The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1960

129 N.L.R.B. 757 (N.L.R.B. 1960)

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 757
The test of independent contractor status is whether the employer or principal
retains the right of control over the manner of performance of the contractor. Thus
in the case of Golden Age Dayton Corporation, 124 NLRB 916, the Board said,
The Board has frequently held that, in determining the status of persons
alleged to be independent contractors , the Act requires the application of the
"right of control" test . Where the person for whom the services are performed
retains the right to control the manner and means by which the result is to be
accomplished, the relationship is one of employment ; on the other hand, where
control is reserved only as to the result sought , the relationship is that of
independent contractor . The resolution of this question depends on the facts
of each case , and no one factor is determinative.
See also N.L.R.B. v. Nu-Car Carriers, Inc., 189 F . 2d 756 (C.A. 3); N .L.R.B. v.
Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C.A. 7); Southern
Shellfish Co., Inc., 95 NLRB 957.
In the instant case the facts do not reflect control in the Respondent over the
manner or means of performance by the dealers. Manifestly the Respondent may
not continue to direct the operation of the stations under the guise of "suggestions."
However , neither must it, in order to avoid a conclusion of control, eschew all
manner of suggestive--or even critical--comment. The difference between what
is control and what is not may at times be subtle, but it is nevertheless real. Here
I am persuaded that the Respondent neither exercises nor has the right to control
the manner or means of performance by the dealers.
Cases cited by the General Counsel , such as Shell Oil Company , 90 NLRB 371;
Standard Oil Company ( Indiana), 81 NLRB 1381 ; J. G. Howard Lumber Company,
93 NLRB 1230; Southern Shellfish Co., Inc., 95 NLRB 957; H. T. Davenport, d/b/a
Enterprise Lumber & Supply Co., 96 NLRB 7.84; Ernest Whiting, et al., d/b/a
Whiting Lumber Co ., 97 NLRB 265, are distinguishable . In each of those cases the
relationship contained substantial elements of employer control, reflecting employer-
employee status.
Upon the basis of the facts in this record , it is found that the dealers are inde-
pendent contractors , and that neither they nor the attendants at the leased stations
are employees of the Respondent . There was therefore no obligation to bargain con-
cerning the conditions of employment of such persons. In such circumstance it is
unnecessary to consider other questions raised , such as whether the Union continued
to represent a majority of the station attendants at the time of the alleged refusal
to bargain, or whether there is an appropriate bargaining unit . It will be recom-
mended that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent has not committed unfair labor practices within the meaning
of Section 8(a) (1) and (5) of the Act.
[Recommendations omitted from publication.]
The Great Atlantic & Pacific Tea Company, Inc. and John J.
Schobel . Case No. 14-CA-2240. November 25, 1960
DECISION AND ORDER
On April 14,1960, Trial Examiner Arnold Ordman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a) (1) and (3) of the Act
and recommending that it cease and desist therefrom, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
129 NLRB No. 88.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent filed exceptions to the Intermediate Report, a supporting
brief, and a request for oral argument.1
Pursuant to the provisions of Section 3(b) of the National Labor
Relations-Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Jenkins and Fanning].
,The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and finds merit in some of the Respondent's exceptions. Accord-
ingly, the Board adopts the findings of the Trial Examiner only inso-
far'as consistent with this Decision and Order.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (3) and (1) of the Act by Chalfalit's discharge of Alvin Hongser-
meier and Charles Thompson on December 7, 1959. In reaching this
conclusion, the Trial Examiner relied principally on the following:
(a) The alleged'discriminatees were in the forefront of union ac-
tivity at Respondent's plant and Respondent knew of their union
sympathies; (b) approximately a week before the representation elec-
tion held at the plant 'on July 22, 1959, W. L. Anderson, who was at
that time a supervisor at the plant but who has since left, had interro-
gated Hongsermeier as to main union supporters; threatened him with
loss of benefits in the event of his continued support of the Union ; and
sought to induce him to withdraw such support; (c) no disciplinary
action was taken against Harold Newman, a participant in the inci-
dent upon which the two' discharges were allegedly predicated; and
(d) the discharges took place toward the end of the 6-month period
during which the filing of a new representation petition by the Union
was precluded.'
The Respondent contends that the. Trial Examiner was biased as
evidenced by his distortion of testimony and gross speculation 3 and
that the above 8(a) (3) and (1) findings are not supported by evi-
dence on the record as a whole. As to (a) above, the Respondent con-
tends that uncontradicted evidence establishes that the discharges
1 As the record , including the exceptions and brief , adequately sets forth the issues and
positions of the parties , this request is hereby denied
2 As noted by the Trial Examiner, the Regional Director, by letter dated July 30, 1959,
advised the Respondent and the Union that the lattei ' s request for the withdrawal of its
petition for certification as bargaining representative of the Respondent's employees had
been approved and that the Board, absent good cause shown , would not entertain a new
petition from the Union for a period of 6 months.
a This charge of bias is not based on any alleged statements of the Trial Examiner which
might indicate that he had prejudged this case nor upon his conduct or rulings made at
the hearing ; but, as indicated , is directed to his findings and conclusions , and the analysis
of the facts upon which they are based, as set forth in the Intermediate Report ' Possible
errors of this sort are hardly sufficient to establish bias. Accordingly , we reject this
contention . Sears Roebuck & Company, 110 NLRB 226, 227 , footnote 2.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 759
were effected following instructions issued by Chalfant's superiors to
him during the month preceding the discharges to increase production
in the plant and that repeated violations, following warnings, were
another contributing factor in the discharges for leaving their jobs
when needed for.production. As to (b), it argues that it was not
shown that Chalfant knew of Anderson's animus toward Hongser-
meier. As to (c), its position is that Newman was not engaging in
work violations. As to (d), it points out that the discharges occurred
almost 2 months before a new petition could have been filed.
Of the above findings, (a) raises only a suspicion of discriminatory
discharge. As to (b), the incident involving Supervisor Anderson
occurred, as noted, almost 5 months before the discharges and there is
no evidence of any union activity in the interim. On these facts, we
are unable to infer any causal connection between the discharges and
Anderson's union animus.' As to (c), Newman, unlike the alleged
discriminatees, was not, at the time 'of the incident out of which the
discharges arose, responsible for keeping the girls supplied with eggs.
Hence this dereliction in supplying eggs was applicable to the dis-
criminatees only. Further, Newman had not been warned for prior
offenses, ashad the other two. Also, the Respondent was aware of the
union sympathies of all three. We find, unlike the Trial Examiner,
that under these circumstances, the failure to discharge Newman does
not indicate disparate treatment. As to (d), we disagree with the
conclusion that the discharges took place toward the end of the 6-
month period during which the Union was precluded from filing a
new representation petition, inasmuch as they occurred almost 2
months before the end of such period. Furthermore, as noted above,
it does not appear that, at any time during the 6-month period, the
Union engaged in any activity whatsoever at the Respondent's plant
or exhibited any indication that it intended to file a new petition.5
The only evidence of motivation for the discharges, in the interim
was instructions to Chalfant to increase production. There also were
repeated violations of working instructions by the two alleged dis-
criminatees, despite Chalfant's warnings. Under the circumstances,
we find no discriminatory motivation in the timing of the discharges.
Thus, of the above findings relied on by the Trial Examiner, only
the one that Hongsermeier and Thompson were in the forefront of
union activity and that the Respondent knew of their union sympa-
thies, is sustained by the record. However, the Board has found that
an employer's knowledge of union activity by its employees is not
alone sufficient to establish discriminatory motivation,'
' Rugcrofters of Puerto Rico , Inc., 112 NLRB 724, 726.
5A new petition for employees at the Respondent ' s plant was not filed until August 4,
1960, and by a different local of the Union.
6I ucille of Hollywood, 93 NLRB 37, 38
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of all the foregoing, and on the entire record, we find that
the preponderance of evidence fails to support a finding that 'the two
discharges were discriminatory.
2. The Trial Examiner also found that the Respondent, by Ander-
son's remarks to one employee on a single occasion consisting of inter-
rogation, threats, and solicitation to withdraw support from the
Union, violated Section 8(a) (1) of the Act. As this one isolated inci-
dent is the only remaining issue for our consideration, we find that,
under the circumstances, it would not serve any useful purpose to issue
any cease-and-desist order based thereon?
In view of the foregoing, we shall dismiss the complaint in its
entirety.
[The Board dismissed the complaint.]
MEMBER JENKINS, concurring :
I agree that the complaint in this case should be dismissed nl its
entirety. I am of the opinion, however, that my colleagues have not
made the reasons for the dismissal sufficiently clear. Under the cir-
cumstances, I feel constrained to separately state my views with
respect to this case.
In June 1959, the Union began to organize the Respondent's ware-
house employees. It filed a petition for certification, the parties
entered into a consent-election agreement, and an election was held on
July 22, 1959. The ballots were never tallied, however, because the
Union had in the meantime requested withdrawal of its petition. On
July 30, 1959, the Board's Regional Director advised the parties that
the request for withdrawal had been approved and that absent good
cause shown a new petition would not be entertained for a period of
6 months.
After the July 22 election there was no union activity whatever, and
there is no evidence that the Respondent did anything to oppose the
unionization of its employees. I shall advert later, and in some detail
to an incident which occurred about July 15, 1959, which the Trial
Examiner used as a basis for finding an independent 8(a) (1) viola-
tion and which my colleagues and I are unanimous in reversing.
Almost 5 months later, on December 7, 1959, the Respondent dis-
charged Hongsermeier and Thompson. The circumstances surround-
ing these discharges are fully related in the Intermediate Report. The
Trial Examiner, despite his ultimate conclusion, found that these em-
ployees were "admittedly derelict in their duties on the occasion in
question," and the facts, in my opinion, makes this manifest. The cir-
4 The Frohman Manufacturing Co., Inc, 107 NLRB 1308, 1315; Atla8 Storage Division,
P et V Atlas Industrial Center, Inc., 112 NLRB 1175, 1180
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 761
cumstances surrounding the December 7 episode were preceded by
earlier incidents involving Hongsermeier and Thompson. About 2
months before, Manager Chalfant told another employee to go up to
the attic to get some envelopes and Hongsermeier, in Chalfant's
presence, told that employee not to do it. Both Hongsermeier and
.Thompson admitted engaging in horseplay in the work area during
worktime and had to be cautioned by Chalfant to quit cutting up and
to pay attention to their work. This occurred in October 1959. In
early November 1959, one of the office girls called to Chalfant's atten-
tion that during the lunch hour Thompson and Hongsermeier had let
the tables run out of eggs and that when the female employees had
called for eggs, made fun of them, ignored them, and went "playing
around." The following day, another complaint was made to Chal-
fant, and again he had to caution them to "cut out the foolishness and
get back to work." On this occasion, the lights were turned off, and
when Chalfant reprimanded Hongsermeier, the latter retorted, "We
like to work in the dark." On November 17, Chalfant's superior, hav-
ing previously warned him that he would have to improve production,
called a meeting of the female employees to discuss the situation. At
this meeting several of these employees complained that they would
have to have more cooperation from the "boys." There appears to
.have been an awareness following the November 17 meeting that it was
necessary to pay closer attention to the work.
This background of events leading up to the discharges on Decem-
ber 7 is significant. It indicates rather clearly the circumstances that
surround Chalfant's decision to discharge Hongsermeier and Thomp-
son on that date. The horseplay on December 7 when Hongsermeier
spent time examining a shotgun while the egg candlers were calling
for eggs, in the light of the incidents which had preceded them,
represented a culmination of events that finally resulted in the two
discharges.
In appraising these facts, I can come only to one conclusion and
that is that the discharges were for cause. The evidence of the cause
for discharge is clear, the Trial Examiner recognized that the Re-
spondent had a right to discharge for the reasons stated, and what-
ever union activity there may have been had come to an abrupt halt
almost 5 months prior to the events of December 7. In these circum-
stances, discriminatory motivation was not established, and the
complaint insofar as it alleges violations of Section 8(a) (3) of the
Act must be dismissed.
I turn'now to the allegation that the Respondent had engaged in an
independent violation of Section 8 (a) (1).
Approximately July 15, 1959, Hongsermeier and Anderson (a tem-
porary supervisor brought in from another town) spent the evening
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together. They had been friends who had on many occasions fished
and hunted together. That evening they met at a tavern and pool
hall about 7 miles from Nashville, played pool, sat at a bar for 11/2
or 2 hours, and then sat in Anderson's car for another 2 hours. Both
consumed beer for many hours on this occasion. During the course
of this session, Anderson made remarks which the Trial Examiner
found constituted unlawful interrogation and threats of detriments
which would follow unionization. I cannot sustain this finding. To
find a violation of the Act on facts such as these is to be wholly un-
realistic and to shut one's eyes to the facts of life. Moreover, the
courts have sought over the years to clarify the statutory policy so as
not to impute to employers responsibility for statements made under
circumstances such as present here. Thus, the Fifth Circuit in
N.L.R.B. v. Whittier Mills Company, et al., 111 F. 2d 474, 479, stated:
Isolated speeches like these made by underlings, though having
some authority, in casual conversation with fellow employees,
which are not authorized or encouraged or even known to the
management, ought not to be too quickly imputed to the employer
as his breaches of the law. When not made in the exercise of
authority, but in personal conversation, they do not appear to be
the sentiments of the employer nor his acts, and to make them
such the circumstances ought to show some encouragement or
ratification or such repetition as to justify the inference of a
policy which they express.
I fully subscribe to this enunciation of principle, and for this reason
reject the Trial Examiner's finding of an independent violation of
Section 8 (a) (1).
In summary, we have in this case a failure on the part of the Gen-
eral Counsel to establish a prima facie violation of the Act in the first
instance. Nonetheless, the Respondent goes forward with the evi-
dence and establishes good cause for the discharges. The Trial Ex-
aminer, in attempting to make out a case of discriminatory discharges,
reaches out for a straw, the Hongsermeier-Anderson drinking bout,
to inject a possible union animus when it is obvious the Union has
been completely out of the picture for almost 5 months and there is
not a scintilla of evidence that the Respondent has evinced any oppo-
sition to the unionization of its employees. Indeed, the very episode
the Trial Examiner strains so hard to utilize is one that preceded the
stillborn election in July, and can therefore be of no particular
relevancy in passing on the circumstances surrounding the discharges
in December, when the Union had completely faded from the picture.
It is for these reasons that I conclude that the Respondent had not
violated Section 8 (a) (1) or (3) of the Act.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC . 763
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in St. Louis, Missouri, on February 16 and 17, 1960, on complaint
of the General Counsel and answer of The Great Atlantic & Pacific Tea Company,
Inc., herein called Respondent. The controverted issues are: (1) Whether Respond-
ent by certain acts and conduct of its supervisors interfered with its employees'
organizational rights in violation of Section 8(a)(1) of the National Labor Re-
lations Act, as amended (61 Stat. 136, 73 Stat. 519); and (2) whether Respondent
discriminatorily discharged two employees, Alvin Hongsermeier and Charles Thomp-
son, in violation of Section 8(a)(3) and (1) of that Act. General Counsel argued
the case orally at the close of the hearing and briefs have been filed and duly
considered.
Upon the entire record,' and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation engaged in nationwide purchase, retail
sale, and distribution of groceries, meats, produce, and eggs. Included among its
operations is an egg-grading plant at Nashville, Illinois, the only facility here in-
volved, at which eggs are received, graded, and ultimately shipped to Respondent's
retail store outlets in Illinois and Missouri.
Respondent admits, and I find, that the volume of Respondent's business and the
scope of its interstate operations are ample to warrant the assertion of jurisdiction
herein.
H. THE LABOR ORGANIZATION INVOLVED
Local 585, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, herein called the Union , is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
During the period here relevant, from June to December 1959, the production and
maintenance employees at Respondent's Nashville plant consisted of 16 women
candlers who graded and sorted eggs and -a handful of men who did the heavier
work such as loading and crating. Supervision was afforded by Dean Chalfant who
reported to the Nashville plant as plant manager in May 1959. From May to
October 1959, W. L. Anderson, manager of Respondent's nearby Litchfield egg
plant, also acted in a supervisory capacity at Nashville and was responsible for
training Chalfant in his managerial role.
Organizational activities among Respondent's Nashville employees began in the
latter part of June 1959. Two organizational meetings were held attended by all the
production and maintenance employees and by representatives of the Union. The
first meeting was held on the afternoon of July 1, following the close of work at 4
p.m., at the Odd Fellows hall in Nashville, about a 5-minute drive from the plant.
The second meeting was held in the same place at the same time of day about 2
weeks later.
During this ,period the Union filed a petition for certification as bargaining repre-
sentative of the Nashville employees, and pursuant to a consent-election agreement
between Respondent and the Union, an election was conducted among the employees
on July 22, 1959. The ballots were never tallied, however, because the Union had
in the meantime requested withdrawal of its petition. By letter dated July 30, 1959,
the Board's Regional Director for the Fourteenth Region (St. Louis, Missouri) ad-
vised Respondent and the Union that the request for the withdrawal of the petition
had been approved and that the Board, absent good cause shown, would not enter-
tain a new petition from the Union for a period of 6 months.
i A stipulation to correct certain patent inaccuracies in the transcript of the testimony,
executed by counsel for each of the parties and received by the Trial Examiner on
March 18, 1960, is hereby approved.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint, and coercion
1. Surveillance
General Counsel alleges that Manager Dean Chalfant engaged in unlawful sur-
veillance of a union meeting in violation of Section 8(a) (1) of the Act.
The relevant facts are virtually undisputed. The second meeting took place, as
already indicated, at the Odd Fellows hall in Nashville shortly after 4 p.m. A
number of the employees left the meeting early, returned to .the plant and told Dean
Chalfant that they had been ousted from the union meeting. They asked Dean
Chalfant what they should do, but Chalfant made no response.
In the meantime the employees who supported the Union continued their meeting
and adjourned at 5 p.m. They then left the Odd Fellows hall in a group. As they
emerged from the hall, they saw Chalfant standing in plain view with Harold Rix-
man behind a big plate glass window in the latter's garage which was situated across
the street from the Odd Fellows hall. The employees waved to Chalfant and
Rixman and Chalfant and Rixman waved back.
Chalfant denies that his presence at Rixman's garage on this occasion was for the
purpose of surveillance. Under all the circumstances I credit this denial. Real-
istically, there was no need for Chalfant to have engaged in surveillance. The
information already furnished him by the employees who came to see him would
have sufficiently apprised him of the nature of the meeting and the identity of those
present. Moreover, any information he lacked in that regard would undoubtedly
have been furnished him readily by those same employees, had he chosen to inquire.
Moreover, Chalfant's presence in Rixman's garage on this occasion, which might
otherwise give rise to an adverse inference, is scarcely susceptible to such an in-
ference in the instant case. Undisputed evidence establishes that Chalfant and Rix-
man were good friends and that it had been Chalfant's practice for some time to drop
in to see Rixman two or three times a week after work. Chalfant's conduct on the
day here in question was wholly consistent with his prior practice.
It is arguable, of course, that Chalfant should have realized from the information
earlier given him that the union meeting might still be in progress and that he should
have stayed away from the area of the meeting hall lest his presence be misunder-
stood. I am doubtful that the Act can be read as imposing such a requirement.
Furthermore, the record tends to refute any suggestion that Chalfant's presence with
Rixman on this occasion might be misconstrued by the employees. Chalfant's friend-
ship with Rixman was known as employee Hongsermeier's testimony reveals, and
the fact that the employees in question waved to Chalfant and Rixman and were
waved to in return tends to belie the suggestion that the employees would thereby
feel under a sense of constraint.2
In sum, therefore, a finding that Chalfant engaged .in unlawful surveillance or that
the employees might have derived that impression could be predicated only on
suspicion or conjecture. I find that General Counsel has not sustained his burden
of proof in that regard and recommend dismissal of the allegation respecting
surveillance.
2. Interrogation and threats
The remaining allegations of the complaint relating to interference, restraint, and
coercion, apart from the incidental impact of the discharges, relate to the conduct of
W. L. Anderson. As already noted, Anderson served in an admittedly supervisory
capacity at the Nashville plant from May to October 1959.
According to Alvin Hongsermeier, a leading protagonist of the Union and one of
the two employees alleged to have been discriminatorily discharged on December 7,
1959, he and Anderson spent several hours together, about a week before the July 22
election, at a tavern in New Minden about 5 miles from Nashville. Anderson had
suggested that They go to the tavern to play pool, an activity in which they had en-
gaged on prior occasions .3 Each drove his own car to the tavern, arriving about
5 p in. They played pool until about 10:30 and then sat at the bar for about 11
to 2 hours where Anderson drank a number of beers, and then went out to sit in
Anderson's car where the latter consumed some more beer.
Hongsermeier testified further that about 11 p.m. while sitting at the bar Anderson
introduced the subject of the Union with the comment, "You won't be able to prove
In this connection, it is pertinent to note that Rixman was opposed to the Union and
at times discussed with Chalfant the union sympathies of Chalfant's employees. How-
ever, there is no evidence, and no claim is made, that Rixman was in any way an agent
of, or occupied any official position with, Respondent.
$Anderson and Hongsermeier had also gone on fishing and hunting trips.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 765
what I am going to tell you, because there is just you and me here, and , after all, I
have been with the Company about 25 years ." Anderson went on to say that he had
taken Charles Thompson ( the other employee alleged to have been discriminatorily
discharged ) and Hongsermeier into his confidence and that if they voted for the
Union they would never get any place with the A. & P. He said he had boys at the
Litchfield egg plant who were eligible for promotion but they were still on the floor
and "that is where they were going to stay." Anderson added that the Nashville em-
ployees did not need a union and that they had the same benefits and wage scale as
the Litchfield employees. He also asked Hongsermeier who was going to send his
children to college, commenting that the A . & P. was going to send his, and asked
Hongsermeier how many people he knew that were union members and were sending
their children to college. Anderson also said he knew that employee Kathryn Broad-
water was one of the main union supporters and asked Hongsermeier who else was.
Hongsermeier did not reply to this query.
W. L. Anderson , who testified in Respondent 's behalf, corroborated much of
Hongsermeier 's testimony . Preliminarily , Anderson acknowledged that he and
Hongsermeier had met at the tavern for a session of pool and that each had driven
to the tavern in his own car. Anderson testified that, as he recalled , Thompson was
also present at the beginning of the evening but was not present when he discussed
the Union with Hongsermeier at the bar. However, Anderson declared that Hong-
sermeier had raised the subject of the Union although he could not remember how.
In direct examination Anderson denied that he had questioned Hongsermeier con-
cerning the latter 's union activities or the union activities of other employees , or that
he had threatened Hongsermeier with loss of benefits if he continued to support the
Union. Finally , Anderson acknowledged that he might have discussed the difference
in sick benefits between the unionized Litchfield plant and the nonunionized Nash-
ville plant.
On the other hand, Anderson , who acknowledged that he had consumed a quantity
of beer, admitted that he had told Hongsermeier almost at the outset of their con-
versation that the latter couldn ' prove what Anderson said because they were alone.
As to other phases of the conversation and later events that evening, Anderson
credibly testified that his memory was vague . Thus, he predicated his denial that he
had engaged in interrogation and threats on the ground that such action would be
contrary to company instructions . Yet Anderson conceded that it was "questionable"
whether he was capable of following those instructions at all times that evening .4
On the basis of the foregoing , I credit Hongsermeier 's version , corroborated in sub-
stantial part by Anderson , of the events and conversations at the tavern . Accordingly,
I find that Anderson-admittedly a supervisor-interrogated Hongsermeier concern-
ing union activities , threatened him with loss of benefits if he continued supporting the
Union, and sought to induce him to withdraw his support of the Union . I find fur-
ther that Anderson's statement concerning the failure of deserving employees at the
unionized Litchfield plant to obtain promotions constituted a further threat as to the
detriments which would follow unionization at Nashville . In this connection, I
recognize that the history of friendly association between Anderson and Hongser-
meier and the former 's lack of sobriety on the occasion in question might be regarded
as detracting somewhat from the coercive force of his remarks. On the other hand,
the fact that these remarks were uttered 1 week before the forthcoming election and
that Anderson was prompted to reveal an attitude which otherwise might have been
circumspectly concealed could not fail to impress Hongsermeier , or any fellow em-
ployees to whom he may have communicated this conversation , with the reprisals
which Respondent was ready to visit upon union adherents.
Accordingly, I find that Respondent , by Anderson 's interrogation , threats, and
solicitation to withdraw support from the Union , violated Section 8(a) (1) of the Act.
C. The discriminatory discharges
The complaint alleges and the answer admits that Respondent discharged Alvin
Hongsermeier and Charles Thompson on December 7, 1959.
A brief description of the Nashville plant's processes and its physical layout will
facilitate understanding of the events preceding the discharges and Respondent's de-
fenses in that regard . The plant which faces west runs from west to east a distance
of about 150 feet and is 40 feet wide from north to south . There is a door at the
4 There is no evidence in the record that the employees were ever apprised of the
existence of such instructions.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
front of the plant to which individual farmers bring eggs . Two of Respondent's male
employees-during the period here relevant , Alvin Hongsermeier and Charles
Thompson-receive the eggs, note the name and address of the farmers and the
number of eggs he brings , make out an appropriate ticket, and load the eggs on
candling tables, hereinafter described , for grading and crating by the candlers.5
The office where Plant Manager Dean Chalfant and the office help work occupies
an enclosed space to the right of the front door in the southwest corner of the build-
ing. Running along the northern side of the building for about half its length is a
compartment known as the candling room . The candling room has 16 enclosed
candling booths side by side which face toward the middle of the building and which
together extend a distance of about 70 feet . The 16 women candlers employed by
Respondent work in these booths which are darkened and have only a single small
light which the women use for candling the eggs before grading and sorting them.
Behind the booths there is a 3 -foot wide aisle running the length of the candling
room which has doors at either end and which provides access to the candling booths.
On the other side of the aisle against the northern wall are stored the various types
of 12-egg cartons which the candlers use for packaging the eggs. When the women
candlers complete their operation , the cartons of eggs go from the candling room on
a belt to a sealing machine and then to a packing table located about the center of
the plant where the cartons are further packed into cases for shipment to Respond-
ent's retail outlets or for temporary storage in the storage cooler. The storage cooler
is a large compartment along the southern side of the plant opposite the candling
room beginning about 15 or 20 feet beyond the office enclosure and extending a little
more than half way down the length of the plant . The back part of the plant con-
tains a lunchroom , restrooms , and a large storage area. The heavy packing and
loading at the back of the plant is done by male employees who on occasion, as the
need arises and if time is available , help the men who work in front.
In front of each candling booth is a table in the form of a conveyor belt which
runs into the candling booth and is operated by a pedal inside the candling booth.
Each table holds 11/2 cases of eggs or about 45 dozen which are carried by the con-
veyor belt into the candling booth through an opening several inches high which is
covered by a plastic curtain . One of the principal duties of Hongsermeier and
Thompson , as already noted , is to keep the candling tables in front of the candling
booths supplied with eggs for the candlers to work on.
Turning now to specific consideration of the discharges , the evidence establishes
that Alvin Hongsermeier began his employment with Respondent at the Nashville
plant in March 1957 , and worked until his discharge on December 7, 1959 . Charles
Thompson started working in July 1959, and was likewise discharged on December
7, 1959 . Beginning in the latter part of June 1959 , both individuals became inter-
ested in forming a union at the Nashville plant. Enlisting the aid of employee
Kathryn Broadwater , one of the candlers, they contacted Joe Vargo , representative
of the Union . Thereafter Hongsermeier and Thompson arranged for union meetings
at the Odd Fellows hall, and solicited employee attendance at the meetings and em-
ployee support for the Union . Their activities on behalf of the Union were open and
unconcealed , and Respondent admits its knowledge of their union sympathies.
The events of December 7, 1959, which , according to Respondent , led to the
discharge of Hongsermeier and Thompson , were testified to by several witnesses and
the respective accounts are relatively free of major discrepancies . The lunch break
for the employees is from 11:30 a.m . to 12 noon. At 11:30 a.m. on December 7,
Hongsermeier clocked out for lunch. A few minutes before noon he returned,
bringing with him his shotgun which Harold Newman , a fellow employee , had asked
to see, and a picture of his baby . Hongsermeier handed the shotgun to Thompson
and Newman who were standing just inside the front of the building , clocked in at
exactly 12 noon , and went into the candling room to show the picture of his baby
to the candlers . He spent about 5 minutes in this activity and then returned to
where Thompson and Newman were standing examining the gun. As he approached,
Newman commented that the gun looked as though its barrel had been sawed off.
At that instant Plant Manager Dean Chalfant emerged from his office where he had
just finished preparing the order for the outgoing shipment of eggs which he would
hand to Newman whose job it was to load the shipment . Chalfant testified that dust
before he left his office, he heard several of the candlers calling for eggs for their
6 These two employees also receive two bulk deliveries of eggs which are made daily by
the Illinois Farm Supply Company at a side door on the south side of the plant. Upon
receiving these bulk deliveries , the eggs are processed in the same way as those bought
by Individual farmers
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC . 767
candling tables.6 As Chalfant stepped out of his office, he saw Newman, Thompson,
and Hongsermeier congregated around the gun and ordered them, in substance, to
quit fooling around, to get back to work, and to keep the candling tables supplied
with eggs. The three men complied with Chalfant's directive? Chalfant and New-
man lent brief assistance to Thompson and Hongsermeier at this juncture and then
Chalfant left for his lunch and Newman returned to his regular duties at the back of
the plant. No further events of any consequence took place at the plant for the
remainder of that day.
When Hongsermeier clocked out that afternoon at 3:45 p.m.8 and went to his car,
he found Chalfant standing there. Chalfant told Hongsermeier he need not report
for work. Chalfant gave no reason and Hongsermeier asked for none. Hongser-
meier then left. He returned, however, about a half-hour later, realizing that he
had the key to the plant which he used to open the plant in the morning and that
Chalfant had not asked for the key. Chalfant and Hongsermeier talked in the back
of the building. Hongsermeier asked Chalfant why he was being laid off and
whether the layoff was "for good." Chalfant replied, "Yes, it is for good and I am
taking this action because of what happened in the afternoon today." Hongsermeier
then asked whether that was the only reason and Chalfant said, "Yes, it is." No
further conversation of any consequence ensued and Hongsermeier left after turning
over the key. There was no further contact between Chalfant and Hongsermeier.
The discharge of Thompson took place at the latter's home about 5 p.m. that same
day. Thompson had clocked out at 4:30 p.m. At that time Chalfant was apparently
still engaged in his second conversation with Hongsermeier. Thereafter Chalfant
drove to Thompson's home and knocked on the door. Thompson came to the door
and invited Chalfant in. Chalfant declined the invitation, told Thompson he need
not report for work, and gave as the reason what had happened that afternoon.
Thompson, after questioning the adequacy of the reason, asked if the separation was
final. Chalfant said it was. Thompson, admittedly quick tempered, then stepped
down to where Chalfant was standing, took a swing at him, and hit Chalfant on the
shoulder. Thompson's wife, who was home at the time, stepped in between the
two men and apologized to Chalfant. Thompson and his wife then went back in
the house and Chalfant left.
Harold Newman, the third participant in the events of the early afternoon, was
not discharged. At the hearing Chalfant explained that Newman, whose principal
job was in the back of the plant, did not have the responsibility for keeping eggs on
the candling tables except when the men in front were behind in their work and
called for help. Unlike Hongsermeier and Thompson, however, Newman, so far
as appears, played no active role in the organizational campaign although Chalfant
testified that it was his understanding that Newman was also in favor of the Union.
General Counsel's position in substance is that Hongsermeier and Thompson were
discharged because of their adherence to, and their activity in support of, the Union
and that the incident in the early afternoon of December 7 was merely a pretext
which Chalfant seized upon to effect the termination of their employment.
The burden of proof in this regard, of course, lies with General Counsel. The
record establishes that Hongsermeier and Thompson were in the forefront of union
activity. Respondent openly acknowledges that it knew of their union sympathies.
Respondent's opposition to the unionization of its Nashville plant and its readiness
to discriminate against union supporters is also manifest from Anderson's disclosures
to Hongsermeier at the New Minden tavern. The fact that no disciplinary action
was taken against Harold Newman who was a coparticipant in the incident upon
which the discharge of his two fellow employees was predicated likewise merits
consideration nothwithstanding Respondent's disclaimer that Newman's required
work performances was not directly affected thereby. Finally, it is significant that
the discharges of the two leading proponents of the Union took place toward the
end of the 6-month period during which the filing of a new representation petition by
the Union was precluded and when the filing of a new petition would be permissible.
The foregoing evidence is, to be sure, largely circumstantial. However, as the
late Judge Parker long ago pointed out in a comparable situation in Hartsell Mills
8 There is considerable variance in the testimony of the several witnesses as to whether
one or several candlers were calling for eggs at this time. To the extent that it is material
I find that two or three of the candlers were calling for eggs
a According to Chalfant, Hongserineier did not comply with sufficient alacrity and
Chalfant told him to "get a move on."
8 Hongsermeier's workday, because of certain preparatory work be had to do in the
morning, began and ended 15 minutes earlier than that of the other employees
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4), in language repeatedly cited
with approval by the courts:
It must be remembered, in this connection, that the question involved, is a
pure question of fact; that, in passing upon it, the Board may give consideration
to circumstantial evidence as well as to that which is direct; that direct evidence
of a purpose to violate the statute is rarely obtainable; and that where the
finding of the Board is supported by circumstances from which the conclusion
of discriminatory discharge may legitimately be drawn, it is binding upon the
courts . . . . [Emphasis supplied.]
On the other hand, of course, Respondent is entitled to show, and it sought to
do so here, that its action was not prompted by antiunion considerations at all.
Thus, Chalfant made it explicit to both Hongsermeier and Thompson that the inci-
dent early in the afternoon of December 7 was the reason, and the sole reason, for
their discharges. If that is so, Respondent must be exonerated from a charge of
unfair labor practice in that regard. A consideration of that defense is therefore in
order.
Hongsermeier, Thompson, and Newman were admittedly derelict in their duties on
the occasion in question, and although their dereliction was limited at most to a
5- or 10-minute lapse from their assigned duties, a discharge of any or all of them
for that reason would be lawful. This, however, does not resolve the issue whether
that was the true reason or merely a pretext to conceal antiunion motivation for
the discharge. In this connection the evidence reveals that past practice in the plant
did not suggest that derelictions of the kind were customarily, if at all, punished by
the harsh remedy of discharge. In fact, discipline in the plant was rather loose.
Thus, testimony which I credit establishes that it was not uncommon for employees
to bring in pictures of their babies to show their coworkers. Anderson, on occasion,
had brought in guns for employees to look at. Plant Manager Chalfant himself had
a propensity for telling jokes during working hours and on one occasion during
working hours, as he himself admitted, played a somewhat crude practical joke 9
on a truckdriver in his office with Charles Thompson in attendance. Profanity,
though apparently frowned upon by Chalfant, was not uncommon in the plant and
was indulged in to some extent even by the women candlers who also talked back
and forth to one another from their enclosed booths while they were working.
Moreover, there were no serious consequences flowing from the dereliction assigned
as ground for the discharges, a fact which Chalfant either knew or could readily
have discovered before he took his disciplinary action against two of the three indi-
viduals involved Credible testimony establishes, and I find, that there were only
about a dozen cases of eggs available for candling at the beginning of the afternoon
work period, and that this supply, though replenished later in the afternoon, was
exhausted about 12:30 p.m. so that there were for a while no eggs to supply to the
candlers.io
Under all these circumstances I conclude that the explanation of the discharge
offered by Respondent fails to stand up under scrutiny and that this failure laugments
the inference of discrimination afforded by other evidence in this case. N L R.B. v.
Bird Machine Company, 161 F. 2d 589, 592 (C.A. 1). This conclusion is further
buttressed, I believe, by the fact that Respondent, who, at the time of the discharges
predicted his action solely and emphatically on the incident of December 7, adduced
evidence at the hearing that Hongsermeier and Thompson had been guilty of various
acts of misconduct extending over a period of several months prior to their termina-
tion. This misconduct, some of it admitted, related to alleged profanity, insubordina-
tion, breaking of eggs, "cutting up" on the job, failure to give full time and attention
to work, and other instances of improper work performance. Respondent could, of
course, have lawfully discharged Hongsermeier and Thompson for any of these
asserted violations and certainly for an accumulation of them. This was not done.
Indeed, except for an occasional reprimand and single instance where Thompson
was temporarily transferred for a very brief period to work in the back of the plant,
no disciplinary action was taken. Compare Hartsell Mills Company v. N.L.R.B.,
111 F. 2d at 292 (C.A. 4) (discharge of Love). And when the discharges did take
place, no reference was made to any prior derelictions. Instead, Chalfant at that
0 Chalfant inflated a small balloon , concealed it in a chair , and had a truckdriver who
was in his office at the time sit on it. Chalfant did not recall whether he played the same
joke on Thompson
10 Chalfant admitted on cross-examination that the supply of eggs was low at the time.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC . 769
time expressly disclaimed reliance or anything other than the December 7 incident
to explain his action.
On the whole record, therefore, I am satisfied the real and underlying reason
motivating the discharge of Hongsermeier and Thompson was their adherence to
and support of the Union. Accordingly, I find that by discharging Hongsermeier
and Thompson for this reason, Respondent violated Section 8(a) (1) and (3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of Respondent set forth in section III, above, occurring
in connection with the operations of Respondent set forth 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 affecting commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices in
violation of Section 8(a) (1) and (3) of the Act including discriminatory discharges
which go to the very heart of rights protected by the Act (N.L R.B. v. Entwistle
Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) ), I shall recommend that it cease and desist
from such conduct and from any other conduct violative of the rights guaranteed by
Section 7. See Entwistle, supra, and cases there cited.
Insofar as the discriminatory discharge of Thompson is concerned, however, a
qualification is required in the affirmative remedy of reinstatement and backpay
usually prescribed in such instances. As already set forth, Thompson upon being
informed by Chalfant that he was discharged, lost his temper, took a swing at
Chalfant, and hit him on the shoulder." Whether Thompson would have inflicted
further damage on Chalfant, and to what extent, is a matter of conjecture inasmuch
as Thompson's wife intervened. Thompson's action here does not bear on the
legality of his discharge because the discharge had already been consummated and,
indeed, triggered Thompson's assault. Thompson, admittedly quick tempered, un-
doubtedly felt deeply aggrieved by what he plainly conceived to be the gross injustice
of his discharge. On the other hand, the Board has uniformly held that resort to this
kind of self-help and private retribution rather than resort to the peaceful processes
of the statute is not to be encouraged. Carthage Fabrics Corporation, 101 NLRB
541, 553-555; Renfro Hosiery Mills, Inc., 122 NLRB 929, 930, and footnote 2,
distinguishing cases like Efco Manufacturing, Inc., 108 NLRB 245, enfd. 203 F. 2d
458 (C.A. 1), cert. denied 350 U.S. 1007. Accordingly, as the cited cases dictate,
I will not recommend reinstatement and backpay for Thompson. So far as Hongser-
meier is concerned, however, I shall recommend that he be offered immediate and
full reinstatement to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and that he be made whole
for net loss of earnings from the date of his discharge to the date of Respondent's
offer of reinstatement, the computation of said earnings to be made on a quarterly
basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed them in Section 7 of the Act, as found above, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminatorily discharging Alvin Hongsermeier and Charles Thompson
because of their adherence to and support of the Union, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1 ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
n Thompson is a robust individual 6 feet tall, weighing 180 pounds, and 22 years of age.
Chalfant, whom I observed when he testified, was a much slighter individual and apparently
much older.
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