The Great Atlantic & Pacific Tea Co., Inc

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 27 (N.L.R.B. 1967)

THE GREAT A&P TEA CO.
The Great Atlantic & Pacific Tea Company, Inc. and
Retail Clerks International Association, Local
Union 1636, AFL-CIO. Case 12-CA-3531
June 28,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed by Retail Clerks Interna-
tional Association , Local Union 1636 , AFL-CIO,
on May 19, 1966 , the General Counsel of the Na-
tional Labor Relations Board , by the Regional
Director for Region 12, issued a complaint and
notice of hearing , dated June 29 , 1966 , against The
Great Atlantic & Pacific Tea Company, Inc.,
herein called Respondent , alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(1) and (3), and 2 (6) and (7) of the Na-
tional Labor Relations Act, as amended . Copies of
the charge and complaint were duly served upon
Respondent.
With respect to the unfair labor practices, the
amended complaint alleges in substance that
Respondent discriminated against certain em-
ployees at its Orlando and Winter Park , Florida,
stores , by announcing and thereafter withholding
benefits from said employees, and otherwise also
interfered with, restrained , and coerced said em-
ployees by threatening to have employee Cairns
discharged because he failed to cooperate and give
information to Respondent 's attorney concerning
the Union and its activities.
On July 8, 1966 , the Respondent duly filed its
answer , admitting certain allegations of the com-
plaint but denying the commission of any unfair
labor practices.
On August 19, 1966 , all parties to this case en-
tered into a stipulation requesting that this case be
transferred and submitted directly to the Board for
findings of fact , conclusions of law , and a Decision
and Order. The parties waived hearing before a
Trial Examiner and the issuance of a Trial Ex-
aminer 's Decision.
On August 24, 1966 , the Board entered an order
approving the stipulation and transferring the case
to the Board. Thereafter, the Respondent and the
General Counsel filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the basis of the parties ' stipulation, and
upon the entire record in this case , the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
27
The Respondent is engaged in the business of
operating a multistate retail food store chain, in-
cluding stores in Florida. During the past 12
months, Respondent had a gross volume of busi-
ness in excess of $1 million and received in Florida
goods and supplies valued in excess of $100,000
directly from points outside the State. The com-
plaint alleges, the Respondent has admitted, and we
find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local
Union , 1636 , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Allegations of the Complaint
The complaint alleges that since on or about
April 25, 1966, the Respondent announced an addi-
tional paid holiday but then discriminatorily
withheld it from its grocery and produce employees
at the Orlando and Winter Park, Florida, stores,
because of employees' membership in or activities
on behalf of the Union, although granting such
benefit to all employees in the Jacksonville unit;
and that such conduct is violative of Section 8(a)(1)
and (3) of the Act. The complaint further alleges
that in or about the middle of March 1966, Leonard
Richardson, Respondent's assistant store manager,
told employee William Cairns that Respondent's at-
torney, Bartholf, threatened to have Cairns
discharged because Cairns failed to cooperate and
give information concerning the Union and its ac-
tivities; and that such conduct was also violative of
Section 8(a)(1) of the Act.
B. Stipulation -
The parties stipulated that on April 26, 1966, the
Respondent issued a letter to its employees at its
Orlando and Winter Park, Florida, stores, explain-
ing that they were not being given an additional paid
holiday as were other employees in the Jacksonville
unit, and that this benefit was withheld because an
election was pending. The parties further stipulated
that during the middle of March, Respondent's su-
pervisor, Leonard Richardson, told an employee,
William J. Cairns, that Respondent's attorney,
David Bartholf, threatened to have employee
Cairns discharged because he failed to cooperate
166 NLRB No. 36
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and give information to Mr. Bartholf concerning the
Union and its activities, during an investigation by
Mr. Bartholf of charges which had been filed
against the Respondent. It was further stipulated
that on or about April 7 and August 8, 1966, the
Respondent sent letters to employee Cairns, which
were received by him, disclaiming any alleged
threatss to discharge him.
C. Background of the Dispute
The stipulation of facts reveals that two elections
have been conducted among all of Respondent's
grocery and produce employees in eight Orlando
and Winter Park, Florida, stores . The Union here
was the Petitioner in both instances . The first elec-
tion , conducted on September 29, 1965 , and lost by
the Petitioner, was objected to on the ground that
the Employer had interfered with the election "by
giving unilateral raises and promises of additional
raises within 6 months after the direction for the
election had been issued ." The Regional Director
investigated the objections and issued a report on
November 1, 1965 , in which he concluded that cer-
tain objections relating to a pay raise and the an-
nouncement of future pay raises interfered with the
election , and he recommended the direction of a
second election . The Respondent excepted to the
report , and on December 28, 1965 , the Board is-
sued its decision adopting the report and directing
a second election.
On February 10, 1966 , a second election was
conducted and the Petitioner which lost the elec-
tion , again filed objections alleging that, among
other things, the Respondent was continuing to
grant wage increases , which interfered with the
election . Pursuant to a stipulation of the parties, the
second election was set aside by the Regional
Director and an order was issued directing a third
election . The scheduling of this third election has
been held in abeyance awaiting the outcome of this
case.
D. The Current Dispute
(1) We are initially concerned here with the
Respondent's withholding of ' an additional paid
holiday from the same group of employees while a
third representation election is pending.
In support of its decision not to grant the addi-
tional benefit to its grocery and produce employees
in the Orlando and Winter Park stores, the Re-
spondent contends that it wanted to be careful to
avoid engaging in any objectionable conduct prior
to the third election. Since a third election was
pending, the Respondent's attorneys advised the
Respondent not to make any changes whatsoever
in any of the benefits enjoyed by those employees,
except those in accordance with a preannounced
company policy. The fact that the Respondent's
decision was undertaken as a result of legal advice,
of course, does not absolve the Respondent from
the responsibility for the course of action under-
taken, if in fact it is unlawful.
The Respondent states that the primary purpose
of the letter of April 26 was to keep the employees
from having to ask questions of the managers and
assistant managers regarding why they had not
received the additional benefit. The Respondent
states further that it was concerned that the
managers and assistant managers, not being skilled
in the field of labor relations, might say something
in reply which could be pointed to later by the
Union as objectionable conduct. The letter an-
nounced that the holiday benefit was being withheld
and then specifically stated:
The reason for this is because the National
Labor Relations Board has said that an em-
ployer shall not increase or decrease the
benefits its employees are receiving while an
election is pending. As a matter of fact, the
reason we are having to go through another
election is because of the increase in the wages
which was given to many of our Orlando and
Winter Park employees before the last election.
Therefore, we are unable to include you in this
additional holiday.
We are sure that you are just as tired of this
union business and rerun of elections as we are,
and we regret that we are unable to give you
this additional holiday. We are sure that were
we to grant this additional holiday to you prior
to this election, the union would again file
charges as they have in the past that the Com-
pany cheated in the election by buying votes.
(2) The complaint alleges, and the parties stipu-
lated, that supervisor Richardson told Cairns, that
Respondent's attorney, Bartholf, threatened to
have Cairns discharged because he failed to
cooperate and give information to Bartholf concern-
ing the Union and its activities, during an investiga-
tion by Bartholf of charges which had been filed
against the Respondent.
On or about April 7, 1966, the Respondent sent
a letter to all of its employees, one of which was ad-
mittedly received by employee William J. Cairns.
The Respondent stated that "the purpose of this
letter is merely to express my sincere thanks to
each of you for your very warm cooperation to him
[Mr. Bartholf] in these talks, to assure you that no
action will be taken by the Company to `get even'
with anyone for supporting the union, to report to
you the results of his investigation and to clear up
a few things." At the time this letter was sent, the
Respondent had no knowledge of any threats by
Assistant Manager Leonard Richardson to William
J. Cairns.
Following an interview with Leonard Richardson
in which he admitted he had told William J. Cairns
THE GREAT A&P TEA CO. 29
essentially the facts noted previously, the Respond-
ent, through its personnel manager, Dreaden, sent
a letter to William J. Cairns, on August 8, stating,
"Please be assured that as long as you do your work
properly you will have a job with the company. I ex-
pressed that thought in my earlier letter to all the
employees." The earlier letter referred to is the
April 7 letter. The August 8 letter followed is-
suanceof the complaint herein.
E. The Contentions of the Parties
The General Counsel contends that the dis-
semination of the letter announcing the withholding
of the additional holiday benefit and the actual
withholding constituted violations of Section 8(a)(1)
and (3). The General Counsel further contends that
Respondent's alleged threat to discharge employee
Cairns for failure to cooperate with its attorney
warrants a finding of a violation of Section 8(a)(1),
and requires the posting of a remedial notice ir-
respective of Respondent's subsequent letters to
Cairns disclaiming such threat.
The Respondent claims that, inasmuch as the
Board had previously held that the granting of wage
increases to employees in this same unit while an
election was pending interfered with and resulted in
the setting aside of a prior election, it had little
choice but to deny the additional paid holiday
benefit to unit employees.
The 'Respondent also contends that its letter of
April 7 sent to all Orlando employees, and its letter
of August 8 sent only to Cairns, cured or remedied
any alleged violation.
F. Discussion
Prior to April 26 , 1966, the Respondent granted
preelection wage increases to influence employees
in an election.' On April 26, when Respondent sent
its letter , neither the Union nor any of the em-
ployees at the locations involved had raised any
questions concerning the additional holiday. Yet,
without any apparent reason for doing so at this
time , it granted holiday benefits to unorganized em-
ployees, and at the same time, withheld such
benefits from employees about to vote on union
representation . The April 26 letter tells these em-
ployees in effect that , but for the Union, they too
would have received an additional holiday . Further,
the- additional gratuitous comment in the letter that
"We are . .. just as tired of this union business, as
we are sure you are and we regret that we are
unable to give you this additional holiday," illus-
trates that the letter was more than a mere informa-
tional notice but was intended to exploit and bring
home to the employees that the Union was respon-
sible for their being deprived of additional benefits.
In all the circumstances , we conclude that the
Respondent 's letter , announcing its withholding of
benefits as well as its actual withholding of such
benefits and its exploitation of such action, was a
tactical maneuver designed to discriminate against
employees and to interfere with the employees'
freedom of choice, in violation of Section 8(a)(3)
and (1) of the Act.2
Moreover , we further find that in the context
presented , the discriminatory treatment of em-
ployees was violative of Section 8(a)(1) and (3)
whether or not there is proof that Respondent was
motivated by an unlawful purpose as it was "in-
herently destructive of employee interests,"3 and
no persuasive evidence of a legOitimate purpose ap-
pears therefor.
Respondent in essence concedes that its super-
visor threatened employee Cairns with discharge
but that its subsequent letters cured any alleged
violations. However , under all the circumstances,
including the fact that the August 8 letter followed
issuance of the complaint , we conclude that Super-
visor Richardson 's statement to Cairns should be
found a violation of Section 8(a)(1), and that a post-
ing of a notice is warranted.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations of Respondent as set forth in section I,
above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act, we shall order that it
cease and desist therefrom, and that it make the em-
ployees whole for the losses they have sustained as
a consequence of the unlawful conduct, by granting
the benefits that were instituted on April 26, 1966,
with interest computed as in Isis Plumbing & Heat-
' As a general rule, an employer, in deciding whether to grant benefits
while a representation election is pending, should decide that question as
be would if a union were not in the picture On the other hand, if an em-
ployer's course of action is prompted by the Union's presence, then the
employer violates the Act whether he confers benefits or withholds them
because of the Union. See McCormick Longmeadow Stone Co , Inc., 158
NLRB 1237; Agawam Food Mart, Inc., dlb/a The Food Mart, 158
NLRB 1294, T. L. Lay Packing Company, 152 NLRB 342; International
Ladies' Garment Workers' Union, AFL-CIO, 142 NLRB 82, 143 NLRB
1168, enfd 339 F 2d 126 (C.A 2).
2 See McCormick Longmeadow Stone Co., Inc , 158 NLRB 1237.
3 N.L.R.B v. Great Dane Trailers, Inc., 388 U S. 26.
4 See Korner Kafe, Inc, 156 NLRB 1157, Chevrolet Motor Division,
General Motors Corporation, 144 NLRB 862.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Co., 138 NLRB 716, and that it post ap-
propriate notices. Cf. McCormick Longmeadow
Stone Co., Inc., 158 NLRB 1237; I.L.G.W. U., 142
NLRB 82, 83, enfd. in pertinent part 339 F.2d 126,
132-133 (C.A. 2).
CONCLUSIONS OF LAW
1. The Great Atlantic & Pacific Tea Company,
Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Retail Clerks International Association,
Local Union 1636, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening an employee with loss of em-
ployment because he failed to cooperate and give
information to Respondent's attorney concerning
the Union and its activities during an investigation,
the Respondent interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, and thereby en-
gaged in unfair labor practices within the meaning
of Sections 8(a)(1) and 2(6) and (7) of the Act.
4. By its discriminatory treatment of employees
on and after April 26, 1966, in its announcement of
and the withholding of certain benefits, the Re-
spondent engaged in an unfair labor practice affect-
ing commerce within the meaning of Sections
8(a)(3) and (1), and 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relation Board hereby orders that the Respond-
ent, The Great Atlantic & Pacific Tea Company,
Inc., Orlando, and Winter Park, Florida, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) 'Threatening to discharge any of its em-
ployees for refusing to give information concerning
the Union and its activities.
(b) Advising employees thereof and withholding
benefits from them in order to discourage member-
ship in a labor organization.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Make its - employees whole, in the manner
described in the portion of this Decision entitled
"The Remedy," for any losses suffered on and after
April 26, 1966, by virtue of the withholding of the
holiday benefits then instituted.
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(c) Post at its stores at Winter Park and Orlando,
Florida, copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 12,
after being duly signed by the Company's represen-
tative, 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 the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify said Regional Director for Region 12,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
5 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
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 threaten our employees with
loss of employment because they refused to
give information concerning the Union and its
activities.
WE WILL NOT discriminate against em-
ployees in order to discourage membership in
a labor organization.
WE WILL make the benefits we instituted on
April 26, 1966, available to all of our em-
ployees as of that date.
THE GREAT ATLANTIC
& PACIFIC TEA
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Room 706 Federal Office Building, 500
Zack Street, Tampa, Florida 33602, Telephone
228-7711.