The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1959

124 N.L.R.B. 329 (N.L.R.B. 1959)

THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC.
DETERMINATION OF DISPUTES
329
On the basis of the foregoing findings, and upon the entire record
in these cases, the Board makes the following determination of
disputes, pursuant to Section 10(k) of the Act:
1. Local Union No. 188, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, and its agents, including Cecil
Pittman, are not and have not been lawfully entitled to force or
require E. J. McMahon Company to assign the work in dispute to
members of Local 188, rather than to McMahon's own employees.
Local 508, International Brotherhood of Electrical Workers,
AFL-CIO, and its agents, including W. J. Counihan, are not and have
not been lawfully entitled to force or require Carter Electric Com-
pany to assign the work in dispute to members of Local 508, rather
than to Carter's own employees.
2. Within 10 days from the date of this Decision and Determina-
tion of Disputes, Local Union No. 188, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL-CIO, and Cecil
Pittman, shall notify the Regional Director for the Tenth Region, in
writing, whether or not they will refrain from forcing or requiring
E. J. McMahon Company, by means proscribed by Section
8(b) (4) (D), to assign the work in dispute to members of said Re-
spondent Union rather than to employees of McMahon.
Within 10 days from the date of this Decision and Determination
of Disputes, Local 508, International Brotherhood of Electrical
Workers, AFL-CIO, and M. J. Counihan, shall notify the Regional
Director for the Tenth Region, in writing, whether or not they will
refrain from forcing or requiring Carter Electric Company to assign
the work in dispute to members of said Respondent Union rather than
to employees of Carter.
The Great Atlantic and Pacific Tea Company , Inc. and Retail,
Wholesale and Department Store Union , AFL-CIO. Cases Nos.
10-CA-3318 and 10-RC-3909. August 5, 1959
DECISION AND ORDER
On March 30, 1959, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, and recommending further that
the election held in Case No. 10-RC-3909 be set aside and a new
124 NLRB No. 41.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election held, as set forth in the copy of the Intermediate Report
attached hereto. He found further that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended that the complaint be dismissed with respect
thereto. Thereafter the Respondent and the Union filed exceptions to
the Intermediate Report, together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the additions and modifications
noted below.'
1. In finding, in agreement with the Trial Examiner, that the
Respondent violated Section 8 (a) (1) of the Act, we rely solely on the
following conduct: (a) Store Manager Jarnigan's threat to employee
Underwood during the last week in October 1957, in the context of
Jarnigan's statement that he knew Underwood favored the Union,
not to "mix his social and outside activities" because at his age it
would be difficult for him to get a job outside that territory in the
A & P Stores; (b) Store Manager Whitley's interrogation of em-
ployees, shortly before the election held on April 9, 1958, as to how
they intended to vote in the election, his threat to cut the hours of
part-time employees if the Union won the election, and his implied
threat of discharge in his statement to Black and Davis about 2 weeks
before the election; (c) Store Manager Bishop's threat to Dockery
and other employees about a week before the April election that if
they "voted the Union in the Company would shut down all stores in
the Knoxville area before they would sign a contract with them"; and
(d) Store Manager Hufstetler's threat to employee Kirby on March
29, 1958, that employees would lose their "two raises a year" if the
Union won the election. We also find, unlike the Trial Examiner, that
the Respondent violated Section 8 (a) (1) of the Act by Store Manager
Jarnigan's threat to employee Underwood, just prior to the December
1957 date originally set for the election, that the Respondent would not
sign a contract with the Union.
2. In view of the interference which, as found hereinabove, occurred
between March 21, 1958, the date of the second Direction of Election,
'Although not reflected in the Intermediate Report , the record establishes that Re-
spondent's annual gross volume of business exceeds $500,000.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. 331
and the date of the election, we shall adopt the Trial Examiner's
recommendation that the election be set aside and a new election held.2
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities as found hereinabove, occurring in connec-
tion with its operations as described herein and in the Intermediate
Report, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, The Great Atlantic
and Pacific Tea Company, Inc., its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Threatening employees with reprisals because of their union
,or concerted activities.
(b) Interrogating employees concerning their union affiliations
:and activity on behalf of Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization, in a manner con-
stituting interference, restraint, or coercion in violation of Section
:8(a) (1) of the Act.
(c) Interfering with its employees' rights to an uncoerced Board
election.
(d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to engage in, or
refrain from engaging in, any or all of the activities specified in
Section 7 of the Act, except to the extent that such right may be
:affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8(a) (3)
.of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its stores located in the city of Knoxville, Tennessee,
and the communities of Alcoa and Oak Ridge, Tennessee, copies of
the notice attached hereto marked "Appendix A." 3 Copies of such
notice, to be supplied by the Regional Director for the National Labor
2 We find no merit in the Respondent's contention that no new election should be
directed herein because more than a year has elapsed since the earlier election . Marion
Mills (Division of Mvnsingwear, Inc.), 124 NLRB 56.
3In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board, Tenth Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immedi-
ately upon the receipt thereof, and maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Notify the aforementioned Regional Director for the Tenth
Region in writing, within 10 days from the date of this Order what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the election held on April 9, 1958, among
employees in the Respondent's stores located in the city of Knoxville,
Tennessee, and the communities of Alcoa and Oak Ridge, Tennessee
be, and it hereby is, set aside, and that Case No. 10-RC-3909 be re-
manded to the aforementioned Regional Director for the Tenth
Region for the purpose of conducting a new election at such time as he
deems that circumstances permit the free choice of a bargaining rep-
resentative.
IT IS FURTHER ORDERED that the allegations of the complaint to the
effect that Respondent discriminatorily discharged Murl Householder,
Obia Underwood, Albert Turpin, Fred Hummel, Jr., and Frank Baker
be dismissed.
IT IS FURTHER ORDERED that the allegations of the complaint to the
effect that Respondent reduced the wages of employee Frank Baker
because he gave testimony under the Act be dismissed.
IT IS FURTHER ORDERED that the allegations of the complaint herein,
insofar as they allege that the Respondent has violated Section 8 (a) (1)
of the Act otherwise than as found above, be, and they hereby are,
dismissed.
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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT threaten our employees with reprisals because of
union or concerted activities.
WE WILL NOT interrogate our employees concerning their union
affiliations and activity on behalf of Retail, Wholesale and De-
partment Store Union, AFL-CIO, or any other labor organiza-
tion, in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
WE WILL NOT interfere with our employees' rights to an un-
coerced Board election.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. 333
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights to
engage in, or refrain from engaging in, union or concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection.
All our employees are free to become, remain, or refrain from becorii-
ing or remaining, members of Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor organization, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized by Section 8(a) (3) of the Act.
THE GREAT ATLANTIC AND PACIFIC
TEA COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDATIONS
ISSUES
The primary issues herein are (1 ) whether five named employees were discharged 1
because of their membership in, and activities on behalf of, Retail , Wholesale and
Department Store Union , AFL-CIO, herein called the Union or RWDSU, and be-
cause they engaged in concerted activities ; ( 2) whether The Great Atlantic and
Pacific Tea Company, Inc., Respondent herein , reduced the wages of Frank Baker
because he gave testimony under the National Labor Relations Act, as amended,
herein called the Act; (3) whether Respondent by the aforementioned conduct and
by interrogations , promises of benefit , threats of reprisal, and by prohibiting activities
on behalf of RWDSU while permitting activities on behalf of Retail Clerks Interna-
tional Association , Local Union No. 1557, AFL-CIO, herein called Retail Clerks or
RCIA , interfered with, restrained , or coerced employees ; and (4 ) whether an election
conducted on April 9, 1958, should be set aside and a new election held.
BACKGROUND
Pursuant to a Decision and Direction of Election, in Case No. 10 -RC-3909, issued
by the National Labor Relations Board , herein called the Board , on November 25,
1957,2 an election among the employees in Respondent 's stores 3 located in the city of
Knoxville, Tennessee, and the communities of Alcoa and Oak Ridge, Tennessee (in
nine stores ) was scheduled for December 11, 1957. Prior to the time set for the said
election, it was canceled . Subsequently a new date for the election was established.
The election was conducted on April 9, 1958 . There were 165 eligible voters and
163 cast ballots-76 for RWDSU, none for RCIA, 82 for no labor organization, and
5 challenged ballots. On or about April 14, 1958, RWDSU filed timely objections
to the election and on October 24, 1958, the Board directed a hearing on certain of
these objections ( objections 1, 2, 3, and 5 ).4 Meanwhile , on September 11, 1958, a
1 Murl Householder , Obia Underwood , Albert Turpin , Fred Hummel , Jr., and Frank
Baker.
2 119 NLRB 603.
2 Respondent is an Arizona corporation engaged in the operation of retail grocery stores
in various States throughout the United States including the State of Tennessee. This
proceeding concerns the stores in Knoxville , Tennessee, and vicinity.
4 Namely , that one of Respondent 's managers made promises of benefit to employees
if they voted against RWDSU , threats of reprisals if they voted for said union, that
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint issued in Case No. 10-CA-3318 charging Respondent with violations of
Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended,
herein called the Act. These cases were consolidated and a single hearing was held
before the duly designated Trial Examiner in Knoxville, Tennessee, on November
18, 19, and 20, 1958.
Murl Householder
Employee Murl Householder testified that about the middle of October 1957„
(whether before or after October 16-the cutoff date under Section 10(b) of the
Act-is not revealed by the record herein) the store manager of the Kingston Pike:
store (W. C. Bishop) called him on the telephone about 8 p.m. and told him Respond-
ent anticipated closing its Kingston Pike store (the store where Householder worked)
and moving to a new building directly in back of the location then in use and (Re-
spondent) was lining up "key help for this new store" and then
said he wanted to know how I felt before he stuck his neck out to put my name
in the pot for a key position in this store. He [Bishop] said, "I think I know
how you feel, but I just thought I would check again and find out if you are
going to continue working for the union or continue working for the company."'
Householder testified further that he told Bishop that he intended to continue his.
activities on behalf of RWDSU. There is no doubt that Householder was active on
behalf of RWDSU and that Respondent's officials, including Bishop, were aware of
this fact. Bishop so testified and denied that he ever called Householder and asked.
him how he felt about the Union. Since the record does not establish whether this.
alleged conversation occurred within the period of time covered by the allegations of
the complaint or within the period of time covered by the objections to the election,.
and since it is of little, if any, value in appraising Householder's termination of em-
ployment (hereinafter discussed), the Trial Examiner is not resolving this conflict.
Householder testified that around the last of October 1957, Store Manager Bishop,
came back to the back room where I was price-marking. He had a paper
in his hand. On the top of the paper he had $6.50. On the bottom of it he had.
$9.50. And he pointed to the $6.50 and said, "I just got a chart showing that.
most of the employees are going to get a wage increase." He said, "They've got.
you down here for $6.50." He said, "they have another boy in the store down
for $9.50. You've been here a little longer than he has. It made me mad when
I saw it but you were just getting $6.50." He said, "I could talk to Mr. Drennon
on this and get you $9.50-this other $3.00. I think you deserve it. If I can
find out what position you are going to take on this thing." I said, "You mean
for me to sell out the union, then." He said, "No. I don't want you to sell out.
I know the boys would feel hard at you. You could ease up a little." He said
"You could ease up a little. We don't want you to just stop. We know the
boys would feel hard at you." That's all I remember of the conversation.
According to Householder, he made it clear to Bishop at that time that he was not.
giving "up any of the union activities" and that he was going "to keep on just like"
he had been doing. On November 4, 1957, Householder received an increase of
$9.50. Bishop testified concerning this matter that "a blanket" increase came through
and he
took the piece of paper back and I [Bishop] sjiowed it to Householder and
I told him, I said, "there's going to be some of them coming around telling you
that they got more money than you did on your raise, and the reason is that you
had a break in service. Now, the office has picked you up where you came back
to work. Now, you had the experience, and I'm gonna see my supervisor and
see if I can't go back and let him give you back from the time you first started
so it will get you in this next bracket; because you are a good man and if anyone:
deserves it, you do.
Q. Did you intercede for Mr. Householder?
A. Yes sir.
Q. Did you get the raise?
A. Yes sir.
Q. Did he get the $6.50 or the $9.50?
A. He got the $9.50.
Respondent interrogated employees with respect to their voting intentions and that
Respondent discriminated against RWDS17 and in favor of RCIA regarding solicitation
and campaigning on company time and property. See 121 NLRB 1512.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY , INC. 335
In the light of the entire record herein, including Householder 's dates of employ-
ment with Respondent , Bishop's version of this conversation appears more probable
than that given by Householder and Bishop 's version thereof is credited by the Trial
Examiner.
Householder testified that on or about December 6, 1957, Store Manager Bishop
told him that if he (Householder ) dropped a complaint he then harbored concerning
some activities by some school teachers , he (Bishop ) in turn "wouldn't try to keep
anybody away from the meeting Sunday [a preelection meeting scheduled by the
RWDSU]. He wouldn't talk to any employees ." Bishop testified that Householder
accused him of putting "pressure" on an employee , through activities by some school
teachers , to vote against the union and that he (Bishop ) denied engaging in such con-
duct and then, in Householder 's presence , called the employee concerned and told
him to vote as he pleased . Householder 's version of this conversation is far from
clear and is not credited by the Trial Examiner.
Householder testified that around the first of the year 1958 Store Manager Bishop,
in the presence of employee Lynn Spangler , told him (Householder ) that he "was
going to have to straighten up and quit organizing the union . That it was interfering
with my work and so forth ." Bishop testified , as did Householder , that this conver-
sation concerned a shortage in inventory which he ( Bishop) was attributing to House-
holder. Bishop testified further that Householder 's excuse was that he "had too
many irons in the fire " because of his union activities and wasn't getting enough rest
and that he ( Bishop ) then told Householder he would have "to get enough rest to
where you can do your job." Employee Spangler testified that what he heard was
very short and all he heard was Bishop's telling Householder "that the inventory was
short, that he [Bishop ] was tired of protecting Murl Householder . He [Bishop] had
to think of W. C. Bishop ." In the light of the record herein , the Trial Examiner be-
lieves Bishop's version of this matter more probable than that of Householder and
credits Bishop 's version thereof.
In the early part of March 1958, • Respondent anticipated closing ( that month) its
Kingston Pike Store and moving to a new and larger building directly in back of the
location then in use. James Day, the produce manager at the store about to be
closed , had difficulties handling his job and, in anticipation of greater responsibilities
because of the larger volume expected in the new store, requested that he not be made
produce manager at the new store .5 His request was honored , thus leaving vacant
the position of produce manager at the new store . Day, however , remained in Re-
spondent 's employ as a price marker.
The store manager of the Kingston Pike Store , W. C. Bishop , considered House-
holder, a price marked in that store , one of the best employees that he had for dressing
up the produce department and keeping it attractive and had on 10 or more occasions
discussed with Householder the prospects of getting for him a produce manager's job.
Both Bishop and Householder were dissatisfied with the way Day handled this job.
When the produce manager's job was vacated by Day, Store Manager Bishop sought
this job for Householder but met with opposition from Respondent 's produce super-
visor, Jack Silas , who sought this job for the produce manager at the Broadway store
(for Bowden-also referred to in the record as Bowes and as Bolton ). On Thursday
morning, March 6, 1958 , Respondent 's general superintendent , Bagwell , settled the
dispute between Store Manager Bishop and Supervisor Silas as to who should be the
produce manager at the new store , by approving Bishop's recommendation that House-
holder be promoted to this job.
On the same date that Store Manager Bishop received the approval of General
Superintendent Bagwell , but after receipt thereof , Bishop informed Householder
that he (Householder ) was being promoted to the job of produce manager at the
new store . Householder 's salary at that time was increased from $66.50 to $75
per week.
Immediately after his lunch break on Friday, March 7 , 1958 , Householder told
Bishop, for the first time, that he did not want the job as produce manager at the
new store . There is a dispute as to what was said at this time. According to
Householder , he told Bishop he was declining the job and Bishop urged him to
reconsider the matter before coming to a definite decision , and remarked that he
(Bishop ) had personally interceded with his supervisors on his (Householder's)
behalf and that he (Householder ) would have to take the job or resign . House-
holder testified further that that afternoon he again told Bishop he did not want
the job and that on this occasion he told Bishop he was rejecting the job "because
I was active in the union at that time and would have to give up my union activities
s There is no evidence , direct or indirect , that this was not a bona fide request.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if I took the supervisory job." 6 Householder testified further that he told Bishop
he would "take the job, but refuse the title." Householder testified further that
Bishop urged him to take the job and told him that he would have to take it or
resign. According to Bishop, Householder told him he (Householder) was de-
clining the job and when he (Bishop) asked why, he (Householder) responded "well,
I didn't sleep a wink all night last night . . . There was ten boys calling me all
night. Every time I would try to go to sleep the phone would ring." Bishop testi-
fied further he told Householder that he (Bishop) was pleased with the way he
(Householder) was doing the job and that he urged Householder to reconsider.
Bishop testified further that late that afternoon Householder asked him why he
(Bishop ) would not fire him and he ( Bishop ) explained that his (Householder's)
services were badly needed and again urged Householder to reconsider his decision
about rejecting the job, but Householder declined. In the opinion of the Trial
Examiner , it is immaterial to the decision herein which version is accepted . Accord-
ingly, the Trial Examiner is not resolving this conflict . However, for the purpose
of decision herein , the Trial Examiner will assume, arguendo , that Householder's
version accurately reflects what occurred.
When Householder went to get his wages at quitting time on Friday, March 7,
1958, he noticed that his timecard bore a notation that he had become produce
manager effective March 6 , 1958, and that his pay for March 6 and 7, 1958, had
been computed on the basis of the wage rate for the produce manager . House-
holder immediately requested that these items be changed . His request was denied
with the statement that he would have to sign the record as it was at that time to
get his week 's wages. Householder then signed and received the amount computed
by Respondent.
Householder was not scheduled to, and did not, work on Saturday or Sunday,
March 8 and 9, 1958. On Monday March 10, 1958, Householder started per-
forming the duties of a price marker and was immediately told to start working
on the produce stock as the produce manager . Several times thereafter he was
told to take over as produce manager but refused to do so. There is a dispute as
to what finally happened at that time . According to Householder , Bishop told
him he (Bishop) was tired of fooling with him (Householder) and that he should
either take the job or "get the hell out of the store" and he (Householder) then
left the store ( and Respondent 's employ ). According to Bishop , Householder
pulled his apron off and said he wanted to fill out a termination form but refused
to sign such form because it bore a notation that he (Householder ) had volun-
tarily quit and at that point he (Bishop ) suggested that Householder leave the
store and think the matter over and come back in an hour and take the job as
produce manager . Bishop testified further that Householder then left the store
and never came back. The Trial Examiner believes a resolution of this conflict of
evidence unnecessary to decision herein . However, for the purpose of decision the
Trial Examiner is assuming , arguendo , that Householder 's version is an accurate
reflection of what occurred.
The record herein does not warrant a finding, based on facts or on inference,
that Responent created the vacancy anticipating that Householder would decline the
job and that Respondent could thereby rid itself of an active union adherent and
does not warrant a finding that Bishop in insisting that Householder accept the job
of produce manager or leave Respondent 's employ was motivated by antiunion
considerations. True there was a difference of treatment accorded Day, but Day
had demonstrated a lack of ability to handle the job of produce manager-House-
holder had demonstrated the opposite . In any event , the record is silent as to
whether Day was a union adherent and the record is such that an inference either
way-that Day was an active union adherent or that he was not-may be drawn.
Viewing the facts found in this report in light most favorable to the General
Counsel it appears that Householder had shown a desire to become a produce
manager, that such a job became available and Householder was offered this job
and declined to accept it, that Respondent 's business required that this job be filled
expeditiously, that Store Manager Bishop personally interceded with his superiors
on behalf of Householder, that because of Bishop's personal intercedence House-
holder was offered the job, that Householder thereafter declined to accept the job
because it was supervisory in nature and would require him to forego his union
activities, that Store Manager Bishop insisted that Householder accept the job or
6 As noted at the outset of this report, an election was held April 9, 1958. The Board in
the Decision and Direction of Election issued November 25, 1957 (119 NLRB 603) ruled
that produce managers are supervisors and excluded them from the voting unit.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. 337
leave Respondent's employ, that Bishop's insistence was not motivated by anti-
union considerations but rather by business necessity and personal pride, that
Householder chose the latter of the alternatives offered by Bishop, and that the
job which Householder was offered was not deliberately created as a means of
ousting a union adherent. Under these circumstances it is believed that the General
Counsel has failed to show by a preponderance of evidence that Householder was
discriminated against within the meaning of the Act. Furthermore, to require
Respondent to reinstate Householder to his job as a price marker (which is what the
General Counsel seeks) would amount to a holding that the Act gives to employees
(Householder herein) the right to work upon terms prescribed solely by them.
Clearly no such construction of the Act is warranted.
Obia Underwood
Employee Underwood testified that he signed a card on behalf of RWDSU on
June 24, 1957, and that in July or August 1957 (more than 6 months prior to the
filing of the charges herein), R. V. Jarnagin, store manager of the Chapman
Highway Store (the store where Underwood worked), said to him "I don't believe
that it's true. The Union is a damn lie. They said you signed a union card." I
[Underwood] said "you didn't have to call them that, because I did." Jarnagin
did not testify concerning this matter. No finding is made herein that this conversa-
tion violated the Act. Presumably it was offered to show that Respondent was
aware that Underwood was a member of the RWDSU prior to the termination of
his employment.
Underwood testified that sometime in July or August 1957 (more than 6 months
prior to the filing of the charges herein), following a RWDSU meeting, Store
Manager Jarnagin asked him to supply the names of employees at the meeting and
he refused except that he did give Jarnagin his (Underwood's) name as one of those
present. Jarnagin did not testify concerning this matter. Here again, it is be-
lieved that this evidence was offered as proof that Respondent was aware of
Underwood's union activities and no finding is made that this interrogation violated
the Act.
Underwood testified that in August 1957 (more than 6 months prior to the filing
of the charges herein), Area Supervisor Drinnen asked him how the Union was
coming along and when he (Underwood) answered "fine" said "well, I guess you
know what you are doing" and then told him (Underwood) that he guessed
Underwood knew that he could "get fired for your activities." Underwood testified
he asked Drinnen "under what circumstances" and Drinnen replied "for taking a
break too long." Drinnen did not testify herein. No finding is made that by this
conduct Respondent violated the Act since it did not occur within the times mate-
rial to the allegations of the complaint or the Objections to the Election.
Underwood testified during the last week in October 1957, Store Manager
Jarnagin said he (Jarnagin) knew that Underwood was for the Union and then
said:
"You have got quite a bit of time with the Company. You have got age on
yourself. You are in your forties, I presume." I said, "Yes, I am forty-one."
And he said, "Don't mix your social and outside activities. You are going to
have to cease those. In your age bracket it's going to be hard for you to get a
job outside this territory in the A & P stores."
Jarnagin did not testify concerning this matter. The Trial Examiner considers this
a threat of reprisal against Underwood because of his union activities and a viola-
tion of Section 8(a)(1) of the Act and so finds.
Underwood testified that during the last part of October or the first week in
November 1957, Store Manager Jarnagin approached him at his work area and
promised him an extra increase in pay if he would work for the Company instead
of the Union and that he (Underwood) told him (Jarnagin) that he would not turn
traitor on the Union. Underwood testified further that about an hour and a half
later Assistant Store Manager Y. T. Holman suggested that he "wash his hands" of
the Union since the Company and Jarnagin, not the Union, could promote him.
Jarnagin denied any such conversation occurred. Holman did not testify herein.
Underwood's testimony concerning this matter is far from clear and the Trial
Examiner rejects it.
Underwood testified that before the Board's Decision and Direction of Election
(119 NLRB 603) was handed down Store Manager Jarnagin asked him why "didn't
5 25543-60-vol. 124--23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we get the Retail Clerk's Union signed up," he said , "We have it in Atlanta under
contract,7 and I'm sure it's a good union. We could get it without even a vote."
I (Underwood) said "I don't want that union ." Jarnigan did not testify concerning
this matter. Since the record does not establish whether this conversation occurred
within the period 6 months prior to the filing of the charges herein , the Trial
Examiner rejects it as evidence of a violation of the Act.
Underwood testified that just prior to the election date in December 1957,
Jarnagin told him that Rankin (vice president of Respondent) had said the Com-
pany "wouldn't sign the contracts with our union." Underwood did not give any
further particulars concerning this conversation. In view of the isolated nature of
this evidence the Trial Examiner makes no finding. that by these remarks Respondent
violated the Act.
Upon Householder's declination of the job as produce manager at the Kingston
Pike store, Respondent offered this job to its produce manager at its Broadway store
(to Bowden), and he accepted it thereby creating a vacancy at the Broadway store.
The Broadway store vacancy was filled by transferring the produce manager from
Respondent's Magnolia Avenue store thereby creating a vacancy at the Magnolia
Avenue store. The events herein concern Respondent's efforts to get Underwood to
accept the job of produce manager at the Magnolia Avenue store.
Underwood had long been an employee of Respondent. In the years past he
had been a produce manager, however, for some reason not disclosed by the record
herein, he had been relieved of his duties as produce manager. Nevertheless, his
salary had not been cut when he was reduced in rank and, at the times material
herein, his pay was substantially more than the other nonsupervisory employees in
the area.
Respondent has a program known as Potential Promotee Program under which
it endeavors to keep a current list or pool of prospects for promotion to key position.
On or about March 6, 1958, Underwood was interviewed by Respondent's personnel
manager (George Stovall) in connection with this program and, with his consent
and approval, was made a member of this promotion pool.
About March 13, 1958, Respondent's personnel manager (George Stovall) and
area supervisor (S. T. Mosher), asked the store manager at the Chapman Highway
Store (R. V. Jarnagin), if he thought Underwood (a clerk in that store), would be
capable of operating a produce department. Jarnagin replied in the affirmative.
Underwood was then sent for and offered the job of produce manager at the
Magnolia Avenue store and was told that he was to take charge of that department
the following morning at an increased wage. Underwood said he wanted time to
think it over and Mosher told him that he was needed right away and that he was
to be there in the morning to take charge. Underwood stated he would run the
department as a produce clerk, but that he would not assume the responsibilities of
manager .8 He was then told to run the department for 2 months and that if at the
end of that period he was not satisfied Respondent would see what could be done.
That night (around 8 o'clock), Underwood telephoned Store Manager Jarnagin and
told him he (Underwood) had talked the matter over with his wife and that he
was declining the job as produce manager. The following morning Underwood
went to the Chapman Avenue store and told Store Manager Jarnagin he had
decided not to take the produce manager job under any circumstances and that
he wanted his termination papers.9 The papers were already filled out and under
reason for termination bore the notation "transferred to Magnolia Avenue Store,
refused the produce manager's job." Underwood then refused to sign these papers
and left Respondent's store and employ.10
As indicated above, the record does not warrant a finding, based on facts or on
inference, that the vacancy at the Magnolia Avenue store was deliberately created as
a means of doing away with Underwood or that Underwood was offered the job
7 Respondent has 'a contract with RWDSU at its Atlanta warehouse. The record does
not reveal whether it also has a contract with RCIA covering employees in its Atlanta
stores.
8 Underwood believed that if he accepted the title he would be excluded from the bar-
gaining unit. The Board had so ruled in 119 NLRB 603.
8It had been made plain to Underwood by Respondent's officials on the preceding day
that he would not be retained in his former job of grocery clerk.
10 Underwood's testimony is not entirely consistent with the findings made in this sec-
tion of this report, and insofar as it is inconsistent with these findings of fact is not
credited by the Trial Examiner.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. 339
of produce manager in anticipation that he would decline such offer and thereby
afford Respondent an opportunity to rid itself of an active union adherent."
As noted above, the facts concerning Underwood are similar to those concerning
Householder. Underwood had demonstrated an ability to handle the job of produce
manager and had shown a desire for such a job. Such a job became available in
due course and Underwood left Respondent's employ rather than accept such job.
The record does not warrant a finding that Underwood was offered this job in bad
faith. It appears to the Trial Examiner that Underwood was free to follow the
course of action which he did follow and leave Respondent's employ rather than
accept a job outside the bargaining unit. But, it also appears to the Trial Examiner
that, so long as Respondent was not motivated by a desire to rid itself of Underwood
for antiunion reasons, it was free to follow the course of action it followed and
insist that Underwood accept the job or leave its employ. Further, in the opinion
of the Trial Examiner, Respondent was not motivated in its actions towards Under-
wood by a desire to rid itself of an active union adherent. Accordingly, the Trial
Examiner recommends that the allegations of the complaint to the effect that the
Respondent discriminated against Underwood be dismissed.
Albert Turpin
Employee Albert Turpin, an active RWDSU member, testified that around August
1, 1957, Store Manager Jarnagin (manager of the Chapman Highway store where
Turpin worked as a produce clerk) asked him how he felt about the Union represent-
ing the workers and that he gave Jarnagin a noncommittal answer. This testimony
was taken subject to a motion to strike which is now denied. It was not offered as
proof of violation of the Act-merely as tending to show Respondent's interest in
and awareness of RWDSU activities-and Respondent offered no evidence in
rebuttal thereof.
Turpin testified that about September 6, 1957, (more than 6 months prior to the
filing of the charges herein) Store Manager Jarnagin again asked how he felt about
the Union and that on this occasion he told Jarnagin he was for the Union and
Jarnagin then said, "things will not be easy for you from here on out." This
evidence was also offered only as proof of knowledge-not as proof of violation of
the Act-and Respondent offered no evidence on rebuttal thereof.
Turpin testified that on or about October 25, 1957, Store Manager Jarnagin told
him about a raise in pay that he had been asking about and remarked that the raise
had been obtained without "any union dues" and asked him if he could not "see the
Company's side of the matter." Jarnagin testified he told Turpin about the raise
and that he also told Turpin that he believed that the employees would feel the
Company was trying to do its very best. Neither version of this conversation is
clear but, apparently, both Turpin and Jarnagin agree that Jarnagin was inferring
that the raise had been secured without union intervention and that Turpin should
take this into account in determining whether to remain active in the Union (the
RWDSU). There is no allegation herein that the raise constituted a violation of the
Act and the Trial Examiner believes and finds that under the circumstances revealed
by this record the above-noted conversation does not constitute a threat of reprisal
or promise of benefit or an unlawful solicitation to an employee that he abandon his
union activities. Accordingly, no finding is made that by this conversation the Act
was violated.
Turpin testified that around the first of November 1957, Arthur Brewer, produce
manager at the Chapman Highway store, told him that if part-time worker Charles
Chambers did not "change his mind on the Union" Chambers would be changed from
the produce to the grocery department and his (Chambers) days of work would
be reduced from 3 to 1 day per week and asked him (Turpin) to talk to Chambers
and "try to persuade him not to work for the Union. Not to show his feelings
about the Union." Turpin also testified that Produce Manager Brewer through
November and December 1957 and January 1958, constantly interrogated him as
to who attended union meetings and what took place at these meetings and that on
December 7, 1957, Brewer told him that he (Turpin) would get hurt if he "con-
tinued with the Union because a lot of people were going to get hurt on account of
the Union." Turpin also testified that Sunday, February 2, 1958, a strike vote was
taken and that about that time Produce Manager Brewer told him he knew how he
was going to vote and that he (Brewer) would have someone there to kill his vote
"The Trial Examiner is cognizant of the testimony of Albert Turpin hereinafter dis-
cussed, but for reasons indicated rejects such testimony.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that Brewer told him because he belonged to the Union was no sign that he could
not be fired-that he could be replaced-and that Brewer also said "what do y'all
want RWDSU for anyway? The retail clerks will get in without an election."
Turpin testified further that on Monday, February 3, 1958, Brewer interrogated him
about what had occurred at the meeting and remarked that he (Brewer) hoped that
Turpin was not "as crazy as Obia Underwood and Bob Ogle in the back room. They
don't want their jobs." Brewer denied making the statements attributed to him
by Turpin and testified he took a neutral position concerning the Union and did no
more than listen to Turpin's frequent talks in favor of the RWDSU. Brewer appeared
to be a more reliable witness than did Turpin. Furthermore, Turpin's testimony, in
addition to not -being clear, is in some instances inconsistent and in other instances
corroborative of Brewer's testimony. Appraising Turpin's testimony in the light of
the entire record and in the light of probability leads the Trial Examiner to believe
that Turpin overreached himself with respect to this matter. The Trial Examiner
credits Brewer's testimony noted above rather than that of Turpin.
On Saturday, March 8, 1958, Store Manager ^Jarnagin told Turpin that he was
being laid off because of lack of work and that his duties would be taken over by a
returning veteran-the veteran whom Turpin had replaced when the veteran
entered the Armed Forces. The record herein reveals that in fact there was a
decline in Respondent's business at this store sufficient to justify a reduction in force,
that Turpin was junior in seniority standing and that Turpin was replaced by the
returning veteran whom he had replaced. However, Turpin's wife, also a former
employee of Respondent, testified that Nathan Helms, store manager of Respondent's
Market Street store, told her, about a week after Albert's layoff, that he had been
laid off because of his union activities, thus raising a question as to the real motive of
Respondent in laying off Albert Turpin. Helms testified that Mrs. Turpin told
him that Albert had been laid off and asked him if it was because of his union activi-
ties and that he (Helms) answered he did not know why Albert had been laid off
but that if he neglected his work to engage in union activities he could have been
laid off for that reason. In the light of the entire record herein, including the fact
Helms had nothing to do with the layoff of Albert Turpin, Helms' version of this
conversation appears more probable than that of Mrs. Turpin and is credited by the
Trial Examiner.
Frederick J. Hummel, Jr.
Around the first of November 1957, Store Manager H. J. Huffstetler (manager of
the Alcoa Store where Hummel worked as a produce clerk) told Hummel, an active
RWDSU member, about a raise in pay and reminded him that the Company-not
the Union was giving the raise. Hummel acknowledged this fact and added there
were other things he hoped "to obtain through organized labor, such as job security,
job classification."
The day before a strike vote was taken 12 Store Manager Huffstetler told Hummel
"to do the right thing. You know that if you go over there and vote to strike, it will
be a wildcat strike. You'll be quitting your job, or leaving your job and your job
will be open for replacement."
About March 5, 1958, Hummel was told by Store Manager I-Iuffstetler that he
was being laid off at the end of the week (on March 8, 1958), because of lack of
work. Hummel asked for part-time work which was declined with a remark that
to give him part-time work would defeat Huffstetler's purpose-which the record
reveals was to reduce man hours to where there was the ratio which Respondent
sought to maintain between gross receipts and employee hours. The record herein
reveals that in fact there was a decline in Respondent's business at this store sufficient
to justify a reduction in force and that Hummel was the junior in seniority standing.
Since Hummel's layoff no full-time employees have been hired other than a clerical
worker in the office for bookkeeping, which Hummel was not qualified to do.
Some part-time employees, such as package boys and checkers have been hired.
Huffstetler testified that he did not consider Hummel for these part-time jobs because
"he has a family and I couldn't give him enough hours to live on." The evidence
herein does not warrant a rejection of this testimony by Huffstetler-if anything
it tends to establish that Huffstetler was following company policy of not changing
the status of full-time employees with a family to that of a part-time employee-and
without a rejection thereof the evidence does not support the allegations of the com-
plaint with respect to Hummel.
12 The record reveals that a strike vote was taken on February 2, 1958.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. 341
Frank Baker
There are two issues concerning Baker ( 1) whether from on or about October
16, 1957, until on or about November 29, 1957, his hours of employment were
reduced because "he gave testimony under the Act" at a hearing in Case No . 10-RC-
3909 on August 8, 1957, and (2) whether he was laid off between November 29,
1957, and May 8, 1958, because of activities on behalf of RWDSU. Determina-
tion of these issues depends primarily upon whether Baker 's version or Store Manager
W. K. Silvers ' version of the following conversation is credited.
Baker testified that about the middle of December 1957, Store Manager Silvers
(store manager of the Oak Ridge store , where Baker worked as a produce clerk)
sent for him and told him that if he (Baker ) was "a retail clerk man" he would
probably still have his job and that he ( Baker ) responded he was RWDSU and
was going to stay that way. Store Manager Silvers testified that employee Myrtice
Patterson told him that Baker was circulating information to the effect that he
(Baker ) had been laid off because he was working for the retail clerks union and
that he sent for Baker to interrogate him about this matter. Silvers testified further
that he confronted Baker with this information and Baker denied engaging in such
conduct. On the basis of observations of witnesses and analysis of the record herein
the Trial Examiner believes that Silvers was a more reliable witness than Baker.
Furthermore , in the light of the entire record herein Silvers ' version of the above-
noted conversation appears more probable than that of Baker. The Trial Examiner
credits Silvers ' version. Since the allegations of the complaint concerning Baker
depend upon acceptance of his version of the above -noted conversation and since
the Trial Examiner rejects his version the Trial Examiner recommends that these
allegations be dismissed.
Interference , Restraint , or Coercion
The complaint herein alleges that Respondent interfered with , restrained, or coerced
employees on various dates beginning on October 30, 1957. Much of the evidence
pertinent to these allegations has been discussed in the preceding sections of this
report and will not be repeated here. However, it is now noted that of the fore-
going conduct only the threat of reprisal made by Store Manager Jarnagin to
employee Underwood during the last week in October 1957 , is found to be violative
of Section 8 (a) (1) of the Act.
Shortly prior to the election of April 9, 1958, Leroy Whitley (store manager of the
Fountain City store ) confronted the employees under his supervision with a list
of employees bearing a notation opposite each name indicative of their (the
employees ) attitude toward union membership . In those instances where Whitley
was not reasonably sure as to how the employees would vote in the coming election
he (Whitley ) asked them how they intended to vote. On one occasion (between
March 12 and April 9, 1958 ) Whitley asked employee Bonnie Field what she thought
the outcome of the election would be and , upon receiving her answer that she did
not know, told her that he had talked with the part -time employees and that they
were against the Union and then remarked "they had better be because I [Whitley]"
will "cut their hours" of employment if the Union wins the election.
About 2 weeks before the election Whitley discussed with employees Black and
Davis the coming election . In the course of that conversation Whitley told Black and
Davis they did not need a union and were wasting their money paying union dues,
that the RCIA was a better union than the RWDSU , that the RWDSU was a com-
munist outfit and, in answer to Black's statement that they (Black and Davis) did
not want the RCIA, stated that "some others felt the same way [they] did and they
were not there anymore."
Shortly before December 11, 1957 (as noted above the election in Case No. 10-
RC-3909 was originally scheduled for December 11, 1957 ), Store Manager Nathan
Helms (store manager of the Market Street store ) showed employee Peggy Turpin
a sample ballot and remarked that he preferred that she vote "neither" but that if
she would not do that then that she should vote for the RCIA. About a week
before the election held on April 9, 1958 , Helms again suggested that Turpin vote
"neither" and on this occasion told Turpin the RWDSU was a communist outfit.
About 2 weeks before the election on April 9, 1958, Store Manager Bishop (store
manager of the Kingston Pike Store ) approached employees Thomas Dockery and
Warren Wilson and asked if they had heard the latest and when they answered "no"
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told them the RWDSU was a bunch of communists and that they should "get out
while the getting was good." About a week before the election Bishop told Dockery
(and other employees) that if the employees "voted the union in, that the company
would shut down all stores in the Knoxville area before they would sign a contract
with them." 13
On March 29, 1958, Store Manager H. J. Huffstetler (store manager of the Alcoa
store) told employee William Kirby that if the Union won the election (scheduled
for April 9, 1958) his "two raises a year" would not be forthcoming. On or about
April 3, 1958, Huffstetler again tried to persuade Kirby to drop his activities on
behalf of the RWDSU and on this occasion suggested "a decent union" like the
RCIA.
As noted at the outset of this report, the complaint and the objections of the
election allege that Respondent discriminatorily permitted the Retail Clerks to
solicit in its stores. There is no direct evidence that Respondent authorized the
RCIA to engage in such conduct or denied such permission to the RWDSU. Further-
more, from the circumstantial evidence, based upon the entire record herein, it is not
clear that Respondent authorized or permitted such activities by the RCIA and pro-
hibited such activities by the RWDSU. In any event, as noted above, the Trial
Examiner has found ample evidence of conduct violative of Section 8(a)(1) of the
Act. Further findings of such additional conduct are not necessary. See Murray
Ohio Manufacturing Co., Lawrenceburg, Tennessee Division, 122 NLRB 1306,
footnote 5.
A question now arises as to whether a speech urging employees to vote "neither"
in the coming election by Respondent's vice president on April 7, 1958, adequately
repudiated and disavowed the coercive conduct involved herein and created an at-
mosphere conducive to the sort of free and untrammeled choice of representative
that is contemplated by the Act. Clearly it did not. Respondent has not, in Vice
President Rankin's speech or otherwise, repudiated and disavowed the coercive con-
duct found above and has not brought home to its employees that its supervisors were
not acting for Respondent in engaging in the aforementioned coercive conduct.14
The Trial Examiner believes and finds that by the conduct referred to in this
section of this report Respondent violated Section 8(a)(1) of the Act, and inter-
fered with the election and deprived the employees of their freedom of choice.
Accordingly, the Trial Examiner, in addition to the usual remedy for 8(a)(1) viola-
tions, recommends that the election be set aside and another election held.
ULTIMATE FINDINGS AND CONCLUSIONS
In view of the foregoing and upon the entire record in these matters, the Trial
Examiner makes the following findings of fact and conclusions of law.
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. RWDSU and RCIA are labor organizations within the meaning of Section
2(5) of the Act.
3. The evidence adduced establishes that Respondent interfered with, restrained,
or coerced employees in the exercise of rights guaranteed in the Act by interrogating
employees as to their union activities, and by threats of reprisal or force, and thereby
violated Section 8(a) (1) of the Act.
4. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The evidence adduced establishes that Respondent interfered with the election
and deprived employees of their freedom of choice.
6. The evidence adduced does not establish that Respondent discharged Murl
Householder, Obia Underwood, Albert Turpin, Fred Hummel, Jr., and Frank Baker
because of their union or concerted activities.
7. The evidence adduced does not establish that Respondent reduced the wages of
Frank Baker because he gave testimony under the Act.
[Recommendations omitted from publication.]
is Based upon the testimony of Dockery which is corroborated in part by Bishop.
However, Bishop testified he said the Company would not sign a closed-shop contract.
14 See Drennon Food Products Co., 122 NLRB 1353 and case cited therein.