962, Local 1691, filed a representation petition with the Board,
pursuant to which an election was held on -September 27,, which Local 1691 won.
About a month later several employees in Respondent 's meat department signed
authorization cards for Local 327 . From the filing of Local 1691's petition certain
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's supervisors engaged in a course of action vis-a-vis these locals which
the complaint alleges constituted interference, restraint, and coercion in violation of
the Act. These activities are hereinafter described.
B. The refusal to bargain
1. The appropriate unit
The complaint alleges that all meat department employees in Respondent's
store in Opelousas, Louisiana, including the second man, butchers, meat clerks, and
regular part-time employees, but excluding all other employees, guards, meat de-
partment heads, and all other supervisors as defined in the Act, constitute a unit
appropriate for collective bargaining. Respondent denies that this is an appropriate
unit, but does not suggest any other. I find the unit described in the complaint to
be appropriate.'
2. Local 327's majority in the appropriate unit
Before November 21, 1962, Respondent's meat department consisted of Gerald
Champagne, the foreman, Glinden Leger and Evelina Rozas, fulltime meat clerks,
and Preston Leger, Jr., and Annie La Fleur, part-time meat clerks? The work of all
these employees was confined to the meat department.3
Of the four employees in the unit, La Fleur 4 and Rozas signed union authoriza-
tion cards on October 24, and Preston Leger, Jr., on November 5, 1962. As of
November 5, 1962, and thereafter, I find that Local 327 was the representative of
Respondent's employees in the above-described appropriate unit.
3. The refusal to bargain
On November 21 Local 327 wrote Respondent stating that it represented its
meat department employees and offered to prove its majority through a cross-check
of signed authorization cards against Respondent's payroll, and suggested the name
of a third person to conduct the check. The letter requested recognition and sug-
gested December 7 as a day on which the parties might meet to discuss a collective-
bargaining agreement.
On November 26 Respondent replied, stating that it did not believe that Local
327 represented a majority of the employees within the unit and declining the sug-
gestion for a meeting of representatives and a check of union authorization cards.
On November 30, Local 327 again wrote Respondent enclosing photostatic copies
of the authorization cards of La Fleur, Rozas, and Leger and asked that Respond-
ent check them against its payroll. It repeated its request that Respondent meet
with union representatives on December 7 to negotiate a contract. On December 6,
Local 327, not having had a reply to this letter, sent Respondent a telegram renewing its
request for a meeting. On December 5 Respondent replied to the letter of Novem-
ber 30 5 stating that it wanted its employees to have a Board election so that they
might "make their decision after hearing and considering all matters that might be
involved."
1 See The Great Atlantic & Pacific Tea Company, Inc., 1:.'2 NLRB 744; The Great Atlantic
& Pacific Tea Company, Inc, 132 NLRB 799.
2 At times material herein Leger worked every Saturday and sometimes on Monday and
other days, and La Fleur every Monday and on other days as needed. Both these em-
ployees are properly within the alleged appropriate unit in accord with standard Board
policy as set forth in The Great Atlantic & Pacific Tea Company, Inc, 132 NLRB 744, 745,
footnote 5.
3 Respondent contends that La Fleur was not a regular part-time employee, having been
hired only for the Thanksgiving and Christmas holidays. This contention is hereinafter
found to be without merit in my discussion of La Fleur's discharge during the latter part
of January 1963.
4 Respondent contends that La Fleur's card should not be counted because her husband,
Calvin La Fleur, as head of the produce department, is a supervisor, and that since meet-
ings of the union adherents were held in the La Fleur home it must be assumed that
La Fleur influenced his wife to sign up for the Union. I do not find La Fleur to be a
supervisor. While he does attend meetings of department heads, he had at all material
times herein no one under his direction or supervision excepting a helper once or twice a
ihonth to unload the produce truck when it was late. Otherwise there is no employee in
the department other than La Fleur except on his day off. See Marsh Supermarkets, Inc,
140 NLRB 899.
5 The reply had not been received as of the time of sending the telegram.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 1577
Respondent asserts that it had a good-faith doubt that Local 327 represented the
meat department employees, and that it was therefore not an unfair labor practice
for it to refuse to meet with representatives of the Union. The General Counsel
adduced evidence which he says demonstrates that Respondent's refusal to recognize
Local 327 was not made in good faith. For example, Evelina Rozas, one of the three
meat department employees, a copy of whose union application card had been sub-
mitted to Respondent, testified that during the latter part of November or first part of
December when she, along with another employee, extended her 15-minute coffee
break by 2 minutes, Store Manager Thibodeaux reprimanded them for doing so and
upon his departure Champagne, meat department foreman, asked her why she had
signed up for the Union. Rozas told Champagne that she was not satisfied with
certain conditions in the store. Champagne, though admitting having this con-
versation, demed that he asked Rozas why she had joined the Union, but that she
volunteered to him that she had done so. I accept Rozas' version as being in accord
with the facts.
Preston Leger signed his application card on November 5, 1962. During the latter
part of December, Leger, according to his testimony, "got to thinking about" his union
affiliation nand talked about it with Champagne who had on a previous occasion asked
him if he belonged to the Union. Champagne said that he "would think a lot
better" of Leger if he left the Union and when Leger asked him if he knew how he
could get out, Champagne said he would look into it. On the following day
Champagne gave Leger the address of the Board's Regional Office as the place to
write in withdrawing his union designation. Leger told Champagne he would write
the next day but Champagne said "Why not write it now?" Leger did so at the store.
The letter stated that he had not fully understood what he was doing when he had
signed a union card, that he had reconsidered. He asked that his signature be
disregarded.
Conclusions
In view of Respondent's interrogation of Rozas as to her designation of Local 327
as the bargaining agent of the meat department employees, and its assistance to
Leger in his attempt to revoke his designation card,6 I cannot regard Respondent's
refusal to recognize Local 327 as based upon a good-faith doubt as to the Union's
majority. Respondent's letter of December 5, did not state that it entertained such
a doubt, but only suggested that an election be held so that the employees would
have time pending the election to make up their minds as to their bargaining rep-
resentative. Respondent's subsequent activities indicate that it was resolved to un-
make their minds. I find that Respondent by the course of action above described,
failed and refused to bargain with Local 327 as the representative of its employees
in an appropriate unit in violation of Section 8(a) (5) of the Act.
C. Other acts of interference, restraint, and coercion
It is hereinafter found that Respondent on various occasions during the summer
of 1962, when Local 1691 was organizing Respondent's employees in other depart-
ments of the store, made clear that it was opposed to any union organization of the
employees.
Calvin La Fleur, who, as has been stated, attended meetings of supervisors though
he himself was not a supervisor, testified as to such a meeting held about 2 weeks
after the filing of Local 1691's petition for an election among Respondent's em-
ployees other than those in the meat department. The meeting was addressed by
Jerry Brashear, Respondent's district supervisor. According to La Fleur, Brashear
stated that he had been instructed by his superiors to "spare no expense" in finding
out who had signed union cards. He gave to those present a list of employees
eligible to vote and instructed them to talk to each such person once a week about
the Union "just asking them something pertaining to the union but not directly, not
a direct question or something, but like `How's the union coming along,' or some-
thing like that " Brashear pointed out that it was "against the law" to ask direct
questions. The answers of the employees were to be written down and forwarded
to Brashear.
Brashear, while testifying, did not deny the statements attributed to him by
La Fleur except the injunction to "spare no expense "
Thus instructed by Brashear, Respondent's store manager and department heads
lost no time in speaking to various employees over the next several weeks concerning
9 Whether this amounted to a revocation is not, of course, material to the 8(a) (5) issue
since Leger's letter was written on December 27, 3 weeks after Respondent's letter of
December 5, refusing to meet with Local 327.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1691. Kenneth Guidroz, a clerk in the grocery department, testified that
shortly after the petition was filed Thibodeaux, store manager, told him that he had
heard the Union was trying to come in. When Guidroz said that he knew only
what he had heard from other employees, Thibodeaux asked him "what employees"
Thibodeaux admitted having a conversation with Guidroz about the Union but
stated that Guidroz initiated it and that he did not say that he had heard that the
Union was trying to get in. I credit Guidroz' testimony.
Stanley Ellington testified that Champagne on one occasion asked him what the
news was on the "union election," on another occasion asked him what his feelings
were as to the election, and on a third occasion, more pointedly, how he intended
to vote, to which he replied, "What do you think, Champ?" Champagne, while ad-
mitting that he spoke with Ellington about the Union, denied that he asked him how
he was going to vote, but said only that he would be glad when the election was
over. I credit Ellington's version of his conversations with Champagne.
Evelina Rozas testified that 3 or 4 weeks before the election Thibodeaux came
over to her while she was wrapping meat and asked her if she would help him by
telling him who had signed up in the Union, to which she replied that she did not
know. On the following day Champagne, her own foreman, asked her to help him
find out who had signed for the Union, to which she replied that she did not know
and would not tell him if she did. Thibodeaux and Champagne both denied speaking
to Rozas about the Union. I do not credit their denials.
Ellington further testified that on one occasion while he and Thibodeaux were
putting up stock Thibodeaux said to him that he was going to "get a lot harder"
if the Union came in, and that some privileges such as store parties might be lost.
I do not credit Thibodeaux's denial of this testimony.
My failure to credit the denials of Champagne and Thibodeaux of statements
attributed to them is based not only upon their demeanor while testifying as con-
trasted with that of the witnesses whose testimony I have quoted, but upon the
fact that Respondent does not deny La Fleur's testimony that Brashear instructed the
store supervisors to talk to employees at repeated and regular intervals about the
Union The declared purpose was to ascertain who among the employees supported
the Union, and their replies and comments were to be jotted down They were not
to be asked direct questions, apparently, but only indirect ones, though the sample
which La Fleur quoted, "How's the Union coming along9" would seem to be direct
enough Even assuming that Respondent's supervisors understood what was ex-
pected of them, I think it improbable that they could always have steered the con-
versation so unerringly as to conform to their instructions.
By interrogating its employees as to their union affiliation as well as by threatening
them with loss of existing benefits if the Union won the election, Respondent en-
gaged in interference, restraint, and coercion within the meaning of Section 8(a)(1)
of the Act.
D. The discharge of Annie La Fleur
Annie La Fleur came to work for Respondent as a part-time employee on Sep-
tember 20, 1962, when Champagne, foreman of the meat department, asked her
husband, Calvin La Fleur, if she would care to work. She worked every Monday
and occasionally on other days, until January 19, 1963, when she was terminated.
Her duties were to weigh and wrap meat and set it out on a self-service counter.
In August and September 1962, when Local 1691 was organizing the employees,
she attended several meetings of that organization, and later on, in November and
December, when Local 327 was organizing the meat department employees, two of
their meetings were held in the La Fleur home. La Fleur herself signed up at the
first meeting. Calvin La Fleur testified without contradiction, and I find, that some
time thereafter Nichols, vice president of Respondent's southern division, told him
that his wife had signed up in Local 327. When La Fleur assured him that it was
not the signing of a card which was important, but how one voted, Nichols urged
him to "scare" her into voting for the Company?
On Saturday, January 19, Champagne told Calvin La Fleur that Respondent
would not need Annie La Fleur any longer as an employee because Preston Leger
could be of more help than she since he could do cleanup work. Respondent's
defense to La Fleur's termination is that she was hired on September 22 as a tem-
porary employee to work through the Thanksgiving and Christmas holidays, as
well as to take the place of employees going on vacation, and the testimony of Cham-
7 There seems to have been some confusion at that time on Nichols' part and possibly on
La'Fleur's, as to which union Annie La Fleur joined Local 327 did not participate in an
election, so far as the record shows. It is probable that Nichols was not aware of just
what unit Local 1691 was seeking to represent.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 1579
pagne is that he so informed her husband, though apparently not La Fleur herself,
when she was hired. La Fleur denied this while testifying and I credit his denial.
At the hearing Respondent advanced as a reason for La Fleur's termination that she
had been hired only for the holiday season and that she was let go when business
fell off after Christmas. There is evidence from timecards that the number of clock
hours worked by employees in the meat department did decline after Christmas.
There is nothing in the record, however, to show that Respondent customarily laid
off a meat department employee after the holidays, or that it laid off any employee
in any other department. Moreover, when La Fleur was terminated the holiday rush
had been over for almost 3 weeks.
It has been found that the La Fleurs were active in the organization of Respondent's
employees in Local 257, and Annie La Fleur in the organization of Local 1691,
that union meetings were held at their home, and that Nichols, one of Respondent's
vice presidents, attempted without success to persuade Calvin La Fleur to "scare"
his wife into abandoning her union activity. It has been found that Respondent
refused to recognize Local 327 as the representative of the meat department em-
ployees and assisted Leger in attempting to withdraw his designation of that
organization. This, if successful, would have destroyed Local 327's majority in
the unit, and Annie La Fleur's effective discharge would have accomplished the
same result.
I conclude and find that Respondent discharged Annie La Fleur on January 19,
1963, because of her activity in behalf of the Union, in violation of Section 8(a) (3)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with its operations as described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the Act. Respondent having dis-
charged Annie La Fleur because of her activity on behalf of the Union, I recommend
that Respondent offer her immediate and full reinstatement to her former or substan-
tially equivalent position, without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of pay she may have suffered by reason
of Respondent's discrimination against her by payment of a sum of money equal
to that which she normally would have earned as wages from the date of her discharge
to such date as Respondent shall offer her reinstatement, less her net earnings during
said period. Such backpay shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and
with interest thereon at the rate of 6 percent per annum as prescribed by the Board
in Isis Plumbing & Heating, 138 NLRB 716.
By failing and refusing to recognize and meet with representatives of Local 327,
when requested, Respondent failed to perform its duty to bargain in good faith as
required by the Act. It will therefore be recommended that, upon request by Local
327, Respondent meet and bargain collectively with it in respect to the terms of a
collective-bargaining contract and if an agreement is reached, to sign it
As the unfair labor practices committed by Respondent are of a type which strikes
at the very roots of employee rights safeguarded by the Act, I shall recommend that
Respondent be ordered to cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Retail Clerks International Association, Local No. 1691, AFL-CIO, and
Meat Cutters, Butchers, and Allied Food Workers, Local No. 327, AFL-CIO, are
labor organizations within the meaning of the Act.
2. The Great Atlantic & Pacific Tea Company, Inc., is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. By discriminating with respect to the hire and tenure of Annie La Fleur, thereby
discouraging membership in the Union, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. All meat department employees employed by the Respondent at its Opelousas,
Louisiana, store, including the second man, butchers, meat clerks, and regular part-
time employees, but excluding all other employees, guards, meat department heads,
and all supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
5. Local 327 has been at all times on and after November 5, 1962, the exclusive
representative of all the employees in the aforesaid appropriate unit for purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
6. By refusing at all times on and after November 26, 1962, to bargain in good
faith with the Union as the exclusive representative of its employees in the afore-
stated appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (5) of the Act.
7. By the foregoing; by questioning its employees concerning their union affiliation
and activities; by threatening them with reprisals because of their said union affilia-
tion and activities, Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
8. 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 s
Upon the basis of the foregoing finds of fact and conclusions of law, and upon
the entire record in this case, it is recommended 9 that Respondent, The Great
Atlantic & Pacific Tea Company, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of Local 1691 or Local
327, or any other labor organization of its employees, by discharging any employee,
or in any other manner discriminating in regard to hire or tenure of employment or
any term or condition of employment.
(b) Refusing to bargain with Local 327 as the exclusive representative of its
employees in the appropriate unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
(c) Interrogating its employees concerning their union activity or threatening
them with reprisals because of such activity.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist labor
organizations, including the above-named labor organization, to bargain collectively
through representatives of their own choosing, or to engage in other concerted ac-
tivities for the purpose of collective bargaining or mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right may be
affected by an agreement authorized by Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act-
(a) Offer to Annie La Fleur immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her seniority and other rights
and privileges.
(b) Make whole Annie La Fleur for any loss of pay she may have suffered by rea-
son of the discrimination against her by payment to her of a sum of money equal
to the amount she normally would have earned as wages from the date of her dis-
charge to the date of Respondent's offer of reinstatement, in the manner set forth in
the section entitled "The Remedy."
(c) Upon request, bargain collectively with the aforesaid Local 327 as the
exclusive representative of the employees in the appropriate unit and embody any
understanding reached in a signed contract.
(d) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of backpay due and to the reinstatement and related rights provided
under the terms of this Recommended Order.
8In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order."
e In the event that this Recommended Order be adopted by the Board, the word "ordered"
shall be deemed substituted for the word "recommended."
THE GREAT ATLANTIC,& PACIFIC TEA COMPANY, INC. 1581
(e) Post in its store in Opelousas , Louisiana , copies of the attached notice marked
"Appendix." 10 Copies of said notice , to be furnished by the Regional Director for
the Fifteenth Region, shall , after being signed by Respondent 's representative, be
posted by Respondent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(f) Notify the Regional Director for the Fifteenth Region , in writing , within
20 days from the date of this Recommended Order, what steps Respondent has
taken to comply herewith.ll
"In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
u In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Meat Cutters, Butchers, and
Allied Food Workers, Local No. 327, AFL-CIO, as the exclusive representative
of our employees in the following appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment,
and, if an agreement is reached, embody such agreement in a signed contract.
The appropriate unit is:
All meat department employees in the Opelousas store, including the
second man, meat clerks, and regular part-time employees, but excluding
all other employees, guards, meat department heads, and supervisors as
defined by the Act.
WE WILL NOT unlawfully discourage membership in Meat Cutters, Butchers,
and Allied Food Workers, Local No. 327, AFL-CIO, or any other labor
organization of our employees, by discriminatorily discharging or refusing to
reinstate any of our employees or by discriminating in any other manner in
regard to their hire and tenure of employment or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organization, to form
labor organizations, to join or assist Meat Cutters, Butchers, and Allied Food
Workers, Local No. 327, AFL-CIO, or Retail Clerks International Association,
Local No. 1691, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act, or to refrain from any
and all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization of their own choice.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans 12, Louisiana, Tele-
phone No. 529-2411, if they have any question concerning this notice or compliance
with its provisions.