The Great Atlantic & Pacific Tea Co. Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 989 (N.L.R.B. 1967)

THE GREAT ATLANTIC & PACIFIC TEA CO.
The Great Atlantic & Pacific Tea Company,
Inc. and Retail Clerks International
Association , Local No. 1529 , AFL-CIO.
Cases 15-CA-2836 and 15-RC-3391
June 23, 1967
DECISION AND ORDER AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On April 3, 1967, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and
recommended dismissal of these allegations. In
addition, the Trial Examiner recommended that the
National Labor Relations Board overrule the
Petitioner's objections to conduct affecting the
election and certify the results thereof. Thereafter,
the General Counsel filed a single limited exception'
to the Trial Examiner's Decision with a supporting
brief, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
989
exclusive representative of the employees in the unit
found appropriate, within the meaning of Section
9(a) of the Act, as amended.
' The General Counsel excepted to the finding that Respondent
discriminated against employee Inman as to his hours of work
only in two weekly pay periods rather than during the last several
months of Inman's employment . We agree with the Trial
Examiner that the General Counsel failed to prove by a
preponderance of the evidence that there was a more extended
period of discrimination.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
April 25, 1966, and an amended charge filed June 22, 1966,
by Retail Clerks International Association, Local
No. 1529, AFL-CIO,' herein the Union, in Case
15-CA-2836, against The Great Atlantic & Pacific Tea
Company, herein the A & P or the Respondent, and upon
objections to election filed by the Union in Case
15-RC-3391, and upon the Regional Director's report on
objections in said case, the Regional Director issued an
order consolidating the cases and a complaint alleging
Respondent violated Section 8(a)(1) and (3) of the Act.
The answer and amended answer of Respondent denied
the commission of any unfair labor practices.
At the hearing the General Counsel moved to amend
paragraph 7 of the complaint to include the name of Jesse
Magee as a supervisor. The motion was granted. He then
moved to amend paragraphs 8 and 9 to allege additional
violations of Section 8(a)(1) and to add a paragraph 12-A to
allege another additional violation of that section. These
motions were denied on the ground that the allegations
would have been merely cumulative to allegations, some
19, of similar violations. A motion to add paragraph 12-B,
alleging an unlawful wage increase during June 1966, was
granted.
This proceeding, with all parties represented, was heard
by Trial Examiner John F. Funke, at Jackson, Mississippi,
on October 18, 1966, and January 17, 1967. (The hearing
was recessed while the General Counsel sought
enforcement of a subpena.) At the conclusion of the
hearing the parties were given leave to file briefs and
briefs were received from the General Counsel and
Respondent on March 2.2
Pursuant to Section 10(c) of the National Labor ; upon the entire record in this case and from my
Relations Act, as amended, the National Labor ,
observation of the witnesses while testifying , I make the
following:
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, The Great
Atlantic & Pacific Tea Company, Inc., Jackson,
Mississippi, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the
valid votes has not been cast for Retail Clerks
International Association , Local No. 1529,
AFL-CIO, and that said labor organization is not the
FINDINGS AND CONCLUSIONS
1. The Business of the Respondent
Respondent is a Maryland corporation operating a chain
of some 5,000 retail food stores throughout the United
States and Canada . Respondent purchases meats,
groceries, and other products valued in excess of $1
million annually which are shipped in interstate
I The name of the Charging Party appears as amended at the
hearing.
P On March 3 the General Counsel submitted certain
corrections to his brief which have been accepted
165 NLRB No. 127
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce . Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
In March 1966,3 the Union started an organizational
campaign among the employees of Respondent's stores in
Jackson, Mississippi. A petition for an election in
Respondent's six stores in Jackson was filed on May 26, a
stipulation for certification upon consent election was
signed on June 27, and the election was conducted on
July 28.
The tally of ballots disclosed the following results:
Approximate number of eligible voters .................. 160
Void ballots .................................................. 1
Votes cast for the Petitioner .............................. 14
Votes cast against Participating Labor Organiza-
tion ............................................ ............. 134
Valid votes counted .......................................... 148
Challenged ballots ......................................... 10
Valid votes counted plus challenged ballots............ 158
Objections were timely filed by the Union and
objections 1, 2, 4, 5, and 6 were referred to the Trial
Examiner. Objection 3 was withdrawn by Petitioner.
2. The testimony of William B. Inman, Jr.
Paragraph 13 of the complaint alleges:
On or about March 31, 1966, Respondent reduced
the hours of employment of William B. Inman, Jr. and
thereafter failed and refused, and continues to fail
and refuse, to reinstate him to his previous hours of
employment, and has assigned him more onerous
working conditions because of his membership in and
activities on behalf of the Union and to discourage
union and other concerted activities of its employees.
Inman was employed by A & P at Jackson from August
1961, to August 1963, when he left for California to attend
school. In February 1964, he returned to Jackson and was
again employed by A & P until June when he entered the
service. His last period of employment with A & P was
from January 1965 to July 28, 1966, when he voluntarily
quit. His recent employment had been at store 108 where
his employment was part time. (During this period he
attended Hinds Junior College.) On March 9 Inman signed
an authorization card with the Union and thereafter
solicited authorizations from employees in the A & P
store. On March 31 Inman reported to his store (108) and
asked J. B. Hayes, store manager, if he wanted him to work
that day. Inman testified that when Hayes told him he was
not wanted,4 he asked him if it had anything to do with
3 Unless otherwise noted all dates refer to 1966.
Inman's timecard for March 31 shows he checked in at 4.01
and out at 5 44 p.m
5 Hayes denied that he told his daughter that Norrell told him
Inman was passing out cards Anita Hayes was not called as a
witness and Norrell, although called by the Respondent, was not
getting union cards signed and was told it did not, that the
store did not need him, and was told to report the next day,
Friday, at 4 p.m. Prior to this conversation with Hayes,
Inman testified that Anita Hayes, daughter of J. B. Hayes,
had told him that John Norrell, manager of store 111, had
told her father that Inman was passing out union cards.5
Inman testified that it was after April 6 that he talked to
employees in his own and other stores to induce them to
sign cards, but he was equally definite that this
conversation with Hayes took place on March 31. As to his
working schedule, Inman testified that after he returned to
school in September 1965, he worked as follows:
Thurdays, 3 to 9 p.m.; Fridays, 3 to 8 p.m.; Saturdays, 7
a.m. to 6 p.m.; and Sundays, 7 a.m. to 1-2 p.m. (every
other Sunday). These hours were interrupted at least once
a month when he was called to duty with the National
Guard and the Company's records, infra, do not reflect
that Inman regularly worked the total number of hours per
week shown above, and Inman's own testimony does not
reflect such a schedule when his hours for a week are
totaled.
Inman was questioned at some length regarding his
working hours after March 31 and he testified that on the
two following Saturdays he was told by Hayes to check out
at noon rather than 6 p.m. He further testified that on
these Saturdays he was not given his work schedule for the
following week as was the custom with part-time
employees. After the second Saturday layoff at noon,
Inman went to the store on Monday and asked Hayes if he
was fired or laid off. He was told to take it any way he
wanted and not to call Hayes, that Hayes would call him.
He was not called on Thursday, went in on Friday and
worked. He again asked if his hours had been cut because
he was prounion and was told they had been cut because
Hayes was trying to save "pounds."6 Inman told Hayes he
was going to file charges with the Board. The following
Saturday, April 16, he was again cut off at noon and, when
he reported the next Thursday, Hayes asked him to the
drugstore for coffee. There, according to Inman, Hayes
asked him to drop the "union mess" and promised him his
hours back if he did. During the conversation Hayes
allegedly told him the Union had 43 cards and that "if he
had not been caught up with it" his hours would not have
been cut.
On Friday he was put to work scrubbing floors with a
brush instead of with the floor scrubbing machine. This
task he performed continuously thereafter except when he
was needed on other work. He was also given the
assignment of rearranging the fertilizer sacks which were
lined up in front of the store. The following week he was
given the task of scrubbing out the garbage room.
On April 27, a Wednesday, Inman reminded Hayes that
he was to get off the following Saturday at 6:307 and Hayes
said he knew nothing about it. Inman then told him one of
them was a liar and "I really don't think it was me." A few
days later Ray Acosta, division manager, delivered a
written reprimand to Inman. Inman stated that at this time
Acosta asked him why he did not drop the union mess,
showed him a letter from an employee named Frank Gant
to Vice President Spencer, in which he apologized to
interrogated on this point I credit Inman
6 Pounds per hour was a basis used for measuring the
production of employees
' Since Inman indicated that he regularly quit at 6 p m on
Saturdays this request is not readily understandable and it is not
explained in the record.
THE GREAT ATLANTIC & PACIFIC TEA CO.
Spencer for going with the Union. Acosta told Inman he
could still get out of the Union even though he had signed a
card.
Interrogated by the attorney for the Union, Inman
testified that at the time the employees were given their
pay raise (the raise was granted on June 13 and was
received on June 18), Hayes told him "We have given
everybody a raise. You can tell your Union buddies to pack
up and leave town .... We have given the people enough
money to show we can do more for them than the Union
can."
3. Respondent's reply to Inman
In response to the charge that Inman's hours were
reduced after March 31 in reprisal for his union activity,
Respondent offered a summary of Inman's hours worked
on a weekly basis from the period beginning with the week
ending October 9, 1965, and concluding July 23, 1966, the
last week Inman worked. (Respondent's Exh. 1.) This
summary reads:
Week ending Hours
Oct. 9, 1965 ...................................... 152.
Oct. 16, 1965 .................................... 16.
Oct. 23, 1965 .................................... 20*.
Oct. 30, 1965 ..................................... 74.
Nov. 6, 1965 .................................... 244.
Nov. 13, 1965 .................................. 14;.
Nov. 20, 1965 .................................. 17.
Nov. 27, 1965 .................................... 22.
Dec. 4, 1965 ...................................... 224.
Dec. 11, 1965 .................................... 12.
Dec. 18, 1965 ..................................... 31.
Dec. 25, 1965 ................................... 224.
Jan. 1, 1966 ..................................... 294.
Jan. 8, 1966 ..................................... 21.
Jan. 15, 1966 ................................... 64.
Jan. 22, 1966 ....................................
Jan. 29, 1966 ....................................
Feb. 5, 1966 ...................................... 72' .
Feb. 12, 1966 ..................................... 24.
Feb. 19, 1966 .................................... 23;.
Feb. 26, 1966 .................................. 182.
Mar. 5, 1966 ...................................... 32.
Mar. 12 , 1966 .................................... 14.
Mar. 19, 1966 .................................. 194.
Mar. 26, 1966 ................................... 152.
Apr. 2, 1966 ..................................... 172.
Apr. 9, 1966 ................................... 84.
Apr. 16, 1966 ..................................... 5.
Apr. 23, 1966 .................................... 144.
Apr. 30, 1966 ................................... 16.
May 7, 1966 ..................................... 17.
May 14, 1966 .................................... 10.
May 21, 1966 ..................................... 8.
May 28, 1966 ..................................... 18'+.
June 4, 1966 ..................................... 164.
June 11, 1966 .................................. 84.
June 18, 1966 ................................... 164.
June 25, 1966 ................................. 74.
July 2, 1966 .................................... Natl. Guard.
July 9, 1966 ....................................... Natl. Guard.
July 16, 1966 ..................................... 162.
July 23 , 1966 .................................. .
9 See fn 5 of this report
82.
991
In analyzing the summary certain testimony, largely
undisputed, must be taken into account.
(1) It was agreed that the months of November,
December, and early January were the busiest months of
the year and that during those months Inman worked
frequently on Sundays.
(2) That during the spring of 1966 Inman asked for
several Thursdays off; "may be one or two, maybe three or
four."
(3) The period for the week ending March 5 shows that
Inman worked only 3-1/2 hours. This is explained by the
fact that the National Guard was called to duty when the
tornado struck New Orleans.
(4) The summary shows that Inman worked only 8-1/4
hours for the week ending April 9 and 5 hours for the week
ending April 16. Hayes' explanation for this is set forth in
his testimony, infra.
Despite Inman's testimony that he was told not to go to
work when he reported on Thursday, March 31, his
timecard (not introduced into evidence since the summary
was substituted) shows that he checked in at 4:01 p.m. and
checked out at 5:44 p.m. On the following Thursday,
April 2, concerning which testimony was taken, Inman's
card shows that he punched in at 4:01 and out at 7:22 p.m.
J. B. Hayes, store manager at 108 and Inman's
supervisor during time material herein, denied that he told
Inman he could not work on March 31 and could offer no
explanation why Inman's card showed he worked only 1-
3/4 hours on that day. He testified that it was Inman's duty
to stamp (price-mark) the goods on Thursdays and stock
the shelves. In this operation he assisted Lester Huff, a
full-time employee, whose working day terminated at 7
p.m. According to Hayes it was Ihman's responsibility to
remain until all incoming goods had been stamped and
stocked. On Friday, April 8, when Hayes arrived at the
store the shelves were not stocked and the assistant
manager told him that he had to bring the goods to the
floor and stamp them-that Inman had received a
telephone call about 7:30 the previous night (Thursday)
and left. When Inman reported on Friday afternoon, Hayes
asked him why he had left and was told that he (Inman)
had been called by the National Guard. Hayes then told
him he would have to put someone else on price fixing and
that this would reduce his hours. Although he did not tell
Inman the duration of this reduction, Hayes said it lasted
about 2 weeks. (Hayes did not check with the National
Guard to see if the call came from it.) Later, and the exact
date is neither clear nor important, Inman had a
conversation with Hayes regarding his reduction in hours,
told him he thought it was because he was prounion, and
told Hayes he was going to file charges with the National
Labor Relations Board. (Hayes did not know what that
meant .) Hayes told him he "didn't hold nothing against
him" and denied having any knowledge of Inman's union
activity at that time.8
With respect to the "cup of coffee" conversation on
April 21, Hayes denied that Inman's union activity was
mentioned and testified that the conversation was
generally directed to a softball team Inman was
organizing.9
As to the dispute with Inman over leaving early on a
Saturday night, Hayes stated he could not remember
granting Inman permission and that Inman told him one of
B Inman testified that one of his visits to another store was for
the purpose of organizing a softball team
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them must be a liar and that since he (Inman) was not a
liar, Hayes must be a "damn liar."
Hayes also denied that he told Inman, when he gave him
his pay raise in June, that his "buddies could pack up and
leave town."10
Hayes testified that Inman was put to work scrubbing
with a brush instead of the machine because only the
brush could reach corners and recesses and remove the
wax and dirt. Inman was not required to perform this work
continuously for Hayes stated he also put up stock,
checked, and carried out as needed." The fertilizer bags
were lined in front of the store and customers made their
own selections which required (presumably for a neater
display) that the bags be consolidated from time to time.
This was the duty of the stockboys. As to the garbage
room, it was cleaned out every so often and this, too, was
the duty of the stockboys.
Ray Acosta testified that when Hayes told him that
Inman had called him a "damn liar" he called Inman to
the back room, reprimanded him in the presence of Hayes,
and on the next day gave Inman a written reprimand. He
denied that the union was mentioned on either occasion.
Inman voluntarily quit his employment after the results
of the election were announced on July 28.
4. Other testimony as to Section 8(a)(1)
Thomas Howard Pantell: a former stock clerk employed
by A & P, testified that in April Acosta told him he knew
who had signed union cards , that he knew he (Pantell) had
signed one, but that he could still vote for the Union or the
Company. Questioned by the attorney for the Union,
Pantell said that on several occasions Jesse Magee,
comanager at the store where he worked , would stay and
help him stock and that they would discuss the "Union
situation ." On several occasions Magee asked him how he
was going to vote and he replied that he had not decided.
Acosta denied that he told Pantell he knew who had
signed cards or that he knew Pantell had signed one.
Magee testified that he had at least two conversations
with Pantell in the preelection period which Pantell
initiated and in which Pantell asked him if he knew how
Pantell was going to vote and how two other employees
were going to vote. He told Pantell he could vote as he
pleased . He specifically denied that he asked Pantell how
he was going to vote.
Charles Theodore Boswell: employed as a stock clerk by
A & P from 1962 until June 30, 1966, testified that he
signed an authorization card with the Union in March and
that after April 1 he and Inman solicited employees in
their own and other stores to join the Union . On or about
May 5 Boswell was called to the office by John Norrell,
manager of store 111 , who told him he had heard a rumor
that he was "pushing the Union " and wanted to know if it
was true or not. Boswell told him he was and why, and a
general discussion of unions and the operation of Norrell's
store followed. Norrell predicted that the Union would not
get more than five or six votes in his store and that he
knew it would not get 51 percent. He added that the
Company would not treat anyone unfairly because they
were pro or con the Union. When Boswell asked about
Inman, Norrell replied that Inman had brought it on
himself.' 2
Norrell testified that on the first day Boswell reported to
his store, he and Boswell had a lengthy discussion
concerning unions. He denied asking Boswell if he was
pushing the Union but did tell him he did not think the
Union would get more than four or five votes.
Robert G. Austin: employed as a stock clerk by A & P at
store 112 until he left in June, testified that he signed a
card in March and attended a union meeting the first part
of April. The day following the meeting he had a
conversation with Acosta in the wareroom of the store.
Acosta approached him, told him he understood Austin
had been to the union meeting, told him he had ways of
knowing this, and that he knew all the employees who had
signed cards and when they had signed them. Acosta also
told him he had heard he was trying to get on the police
department and when Austin admitted it told him it would
take 2 years and that that would be a long vacation. About
1 week later he again met Acosta in the back room and
Acosta asked him how he felt about the Union and whether
he had decided to get out of the Union. He added that if he
had not so decided, he might as well go to the police
department.
The day after the first conversation with Acosta, Ed
Luckett, store manager at 112, asked him what he and
Acosta had been discussing and when Austin told him
said, "You mean you are mixed up in this mess?" He then
told Austin that Acosta could keep him off the police and
could have Austin's aunt, who worked at Frito-Lay, fired.
Acosta testified that the only conversation he had with
Austin regarding the police department took place in May
when Austin told him he was filing for the police
department and that he told Austin he had the chance to
get ahead with A & P. He denied that discussion of the
Union took place in that conversation.
Luckett testified that he asked Austin what his
conversation with Acosta was about and that when Austin
told him he was applying for the police he told Austin his
aunt could help him. He denied that the Union was
mentioned in this conversation.
5. The wage increase
The six stores at Jackson belonged to an administrative
unit of A & P known as the New Orleans unit, which
included 104 stores in Louisiana and Mississippi, and
parts of Alabama, Arkansas, and Florida. Alvin J. Truxillo,
assistant personnel manager for A & P, testified that,
following a change in the presidency of the Southern
Division of the Company in January (New Orleans was
10 An allegation that this conversation violated Section 8(a)(1)
was offered as an amendment to the complaint as paragraph 12-A
and the motion was denied It was elicited, not by the General
Counsel, but by counsel for the Union, presumably in support of
objections to the election It is not, therefore, a part of the General
Counsel's case. The General Counsel has, however, adopted it in
his bnef, page 8, as an additional violation of Section 8(a)(1) In
view of the ruling at the hearing no finding will be made herein on
this conversation in this Decision , insofar as it relates to Section
8(a)(1)
ii This is not in serious conflict with the testimony of Inman
who testified that, when needed, he was called from scrubbing to
help on other jobs. Hayes admitted that if only one man were
performing the scrubbing operation , it might take him a month to
get around the store . He also admitted that Inman was the senior
stockboy
i% These are the only parts of Boswell 's testimony relied upon
in the General Counsel's bnef to support the allegations of the
complaint . The General Counsel was requested to set forth in his
bnef that testimony which he believed supported the 8(a)(1)
allegations
THE GREAT ATLANTIC & PACIFIC TEA CO.
included in the Southern Division), a new wage plan was
inaugurated. The contract with the Meat Cutters of New
Orleans, Houma, Hammond, and Pochatoula became
effective April 26 and it was determined to put the new
wage scales in effect after that date. Four plans were
devised for the New Orleans unit , depending upon locality.
(Respondent's Exhs. 2-A, 2-B, 2-C, and 2-D.) All the
stores in Louisiana were brought under the plan on May 7
and the stores in Mississippi, including the six at Jackson,
were brought under the plan in the week ending June 18.
The plan was announced to the employees at the stores by
the supervisors, and Acosta announced the plan at the
Jackson stores. The details of the plans are set forth in the
exhibits, supra, and no purpose would be served by setting
them forth here. The wage increase was admittedly given
during the period between the filing of the petition and the
election in Case 15-RC-3391.
B. Conclusions
1. Independent violations of Section 8(a)(1)
The search for truth in testimony related to 8(a)(1)
violations has a kinship with the proverbial search for the
black cat in the dark room. Based on testimony which I
credit, in part on the demeanor of the witnesses and in part
because it is supported by extrinsic evidence, the
following conclusions have been reached.
I find Inman a credible witness and I accept his
testimony that when Acosta delivered the letter of
reprimand to him on May 1, he asked Inman why he did
not drop "this union mess," showed him a letter from an
employee named Gant to Vice President Spencer
apologizing for "going union," and also showed him
Spencer's reply stating everything "would be all right." At
the same time Acosta told him he could still get out even
though he had signed a card adding that Respondent did
not mind if its employees singed cards. I find this an
inducement for Inman to abandon union activity with the
implication that things would be better for him if he did. I
do not find the implied disparagement of union activity
unlawful but the suggestion of benefit for dropping union
activity violates the Act.
I also credit Inman's testimony that in his drugstore
conversation with Hayes he was asked why he did not drop
the union mess, that if he did he would get his hours back,
and that they would not have been cut if he "hadn't got
messed up in this Union mess." At the same time Hayes
told him he knew the Union had 43 cards. These
statements are clear violations of the Act.
I credit Pantell's testimony that in April, Acosta told
him he knew which employees had signed cards and knew
Pantell had signed. I find that this created an impression
of surveillance of union activity and in itself unlawful.
I credit Boswell's testimony that Norrell, his manager,
called him to his office, told him he had heard rumors that
he was pushing the Union, and asked him if it was true. I
find the interrogation of Boswell under such
circumstances inherently coercive.
I accept and credit Austin's testimony that on the day
after he attended his first union meeting Acosta told him
he knew he had attended. Acosta also told him he had
13 I have previously stated, fn 10, that I would not make any
finding based on this remark as an independent violation in view
993
ways of knowing who attended and that he knew who had
signed cards and when they had signed them. No clearer
impression of Respondent's surveillance of union activity
could be given. I also find a thinly veiled threat in Acosta's
remark that it could be 2 years or longer before Austin
could get on the police force and that that could be a long
vacation. The only construction that can be placed on such
a remark is that Austin's job at A & P was in jeopardy
because of his union activity. One week later Acosta told
him that if he had not decided to get out of the Union, he
should have gone to the police department and gone to
work. Later he was asked by Luckett, his store manager,
what his conversation with Acosta was about. Told that it
concerned the Union, Luckett expressed surprise that he
was in "this mess" and told him Acosta could keep him off
the police department and could have his aunt, who
worked at Frito-Lay, fired. In the context of the
conversation, I find Luckett's remarks respecting Acosta's
influence with the police department and Frito-Lay and
the manner in which he might exercise it coercive.
I do not agree with the General Counsel's contention
that Norrell's statement to Boswell, during a general
discussion of the Union, that only five or six would vote for
the Union indicated unlawful surveillance. It was purely
an estimate of what Norrell considered the union strength
in the store. It did not establish that Norrell either knew or
suspected the identity of these employees or that, if he did,
he had acquired this knowledge by unlawful means.
Predictions as to the outcome of a union election
constitute neither coercion or restraint, whether made by a
representative of management or of the Union. No
elections in this country are free from such predictions.
The General Counsel appears to concede in his brief
that the general wage increase granted by Respondent was
not in violation of the Act. He contends, however, that
Hayes' remarks to Inman at the time he gave him his
increase "contaminated" the plan with illegality. The
meaning of this curious phraseology is not explained and it
stands alone as argument. I do not find that such a remark
made by a lower echelon supervisior could make illegal a
wage increase otherwise lawful and granted to the
employees of the entire New Orleans division. is
2. Violations of Section 8(a)(3)
Alleged violations of Section 8(a)(3) refer solely to Inman
and refer specifically to a reduction in his hours and the
assignment of more onerous tasks. Hayes admittedly
reduced Inman's hours for a 2-week period following his
early departure from work on April 7 and this reduction is
reflected in the time summary submitted by Respondent.
Hayes testified that the reduction was punishment for
leaving his work unfinished on April 7, but I find, in view
of the testimony of Inman as to the drugstore conversation,
above, that at least a partial reason was his union activity.
While Inman 's departure provided the excuse for the
reduction, his union activity provided the reason. Apart
from this period I do not find any serious discrepancy
between Inman's hours after his union activity became
known to Respondent (a date fixed as March 31), and his
hours worked prior to that time. The hours are a matter of
record and each reviewer may draw his own conclusions.
of my denial of the motion to amend the complaint
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mine is that the General Counsel has not sustained his
burden of proof to show further discrimination.14
As to the tasks assigned Inman, I reach a similar
conclusion of discrimination. On the day following the
drugstore conversation, Inman was put to work scrubbing
the floors by hand with a brush. He testified that he
performed this work continuously thereafter except when
his services were needed elsewhere. Inman was the senior
stock clerk and a change from his regular assignment to a
task obviously more arduous and menial is suspect. Hayes
gave no reason for this assignment except that the work
had to be done, which is conceded, but no reason was
given why Inman should receive it as a regular
assignment. I would not consider the assignments of
shifting the fertilizer bags and cleaning the garbage room,
standing alone, evidence of discrimination but they do not
stand alone and I think that when coupled with the
scrubbing assignment there is every indication that Inman
fell heir to every unpleasant job in the store. In view of the
drugstore conversation, and I find that the evidence of
discriminatory motive rests on this conversation, 15 I find
sufficient evidence of discriminatory motive to support the
complaint.
IV. REPORT ON OBJECTIONS IN CASE 15-RC-3391
The following objections were filed by the Union and
referred to the Trial Examiner:
(1) The Company made promises and did give benefits
for voting against the Union;
(2) Interrogated their employees regarding their
intention to vote for the Union;
(4) Made impossible a fair and representative election
by issuing false and untrue propoganda. Some copies
hereto attached;18
(5) Made deliberate and rebuttal false [sic], and
misleading statements;
(6) Discriminated against employees who the Company
knew were for the Union;
The petition in Case 15-RC-3391 was filed May 26 and
the election was held July 28. This is the critical period for
consideration of conduct affecting the results of the
election.
The objections will be considered in sequence:
(1) There is no evidence that the Respondent promised
any benefits to the employees. Respondent did grant a
wage increase to the employees in the stores in
Mississippi, including the Jackson stores, on June 13. The
increase was part of an overall wage program for the
Southern Division initiated as a matter of policy in
January, withheld pending settlement of the Meat Cutters'
contract, and made effective at the Louisiana stores on
May 7. Thus the wage increase was granted as part of a
preconceived plan affecting 104 stores and executed in the
normal course of business. There is nothing to indicate
14 The General Counsel urged at the hearing that if it were
found that Inman lost 1 hour of work for discriminatory reasons, it
would warrant the issuance of a remedial order Apparently the
maxim de mtntmis non curat lex has been stricken from the
vocabulary of labor law
15 In determining credibility between Inman and Hayes, I have
given consideration to the fact that when Inman went to the store
on Thursday, April 6, to ask if Hayes wanted him to work that
weekend Hayes suggested that they go to the drugstore and talk
about it It seems unlikely that Hayes would suggest going to the
drugstore solely to discuss softball
that an incidental purpose was to influence the votes of
employees in the Jackson stores. I do not find the wage
increase under these circumstances improper under the
Board's rules regulating preelection conduct.17Nor do I
find Hayes' remarks to Inman when he gave him the
increase constitute grounds for setting aside the election.
(2) The only evidence to support this objection is
Pantell's testimony that while working with Jesse Magee,
assistant store manager, he was asked on several
occasions by Magee how he intended to vote in the
election. This interrogation occurred in the store and at
their working stations (according to Pantell they were
stocking merchandise). I find no coercion in interrogation
under such circumstances and in any event the
interrogation of 1 employee would scarcely warrant the
setting aside of an election involving some 160 employees.
Even when considered together with Hayes' remark to
Inman, above, I would consider these incidents sufficient.
(3) The Regional Director submitted, without
evaluation, 17 documents published and distributed by
Respondent during the campaign. The Union has not
specified which, if any, it regards as exceeding the proper
limits of campaign propaganda. No allegation has been
made that there has been any misrepresentation of any
material fact. The published material contained no threat
of reprisal nor promise of benefit but merely set forth
contingencies which might occur if the Union won the
election. The material was hard hitting but it could
scarcely be considered sufficiently inflammatory to
warrant setting aside the election so conclusively won by
Respondent. 18
(4) I find this objection so vague as to be meaningless
and no evidence was introduced to support or clarify it.
(5) There is no evidence that the Company
discriminated against employees during the preelection
period. I have found that Respondent discriminated
against Inman by assignment of more arduous work but
the discrimination was initiated prior to the critical period
and while it may have continued into that period, and there
is no proof that it did, it was neither sufficiently extensive
nor of such a nature as to have serious impact on a unit
consisting of six stores.
It shall be recommended that the Board dismiss the
objections and certify the results of the election.
V. THE REMEDY
Having found Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to
effectuate the policies of the Act.
Having found that Respondent discriminated against
William B. Inman, Jr., by reducing his hours of
employment during the pay periods ending April 9 and
16,19 I shall recommend that it make him whole for any
loss of pay he may have suffered by reason of the
16 The General Counsel submitted as Regional Director's Exhs
1 to 17 written material issued by Respondent during the
preelection campaign
is Sprague Electric Company of Wisconsin, Inc, 112 NLRB
165, Stanley Aviation Corporation, 112 NLRB 461, Texas
Prudential Insurance Co, 111 NLRB 802, Good-All Electric Mfg
Co., 117 NLRB 72. Cf The Great Atlantic & Pacific Tea
Company, Inc , 162 NLRB 1182.
18 Cf General Shoe Corporation, 77 NLRB 124.
19 The two Saturday afternoons when Inman did not work fall
within these periods
THE GREAT ATLANTIC & PACIFIC TEA CO.
discrimination practiced against him and that interest on
said sum be computed in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings and conclusions
and upon the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. By attempting to induce employees to reject the
Union; by giving employees the impression union activities
were under surveillance; by coercively interrogating its
employees concerning their union activity; by implying to
employees that their jobs were in jeopardy if they
continued their union activity; and by telling its employees
that the division manager could keep them off the police
department and have a relative fired at another store
because they engaged in union activity, Respondent
violated Section 8(a)(1) of the Act.
2. By reducing the working hours of and assigning an
employee more arduous and menial tasks to discourage
union membership and activity, Respondent violated
Section 8(a)(3) and (1) of the Act.
3. The aforesaid labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
I shall recommend that the Respondent, The Great
Atlantic & Pacific Tea Company, Inc., its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Attempting to induce employees to reject the Retail
Clerks International Association, Local No. 1529,
AFL-CIO, as their collective-bargaining representative;
creating the impression that the union activities of its
employees are under surveillance; interrogating its
employees concerning their union activities in a manner
constituting coercion; telling its employees that their jobs
are in jeopardy if they continue their union activity and
telling its employees that its division manager could keep
them off the police department and have relatives
employed at other stores fired because they engaged in
union activity.
(b) Reducing the working hours of and assigning more
arduous and menial tasks to employees to discourage
membership and activity in the above-named or any other
labor organization.
(c) In any like or related, manner interfering with,
restraining , or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make William B. Inman, Jr., whole for any loss of
pay he may have suffered by reason of the discrimination
practiced against him in the manner set forth in that part
of this Decision entitled "The Remedy."
(b) Post at its six stores at Jackson, Mississippi, copies
of the attached notice marked "Appendix."20 Copies of
said notice, to be furnished by the Regional Director for
Region 15, after being duly signed by the Company's
representative, shall be posted by the Company
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
995
the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.21
IT IS HEREBY FURTHER RECOMMENDED that all the
allegations of the complaint not specifically found to be in
violation of the Act shall be dismissed.
IT IS HEREBY FURTHER RECOMMENDED that the
objections to the election filed in Case 15-RC-3391 be
overruled and that the Board certify the results of said
election.
20 In the event that 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 In the further event that the Board's Order is 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 "
21 In the event that this Recommended Order is 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 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 NOT attempt to induce our employees to
drop their membership in or activity on behalf of the
Retail Clerks Interngtional Association, Local No.
1529, AFL-CIO, or any other labor organization, by
suggesting that things will be better if they do.
WE WILL NOT tell any employee that his hours were
reduced because of his union membership and
activity and promise him his hours will be restored if
he gets out of the above-named Union.
WE WILL NOT tell our employees that we have
means of knowing which of our employees have
signed union cards.
WE WILL NOT question our employees about their
union membership and activity.
WE WILL NOT tell our employees that their jobs are
in jeopardy if they continue their union activity.
WE WILL NOT tell our employees that the division
manager could keep them off the police force or have
a relative at another store fired if they continue their
union activity.
WE WILL NOT reduce the hours of any employee or
give him harder and dirtier work to do because of his
union membership and activity.
WE WILL pay William B. Inman, Jr., for any wages
he may have lost because we reduced his hours of
work due to his union membership and activity.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any labor
organization.
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.
THE GREAT ATLANTIC& If employees have any question concerning this notice
PACIFIC TEA COMPANY or compliance with its provisions , they may communicate
(Employer) directly with the Board's Regional Office, T6024 Federal
Dated By Building (Loyola), 701 Loyola Avenue, New Orleans,
(Representative ) (Title ) Louisiana 70113, Telephone 527-6361.