Harris-Teeter Super Markets

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1075 (N.L.R.B. 1992)

1075
307 NLRB No. 168
HARRIS-TEETER SUPER MARKETS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent unilaterally
and in violation of Sec. 8(a)(5) of the Act changed its employees’
work schedule, we need not rely on that portion of the judge’s dis-
cussion (in sec. IV,D) to the extent that it suggests that the Union
was entitled to ‘‘reasonable advance notice’’ of any proposed
changes. We find that, regardless of notice, the Respondent was not
privileged by the language of the 1988 Letter of Understanding to
change unilaterally its employees’ work schedule.
In the analysis portion of sec. IV,F, of his decision, the judge
speculates about whether the nonbargaining unit refrigeration me-
chanics constituted an accretion to the existing refrigeration mechan-
ics’ bargaining unit. We do not rely on this accretion discussion.
Additionally, we agree with the judge that the Respondent violated
Sec. 8(a)(5) and (1) when it reassigned bargaining-unit refrigeration
mechanic Wade Sexton’s territory to a nonunit mechanic without
bargaining with the Union. See Kohler Co., 292 NLRB 716, 720
(1989) (‘‘an employer violates Section 8(a)(5) and (1) of the Act by
reassigning work performed by bargaining unit employees to others
outside the unit without affording notice or an opportunity to bargain
to the collective-bargaining representative’’).
2 In his Conclusions of Law, the judge finds that the Respondent
violated Sec. 8(a)(1), (3), and (4) of the Act when it discriminatorily
issued warnings to its employees. He failed, however, to make a spe-
cific finding that the Respondent violated Sec. 8(a)(4) when it issued
a written constructive advice warning to employee Craig for his al-
leged interrogation of employee Goodwin. The judge found that
Day-Shift Manager Johnson seized on Craig’s conversation with
Goodwin and disciplined Craig in retaliation for Craig’s earlier testi-
mony at a Board hearing. We agree and find that by this conduct
the Respondent violated Sec. 8(a)(4) of the Act.
Harris-Teeter Super Markets, Inc. and United Food
and Commercial Workers Union, Local 204,
affiliated with United Food and Commercial
Workers International Union, AFL–CIO, CLC.
Cases 11–CA–13198, 11–CA–13588, 11–CA–
13911, and 11–CA–14179
June 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 30, 1991, Administrative Law Judge
Robert A. Gritta issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
In his decision, the judge found that the Respond-
ent’s representatives engaged in direct dealing with
salvage dock employees when the representatives met
with the employees to announce a change in the em-
ployees’ workweek schedule. According to the judge,
both the General Counsel’s and the Respondent’s wit-
nesses testified that some form of questioning of the
employees occurred. The judge found that whether the
questioning was of the direct form as stated by the
General Counsel’s employee witnesses, i.e., ‘‘Does
anyone have a comment?’’ or ‘‘Who was for it [the
change]?’’ or more subtle, as stated by Day-Shift Man-
ager Johnson and Supervisor Dunegan, i.e., ‘‘Any
questions?’’ the result was the same. We do not agree.
Asking whether an employee has any questions about
a newly instituted policy is different from soliciting an
employee’s opinion on the implementation of the pol-
icy. Without a specific credibility finding, we are un-
able to make a decision on this issue. Accordingly, we
remand this portion of the case to the judge for him
to make appropriate credibility findings, without re-
opening the hearing.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified, and orders that the Respondent, Harris-Tee-
ter Super Markets, Inc., Charlotte, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(c) of the judge’s Order and
reletter all subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the portion of this pro-
ceeding relating to allegations of direct dealing by the
Respondent is remanded to Administrative Law Judge
Robert A. Gritta for credibility findings, without re-
opening the hearing. The judge shall prepare and serve
on the parties a supplemental decision containing find-
ings of fact, conclusions of law, and a recommended
Order in light of the Board’s remand. Following serv-
ice of the supplemental decision on the parties, the
provisions of Section 102.46 of the Board’s Rules and
Regulations shall apply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT issue discriminatory warnings to em-
ployees for infractions of company rules.
WE WILL NOT enforce our oral rule against employ-
ees accepting gifts from vendors based on our employ-
ees’ union sympathies.
WE WILL NOT unilaterally change our employees’
work schedules.
WE WILL NOT unilaterally employ casual employees
to work in the cafeteria, except as permitted by the
collective-bargaining agreement.
WE WILL NOT unilaterally remove work from the
bargaining-unit refrigeration mechanics.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL bargain collectively in good faith with
United Food and Commercial Workers Union, Local
204, affiliated with United Food and Commercial
Workers International Union, AFL–CIO, CLC as the
exclusive bargaining representative of all employees in
the certified unit. The unit is:
All employees employed by us at our Charlotte,
North Carolina distribution center and bakery, in-
cluding leadmen, dispatchers, warehouse clerical
employees, drivers, fork lift maintenance employ-
ees, refrigeration mechanics, and regular part-time
employees, excluding office clerical employees,
managerial employees, professional employees,
guards, and supervisors as defined in the Act.
WE WILL notify James Craig, Terry Rogers, Doug
Blake, and Donald Allen that we have removed from
our files any reference to their warnings and that the
warnings will not be used against them in any way.
WE WILL reduce our oral rule against employees ac-
cepting gifts from vendors to writing or explain the
substance of the rule to all employees.
HARRIS-TEETER SUPER MARKETS, INC.
Jane North, Esq. and Joseph T. Welch, Esq., for the General
Counsel.
J. Howard Daniel, Esq. and E. Leigh Mullikin, Esq., for the
Respondent.
Eileen Hanson, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This case
was tried before me on January 22, 23, 24, and 25, 1991,
in Charlotte, North Carolina, based on charges filed by
United Food and Commercial Workers Union, Local 204, af-
filiated with United Food and Commercial Workers Inter-
national Union, AFL–CIO–CLC (the Union) in February and
November 1989, and July and December 1990 and a com-
plaint issued by the Regional Director for Region 11 of the
National Labor Relations Board on January 8, 1991. The
complaint alleged that the Harris-Teeter Super Markets, Inc.
(Respondent) violated Section 8(a)(1), (3), (4), and (5) of the
Act by changing work assignments of employees, dealing di-
rectly with unit employees, changing work rules, issuing
warnings to unit employees, and removing work from bar-
gaining unit for assignment to nonunit employees. Respond-
ent’s timely answer denied the commission of any unfair
labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce
evidence, and to argue orally. Briefs were submitted by the
General Counsel and Respondent on April 1, 1991. Both
briefs were duly considered.
Upon the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and on substantive, reliable evidence considered along
with the consistency and inherent probability of testimony, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS OF LAW
The complaint alleges, Respondent admits, and I find that
Harris-Teeter Super Markets, Inc. is a North Carolina cor-
poration engaged in the retail sales of groceries, produce, and
other goods in several States with a warehouse and distribu-
tion center in Charlotte, North Carolina. Jurisdiction is not in
issue. Harris-Teeter Super Markets, Inc. in the past 12
months in the course and conduct of its business operations
purchased and received goods and materials at its Charlotte
warehouse facility valued in excess of $50,000 directly from
points located outside the State of North Carolina and
shipped products from its Charlotte warehouse facility valued
in excess of $50,000 directly to points located outside the
State of North Carolina and derived gross revenue in excess
of $500,000.
I conclude and find that Harris-Teeter Super Markets, Inc.
is an employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, Respondent admits, and I conclude
and find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
1077HARRIS-TEETER SUPER MARKETS
1 Undisputed testimony and objective evidence in the record.
II. BACKGROUND1
Respondent operates retail grocery stores in Virginia,
South Carolina, and North Carolina. When the bargaining
unit was originally described, a distribution center including
an employee cafeteria and bakery was located at Chesapeake
Drive, Charlotte, North Carolina. The retail grocery stores
were supplied from the distribution center. Sometime later
the distribution center was moved to its present location on
Indian Trail just outside the limits of Charlotte. The cafeteria
continues to operate but the bakery was closed in 1989. The
distribution center, also known as the Indian Trail warehouse,
is the only union-organized division of Respondent.
Historically refrigeration service for the retail stores was
administered from the Charlotte distribution center where all
refrigeration mechanics were assigned. At the time of union
certification Respondent employed 7 refrigeration mechanics
to service 55 retail grocery stores and 17 Holly Farms out-
lets. Each mechanic’s geographic territory was determined by
his personal domicile and the location of retail stores approx-
imate to his domicile. The territories were basically equal in
numbers of stores to ensure proficient servicing. As new
stores were opened and old stores closed the territories were
adjusted to maintain equality and efficiency.
In 1984 Respondent merged with Food World resulting in
a nonbargaining unit group of refrigeration mechanics work-
ing out of the Greensboro warehouse of Food World and a
realignment of all refrigeration mechanics service areas with-
out regard to placement unit. Following realignment 9 bar-
gaining unit mechanics serviced 79 stores and 6 nonbar-
gaining unit mechanics serviced 48 stores. By 1986 the unit
mechanics were 8 in number servicing 75 stores and the
nonunit mechanics numbered 5 servicing 44 stores. Begin-
ning with the merger and continuing today, stores assigned
to refrigeration mechanics on the basis of geography resulted
in unit mechanics servicing stores formerly serviced by
nonunit (Food World) mechanics and vice versa. The dynam-
ics of store openings and closings made realignments nec-
essary constantly and dictate the dual service functions of the
unit and nonunit mechanics.
The April 1988 acquisition of 51 Big Star stores resulted
in 20 new store openings and a territory realignment for me-
chanics in May 1988. The most recent realignment occurred
in March 1989 utilizing 8 unit and 8 nonunit mechanics for
a substantially equal service requirement of each refrigeration
mechanic.
I take judicial notice of the prior case involving this Re-
spondent tried on September 12 and 13, 1988, with a judge’s
decision issuing December 12, 1988, and the Board’s Order
of April 10, 1989 (Harris-Teeter, 293 NLRB 743 (1989))
and the unpublished decision of the Fourth Circuit Court of
Appeals dated May 10, 1990 (No. 89–3326, J–2720) enforc-
ing the Board’s Order.
III. THE APPROPRIATE UNIT
The complaint alleges and Respondent admits the fol-
lowing to be the appropriate bargaining unit:
All employees employed by Respondent at its Char-
lotte, North Carolina, distribution center and bakery in-
cluding leadmen, dispatchers, warehouse clerical em-
ployees, drivers, fork lift maintenance employees, re-
frigeration mechanics and regular part-time employees,
excluding office clerical employees, managerial em-
ployees, professional employees, guards and supervisors
as defined in the Act.
The Union became the certified representative of Respond-
ent’s employees on August 5, 1976. Although Respondent, in
its answer, denies that the Union’s representation has been
continuous, there is no intervening suspension or withdrawal
of certification by the Board. Therefore the Union remains
the certified representative of Respondent’s employees. Re-
spondent amended its answer to admit that the Union was the
exclusive bargaining representative for all periods relevant
herein.
Originally the distribution center was located on Chesa-
peake Drive in Charlotte and included a bakery, an employee
cafeteria, and dispatching of the refrigeration mechanics to
the various retail stores to which they were assigned. Prior
to 1989 the facility was moved to a new location in the envi-
rons of Charlotte known as Indian Trail. Thereafter the bak-
ery operation and dispatch of the refrigeration ceased but the
cafeteria remained in operation. Respecting those evolution-
ary changes the unit description remain substantially accu-
rate.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Changed Work Assignments—Roosevelt Woodley
It is undisputed that Woodley, a forklift operator in the
meat department, sustained an off-the-job injury (broken
hand) (during the Thanksgiving holidays. Woodley returned
to work December 28, 1988, with a doctor’s release from his
6 a.m. shift. After working several hours, Supervisor
Dunegan reassigned him to breakdown in the deli aisle a re-
lated department where there was a worker shortage.
Woodley was wearing a handbrace and determined that his
hand was not strong enough to handle the big boxes required
of the breakdown task. Woodley told Dunegan he could not
do the breakdown because of a weak hand. Dunegan said the
doctor’s release did not have any restrictions and if Woodley
could not do the work he should go home. Woodley opted
to stop work and report back to the doctor. Woodley returned
to work January 2, 1989, with a doctor’s release.
Dunegan stated that all he needs to know is that an em-
ployee has a doctor’s release which tells him the employee
is there to work. Dunegan rotates the reassignments during
the day among the employees in the department and
Woodley was next on the rotation list when he returned to
work.
Both Johnson, the day-shift distributor manager, and Kiser,
director of the center, stated that the company policy of di-
recting employees during a shift to perform more than one
job is contained in the work rules, No. 23, negotiated with
the Union. Johnson, Kiser, and Dunegan admit knowing that
Woodley was a prounion employee and has been since 1986.
Although Woodley could not recall more than one prior
occasion in 1988 being assigned to breakdown, Dunegan pro-
duced daily work schedules showing Woodley’s temporary
assignments to breakdown: three times in 1988; five times in
1989; two times in 1990. The schedules also showed that
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other than Woodley 46 assignments to breakdown were made
in 1989 and 29 were made in 1990.
Chief Steward LeGrand and Woodley testified without
contradiction that in November 1988 Woodley was dis-
ciplined for unauthorized phone use but on a presentation by
LeGrand to Manager Johnson, including a demand to inspect
the phone records, Johnson became angry and terminated the
meeting by issuing the discipline to Woodley.
Analysis
General Counsel alleges that Respondent changed
Woodley’s work assignment from forklift operator in the
meat department to breakdown in the deli aisle on December
28, 1988, because Woodley was a union member who re-
cently exercised his union rights. She contends that the con-
frontation between Chief Steward LeGrand and Johnson on
behalf of Woodley in November 1988 precipitated
Dunegan’s choice of Woodley for reassignment to the deli
aisle. General Counsel does not contest Dunegan’s rotating
schedule of reassigning employees during shift other than to
characterize it as not formal. Nor does she contest Dunegan’s
right to make reassignments during shift. General Counsel’s
argument is bottomed on Dunegan’s motivation in selecting
Woodley for reassignment when other employees were avail-
able and is cited as arbitrary conduct.
Albeit I agree that Dunegan’s conduct was arbitrary and
tantamount to what one could expect from a harsh task mas-
ter, I do not conclude that it violates the Act. The evidence
is insufficient to infer a discriminatory motive in Dunegan’s
selection of Woodley for reassignment. The uncontroverted
evidence shows that employees are selected in rotation for
the more strenuous jobs in the warehouse and it was
Woodley’s turn in the schedule. The fact that Dunegan
would not defer to Woodley’s apparent less than 100-percent
physical condition and assign someone else is no more than
a lack of consideration. It may be reprehensible in a socio-
moral sense as a standard for the workplace but it is not con-
duct violative of Section 8(a)(3) of the Act, and I so con-
clude and find. I shall therefore dismiss paragraph 11 of
General Counsel’s complaint.
B. Warnings to Craig, Rogers, Blake, and Allen
Complaint paragraphs 10, 13, and 17(e)
The salvage dock is a somewhat remote work area in that
it is on one end of the warehouse facility and is separated
from the inside work areas by a large curtain. Dunegan’s tes-
timony shows clearly that the salvage dock employees work
individually or in teams depending on the number of trucks
to be unloaded and the nature of the materials in the trailers.
There are times when the employees are caught up on the
unloading but as Dunegan says, there is always something to
do, such as cleanup and sweeping the docks. Dunegan also
states that employees always talk while working and joke
among themselves and his job is to keep the employees
working. Although employees talking when they should be
working is not a new problem Dunegan states that from the
fall 1988 to January 1989 there was an increase of employ-
ees talking in groups. What Dunegan describes as excessive
talking and grouping came during the heaviest season for the
dock. Although no supervisor or management person ac-
knowledged that a rule against talking existed, Kiser, the di-
rector of the center (warehouse) cited the work rule prohib-
iting loitering as the basis for disciplining employees whose
talking interferes with their work. Johnson, day-shift distribu-
tion manager, states that employees talking in groups can be
warned when the talking interferes with any employee doing
his job. Johnson adds that any employee talking to someone
is talking in a group. Kiser, Johnson, and Dunegan explained
that employees are disciplined whenever talking interferes
with their work and produced records of past disciplines of
employees for unauthorized breaks, excessive breaks, out-of-
work area, too much time in smoking area coupled with talk-
ing with every employee encountered en route, and low pro-
duction or excessive errors caused by too much talking.
Johnson added that an employee can be orally disciplined
any number of times before a written constructive advice
form is executed. In each individual case the supervisor in-
volved decides how many oral disciplines for a given em-
ployee before administering a writeup. There are no guide-
lines for severity of the infraction for supervisors to follow.
Dunegan pursuant to the discipline policy will orally warn
employees against talking when in his view the talking inter-
feres with the employees’ job. Dunegan considers huddling
or grouping by employees to interfere with their work and
as a supervisor he knows which employees persist in talking
and not working. Those who persist receive more discipline.
He orally disciplines the employees and may make a written
record for the involved employees files. The written record
of the oral discipline is specifically designed to aid the Com-
pany in its EEOC investigations and as a record of prior dis-
ciplines for individual employees. Any employee orally dis-
ciplined is not advised that a memo of the discipline is
placed in their file. The employee only becomes aware of the
prior oral disciplines in his file when he receives a construc-
tive advise form (writeup) which references the past oral dis-
ciplines as support matter. No employee has a right to see
his disciplinary file and is never shown the documentation.
On any employee’s request the supervisor will review past
incidents with the employee but the documentation remains
secret. Kiser, who has been on the Company’s negotiating
team since 1986, stated that the Union has asked for copies
of the supervisors’ memos of oral disciplines but the Com-
pany has refused to provide any copies. The Company has
provided constructive advice forms and attendance files of
particular employees when the Union had made a specific re-
quest.
Dunegan stated that the numbers of disciplinary warnings
for talking among the salvage dock employees increased
after the unfair labor practice trial in September 1988 and
through January 1989. He issued 18 separate warnings to in-
dividual employees for talking, grouping, or being out of
their work area. Dunegan could not, however, recall the cir-
cumstances leading to any of the incidents. Without having
the documentation before him Dunegan was unable to testify
about the disciplines. As Dunegan stated from the stand, ‘‘I
can only read the documents.’’ The first such document (R.
Exh. 47) contains the notation that Dunegan told the employ-
ees he intended to keep a better watch on them.
The documentation of disciplines from the trial exhibits
(with some duplication) shows:
Douglas Blake; orally disciplined for standing and
talking in May 1986 with a memo to his file, dis-
1079HARRIS-TEETER SUPER MARKETS
ciplined with a write-up for out of work area in March
1987, orally disciplined for overstaying break in No-
vember 1988 with a memo to his file.
Terry Rogers; orally disciplined for being out of his
aisle and talking with a memo to his file in March
1987, orally disciplined for overstaying break in No-
vember 1988 with a memo to his file.
Donald Allen was not individually disciplined in any
of the immediate preceding years during his 6-1/2 years
on the salvage dock.
James Craig; orally disciplined in May 1985 and
September 1989 for unauthorized breaks with memos to
his file, orally disciplined twice in October 1987 for
talking on dock with memos to his file.
In addition to the individual disciplines above, Craig,
Allen, Rogers, and Blake, as a group received: oral discipline
September 28, 1988, for standing at the dumpster or curtain
on the dock with a memo to each employee’s file, oral dis-
cipline December 6, 1988, for standing or sitting with a
memo to each employee’s file, written discipline, a construc-
tive advise form, December 22, 1988, for standing or sitting
on jacks in a huddle and talking and neglecting their duties
and oral discipline January 27, 1989, for being huddled on
the dock.
None of the dock employees disciplined between Sep-
tember 1988 and January 1989 were aware of any prohibi-
tions against employees talking while in a group and contrary
to Dunegan, employees Allen, Craig, Blake, and Rogers stat-
ed that the salvage dock employees had always talked while
they worked whether working individually or as a team.
Allen stated that prior to September 1988 the employees had
never been warned about talking as a group. Craig added that
before September Dunegan never said anything about the
employees talking while they were working as a team or in
a group, however, since September Dunegan talked to him
frequently about the employees talking on the job. Blake tes-
tified that on September 28, 1988, the employees were in-
deed talking but they were also working. Blake was stacking
pallets, Craig was stacking milk and egg crates, and
Bitterman and Allen were working in the trailer on crates.
Blake recalls that Dunegan said the employees were talking
and he was going to put it in their records.
Rogers testified that on December 22, 1988, Craig came
back from Johnson’s office and told the group what Johnson
had said. It was then that Dunegan said they were grouping
and talking. Blake stated that he, Rogers, Craig, and Allen
were stacking and cleaning crates when Dunegan said they
were talking in a group. Dunegan called them to his office
and gave each a writeup. Dunegan told the group he was not
going to tolerate them talking and stuff because they were
cheating the Company out of money and time and this inci-
dent will go on their records. Allen testified that he came out
of the trailer to the dock and the employees were talking
about time off at Christmas. Dunegan came up and said em-
ployees were in a group again and he was not going to tol-
erate it anymore. Shortly, Allen left for vacation. When he
returned from vacation on January 2, 1989, he was called to
the office by Kiser, Brewer, and Dunegan. Allen was told
that management was tired of employees talking and having
group conversations. Allen told management that he was
working at the time. Dunegan said the Company was not
going to tolerate the employees being in a group even if they
were doing their job. Dunegan then gave Allen a writeup for
the December 22, 1988 incident. Craig testified that on De-
cember 22, 1988, while working on the dock he went to
Johnson’s office and asked if the dock employees could work
Saturday rather than Christmas Sunday. Johnson told Craig
he would get back to him. When Craig got back to the dock
the employees were working on two trailers. He told the
other employees what Johnson had said. Dunegan then burst
through the curtain and said the employees were in a group.
Craig told Johnson he was only telling the employees what
Johnson had said about working on Christmas. Dunegan said
but you all were in a group. A week later Dunegan called
the four dock employees into the office and gave them a
writeup for being in a group and talking. Dunegan told the
employees if they did not want to sign the writeup go back
to work. Dunegan had no recall of the incident but he em-
phasized that the documentation showed the employees had
only been on the job for 28 minutes when he walked through
the curtain. Dunegan wrote up the employees for standing or
sitting in a huddle and neglecting their duties.
Relative to the January 27, 1989 discipline of the same
four employees Dunegan could only say that he gave each
a warning and he made notes for each employee’s file. Rog-
ers stated that he had two loads of milk crates on the front
of his lift and a half load on the back of his lift. Craig was
loading milk crates on pallets as Rogers passed. Rogers
stopped and Craig began adding crates to Rogers’ load on
the back of the lift. Allen and Blake were on one side of
Craig and Rogers but could not get through. Dunegan came
onto the deck and saw that Allen and Black were temporarily
blocked and said the employees were not doing their job and
were in a group again. Rogers said at times the dock does
get congested and this was one of those times. Allen testified
that on January 27 the employees were working close to-
gether and they were talking. Dunegan came to the dock,
saw the employees and said they were in a group again. He
told the employees to follow him to Johnson’s office. When
the employees were told they were being disciplined for talk-
ing in a group Blake asked Johnson if this was a racial thing.
Johnson said, ‘‘I’m tired of hearing this shit, get the hell out
of my office.’’
Employee Mark Goodwin when asked about the company
policy on talking stated that a year ago Dunegan saw him
talking to another employee and Dunegan told him to keep
the talk short and get back to work.
Joint Exhibit 9 is the constructive advice form (writeup)
issued to James Craig on November 7, 1988, for an incident
that occurred on November 3, 1988. Johnson, day-shift man-
ager, testified that Mark Goodwin told him of being harassed
and called a snitch for causing an employee’s discharge.
Johnson told Goodwin that it was hard to prove but asked
Goodwin to give a statement as part of the investigation.
Johnson after getting the statement from Goodwin wrote a
constructive advice form on James Craig. Johnson summoned
Craig to the office and told him that he had a sworn state-
ment and would not allow interrogation or harassment and
gave Craig the written discipline.
Mark Goodwin stated that James Craig approached him on
the salvage dock in late 1988 and said he wanted to know
what happened, why did I do it, why did I turn the employee
in and things like that. Craig asked two or three times but
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
did not raise his voice or put any hands on Goodwin and
Craig was not up in his face. The conversation lasted about
2 minutes. Goodwin said he felt threatened by the group of
dock employees because they were laughing but he left the
dock unimpeded. Goodwin reported to Johnson that he was
questioned about Jesse Boyd’s termination but he did not tell
Johnson he felt threatened. He did give a statement to John-
son about the incident (R. Exh. 9). After Goodwin finished
his report, Johnson said he would issue a warning to Craig.
Goodwin said he had been harassed quite a bit at the ware-
house. Employees won’t leave him alone when he wants to
be left alone or they want to talk when he doesn’t want to
listen.
Allen testified he was on the dock in late October 1988
when Goodwin came into the area on a forklift. He had to
stop because the dock was congested. While he was stopped
Craig asked him if he had told on somebody about sleeping.
Goodwin told Craig that he had not told on anyone then
moved his forklift down the dock. No supervisor had asked
Allen about the incident.
Rogers testified he was on the dock when Goodwin came
to put a load by the dumpster. Craig asked Goodwin about
the rumor that was going around that Goodwin had talked to
Dunegan about someone sleeping. The two talked for 2 or
3 minutes. The other dock employees were talking and
laughing. No supervisor talked with Rogers about the inci-
dent.
James Craig testified that in October 1988 there was a
rumor in the warehouse that Mark Goodwin had gotten Jesse
Boyd fired. When Goodwin came to the salvage dock Craig
told him of the rumor and asked if he did do it. Goodwin
said he did not do it. Craig said, ‘‘come on Mark, tell the
truth, did you do it?’’ Goodwin again said, ‘‘no.’’ The con-
versation lasted 2–3 minutes. The salvage dock employees
heard the conversation and laughed after it was over. Craig
did not threaten Goodwin either physically or verbally. The
next day Johnson called Craig to the office and gave him a
prepared constructive advice form for interrogating, embar-
rassing, and demeaning another employee. (Jt. Exh. 9.) Craig
said, ‘‘that was not the way it happened. Johnson said it was
none of Craig’s business, Company won’t tolerate, if it hap-
pens again termination.’’ Craig said, ‘‘but,’’ Johnson said,
‘‘That’s just it.’’ Craig took the writeup to Kiser and told
him he did not interrogate Goodwin. Kiser said when an em-
ployee gives information to the Company, the Company has
to protect him. Craig stated that neither Johnson or Kiser
asked Craig about what happened.
Analysis
It is clear from the record evidence that Respondent does
not have a rule against employees talking while working,
however, testimony of several supervisor witnesses would in-
dicate that at some point in time conversations among em-
ployees became more noticeable. Dunegan’s admitted effort
to keep a better watch on the salvage dock employees and
his pledge to inform Johnson of their activity would, by in-
ference, place the time of notability immediately after the
Board trial in September 1988.
Respondent’s disciplinary procedure is neither progressive
nor is it written. Without regard to whether a rule existed the
record testimony and objective evidence clearly shows that
talking among employees was tolerated, to a degree, in the
warehouse. The focus of scrutiny is the latitude of the toler-
ance as impacted by the disciplinary procedure. The discipli-
nary procedure contains no guidelines or standards of appli-
cation. Each supervisor is endowed with discretion to deter-
mine who to discipline and when to discipline with the added
feature of determining whose discipline should be memorial-
ized in the employee’s file. Thus, the discipline procedure is
tripartite when invoked. An employee may be orally dis-
ciplined with no memo, or orally disciplined with a written
notation for their employee’s file, however, the notation is
not made known to the employee or disciplined by a written
reprimand usually with the warning that subsequent incidents
could lead to discharge. Such a procedure lends itself to dis-
parate treatment of employees, not only in the supervisors’
choice of who to discipline but in the case of file memos re-
sulting from oral discipline the employee is never afforded
an opportunity to question the supervisors’ version of the
events.
Dunegan’s focus on the salvage dock employees was con-
temporaneous with Craig’s and other employees’ participa-
tion in the Board’s process. As General Counsel opined,
Craig was the lightning rod on the dock. The questioned dis-
ciplines could only be explained by Dunegan’s secret nota-
tions incorporating generic phraseology, such as ‘‘neglect of
duties.’’ Dunegan could not recall the circumstances requir-
ing employee witnesses, however, credibly testified that the
disciplines were not as recorded by Dunegan because the em-
ployees were in fact working in each circumstance. There is
some downtime for salvage dock employees. When shipping
related duties are finished the make work phase of sweeping
and cleaning is expected of the employees. Dunegan’s ref-
erence to employees persisting in talking and interfering with
their own or others work is not borne out by the record.
None of the four employees have a discipline history even
approaching persistence as shown for other employees in Re-
spondent’s proffered exhibits. In addition a substantial num-
ber of the cited priors are either unrelated to talking as a vice
in the performance of duties or too remote for consideration
with the current disciplines. Further, the practice of unre-
corded admonishment for talking by warehouse employees,
as credibility testified to by Goodwin, apparently was not
practiced on the salvage dock beginning in September 1988.
Dunegan’s reference to the busiest of seasons occurring from
September through December cannot explain what was so
different on the salvage dock in 1988. The busy seasons are
perennial and the employees on the dock are experienced. I
find it instructive that none of the disciplines were related to
specific losses of production measured by any employee’s
lessoned performance. Dunegan’s unprecedented disciplines
issued in such a short time can only be attributed to some-
thing other than the dock employees’ work performance. I
conclude it is most plausible that Dunegan personified his in-
tent to keep a better watch on the dock employees by in-
creasing the incidence of recorded discipline.
Albeit General Counsel included in her complaint (par.
17(e)) an allegation that Respondent violated Section 8(a)(5)
of the Act by unilaterally promulgating a rule against em-
ployees talking while in groups there is insufficient evidence
for such a finding. I do conclude that Respondent’s discipli-
nary procedures were applied disparately to the salvage dock
employees beginning with the close of the Board case in
September 1988. I further conclude that the unprecedented
1081HARRIS-TEETER SUPER MARKETS
2 For the purposes of this section, casual and temporary employees
are synonymous.
increase in disciplines for the salvage dock employees lacked
a reasonable explanation by Respondent and constituted an
unexplained variance from past procedures.
General Counsel’s complaint alleges discriminatory dis-
ciplines to salvage dock employees Craig, Rogers, Blake, and
Allen between September 28, 1988, and January 27, 1989.
She must satisfy the causality test of Wright Line, 251 NLRB
1083 (1980), to prevail. I conclude that General Counsel has
made a prima facie showing sufficient to support the infer-
ence that protected conduct was a motivating factor in the
disciplined issued to the salvage dock employees. Further the
Respondent had failed to demonstrate that the disciplines
would have been issued to the salvage dock employees even
in the absence of their protected conduct. I therefore con-
clude and find that Respondent discriminatorily disciplined
James Craig, Terry Rogers, Douglas Blake, and Donald
Allen, individually and collectively on September 28, 1988,
December 6, 1988, December 22, 1988, and January 27,
1989, in violation of Section 8(a)(3) and (1) of the Act as
alleged in paragraph 10 of the complaint.
James Craig was involved in an additional discipline on
November 3, 1988. The circumstances of the event and John-
son’s reaction to the event are undisputed. The issue for de-
termination rest on Johnson’s motivation in issuing discipline
to Craig for his conduct on the dock. Craig was accrued of
interrogating and embarrassing employee Mark Goodwin fol-
lowing his report of the conversation to Johnson. Johnson al-
though asking for Goodwin’s statement as part of an inves-
tigation failed to do anything other than prepare a written
discipline (constructive advice form, Jt. Exh. 9) for Craig.
Johnson did not interview Craig for his version of the event
nor did he interview the other known witnesses. Even a per-
functory investigation would have disclosed, as did the trial
testimony, facts less supportive of embarrassment and defi-
nitely not supportive of interrogation as that term is used by
Johnson in the discipline. There is no evidence in the record
to suggest that Respondent attempts to limit conversations of
employee’s to their own personal business or to subjects rel-
evant to their job or the performance thereof. Craig only
asked a question based on a rumor, there was no touching,
no temper, no loud voice, and no intimidation other than that
momentarily perceived by Goodwin from the dock crew in
attendance. Goodwin candidly described what he considers
harassment, as he used the term, and the nature of his com-
plaint to Johnson. Johnson simply embellished what was
nothing more than two employees talking on the dock, as
evidenced by Goodwin’s statement (R. Exh. 9) which was all
he had before him. The substance of the constructive advice
form is incongruous with the substance of the statement and
Goodwin’s credible testimony.
Based on Johnson’s usurpation of Goodwin’s bland state-
ment, the management attentiveness to the salvage dock em-
ployees following the Board trial in September 1988, particu-
larly Craig’s involvement as a witness against Johnson and
Dunegan, Johnson’s failure to investigate the incident before
meting out discipline, and the lack of any reasonable expla-
nation for variance from past disciplinary procedures I con-
clude that Johnson seized on an otherwise normal occurrence
to issue a written discipline to Craig as retaliation for his
participation in the Board’s processes. I further conclude that
General Counsel has presented a prima facie case of dis-
crimination and that Respondent has failed to offer substan-
tial evidence in rebuttal. General Counsel has thus satisfied
the standards for proof as established in Wright Line, supra.
I find that Respondent’s discipline of Craig on November 7,
1988, for his conversation with Mark Goodwin was
discriminatorily motivated and violates Section 8(a)(1) and
(3) of the Act as alleged in complaint paragraph 13.
C. Use of Causal Labor in Cafeteria2
The parties have been embroiled in disputes over the use
of casual employees since the early eighties. Usually when
the Union learned that casuals were being used it filed an un-
fair labor practice charge. In 1986, 10 separate charges were
settled by the parties in a single outside the Board agree-
ment. Union Representative Hanson testified that the agree-
ment was partially precipitated by the Company’s use of a
retired Harris-Teeter employee, Henry Taylor, at less than
the union wage as a temporary employee for 40 hours per
week. Personnel Administrator Murray testified that the
Company used a lot of casuals in the bakery because the op-
eration was in a phase out stage and whenever the Union dis-
covered the use of casuals it objected and filed a charge. The
paragraphs in the settlement agreement germane to
casuals/temporaries are 5 and 9. (Jt. Exh. 10.) They read:
5. Harris Teeter Supermarkets agrees not to
subcontract bargaining unit work without first bar-
gaining with the Union.
9. In consideration for all of the above, the Union
agrees that the Company may use casual labor in its
bakery and cafeteria to file in for absenteeism, vaca-
tions, illness, or disability, provided that casual labor
will not be used to avoid paying wage rates established
by agreement with the Union.
Murray stated that the parties had a short period of time
to draft the paragraphs on casuals and originally the language
applied to all departments of the warehouse. The Union did
not want the agreement to apply through the warehouse so
bakery and cafeteria was careted into the paragraph. Murray
based the limited language of the paragraph on the rush of
the moment.
In 1987 four additional charges were filed including alle-
gations of continued use of casual employees outside the
1986 agreement. Timothy Stokes, supervisor of the cafeteria,
testified that in 1987 he used temporaries to fill in for vacan-
cies caused by terminations or resignations. The Union was
not notified of the use of temporaries because the personnel
department told him he could use temporaries when nec-
essary. Again the charges were settled but with the auspices
of the Board’s Regional Office on this occasion. The applica-
ble paragraph in the notice to employees (G.C. Exh. 2) reads:
WE WILL NOT unilaterally and without prior notification
to or consultation with the Union subcontract certain
exterior maintenance at our Indian Trail facility, sub-
contract the bakery production, bakery shipping and
bakery mixing work at our Charlotte facility to tem-
porary employees, subcontract certain maintenance
work at our Indian Trail warehouse to temporary em-
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees, change the work schedule of our produce de-
partment employees, implement a layoff procedure for
unit employees in the wet and dry division of our bak-
ery contrary to past practice.
The date of execution of the informal settlement agreement
was September 11, 1987. Hanson testified that in negotia-
tions on September 30, 1987, the Company asked to use cas-
uals in the bakery for Halloween, Thanksgiving, and Christ-
mas for the increased workload. The Union agreed to eigth
casuals for 2-week periods for each of the three holidays.
During 1988 additional casuals were used in the cafeteria
without notice to the Union. Following discussion of the
issue and a charge filed by the Union the parties executed
a letter of understanding on October 25, 1988, reaffirming
the agreement previously embodied in paragraph 9 of the
1986 settlement agreement respecting the use of casuals. At
the same time the parties executed an additional letter of un-
derstanding relative to the Respondent’s right to change a
person’s hours or shift for up to 30 days without negotiating
the change with the Union. This understanding was reaffir-
mation of a 1983 agreement.
The Company had cafeteria trouble again in 1989. Murray
testified that one employee was out due to an injury and an-
other had quit. Several temporaries were hired to keep the
cafeteria running but without notifying the Union. The va-
cancies were posted but there was no response from employ-
ees. The Company then ran advertisements to fill the posi-
tion. At some point the Union filed charges and a complaint
issued. As a result of the series of charges over use of cas-
uals, the Company in January 1990 proposed a change in
language for the October 1988 letter of understanding. The
Company wanted use of casuals for any necessary purpose
including the interim period when a position is vacant (G.C.
Exh. 4). The Union did not agree to the proposal.
Union Steward LeGrand testified that he complained in
1989 about the temporary employee in the cafeteria. Fol-
lowing his complaint Personnel Manager Brewer told
LeGrand that the Company was ready to hire a full-time em-
ployee. In June 1990 the full-time employees in the cafeteria
reported to LeGrand that a temporary employee was super-
vising them. LeGrand reported the continued use of a tem-
porary employee in the cafeteria to Hanson and she wrote the
Company a letter and filed an unfair labor practice charge.
Hanson testified that the Union filed the 1989 charge
against the use of casuals because the Company was using
temporary employees rather than hiring a full-time employee.
The Company never notified the Union that there was a dif-
ficulty in filling any positions. Hanson also stated that the
parties met in negotiations on May 21 and June 7, 1990, but
the Company did not notify the Union of the May 1990 va-
cancy in the cafeteria, the difficulty encountered in filling the
position or the use of casual employees to fill the vacancy.
On June 26, 1990, Hanson wrote a letter to the Company ob-
jecting to the use of casual employees in the cafeteria. Dur-
ing a July 1990 negotiating session the parties discussed the
use of casual employees in the cafeteria. The Company de-
fended its use of casuals with the facts that no employee bid
for the cafeteria position and the hiring process was unable
to fill the position. Although the Union continued to object
to the Company’s use of casuals it did agree to a 2-week pe-
riod in which casual employees could be used while further
attempts were made to hire a full-time employee.
Analysis
General Counsel’s complaint alleges three instances of Re-
spondent’s use of casuals in the cafeteria, November 10,
1988, October 6, 1989, and May 1990, as unilateral conduct
in violation of its obligation to bargain with the Union.
The facts are basically undisputed, Respondent hired cas-
uals to fill vacancies in the cafeteria at the cited times and
did so without notifying or consulting with the Union. Re-
spondent does not deny the testimony of General Counsel’s
witnesses but rather defends its actions by circumstantial ig-
norance or interpretive license.
Respondent has a history, evinced in this record and recent
Board cases involving this Respondent, of ignoring or chang-
ing employment conditions of the bargaining unit employees
without notice to or consultation with the Union, e.g., insti-
tuting a 4-day workweek for the salvage dock employees,
changing the weekly work schedule of all produce depart-
ment employees, changing employees restroom break policy,
changing the job progression for mechanics, and using casual
or temporary employees to circumvent its obligation to bar-
gain with the Union over wages, hours, and working condi-
tions of unit employees.
As the court noted in review of Harris-Teeter, 293 NLRB
743 (1989), and as I view the record evidence herein, the po-
tential to abuse and undermine the effectiveness of the bar-
gaining agent for the employees continues to exist. The po-
tential is personified by the endless repetition of issues in-
volving hours and working conditions of bargaining unit em-
ployees.
Although the parties meet, with some regularity, to nego-
tiate a collective-bargaining contract there is little or no suc-
cess. Respondent consistently, outside negotiations, seeks
piecemeal, ad hoc, agreements from the Union on immediate
workplace issues. Other than the ephemeral agreements
sought by Respondent, the Union is not a recognized party
to the representation of the employees unless and until it dis-
covers some infraction. Once discovered Respondent seeks
settlement. The clear intent is to minimize intercourse with
the Union and it is accomplished by Respondent’s self-seem-
ing interpretations of its obligation to the Union.
The language of the 1986 agreement on casuals is clear.
The enumerated uses of casuals does not include filling va-
cancies caused by terminations or resignations. The estab-
lished posting and budding procedures designed for filling
vacancies are equally as clear. These is no room for specula-
tion or equivocation. I find it instructive that when Respond-
ent is in need of groups of casuals (individuals can mingle
whereas groups are more conspicuous) it notifies the Union
and seeks a waiver of the written word in the name of profit-
able holiday seasons. Respondent’s protestations that the
agreement on casual labor was hastily drawn or that the in-
tent was only to ensure a union wage for full-time employ-
ment is unavailing to explain its departure from the often de-
fined bargaining obligation to the Union. Moreover, Re-
spondent made no attempt in September 1987 or October
1988 to revise the language of the 1986 agreement to elimi-
nate any perceived interpretation obstacle, whatever the rea-
son. Instead, Respondent on those occasions when limited
casuals were needed in circumstances proscribed by the 1986
1083HARRIS-TEETER SUPER MARKETS
agreement acted contrary to both the language of the 1986
agreement and its own past practice of seeking relief from
the Union for the use of casuals. To further exemplify Re-
spondent’s manner in dealing with the Union and the lan-
guage of the 1986 agreement, Murray’s direct testimony of
the submission of the January 8, 1990 proposal to the Union
about future use of casuals was contradicted by his cross-ex-
amination which showed that no explanation of the pro-
posal’s paragraphs or Respondent’s interpretation thereof was
offered to the Union. Respondent’s use of the Union when
convenient and its ignominious disregard at all other times
evinces a mind-set inimitable to good-faith bargaining envi-
sioned by the statute. In consideration of the above, I con-
clude and find that Respondent’s unilateral conduct in using
casuals in the cafeteria on November 10, 1988, October 6,
1989, and May 1990 is violative of Section 8(a)(1) and (5)
of the Act as alleged in paragraphs 17(c) and (d) of General
Counsel’s complaint.
D. Direct Dealing with Employees on Changes in Work
Schedules and Changing the Workweek of Employees,
January 16, 1989
In 1988 Christmas Day fell on Sunday, a regular workday
for Salvage dock employees. Sometime before Christmas it
was decided that employees would work Saturday, Christmas
Eve, and be off Christmas Sunday. Johnson, day-shift man-
ager, realized that the dock worked more efficiently on Sat-
urday than it did on Sunday. The inefficiency focused on the
switcher/spatter, an employee who moves trailers into posi-
tion for the salvage dock employees to work, who also nor-
mally worked Sunday. All the trailers came back to the
warehouse on Saturday and the switcher spotted them on
Sunday. With the switcher working Saturday he could spot
trailers as they came in and some drivers could back their
trailer to the dock rather than leave them shuttered in the
yard. In addition Craig who did not work weekends would
give the dock an extra employee on Saturdays. Craig’s reg-
ular work schedule was Monday thru Friday and he had got-
ten that schedule through the building process several years
before. Johnson reported his revised work schedule to Kiser,
who later gave him the go ahead. Johnson called the dock
crew into his office and presented them with the temporary
schedule which he said was a test of his theory of efficiency.
Johnson testified that either Dunegan or Brewer or he asked
if the employees had any questions. Johnson only recalled
Craig responding by questioning the rotation of Saturday as
a day off and stating he wanted to continue Saturday and
Sunday off each week. Johnson then told the employees that
the new work schedule was implemented. Johnson made the
work schedule change without notification to or consolation
with the Union because the 30-day agreement permitted the
Company to do so.
Kiser testified that Johnson suggested a Monday to Satur-
day operation for the salvage dock rather than a Sunday to
Friday to improve efficiency of the switcher. One employee
had a set schedule Monday to Friday, one employee was
Sunday to Thursday, and three employees rotated. The new
schedule would rotate all five employees. The change was
not negotiated with the Union because it did not have to be
negotiated.
Murray, personnel administrator, in response to Kiser’s
query about adjusting the work schedules of salvage dock
employees told Kiser he could do so in accord with the 30-
day agreement. Murray was on the Respondent’s negotiating
team but did not notify the Union of the change in work
schedules until the February 9, 1989 negotiating session.
Murray explained that Respondent waited until February be-
cause that was the scheduled negotiation. He was aware that
the Union after receiving a proposal usually wanted time to
consider and to investigate.
Dunegan was present when Johnson gave each employee
a copy of the new work schedule. He may have asked the
employees, ‘‘any questions?’’ Dunegan did not ask employ-
ees for opinions because of the old unfair labor practice case.
Dunegan recalled that several employees expressed dis-
pleasure with the new work schedule but it went into effect
immediately. The charge was not negotiated with the Union
because the Company can make any changes necessary for
the operation for 30 days.
Several salvage dock employees testified to meeting in
Johnson’s office. Allen stated that Dunegan asked if employ-
ees liked the change and the employees said they did not like
the change. Johnson told the group he would keep track of
the new schedule for 30 days and before the 30 days is up
let the Union know and make a decision. Rogers recalled
that Johnson, after he passed out the new work schedule of
A, B, and C teams asked if anyone had a comment. Rogers
said he did not like the new days off preferring his Sunday
through Thursday schedule. Johnson said the new schedule
was effective immediately. Craig remembered Johnson stat-
ing that the workweek schedule would be changed to Mon-
day through Saturday with a rotating day off, for 20 days.
Johnson said it would be better for the switcher and a super-
visor on Saturday would take some pressure off of him.
Johnson asked the group, who was for it? Some said, ‘‘yes,’’
some said, ‘‘no.’’ Craig said, ‘‘No’’ and Johnson told Craig
he was against it because he now has every weekend off.
Johnson said the new work schedule would go into effect the
next day for a 6-week period.
Steward LeGrand testified without contradiction that the
1983 agreement, referred to as the forerunner of the October
1988 letter of understanding respecting Respondent’s right to
change a person’s hours or shift was based on a shift change
from night shift to day shift to accommodate production.
There was no temporary week schedule change and certainly
no permanent change. Also the 1986 settlement agreement
alluding to produce employees involved Respondent’s unilat-
eral change of an employee’s work schedule at Christmas-
time without negotiating the change with the Union. LeGrand
stated that Respondent has, since 1986, bargained with the
Union over changing workweek schedules during holidays
and special occasions such as Super Bowl Sunday.
Union Representative Hanson’s testimony echoed
LeGrand’s relative to the 1983 agreement as a basis for the
1988 letter of understanding and the past practice of Re-
spondent bargaining with the Union over changes in work-
weeks since 1986. Particularly 1987 that dealt with changes
in several departments including the salvage dock. Hanson
also stated that on January 20, 1989, 4 days after Respondent
initiated the new workweek schedule, the parties met in a
scheduled negotiation. The Company did not notify the
Union at that time of the changed workweek for the salvage
dock employees. At the February 9 meeting the Company in-
formed the Union of the change made on January 16 and
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposed making the change permanent. The Union objected
to the manner and means of the change and the workweek
reverted in late February.
The objective evidence in the record shows that following
by only months the 1986 settlement agreement, which in-
cluded proscriptions against changing the working conditions
of bargaining unit employees, Respondent changed the work
schedule of a produce employee without negotiation with the
Union. The work schedule change was settled September 11,
1987, with an official, ‘‘Notice to Employees,’’ declaring
that Respondent would not unilaterally make such changes
again. Subsequent bargaining included proposed changes in
hours and days of the salvage dock employees and the build-
ing and grounds department employees. However in March
1988 Respondent dealt directly with employees in the sal-
vage dock in an attempt to institute a 4-day workweek and
admitting to the employees that such a change had to be dis-
cussed with the Union. Respondent’s direct dealing was
found on unfair labor practice in December 1988, Harris-
Teeter, supra.
Analysis
Dealing Direct
The record evidence of Johnson’s meeting with the sal-
vage dock employees to announce a change in the work
schedule is substantially undisputed. Respondent’s admitted
intent was to implement the work schedule change perma-
nently by proposal to the Union following the test period of
30 days.
The testimony of all witnesses to the meeting shows that
following the announcement of the change, some form of
questioning of the employees occurred. Whether the ques-
tioning was of a direct form as stated by the employee wit-
nesses or more subtle as stated by Johnson and Dunegan, the
result is the same. The supervisors are attempting to ascertain
the desires or opinions of employees on a mandatory subject
of bargaining. Any argument to the contrary by Respondent
is wholly unsupported by fact and incongruent with Re-
spondent’s stated view and its unbridled use of the 30-day
agreement.
Obtaining and assessing employees’ desires and opinions
on wages, hours, and working conditions are the sole prov-
ince of the employees’ bargaining agent. Such conduct by
the employer circumvents the Union as the exclusive rep-
resentative of the employees. I therefore conclude that Re-
spondent’s questioning of its salvage dock employees relative
to the work schedule change, particularly in light of its set-
tlement and unfair labor practice history involving same or
similar infractions, constitutes direct dealing with employees
and I find that Respondent’s conduct violates Section 8(a)(1)
and (5) of the Act as alleged in complaint paragraph 17(b).
Changing the Work Schedule, January 16, 1989
Respondents current attempt to change work schedules of
employees without bargaining with the Union is again di-
rected at the salvage dock employees. Respondent defends its
latest attempt with the language of the 1983/1988 agreements
allowing changes ‘‘in a person’s hours and shift for 30 days
without bargaining over the change.’’ Hanson and LeGrand
credibly testified to the basis of the 1983/1988 agreements.
Clearly the agreements were designed to cover temporary sit-
uations arising from unforeseen circumstances.
This Respondent seems to thrive on ambiguity whether
real or perceived. Case history of this Respondent shows that
the Union is ignored and it does what it wants to do. I find
the failure to notify the Union of the change at the first sub-
sequent bargaining session, instructive. Respondent’s use of
the ‘‘30 days language,’’ in my view, is nothing more than
an effort to implement conditions, however, short lived, with-
out recourse by the employees or their representative.
Murray’s explanation of the lack of notice to the Union, not
withstanding, Respondent’s professed intent of a permanent
change is a difficult pill to swallow. For the Union to con-
sider any proposal of change that includes a predetermined
start date it must have a reasonable advance notice to ensure
consideration by such date. Nothing less than notice to the
Union at its January 20, 1989 negotiating session would be
reasonable. The wasted expense of time during the 30-day
hiatus, without notice to the Union, dictates that the schedule
would revert back. Moreover, there is no precedent for any
‘‘30 day change’’ to become permanent.
Respondent’s use of bargaining in the past for temporary
changes in employees work schedules (which in itself shows
an understanding of the difference in ‘‘a person’s hours and
shift’’ and a person’s work schedule) and evasion of bar-
gaining over work schedules deemed to become permanent
can only be explained by the convoluted reasoning offered
by Dunegan, ‘‘the company can make any changes necessary
for the operation for 30 days.’’ This reasoning is completely
outside the express language of the agreement but well with-
in Respondent’s policies respecting its bargaining obligation
to the Union.
It is abundantly clear to me that Respondent’s known pro-
pensity for operating its distribution center as if the Union
did not exist, continues. Based on the above I conclude that
Respondent unilaterally and without notice to or consultation
with the Union changed the work schedules of its salvage
dock employees. I find that such conduct of Respondent vio-
lates Section 8(a)(1) and (5) of the Act as alleged in para-
graph 17(a) of the complaint.
E. The Cake Incident, December 23, 1988
Respondent admittedly does not have a written rule against
employees accepting gifts from vendors but insist there has
existed since the Union came in an oral rule prohibiting em-
ployees from accepting gratuities from vendors. The rule is
not known to all employees nor does the Union have any
knowledge or notice of such a rule. Manager Johnson stated
that employees know they cannot accept gifts but the rule
has not been explained to the employees.
The record evidence shows that in the past several years
employees have accepted gifts from vendors on several occa-
sions. At times the oral rule has been applied and at other
times it has not. Respondent’s response to those occasions
when employees accepted gifts and the rule was not applied
was it had no knowledge of the gift. As a general rule the
gifts were presented at Christmastime as tokens of the season
but some gifts were otherwise.
Witnesses testified to the following gifts to employees
from vendors: frisbees, donuts, hats, teddy bear, dresser,
candy, and cake.
1085HARRIS-TEETER SUPER MARKETS
3 The testimony of Dunegan and Goodwin relative to the purchase
of a stereo cabinet is not relevant to the issue of gratuities from ven-
dors. In addition the stereo cabinet is not the dresser Little testified
to receiving.
Dunegan, day-shift supervisor for the last 3 years, testified
that shortly after assuming the day-shift responsibility, ap-
proximately April 1988, a vendor driver passed out frisbees
to employees on the dock. Dunegan said nothing to the em-
ployees but counseled with Johnson. Dunegan then told the
driver not to pass out gratuities to the employees anymore.
Dunegan also recalled that Nelson Rogers, the contractor for
the lumping service (some vendors hire unloaders locally to
unload their trucks; Rogers supplies those employees to the
vendors) had for years given donuts to employees. Rogers
put several boxes of donuts in each of three offices. The
produce department, the meat department, and the freezer de-
partment. Dunegan allowed the donut practice to continue for
several years of his supervision then at some point in time
he stopped it. Dunegan stopped the gratuitous donuts because
the employees were squabbling over who got what and how
many. Dunegan was not aware of any other gifts.
Kiser and Murray testified that a produce vendor in 1987
brought hats for the dock employees but there were not
enough to go around. Murray suggested getting more hats so
each could have one but an inquiry of the vendor disclosed
that no more hats were available. Murray told Kiser to flip
a coin or do something fair. Kiser gave the hats to Johnny
Davis to distribute to the produce employees who names had
been drawn out of a hat.
Davis, a produce employee, testified without contradiction
that a floral vendor in 1987 gave a teddy bear to Pat Dulin,
a floral department employee. Dulin put the teddy bear in
Johnson’s office during the workday and took it home with
her that night.
Stanley Little, a produce employee, also testified without
contradiction that in mid-1989 while he was cleaning the
front dock a vendor driver had a couple, assemble yourself
dressers, left over and offered one to Little. He accepted the
dresser and asked Dunegan about taking it out to his car.
Dunegan told Little after he clocks out at noon he could take
the dresser to his car. LeGrand also testified that Little got
a dresser from a vendor and carried it outside the gate during
the day.3
Several witnesses testified to the cake and candy gifts at
Christmastime 1988. Day Distribution Manager Johnson was
only aware of the candy and cake gifts. He received at his
office a basket of candy addressed to Hubert Sturdinant and
Johnson signed for it. Johnson took the basket to Kiser who
suggested holding if for the Christmas table. Several days
later Johnson got a call from the vendor inquiring about the
candy because Sturdinant had told the vendor it was not re-
ceived. Johnson explained to the vendor that the candy
would be put on the Christmas table for all employees to
enjoy. The vendor told Johnson he would send another for
Sturdinant and Johnson told the vendor if he did send an-
other it would go to the Christmas table also. Johnson further
stated that about the same time he got a call from the
produce lawyer, James Hill, who said a vendor driver had
delivered a cake to the produce receiving employees. John-
son told Hill to have the cake sent to his office. The driver
brought the cake to Johnson and he told the driver that the
Company did not allow bargaining unit employees to accept
gifts from vendors. Johnson said he would put the cake on
the Christmas table. Later Johnny Davis complained to John-
son about the receiving employees not getting the cake.
Johnson told Davis that the cake was for all produce em-
ployees and he and Kiser decided to put the cake on the
Christmas table. Davis returned to Johnson’s office later with
Steward LeGrand to object to the cake being taken from the
receiving dock employees. Johnson told them both to file a
grievance if they did not like it. At some time Johnson sent
letters to the vendors informing them of the rule prohibiting
employees from receiving gifts from vendors.
Murray stated that the unwritten rule prohibiting employ-
ees from accepting gifts from vendors originated as a control
of bribery of employees by vendors for favored treatment
and to eliminate favoritism between the union and nonunion
employees in the bargaining unit.
Kiser, director of the entire center, substantiated Johnson’s
testimony of the candy and cake gifts and the use of the
Christmas table.
Johnny Davis, a union witness in the prior case testified
that on December 23, 1988, a lady truckdriver gave him a
cake saying, make sure the employees get pieces. She then
went to Hill’s office. Shortly she returned to Davis and said
the employees could not have the cake and that Hill told her
to take it to Johnson’s office. She took the cake and left.
Later Davis went to Johnson’s office. Davis testified:
After the lady left I went over and asked Mr. John-
son why we couldn’t, you know, have the cake and that
she had brought it for the Produce Department?
And he said, you know, because of the Union that
we couldn’t have the cake. I told him that she had
brought the cake for us because, you know, she was
just giving it to us as a Christmas present. Then the
phone rang and he said, ‘‘Well, it’s not my Union. Go
ask John LeGrand why you can’t have the cake.’’
Q. What then happened?
A. Then I went and asked John LeGrand, I said,
‘‘Dwight Johnson told me to come back here and ask
you why we couldn’t have the cake.’’
Then John LeGrand asked me to repeat myself and
I told him. Then we went over to Dwight Johnson’s of-
fice.
Q. Who was in Mr. Johnson’s office when you went
over, do you recall?
A. When we went over to his office John Brewer
and Mr. Johnson was in there.
Q. Do you recall what conversations took place?
What was said at this meeting?
A. John asked him why we couldn’t have the cake.
And he, you know, explained that if everybody in the
warehouse couldn’t get a piece of it, then nobody else
could have any.
Q. Who did he ask?
A. Who did John LeGrand ask?
Q. Yes, you said that he asked ‘‘him,’’ who is
‘‘him’’?
A. He was talking to Mr. Johnson.
Q. What other conversations took place, if you re-
call?
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Then later on Donald Dunegan came in Mr. John-
son’s office and we was going over what—you know,
people receiving things and Donald Dunegan said that
one day a truck driver was coming down the dock pass-
ing out Frisbees, you know, to everybody that was on
the dock working. Donald said that he didn’t—he
wasn’t aware of any rule that you couldn’t receive gifts
from truck drivers.
Steward LeGrand stated that Davis told him a driver had
given him a cake and at breaktime the employees would eat
it. Davis later reported to LeGrand that Johnson had taken
the cake and said the employees could not have the cake be-
cause of the Union. LeGrand and Davis went to Johnson’s
office. LeGrand testified:
When we went in the office I think Donald Dunegan,
Dwight Johnson and Mike Kiser were there.
Q. Can you identify Mr. Johnson and Mr. Kiser?
A. Yes, I can.
Q. For the record, who are they?
A. At that time Mike Kiser was Director of Distribu-
tion, I think, and Dwight was Warehouse Manager.
Q. What was said and by whom in this session?
A. When we were going into the office I told
Dwight I wanted to see him. I said that Johnny has just
informed me that they had told him that we couldn’t
have the cake because of the Union. Mr. Kiser spoke
up and said, ‘‘That’ right. This is your Union.’’
I responded. I said, ‘‘You mean to tell me that if we
didn’t have a Union we could have the cake?’’
He said, ‘‘Probably.’’
And then we went on and I asked Dwight, I said,
‘‘Dwight, do you not have a policy saying an employee
is not supposed to take anything from a truck driver or
vendor?’’
Dwight mumbled and I asked him again.
He said, ‘‘Yeah, they had a policy.’’
Q. Was anything else said in that meeting?
A. They just told us they were going to put the cake
out on the table and let everybody eat it.
Analysis
In brief General Counsel moved to delete paragraph 17(f)
from her complaint. I grant General Counsel’s motion and
strike paragraph 17(f) from the complaint. Thus General
Counsel relies solely on paragraph 9(a), as amended on Janu-
ary 15, 1991, with regard to Respondent’s conduct and the
gifts to employees from vendors. In paragraph 9(a) General
alleges Respondent violated Section 8(a)(1) of the Act by in-
forming its employees they could not accept gratuities from
other businesses because of their union activities. General
Counsel does not question the existence of the oral rule pro-
hibiting gifts, only its application to the gift of the cake.
Murray’s explanation of the dual purpose for the rule
clearly shows reasonable concern for common factors that
are extent in the workplace. However, a rule is only as good
as its enforcement and unannounced oral rules experience a
double difficulty in enforcement.
The uncontradicted and credited testimony of Davis, Little,
and LeGrand establish that in the past employees have re-
ceived gifts from vendors either without incident or with the
aid of management enforcing the rule. In my view, enforce-
ment of the rule depends on which supervisor has knowledge
of the gift, the nature of the gift, which employee is the re-
cipient of the gift or how knowledgeable the supervisor is of
the oral rule.
If a purpose of the rule is to control the incidence of brib-
ery of employees it is hardly accomplished by failure to an-
nounce to employees what conduct is prohibitive. More par-
ticularly, when management knows from experience that it
cannot control the vendors conduct, communication to the
employees is critical. Likewise, allowing gifts on certain oc-
casions and not on others destroys the very uniformity that
is sought as the partial basis for the rule. The defense of lack
of knowledge of all gifts emphasizes Respondent’s lack of
attention to enforcement of its rule and is in contrast to that
expressed to the employees when the cake was the subject
gratuity to Davis.
I find it instructive that the gift occasions that either fell
through the cracks or were enforced by modification oc-
curred prior to the most recently referenced third case involv-
ing this Respondent or so postdated the third case that the
atmosphere of the moment had waned. Obviously, Dunegan’s
admonishment to his employees in late September 1988,
‘‘I’m going to be keeping a better watch on you,’’ originated
with and was shared by his supervisors. Additionally, the
undenied references to the Union at the time the rule was en-
forced against the cake gift serve to further support an infer-
ence that the rule may have been, yet again, modified if the
employees involved were not union activists. I do not accept
Respondent’s argument in brief that the ‘‘union references’’
were violated and therefore noncoercive. Davis was a known
witness against Respondent in its unfair labor practice case
concluded in early September 1988 and confiscation of a car-
rot cake to deny six to eight receiving employees a breaktime
repast is retaliatory. To stand behind its ersatz rule for uni-
formity by placing an ordinary cake on a Christmas table for
all 100 employees to enjoy in demigod like and an insult to
the working man or woman. I conclude that Respondent’s
conduct tended to interfere with and coerce employees in the
exercise of their Section 7 rights. I therefore find that Re-
spondent’s conduct violates Section 8(a)(1) of the Act as al-
leged in paragraph 9(a) of the complaint.
F. Unilateral Removal of Refrigeration Mechanics Work
from the Bargaining Unit
The facts surrounding this issue are undisputed and are
partially reported in section II, Background. The additional
facts are:
The Union organized Respondent’s distribution center and
the certified unit included the refrigeration mechanics who
serviced all the retail stores which were nonunion. Each me-
chanic was assigned a substantially equal number of stores
to service as his territory. The territories were designed re-
specting the personal domicile of the mechanic and the geo-
graphic layout of the stores approximate to his domicile.
Over the years Respondent closed old stores and opened new
stores causing a realignment of mechanic’s territories to
maintain an economically and geographically feasible service
area. In addition Respondent purchased stores from other
food chains. Such purchases included the refrigeration me-
chanics who serviced those stores albeit the mechanics of the
purchased stores did not become part of the bargaining unit.
1087HARRIS-TEETER SUPER MARKETS
The resultant realignments of the mechanics territories
caused some bargaining unit mechanics to cease servicing
original Harris-Teeter stores and begin servicing newly pur-
chased stores. As expected some of the nonbargaining unit
mechanics began servicing original Harris-Teeter stores as
well as the stores newly purchased. At all times the bar-
gaining unit mechanics serviced only nonunion stores but the
original identity of the retail stores, whether Harris-Teeter,
Food World, or Big Star, was lost by merging into the re-
spective geographic territory. In a sense the identity of the
refrigeration mechanic was also lost except for the name on
the Union’s membership list. Respondent did for business
purposes attempt to keep the territories equalized by work
loads of the mechanics although with distance to travel in the
equation the number of stores serviced were not always equal
among the territories. Over the years there was very little
turnover of mechanics therefore the vast majority of territory
realignments were occasioned by retail store openings and
closings. Respondent always realigned territories of the me-
chanics based on its own administrative needs and without
notice to or consultation with the Union.
On October 28, 1990, Wade Sexton a bargaining unit re-
frigeration mechanic was terminated. His assigned territory
was in the Raleigh, North Carolina area. Following his termi-
nation Respondent temporarily assigned his stores to nonunit
mechanics as extra work. Respondent, anticipating a griev-
ance over the discharge and possible reinstatement of Sexton
formulated contingency realignments covering both Sexton’s
reinstatement and/or validation of his termination. In all
events the stores previously assigned to Sexton were reas-
signed to nonunit mechanics. All stores previously serviced
by nonunit mechanics continued to be serviced by nonunit
mechanics. Again this realignment was effected without no-
tice to or consultation with the Union.
In a November 20 grievance meeting concerning Sexton’s
discharge the Union learned for the first time Respondent’s
practice of using unit and nonunit mechanics to fill in for
each other during absences and vacations and realigning the
territories of refrigeration mechanics when stores closed or
opened. The Union also learned that the job vacancy created
by Sexton’s termination had not been posted. There is no
agreement between the parties requiring vacancies to be post-
ed. The parties do have an agreement that when job vacan-
cies are posted they remain posted for 3 days with a copy
of the posting to the Union including who bids on the job
and who is awarded the job. The Company usually mails a
packet of postings to the Union and there is no time limit
for mailing the information. Steward LeGrand stated that
generally when a vacancy occurs and the job is to be refilled
the job is posted within a day, 2 days, or 10 days. Price,
manager of field service for all retail stores, stated that Re-
spondent did not want to hire a mechanic and then be faced
with reinstating Sexton. Also warehouse vacancies are more
easily filled by job bidding because of the lower skills level
whereas a refrigeration mechanic requires unique skills and
experience. Price added that the maintenance mechanics who
service the commercial refrigeration units in the warehouse
could not qualify as a mechanic to service the retail stores
and vice versa.
Hanson, the union representative, objected to the commin-
gling of refrigeration mechanics’ work stating that the Com-
pany was acting contrary to its positions taken in the past
where in it denied bargaining unit employees the right to
transfer to or bid on jobs outside the bargaining unit. The
Respondent agreed to consider reinstatement of Sexton. The
parties scheduled the meeting for December 13, 1990.
In preparation for the December meeting Price prepared
territory reorganization lists of refrigeration mechanics with
store assignments, one for bargaining unit mechanics includ-
ing a territory for a new mechanic and one for nonbargaining
unit mechanics. The lists included a summary of total store
assignments for the unit mechanics and the nonunit mechan-
ics both pretermination of Sexton and posttermination of
Sexton. Price intended to present the lists and summary to
the Union as the reorganization of mechanics territories fol-
lowing Sexton’s termination. The presentation would have
been the first time Respondent gave notice to or consulted
with the Union about realignment of refrigeration mechanics
territories since certification. The morning of the scheduled
meeting Respondent received notice of the unfair labor prac-
tice charge covering the reassignment of Sexton’s work fol-
lowing his discharge. On receipt of the charge Respondent’s
negotiating team removed presentation of the reorganization
lists to the Union from the agenda for the meeting. The job
posting for Sexton’s vacancy was posted on January 10,
1991. Sexton’s discharge is not the subject of an unfair labor
practice charge.
Analysis
General Counsel’s complaint allegation reads: 17(g) Failed
since on or about October 8, 1990, to post a refrigeration
mechanic bargaining unit job, and assigned, and has contin-
ued to assigning since that date, work previously performed
by a refrigeration mechanic bargaining unit employee to em-
ployees not in the bargaining unit; and/or removed said work
from the bargaining unit.
General Counsel argues that the 3-month hiatus in posting
Sexton’s job vacancy constitutes a break of post practice and
therefore is an 8(a)(5) violation. She supports her argument
with an implicit holding that job posting is a mandatory sub-
ject of bargaining. Albeit I may agree that job posting is a
mandatory subject of bargaining and that a breach of a past
practice of job posting procedures may constitute a violation
of Section 8(a)(5), the record facts do not provide a basis for
the contentions. The uncontroverted record evidence shows
that the parties did bargain over job posting of vacancies in
the bargaining unit, however, the only agreement reached
was for Respondent to supply the Union with copies of post-
ings and information on employees utilizing the procedure.
Respondent was not required to fill all vacancies nor was it
required to post in a given time period those vacancies it de-
cided to fill. Further, with regard to the posting hiatus only,
Respondent’s position that it did not want to hire a new em-
ployee before Sexton’s termination was final is most reason-
able considering all the circumstances. I conclude and find
that Respondent’s failure to post the subject vacancy for 3
months is not a violation of the Act and I shall dismiss that
portion of General Counsel’s complaint allegation.
Respecting the remainder of the complaint allegation Gen-
eral Counsel argues:
As discussed at trial, it is a somewhat unusual situa-
tion when one job classification encompasses both unit
and nonunit employees performing essentially the same
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tasks. Were it necessary to rule on the propriety of this
historical situation, or on Respondent’s frequent terri-
torial adjustments over the years, painstaking detail
would be required at this juncture to frame the issues.
In fact, such an undertaking is not necessary, for nei-
ther the propriety of the establishment of nonunit refrig-
eration mechanics nor the historical portion of unit
versus nonunit work is at issue here.23 Rather, those
factors are all given. All that has been put at issue by
the present complaint is the conduct of Respondent
within a discrete time frame beginning on October 8,
1990, when Respondent began assigning work undeni-
ably performed by a unit mechanic to nonunit mechan-
ics.
23 In this regard, it should be noted that, subsequent to the hearing,
the parties entered into an agreement that all of Respondent’s refrigera-
tion mechanics would be in one unit, separate from the existing collec-
tive-bargaining unit at Respondent’s Charlotte facility. (Counsel for Re-
spondent and Charging Party have been contacted and agree that coun-
sel for General Counsel may make this representation.)
Unlike General Counsel I cannot overlook the establish-
ment of nonunit refrigeration mechanics merely as a histor-
ical situation. Respondent’s acquisition of Food World and
Big Star facilities and employees is a classical case of accre-
tion. The mechanics of Food World and Big Star would have
been included in the existing unit if they had existed at the
time of the original representation proceeding. There is inter-
changeability among the two groups, common supervision
and similar terms of employment. Identical job classifica-
tions, administrative integration of the two groups and both
operate in the same geographic area as refrigeration mechan-
ics here in the past. If I were faced with the unit placement
determination of the nonunit refrigeration mechanics I would
find them on accretion to the existing unit. However helpful
such a determination might be to a resolution of the unit
work issue, the unit placement of the nonunit refrigeration
mechanics is not before me. Of course the Union can at any-
time subsequent to the acquisition of Food World and Big
Star facilities and mechanic employees file a unit clarifica-
tion petition requesting inclusion of the nonunit mechanics in
the certified unit.
With regard to the Respondent’s historical practice of real-
izing the territories of the refrigeration mechanics in the bar-
gaining unit and particularly in those situations arising from
absence and vacation, there is no obligation to bargain, per
se. Respondent has a right to conduct its business as it did
before the union certification unless a practice is changed by
agreement and incorporated into a contract. As noted before
there are several ad hoc agreements respecting specific dis-
putes between the parties but no progress in establishing a
collective-bargaining agreement. Certainly there is no agree-
ment, ad hoc or otherwise, pertaining to administrative con-
trol of the refrigeration mechanics’ territories. It appears to
me that the dynamics of the situation would preclude any
meaningful bargaining, much less any agreement between the
parties prescribing methods different than those applied by
Respondent in the past within the bargaining unit.
Respondent’s acquisitions of Food World and Big Star
stores and refrigeration mechanics presents a different pic-
ture. The Respondent has an obligation to bargain with the
Union whenever any circumstances, however remote or unre-
lated to the bargaining unit, will impact the established
wages, hours, terms, and working conditions of the rep-
resented employees. Otherwise a union’s exclusive represent-
ative status for an identified group of employees would be-
come meaningless. Continuing a past practice within the bar-
gaining unit is one thing but extending that past practice to
outside the bargaining unit with a comingling of effects is
something else. In my view Respondent could have freely
maintained a separate work force of nonunit mechanics origi-
nating with the acquisitions but it could not merge the bar-
gaining unit and nonbargaining unit mechanics, administra-
tively and/or operationally without first giving notice to and
consulting with the Union. To do so without bargaining, and
without regard to passage of time, cannot gain Respondent
any advantage. I conclude that Respondent did act unlawfully
when it assigned work previously done by bargaining unit re-
frigeration mechanics to refrigeration mechanics not in the
bargaining unit. The fact that no bargaining unit mechanics
actually lost work as a result of the transaction is irrelevant.
It is the unilateral conduct that is subject to scrutiny not a
quantitative analysis of the results of the conduct. Accord-
ingly, I find that Respondent did remove work from the es-
tablished bargaining unit employees in violation of Section
8(A)(5) of the Act as alleged in General Counsel’s com-
plaint.
Respondent’s contentions, best characterized as ‘‘waiver’’
or ‘‘constructive notice’’ arguments do not in my view dic-
tate a different result. It is not the Respondent’s right to
make the decision nor the method Respondent chooses to im-
plement its decision that must come into focus. Rather it is
the effect the decision and the methods used have on those
employees who have chosen to be represented. That rep-
resentative has a statutory right to protect the interest of the
employees in the bargaining unit that is not qualified by any
qualitative analysis by Respondent.
CONCLUSIONS OF LAW
1. The Respondent by discriminatorily issuing warnings to
its employees has violated Section 8(a)(1), (3), and (4) of the
Act.
2. The Respondent by enforcing its oral rule against em-
ployees accepting gifts from vendors based on an employees’
union sympathies has violated Section 8(a)(1) of the Act.
3. The Respondent by dealing directly with its employees
on changing the work schedule and unilaterally changing the
work schedule of its employees has violated Section 8(a)(1)
and 5) of the Act.
4. The Respondent by unilaterally employing casual em-
ployees to work in the cafeteria has violated Section 8(a)(1)
and (5) of the Act.
5. The Respondent by unilaterally removing work from its
bargaining unit refrigeration mechanics has violated Section
8(a)(1) and (5) of the Act.
6. General Counsel has failed to prove that Respondent
violated the Act by changing the work assignment of its em-
ployee Roosevelt Woodley or that it promulgated a rule for-
bidding employees to talk to each other while assembled in
groups.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
1089HARRIS-TEETER SUPER MARKETS
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
This record clearly shows that Respondent has a proclivity
to violate the Act and I conclude that Respondents identical
conduct in its continued violations demonstrate an utter dis-
regard for its employees’ basic statutory rights and those of
its employees’ chosen representative. I shall therefore include
a broad remedial order. See Hickmont Foods, 242 NLRB
1357 (1979).
I shall not order a make-whole remedy for the bargaining
unit refrigeration mechanics. Contrary to General Counsel I
do not view the hours consumed by nonunit refrigeration me-
chanics assigned the work formerly done by unit mechanic
Sexton as a measure of the amount of work unlawfully re-
moved from the bargaining unit. The record does not sub-
stantiate that only bargaining unit mechanics should have
performed the work formerly done by Wade Sexton, the dis-
charged unit mechanic.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Harris-Teeter Super Markets, Inc., Char-
lotte, North Carolina, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discriminatorily issuing warnings to its employees for
infractions of company rules.
(b) Enforcing its oral rule against employees accepting
gifts from vendors based on an employee’s union sym-
pathies.
(c) Dealing directly with its employees over changes in
work schedules.
(d) Unilaterally changing the work schedules of its 25 em-
ployees.
(e) Unilaterally employing casual employees to work in its
cafeteria.
(f) Unilaterally removing work from its bargaining unit re-
frigeration mechanics.
(g) In any other manner interfering with, restraining, or co-
ercing employees in the exrcise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Expunge from its files any references to the warnings
issued to its employees, James Craig, Terry Rogers, Doug
Blake, and Donald Allen on September 28, November 3, De-
cember 6, and December 22, 1988, and January 27, 1989,
and notify them in writing that this has been done and that
evidence of these unawful warnings will not be used as a
basis for future personnel action against them.
(b) Either reduce its oral rule against employees accepting
gifts from vendors to writing or explain the substance of the
rule to all its employees and post notices in conspicuous
places for all vendors to see.
(c) Bargain collectively in good faith with the Union as
the exclusive bargaining representative of all employees in
the unit as certified by the Board.
(d) The appropriate bargaining unit for purposes of collec-
tive bargaining is:
All employees employed by Respondent at its Char-
lotte, North Carolina distribution center and bakery in-
cluding leadmen, dispatchers, warehouse clerical em-
ployees, drivers, fork lift maintenance employees, re-
frigeration mechanics and regular part-time employees,
excluding office clerical employees, managerial em-
ployees, professional employees, guards and supervisor
as defined in th Act.
(e) Post at its offices in Charlotte, North Carolina, copies
of the attached notice marked ‘‘Appendix.’’5 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.