The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Apr 23, 1954

108 N.L.R.B. 483 (N.L.R.B. 1954)

THE GREAT ATLANTIC & PACIFIC TEA COMPANY
APPENDIX B
NOTICE TO ALL EMPLOYEES
483
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE HEREBY disestablish Employee -Management Committee , Ed Taussig , Inc., as
the representative of any of our employees for the purpose of dealing with us concerning
grievances , labor disputes , wages , rates of pay , hours of employment , or other conditions
of employment , and we will not recognize it or any successor thereto for any of the above
purposes.
WE WILL NOT dominate or interfere with the formation or administration of any
labor organization or contribute financial support to it.
WE WILL NOT otherwise interfere with the representation of our employees through
a labor organization of their own choosing.
ED TAUSSIG, INC.,
Employer.
Dated ................ By.............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and
LOCAL 600, AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case
No. 10-CA-1687. April 23, 1954
DECISION AND ORDER
On October 14, 1953, Trial Examiner Horace A. Ruckel
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case, and hereby adopts the Trial
Examiner's- findings, conclusions, and recommendations. i
iln his Intermediate Report, the Trial Examiner incorrectly found that Walker had signed
her Union applicationcard duringthe first part of January 1953. The report is hereby corrected
to show that Walker signed her card on December 26, 1952.
108 NLRB No. 84.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case , and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent , The Great
Atlantic & Pacific Tea Company , Chattanooga , Tennessee, its
officers , agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 600, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL,
or in any other labor organization of its employees , by dis-
charging any of its employees , or in any other manner dis-
c riminating against them in regard to hire or tenure of employ-
ment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations, to join or assist Local
600, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL, or any other labor organization , to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act. 2
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Tressie Walker immediate andfull reinstatement
to her former or a substantially equivalent position , without
prejudice to her seniority or other rights and privileges.
(b) Make whole Tressie Walker for any loss of pay she may
have suffered by reason of the Respondent ' s discrimination
against her , in the manner provided in the section of the In-
termediate Report entitled " The Remedy."
(c) Upon request, make available to the National Labor Rela-
tions Board or its agents , for examination and copying, all
payroll records , social - security payment records, timecards,
personnel records and reports, and all other records necessary
for a determination of the amount of backpay due and the right
of reinstatement under the terms of this Order.
(d) Post at its South Board Street store in Chattanooga,
Tennessee , copies of the notice attached hereto as "Appendix
A." 3 Copies of said notice , to be furnished by the Regional
Director for the Tenth Region, shall , after being duly signed by
the Respondent ' s representative , be posted by the Respondent
immediately upon receipt thereof and maintained by it for
2 N. L R. B. v. Entwistle Manufacturing Co., 120 F. 2d 532 (C. A. 4).
31n the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 485
sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in Local 600,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL, or in any other labor organization of
our employees, by discharging any of our employees or in
any other manner discriminating against them in regard
to their hire or tenure of employment or any term or condi -
tion of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Local 600, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any
or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer Tressie Walker immediate and full rein-
statement to her former or a substantially equivalent posi-
tion without prejudice to her seniority or other rights and
privileges previously enjoyed, and make her whole for any
loss of pay suffered by reason of her discharge.
Dated ................
THE GREAT ATLANTIC & PACIFIC TEA COMPANY,
Employer.
By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed on March9,1953,by Local 600, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL, herein called the Union, the General Counsel for the Na-
tional Labor Relations Board, herein called respectively the General Counsel and the Board,
by the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated
April 28, 1953, against The Great Atlantic & Pacific Tea Company, herein called Respondent,
alleging that Respondent had engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and a notice of
hearing were duly served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance, that Re-
spondent by its agents during the latter part of 1952 and the first part of 1953 interrogated its
employees concerning their Union membership and activity, and on or about February 23, 1953,
discharged one Tressie Walker because of her membership in and activity on behalf of the
Union.
On May 4, 1953, Respondent filed its answer herein admitting certain allegations of the
complaint with respect to the nature of its business, but denying the commission of any unfair
labor practices.
Pursuant to notice a hearing was held before me, the undersigned Trial Examiner, at
Chattanooga, Tennessee, on August 31, 1953. The parties were represented by counsel and
participated in the hearing. Full opportunity was permitted to examine and cross-examine
witnesses and to introduce evidence pertinent to the issues. At the conclusion of the hearing
the parties engaged in oral argument but waived the filing of briefs . I reserved ruling upon a
motion by Respondent to dismiss the complaint. This motion is disposed of by the recommenda-
tions hereinafter made.
Upon the entire record in the case, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Arizona corporation. At all times material herein it has been engaged in
the operation of retail grocery stores and related activities including bakeries, canneries, and
warehouses in the State of Tennessee and in many other States of the United States at its store
on South Broad Street, Chattanooga, Tennessee, with which this case is entirely concerned.
Respondent has 18 to 20 employees.
During the year preceding theissuanceofthecomplaint, Respondent purchased for its stores
in Chattanooga materials valued in excess of $1,000,000, of which more than 50 percent was
purchased outside the State of Tennessee. During the same period Respondent at its Chattanooga
stores sold groceries and related items valued in excess of $1,000,000, including groceries
and related items valued in excess of $250,000 sold to customers outside the State of Ten-
nessee.
II. THE LABOR ORGANIZATION INVOLVED
Local 600, Amalgamated Meat Cutters and Butcher Workmen of North America is a labor
organization admitting employees of Respondent tomembership.Itis affiliated with the Ameri-
can Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Tressie Walker
The meat department of Respondent's South Broad Street store has for some time been
organized by the Union, with which it has a contract. The other employees of the store, consist-
ing principally of clerks and checkers, have been unorganized. During the latter part of
October 1952 the Union, principally by Jack Wall, its shop steward, undertook to organize the
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 487
other employees. Wall solicited the Union membership of several of them including Tressie
Walker, the bookkeeper and head cashier, to whom he gave several cards for distribution.
Walker talked to various of the employees about the Union and obtained the signed applications
of four. During the initial stage of the organizing Walker herself did not sign a card. The
solicitation took place on Respondent 's parking lot and at neighboring restaurants.
Walker first came to work for Respondent at another of Respondent's local stores in 1946.
She worked at the South Broad Street store from August 1948 until herdischarge on February
23, 1953. During the latter part of her employment she was under the direct supervision of
J. T. Melton, store manager , who came to the South Broad Street branch in November 1950.
Walker's duties were to keep the books, check out the cash registers, make up the payroll,
and extend the retail price on all merchandise invoices. She had no supervisory authority.
The Union's attempt to organize Respondent's employees shortly came to the attention of
Melton, who in October called her into a room in the back of the store where, after stating
that he wished to talk confidentially, said that he knew the store was being organized and,
since she was a "good barometer" of the feelings of the employees, asked if she had been
approached to sign a Union card. She replied that she had not. Melton then asked her to tell
him who had signed cards and Walker refused to do so. To Melton's further question as to
whether a majority of the employees would join the Union she gave it as her opinion that most
of them would. It is admitted that Melton called the other employees in groups to the back room
where he expressed to them his unfavorable opinion of the Union, stating that the employees
did not have to join a union if they did not wish to do so. Walker was included in one of these
groups. Her testimony, as well as that of Philmena Fox and Billy Wright, is that on these
occasions Melton said additionally that he would rather not know the names of the employees
who had signed the cards because he could make it hard on them.
Melton was not asked specifically whether he said that he could make it hard on the em-
ployees if they joined the Union. Several other witnesses called by Respondent testified as to
the general nature of Melton's remarks concerning the Union, but did not testify as to this
statement. I was favorably impressed with Walker as a witness and I credit her testimony,
corroborated by that of Fox and Wright in this respect.
Walker signed her own card in the Union during the first part of January 1953. About 2
weeks later Melton again called Walker individually to the back room where he told her that
someone was turning the employees against him and that she was engaging in too many secret
conferences with other employees. When Walker asked him if he was blaming her for the
attitude of the employees, he replied, according to Walker, whose testimony was not con-
tradicted, that he was "not calling any names "brat that he thought she "would admit it." Dur-
ing the same conversation Melton observed that "some people, if you offer them $100, they
will take it and walk right on out" to which Walker replied that she did not intend to quit her
job. Melton while testifying did not specifically deny making these statements to Walker.
On Monday, February 23, at closing time, Melton called Walker to the back room and told
her that she was discharged. When asked why, he replied that he was not obligated to give a
reason. When Walker insisted, he said, according to Walker's credited testimony, "Well, let's
say that you wasn't doing your work, you wasn't able to do your work as I wanted it done. In
other words, inefficiency." Melton admitted that he gave Walker no reason for discharging
her other than inefficiency and that he specified no instances of it. At the hearing, however,
he related several instances which are cited as examples of her inefficiency or failure to get
along with him. The last one occurred on February 20, a payday. On this date the employees,
excepting those in the meat department , were given a general wage raise , rumors of which
had been prevalent for some time. Early in the day Melton told Walker to hold up making
the payroll until he spoke to her again about it. According to Melton, she asked if that meant
everyone was going to get a raise, to which Melton replied that he did not know. Walker then
suggested that she go ahead and figure the payroll for the meat department, since they would
not be affected by a raise. Melton demurred at this and it is not contended that she persisted.
Later in the day Cooper, Melton's superior in the Chattanooga organization, arrived with
the new wage schedule and Walker and Melton proceeded to prepare the payroll. At this time
Melton cautioned her not to talk about the increase. When the payroll was completed Melton
handed the checks to the employees making a complimentary or congratulatory remark to
each. Later in the day Melton was told by Barnes, in charge of the dairy counter, that Walker
had asked her if she had been given the "pep talk." Melton testified that he regarded this as
a breach of his instructions not to mention the raise, and that it was the immediate cause for
her discharge. There is no contention that Walker discussed the raise before the checks were
issued. Melton's testimony on this point was as follows:
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER RUCKEL: The point is, if Mrs . Walker talked with this employee
it wasn 't until after the checks had been distributed and the pep talk made . Now, did you
object to discussing the increases after they had been made?
THE WITNESS: Yes, sir.
*
TRIAL EXAMINER RUCKEL: What was the objection?
THE WITNESS: The objection was that she was just not to talk to employees about
their wages or salaries at all.
TRIAL EXAMINER RUCKEL: --What was there you objected to Mrs . Walker 's saying
after this had taken place. Did you object to Mrs. Walker congratulating the person on
getting a raise?
THE WITNESS : That was not a part of Mrs . Walker 's duties , to congratulate a person.
TRIAL EXAMINER RUCKEL: And your information was not that she had told this
person what raises others had received or how much others had received, just a reference
to "Well, have you had your pep talk yet? "
THE WITNESS: Yes, sir. After I instructed her not to mention it.
As has been found, Melton testified that this incident was what determined him to discharge
Walker. First , however, he consulted with Cooper about it over the week end and again on
Monday morning when , according to Melton , the two "very completely went over the different
reasons that we thought justified Mrs. Walker 's dismissal." At the hearing Melton cited the
following additional instances of his alleged dissatisfaction with Walker. Walker , who had
previously been in charge of the dairy counter , substituted for Barnes each Tuesday, which
was Barnes ' day off. On one Tuesday sometime previously Melton observed Walker sitting
at the dairy counter working on bills and invoices when a customer approached and stood at
the counter waiting for Walker to turn around . Melton went over and waited on the customer
himself. He testified there was no objection to Walker 's doing her regular work while she was
at the dairy counter but that she should have been alert to the presence of a customer . Another
complaint had to do with an occasion about a month before Walker 's discharge when she
voluntarily went over and stocked the candy counter . She did it so well that Melton com-
plimented her and added it to her regular duties . According to him , she stocked it once more
and did not do so again. Melton admitted that he did not again speak to Walker about it.
Another occasion was approximately a month before she was discharged when , Melton
testified , he was told by another employee that Walker had said that she had quit buying her
own groceries at the A & P. and suggested that she do the same. Melton admittedly made no
investigation of this incident to ascertain Its truth , did not mention it to Walker. Walker denied
while testifying that she made such a statement to any employee , and I credit her denial.
Melton's further testimony is that on February 13, 10 days before Walker 's discharge, a
Friday night when the store was open until 8:30 and only 2 cash registers were in operation,
he instructed Walker to leave the checking of these registers until after she had checked those
which had closed. According to Melton , shortly afterward Walker checked out 1 of the 2 cash
registers in question . Melton did not say in testifying whether by this time Walker had finished
checking out the other registers as directed.'
'During Walker 's direct examination the General Counsel, not being informed as to the
exact nature of Respondent ' s defense , sought to anticipate it by questioning Walker as to
some previous discussion between her and Melton respecting the forcing of a balance on the
cash registers pending their final check . I do not deem it necessary to discuss this evidence
since Melton, in his testimony , did not advert to it or advance it as a reason for Walker's
discharge.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 489
Conclusions
During oral argument counsel for Respondent rested his defense chiefly upon the contention
that Respondent ' s knowledge of Walker ' s activity in the Union was not shown It is true that in
October , when Melton first discussed union organization in the store with Walker , she had not
herself joined the Union and told him so. On the same occasion , however, she refused to tell
Melton who was active in the Union and predicted that the Union would succeed in organizing
the store. During the following January, after Walker had joined the Union, Melton again called
her aside and remarked that she was engaging ,in too many " secret conferences " with the
employees whom, he said , someone was turning against hire . I find that Melton thought that
this was Walker and that the "turning against " him consisted of their becoming interested in
the Union . I conclude that Melton suspected , if he did not then know , that Walker , an influential
person among the employees , was taking part in the organizing.
Moreover , the reasons advanced for discharging Walker , particularly the alleged decisive
one that she had made mention of Barnes ' raise to Barnes herself after it had been ' made--a
fact which both she and Barnes already knew -- impress me as flimsy Melton ' s telephoning
Cooper and consulting over the week end and again on the day of Walker ' s discharge as to the
various reasons which might be advanced for her termination convince me that Respondent,
knowing or suspecting Walker ' s activity in organizing the employees , was in search of a pre-
text for terminating her employment . Finally, Melton at no time spoke to Walker concerning
any one of the cited instances of his alleged dissatisfaction , even at the time he discharged her,
and never previously disciplined or warned her.
I find that Respondent discharged Tressie Walker because of her activity in behalf of the
Union Thereby Respondent discriminated -with regard to the hire and tenure of her employ-
ment, and interfered with the exercise of the rights guaranteed in section 7 of the Act 2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection with the
operations of Respondent described in section I, above , have a close , intimate , and sub-
stantial . relation to trade, traffic , and commence among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce
V. THE REMEDY
I have found that Respondent has engaged in certain unfair labor practices. I shall
recommend , therefore , that it desist and cease therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that Respondent discharged Tressie Walker on February 23, 1953, because of
her membership and activity in the Union. I will therefore recommend that Respondent offer
her immediate and full reinstatement to her former or substantially equivalent position with-
out prejudice to her seniority and other rights and privileges and make her whole for any loss
of pay equal to the amount she would have earned as wages from the date of her discharge to
the date of the offer of reinstatement , less her net earnings 3 to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company 4
Upon the basis of the foregoing findings of fact and upon the entire record I make the
following.
CONCLUSIONS OF LAW
1. Respondent , The Great Atlantic & Pacific Tea Company, at Chattanooga , Tennessee, is
engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
21n May 1953 Respondent offered Walker employment as a checker in another store as a
new employee . She refused the offer , which I find was not one of substantially equivalent em
ployment.
3Crossett Lumber Company, 88 NLRB 440.
4 90 NLRB 289.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 600, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
3. By discharging Tressie Walker on February 23, 1953, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC.
and UNITED BREWERY AND SOFT DRINK WORKERS LOCAL
20, INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS
OF AMERICA, CIO. Case No. 9-CA-418. April 23, 1954
DECISION AND ORDER
On June 30, 1953, Trial Examiner Charles L. Ferguson
issued his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter , the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Respondent's
exceptions and brief, and the entire record in this case, and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner, 1 with the following additions and modi-
fications:
1. Before and at the hearing , the Respondent raised as an
issue, and sought to litigate, the compliance with Section 9
(h) of the Act by the charging Local t United Brewery and Soft
Drink Workers Local 20, International Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America,
CIO), by the International Union of which the Local is a con-
stituent, and by the Congress of Industrial Organizations. In
support of its position, the Respondent contended that W. B.
Taylor, the CIO regional director in Louisville, Kentucky,
exercised administrative and executive duties and powers
over Local 20 of the Brewery Workers; that Taylor was in fact
an officer of the CIO although not listed as such in its con-
stitution and bylaws ; and, accordingly, that Taylor was required
1 We reject as lacking in merit the contention made by the Respondent in its brief that
the Trial Examiner was biased or prejudiced against it.
108 NLRB No. 81.