The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1971

192 N.L.R.B. 645 (N.L.R.B. 1971)

GREAT ATLANTIC & PACIFIC TEA CO. 645
The Great Atlantic & Pacific Tea Company, Inc. and
Retail Clerks International Association , Local 458,
AFL-CIO . Cases 15-CA-3811 and 15-RC- 317
August 13, 1971
DECISION, ,ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 8, 1971 , Trial Examiner Davis S.
Davidson . issued his ,Decision in the above -entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that, it cease and desist therefrom
and take certain affirmative action,, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found - that the Respondent had not engaged
in certain other unfair labor practices alleged in,the_
complaint, and recommended that such allegations be
dismissed . In, addition, -the Trial Examiner found that
the conduct of the Respondent had interfered with the
election held in -Case 15-RC-4317 and recommended
that said election ' be set aide and a new election
ordered
.'
Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision and briefs in support thereof. The Respon-
dent filed an answering brief to the General Counsel's
exceptions and the Charging Party filed an answering
brief to the Respondent's exceptions.
Pursuant to the '- provisions of Section 3(b) of the
National Labor Relations ' Act, as amended, the
National Labor - Relations Board has delegated its
powers in connection with these cases 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 these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.
We do -not agree with, the Trial Examiner that in the
circumstances of these cases the Employer's withhold-
ing of the wage increases was a violation of Section
8(a)(1) of the Act.
The -evidence relied ,.upon .by the Trial Examiner
consists of several previous wage increases that were
granted to the employees and the fact that the
employees might-have received another -raise at about
the time the election was to take place.
The Respondent points to the outstanding court
order' enforcing the Board's-earlier decision2 involy-
ing the Mobile area stores and the fact that it acted
pursuant to advice of counsel as special justification
for its decision, to, withhold, the increases. -The
Respondent also contends that it was entitled to
withhold the wage increases because it could not point
to any specific, date when it gave increases in the past
and could not point to any specific amount of,increase
that it normally granted.
It is true that Respondent had not given increases
on the same-date each year in the past, although it had
in the previous years granted increases soon after they
,became effective under the National Food Stores
agreement. Upon the advice of its attorneys of the
possible effects of the court decree; Respondent gave
.no general pay increase during the course of the
Union's campaign. Its supervisors were instructed not
to discuss with employees the reasons why such a pay
increase was not being effectuated at that time. When
,the petition in the instant case was,filed, a Mobile
wage survey had not begun and no decision had been
reached concerning a wage increase.-The decision not
to give a wage increase during the organizational
campaign was based on the absence of a provable
pattern of the amount or time of an increase in the
Mobile area. Since Respondent could not designate
any particular date or amount for a wage increase
which could be definitively shown, as that which
would have occurred absent the campaign, it decided
against giving any increase.
The Trial Examiner recognized that Respondent
could lawfully withhold any action on a wage increase
during the union campaign, based upon its desire to
void the appearance of interference and the commis-
on of an act which would be considered an unfair
abor practice. His only basis for his conclusion that
unfair labor practice had been committed was that
espondent made no announcement to the employ-
that its policy had changed andthat the employees
ould receive the raise regardless of how they voted in
the election.
Respondent had made no prior promise of a wage
increase. Employees simply were aware that
`4increases had been given in the spring in previous
to the Trial Examiner, we do `notears." Contrary
f d that Respondent had an affirmative duty under
e facts in this case to explain a postponed wage
crease that never had been promised, where no
specific date could be set for a wage increase because
ere was no established past-practice from which it
uld be concluded with any degree of certainty when
al wage increase would have _ been given., It is not
' N.LRB. v. The Great Atlantic & Pacific Tea Company, 408 F.2d 374 tq abandon support of the Union or to work against the union.
(C.A. 5,-1969). The relevant portion of the order barred Respondent from 2 167 NLRB 776.
promising or granting wage increases or other benefits to induce employees
192 NLRB No. 83
DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
unlawful per se for an employer to deny wage
increases during a union organizational drive, for
otherwise: it may be-accused of attempting to
influence employees to decide against being repre-
sented by a collective-bargaining representative.
Thus, an employer's action in postponing the grant of
a wage increase may be taken to avoid the appearance
of ` attempting to influence the employees' decision
concerning 'their representation for purposes of
collective bargaining. We hold that there has been no
interference in this -case with the employees' rights
under the Act." Accordingly, we find that the Respon-
dent's postponement of the wage increase without an
explanation therefor and at a time.when the Union's
organizational campaign was' about to be resolved m ,a
scheduled Board-conducted election was not violative
of Section 8(a)(1) of the Act. In reaching this
conclusion we specifically note that there is no
evidence ,to, indicate that Respondent in any way
sought to scapitalize on.the absence of a wage increase
by connecting the absence with the Union or the
employees' support of the Union.
THE REMEDY
We - have found in -agreement with the Trial
Examiner that Respondent engaged in conduct
violative of Section 8(a)(1) of the Act and accordingly
we adopt his remedial recommendations in that
regard. However, we have found, contrary to the Trial
Examiner,, that the 'Respondent did 'not violate
Section 8(a)(l) of the Act because Respondent
withheld wage increases until after the election.
CONCLUSIONS OF LAW
1. The Great Atlantic- A PacificTea Company,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of 'the Act.
2. Retail Clerks International Association, Local
458,; AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively . interrogating, employees with
respect to their union sympathies; by instructing
employees, not to display union buttons while at work;
and by holding an employee up to ridicule by his
fellow employees and threatening him with reprisal
because of his union. activities Respondent has
engaged in and is engaging in unfair labor practices
affecting commerce ; within. the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
3 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words m the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
ORDER
Respondent, The Great Atlantic, & Pacific Tea
Company, Inc., Mobile and Prichard, Alabama, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to their
union membership, desires, "or activity.
(b) Instructing employees not to display union
insignia while at work.
(c) Holding employees up to ridicule by their fellow
employees and threatening them with reprisals be-
cause of their union activities.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the--exercise
of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Boar'dfinds will effectuate the policies of the Act:
(a) ' Post at its stores in 'Prichard and Mobile,,
Alabama, copies of the attached notice marked
"Appendix." 3 -Copies of said 'notice, 'on johns"
provided by' 'the Regional Director for Region 15,
after, being` duly signed by Respondent's authorized
representative, shall' be posted by it immediately upon
receipt thereof, and'' be maintained by it for 60
consecutive days thereafter, m 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 date'of this Order,
what steps the Respondent has taken to' comply
herewith.
IT ](Si FURTHER ORDERED that those portions of the
complaint as to whichno violations have been found
be hereby dismissed.
IT IS FURTHER ORDERED that the election held on
April' 16,1970, be, and it hereby is, set aside.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be conduct-
ed among-the employees in the unit found-appropri-
ate, at such time as the -Regional-Director for Region
15 deems appropriate: The Regional Director shall
direct and supervise - the' election, subject to National
Labor Relations Board- Rules and, Regulations.
Eligible to vote are those in the unit- who were
employed= during the payroll period immediately
preceding the date of issuance of the Notice of Second
Election,, including employees who did not work
during that period because they were ill, on vacation,
or temporarily laid off. Also eligible are employees
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED .STATES COURT OF APPEALS , ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD." ' `
GREAT ATLANTIC & PACIFIC TEA CO.
engaged in an economic strike which commenced less
than 12 months before the election date and who
retained their' status as such during the eligibility
period and their= replacements. Those in the military
services of the United States may vote if they appear
in,person-at the pollstlneligible to vote are employees
who have quit or been discharged for cause since the
designated payroll period and employees engaged in a
strike who have been discharged for cause since the
commencement thereof, and who have not been
rehired or reinstated before the election date, and
employees engaged in an economic strike which
commenced more than 12 months before the election
date and who have been permanently replaced.4
Those eligible shall 'vote I whether or not they desire to
be represented for collective-bargaining purposes by
Retail Clerks 'International Association, Local 458,
AFL-CIO,.'
s In order to assure that- all eligible voters may have the opportunity to
be informed of the issues in the exercise of their sutory right to vote, all
parties to the election should have access to alt of voters and their
addresses which may be used to communicate with. them . Excelsior
Underwear Inc., 156 NLRB 1236; N.LRB. v. Wyman-Gordon Co., 394 U.S.
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 15 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director. The Regional Director shall make the list available to all parties
to the election., No extension of time to file this list shall be granted by the
Regional _ Director except in -extraordinary circumstances. Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.
APPENDIX
NOTICE TO, EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL ;LABOR RELATIONS BOARD
An Agency-of -the' United States Government
After' a trial at which all parties had the chance to give
evidence, the National Labor Relations Board found
that we have violated the National Labor Relations
Act and ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join; or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual' aid or protection
To ref rain from any or all of these things.
WE WILL ,NOT do anything that interferes with
these rights.
WE. WILL NOT question you about your ,union
membership, activities, or desires.
WE WILL NOT tell you to remove union buttons
while at work.
WE WILL NOT hold any of you up to ridicule by
647
any of your fellow employees because of your
union activities. I
WE WILL NOT threaten you with reprisal- because
of your union activities.
THE GREAT ATLANTIC &
PACIFIC TEA COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice 'or compliance
with its, provisions may be directed to the Board's
Office, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF TIM CASE
DAVID S. DAVIDSON, Trial Examiner: The charge in Case
15-CA-3811 was , filed by Retail Clerks International
Association, Local 458 , AFL-CIO, referred to herein as the
Union, on May 12, 1970, and the complaint issued on July
23, 1970, alleging that Respondent violated Section 8(aXl)
of the National Labor Relations Act; as amended, by
withholding a general wage increase from employees and
by the 'conduct of several of its supervisors. Respondent
denies the commission of any unfair labor practices. -
The petition in -Case 15-RC-4317- was filed on February
9, 1970.- After a hearing, on March 18 , 1970, the Regional
Director for Region 15 directed an election among certain
of Respondent's employees at its stores in,-the Mobile,
Alabama, area to determine whether or not they desired to
be represented by the Union for purposes of collective
bargaining. The election was held on April 16 , 1970, and
resulted in a vote of 42 for the Union , and 60 against the
Union . There were 13 challenged ballots and-2 void ballots.
Following the election the Union filed timely objections to
the election. After an investigation , on July 8, 1970, the
Regional Director issued a " Supplemental Decision and
Order- -Directing Hearing on ' ` Objections in which 'he
overruled a number of the objection s but found that others
based on the conduct alleged in the complaint in Case
15-CA-381 1, which- was to issue shortly thereafter; raised
issues which could be best resolved after a hearing . On July
23, 1970, the Regional Director -issued an order consolidat-
ing both cases for purposes of hearing. The issues raised by
the objections are identical to those raised by 'the complaint
except as to three allegations in,the complaint based- on
conduct which occurred after the election and could not in
any event serveas a basis for setting -the election aside. -'
A hearing was held before me in Mobile, Alabama,- on
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 24 and 25, 1970. At the close of the hearing, oral
argument was waived , and the parties were given leave to
file briefs . All parties filed briefs. ,
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Maryland corporation, is engaged in the
retail sale of grocery and meat products at numerous
locations including eight stores located in Prichard and
Mobile, Alabama, the stores immediately involved in this
proceeding. During the 12-month period preceding, is-
suance of the complaint , at the stores, involved, Respondent
received revenues in excess of $500,000 from retail sales, and
purchased good valued in excess of $50 ,000 which were
delivered to these stores directly from points located
Outside;-the State of Alabama. I find that Respondent is an
employer within the meaning of the Act, and that it will
effectuate ` the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local 458,
AFL-CIO, is a labor organization within the meaning of
the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the fall of 1966 , the Union conducted an organizing
campaign -at some of the,stores involved in this proceeding.
Charges we' re , filed based on the conduct . of certain of
Respondent's supervisors and, led to a decision, of the
Board ' that Respondent had violated the Act and an order
requiring Respondent to, cease and , desist from telling
employees .that Respondent would never have a union in its
Mobile stores ; telling them to work elsewhere if, they
wanted - a union ; telling certain employees that they were
responsible for, initiating union activity, that the,Union was
no good and , would do them no good, or that Respondent
knew , which employees were working for the Union;
requesting employees to abandon the Union or to assist in
solicting other employees to abandon or work against the
Union; threatening employees with reprisals for union
membership; coercively , interrogating employees regarding
employees' union membership , activities, and sympathies;
and,-promising or granting wage increases or other benefits
to induce employees to abandon support of the Union or to
work against the Union." In connection with the quoted
portion of the order, the complaint as issued had, alleged
only promises of benefit and had not alleged a grant of
wage increases as a violation of the Act. At the hearingin
that case the General Counsel sought to amend, the
1 The Great Atlantic & Pacifrc Tea Company, Inc., 167 NLRB 776.
$ 408 F.2d 374.
$ One ' of the stores is located on North Wilson Avenue in; Prichard,
Alabama . The remaining seven stores are located on Cottage Hill Road,
complaint to include an allegation , based on the grant of a
wage increase on April, 29,4967, but . the, amendment was
denied, on the ground that Respondent, was given
inadequate time prior to the Tearing to prepare its defense.
The National Labor Relations , Board's Order was
enforced by the Court of Appeals for' the -Fifth` Circuit.2
Before ,the court Respondent' urged that`the' portion of the
order requiring it to cease and desist from promising or
granting wage increases was unduly broad `because there
was no evidence that .Respondent granted benefits to
discourage union activity. -However, the court rejected
Respondent's contention on the ground , that the conduct
barred with respect to granting wage increases was, like or
related to the unlawful conduct: found to have occurred in
the promise of wage increases.
In,the spring of 1970 the Union conducted an. organizing
campaign, at Respondent's eight , stores in the Mobile,
Alabama, are'a,3 culminating in the r̀epresentation election
conducted on April `16; 1970. The complaint and _ the
objections before me in this case allege conduct similar in
some , respects to the violations found in the earlier case.
The complaint and objections also allege the withholding, of
general wage increases by Respondent because of the-union
activity and the pendency of the election.
B. Respondent's Instructions to Its Supervisors`
On March 9, 1970, Respondent = prepared, a two-page
statement signed by Division General Manager Spencer
setting forth instructions for its 'supervisors with respect to
their conduct during the election campaign. The ,statement
referred to the outstanding court order , stated that
Respondent's policy was ,not. to commit unfair labor
practices, and instructed supervisors not to engage in any
coercive or discriminatory conduct. It set forth a number of
examples of the kinds of things supervisors were not to do,
including the conduct proscribed by the previous order.
Each supervisor was asked to.read,the statement and
acknowledge by his signature that he had read it, that it had
been explained to him, and that he would not engage in
activity of the type described-, or other coercive or
discriminatory activity. Respondent's attorney was in-
structed to go to'Mobile to advise the store managers and
supervisors how to proceed and' to 'tell' them ' of the
seriousness of the court -order' in the, previous case. In
addition, Ralph Daugherty, who had 'general supervision
over the grocery departments at allthe stores involved, gave
similar instructions orally to ,all°the store managers and
assistant managers . He - told= them that they could not
discuss the 'Union with employees because it had been
determined that =only he,, Harold Davis, who was general
supervisor of the meat departments in all the stores, and
Claude Robinson, who was produce superintendent for
Respondent's entire 'New Orleans division, could discuss
union issues 'with the employees or answer any questions
employees might raise .4
Daugherty also posted the` following -notice Ao all
Moffat Road, Michigan Avenue, Navco Road, Old Shell Road, Springbi f
Avenue, and Airport Boulevard, all in Mobile.' '
4 Daugherty so testified . Daugherty also testified that the supervisors
were given similar instructions at the time of the previous campaign. Owen,
GREAT ATLANTIC & PACIFIC TEA CO. 649
employees, also signed by -Spencer and dated March 12,
1970.5
TO ALL MOBILE EMPLOYEES:
The Retail Clerks Union is again trying to get into
the A & P stores in Mobile.
We are against the union getting in because we do
not believe it would be good for you or the stores. We
will explain why we feel this way between now and the
election.
I want to make certain that you know your rights
concerning the union issue and that no one interferes
with your rights.
You have the right to be against the union. No one
can force you to support the union, vote for the union,
or join the union against your, will. You do not have to
support or join the union to work at A & Pin Mobile.
You have the right to join the union, support the
union, and vote for the union, if you wish.
You have, the right to make your own decisions on
this issue free=from any threats, coercion, intimidation,
interference, restraint, or discrimination. All members
of A & P supervision and management recognize your
rights and none has any authority to abridge such
rights.
If any union representative, company representative,
or anyone else engages in any -threats, coercion,
intimidation, interference, restraint, or discrimination,
please report it -to a member of supervision or
management ,of A & P.
The question of whether or not you want to be
represented by the ,union is a serious one. You should
not take it lightly. Please take plenty of time, think it
through, and be sure you reach the right decision.
As set forth below, there is evidence that further specific
instructions ,-were given to supervisors with respect to
discussion of wage increases.
C. Respondent's Policy With Respect to Wage
Increases
The eight Mobile area stores are in Respondent's New
Orleans division, which includes 115 stores located in
Arkansas, Louisiana, Mississippi, and Florida. Before 1966
Respondent established schedules of wage rates which
applied uniformly to all stores in the division. In September
1966, Respondent decided that its wage policy had become
obsolete and was causing Respondent to lose employees to
competitors and other industries. Respondent decided
accordingly to institute a policy of determining wages on an
area basis based on annual reviews of salaries and surveys
of rates paid by competitors in the areas in which it
operates. The first wage schedule for the Mobile area stores
pursuant to the changed policy was adopted in September
1966. That wage schedule applied to a number of other
stores in Louisiana and Florida as well.''
an assistant manager, testified that he was told that he was not to ask
questions 'of employees but that if employees wanted to talk to him he
could listen.
S The notice was posted for approximately 2 days at all eight stores.
6 Insofar as appears , Allred Supermarkets, the second chain which had a
contract with the Union in the area , entered into its first agreement with
the Union in September 1968.
7 Although the named classifications in the National contract differ
Since then Respondent has reviewed wage schedules for
the Mobile area "stores separately from those of stores in
other areas. In the years 1967 through 1969 Respondent
conducted surveys of wages in the Mobile area in the spring
and granted annual increases . The surveys were keyed to
wage changes made by competitors in the Mobile area and
particularly to wages paid by two chains operating in the
Mobile area which had contracts with'the Union.
In March 1967, National Food Stores of Louisiana
entered into a new contract with the Union effective March
5, 1967, which provided for wage increases on that date and
again on January 29, 1968.6 Respondent placed a new wage
schedule in effect- for the week ending April 17, 1967,
approximately 5 weeks after the new National wage
schedule became effective. Neither the National contract
nor Respondent's wage schedule provided for uniform
across-the-board increases for employees. Rather both
provided for increases in-varying amounts for employees in
different classifications and different steps of wage
progressions based on length of service for employees in
most classifications.7 The rates established by Respondent
in 1967 for the most part were ,riot the same as those
established by the Nati'onal' contract and were generally
somewhat lower. Also the length of time required to
progress to _ the top rate in several classifications in the
National contract was .shorter than that required under
Respondent's schedule.
Respondent next placed a new wage schedule in effect for
the week ending February, 10, 1968, or approximately I
week after the second- wage increase ,provided by the
National agreement Respondent continued to maintain
different progression schedules for some of its classifica-
tions, but its rates drew closer to those. provided in the
National agreement. Starting and top rates for a number of
classifications became the same, but some differences
remained between the rates paid by National and
Respondent.
In September,1968, Allied Supermarkets, Inc., entered
into a contract with the Union which ran until April 5,
1969, and contained a wage schedule substantially identical
to that then in effect under the National contract.8 In the
spring of 1969, the Union negotiated new agreements with
National and Allied. The National-agreement was effective
on March 9, 1969, for a 3-year term, and the Allied
agreement was effective April 6, 1969, for a 3-year term.9
The National agreement provided for increases in wages on
March 9, 1969, March 8, 1970, September 6, 1970, and
March 7, 1971. As in the past the increases were not across-
the-board but varied from classification to classification
and within progression schedules. The Allied agreement
provided for wages identical to those in the National
agreement, but the effective dates of increases lagged
approximately 4 weeks behind the effective dates of the
increases provided in the National agreement.
from those in Respondent's schedule, comparison of the contract schedules
to Respondent's over the period from 1967 to date shows direct
correspondence between each of the contract classifications and one or
more of the classifications in Respondent's schedules.
8 The Allied, contracts do not cover meat department employees, unlike
the National contracts and Respondent's wage schedule.
9 The evidence does not show whether the agreements were reached by
their effective dates or later.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 1969 Respondent adopted a new wage schedule for, the
week ending March 29, roughly midway between the
effective dates of A he first increases provided in e
National and, Allied agreements. In its new schedul
Respondent shortened the length of time required to reach
the top rate for some classifications , but the, length of time
for progression in these classifications remained longer
than under ,' the _two- contracts . With the exception, of
differences in rates related to the longer progression period
for these classifications,,the rates provided in Respondent's
wage schedule, largely corresponded to the first year rates
set forth in the two contracts.
D. Respondent's Failure To Grant an Increase in
the `Spring of 1970
As set forth, the National and Allied contracts provided
for wage - increases on March 8 and April 5, 1970,
respectively. Respondent concedes that absent the Union's
campaign and the pendency of the representation election
it would have conducted 'a survey of wages in the Mobile
area and ` would have put a new wage schedule into effect in
the spring of 1'970. Respondent's witnesses testified that
'they believed the wage increase 'would 'have become
effective during` the first half of April, around the time of
the election. They conceded that the contracts were the
principal'information they relied'on in making a survey and
that they kept copies of contracts on file for use in'making
the survey. Inasmuch -as Respondent instituted a new wage
schedule a week after the National increases in 1968, when
there were no National negotiations, and 2 weeks after the
National increases in 1969, when a new National agreement
was negotiated, I find that in 1970, when there were no
National or Allied negotiations, Respondent's action would
have been taken by late March and certainly before' the
election.30
On February 9, 1970, when the petition- was filed,
Respondent had not started its survey for 1970 and had not
made any decision as to the grant of a wage increase in the
Mobile area stores . Thereafter, at'a meeting between the
division general manager, its assistant personnel manager,
and its attorney, Respondent decided on advice of counsel
to -refrain from making a wage survey or granting an
increase to employees in the Mobile area stores at that time.
According to Alvin Truxillo, who was then Respondent's
assistant personnel manager, the reasons for-that decision
were - that there, was no pattern of amounts or times in
granting, increases in the Mobile area and Respondent
feared that if it granted increases the Board would find that
the grant, of increases was an unfair labor practice. At the
,same time the division general manager and Truxillo
decided that a wage increase would eventually be granted,
but they made no decision as to its timing or amount.
After the election on April 17, on advice of ; counsel
Respondent continued to, refrain from acting with respect
to wage increases pending action by the Board on the
objections to the election. The Regional Director's order
10 1-note in this regard that even in 1967, when there were National
negotiations , Respondent's increases became effective approximately 5
weeks after National 's increases. Since it was necessary for Respondent to
obtain copies of the new contract in years when new National contracts
were negotiated , the delay in Respondent's action was greater in such years
directing a hearing on the objections issued on July 8, 1970,
and thereafter Respondent quickly completed a survey and
put a new wage schedule into effect for-the' week ending
July 11, 1970. Respondent notified the employees of the
new wage schedule by letter dated July 1-1, 1970, as follows:
TO'OUR MOBILE EMPLOYEES:
There have been a number of questions asked about
the timing of 'the wage increase for our employees. In
this letter we will try to answer your questions. "
As you know, it can be an unfair labor practice for a
company to give a raise when there is union organizing
activity going on. Union organizers have been after you
for months and this union situation is still'dragging on.
A & P obeys the law and we do everything we possibly
can to avoid unfair labor, practices.
We have just been notified,by the LaborBoard that it
will be necessary to have more hearings on the union's
charges and objections. This will, probably mean more
appeals and delays before we can get this issue settled.
We decided it was not fair, to you for you to be
penalized any-longer by this legal situation.
The union made a big grandstand play a few weeks
ago by sending us telegrams saying they did not object
to our giving you a raise. They waited a-very, long time
before stating such a position. You will recall they said
nothing like that before the' -
The union's telegrams do)not protect-A & P from
unfair labor practices. We could still be charged with an
unfair labor practice forgiving you the pay 'increase
now but we decided to go ahead and accept whatever
risk is involved: We are trying our very best' to be fair
with you and obey the law.
The July 11, 1970, wage schedule , eliminated prior
differences in progression periods between' the National
contract and Respondent's schedule. As in the past it did
not provide for uniform- across-the-board increases., With
only a few exceptions, the rates ^ provided were identical to
those contained in the National agreement . However, as
noted above, the National agreement provided for two
increases during 1970, in -March and September, for the
first time since Respondent's wage policy changed in 1966,
and the rates in Respondent's new schedule corresponded
to the rates scheduled ' to become effective under the
National contract'in September, 2 months later."
Apart from the July 11 letter, there is no evidence that
before or after the election Respondent undertook to
discuss with its employees as a group by letter or' orally its
decisions 'or-policies with respect to wage increases. The
store managers and supervisors were told that they could
not discuss wage increases with employees and that if asked
about increases they were, to say they could not discuss the
subject. The supervisors were told before the election why
the wage increases normally granted in the spring were not
being given, but they were 'also told not to discuss those
than in years when there were contracts in effect. But even a 5-week delay
in 1970 would have resulted in 'increases for Respondent's employees
before the election.
11 There is,no contention that the July 11 grant of increases violated the
Act.
GREAT ATLANTIC & PACIFIC TEA CO.
reasons with employees. The supervisors were not told
when the increases would be given.12
The employees were aware that increases had been given
in the spring-in previous years at the time of increases given
under the National and Allied contracts, and during the
preelection period several employees asked supervisors
questions about increases.
Four to, six weeks before the election Patterson Owens, an
employee at Springhill Avenue-store, asked for a raise and
was told by Robinson that he could not discuss a raise at
that- time, because, of the election and that it was against
company policy to give a raise at that time.13
On April 10, 1970, Area Supervisor Daugherty read a
letter to a small group of employees at the Airport
Boulevard store. Paul Riise who was in the group asked
when the employees were going to get raises. Daugherty
said that Respondent could not, give raises because of the
election and that it would be a violation for it to do so.14
Ruse then asked why meat department heads, who were
excluded from the unit as supervisors, received increases.
Daugherty did not answer, but Area Supervisor Davis
stated that the meat.department heads had been put in for
raises previously and that it took time as raises did not
come through right away.15 Riise had asked about raises
before the petition was filed and was told at that time that
the employees would probably receive them in March.
Apart from the evidence as to these statements by
Robinson and Daugherty, there is some additional
evidence of statements by Davis concerning wage increases
in conjunction with conduct alleged to violate Section
8(a)(1) which is set forth below.
E. The Alleged Violations of Section 8(a)(1) of the
Act by Respondent's Supervisors
1. Harold Davis
a. Based on a conversation between Area Supervisor
Davis and employee Annie Mearl Innabnit on April 1 or 2,
the complaint alleges that Davis promised Mrs. Innabnit
that if Respondent won the election the employees would
receive everything Respondent promised them, that Davis
solicited her to so inform other-employees in order to
induce them to vote against the Union, and that Davis
12 These findings are based on the testimony of Robinson and Davis
which I have credited in this regard . To the extent that Daugherty's
testimony is in conflict as to what the supervisors were told, it is not
credited, as indicated below.
13 Owens so testified . Robinson denied that he told any employee why
they were not getting the increase , but did not otherwise contradict Owens
in this regard . I have credited Owens. Owens also testified to another
conversation with Robinson concerning a step increase he received
pursuant to the progression schedule about 2 weeks before the election.
There is no contention that the step increase or Robinson's statements at
that time were improper.
14 According to Riise, Daugherty did not say what would be violated by
raises.
15 Riise so testified . Daugherty denied that he explained to any
employee why increases could not be granted and testified that he told
Ritse only that he couldn't discuss wage increases at that time . Davis was
not questioned about this incident . Contrary to Robinson and Davis,
Daugherty testified that Robinson had told him simply that he could not
discuss wage increases with employees , and that Robinson did not tell him
why Respondent could not grant increases . Surprisingly , although
Daugherty read the same letter to a number of groups of employees, he
could not recall any aspect of its contents when he testified . I do not credit
651
interrogated her concerning her union activities , sympa-
thies , and desires . Both Mrs: Innabnit . and Davis testified
concerning the conversation . Although their testimony is in
conflict as to criticalportions , of their conversation , there is
no dispute that the conversation occurred and concerned
the Union.
I have credited Mrs. Innabnit as to the initial portion of
their conversation and find that Davis approached Mrs.
Innabnit in the back ,of the Moffat„Road store during her
lunchbreak and asked her how she was doing, stating that
she seemed to have a lot on her mind and-he wanted to
know what it was . She replied that she and her husband had
been sick and that she did have a lot on her mind. Davis
then said, "You know what I'm talking about," and pointed
to an election notice posted nearby . She relied that she
hadn't given the Union a second thought' and that if
Respondent had, done what it had promised the union
organizing wouldn't have gone that far.16
I have difficulty, however, crediting , the remainder of
Mrs. Innabnit's testimony, not so much because she
impressed me as untruthful as because her cross -examina-
tion showed that her initial brief version of the ' conversation
omitted a great deal of it, was considerably telescoped, and
may well have represented her own summary ` of what she
thought Davis was driving at rather than an accurate
recollection of what was said . For purposes of resolving the
conflict between her `testimony and Davis ', it would have
been helpful if the critical portions of her initial testimony
had been placed in context onn redirect examination in the
light of her cross-examination by' redeveloping her
testimony as an orderly whole. However, this was not done,
and on the record as it stands it is "impossible to integrate
her direct testimony with her cross-examination . Despiie a
curious inability of Davis on redirect examination to recall
matters as to which he had already testified, I have
concluded that I cannot credit ` Mrs. Innabnit as' to the
remainder of their conversation to the , extent that her
testimony conflicts with Davis ', and I credit Davis as to 'the
remaining material portions of their conversation.
I find that, after some discussion of whether Respondent
had made certain promises , Mrs. Innabnit asked Davis
when Respondent was going to give salary increases, and he
replied that he was not at liberty to discuss increases. Mrs.
Daugherty's testimony that he was not told the reason why the increases
were withheld. Although , as indicated below, I have not credited Ruse's
testimony in other respects, I find Daugherty's denial, as to the April_ 10
conversation unpersuasive and credit Ruse in this regard.
16 Although Davis' version of this portion of their conversation differed,
he conceded that he mentioned the election notice,- that he then told her
that he would like to think she was supporting the Company "and that I
don't think she answered."
The quoted portion of his testimony strongly indicates that he also
viewed his opening remarks as an inquiry into Mrs. Innabnit's thoughts
about the Union.
After Mrs. Innabnit had testified as to Davis',initial inquiry, the General
Counsel through a series of questions attempted to elicit further testimony
from her concerning conversation about her thoughts about the -Union.
Mrs. Innabnit testified that a question was asked but that she could not
recall what it was, She ultimately was led to testify that Davis asked her
what she thought about the Union. However, from her testimony as a
whole, it appears that she was referring to Davis' initial question, and her
difficulty in answering these questions appeared to stem from their implied
premise that Davis had asked her a second question about her thoughts in
so many words. I find that Davis' only question was that to which she
initially testified in describing the beginning of their conversation.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Innabnit pressed him to talk about increases, and Davis
again stated that he could not discuss them, adding that
Respondent was under court order not to discuss them. She
asked what ` the court order involved, and he explained that
the' court had ordered' Respondent not to commit unfair
labor practices, comparing a violation of that order in
seriousness to the commission of a crime. She expressed the
view that if there was no salary increase, a lotof employees
would vote for the Union. He said that they might, but that
he could not discuss it with her, and that he thought all=the
employees realized why Respondent could not give salary
increases. She stated that she did not know, and he` told her
that she would have to read between the lines . At some
point ' Davis also told her that Respondent had been
competitive in the area in its salaries and that it was its
policy to continue to be competitive. `Davis did not ask Mrs.
Inhabnit -to talk to other employees and urge them to vote
against the Union.
b. Based on another conversation between Davis and
Robert Clark the complaint alleges that Davis promised an
employee that its, employees would receive a wage increase
as soon as the election was over.
Davis spoke with Clark on the day before the election
and showed Clark several timecards' of employees at
Respondent's Opelousas, '`'Louisiana, store which was
represented by a union. The timecards showed that several
part-time employees had had their weekly earnings almost
or entirely offset by union-related deductions for the weeks
they `covered. Davis pointed out what ' the timecards
showed. Davis told Clark that Respondent did not have to
meet any of Respondent's demands, that he could go out on
strike, and that it would be pretty `hard on him with a family
getting started . Davis also 'mentioned a warehouse
supervisor in 'New` Orleans who Davis said was retiring
because he couldn't take having' to deal with the Negro
stewards the union had-chosen.
According to Clark, Davis also said that if it was more
money Clark wanted, he couldn't 'say anything but that
raises were coming in' ,- later as soon as the election was over
and settled with and not to worry about it because they
would get the money soon. Davis denied that 'he said
anything about wages at that time, but testified that 2 or 3
weeks earlier in a conversation in which the Union was not
mentioned he may have told Clark that rates had been
competitive and would continue to be competitive. When
asked what he meant by-that,-'Davis testified, "When we are
permitted to give a raise,legally, ;then our raise would be as
high as other people's. We have always paid,the rate as high
as any in town."
There is basis to believe that Davis was more accurate
than Clark as to the timing of his conversation with Clark
about wages and that Clark may have combined two
conversations into one in recalling them,17 but the timing is
not critical, as even in Davis' version, the' discussion of
wages occurred 2 to-3 weeks before the election. Although
Davis testified that there was no mention of the Union in
that , conversation, I -find it highly unlikely that Davis
17 Davis gave 'a, statement to a union representative on April 19 in
support of the Union's objections in which he described the April 15
conversation without mentioning any discussion of wage increases.
u: Riise and Daugherty both testified that Daugherty told him of
merely made an isolated remark about competitive wages
without indicating at least, as he didito Mrs. Innabnit, that
he was not free to discuss wages at that time. I credit Clark,
who impressed me generally as truthful, that Davis, told him
that he could not discuss wages at that time and find in this
at least an implied reference to the pendency of the
election.
As between the two versions otherwise, the question is
whether Davis told Clark, as Clark-testified, thatraises -were
coming in later as soon as the election was over and,settled
and not to' worry` because they would get the money soon,
or whether, as Davis testified, he told Clark wages had been
competitive and Would continue to be. There is really little
difference in substance between the two 'versions, and
Davis' explanation of what he meant by^his remarks comes
even closer to Clark's recollection of ° what Davis said.
Whether or not Clark's recollection represents a verbatim
restatement of Davis' remarks, I credit Clark and find that
Davis conveyed to Clark an assurance that he need , not
worry about wages because after the election was over -and
settled the raises would be granted: At the same time I
credit Davis that in the course of this assurance ' he
mentioned Respondent's policy of paying competitive
wages.
2. Ralph Daugherty
Based on testimony concerning a conversation between
Daugherty and employee Paul Riise at the Airport
Boulevard store, the complaint alleges that, on March 31,
Daugherty orally promised anemployee that if he urged
other employees to vote against the Union it would help
him -to obtain abetter position and that Daugherty created
an impression of surveillance by stating that he knew how
another employee would vote in the election.
Some months before March 31 Ruse asked Daugherty
about the possibility of getting transferred to a job in
Respondent's New Orleans office. Daugherty said he would
inquire and did so, but received, no reply. Thereafter, Riise
asked Daugherty ''about the transfer 'on several occasions,
and Daugherty replied that helad not heard but assumed
there were no openings. , ,Around' March 1, Riise told
Daugherty he almost 'had to know whether he could be
transferred. Daugherty told Riise he hadn't`heard recently
but would write to Robinson and get a definite answer. On
March 6, Daugherty received a' letter- from Robinson
stating that there were no openings: Daugherty so informed
Ruse. There was no discussion- of the Union in this
conversation.18
Ruse testified ' that on March 31 he again asked.
Daugherty fora transfer, to Respondent's New Orleans
office. According`' to Riise, Daugherty replied that there
were going to be changes at higher levels of management
which would result in openings at lower levels for-,which
Ruse could probably qualify. Riise testified that Daugherty
then said ;that the election was coming up and that he
needed his, support. He testified that Daugherty asked him
to talk to the employees, especially the part-time employ-
Robinson's letter at that time. Ruse was not questioned as to , whether he
had indicated shortly before that' he had an urgent ' need for an "answer, but
Daugherty so'testified'without contradiction. -
GREAT ATLANTIC & PACIFIC TEA CO.
ees,,to persuade them to vote against the Union, and said
that doing so would help -him to get a job in the office.
According to Riise, he,- Riise, then named several
employees, said that he would talk to them, and stated that
he believed that they would vote for Respondent. Ruse
testified that he then said he did not know about Larry
Kerns, an employee; and Daugherty told him not to worry
because he knew about Kerns.1s ,
Daugherty testified that he spoke to Riise at the Airport
Boulevard- store, but his 'version of the conversation
differed sharply from Ruse's . According to Daugherty,
Ruse approached him and told him that since Respondent
could not give raises at that -time, it would hurt its chances
of winning the election. He testified that he replied that he
could not discuss raises with Ruse. Daugherty testified that
Ruse went on to tell him of representations the Union had
made to two employees to the effect that they were not
receiving everything they should from Respondent. Ac-
cording to Daugherty he said little or nothing in response.
Daugherty denied that any mention was made of Ruse's
request for a transfer or that any mention was made of
Larry Kerns . Daugherty testified that he did not discuss a
transfer with Ruse again after giving him what he described
as a final answer in-early March.
Riise conceded that `after he spoke with Daugherty, and
approximately 2 days before the -election, he spoke with
Robinson about the possibility of a transfer. He testified
that at that time Robinson referred to forthcoming changes
in supervision in New Orleans and mentioned a possible
job on inventory. While conceding that Daugherty on
March 31 and Robinson on April 14 both made statements
to the same effect concerning possible openings in New
Orleans, Riise 'denied that he had confused Robinson's
statements with Daugherty's. Riise testified that he asked
Daugherty about the transfer possibilities on March 31
because he had told Daugherty he would check back with
him from time to time to see if there were any openings, and
that he asked Robinson or Daugherty about it every month
or two.2°
The credibility issue raised by this testimony is not easily
resolved. On the one band, as Respondent points out, when
placed in the context of his earlier conversations with
Daugherty about a transfer,. Ruse's testimony concerning
March 31 reveals a troubling lack of continuity. Despite the
fact that he had been tolda few weeks earlier, after months
of indefinite replies, that Daugherty had heard from
Robinson and there were no openings, Riise testified that
on March 31 he, simply asked Daugherty for a transfer to
the New Orleans office, without reference to their earlier
conversations. Similarly, despite the fact that Daugherty
allegedly-told Riise on March 31 of the possibility of an
opening arising' because of supervisory changes, Riise's
brief testimony as to his conversation with Robinson on
April 14 fails to indicate that he made any reference to his
March 31 ` conversation with Daugherty even when
Robinson told him essentially what Daugherty had already
told him about- the possibility- of openings developing, If
19 Riise conceded that he knew Kerns was a close friend of Daugherty's
son and that they were neighbors.
20 Rise testified that until Daugherty mentioned the letter on March 6,
Daugherty answered his questions by -stating that he hadn't heard but
assumed there were no openings. On March 6 , Daugherty told him he had
653
Daugherty had promised that Riise's help in the election
would help him to get a transfer, and .if Ruse seemingly
showed willingness to cooperate by volunteering informa-
tion to Daugherty, the question arises why Riise next, spoke
to Robinson rather than Daugherty in pursuing his desire to
transfer.
On the other hand, Daugherty's testimony as a whole and
his version of the March 31 conversation also leave doubts.
As I have already indicated, Daugherty's, version of his
response to Ruse on April 10 is not persuasive, his denial
that -he, knew why, Respondent was withholding wage
increases is in conflict with other testimony, and his
inability to remember what was in the letter he read to a
number of groups of employees raises considerable
question as to his recollection. Although Daugherty denied
seeking to elicit employee support for Respondent, he
clearly sought to do so in showing the ,Opelousas timecards
to employees, and his denial seemed based on a legalistic
distinction between a direct and an implicit request for
support. With respect to the March 31- conversation, his
version portrays Riise as an eager volunteer of information
concerning the effect of the union campaign with
Daugherty in a totally passive role- and no hint of any
explanation for Ruse's eagerness in giving him information
to which he made little response.
Thus, while Riise's testimony leaves the impression that
its parts do not fit together, Daugherty's .testimony creates
substantial doubt that it contains everything that was said
between them. Perhaps the doubts over Riise's testimony
may arise from a simple tendency on his part to compress
the introductory portion of his conversation with Daugher-
ty and the failure to develop 'completely his' later
conversation with Robinson. But the doubts raised by
Ruse's testimony are sufficiently substantial that I find his
testimony as to the March 31 conversation may not be
relied upon even though I am -less than persuaded that
Daugherty's testimony tells the whole story.
3. John Shelkofsky
Based on a conversation between Shelkofsky and
employee Patterson Owens at the, Springhill Avenue
store,21 the complaint, as amended at the hearing, alleges
that Shelkofsky interrogated an employee about his union
activities, sympathies, and desires and promised him
advancement in order to induce him to vote -against the
Union.
There is no dispute that a conversation occurred between
Owens and Shelkofsky in which both- the Union and
Owens' opportunity for advancement were mentioned.
However, their testimony is in substantial conflict as to, the
material statements during that conversation, and once
again the testimony of both witnesses raises problems.
Owens' version was that Shelkofsky initiated the
conversation, first offering him a coke or coffee and then
asking him if he would like to make a career of working, for
Respondent. Owens expressed doubt, indicating skepticism
heard and there were no openings.
21 Shelkofsky, whose usual job was comanager of the Cottage Hill Road
store, served as relief store manager at the Springhill Avenue store for
approximately 3 weeks starting March 28, 1970.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there -were promotional opportunities for Negroes with
Respondent.- 'Shelkofsky stated .that Negroes had been
promoted 1h --other locations, but ,Owens continued to
indicate his- d`o`ubts. Shelkofsky then asked him what he
thought about the+ union election. Owens replied that as he
was working for Respondent and it was kind enough to give
him a job, he should 'respect its wishes. 'Shelkofsky
commented that=' he' was` right about that because - if
Respondent thought enough about him-to'give him a job,
he should ' respect -Respondent's "wishes, and do what he
thought wasbest. At this point Shelkofsky also stated that if
Owens stayed with Respondent long enough and after "this
mess" about the Union was over, he could probably get an
advancement to assistant manager or higher position with
,the Company.
Shelkofsky, on the other hand, portrayed Owens as the
initiator of `the conversation and the one who raised' both
the matter ' of the "election and promotional opportunities.
Shelkofsky's 'Version 'was that immediately after Area
Superintendent, Robinson had visited the store, Owens
approached .hair and said he would-be happy, when the
election `was over because maybe Robinson and everyone
would believe that he was not for the Union. Shelkofsky
made no' reply, 'and Owens continued to say that
Respondent was, a good, company, that he would like to
make ,a career ofworking there,,and that he would have to
.work up to a, manager's job to make a living. Shelkofsky
said that he had the same chance as anyone else for
advancement . Owens said that he did not know of any
Negro managers in the area. Shelkof sky said that there were
many Negro managers up North. Shelkofsky could recall
nothing further that was said.
On direct, examination Owens momentarily failed to
recall Shelkofsky's alleged statement about-his chances for
advancement after the election, and Owens' cross-examina-
tion developed that he , had,,made no reference to, this
statement in an affidavit he gave during the investigation of
this case . However sincere his belief as to what Shelkofsky
said, it is difficult to escape the conclusion that at the time
Owens gave , his affidavit he did not construe anything
Shelkofsky said as a promise of probable, promotion, but
only later, read such a promise into Shelkofsky's remarks
when he sought to reconstruct his recollection just prior to
the hearing. In these circumstances, I credit Shelkofskythat
he only -stated that Owens had the same opportunity for
advancement as anyone else.
With respect to the,-remainder of their conversation, one
aspect of Owens' testimony does not fit well with either
version.' Thus Owens testified that he believed he was
-wearing union buttons at the time of this' conversation.
Certainly if he' was, it is unlikely that he approached
Shelkofsky^ to seek- to persuade him that,,others` should
believe he was against the Union, but it is equally unlikely
that =Shelkofsky 'would have questioned -him or that he
would have sought to persuade Shelkof sky that he would
respect -Respondent's wishes if he were wearing union
buttons at the time. In these circumstances, I credit
22 I, note, in this connection, that Owens displayed considerable
uncertainty as to when the conversation occurred, and his affidavit in
which he made a correction in this regard differed from his initial
Shelkofsky that, this conversation occurred before employ-
ees started to wear union buttons in the, store.22
However, Shelkofsky's testimony also raises doubts. For
not only, .may one wonder whether Owenss, -who, shortly
thereafter. wore union buttons at work, was°likely.to have
initiated an attempt to persuade Shelkofsky that he was
opposed to the Union, but Shelkofsky's, testimony that
Owens initiated the discussion of his chances for advance-
ment by stating that he, wanted to make a career out of
workingmith Respondent does not fit with his expression of
skepticism, when Shelkofsky sought to assure him that he
had the same chance as anyone else. Indeed, i€ Owens took
the, ,initiative to curry favor, as Shelkofsky's version
indicates„ itseems unlikely, that Owens would have taken
issue with Shellcofsky's reassuring response. -
While I have found reason to doubt the accuracy, of
Owens' recollection, „ both as to, the timing of the
conversation and the alleged promise of, advancement, I do
not believe that Owens intentionally, sought to distort the
facts in his testimony, and I am less than impressed with the
accuracy of Shelkofsky's testimony that-Owens took the
initiative in broaching, both the matter, of his feelings about
the Union, to, which Shelkofsky alledgedly made no
response, and his desire to make a career out of working for
Respondent. In this regard I credit Owens that Shelkofsky
raised both topics and asked Owens what he thought about
the election after first -asking him how he would like to
make a career of working for Respondent.
4. ' Goronway Owen III
Based on the testimony . - of -Owen, the complaint, as
amended at the hearing, alleges that Respondent threat-
ened employees with a reduction of hours-for wearing
union buttons.
Goronway' Owen III was an assistant manager at the
Springhill Avenue store, signed an authorization card for
the Union, and testified as a- witnessI for-the General
Counsel in this proceeding. Owen testified that on Tuesday
or Wednesday, April 14 or 15, he spoke with employee
Shirley Gardner, who he understood, had been 'wearing a
union-button, and told her that he did not think it was wise
for ' her` to continue` wearing a union button due to her
financial condition.' According to- Owen, he mentioned
specifically that she was a part-time employee, had no
guarantee of hours, and could get her'hours cut for wearing
the button. Owen testified that he believed he-had, a similar
conversation with employee Iva Young before the election
but could not remember when or where it occurred,
Owen was the only'witness who testified as to these two
conversations. Although Shirley Gardner -was in the
hearing room when Owen testified, she was not called as a
witness. An affidavit given by Owen during the investiga-
tion of this case contains no mention of a statement by him
to Mrs. Gardner that her.hours might be cut because she
wore a button and no mention of any conversation with Iva
Young, although Owen testified that . he ° thought he
mentioned both to the investigator who tookhis statement.
In addition, Owen conceded that when he was questioned
testimony. It is clear, however, that the conversation occurred before the
election and no more than 3 weeks before it.
GREAT ATLANTIC & PACIFIC TEA CO.
before the, hearing by Respondent's attorney, at a time
when Respondent did not know that he was to appear as a
witness for the General Counsel, Owen told Respondent's
attorney that he told Mrs. Gardner that he felt enough hard
feelings had been created and that he felt the button should
be taken, off. At that time he indicated that he had not
mentioned her financial situation and that Mrs. Gardner
was the only employee to whom he spoke about removing a
button. Owen explained that he had not wanted to admit
all the facts to Respondent's attorney because several area
supervisors were present at the time.
Although Owen's explanation for his statements to
Respondent's attorney might have been persuasive if his
affidavit, supported his testimony, his affidavit lends more
support to his statements to Respondent's counsel than to
his testimony before me. I am aware that one in Owen's
position does pot lightly give testimony in conflict with his
employer's interests, and I am persuaded that insofar as
supported by his affidavit Owen's testimony is both
accurate and truthful. But in the absence of corroboration
by Mrs. Gardner or Young, I do not credit Owen that he
told Mrs.' Gardner explicitly that wearing a button might
lead to a reductionin her hours or that he advised Young to
remove his button before the election. I find only that
Owen told Mrs. Gardner that he did not think it would be
wise for her to continue wearing.a union button because
enough hard feelings had been created.
5. Claude Robinson
Based on the testimony of Riffit Reid, an employee at the
Springhill Avenue store, the complaint alleges that on April
17, 1970, Robinson orally ordered and required an
employee to remove his union button. Reid's testimony was
corroborated by that of Daugherty and Owen and was not
contradicted, by Robinson. I credit Reid- and find that on
the day of the election Robinson told Reid that insofar as
he was concerned the Union lost fair and square and there
were no - hard feelings. Robinson then pointed to Reid's
button And said, "Take that off and give us a good day's
work. That's all I ask." Reid told other employees about the
incident. Reid removed his button at the time but wore it
again the next day and for about a week thereafter until he
removed it, on his own accord. Some other employees also
continued to wear-,buttons after Robinson's visit to -the
store.
6. LaBron Walley and Howard Jernigan
Based on the testimony of Robert Clark, the complaint
alleges that on April 17, at the Michigan Avenue store,
Assistant Manager LaBron Walley threatened an employee
with unspecified reprisals and publicly ridiculed him
because of his union activities and that Store Manager
Howard Jernigan orally informed the employee that he
should have expected the threats and ridicule because he
was the only union adherent at the store. Clark's testimony
was uncontradicted and is credited.
Clark worked as a butcher at the Michigan Avenue store
and served as an observer for the Union in the election. He
655
attended a preelection, conference on the night before the
election. On the morning of the election when Clark entered
the store, Jernigan said to him, ''Well, you made your
move." Clark aanswered affirmatively and walked on.
On the night of the election, 'Clark went to the Springhill
Avenue, store for the ballot-count.- After- the count when
Walley was in the store looking out and Clark was outside,
Clark made a vulgar, gesture toward:Walley, Walley .said
nothing but "kind of grinned."
On the day after the election Clark reported for-work at 8
a.m. When he walked into the cutting room he noticed a
sign stating "Good morning, Punk" on the block where he
worked. He picked it upand carried it over to the timeclock
where Jernigan and a few others were standing. He threw it
on the floor and said, "At, least the- son-of-a-bitch-,can
write" or something like that. Then he noticed another sign
stretched across the back--wall written on-a large piece of
paper from a roll of butcher paper. That sign said,, "The
winner, A & P Tea Company, who cares, 73. The Losers,
Bob Clark,' Jr., the punk and Old Tag, 42.1123 Clark made
some similar comments about the sign- and went to. punch
in. Then he noticed a third sign in the slot with his timecard
which said "You are a union -punk" and also had the
election score on it. He threw, that, sign on the floor.
Jernigan picked it up. Clark said he wished he knew who
the so-and-so ' was who - wrote it. An employee standing
nearby said= that LaBron Walley, the assistant store
manager, had done it.
Clark went to Walley-and asked if he was "the son-of-a-
bitch who wrote these signs." Walley asked, "What if I am?
What are you going to do-about it?" Clark- said he was
going to ?mock "the hell" out of him, pushed him, and was
about to hit him, when Jernigan and another -employee
interceded and broke it up. A little later, Jernigan came to
him and told him he should have, been expecting something'
like that. ' Clark asked why, and Jernigan said because he
knew he was the only one for the Union in the store.
Jernigan said he hoped Clark didn't hold him responsible
and that he didn't have anything'to do with it. Clark asked
him why he shouldn't, and Jernigan said something about
Clark having gestured -to Walley the previous night. Clark
told Jernigan that if he was a good store manager he
wouldn't have let it happen. - -
Later that day the meat market manager under whom
Clark worked directly came in and spoke-with Clark. He
said he'would speak to Walley about letting upon Clark.
Clark said that there was no need to do that and that he
would fight his own battles.
The sign on the wall did not remain up for more than'an
hour. Clark was never reprimanded' for pushing Walley or
calling him names. There had been some kidding, and
horseplay in the store before.
Walley and Clark are both relatively young and had
known each other for several years.- Before Clark- married,
they had some social contacts away from the store. When
Clark first started to work at the Springhill Avenue store, he-
had a disagreement With Walley, but they had been:talking
to each other before the election and were not as angry with
each other by then. - -
28 'Old Tag" was an apparent reference to Union Representative
Taggert.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Concluding Findings
1. The wage increases
As the 'Board stated in The Gates Rubber Company, 182
NLRB No. 15, when an employer is faced with deciding
whether to grant or withhold a wage increase pending an
election, "It is well settled that the employer's legal duty is
to proceed as he would have done had the union not been
on the scene."
The ' Charging Party and the General Counsel rely on
Gates Rubber and this statement of principle in support of
the: allegation of the complaint that Respondent violated
the Act by withholding 'wage increases before the election,
contending that the evidence leaves no question that
increases would have been granted before April 16, 1970, if
the Union had not beenon,the scene,
Respondent, however, contends that Respondent stood
in substantial risk of having to defend its conduct if it had
granted a wage increase because of the outstanding court
order against it, because it could not point to any specific
date on which it gave-increases in past years, and because it
could not point to a specific amount which it had granted in
previous years. Respondent contends that it was entitled to
defer the increases to avoid the appearance of interference
with the election, relying principally , on the Board's,
decision in UARCO Incorporated 169 NLRB No. 162.
To a point, the facts before the Board in both Gates
Rubber and UARCO were similar. In both cases the
employers . , had established policies pursuant to which
increases would have been granted to bargaining unit
employees before a pending election. In both cases,
increases were granted to employees outside the bargaining
units, but were withheld from the bargaining unit
employees until-after the election. In both cases it was clear
that but for the election, increases would have been granted
to the bargaining unit employees at the usual times.
In Gates Rubber, bargaining unit employees expressed
interest in; the timing of the. increase and asked about it. In
response to their questions, employees were told that the
increase was being withheld from them temporarily
pending the election in order to avoid an appearance of any
attempt to influence the election, and one, supervisor told
an employee that the employer could not give a raise at that
time because of-the posted, notice of election.
In UARCO, the employer did not await employee
questions, but a
t the time it put the increase into effect for
other employees, it notified bargaining unit employees in
writing that on advice of counsel their increases would have
to be postponed,to avoid the, appearance of vote buying by
the, employer. In a later campaign speech tol all employees,
the employer repeated this reason and added that its policy
was to -pay area rates and that it intended to, follow that
policy with or without a union. It repeated this statement of
policy in a letter to all employees 2 weeks before the
election.
In Gates Rubber, the Boardyfound that the withholding of
the increase violated Section 8(a)(t) of the Act, stating:
In these circumstances, neutrality is not maintained by
an announced withholding of a wage increase because
of a pending Board-conducted election. It is well settled
that the employer's legal duty is to proceed as he would
have done had the union not been on the scene. Here
the Respondent withheld increases . which , would
normally have been granted but for the presence of the
Union and ' the pendency of the-election and advised
employees that their wage increases were, being
withheld for this reason . By such conduct the Respon-
dent violated Section 8 (a)(1) and "interfered with
employee free choice. -
In UARCO, the Board reached the opposite conclusion,
stating:
Under the facts and circumstances of this case, wedo
not agree with the Regional Director 's' conclusion that
the ` Employer's announcement concerning the with-
holding of its annual wage rate increases was coercive in
nature or` created an atmosphere which prevented the
exercise of free choice in the election . We are unable to
conclude that the Employer, by its announcement of
April '3 and its subsequent campaign statements ,. sought
to shift to the Petitioner the onus for the postponement
of adjustments in wages and benefits for employees it
sought to - represent, or to disparage and undermine the
Petitioner by creating the,impression that it stood in the
way of their getting planned wage, increases . and
benefits. The Employer made , cleai in its , campaign
statements, as set forth above , that whether` not', its
employees were represented . by a union, it planned to
continue its established practice of adjusting wage rates
in early April of each year, pursuant to its annual wage
survey, to bring them into conformity with prevailing
rates in the area; and that the sole purpose of its
announcement postponing-the expected adjustnientsin
wage rates and benefits for the employees involved was
to avoid- the appearance that it sought to interfere with
their free choice - in any - elections which might be
directed . In the circumstances, we do not believe that
the employees could reasonably have-concluded, nor, do
we conclude, that the Employer's postponement of
adjustments in their rates and benefits was'intended to
influence their` decisibn`in the question concerning-their
representation for purposes -'of collective bargaining.
[Footnote omitted.]
The critical distinction between these cases lies in the
affirmative efforts of the employer in ' UARCO, unlike
Gates, to'assure employees that regardless of the outcome
of the election it intended to adhere to its wage policy and
that the sole reason for deferring the increases was to avoid
the appearance of an attempt ' to interfere with the
employees' freedom of choice . In Gates, absent such
assurances,, the Board found interference . In UARCO, with
such assurances, the Board concluded that the employees
could not reasonably have concluded that' postponement of
the increases was intended to influence their decision.
Thus, it appears that UARCO provides an exception to
the principle that an employer must act as he would have
absent the pendency of an election and permits, an
employer some leeway in deciding whether to grant or
withhold wage increases due, employees , pursuant to an
established policy pending an election . However, under
UARCO, if the employer determines not to follow its
established policy, he has the burden of making it clear to
employees that the future implementation of the policy is
GREAT ATLANTIC & PACIFIC TEA CO.
not dependent upon the outcome of the election and he
must dispel the inherent tendency of the withholding of the
increase to cause employees to believe that by seeking
representation and an election they have placed in jeopardy
an established condition of their employment 24
Here, Respondent points to the outstanding court order
enforcing the Board's earlier decision involving the Mobile
area stores and the fact that it acted pursuant to advice of
counsel as special justification for its decision to withhold
the increases . But the court order imposed no greater duty
upon, Respondent to refrain from granting increases than
imposed by the Act absent any order,25 and the fact that
Respondent's decision was made on advice of counsel does
not absolve Respondent from responsibility for its conduct,
if it was in fact unlawful.26
Respondent also contends that it was entitled to withhold
the increases because it could not point to any specific, date
when it gave increases in the,past and could not point to
any specific amount of increase that it normally granted.
Although it is true that Respondent had not given increases
on the same date- each year in the past, it had granted
increases soon after they became effective under the
National Food Stores' agreement in previous years.
Respondent's increases had not lagged more than 5 weeks
behind the National increases in the past, and in years
when there were no National negotiations, as in 1970, the
time lag was even, less. As I have found above, it is clear
from the experience of the previous3 years that, but for the
pendency of the election, increases would have been
granted before the date of the election.
There is more. substance to Respondent's contention that
it could not point to any, specific amount of increase it
would have granted in '1970. Its rates ' and progression
schedules were not identical to those provided in the
National agreement Over the previous 3 years it had
eliminated a number of the differences and had narrowed
the gaps between its rates and progression schedules and
those provided in the National agreement. But there was no
discernible automatic formula for the elimination or
narrowing of the remaining differences. In addition,
because the National agreement provided for a second
round of increases on September 1970, unlike previous
years, there was no ready way to determine from its past
practice whether it would have granted a single increase in
the spring based on the National rates then in effect, a pair
of increases at 6-month intervals parallel to the National
increases, a single increase in the spring based on the
National - rates to be effective in September, or a single
increase in the spring designed to take into account both
increases due under the National contract, perhaps giving
employees 'an annual wage roughly equivalent to what the
National employees would receive in the following year
with their two increases . However, but for the pendency of
24 In addition to Gates Rubber and UARCO, see also Dynatronics, An
Operation of the Electronics Division of the General Dynamics Corporation,
186 NLRB No. 141; Montana Lumber Sales Inc., 185 NLRB No. 12;
Marshall Durbin and Company of Jasper, Inc., 179 NLRB No. 170; The May
Department Stores Company, d/b/a Famous-Barr Company, 174 NLRB No.
109; Louisiana Plastics, Inc., 173 NLRB No. 218.
25 As set forth above , the relevant portion of the order barred
Respondent from promising or granting wage increases or other benefits to
induce employees to abandon support of the Union or to work against the
657
the election, it is clear that it would have pursued one of
these courses and granted an increase before the date of the
election. -
The circumstances . may well have made Respondent
fearful that any increase it might have given would have
been difficult to defend on the basis of its previous practice.
Yet the question remains whether this difficulty justified
the course of action it chose to pursue, While Respondent
points to a dilemmatic choice between granting an increase
despite uncertain precedent as to its amount and pursuing
the course of conduct it followed, the Board's decision in
UARCO pointed to a third course of conduct available to it.
Thus, while Respondent elected to withhold the increases
and pursue a' policy of silence with respect to increases,
UARCO indicated that it could have withheld the increases
whip affirmatively assuring employees that its -policy
remained unchanged, .that it would be implemented after
the election regardless of its outcome, and that deferral of
the increases was caused solely by its' desire to avoid any
appearance of interference-with the election.
The policy ,which Respondent elected to- pursue left
employees with awareness that under Respondent's policy
wage increases were due but not granted and with the
question unanswered whether the change in policy was
permanent, temporary, or contingent uponthe outcome of
the election:
While it is true that Davis, Robinson, and Daugherty
deviated from Respondent's policy of silence with respect
to wage increases in conversation with individual employ-
ees, these deviations fell far short of giving the employees
who worked at eight separate locations the kind of
assurance which was given in UARCO. Although Davis
told Mrs. Innabnit that_Respondent intended to remain
competitive-in paying wages as had been its policy in the
past, he also attempted to avoid answering her questions
about raises and plainly left her with the feeling that her
question had not been authoritatively answered. Davis'
statement to Clark appears to have come closer to an
affirmative statement of intent to maintain existing
practice, but even that statement was prefaced by a
statement that Davis was not free to discuss wages, casting
some doubt on the weight Clark might give to the later
assurance. But in any event, these statements were
exceptions to Respondent's policy not to discuss wages
during the preelection period, and there is no evidence that
any similar assurances were given to other employees.
The only evidence otherwise of deviation from the policy
of not discussing raises was the testimony of Owens that
Robinson said he couldn't discuss, raises at that time
because of the election and that it was against company
policy to give a raise at that time, and the testimony of Riise
as to discussion of raises by Davis and Daugherty in
response to his questions before a small group of
Union.
26 The Great Atlantic & Pacific Tea Company Inc., 166 NLRB 27, 28,
enfd. 409 F.2d 296 (C.A. 5). While the fact that Respondent acted on
advice of counsel might have bearing upon a determination of its
motivation in decidingto withhold increases , a violation of Section 8(a)(1),
as found in Gates Rubber, does not depend upon proof of an unlawful
motive , but upon whether the conduct tended to interfere with employee
rights. See Crown Central Petroleum Corporation. 430 F.2d 724 (C.A. 5).
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. In,neither of these cases was any attempt made
by Robinson, Davis, or Daugherty to reassure employees
that the pendency of the election or its outcome would not
alter Respondent's basic policy as to wages.
I am aware that there is evidence that Mrs. Innabnit and
Riise told Davis - and Daugherty during the, preelection
period that the withholding of the wage; increases would
cause it to- lose some support in the election. However, the
test in deciding whether Section 8(a)(1) has been violated is
not how individual employees reacted to questioned
conduct but whether that conduct tended to interfere with
protected employee rights. Moreover, Mrs. Innabnit's and
Riise's , statements and Personnel, Manager , Truxillo's
testimony that he believed Respondent almost lost the
election because it withheld the increases hardly establish
that the withholding of the increases did 'not discourage
employee support for the Union.,
In sum, this ii ,a casein which Respondent had a policy to
grant increases in the spring of the, year which would have
resulted in an increase for the Mobile area employees
before the election but ,for the, pendency of the election.
Respondent might have elected to grant the ,increase
notwithstanding the election, albeit that course of action
would have given rise to difficulties in justifying the amount
of the increase based on its past practice., Respondent might
also have elected to withhold the increases while at the
same time assuring employees that it was not abandoning
its policy because of the election or the possibility that they
might choose union representation. However, Respondent
instead elected to withhold the increase and pursue a policy
of silence, ' leaving it to employees to infer whether the
holding of the election or their possible choice of union
representation might result in the loss of the increases'they
would otherwise have received. Particularly in the light of
Respondent's prior unlawful conduct at some of the Mobile
area stores,, it is likely that employees would reasonably
infer that the withholding of the increases was caused by
the 'attempt to gain representation and the election and that
the grant was contingent upon its outcome. Accordingly, I
conclude that the Board's decision in the Gates Rubber case
is controlling and that the withholding of the increases
violated Section 8(a)(1) of the Act.27 As the remedy in any
event would be the same, I find it unnecessary to decide
whether the withholding of the wage increases also violated
Section 8(a)(3) of the Act.
2. The alleged interrogation
I have found that at the outset of his conversation with
Mrs. Innabnit on April 1 or 2, Area Supervisor Davis asked
her what she had on her mind, and that when Mrs. Innabnit
repplied that she had illness in her family on her mind,
Davis told her that she knew what he was talking about and
pointed to an election notice posted nearby. A discussion, of
alleged company promises, union claims, and Respondent's
position with respect to wage increases followed. I have also
27 In Paradise Bowl-0-Mat, Inc, 180 NLRB No. 1100, and C & M
Sportswear Manufacturing Corporation, 183 NLRB No. 29, cited by
Respondent, there was no deviation from an established policy with respect
to granting increases, and the employers in response to employee requests
for increases simply stated that they could not do anything about their
requests pending the election . The Court of Appeals for the Second Circuit
found that within, a few weeks before. the election after
asking Owens how he would like to make a career of
working with Respondent and . discussing, Owens' prospects
in that regard, Acting, Store Manager , ShelkofskyRaskedhim
what he thought about the election. I find in both instances
that the questions were more- than harmless passing
inquiries, and that , they constituted., interrogation in
violation of Section 8(a)(1) of the Act.28
3. The alleged promises of benefit
I have found that from 2 to 3 weeks before the election
Davis-made statements "to both Mrs. Innabnit and Clark
that he was not free to discuss raises, but that Respondent's
policy was to pay ' competitive wages and would continue
without change. In the case of Mrs. Innabnit, when she
expressed dissatisfaction for lack of a more direct answer,
Davis told her to read between the lines.' In the case- of
Clark, Davis conveyed to him that raises wouldbe granted
as soon as the election was over. In neither^case"did