The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1971

194 N.L.R.B. 774 (N.L.R.B. 1971)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Great Atlantic & Pacific Tea Co., Inc. and Local
525, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO. Cases
10-CA-8824 and 10-RC-8526
December 30, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 9, 1971, Trial Examiner Samuel Ross
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
As stated by the Trial Examiner, and also urged in
its brief to the Board, the Respondent contends that a
bargaining order is not justified because the authori-
zation cards were signed by the employees on the
misrepresentation that they would be used "only" for
the purpose of obtaining an election.
Although the Trial Examiner in his Decision, at
section III, B, and section III, F, third paragraph,
appears to find that the employees were told, among
other things, that the only purpose of the cards was
"to set up an election," he also finds that "There was
no misrepresentation by Smith as to the purpose for
which the Union sought the employees' signature to
the cards. He told them that they were needed to
obtain an election, and they were in fact used for that
purpose."
The testimony on the question as to what the
employees were told when they signed the cards casts
considerable doubt upon whether the Trial Examiner
intended to find that they were told that the only
purpose for the signing was to secure an election, and,
if he did so intend, whether he should be sustained.
The only testimony that the employees may have
been told that the only purpose for signing the cards
was to get an election came in response to a question
by the Trial Examiner during the cross-examination
of Smith, who had obtained all seven of the authoriza-
tions. The witness had been asked several questions
by counsel for the Respondent which went to the
witness' own purpose in getting the signatures, whether
I As the record and brief adequately present the issues and the positions
of the parties, Respondent's request for oral argument is hereby denied
he wanted an election, and why he had signed a card.
Objections were sustained to these questions, but, in
response to a question by Respondent's counsel as to
what statement he made to the signers, the witness
testified that he told the employees that "if they
signed the card that we would like a yes vote. If they
didn't just to hand it back blank." When asked if that
was all he told them, the witness replied in the
affirmative. He also testified that the purpose was to
set up an election. The Trial Examiner asked if that
was the only purpose for which the cards were to be
used, and the witness answered yes. After several
more questions by Respondent's counsel, as to which
objections were sustained, going to the witness' own
reasons and purpose for getting the cards signed, the
Trial Examiner again asked if the witness told the
employees that the purpose of signing the card was the
purpose of getting the election only. The witness
answered that he did not recall, that "The only thing I
said at the meeting was if they sign the cards to give a
yes vote and if they didn't give a yes vote not to sign
them at all."
Three other employees testified that they were told
to read the cards before they signed them, if they
wanted an election they had to have a majority of
such signed cards, and that, if they were not going to
vote yes, not to sign. They did not testify that they
were told that the only purpose was to secure an
election.
On this state of the record the Board does not adopt
the finding (if such was the Trial Examiner's intent)
that the employees who signed the cards were told
that the only purpose was for an election. Instead we
affirm his conclusion and rely upon his findings that
there was no misrepresentation in obtaining the
cards; that the employees were told that the cards
would be used for an election, and they were; that the
cards clearly authorized the Union to represent the
employees; and that the employees were told to read
the cards and not sign them unless they wanted the
Union to represent them and would vote for it in the
election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders the
Respondent, The Great Atlantic & Pacific Tea Co.,
Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.'
IT IS ALSO ORDERED that the election in Case
194 NLRB No. 132
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 775
10-RC-8526 be, and it hereby is, set aside and that
proceeding be, and it hereby is, dismissed.
herein, the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: On a charge filed on
January 25, 1971, and amended on March 10, 1971, by the
above-named Union, a complaint issued on March 22,
1971, which alleges that the above-named Company (herein
called the Respondent) engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) and Section
2(6) and (7) of the Act. The Respondent filed an answer to
the complaint which denies the commission of unfair labor
practices.
In Case 10-RC-8526, pursuant to a Stipulation for
Certification Upon Consent Election, an election was
conducted on January 21, 1971, which resulted in five votes
for and five votes against the above-named Union. On
January 22, 1971, the Union filed timely objections to
conduct affecting the results of the election. On April 1,
1971, the Regional Director in his Report on Objections
determined that the Union's Objections 1, 3, and 5 were
coextensive with the conduct charged as unfair labor
practices in Case 10-CA-8824, and he ordered that a
consolidated hearing be conducted on said objections and
complaint.'
Pursuant to due notice a hearing on these consolidated
cases was conducted before me at Kingsport, Tennessee, on
May 5 and 6, 1971. Upon the entire record,2 and my
observation of the witnesses and their demeanor, and after
due consideration of the brief filed on behalf of Respon-
dent, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a Maryland corporation, is engaged in
the operation of stores and supermarkets for the sale of
grocery products, including one located at Kingsport,
Tennessee, the only one involved herein. During the past
calendar year, a representative period, the Respondent's
gross volume of retail sales exceeded $500,000, and it
received merchandise at its Kingsport store valued in excess
of $50,000 which was shipped to it from places located
outside the State of Tennessee. On these admitted facts, I
find that the Respondent is engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
It is not disputed, and I find that at all times material
1 The Union's Objections 2 and 4 were withdrawn with the approval of
the Regional Director.
2 After the hearing closed, the Respondent moved to correct a number
of the many obvious errors in the transcript of the hearing The General
Counsel has filed no opposition to the said motion and it hereby is granted
except as to items 7, 9, 13, 16, 17, 21, 26, 30, and 31, as to which I regard
the record as accurate . These corrections, and a few noted by me, have
been made in the original transcript.
III. THE UNFAIR LABOR PRACTICES
A. The Issues Presented
In the unfair labor practice case, the Respondent is
charged with violating Section 8(a)(1) of the Act by
engaging in unlawful surveillance of a union meeting of its
employees, coercively interrogating employees regarding
their union membership, activities, and desires, and in
making threats and promises of benefits to employees to
discourage support of the Union and to bring about its
defeat at the Board election. In addition, the Respondent is
charged with violating Section 8(a)(5) of the Act for failing
and refusing to recognize and bargain with the Union as the
representative of its Kingsport, Tennessee, employees,
although the Union assertedly represented a majority of
said employees in an appropriate unit and requested such
recognition and bargaining. This phase of the cases before
me presents: questions of determining the credibility of
testimony; whether conduct and statements found to have
been engaged in constitute violations of Section 8(a)(1) of
the Act; whether the Union represented a majority of the
Respondent's employees in an appropriate unit for
collective bargaining; if so, whether the Respondent
violated Section 8(a)(5) of the Act by refusing to recognize
and bargain with the Union; and/or whether the Respon-
dent should in any event be required to recognize and
bargain with the Union as such representative in order to
remedy the violations of the Act which are found. In the
representation ' case , the issue presented is whether the
conduct which allegedly violated Section 8(a)(1) of the Act
requires the setting aside of the results of the election which
was conducted on January 21,
B. Background,- Union Organization
On November 9, 1970, according to the stipulation of the
parties, the Respondent had 10 employees in the produce-
grocery, dairy department unit at its Kingsport, Tennessee,
store, which later was conceded to be appropriate for
collective-bargaining purposes. On that date, an organiza-
tional meeting of the employees in the said unit was held at
the home of Ruby T. Jones, a checker-cashier employed at
the Kingsport store. About six or seven employees of the
store, including Produce Manager Clarence F. Smith,
attended the meeting .3 At the meeting, after the partici-
pants. discussed their various grievances with Respondent,
Smith distributed blank authorization cards of the Union to
the employees. Smith told the employees that the only
purpose of the-cards was "to set up an [a Board] election,"
that the signatures of a majority of the employees were
needed-- to obtain an election, that the employees should
3 There is no contention that Smith is a supervisor within the meaning
of the Act.
Prior to said meeting (on November 5, 1970), an election had been
conducted by the Board among the meat department employees of
Respondent's Kingsport , Tennessee, store . At that election , the Union had
received all of the votes cast, and it was later certified by the Board on
November 16, 1970, as the representative of said employees. Case
10-RC-8454.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
read the cards, and that they should return the cards
unsigned and "blank" unless they intended to vote "yes"
for the Union at the election. Smith and five other
employees then signed the Union's authorization cards,4
and the signed cards were given to Smith.
Prior to this meeting, Smith had secured the signature to
a union authorization card from employee Robert Allen
Moore.5 After the meeting, Smith telephoned John E.
Jervis, the Union's business agent, in Asheville, North
Carolina, and, pursuant to the latter's instruction, he mailed
the seven signed cards to him.
C. The Demand and Refusal to Bargain
By letter dated that same day, the Union notified the
Respondent that a majority of the employees in the
grocery-produce departments of the Kingsport store had
signed cards authorizing it to act as their collective-
bargaining representative, requested recognition of the
Union as such representative, and asked for a meeting on
December 7, 1970, at which it was prepared to prove its
majority status before any mutually agreed-upon person or
agency, and to enter into negotiations immediately
thereafter.6 On November 17, 1970, the Respondent by
letter replied that it did not believe the Union represented a
majority of the Kingsport employees in a unit appropriate
for the purpose of bargaining.7
On November 20, 1970, the Union filed a petition for
certification as the representative of Respondent's Kings-
port employees in the grocery-produce and dairy depart-
ments. On December 11, 1970, the Union and the
Respondent signed a Stipulation for Certification Upon
Consent Election, in which they agreed, inter alia, that the
following unit of Respondent's employees was appropriate
for the purposes of collective bargaining under the Act:
All employees of the grocery-produce and dairy
departments including produce department head, head
cashier and part-time employees employed by the
Employer at its Kingsport, Tennessee store, excluding
all meat department employees, guards, the store
manager, assistant store manager and all other
supervisors as defined in the Act.
The stipulation was approved by the Regional Director on
December 15, 1970, and, as noted above, the Board election
pursuant thereto was conducted on January 21, 1971, and
resulted in a vote of five for the Union and five against.
4 The other five were Jeff G. Bridwell, Jr, Curtis Tipton, Ruby T. Jones,
Jimmie Allen, and Gregory Lee Davis.
The findings above are based on the uncontroverted and credited
testimony of Smith and Ruby T Jones Jimmie Allen, a witness for
Respondent, gave no testimony contrary to that of Smith and Jones, and
he conceded on cross-examination that Smith might have said that "if you
didn't want the Union don't sign the card "
5 The record does not disclose what representations, if any, Smith made
to obtain Moore's signature
6 G.C Exh. 3.
T G.C. Exh. 4
8 Swift admitted that he visited the Peggy Ann Restaurant that night,
but he denied that he either stopped his car outside the restaurant's
window, or that he looked "into the store." According to Swift, he went to
the restaurant because his wife was out of town and he "enloy[ed ] eating
there " Swift also testified that he did not enter the restaurant because
D. Interference With and Restraint and Coercion of
Employees
1. Coercive interrogation and surveillance by
Store Manager Swift
In about mid-December 1970, the Union scheduled a
pre-Christmas dinner meeting for the night of December
23, and through Smith the unit employees were invited to
attend and enjoy a "free meal" paid for by the Union. The
impending dinner meeting was discussed openly by the
employees during the week preceding December 23. During
the day of the dinner meeting, Respondent's store manager,
William Russell Swift, an admitted supervisor, asked Ruby
Jones where the dinner meeting was scheduled to be held.
Jones at first refused to tell Swift, but after consulting with
Smith and obtaining his approval, she told Swift that "the
supper was going to be held at Peggy Ann's." That night,
about 10 employees attended the dinner meeting, and while
there, they observed Swift seated in his car in the parking
lot just outside the plate glass window of the restaurant.
According to the credited testimony of Smith, Jones, and
employee Gregory Lee Davis, Swift just sat in his car and
looked at them through the window for about 15 to 30
seconds and then drove away. On the following day, Swift
asked Davis whether he had attended the "supper," and
Davis replied that he had.8
I regard Swift's conduct described above as unlawful
interference with and restraint and coercion of employees
in the exercise of their statutory rights in the following
respects: (a) His interrogation of Mrs. Jones regarding the
place where the Union's dinner meeting would be held; (b)
his appearance at the restaurant window that night as
described by employees Smith, Jones, and Davis; and (c)
his interrogation of Davis as to whether he had attended the
dinner meeting. In these respects, Swift not only engaged in
coercive interrogation of employees regarding their support
of the Union and in actual surveillance of their union
activities, but in addition he thereby also conveyed to
employees the impression that such activities on their part
were subject to surveillance by Respondent. I conclude that
thereby the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act, and in
conduct which interfered with a free and untrammeled
choice by employees in the ensuing Board election.
2. Additional coercive interrogation by Swift
During the preelection period, Store Manager Swift
there were many more cars than "usual" in the parking lot, and he "figured
there wasn't any room [in the restaurant]." Swift admitted that he knew
before he went to the restaurant that the employees were having a union
dinner meeting there, and that he therefore was not surprised when he
recognized "employees' cars in the [parking] lot." However, in his affidavit
to an agent of the Board, Swift gave the following contradictory testimony
"When I got there [Peggy Ann's] I saw cars belonging to some of my
employees and didn't know what was going on so I went on to Shoneys."
Moreover, in the light of Swift's asserted preference for eating at Peggy
Ann's, I regard his explanation for leaving without even entering the
restaurant to ascertain whether there was "any room" for him as patently
implausible. For these reasons and others, including demeanor, I regard
Swift as a generally unreliable witness, and I do not credit either,his
explanation for his presence at the restaurant that night, or his testimony
that he did not stop his car and look into the restaurant window.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 777
frequently asked employee Ruby Jones what she thought of
the Union. Although Jones was "a union member" and
"believed in it," she falsely told Swift that she was not
"interested in it [the Union]" and that she and the other
employees were `just going along with it."9
Curtis G. Tipton is an 18-year old high school student
who works for the Respondent's Kingsport store part time.
In about mid-December 1970, while Tipton was working at
one of the cash registers in the store, he was summoned to
the office by Store Manager Swift and was asked by Swift
what he thought about the Union. Although Tipton was
one of the unit employees who signed a union authorization
card in Ruby Jones' home, he said to Swift that he "didn't
exactly know," and that he "didn't like it [the Union]."
Swift then told Tipton that if he "got in the Union," he
would later have difficulty obtaining employment from
Tennessee Eastman because they didn't like employees who
had "joined a union before."10 Swift further told Tipton
that if the latter decided after graduation from high school
to continue his education in North Carolina, for example,
and sought employment there at one of the Respondent's
stores, he "might have a hard tune getting a job" if "they
found out" that Tipton had "worked with a union in a
union store." 11
In the light of the false responses given by employees
Jones and Tipton to Swift's inquiries regarding their views
on the Union,'2 and the implicit threat to Tipton that
representation by the Union would render it difficult for
him to obtain employment in other, nonunion, stores of the
Respondent, I regard Swift's interrogation of Jones and
Tipton as unlawful interference with and restraint and
coercion of employees in the exercise of rights guaranteed
by the Act, and I conclude that thereby the Respondent
engaged in further violations of Section 8(a)(1). I also find
that by this conduct, the Respondent further interfered with
the conduct of a free and untrammeled choice by
employees at the Board election.
3. Earp's preelection interviews with the
Respondent's employees
On January 20, 1971, the day before the Board election in
Case 10-RC-8526, the Respondent's Kingsport store was
visited by Daniel H. Earp, the Company's personnel
manager from its Southern Division headquarters in
Charlotte, North Carolina.13 Earp ensconced himself at a
table in the back of the store in the lounge area where the
employees take their break periods, and proceeded to talk
to each of the employees for about 15 minutes, one at a time
for the most part, as they were sent back to him by Store
Manager Swift.
According to the credited testimony of employee Ruby
Jones, Earp asked her what the Union had promised her.
She in turn proceeded to tell Earp about her grievances with
Respondent, and he said that "they would be straighten
(sic) out if I didn't vote for the Union." 14 Earp also told
Mrs. Jones, as he admittedly also told all the employees
with whom he talked that day, that "if the Union achieved
representative status, her $9,000 life insurance policy with
the company . . . would be cancelled," and instead she
would become a participant in the Union's health and
welfare plan which provided only a $6,000 life insurance
policy. Earp also admittedly told Mrs. Jones that the
Union's health and welfare plan provided "major medical"
coverage of only $7,500, whereas the Company's plan
provided such coverage for up to $10,000.15 According to
the credited testimony of employee Curtis Tipton, when he
was interviewed by Earp, the latter reminded him that the
Board's election would take place the following day, and he
told Tipton that the "reason he wanted to talk with me was
for my benefit because he didn't want me to make the
wrong decision." Earp then told Tipton "about the
Company's insurance plan and some of [the] advantages of
working in a non-union store." Earp asked Tipton whether
he had ever considered working for Tennessee Eastman.
Tipton replied that he had considered it because his father
and all his friends worked there. Earp then told Tipton that
9 The quotes above are from Jones' credited testimony which was not
controverted by Swift.
10 Tennessee Eastman Co . (a division of Eastman Kodak Co.) is located
in Kingsport , Tennessee, and according to Standard & Poor's directory,
has 10 ,700 employees.
11 The findings in the foregoing paragraph are based on Tipton's
credited testimony. According to Swift, this conversation was initiated by
Tipton when he asked Swift 's opinion of the Union Swift denied telling
Tipton anything about "having a hard time getting a job" at Tennessee
Eastman As previously noted (see fn. 8, supra) I regard Swift's testimony
as generally unreliable , and I credit it in respect to the conversation with
Tipton only to the extent that it accords with the latter 's testimony.
12 Bennie Bourne, d/b/a Bourne Co v. N.L.R B., 332 F.2d 47 (C.A 2).
13 Earp's jurisdiction then covered 299 stores located in parts of
Virginia, North and South Carolina, Tennessee , and Georgia. Earp was
accompanied on this visit by Mr. Hubert Comer , the divisional "assistant
,of labor relations "
14 Earp denied that he promised to straighten out Jones' grievances, and
he testified in this regard , that all he said was that he "would certainly
check into it to see what the story was ." Earp also denied asking Mrs.
Jones, "how she felt about it [the Union ] or how she would vote or
anything ." For the reasons which follow , I regard Earp 's testimony as less
reliable than that of Jones , and I do not credit his denials above. When
Earp was first asked why he visited the Kingsport store on January 20, he
testified that it was because he was "in the area," and when elections are
impending, "we go in to see if the employees have any questions or
anything on their minds that they want to know about the company. We
give them the opportunity to ask questions." Earp further testified that he
had been told by James D. Stakias , the Respondent's area supervisor, "that
some of the employees had questions" and "it would help" if he came to
the store and answered them. Earp's testimony in this regard was anything
but frank, for he later admitted on cross-examination that he expressly
visited the Kingsport store to dissuade employees from voting for the
Union . Stakias, a witness for Respondent , failed to testify that he -had told
Earp that employees had questions they wanted hum to answer. Moreover,
Store Manager Swift admitted that none of the employees told him that
they had questions they desired answered, and he never reported any such
to Stakias All of the foregoing, other self-contradictory testimony, and
demeanor, persuade me that Earp's testimony in many respects lacked
frankness and reliability , and I credit his version of the conversation with
Mrs. Jones only to the extent that it accords with hers , or constitutes an
admission contrary to the Respondent's interest.
15 Earp initially testified that he furnished this information to Mrs.
Jones in response to her request that he tell her "the differences between
what the union had to offer and what the company had to offer." However,
on cross-examination , Earp admitted that he did not "recall her asking me
specific questions," and that "I volunteered the information as I always do
when I go in."
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he "had a union background," he "might have problems"
in obtaining employment at Tennessee Eastman.16
The complaint alleges that Earp's interviews with the
employees violated Section 8(a)(1) of the Act, and I find
that they did in the following respects:
The interrogation of Jones as to what the Union had
promised her clearly sought to elicit, as it did, why she
favored the Union. Moreover, the interrogation was
conducted by a high ranking official of the Respondent, its
regional personnel manager, and in the semi-privacy of the
back room of the store.17 I find that the interrogation
constituted interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act. Moreover, in the
light of the Supreme Court's decision in N.L.R.B. v.
Exchange Parts Co.,18 I regard Earp's promise to straighten
out Jones' grievances as a further violation of Section
8(a)(1). Thus, in the cited case, the Supreme Court said as
follows:
We have no doubt that it [Section 8(a)(1) of the Act]
prohibits not only intrusive threats and promises but
also conduct immediately favorable to employees which
is undertaken for the express purpose of impinging
upon their freedom of choice for or against unionization
and is reasonably calculated to have that effect.
Finally, as noted above,' Earp admittedly told all the
employees he interviewed that they would lose insurance
benefits by voting for the Union, but he concededly did not
tell them that the loss of such insurance benefits would not
be automatic, and would occur only if the Respondent and
the Union so agreed through collective bargaining. I find
that by these half truths, the Respondent threatened
employees with a reduction of their insurance benefits if
they designated the Union as their representative, and that
it thereby further restrained and coerced employees in the
exercise of their statutory rights, and further violated
Section 8(a)(1) of the Act.19 In all these respects , I also find
that the Respondent further interfered with the conduct of
a free election.
However, I do not regard Earp's statement to Tipton, that
as a union member he might have difficulty in obtaining
employment with Tennessee Eastman, as violative of the
Act. In this respect, Earp was expressing an opinion of the
labor policies of another employer, one over which there
has been no showing that the Respondent has any control. I
therefore regard this statement by Earp as free speech
protected by Section 8(c) of the Act.
4. The request of Davis for a full-time job
Gregory Lee Davis is a part-time store clerk employed by
the Respondent at its Kingsport store since February 20,
1970. In December 1970, Davis, who also was a vocational
school student at the airport, told Store Manager Swift that
he "was having a few financial problems," and that he "was
needing (sic) a full time job," and he asked Swift "if I could
get it." Swift replied that he didn't need anybody "right
now," but that there might be a vacancy in Respondent's
store in Bristol , and that he would look into it for Davis.
About a week before the Board election on January 21,
1971, Davis asked Swift whether he had heard anything
about the full-time job he had requested. Swift replied that
"he wasn't making any threats but that it could depend on
how the election went." 20
I conclude that by conditioning Davis' eligibility for full-
time employment on the outcome of the Board election, the
Respondent further interfered with, restrained, and coerced
employees in the exercise of their statutory rights, and
further violated Section 8(a)(1) of the Act. I also find that
by this conduct the Respondent further interfered with the
conduct of a free election by the Board.
5. Interrogation by Assistant Store Manager
Dobbins
In mid-February 1971, after the Board election, employ-
ees Curtis Tipton and Gregory Davis were in the store
office with Assistant Store Manager James Harry Dobbins
after the store closed, when Dobbins asked Davis why he
voted for the Union. Davis, in reply, asked Dobbins how he
knew that Davis had voted for the Union. Dobbins replied,
"By the way the vote went." Davis asked, "How do you
know that wasn't someone else's vote ." Dobbins responded
that it was because he "heard that you [Davis] were
promised a job in the meat department if you voted for the
union." Davis answered, "I voted for it because I thought it
was right, and I thought it was the thing to do." 21
At the time of this interrogation by Dobbins, an admitted
supervisor, there were pending before the Regional
Director the Union's objections to conduct affecting the
results of the election . In that context , I regard the
interrogation of Davis as to how he voted in the election as
interference , both with employees' statutory rights and with
the secrecy of the ballot in Board elections, and I conclude
that thereby, the Respondent further violated Section
8(a)(1) of the Act.22
E. ` Additional Conduct Allegedly Affecting the
Results of the Election
In addition to the previously noted testimony in support
of the allegations of the complaint, the General Counsel
also adduced testimony regarding two incidents in support
only of the Union's objections to conduct affecting the
results of the election.23 In brief, the two incidents maybe
described as follows:
16 Earp in effect denied that he said anything to Tipton about
Tennessee Eastman , but I do not credit his denial.
17 Cf Bourne Co v NLRB, Supra
18 375 U S 405, 409
is N L R B v Gissel Packing Company, Inc, 395 U.S. 575, 618
20 The findings and quotes above are from the credited testimony of
Davis Swift in effect denied that he had a second conversation with Davis
about a full-time job , but as noted above (see In. 8, supra), I regard Swift's
testimony as generally unworthy of credence, and I credit his testimony in
respect to this incident only to the extent that it accords with that of Davis
21 The findings above are based on the credited testimony of Davis
which was corroborated by Tipton. Dobbins admitted that he asked Davis
why he voted for the Union Dobbins testified , however, that he made this
inquiry in order to tell Davis that regardless of the outcome of the election,
a full-time job for him in the meat department was not available . I regard
Dobbins' proffered explanation as patently implausible , and I do not credit
it, for I cannot perceive how any inquiry of the way Davis voted was
required to accomplish the asserted purpose of imparting the intended
information to Davis
22 Since this conduct occurred after the Board election on January 21,
1971, it obviously could not have affected the results of the election.
23 In respect to these two incidents , the General Counsel expressly
THE GREAT ATLANTIC
1. On the day of the Board election and before voting
commenced, James D. Stakias , the Respondent's area
supervisor , assertedly told part-time employee Curtis
Tipton that if he voted for the Union , he would be making
one of the worst mistakes of his life , and that he would have
a hard time getting a job at Tennessee Eastman if he joined
the Union.
2. On the same day before voting began, Stakias
notified Walter R. Kern, another part-time employee, that
he had just received word from Respondent's divisional
headquarters that Kern's in-grade regular wage raise had
come through , that Kern's vote in the election might be the
deciding one, and that he would appreciate anything that
Kern could do in this regard.
Since I already have found above that the Respondent
engaged in numerous violations of Section 8(a)(1) of the
Act to discourage employee support of the Union, and that
such conduct had interfered with the exercise of a free and
untrammeled choice by employees in the Board election, I
deem it unnecessary to determine whether these two
incidents , which are not alleged as unfair labor practices,
further interfered with the conduct of the election ; results
of which I already have determined should be set aside.
F. The Refusal To Recognize and Bargain With
the Union
This leaves for determination the final question of
whether in the light of the violations in which the
Respondent engaged as found above, it thereby also
violated Section 8 (a)(5) of the Act and should therefore be
required to recognize and bargain with the Union as the
exclusive representative of the employees in the previously
described appropriate unit,24 or whether, because of said
violations , I should recommend only that the results of the
previous election be set aside and a new election ordered.
The Respondent contends that a bargaining order is not
justified in this case because the union authorization cards
were signed by the employees "solely for use in requesting
an election ." 25 In addition , the Respondent urges that if it
committed any unfair labor practices , they were "so
minimal as not to justify the extraordinary remedy of a
bargaining order." 26 These contentions will now be
considered and determined.
As previously noted , 7 of the Respondent's 10 employees
in the appropriate unit signed authorization cards for the
Union on November 9, 1970, after they were told by
employee Clarence F. Smith, himself a card signer , that the
only purpose of the cards was "to set up an [a Board ]
election," that the signatures of a majority of the employees
were needed to obtain an election , that the employees
should read the cards , and that they should return them
unsigned and "blank" unless they intended to vote "yes"
for the Union at the election . The Respondent's brief (p. 1)
urges that these statements by Smith "constituted a vital
misrepresentation as to the effect of the cards ," and,that the
cards so obtained cannot support a bargaining order. I do
disclaimed reliance thereon as unfair labor practices , and negated any
desire to amend the complaint tq so allege the conduct of Respondent.
24 N.L R.B. v Gissel Packing Company, Inc, 395 US. 575; Linden
Lumber Division, Summer & Co , 190 NLRB No 116
PACIFIC TEA CO ., INC. 779
not agree . In the Gissel case , supra at 606-607, the Supreme
Court stated:
... we think it sufficient to point out that employees
should be bound by the clear language of what they sign
unless that language is deliberately and clearly canceled
by a union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature. There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
cards will probably be used first to get an election.
There was no misrepresentation by Smith as to the purpose
for which the Union sought the employees ' signatures to the
cards. He told them that they were needed to obtain an
election , and they were in fact used for that purpose.
However, Smith also told the employees to read the cards,
which clearly stated in simple language as follows:
I hereby authorize Local 525 , Meat Food and Allied
Workers Union , AMC BW NA , AFL-CIO , to represent
me and bargain collectively with my employer in my
behalf, [and] to negotiate and conclude all agreements
concerning wages, hours, and all other conditions of
employment.
Moreover, he also told the employees not to sign the cards
unless they intended to vote "yes" for the Union at the
election. There was thus no statement by Smith calculated
to direct the card signer "to disregard and forget the
language above his signature ," 27 but to the contrary, Smith
specifically called attention to that language, and he
explicitly requested signatures only from those who wanted
the Union to represent them, and not merely an
opportunity to vote . I conclude from all the foregoing that
the cards were valid designations of the Union as the
representative of the card signers, and that on November 9,
1970, when the Union requested recognition and bargain-
ing, it represented a majority (7 out of 10) of the
Respondent's employees in the concededly appropriate
bargaining unit.
However , after that demand and the filing by the Union
of a petition for certification, the Respondent engaged in
numerous unfair labor practices clearly designed to
undermine the Union and to destroy its majority status.
Thus, as found above, the Respondent engaged in the
following acts of interference , restraint , and coercion of
employees in the exercise of their statutory right to bargain
collectively through a labor organization:
1. Store Manager Swift unlawfully interrogated em-
ployee Jones regarding the location of the Union's meeting.
2. He thereafter engaged in open surveillance of the
Union's meeting, and was observed doing so, - thereby
conveying to employees the impression that their union
activities were subject to surveillance by Respondent..
3. On the following day, Swift unlawfully interrogated
employee Davis as to whether he had attended the union
meeting.
4. Swift subsequently unlawfully interrogated employ-
25 Brief, p. 3.
26 Brief, p. 5
27 N L R B. v Gissel Packing Company, Inc., supra
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees Tipton and Jones regarding their views about the
Union.
5. In addition, he told Tipton, who was about to
graduate from high school, that if he later sought
employment at other stores of Respondent, he would
encounter difficulty in being hired if "they found out" that
he had "worked with a union in a union store."
6. On the day before the election, Regional Personnel
Manager Earp separately interviewed each of the unit
employees and told them in effect that if the Union won the
election, the employees would lose their' present life and
other insurance benefits which the Company provided, and
would receive instead lesser insurance benefits from the
Union. He significantly failed to tell the employees that this
result was not automatic and would occur only through
collective bargaining if the Union and Respondent so
agreed. Earp admitted that the express purpose of his visit
to the Kingsport store and his interviews with the
employees was to dissuade them from voting for the Union.
7. Earp also unlawfully interrogated employee Jones
regarding what the Union had promised to obtain her
support, and he promised that "they [the grievances] would
be straighten (sic) out if [Jones ] didn't vote for the Union."
8. Finally, Store Manager Swift told part-time employee
Davis, who had applied for a full-time job, that whether he
would be given one depended "on how the election went."
These extensive unfair labor practices quite obviously
achieved their objective of undermining the Union's
majority status, for the Union lost the election by a vote of
five for and five against. I regard these unfair labor
practices of Respondent which succeeded in destroying the
Union's majority status, especially the open and flagrant
surveillance of the union meeting, the threat of loss of
insurance benefits if the Union won the election, the
promise to straighten out grievances for voting against the
Union, and the implicit threat that full-time employment
with Respondent, and employment at other stores of the
Respondent, depended on defeat of the Union at the
election, as of such a pervasive character that the holding of
a fair rerun election by the use of traditional remedies is
slight. Accordingly, I conclude that the Respondent's said
conduct violated Section 8(a)(5) and (1) of the Act,28 and
that a bargaining order is required to protect the majority
employee sentiment previously expressed through the
Union's authorization cards.29
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, 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.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease ^ and desist,. therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Great Atlantic & ,Pacific Tea Co., Inc., is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 525, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees regarding their
union sympathies and desires, by engaging in surveillance
of the union activities of employees and conveying the
impression of such surveillance , by threatening employees
with reduced insurance benefits, loss of opportunities for
full-time employment or employment at other stores of
Respondent, and by promising to correct grievances, all to
discourage and undermine union membership or support
by the employees, the Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By its conduct set forth above, the Respondent also
has interfered with the -exercise of a free and untrammeled
choice in the election held on January 21, 1971.
5. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of the grocery-produce and dairy
departments, including the produce department head,
the head cashier, and part-time employees employed by
the Respondent at its Kingsport, Tennessee store,
excluding all meat department employees, guards, the
store manager, the assistant store manager , and all other
supervisors as defined in the Act.
6. Since November 9, 1970, Local 525, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, has been the exclusive representative of the
employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
7. By refusing on and after November 17, 1970, to
recognize and bargain collectively with the above-named
Union as the exclusive representative of its employees in
the aforedescribed appropriate unit, concerning rates of
pay,, wages, hours of employment, or other, terms, or
conditions of employment, and by thereafter engaging in
the conduct set forth above, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
28 Linden Lumber Division, Summer & Co, supra
29 N L R B v Gissel Packing Company, supra at 614
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 781
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Recommendations Respecting Case 10-RC-8526
I have found above that between the date of the filing of
the representation petition and the election, the Respon-
dent engaged in pervasive unfair labor practices which
precluded a free choice by employees at the election which
was conducted on January 21, 1971. To the extent that the
Union's objections to conduct affecting the results of the
election are based on the said unfair labor practices, the
objections are sustained, and I recommend that the election
be set aside. Since the Union represented a majority of the
employees in the appropriate unit at the time it requested
and was refused recognition and bargaining, and since I am
recommending a bargaining order because the pervasive
nature of the Respondent's unfair labor practices have
made the possibility of holding a fair rerun election slight at
best, I further recommend that the petition in Case
10-RC-8526 be dismissed.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
hereby issue the following recommended: 30
ORDER
Respondent, The Great Atlantic & Pacific Tea Co., Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regarding their
union sympathies or desires.
(b) Engaging in surveillance of the union activities of its
employees or in conduct which gives the impression of such
surveillance.
(c) Threatening employees with reduced -insurance
benefits, employment opportunities, or other reprisals, and
promising to correct grievances, or improve working
conditions, to discourage union membership or support.
(d) Refusing to recognize and bargain collectively
concerning rates of pay, wages, hours of employment, or
other terms and conditions of employment with Local 525,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive representative
of the employees in the following appropriate unit:
All employees of the grocery-produce and dairy
departments, including the produce department head,
the head cashier, and part-time employees employed by
the Respondent at its Kingsport, Tennessee, store,
excluding all meat department employees, guards, the
store manager, the assistant store manager, and all other
supervisors as defined in the Act.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Local 525, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with Local 525,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive representative
of all the employees in the appropriate unit described
above, and, if an understanding is-reached,- embody such
understanding in a signed agreement.
(b) Post at its store located in Kingsport, Tennessee,
copies of the notice marked "Appendix." 31 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent, shall be
posted by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply herewith.32
I further recommend that the complaint herein be
dismissed insofar as it alleges violations of the Act other
than those found above.
30 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations,
automatically become the findings, conclusions and decision and order of
the Board , and all objections thereto shall be deemed waived for all
purposes.
31 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
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."
32 In the event that this recommended Order is adopted by the Board,
after exceptions have been filed , this provision shall be modified to read.
"Notify said Regional Director for Region 10, in-writing , within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."
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 sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend to
carry out the Order of the Board
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of their
own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More"specifically,
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively interrogate you regarding
your union sympathies or desires.
WE WILL NOT engage in surveillance of your union
activities or in conduct which gives the impression of
such surveillance.
WE WILL NOT threaten you with reduced insurance
benefits, loss of employment opportunities, or other
reprisals, or promise to correct grievances or improve
working conditions, in order to discourage union
membership or support.
WE WILL respect your rights to self-organization, to
form, join, or assist any labor organization, or to
bargain collectively in respect to any term or condition
of employment through Local 525, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, or any representative of your choice, or to
refrain from such activity, and WE WILL NOT
interfere with, restrain, or coerce our employees in the
exercise of these rights.
WE WILL, upon request, bargain collectively with
Local 525, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive representative of all employees in the
bargaining unit described below, concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, we will embody it in a signed agreement. The
bargaining unit is:
All employees of the grocery-produce and
dairy departments, including the produce depart-
ment head, the head cashier, and part-time
employees employed by us at our Kingsport,
Tennessee, store , excluding all meat department
employees, guards, the store manager, the assist-
ant store manager, and all other supervisors as
defined in the Act.
You and all our employees are free to become members
of any labor organization, or to refrain from doing so.
Dated By
THE GREAT ATLANTIC &
PACIFIC TEA CO., INC.
(Employer)
(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,
Peachtree Building, Room 701, 730 Peachtree Street, N.E.,
Atlanta, Georgia 30308, Telephone 404-526-5760.