The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1965

150 N.L.R.B. 1222 (N.L.R.B. 1965)

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Great Atlantic & Pacific Tea Co., Inc. and Retail Clerks
Union, Local No. 204 , AFL-CIO . Case No. 11-CA-2338. Janu-
ary 25, 1965
DECISION AND ORDER
On October 29, 1964, Trial Examiner Laurence A. Knapp issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the entire record in
this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(6) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, The
Great Atlantic & Pacific Tea Company, Inc., its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' In concluding that the Respondent violated Section 8 (a) (5) of the Act, the Tiial
Examiner relied solely on the ground that the Respondent acted unilaterally In adopt-
ing this conclusion , we rely also on the record evidence , as reflected in the Trial
Examiner' s Decision , establishing that the Respondent was seeking to avoid bargaining
on the questions of interstore transfers and full -time employment for Klutz and Guyton, and
the further fact that the Respondent foreclosed discussion of its action after the Union's
protest had shown that the Respondent 's alleged reason for such action lacked substance.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Laurence A. Knapp at Wilmington,
North Carolina, on June 3, 1964, following a charge, complaint , and answer duly
filed and served under the Act.' Following the hearing , a brief was filed with me
by counsel for the General Counsel but not by Respondent or the Union.
' There are an original and an amended charge filed , respectively , on January 14 and
March 17, 1964, by the Union named in the caption , hereinafter called the Union.
150 NLRB No. 120.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1223
The issues for decision are (1) whether Respondent engaged in certain interroga-
tion and threats in violation of Section 8(a)(1); and (2) whether Respondent altered
the working conditions of two employees (a) discriminatorily in violation of Section
8(a)(3), and (b) unilaterally in violation of Section 8(a)(5) of the Act.
Upon the entire record in the case, including my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that: (1) Respondent engaged
in the retail food business, had gross sales across State lines in excess of $10 million
during the year preceding issuance of the complaint, and (2) the Union-Retail
Clerks Union, Local 204, AFL-CIO-is a labor organization within the meaning of
Section 2 (5) of the Act.
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary background facts
Respondent's conduct involved in this case pertains only to employees of its store
at Carolina Beach, North Carolina, an Oceanside locality some 15 miles south of
Wilmington. In Respondent's organizational setup, the Carolina Beach store is 1
of 19 in the Wilmington territory, a territory forming part of a larger organizational
unit composing most of North and South Carolina and known as the Charlotte unit.
Respondent's officials principally involved are Dan H. Earp, personnel manager for
the Charlotte unit; Paul N. McIntosh, meat assistant superintendent for the Wilming-
ton territory; and J. T. Melton, former manager of the Carolina Beach store.
As further background pertinent to some of the issues, the Union, by a vote of
7 to 4, won a Board-conducted secret election among the employees of the Carolina
Beach store on November -14, 1963, and on November 22, 1963, was certified as the
representative of the employees in the store unit .2 Respondent and the Union then
had an initial bargaining session concerning a collective agreement, the date of which
is not fixed in the record but which the record as a whole indicates, and I find, pre-
ceded January 4, 1964. On this latter date Respondent effected, as of January 6,
the reduction in working hours of two Carolina Beach employees, action which is a
central issue of the case. A second bargaining session was held on January 8, 1964,
at which, as later seen, this reduction was touched upon.3
Sales at the Carolina Beach store are marked by broad seasonal variations. Its
peak season is the summer months, with the end-of-summer decline setting in about
Labor Day and reaching in October a decreased level which remains relatively con-
stant until about March. At or about this time, a gradual increase in business sets
in, rising to the summer peak, a peak which is some three to five times the volume of
the low winter, or "slack season," level
From September 1961 until January 4, 1964, Respondent had two "full-time"
employees 4 assigned to the meat department of the Carolina Beach store, Hazel Klutz
and James Guyton. During the-busy seasons, they would be supplemented by some
five to six additional workers, some being full-time employees brought in from other
stores and some being purely temporary employees engaged merely for peak season
work. As business declined in the slack seasons, trade at this store was insufficient to
provide full-time work (40 hours per week) for both Klutz and Guyton.
Respondent accommodated itself to this situation by maintaining Klutz on full-
time status at Carolina Beach while utilizing Guyton on some days at Carolina Beach
and on others of the week at one or another of Respondent's Wilmington stores
Thus, both Klutz and Guyton continued to receive 40 hours work per week and
retained throughout what the record refers to as "full-time" status, a status entitling
them to important benefits not accorded to employees having only "part time" status.5
2 The Union lost another election simultaneously conducted in Wilmington, in a unit
which, I Infer, covered the stores in that city.
3 There were many such subsequent bargaining sessions not invloved in or material to
the Issues of this case.
4 For the special meaning of "full time," see snfi a
5 Among these benefits available to "full time" but not to "part time" employees are life
and medical insurance, vacations, sick pay, and pension plan benefits.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union conducted a campaign to organize the employees of the Carolina
Beach store beginning at the end of the summer in 1963. Guyton responded by sign-
ing a union card , attending organizational meetings , and talking to two to three
other employees in favor of the Union . Klutz engaged in similar activity , including
expressing herself in favor of the Union in evening telephone calls she made to
various employees and in person to employees who visited her at her home. There
followed the election on November 14 and the certification on November 22, as
previously described.
I come now to a consideration of the record relative to the specific violations
charged.
B. The specific charges
1. Alleged interrogation and threats by Territorial Meat Supervisor
McIntosh on November 15, 1963
Klutz testified as follows- On some occasions prior to the election , McIntosh had
conversed with her about the Union and although she had not then told him how
she felt, she had not told him she was opposed to the Union . On the day after the
election, McIntosh came up where she was sitting in an upstairs lounge during her
mid-morning "break ," sat down beside her, and asked her "why in the world did
you want to get mixed up in this mess for?" She asked what "mess " he meant and
he replied "this union mess, you know what I am talking , about." She replied there
was nothing "personal"-she felt it her privilege to vote as she desired , to which
McIntosh rejoined that even though she had voted for the Union , she did not have
to join it, and that the union people would "pull up and leave ." He added that she
was going to be sorry and that she and others were going to be hurt ; that he was
still boss of the meat department ; and that the Company would close the Carolina
Beach store before it would let the Union tell them what to do. On two or three
occasions in subsequent weeks, McIntosh , drawing Klutz to one side , reminded her
that she did not have to join the Union and that his feelings toward her were not
the same.
In his direct examination as a witness for Respondent , McIntosh fixed January 10,
1964, as the date of his conversation in the lounge with Klutz, and said he spoke to
her because he wanted to know where , as a supervisor "representing" the employees,
he had failed ; that: he did not know until "then" that she felt strongly about the
Union-"she had me completely fooled"; and he merely wished to inform her that
she did not have to belong to the Union. He did not remember asking Klutz why
she had gotten mixed up in the Union "mess" and denied telling her she would be
sorry or be hurt as a result . At first, he admitted telling her that it was possible that
the Carolina Beach store might be closed during the winter months due to unprofit-
ability during that period ; he later added the qualification that it was possible he had
made this statement but he did not recall doing so.
On cross-examination , McIntosh tacitly conceded that his conversation with Klutz
had taken place on November 15, as she had testified , and not on January 10, as he
had stated on direct examination ; and gave other responses which left open the possi-
bility that he had then said to her things about the Union not embraced in the descrip-
tion he had given of the conversation while under direct examination . Elsewhere in
his cross-examination McIntosh admitted that he was opposed to the Union "coming
into" the Carolina Beach store and that he had so informed the store 's employees,
including Klutz ( and Guyton ), in conversations he had had with them prior to the
election. He stated that he told the employees that he did not see where the Union
could benefit them, but admitted that he may have said other things about the Union
which he could not recall at the hearing.
On this body of evidence , I conclude that the version Klutz gave of what McIntosh
told her has the more plausible and credible ring, and credit it . Her description is
straightforward and specific , while McIntosh was troubled by uncertainties of recol-
lection . Moreover , he confessedly entertained rather pronounced antiunion views,
and it would appear that , as in the case of Klutz, he followed the practice of approach-
ing the employees individually to impress his views upon them. Furthermore, he
would not, while testifying , preclude the possibility that his remarks to them encom-
passed "other things" than his belief that the Union could not do them any good.
In these circumstances , I see no reason to believe that he did not make the specific
remarks attributed to him by Klutz, and I accept her testimony that he did.
Mclntosh 's statements to Klutz on November 15 that she was going to be sorry,
she and others were going to be hurt , and the Company might close the Carolina
Beach store , constituted threats of reprisals manifestly referrable to the support she
and others had given to the Union and as such violated Section 8(a)(1) of the Act.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1225
In the intimidating atmosphere which remarks such as these cast over the entire
interview, I further find that McIntosh's inquiries of Klutz as to why she had become
part of the "Union mess," and why she had voted for the Union, represented coercive
interrogation concerning her union activities, sympathies, and desires, as charged in
the complaint.
2. Alleged discrimination against Klutz and Guyton;
and attendant alleged violations
On the morning of January 4, 1964, McIntosh handed to Klutz and Guyton new
"work schedules," by which their working hours were reduced from 40 to 26 at the
Carolina Beach store and by which their status was changed from that of full-time
to part-time employees, with attendant loss of earnings and of full-time benefits previ-
ously described.
Some 30 minutes later, according to Guyton, McIntosh asked him while they were
handling merchandise outside the store, "what's wrong with you folks down here";
Guyton registered some complaint regarding Respondent's promotion policy but said
that regardless of the "outcome of the Union" he would always feel the same toward
McIntosh; and McIntosh replied that his feelings toward Guyton were not the same
and that he had tried to tell "you folks" that "we could do more for you than any
outsider" but that the employees would not let him. In his -testimony, McIntosh
placed this conversation as occurring on January 6 and as stimulated by his desire
to know, from his personal standpoint, where he had fallen down in taking care of
these employees. He testified that he asked Guyton what was wrong-why he felt
inclined to depend on some "outsider" to take care of his affairs, gave a version
similar to that of Guyton as to what passed between them relative to promotions,
but recalled nothing further. Thus, he did not deny that he told Guyton that he
did not feel the same toward Guyton, in an obvious reference to the interposition of
of the Union and Guyton's support of it.6
Both Guyton and Klutz further testified that about midday on January 6, Melton,
the then Carolina Beach store manager, asked them to sign some paper not in evi-
dence relative to their reduction to part-time status, and that in the ensuing conversa-
tion Klutz asked why she could not work in the grocery department or in Wilmington
the additional 14 hours so as to retain full-time status.? According to both witnesses,
Melton replied that he wished this could be done but that "we can't any more"-
"that is what happens when the union comes in; it messes up everything." Melton
did not appear as a witness, and hence this testimony stands uncontradicted.8
The complaint charges that Melton's remarks constitute a threat of reprisals based
on Klutz' and Guyton's union activities and sympathies. While the words used are
somewhat equivocal, they were uttered in relation to the reduction of the two
employees to part-time status and this action was attributed, in disgruntled language,
to the mere advent of the Union without more. In these circumstances, what Melton
said could reasonably be regarded by the two employees as conveying the implication
that the reductions they had just sustained were somehow attributable to their sup-
port of the Union, and that this kind of thing might happen again. I find, therefore,
that Melton thereby threatened the two employees in violation of Section 8(a)(1)
of the Act, as charged.
Respondent amply established that, as in prior years, there was insufficient trade
at the Carolina Beach store during the 1963-64 winter months to justify employment
of both Klutz and Guyton in the meat department of that store' on a 40-hour per
week basis. The real question relative to the charge of discrimination is what moti-
vated Respondent in determining to keep Guyton at the Carolina Beach store and to
6I find, as charged in the complaint, that McIntosh thus conveyed to Guyton the im-
pression that he could expect less considerate treatment than in the past, a form of
threat of reprisal violative of Section 8(a) (1) of the Act.
The complaint also charges Respondent, through McIntosh, with unlawfully interrogat-
ing Guyton concerning his union activities, sympathies, or desires during this incident.
But McIntosh's question implied, as I otherwise am satisfied, that he already knew
that Guyton was a union supporter, so that, as Guyton's response indicated, he was more
concerned with ascertaining what criticisms the employees had of their working con-
ditions, a not illegitimate subject of inquiry. In any case, this issue need not be decided
and I pass over it since my proposed order will restrain unlawful interrogation based on
-my finding of McIntosh's conduct on November 15.
7 According to Guyton, Klutz' question referred to these possibilities for him as well
as her.
8 McIntosh testified that Melton was no longer- employed by Respondent and that he
did not know Melton 's whereabouts.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reduce both Guyton and Klutz to part-time status on January 4, rather than to follow
the pattern of previous years under which Klutz worked full time at the Carolina
Beach store and Guyton full time by division of his 40 hours between that and Wil-
mington stores, with each thus retaining their full-time status and benefits.
At the bargaining session of January 8 previously referred to, Capps, the union
spokesman, inquired of Personnel Manager Earp why Klutz and Guyton had been
reduced to part-time status. Earp referred the question to McIntosh who, with his
superior for meat operations, Overman, explained that the reason was the winter
season reduction in business at the Carolina Beach store. Capps then asked why
Respondent could not use Guyton part of the week in Wilmington. According to
Capps and other General Counsel's witnesses present, Earp responded to this ques-
tion by stating that Capps knew Respondent could not transfer " union" employees
into a "non-union" store; according to Earp, what he said was "Leroy, you know we
don't transfer union members to other towns." 9 Capps then announced his intention
to file charges with the Board and Earp told Capps to go ahead, that this was Capps'
privilege.
With nothing more said on this occasion, Respondent elicited testimony at the
hearing, principally through Earp and by cross-examination of Capps, designed to
elucidate what it contends was imparted by what Earp said on January 8 about not
transferring union employees from one store to another.
In the cross-examination of Capps, which preceded Earp's testimony, Respondent
sought to establish that in prior Union-Respondent dealings at other store locations
in North Carolina,10 the Union had taken some position which, if applied to Guyton's
case, would have been one of opposition to using him jointly at the Carolina Beach
and Wilmington stores. In initiating his cross-examination, counsel for Respondent
first described this past alleged position of the Union as one broadly in opposition to
transferring "an employee from one store to another" but the two instances cited in
this connection merely involved (1) in one case, a Union charge under the Act that
a particular set of transfers was discriminatorily motivated, a charge sustained by the
Board in 141 NLRB 1; and (2) in the other, an arbitration case, a successful union
protest of a particular transfer between two stores in the same city, based on a con-
tractual seniority provision. In this latter instance, the arbitrator sustained the
Union's grievance, which, according to Capps, was that the employee transferred was
not "the bottom man on the seniority list." From this uncontradicted testimony, I
infer that the contract in question in this latter case did not prohibit transfers of the
type involved in it. In any case, these instances of union protests against a transfer
in violation of law and one contrary to contractual seniority provisions do not reflect
opposition by the Union to transfers in any and all circumstances.
Later, counsel for Respondent phrased the Union's alleged past position as one
prohibiting the Respondent from making any transfer "out of a bargaining unit,"
or, as he subsequently phrased it, from a "bargaining unit store to a non-bargaining
store." 11 In his corresponding examination of Capps, counsel posed this question
both as a broad one, and in relation to transfers between specific localities one or
another of which, I infer, is covered by a Respondent-Union contract. But no deter-
mination of the broad question presented-posed usually in terms of Respondent's
"right" to make such transfers-can be made on this record. Contributing to this
difficulty was counsel's failure to offer in evidence, quote, or even attempt substantially
to summarize any pertinent provisions of any contract during his examination of
Capps, who in reference to some questions indicated that the answer was dependent
upon pertinent contractual provisions which he would need to consult.
In any event, Capps' testimony does not confirm Respondent's effort to establish
that the existing Respondent-Union contracts prohibited, or that the Union in prac-
tice had uniformly resisted, transfers from bargaining-unit to non-bargaining-unit
stores. While at times Capps appeared to say that Respondent could make such a
transfer only with the consent of the employee affected, he also denied that any such
9 For reasons later evident, I consider it immaterial which form of answer Earp gave,
since in context they mean the same thing (see the discussion below).
10 It appears that the Union has representative status and collective-bargaining agree-
ments with Respondent covering stores in some North Carolina localities, and that, in
consequence, there have been considerable corresponding dealings between the Union and
Respondent in recent years, with Earp and Capps commonly participating
"For purposes of this formulation, counsel was assimilating the union-organized Caro-
lina Beach store to a "bargaining unit" one, and the Wilmington stores, where the Union
had lost an election, to "non-bargaining- unit" ones. He was also assuming that use of
Guyton at both locations involved a "transfer" from one store to another, an assumption
I consider unwarranted on the evidence of record ( see infra).
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1227
contractual prohibition existed and indicated that Respondent could affect them pro-
vided it complied with seniority, unit-work preference, and perhaps other pertinent
contractual clauses. When he referred to transfers permissible with the consent of
the employee concerned, he may, therefore, have meant that transfers not in accord
with contractual limiting clauses could nevertheless be made if arranged by consent
or, agreement. He further referred to some presumably recent instance in which
Respondent had (apparently without prior consultation with or subsequent objec-
tion by the Union) taken union employees from Durham to man a new store at
Hillsboro, which I must assume from the context involved employee shifts from
bargaining-unit stores to a non-bargaining-unit one.
Queried concerning the specific situation involved in this case, Capps stated that
this was a different situation, one novel in Respondent-Union experience; he denied
that there was any provision in the contract the Union had proposed for Carolina
Beach which would prevent using Guyton at both Carolina Beach and Wilmington
stores; he speculated that whether the Union would object to such a course in any
specific case would be dependent upon the circumstances, such as the possibility of
discriminatory motivation; and stated that use of Guyton at both locations was quite
agreeable to the Union (as, indeed, he had plainly indicated to Earp on January 8).
Turning to the testimony of Personnel Manager Earp, he testified that he made the
decision to reduce Klutz and Guyton to part-time status, as the method chosen to
cope with the surplus employee situation in the meat department of the Carolina
Beach store, and that he passed the decision on to McIntosh for execution.12 His rea-
son, he testified, was the "past practice of not transferring full time or any employees
from a bargaining unit [town, as I understand his meaning] to a non-bargaining-unit
town." In amplification, he stated that "we never had any direct agreement" on the
subject (meaning, as I understand him, that there never had been ahy provision in any
Respondent-Union contracts specifically prohibiting such transfers). He then referred
to the seniority clause in existing contracts as prohibiting transfers, and to statements
in Respondent-Union discussions by Capps that Respondent could "break up" the
Union if it allowed them. Asked to clarify his prior dealings with the Union relative
to an employee working in two stores, he first made the somewhat tangential state-
ment that "Well, we have never done that" but the balance of his answer refers not
to the joint store employment arrangement put to him in the question but to outright
transfers of an employee from a union to a nonunion store. Then, in apparent self-
contradiction, he went on to cite two instances in which Respondent had made trans-
fers of the latter type. These were the instance of using Durham employees at the
new store at Hillsboro, and the arbitration case, both referred to in the previous
testimony of Capps. Because of these cases, he testified, there had arisen an "under-
standing" between Respondent and the Union that Respondent could not transfer
employees out of a bargaining unit.13 But neither illustration supported his thesis,
since there was no Union objection to Respondent's action in the first case, and in
the second, the objection was merely that the transfer violated the seniority provision
of the applicable contract.
Respondent's other testimony on this part of the case is that of McIntosh, who
testified that, after taking the initiative to consult Earp, he made the decision to put
Klutz and Guyton on part-time status, and that, as he put it, he "reduced them to
part-time" because he was under "the impression" that he could not transfer them
from a bargaining unit to a nonbargaining unit 14 He did not state in his brief testi-
mony on this point how he had gained this "impression "
The evidence Respondent thus adduced from its witnesses Earp and McIntosh,
and from Capps on cross-examination, appears to me to fall far short of establishing
that there was anything in union contract provisions, or in Respondent's experience
with the Union in their administration, which inhibited Respondent from "working"
Guyton concurrently at Carolina Beach and in some Wilmington stores, or which
afforded Respondent any solid basis for any "understanding" or "impression" that
this was the Union's settled position. In the first place, Respondent's main witness,
12 At another point, Earp testified that "we," meaning a group of Respondent's superior
officers who regularly meet at Charlotte and are known as the Executive Council, made
the decision after this group had considered the Carolina Beach store's situation many
times.
13 Subsequently, Earp appears to have retreated from his early assertion of an "under-
standing" with the anion on this point, in stating that this "has been my understanding"
of the Union's position.
u While superficially McIntosh's testimony appears to conflict with Earp's as to who
made the decision , I assume what he meant was that be had an important hand in
formulating the decision , along with superior officers.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earp, referred rather consistently to the matter of "transfers" of employees from store
to store, and corresponding illustrations, and it is evident that what he had in mind
was what this term normally imports, that is, shifting an employee from full-time
work at one location to full-time work at another. But that was not the situation
confronting Respondent in this case, and there is nothing in the record which detracts
from Capps' testimony that the case of using an employee at both a "union" and a
"non-union" store had never previously arisen , and was a different situation from
the one Respondent's counsel was referring to. Hence, even if Respondent had had
reason to believe that there was something in its past dealings with the Union which
would block it from fully transferring Guyton from Carolina Beach to Wilmington,
it scarcely could rationally believe that there was any such impediment to his service
jointly at both stores.
Moreover, even if using Guyton at both stores could be equated to a "transfer,"
there fails to emerge from the evidence of record any satisfactory support for Respond-
ent's contention, on which it had the burden of proof, that the Union had previously
taken a clear and firm position that transfers from a bargaining-unit store to a non-
bargaining-unit one were prohibited or otherwise considered impermissible by the
Union. No provisions of Respondent-Union contracts at other localities having any
such specific effect were cited, and their existence was denied by Capps and their
nonexistence admitted by Earp. The testimony as to past dealings between the
parties likewise fails to show that the Union consistently assumed any such position
in practice, but rather indicates an absence of union opposition in the one instance
cited in the record which appears to be comparable to the type of transfer Respond-
ent's witnesses were referring to. Other illustrations cited by Earp plainly were incom-
parable. It is true that this body of testimony is imprecise , confusing, and somewhat
disorderly but, bound as I am by the record before me, that of it which appears di-
rectly relevant and reasonably comprehensible has the effect I have ascribed to it.
But assuming that the record could be regarded as affording some basis for
Respondent's asserted explanation of the Union's past position, it must still be deter-
mined whether Respondent's "understanding" or "impression" of the Union 's posi-
tion relative to transfers, or an antiunion motivation, was the true basis of its action
relative to the two employees. In treating with this question of fact, it must be
admitted that there is little by way of concrete, overt facts to support the subjective
motivation which Earp and McIntosh assert led them to reduce the two employees
to part-time status , and, in particular, no evidence of comparable action by Respond-
ent in other and similar circumstances. The only element of record distinguishing
the situation in January 1964 from what it was in past winters is the Union-won elec-
tion of November 1963, and while this factor, on Respondent's theory, provides such
basis as exists for Respondent's treatment of the two employees differently than it
had in the past, it is just as consistent with the General Counsel's theory that an anti-
union motivation was at work. In short, this factor is not, in and of itself, unequiv-
ocal, and may weigh in one balance or another as indicated by the weight and direc-
tion of the other pertinent evidence. I find this weight and thrust to be on the side
of the General Counsel's contention of antiunion motivation.
In my consideration of the "understanding" or "impression" of the Union's posi-
tion professedly entertained by Earp and McIntosh, I am rather forcibly struck by
the fact that, within 2 days after the reductions became effective, the Union protested
them and requested Respondent to utilize the pattern of prior years. Certainly, this
union action sufficed to disabuse Respondent of any belief or impression it may
previously have entertained that union "policy," as Earp finally stated, required it to
do what it had done. Indeed, Earp made no attempt to explore, or show any interest
in exploring, this indication that he was misinterpreting the Union's position, but,
instead , he rather foreclosed discussion with the statement "Leroy, you know we don't
transfer union members to other towns." Thus Respondent, which put the reductions
into effect without first seeking to ascertain the Union' s reaction toward its using
Guyton at both stores, insisted on maintaining them in effect after being definitively
notified that there was no union opposition to that arrangement. Moreover, when
on January 6 Guyton asked McIntosh about his working at both stores, McIntosh
told Guyton, as I find, that he, McIntosh, knew that "the company" would not let
Guyton work out of the bargaining unit. In the circumstances, it would appear that
the operative factor at work was not the Union's practices or policy, but some policy
or motivation of Respondent's own which it had a fixed determination to pursue.
On this record, there is some significant evidence tending to establish that Respond-
ent's purpose was to discriminate against the two employees on antiunion grounds.
On that evidence, previously reviewed, I have found: that (1) McIntosh entertained
and freely expressed rather strong antiunion feelings; (2) on the day following the
election McIntosh , a prime mover or prime participant in Respondent 's decision
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1229
reducing the two employees to part-time status, condemned as a "mess" the union
movement Klutz had identified herself with, and threatened her and others with
reprisals; (3) shortly after notifying Guyton of the change in his status on January 4,
McIntosh registered with Guyton his displeasure with the (Union) "folks down
here" and, in telling Guyton that he no longer felt the same toward Guyton, left with
Guyton an implication that the going would be made rougher for him than in the
past; (4) on January 6, Store Manager Melton broadly attributed Respondent's
action to the Union coming in and "messing" up everything. This proof is by no
means overwhelming and in some other case might not suffice to be dispositive. But
this is a case which not only lacks, in my opinion, any independent evidence lending
credence to Earp's and McIntosh's professed reasons for Respondent's conduct, but
also, in the events of the January 8 meeting, contains evidence of overt occurrences
quite at odds with their explanations. In these circumstances, this evidence of retal-
iatory intention becomes distinctly substantial and is, indeed, the only evidence which
I consider satisfactorily explains Respondent's unilateral and stoutly maintained
decision. I find that Respondent deprived Guyton of the additional work in Wilming-
ton, deprived Klutz of full-time work at Carolina Beach, and reduced Klutz and
Guyton to part-time status, because of their activities in support of the Union at
Carolina Beach. Such conduct violated Section 8(a)(3) and (1) of the Act, as
charges in the complaint as amended at the outset of the hearing.
3. The alleged collective-bargaining violation
The complaint alleges, Respondent's answer admits, and I find that the Union
received a majority vote in the November 14 election and was certified as the bar-
gaining representative of the Carolina Beach store employees on November 22, 1963.
While Respondent's answer denies that these employees constitute an appropriate
bargaining unit, the findings that this is a proper unit made on behalf of the Board
in the representation case have binding effect in this unfair labor practice proceeding.
Hence, I adopt those findings that the unit alleged is appropriate.15
The violation charged refers to the unilateral way in which Respondent changed
the employment terms and status of Klutz and Guyton as described in the previous
section of this Decision, that is, that Respondent made and put into effect these
changes affecting members of the bargaining unit without affording the Union a prior
opportunity to bargain concerning Respondent's proposed action.
The uncontradicted evidence fully sustains the factual bases of the charge and I
so find. On the law, the Board and court decisions holding that such unilateral action
is a form of refusal to negotiate with the bargaining representative are legion. See,
as a leading decision, N.L.R.B. v. Benne Katz, etc., d3b3a Williamsburg Steel Prod-
ucts Co., 369 U.S. 736. Hence, I find that in making the employment changes it did,
as previously found, Respondent refused-to bargain with the Union as the repre-
sentative of its employees concerned, in violation of Section 8(a)(5) and 8(a)(1)
of the Act.16
THE REMEDY
The unfair labor practices found call for a cease-and-desist order of appropriate
scope. While in this case, I have found that Respondent was motivated by antiunion
reasons in reducing Klutz and Guyton to part-time status, on the record as a whole
I do not think this conduct, considered alone or in combination with the other viola-
tions found, portrays an employer so bent on flouting the Act in the future as to
necessitate an order broadly enjoining any further violations of Section 8(a)( I) of
the Act.
As to affirmative action appropriate to remedy the unfair labor practices found,
Respondent should be required (in addition to posting the customary notice to its
employees) to put Klutz and Guyton, so far as possible, in the position they would
have been but for the discrimination against them. With the winter season of 1963-64
long since past, what this means in practical terms is that Respondent must restore
them to full-time status and to all the benefits attaching thereto as of January 6,
1964, as though Respondent's reduction of them to part-time status on that date had
15 The precise unit as alleged in the complaint is set forth in my following conclusions
of law.
"Respondent's violation stands unrelieved by anything which transpired at the Jan-
uary 8 bargaining session. Respondent's violation had taken place 2 or 4 days earlier
Moreover, it was the Union which raised the matter on January 8, and assuming Re-
spondent might at this late date have corrected or undone its earlier unilateral action by
negotiations evidencing a good-faith reconsideration of its actions, it did not do this
but treated the subject as closed.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not occurred, and make each of them whole for any loss of earnings suffered as a
result of Respondent's discrimination, by payment to each of them a sum of money
equal to that which she or he would normally have earned as wages working on a
full-time basis during the period that her or his reduction to part-time status per-
sisted,17 less her or his net earnings during such period, with interest in accord with
the Board's decision in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By coercively interrogating its employees concerning their union activities, sym-
pathies, and desires, and by threatening its employees with reprisals because of their
union activities, as found above, Respondent has engaged in unfair labor practices in
violation of Section 8 (a) (1) of the Act.
2. By discriminating against its employees because of their union activities, as
found above, Respondent has engaged in unfair labor practices in violation of Section
8(a)(3) and Section 8(a)(1) of the Act.
3. All employees employed in Respondent's Carolina Beach, North Carolina, store,
including grocery, produce, and meat department employees, head cashier, and reg-
ular part-time employees, excluding store manager, assistant store manager, meat
department head, produce department head, guards, and supervisors, as defined in
the Act, constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since November 14, 1963, and at all material times thereafter, including the
time when Respondent reduced employees Klutz and Guyton to part-time status, the
Union has been and was the exclusive representative of all employees in said unit for
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union, as found above, Respondent has engaged
in unfair labor practices in violation of Section 8(a)(5) and Section 8(a)(1) of
the Act.
6. The aforesaid are unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent, The Great
Atlantic & Pacific Tea Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any employee with respect to his union activities,
sympathies, or desires.
(b) Threatening any employee with reprisals because of his union activities, sym-
pathies, or desires.
(c) Reducing any employee to part-time status or otherwise discriminating against
any employee in regard to tenure of employment or any term or condition of employ-
ment because of his union activities, sympathies, or desires.
(d) Unilaterally changing the employment status or other terms or conditions of
employment of employees or in any like or related manner refusing to bargain col-
lectively with Retail Clerks Union, Local No. 204, AFL-CIO, as the exclusive repre-
sentative of its employees in the following unit:
All employees employed in Respondent's Carolina Beach, North Carolina, store,
including grocery, produce, and meat department employees, head cashier, and reg-
ular part-time employees, excluding store manager, assistant store manager, meat
department head, produce department head, guards, and supervisors, as defined in
the Act.
(e) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) As of January 6, 1964, restore to Hazel Klutz and James Guyton their status
as full-time employees and all rights, benefits, and privileges attaching to such status,
17 While the record is not precise, it would seem from Guyton's testimony that he and
Klutz returned to a 40-hour basis at the Carolina Beach store (and presumably there-
upon were also restored to full-time status with its accompanying benefits) about April 1,
1964, in accord with the usual seasonal business pickup at that store. Precise deter-
mination of these and other facts pertinent to the backpay computations may be left to
the compliance stage of these proceedings.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1231
and make them whole for any loss of earnings they respectively may have suffered
as a result of the discrimination practiced against them in the manner set forth in
the section of this Decision entitled, "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine the
amounts due as lost earnings to the employees named above.
(c) Upon request, bargain collectively with the Union as the exclusive representa-
tive of all its employees in the unit set forth in paragraph 1(d) above, concerning
rates of pay, wages, hours of employment, and other terms or conditions of employ-
ment, and embody any agreement reached in a signed agreement.
(d) Post at its Carolina Beach, North Carolina, store, copies of the attached notice
marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 11, shall, after being signed by a representative of Respondent, be
posted by it immediately upon receipt thereof and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 11, in writing, within 20 days from
the date of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith.19
18 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Decision of a Trial Examiner"
in the notice In the turther event that the Board's Order is enLorced by a decree of
a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
191n the event that this Recommended Order is adopted by the Board this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT coercively question any of our employees concerning their union
activities, sympathies, or desires, and WE WILL NOT threaten any employees with
reprisals because of their union activities, sympathies, or desires.
WE WILL NOT reduce any employee from full-time to part-time status or other-
wise discriminate against any employee because he has joined or assisted Retail
Clerks Union, Local No. 204, AFL-CIO, or designated it as his collective-
bargaining representative.
WE WILL NOT unilaterally change the employment status of any employee or
in any like or related manner refuse to bargain collectively with Retail Clerks
Union, Local No. 204, AFL-CIO, as the exclusive representative of our employ-
ees within the collective-bargaining unit at this store as previously defined by
the National Labor Relations Board.
WE WILL restore Hazel Klutz and James Guyton to full-time status and to all
attendant rights, benefits, and privileges as of January 6, 1964, and make them
whole for any loss of earnings they suffered as a result of our having reduced
them to part-time status on that date.
All our employees have the right to join or assist Retail Clerks Union, Local No.
204, AFL-CIO, or any other labor union, and to designate any union as their collec-
tive-bargaining representative. They also have the right not to join, assist, or desig-
nate any labor union.
THE GREAT ATLANTIC & PACIFIC TEA Co., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
775-692-65-vol . 150-79
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board' s Regional Office, 1831
Nissen Building , 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 724-8356, if they have any questions concerning this notice or compliance with
its provisions.
East Texas Steel Castings Company, Inc. and United Steel-
workers of America , AFL-CIO . Case No. 16-CA-1945. Janu-
ary 25, 1965
DECISION AND ORDER
On September 2, 1964, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices, and recom-
mended that the allegations of the complaint pertaining thereto be
dismissed. Thereafter, the Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision together with sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Recommended Order of the Trial Examiner and orders
that Respondent, East Texas Steel Castings Company, Inc., its offi-
cers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
'The Trial Examiner found the transfer of employees from one department to another
and assignment of additional duties to certain employees were not discriminatorily
motivated, but were made to meet the demands of these employees . The Trial Examiner
further found , based on credibility resolutions , that the Respondent had not made various
statements alleged to be violative of Section 8(a) (1) of the Act. Absent exceptions
thereto, we adopt pro forma the Trial Examiner 's findings and conclusions regarding
these alleged violations.
150 NLRB No. 121.