The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1967

167 N.L.R.B. 776 (N.L.R.B. 1967)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 'Great Atlantic & Pacific Tea Company, Inc.
and Local 458, Retail Clerks International Asso-
ciation , ALF-CIO. Case 15-CA-3019
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
October 16, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 9, 1967, Trial Examiner James V.
Constantine issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that Re-
spondent had not engaged in certain other unfair
labor practices as alleged in the complaint and rec-
ommended that such allegations be dismissed.
Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs, and the Respondent filed
a brief in opposition to the General Counsel's ex-
ceptions.
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.
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 recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, The Great Atlantic &
Pacific Tea Company, Mobile, Alabama, its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
I These findings and conclusions are based , in part , upon credibility
determinations of the Trial Examiner to which the General Counsel and
Respondent have excepted After a careful review of the record, we con-
clude that the Trial Examiner 's credibility findings are not contrary to the
clear preponderance of all relevant evidence Accordingly , we find no
basis for disturbing those findings Standard Dry Wall Products, 91
NLRB 544, enfd 188 F 2d 362 (C A. 3)
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case brought under Section 10(b) of
the National Labor Relations Act, herein called the Act.
29 U.S.C. 160(b).
This proceeding was initiated on March 28, 1967, by
a complaint issued by the General Counsel of the Na-
tional Labor Relations Board through the Regional
Director for Region 15 at New Orleans, Louisiana. That
complaint, based on a charge filed on February 10, 1967,
and amended on March 21, 1967, by Local 458, Retail
Clerks International Association, AFL-CIO, names The
Great Atlantic & Pacific Tea Company, Inc., as Re-
spondent. In substance the complaint alleges that the
Respondent has violated Section 8(a)(1), and that such
conduct affects commerce within the meaning of Section
2(6) and (7) of the Act. Respondent has answered admit-
ting some facts but denying that it committed any unfair
labor practices.
Pursuant to due notice this case came on to be heard
and was tried before me on May 9 and 10, 1967, at Mo-
bile, Alabama. All parties were represented at and par-
ticipated in the hearing, and were afforded full opportuni-
ty to adduce evidence, examine and cross-examine wit-
nesses, submit briefs, and offer oral argument. A motion
dated May 5, 1967, by the General Counsel to amend the
complaint in two respects was denied. As to one new al-
legation, the denial was based on the fact that the incident
there mentioned occurred in September 1966, and, there-
fore, should have been included in the original complaint.
The denial of the other allegation (alleging restraint and
coercion flowing from wage increases on April 29, 1967)
was based on the fact that Respondent was given in-
adequate time prior to the hearing to prepare its defense,
and I was not inclined to adjourn the hearing pending
Respondent's investigation of this aspect of the proposed
amendment to the complaint. Briefs have been received
from the General Counsel and the Respondent. Respond-
ent's brief (p. 16) requests that the record be reopened
and a further hearing be held. This request is denied.
Respondent's motion to correct the record, as described
on pages 23-24 of its brief, is granted in the absence of
opposition thereto.
The issues in this case are whether the Respondent in-
terfered with, restrained, and coerced its employees by
(a) coercively interrogating them concerning their union
activities, desires, and feelings, and those of other em-
ployees; (b) promising wage raises to induce employees
to withdraw from Local 458; (c) creating the impression
of surveillance of union activities; (d) threatening em-
ployees with reprisals for engaging in union activities; (e)
prohibiting employees from talking about Local 458; (f)
soliciting employees to talk against Local 458 to other
employees and to ask other employees to refrain from en-
gaging in union activities; (g) telling employees to work
elsewhere if they wanted a union ; (h) promising em-
ployees benefits for reporting upon the union activities,
desires, and feelings of other employees; and (i) par-
ticipating in, encouraging, sanctioning, condoning, and
ratifying the circulation of an antiunion petition among its
employees.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I make the following:
167 NLRB No. 110
FINDINGS OF FACT
1. ON JURISDICTION
TH E G BEAT A & P TEA CO. 777
Respondent, a Maryland corporation, operates a chain
of retail food stores in a number of States, including
Alabama. Annually, it sells products valued in excess of
$1 million. And it annually purchases products valued in
excess of $50,000 which it receives in Alabama directly
from points outside the State of Alabama. Four of its Mo-
bile, Alabama, stores are involved in this proceeding. An-
nually, the combined sales of these four stores exceed
$50,000, and their combined purchases of products
directly from points outside the State of Alabama exceeds
$50,000. 1 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 purposes of the Act to assertju-
risdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 458, Retail Clerks International Association,
AFL-CIO, herein called Local 458 or the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE UNFAIR LABOR PRACTICES
This case concerns conduct of Respondent which is al-
leged to have occurred in four of its retail outlets in Mo-
bile, Alabama. These stores, which are a part of Respond-
ent's New Orleans, Louisiana, division, are situated at
4380 Old Shell Road, 3979 Cottage Hill Road, and 964
Michigan Avenue in Mobile, and 624 North Wilson
Avenue in Prichard, Alabama.
A. General Counsel's Evidence
1. Events at the Old Shell Road store
About the last of September 1966,' Local 458 began
an organizing campaign at the Old Shell Road store of
Respondent. About October 4, 1966, Claude Robinson,
Respondent's Mobile district supervisor, whom I find to
be a supervisor under Section 2(11) of the Act, spoke to
Margaret Smith, a checker in the Old Shell Road store.
Telling Smith that he wanted to speak to her about the
Union which the employees were "trying to organize,"
Robinson told her that, if Smith wanted a union , "to go el-
sewhere to get it," and that "the A & P Stores would
never have it." Continuing, Robinson told Smith that
Smith "started the Union [and] ... was the instigator of
the Union"; that the Union [Local 458] was no good and
would not do the employees any good. Later that same
day Robinson begged Smith "to get out of the Union and
help me [Robinson] stop it at this store."
About October 7, Ralph Daugherty, the manager of
the Old Shell Road store, whom I find to be a supervisor
under Section 2(1 1) of the Act, asked Margaret Smith to
talk to District Supervisor Robinson in the backroom.
When Smith arrived there, Robinson told Smith he was
giving Smith a $5-a-week increase in wages "because he
had to" and "not because he wanted to"; Smith was
working for the Union and was the instigator of the
Union; and if Smith "wanted union" to "go elsewhere
and work for it." Daugherty was present during this con-
versation.
On another occasion, Robinson called Smith to a drug
store about October 17. There Robinson told Smith that
the employees were trying to organize; Smith "knew
something" but would not tell it to Robinson; Smith was
the instigator of the Union; the instigators would not be
around and they would not have a job in 3 or 4 months
"after it was over with"; and he would "get even" with
Smith even if it took Robinson 10 years "to do it."
The next day Robinson pointed out to Margaret Smith
an employee named Lois Bond or Bonds. Then Robinson
asked Smith to go to the home of Bond and "get [Bond]
to back out of the Union." Continuing, Robinson told
Smith to shout from the rooftops to all the employees that
Local 458 was bad, and that if Smith wanted to work for
the Union to "go somewhere else and work for it." Smith
replied that she was not in the Union.
In the middle of January 1967, Robinson told Smith
that he wished Smith "could work under a New Orleans
[union] contract for sixty days [so Smith] ... could see
how much chaos and confusion that the Union was."
Further, Robinson told Smith to "go somewhere else and
to get it" if Smith "wanted union," and that "they would
never have it in A & P stores."
About January 17, 1967,2 Old Shell Road Store
Manager Ralph Daugherty told Smith that the employees
had "stirred up the Union; that the Company had their
eyes open [and] ... saw the light, if [the employees]
would just get out of the Union and give the Company
time they would get our raises for us." Smith replied that
she doubted raises would be granted because the Com-
pany "had had plenty of time."
Previously, about December 1, Daugherty had told
Smith that A & P had not changed its views about the
Union and did not want any employees to go to a union
meeting the coming Sunday, as this would be wasting a
whole day and it can do employees no good.
About February 3, George Fleming introduced em-
ployee Thelma Pittman to checker Hilda Keen and
produce clerk Barbara Miller. This occurred at the Old
Shell Road store. Pittman works at the Grant Street, Mo-
bile, Alabama, store of Respondent, whereas Miller and
Keen are employed at its Old Shell Road store. Fleming
stood by about 5 feet away. The Grant Street store is 3 to
5 miles away from the Old Shell Road store. Mobile Dis-
trict Supervisor Robinson was in the office at the time.
Employee Hilda Keen was with Miller. Fleming, whom
I find to be a supervisor under Section 2(11) of the Act,
is the assistant store manager of the Old Shell Road store.
In his introduction Fleming told Miller that Pittman had
something to talk about to Miller.
Thereupon Pittman informed Miller that the Union was
"trying to come in"; that "we old employees did not want
this to happen"; and that Pittman wanted as many names
as possible on a paper or petition "to see who is for the
Union and who is against." Miller refused to sign the peti-
tion. Employee Keen stood nearby on this occasion and
overheard the conversation between Pittman and Miller.
In her testimony Keen testified that Robinson was in the
All October, November, and December dates mentioned refer to
1966
2 All January, February, and March incidents took place in 1967
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office, but in her affidavit to the Board (Resp. Exh. 1)
Keen alludes to the fact that Store Manager Daugherty,
rather than Robinson, was in the office during this time.
I find that Keen is mistaken as to Daugherty's presence,
and credit her testimony that it was Robinson whom she
saw, In this respect Miller testified credibly that Robin-
son was in the office, thus further supporting the finding
that Robinson, and not Daugherty, was in the office.
The following week Pittman came to the Old Shell
Road store and told Miller that Miller knew where to con-
tact Pittman if Miller ever changed her mind. Miller saw
Pittman again about a week later in the office of the Old
Shell Road store conversing with Store Manager
Daugherty and employee Dottie Smith, the bookkeeper.
However, Pittman did not speak to Miller on this occa-
sion.
About the middle of February, Mobile District Super-
visor Robinson asked to speak to employee Hilda Keen
in the Old Shell Road store about the Union. When Keen
consented to hear him, Robinson said that "this thing is
bad." Replying to Keen's inquiry as to what was bad
about the Union, Robinson mentioned that Keen would
have to go on strike without having any say "on this final
thing," and Keen would be without a job and be replaced
by "someone else ... while you are out on strike."
Although Keen mentioned that the employees would
"call the strike vote," Robinson insisted that "those men
down there," and not the employees, "have the final say,"
and added that "all they want from you is your union
dues, and that's all they care about."
On a Saturday about the early part of February, em-
ployee Mary Stegin, a meat wrapper at the Old Shell
Road store, complained to Ralph Daugherty, the store's
manager, that someone had disclosed her "telephone
number and ... [work] schedule" and that, as a result,
she received unwanted calls at home. Daugherty denied
he did this. However, Daugherty did say that Melvin
Thompson, the manager of the A & P store on Grant
Street in Mobile, had asked him on Friday, the day be-
fore, whether Stegin would be working on Friday because
Thelma Pittman "wanted to bring the petition around";
and that Thelma Pittman wanted to know if Stegin was at
work that Friday so that Pittman "could bring the petition
around."
2. Events at the Cottage Hill Road store
About the first week in February, Joe Duplan, manager
of the Cottage Hill Road store, whom I find to be a super-
visor under Section 2(11) of the Act, spoke to Brenda
Pigg, a checker at the store. First he asked her what she
thought "about this thing going around the store?" When
Pigg asked what "the thing" meant, Duplan replied that
Pigg knew what he was talking about. Thereupon Pigg
said that if Duplan meant the Union it helped Pigg's
husband on his job. Then Duplan remarked that, " as long
as you are working for the Union," he could not make
Pigg head cashier at the store, although he knew that Pigg
was capable of handling the head cashier's job because
Pigg had worked for Duplan as head cashier at the
Navico Road store. Pigg was never made head cashier;
instead this position was given to Zettie Hankins about
February 19.
About February 18, Pigg, accompanied by employee
Mardra Atwell, went to see Duplan. Both spoke to him.
During the conversation, Duplan said that he knew the
first union meeting which Atwell attended. Then Pigg told
Duplan that she and Atwell were for the Union. Duplan
replied that he felt sorry for both of them "because ...
when this is over, you are both going to be out of jobs."
Soon Atwell left. Then Duplan told Pigg that Pigg had
been talking about the Union on company time and for-
bade her "to talk about the Union on company time any-
more." This caused Pigg to ask why Thelma Pittman
could "pass the petition around on company time," but
Duplan did not answer.
At sometime in early October, Mobile District Super-
visor Claude Robinson spoke to employee Pigg in the
Cottage Hill Road store in the presence of Store Manager
Joe Duplan . Robinson said he was adjusting salaries in
Respondent 's Mobile stores ; Pigg 's salary would be
raised $ 1 a week because Duplan told him that Pigg "had
a lot of influence with the part-time boys"; in 6 months
Pigg may or may not get another raise , but it would not
exceed $1; "the part-time boys could bring the Union in
the store by talking it over at school"; the Company was
not going to pay the part-time boys' time and a half for
Sunday work; and if the part-time boys asked Pigg any
questions about the Union, to tell them "it was bad." On
cross-examination Pigg also testified that , during this con-
versation, Robinson additionally stated that "they did not
want in the store any union."
In October or November, Mobile District Supervisor
Claude Robinson called employees of the Cottage Hill
Road store "to the back by pairs" and spoke to them
about the Union. One of those he called back is Mardra
Atwell, a checker. Telling Atwell that "they were trying
to form a union at A & P stores," Robinson said that
"they did not intend to have one and they would spend
. hundreds of dollars to keep them out." Further,
Robinson remarked that if the employees wanted to work
on a "union job" to inform the Company of this and it
would terminate them so they "could go to work where
they had a union."
About 2 weeks "before or after the [foregoing] meet-
ing," Robinson and Store Manager Duplan came to At-
well at the latter's checkout station. Informing Atwell
that she was being given a "wage adjustment" which was
"not a raise," Robinson asked Atwell as "one of our older
employees ... to talk against the Union to the other em-
ployees in the store." Atwell replied that, as she had not
heard about the Union, she "wasn't concerned."
About the first of February, Atwell, accompanied by
employee Brenda Pigg , called on Store Manager Duplan.
After informing Duplan that she "was for the Union" and
had signed a card , Atwell added that she had something
to tell him. Interrupting , Duplan said, "Mrs . Atwell, I
know what it is. I knew the first meeting you went to."
When Atwell repeated that she was "for the Union,"
Duplan observed that he was sorry for both of them and
"for your sake I hate that you signed a card . You are not
fooling anyone but yourself.... I guess you know what
will happen to you after this is over."
That evening, just after Atwell had punched out, Store
Manager Duplan asked her for permission to ask a
question. She consented. Thereupon, Duplan asked At-
well what she had against him. Although Atwell replied
in the negative, Duplan insisted that Atwell did have
something against him or Atwell would not have signed
a union card. But Atwell protested that she had nothing
against Duplan and that she wanted a union in the store
to obtain "better raises and better vacations." When
Duplan replied that "I guess you know what will happen
to you after this is over," Atwell observed that, if Duplan
THE GREAT A & P TEA CO. 779
was "insinuating" that he would fire Atwell, he could not
do this to her for joining the Union.
As noted above, Supervisor Claude Robinson called
employees to the back of the Cottage Hill Road store
where he spoke to them. One of those he called the first
part of October is employee Lotta Mae Harris, the head
cashier. Harris is not a supervisor. Robinson told Harris
that there was talk that some employees were trying to
form a union; A & P did not want a union and would use
every legal means at its disposal and would spend "any
amount of money" to keep it out of Mobile; and A & P
would be glad to terminate any employees who wanted to
work in a union store so that such employees `.could go
where there was a union to work with."
About a week later Supervisor Robinson asked Harris
if Harris had heard anything from any of the employees
about the Union and added that Harris, because she
"would have a lot of influence over" the employees,
could help the Company a lot by talking against the
Union to the employees. He said he felt the Union could
not benefit the employees. Robinson also mentioned that
since Birmingham had become unionized it was "operat-
ing in the red" and he "did not see how they could go on
with the salaries they were having to pay."
On "different occasions" in October, Store Manager
Duplan asked Harris if any of the employees had talked
with her about the Union and what she heard them say
about the Union. Harris replied that she had not heard
any employees talking about the Union. During one of
these inquiries (about mid-October), Duplan mentioned
that he understood that former employee Cecil Gollette,
who at the time was not an A & P employee, was "one of
the instigators" of the Union and working for it. In one or
two of these talks Duplan also stated that he knew that
employee Pigg was working for the Union.
B. Respondent's Evidence
Ralph Daugherty is manager of the Old Shell Road
store. An abridgment of his testimony follows.
About October 7, Respondent put into effect a wage
adjustment. It was announced at the store by Mobile's
district supervisor, Claude Robinson. In talking to em-
ployee Margaret Smith in the presence of Daugherty,
Robinson told her that he was giving her a salary increase
and hoped that Smith was as pleased as the other em-
ployees in the store whom he had also informed of their
raises. Robinson also asked Smith if she thought that
getting phone calls was a joke. Smith replied that she had
no "knowledge of anybody receiving any phone calls."
Finally, Robinson told Smith that he hoped Smith "would
support the A & P and appreciate the raise she had got."
But Robinson did not tell Smith that she or anyone else
was an "instigator," or that he knew Smith was working
for the Union, or that employees wanting a union should
go to work somewhere else, or that Respondent would be
glad to terminate employees desiring a union to facilitate
their working elsewhere.
In January, Margaret Smith told Daugherty that she
had received a telephone call from a Mr. Jernigan and
inquired whether Daugherty had asked Jernigan to do so.
Daugherty replied in the negative. Then Smith asked why
A & P was so much against the Union. Daugherty an-
swered that "we didn't need a union." Then Smith ob-
served that "actually the Union was a bluff in order to get
the salary increases and that [the employees] really did
not want a union, all they wanted was the money."
Daugherty replied that he thought they felt "this way"
and he also "felt the same way about that."
In April Daugherty received a telephone call from a
person requesting to speak to employee Mary Stegin in
the meat department. Daugherty asked Stegin over the
public speaker to answer the telephone. Soon Stegin told
Daugherty that the call was from one Owens or Owen
from A & P Store No. 74, and that she, Stegin, "was
getting sick and tired of receiving phone calls from other
employees." Daugherty agreed that he also did not like
his employees being bothered by telephone calls, but as-
sured Stegin he did not recognize the caller's voice.
Neither the name of Melvin Thompson nor Thelma Pitt-
man was mentioned in this conversation.
George Fleming, whom I find to be a supervisor under
Section 2(11) of the Act, is assistant manager of the Old
Shell Road store. About February, Thelma Pittman, an
employee of another A & P store "at the Airport Bou-
levard," and whom he knew for about a year, came to
Fleming at his store and "said she was going to talk to
some of the people" in the Old Shell Road store, and
also asked him if he knew employee Barbara Miller in his
store because Pittman wanted to be introduced to Miller.
A short time later he introduced Pittman to Miller and
then he immediately departed to perform work in an aisle
nearby. Although he could see Pittman talking to Miller,
Fleming was unable to overhear the conversation.
Respondent's supervisor of its Mobile district is
Claude Eugene Robinson. A conspectus of his testimony
follows. There are eight A & P stores in the city of Mo-
bile. In 1966 Robinson became aware that a union was
conducting an organizing drive at A & P stores in Mobile.
About 2 p.m. on October 7, he gave a talk concerning
this drive to employees at the Cottage Hill Road store by
reading a "speech several times to several groups of em-
ployees in the store." This speech is in evidence as
Respondent's Exhibit 3. Although said Exhibit 3 ,is dated
September 28, 1 find it was delivered on about October
7. Robinson read this speech "without variations" and
"without deviation to the end." Among other things this
document contains the following text:
WE DO NOT WANT A UNION IN THIS
STORE!
WE ARE GOING TO USE EVERY LEGAL
MEANS TO KEEP THE UNION OUT!
The remainder of said speech is decidedly antiunion; but
I find that none of its contents transcends Section 8(c) of
the Act which makes lawful the utterance or publication
of statements opposing a union. N.L.R.B. v. Threads,
Inc., 308 F.2d 1, 8 (C.A. 4). It was read to several groups
of employees that day.
When he finished reading, several questions were
asked of Robinson by employees. He answered them. In
comments made during this question-and-answer period,
Robinson said that "we could do without the Union, if at
all possible, in our stores, that we would use ever legal
means we had available to keep it out." This statement
was made to each group to whom Robinson read the
speech that day. Employees Mardra Atwell and Lotta
Mae Harris were among those in the groups which Robin-
son addressed.
At some point in his above remarks to the groups of
employees , Robinson "made the comment" that , "since
we didn't have the Union ... in any of [our] stores in the
Mobile area, ... anyone who desired to go to work in a
union store, certainly should leave, since there were
several stores in our city that was union already," and
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if he "was them [ he, Robinson ] would go where
there was a union store if I wanted to work under a
union ." But he did not say he would fire employees desir-
ing to work in a union store so that they could get a job in
a union store. And he did not "recall " saying that A & P
would spend hundreds of dollars, or any other amount of
money, to keep the Union out.
Early in October, Robinson spoke to Old Shell Road
store employee Margaret Smith about a wage increase.
Store Manager Ralph Daugherty was present . During the
conversation Robinson told Smith that he had hoped that
"the union situation had pretty well stopped ." Smith
replied that "from what she could understand , it was all
a big joke ." Robinson then asked Smith if she thought
"the telephone calls and the continual harassment of our
employees was a big joke." Replying, Smith asserted that
she did not know anything about it . But Robinson did not
refer to "instigators ," or about going to work somewhere
else, or that he knew Smith was "one of the instigators,"
or that Smith could go somewhere else if she wanted to
work for a union.
Around October 17, Robinson spoke to Margaret
Smith in a drug store where he "asked Margaret to help
us not to get into any further union trouble at that time."
Assuring Robinson that she was "not in it ," Smith
promised that she "would do everything she could to
help." But Robinson said nothing concerning Smith's not
having a job in 3 or 4 months , or about a union meeting,
or that he would get even with Smith even if it took 10
years to do it , or that Smith was an instigator , or that
Smith would be fired if she kept fooling with the Union.
Robinson does not remember speaking to employee
Margaret Smith on October 18, or any other day, about
employee Lois Bonds or Bond, or calling Bond a union in-
stigator, or asking Smith to "get [ Bond ] out of the
Union."
About January 17, Robinson again spoke to employee
Margaret Smith . Telling her that "unions were not good
for our stores," he added that if Smith "would just go to
New Orleans, where we have union in some stores and
work for approximately sixty days, that she could see the
reason that I [Robinson ] did not want a union in our Mo-
bile stores ." He also told Smith that "If someone wanted
to work at the union store, there were several stores in
Mobile that was union , and if it was me [Robinson] I
would leave A & P and go to work for one of the union
stores." But he did not say that if Smith wanted the Union
Smith could go somewhere else.
In February 1967, Supervisor Robinson had a conver-
sation with employee Hilda Keen at the Old Shell Road
store about the Union . In passing the time of day with
Keen , Robinson told her that he "wished she would get
out of the union situation and gave her the reasons why I
[Robinson ] hated to see it come into our store." He
added that "if there were strikes" some people "stood to
go without jobs" and those who were "breadwinners of
the family, could possibly be in pretty bad shape, as a
result of it." However , he thought Keen might not be af-
fected. Keen replied she "saw it another way." This
prompted Robinson to say that he hated to see Keen
"mixed up in it."
In October , Robinson spoke to Lotta Mae Harris "con-
cerning the Union ." First he told Harris he hoped that the
"threat" of the Union had about stopped . When Harris
replied that she thought it had and that she "wasn 't hear-
ing anything from it at this time," Robinson remarked that
he "was glad to hear that because we did not need a union
in the A & P stores." Harris "agreed" that "we" did not
need it. Continuing, Harris added that at the place where
her husband worked "they needed a union to help them."
Thereupon, Robinson told Harris that if she felt this way
about it "we would appreciate her helping with the other
employees in regard to it, if she would talk to others any-
time she chose." But Robinson does not recall mention-
ing Birmingham or a union at Birmingham in this conver-
sation or that he "didn't see how they could operate up
there."
About October 7 or 8, Supervisor Robinson talked
about an adjustment of salaries to Brenda Pigg, an em-
ployee of the Cottage Hill Road store, in the office of that
store. After telling Pigg that he had an increase in salary
for her, Robinson added that he "hoped the union situa-
tion had eased somewhat." Pigg replied that it had, that
she had not heard "any appreciable amount about it any-
more," and that she "did not feel like we needed a union."
Thereupon, Robinson told Pigg that, if she felt that way,
he would "appreciate her help with the other employees
in the store." But Robinson does not recall mentioning
the part-time boys. Moreover, he did not tell Pigg that she
was getting a raise because Store Manager Duplan said
that Pigg had influence with the part-time boys or that the
part-time boys could bring a union in because they could
be contacted at school, or that if the part-time boys came
to her she should tell them not to join the Union. How-
ever, he did tell Pigg that, if any employee discussed the
Union with her, Robinson "would appreciate her help in
talking against the Union."
About the time the wage adjustments were made in
early October, Robinson spoke to employee Mardra At-
well in the wareroom of the Cottage Hill Road store. At-
well asked him "what kind of setup we would be on for
the future." However, Robinson does not recall that the
Union was mentioned, or that he referred to Atwell as
one of the older employees, or that he told her he wanted
her to talk against the Union.
On cross-examination Robinson testified that, when he
made the speech in evidence as Respondent's Exhibit 3,
one employee asked if A & P would make wage adjust-
ments as it had in its New Orleans area stores. And he
further testified on cross that he asked "several" em-
ployees that he "would appreciate it if they would not get
into the Union."
Respondent also put on as a witness Joseph Duplan,
the manager of its Cottage Hill Road store. In February,
Duplan asked employee Brenda Pigg how Pigg felt
"about the situation." When Pigg replied "what situa-
tion ," Duplan said "you know what I mean ." Then Pigg
said that "if you mean the Union, I [Pigg] am not for the
Union." At this point Duplan stated that he "liked to find
out" because, in case he had to recommend someone for
the position of head cashier, he had to have "somebody
in the office that [he has] confidence in." He also told
Pigg that she was capable of acting as head cashier as she
had done the job before at Respondent's Navico Road
store. About February 20, employee Zettie Hankins was
appointed head cashier. However, Duplan did not tell
Pigg that he could not make her head cashier as long as
she was for the Union. And he does not recall that Pigg
mentioned her husband.
Some time after this, about February 17 or 18, Duplan
spoke to Pigg in the store's office in the presence of em-
ployee Mardra Atwell After Atwell and Pigg entered the
office they told him they had something to tell him. He
THE GREAT A & P TEA CO. 781
merely said "yes." Then Atwell and Pigg said they
wanted to let him know that "we are for the Union."
Duplan replied , "yes, I know," and asked , "Are you all
sure this is what you want?" When they replied that it
was, Duplan told them he was sorry they felt "that way"
and that he hoped they would not regret it "when it is all
over." They assured him, "we won ' t." But he did not
mention a union meeting to Atwell, or that he knew the
first union meeting Atwell ever attended , or that Pigg and
Atwell would be out of a job "after this was all over"
with, or that Pigg and Atwell knew what would happen in
3 or 4 months , or that Pigg and Atwell would be fired in
3 or 4 months.
Later that day Duplan again spoke to employee Atwell.
Mrs. Atwell told him not to "think we are mad and we
don't have no hard feelings at you [but] we feel the
Union can help us and also help you ." Duplan disagreed.
Then Duplan and Atwell discussed Duplan 's son and the
son's training at a "union school" in New Orleans. Fol-
lowing this Duplan again said that he thought that the
Union could "not ... help any ," whereas Atwell said she
thought it could help . But Duplan did not tell Atwell that
Atwell would be fired, or that Duplan guessed that Atwell
knew what would happen "when this was all over with."
Nor did Atwell make any comments to Duplan about
being fired, or that he could not have her fired for being
for a union if he was insinuating that she would be fired.
Duplan spoke to employee Lotta Mae Harris in the
store 's office about employee Cecil Gollette sometime in
October. First Duplan asked Harris if she knew that Gol-
lette had gone to work for National Food Stores. Then
Duplan added that although Gollette worked for National
Food Stores , Gollette " is in here passing out . . . union
cards to all our employees ." Harris professed ignorance
of Gollette' s distribution of such cards.
C. General Counsel' s Rebuttal Evidence
Employee Margaret Smith testified that in early Janua-
ry she told Supervisor Robinson she was for the Union
100 percent , but never stated to him that she did not want
the Union or was not in favor of the Union . However,
when in the previous August some employees sent a peti-
tion to the A & P office in New Orleans, Smith told
Robinson that Smith felt such employees were going over
Robinson 's head . Robinson replied that " it was a bluff'
and that "all the employees were using " Smith "to try to
get something." Smith said if the employees were "using"
her it was "beyond [her] knowledge ." But Smith never
mentioned the word "joke" in talking about the Union to
any supervisor.
Employee Brenda Pigg testified that she never in-
dicated to Supervisor Robinson or any other supervisor
that she was not in favor of the Union or that she did not
want the Union in the Cottage Hill Road store.
D. Concluding Findings and Discussion
1. As to conduct by Supervisor Claude Robinson
As found above , Robinson acts as Respondent's Mo-
bile district supervisor. In this capacity he engaged in
conduct intentionally calculated to undermine the Union.
Of course , merely to utter antiunion statements or to be
strongly opposed to a union is not an unfair labor practice
and I so find. N.L.R.B . v. Threads, Inc., 308 F.2d 1, 8
(C.A. 4). See Section 8(c) of the Act . However, some of
Robinson 's language exceeded permissible limits pro-
tected by Section 8(c) of the Act, and, therefore, con-
stitutes restraint , interference , and coercion forbidden by
Section 8 (a)(1) of the Act.
a. About October 4, Daugherty spoke to employee
Margaret Smith. To some extent the testimony of Smith
and Robinson coincides ; but in many respects Robinson
denies Smith 's account of this incident . I credit Smith.
Accordingly, I find that Robinson 's talk to Smith violates
Section 8 (a)(1) of the Act. See Cohen Bros. Fruit Com-
pany, 166 NLRB 88, that accusing an employee of
starting the Union is coercive.
b. About October 7, Robinson again talked to em-
ployee Margaret Smith . Again I credit Smith and do not
credit Robinson to the extent that Robinson denies
Smith 's version of this incident. I find that Robinson on
this occasion also violated Section 8 (a)(1) of the Act; but
I expressly find that none of the comments made by
Robinson in his speech delivered that day violates the
Act except for the statement described in the next sen-
tence . Kawneer Company, 164 NLRB 983, is
distinguishable . However, Robinson testified that he told
employees on this day that they "certainly should leave"
A & P if they desired to work in a union store, and that if
he were an employee and wanted a union he would leave
A & P to go to a store which recognized a union. In my
opinion , these statements , admittedly made by Robinson,
imply that it would be futile for a union to come into A &
P for A & P would not bargain with it. Stewart & Steven-
son Services , Inc., 164 NLRB 741, 744. Hence, I find
they are coercive.
c. About October 17, Robinson spoke to employee
Margaret Smith in a drug store . I credit Smith's version
of this conversation and thus find a violation of Section
8(a)(1) of the Act. Even on Robinson 's own testimony I
find a violation of the Act in that he asked Smith "to help
us not to get into any further union trouble at that time."
Patently, this amounts to soliciting Smith to refrain from
union activity. But in my opinion Section 8(c) does not
vest employers with immunity to ask employees to abjure
union activity. Gal Tex Hotel Corporation, 164 NLRB
482, fn. 1, upon which Respondent relies, does not
hold to the contrary. In my opinion , Ross Porta-Plant,
Inc., 166 NLRB 494, is distinguishable.
d. About October 18, Robinson again spoke to Smith.
I credit 'Smith' s version of this conversation. Ac-
cordingly, I find that Robinson 's language violates Sec-
tion 8 (a)(1) of the Act.
e. In the middle of January, Robinson spoke to Smith.
Again I credit Smith' s version of this incident although
Robinson 's does not widely diverge from some aspects of
Smith 's. However, I find that Robinson's remarks con-
cerning the New Orleans A & P stores and the effect of
a union contract at these stores are not coercive because
they are opinions protected by Section 8(c) of the Act.
Nevertheless, I find that the remainder of the talk is coer-
cive and transcends Section 8 (a)(1) of the Act.
f. About mid-February , Robinson spoke to employee
Hilda Keen. I find nothing in Keen 's account of this talk
which offends Section 8 (a)(1) of the Act as I find it
represents an expression of opinion by Robinson of what
happens when strikes occur. However, Robinson himself
testified that, among other things , he told Keen he wished
Keen "would get out of the union situation " and gave the
reasons therefor . I find that this amounts to soliciting an
employee to abandon the Union, and that such solicita-
tion is prohibited by Section 8(a)(1) of the Act.
g. In October or November, Robinson spoke to em-
ployee Mardra Atwell. I credit Atwell' s version of this
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation . Accordingly, I find Robinson's conduct is
coercive.
h. Robinson also spoke to Atwell a week or two before
or after the foregoing talk. I credit Atwell's version of this
talk, although Robinson in many respects confirms At-
well. Hence, I find a violation of Section 8(a)(1) of the
Act in this incident . It may be noted that Robinson
testified on direct that he requested some employees to
ask other employees to forsake the Union. It is my
opinion, and I find , this is coercive. Gal Tex Hotel Cor-
poration, 164 NLRB 482, fn. 1, cited by Respondent,
does not require a different conclusion Hence, I find that
on Robinson 's own testimony a violation of the Act is
revealed.
i In the first part of October , Robinson spoke to em-
ployee Lotta Mae Harris . Accepting the account thereof
as given by Harris, I find that Robinson's conduct is coer-
cive. In fact, Respondent 's brief (p. 23) admits that
Robinson told Harris that he "would appreciate her help-
ing with other employees with regard to [talking against
the Union], that she was free to talk to others any time
she chose ." In'my opinion this is coercive, and I so find.
Brandenburg Telephone Co., 164 NLRB 825, 827.
j About a week later Robinson again spoke to Harris.
I credit Harris as to what was said . However, I find that
the reference of Robinson to the A & P stores in Bir-
mingham , and his statement that he felt that the Union
could not help employees , are expressions of opinion pro-
tected by Section 8(c) of the Act, and, consequently, do
not violate the Act. However, I find coercive ( 1) Robin-
son's inquiry of Harris, whether Harris had heard
anything about the Union from any of the employees, and
(2) Robinson 's request that Harris talk against the Union
to other employees . In not crediting Robinson, I have
been guided not only by my observation of the demeanor
of Robinson and Harris on the stand , but also by the fact
that ( 1) Robinson engaged in a pattern of violations of
Section 8 (a)(1) of the Act and (2) the reasonable in-
ference that he followed that pattern or course of conduct
in speaking to Harris.
k. In early October, Robinson spoke to employee
Brenda Pigg in the presence of Store Manager Joe
Duplan. I credit Pigg's account of this conversation and
find that this incident is coercive . Benson Wholesale
Company, Inc., 164 NLRB 536, pp. 548.
2. 9+s to Supervisor Ralph Daugherty
Ralph Daugherty is manager of Respondent 's Old Shell
Road store.
a. About January 17, Daugherty spoke to employee
Margaret Smith . I find nothing coercive in Daugherty's
talk except the words " if [the employees ] would just get
out of the Union and give the Company time they would
get our raises for us." Daugherty's contrary evidence is
not credited . Hence, I find that Section 8(a)(1) was vio-
lated by the quoted words because they contain both a
promise of benefit to renounce the Union and a threat not
to raise wages if employees remained in the Union.
b. Daugherty also spoke to Margaret Smith in the
previous December. I find that his antiunion utterances
on this occasion are protected by Section 8(c) of the Act
because they imply neither threats nor promises of
benefits. Hence, I shall recommend that this aspect of the
complaint be dismissed.
c. Daugherty spoke to employee Mary Stegin at the
Old Shell Road store on a Saturday in early February.
Daugherty places this in April. I find that no part of
Daugherty 's statement is coercive , even crediting Stegin
in all respects . Hence, I recommend that this branch of
the complaint be dismissed . Stegin in all respects is
credited except as to the particular subject matter
described in the next paragraph.
In this same conversation , according to Stegin,
Daugherty mentioned that he received a telephone call
from Manager Thompson of the A & P Grant Street store
in which Thompson mentioned Thelma Pittman and a
"petition ." Daugherty denies that he referred to Thomp-
son or Pittman . On this segment of this conversation, I
credit Daugherty . This is because , in addition to my ob-
servation of the demeanor of Stegin and Daugherty, I
have difficulty in comprehending ( 1) why Daugherty
should refer to a "petition " without further describing it
or explaining its nature , and (2 ) why Pittman should be so
interested in obtaining but one signature to a petition al-
legedly contrived to ascertain the sentiments of all em-
ployees at the store.
3. As to Supervisor Joe Duplan
Joe Duplan is manager of Respondent 's Cottage Hill
Road store.
a. About the first week in February , Duplan spoke to
employee Brenda Pigg. I credit Pigg ' s account thereof,
and find that Duplan's conduct on this occasion is coer-
cive. In this connection it may be observed that Respond-
ent in its brief (p. 28) states that "Duplan admitted that
he asked Mrs . Pigg how she felt about the Union." I find
that this admission amounts to coercive interrogation
about the Union. It should also be noted that Respondent
concedes that Duplan , in considering Pigg for the nonsu-
pervisory job of head cashier , "had to know" whether
Pigg belonged to the Union , and asked her if she did,
because he had to have "somebody in the office that he
had confidence in." (Resp . br., p. 28. ) In effect this
amounts to disqualifying union employees for promotions
because Duplan had no confidence in them. Respond-
ent's argument that this does not amount to coercion is
not well taken in my opinion.
b. About February 18, Duplan again spoke to Pigg in
the presence of employee Atwell . In this respect I credit
Pigg and Atwell and find that Duplan's words to them
contravene Section 8 (a)(1) of the Act
c. Shortly thereafter on the same day (February 18),
Duplan spoke to Pigg alone , warning Pigg not to talk
about the Union on company time. I find that Duplan's
action is lawful and, therefore, no violations of the Act is
disclosed thereby. It is proper to forbid union activity
during working hours. And I find no violation in Duplan's
failure to answer Pigg's question as to why employee
Thelma Pittman was allowed to "pass the petition around
on company time." This is because no evidence was in-
troduced that Pittman circulated the petition during Pitt-
man's working hours. Hence, no disparate enforcement
of a valid rule is disclosed by the record.
d. On various occasions in October, Duplan asked
employee Harris if any of the employees had talked to
Harris about the Union. Duplan ' s denial thereof is not
credited. I find this is coercive. Filler Products, Inc. v.
N.L.R.B., 376 F.2d 369 (C.A. 4); Star Expansion Indus-
tries Corporation, 164 NLRB 563. Similarly, I find
coercive Duplan 's statement, in one of these talks to Har-
ris, that he knew that employee Pigg was working for the
Union. N.L.R.B. v. Ralph Printing and Lithographing
Company, 379 F.2d 687 (C.A. 8). On the other hand,
THE GREAT A & P TEA CO. 783
Duplan 's statement to Harris that Duplan "understood"
that former employee Cecil Gollette was one of the in-
stigators of the Union is not coercive, and I so find. This
is because Gollette was not an employees of A & P when
Duplan talked to Harris, so that no inference is
reasonably permissible that Duplan would or could im-
pose reprisals on Gollette.
4. As to the "petition"
Although I find that employee Pittman circulated a
petition to obtain signatures which ascertained whether
employees at the Old Shell Road store were for or against
the Union , I find that Respondent did not aid, abet, or
sanction its circulation . Nor do I find that Pittman did so
during her working hours. At most, the evidence dis-
closes that Pittman was introduced to employees by Su-
pervisor Fleming, but the record is barren of evidence
that Fleming was aware of Pittman ' s mission or the sub-
stance of the petition 's text . Accordingly , I recommend
that this aspect of the complaint be dismissed . The fact
that Pittman was allowed to call upon the store's em-
ployees falls short of demonstrating that Respondent was
aware of her purpose in speaking to them . Since Pittman
was not an agent or supervisor of Respondent , her con-
duct may not be attributed to it. The fact that Pittman was
once seen talking to Supervisor Robinson in the store's
office does not alter this conclusion.
Even if I credit employee Mary Stegin and find that
Old Shell Road Store Manager Daugherty told her that he
had received a telephone call from Manager Thompson
of the A & P Grant Street store , the foregoing conclusion
would not be altered . For Daugherty , as Stegin testified,
did no more than state that Thompson had inquired in
that telephone call if Stegin would be working on Friday
because Thelma Pittman wanted to know this so that Pitt-
man could bring the "petition " around . But I find that this
is insufficient to show that either Thompson or Daugher-
ty were cognizant of the language or purpose of the peti-
tion, or that they endorsed its circulation , or that they
ratified , or abetted , or even sanctioned Pittman's con-
duct.
Accordingly, I recommend that this part of the com-
plaint be dismissed.
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
described in section I, above , have a close, intimate, and
substantial relationship 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 certain
unfair labor practices prohibited by Section 8(a)(1) of the
Act, I shall recommend that it be ordered to cease and de-
sist therefrom and that it take certain action described
below , including the posting of the notice in the attached
Appendix, designed to effectuate the policies of the Act.
Since Respondent has engaged in extensive conduct con-
travening Section 8 (a)(1), I find that an Order is war
ranted enjoining not only the specific violations found but
also any activity which is prohibited by Section 8(a)(1) of
the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 458 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the conduct above found to be coer-
cive, Respondent has committed unfair labor practices
proscribed by Section 8(a)(1) of the Act.
4. Respondent has not committed any other unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this
case , it is recommended that the Board issue an Order
requiring that Respondent , its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees that Respondent will never have
a union in its Mobile, Alabama, stores.
(b) Telling employees to go or work elsewhere if they
want a union.
(c) Telling specific employees that they started the
union movement , or are instigators of the Union, or that
the Union is no good and will do the employees no good,
or that Respondent knows which employees are working
for the Union.
(d) Requesting employees to get out of or abandon
support of the Union, or to help stop the Union at
Respondent ' s Mobile, Alabama, stores or to speak
against the Union , or to request other employees to get
out of the Union, or to request other employees to work
against the Union.
(e) Threatening employees with loss of jobs , or denial
of promotions , or other reprisals for union membership.
(f) Coercively interrogating employees regarding their
and other employees ' union membership , activities, or
sympathies.
(g) Promising or granting wage increases or other
benefits to induce employees to abandon support of the
Union or to work against the Union.
(h) In any like or similar manner interfering with,
restraining , or coercing employees.
2. Take the following action designed to effectuate the
policies of the Act:
(a) Post at its stores at Mobile, Alabama, copies of the
attached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by Respondent's
authorized representative , shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
3 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
784 DECISIONS OF NATIONAL
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices 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.
(b) 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.4
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
4 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 Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT tell our employees that we will
never have a union in our Mobile, Alabama, stores.
WE WILL NOT tell our employees to go or work
elsewhere if they want a union.
WE WILL NOT tell any employee that he or she
started the union movement, or is an instigator of the
Union, or that the Union is no good and will do no
good for employees, or that we know which em-
ployees are for the Union. The Union is Local 458,
Retail Clerks International Association, AFL-CIO.
LABOR RELATIONS BOARD
WE WILL NOT request employees to get out of the
Union or abandon support of the Union , or to help
stop the Union at our Mobile, Alabama , stores, or to
speak against the Union, or to ask other employees
to get out of the Union , or to ask other employees to
work against the Union.
WE WILL NOT threaten employees with loss of
jobs, denial of promotions , or other reprisals for
union membership.
WE WILL NOT coercively interrogate employees
regarding their and other employees' union member-
ship , activities, or sympathies.
WE WILL NOT promise or grant wage increases or
other benefits to induce employees to abandon sup-
port of the Union or to work against the Union.
WE WILL NOT in any like or similar manner inter-
fere with , restrain , or coerce our employees.
All our employees are free to become, remain, or
refrain from becoming or remaining , members of Local
458, Retail Clerks International Association , AFL-CIO,
or any other labor organization.
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola) 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6361.