The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1963

141 N.L.R.B. 1 (N.L.R.B. 1963)

The Great Atlantic & Pacific Tea Co., Inc. and Retail Clerks
Local Union No. 204. Case No. 11-CA-1945. February 27, 1963
DECISION AND ORDER
On November 27, 1962, Trial Examiner Rosanna A. Blake issued
her 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
attached Intermediate Report. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report.'
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 Members
Leedom and Brown].
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
Intermediate Report, the Respondent's exceptions, and the entire
record in the case, and hereby adopts the Trial Examiner's findings,
conclusions,2 and recommendations.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner .4
1 The Respondent 's request for oral argument is hereby denied as the record , including
the Respondent 's exceptions , adequately presents the issues and the positions of the parties.
,'Paragraph No. 3 of the "Conclusions of Law " in the Intermediate Report is hereby
corrected to include the name of Robert Reid , which was apparently inadvertently omitted
at this point from the names of the employees discriminated against in violation of Sec-
tion 8 ( a) (3) and ( 1) of the Act.
8 The Trial Examiner found that the Respondent , for discriminatory reasons, transferred
employees Barnes and Barefoot from Roanoke Rapids to its stores in Kinston and Golds-
boro, North Carolina, and refused to pay the customary moving expenses ; that, as a re-
sult, these employees resigned their jobs at Kinston and Goldsboro ; and that the Respond-
ent thereby caused them to quit their employment in violation of Section 8(a) (3) and (1)
of the Act The Respondent objects to the Trial Examiner's recommendation that it post
copies of the notice attached to the Intermediate Report in the Kinston and Goldsboro
stores, as well as at the Roanoke Rapids stores. As we find , under all the circumstances,
that the Respondent 's unfair labor practices extended to the Kinston and Goldsboro
stores, we adopt this recommendation of the Trial Examiner.
* Member Leedom dissents from the inclusion of interest in the backpay obligation for
the reasons stated in the dissent in Isis Plumbing d Heating Co ., 138 NLRB 716.
141 NLRB No. 5. 1
`Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on May 2, 1962, by Retail Clerks Local Union No. 204, herein
called the Charging Party or the Union, the General Counsel of the National Labor
Relations Board, acting through the Acting Regional Director of the Eleventh Region,
issued his complaint on August 1, 1962, alleging that The Great Atlantic & Pacific
Tea Co., Inc., herein called the Company, the Respondent, or A. & P., 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 Act. In its answer, the Company admitted
certain allegations of the complaint, such as the commerce allegations , but denied
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Rosanna A. Blake
on August 29 and 30, 1962, at Roanoke Rapids, North Carolina. The General Coun-
sel and the Company were represented by counsel and the Charging Party was
represented by an International Representative. Each party was afforded full
opportunity to be heard, to examine and cross-examine witnesses , to introduce evi-
dence pertinent to the issues , to present oral argument , and to file briefs. Counsel
for the Respondent presented oral argument and filed a brief, both of which have
been considered as was also the brief filed by counsel for the General Counsel.
Upon the entire record in the case, and upon my observation of the witnesses
while testifying, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The Great Atlantic & Pacific Tea Co., Inc., a Maryland corporation with plants,
stores, and other facilities in most States of the United States, is engaged in the
retail sale of meats, groceries, produce, and other products. During the 12-month
period prior to the issuance of the complaint, a representative period, A. & P. had
gross sales across State lines in excess of $10,000,000. Upon the foregoing facts,
I find, as Respondent admits, that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Retail Clerks Local Union No. 204 is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
At all times material herein , A. & P. operated two stores in Roanoke Rapids,
North Carolina, which are designated by the Company as store 265 and store 262.1
Store 265 is frequently referred to in the record as the "big" store and store 262 is
often referred to as the "little" store or the downtown store.
About the middle of March 1962, several of the employees, including Henry G.
Barnes, Jackie Barefoot, J. D. Walters, Donald Hux, and Robert Reid, discussed
the possibility of getting a union into the stores. In early April, James L. Capps, a
representative of the Retail Clerks, visited store 265 and talked to Barnes about
"setting up" a union meeting. A meeting was scheduled for April 11, but was later
postponed to April 18.
Thirteen employees attended the April 18 meeting which was held at a local motel.
All of them signed union cards and were given additional cards for distribution
to their fellow employees. As set forth below, by April 28, 6 of the 13, Barnes,
Barefoot, Julian Cullom, Walters, Hux, and Reid, had either been discharged or
transferred to out-of-town stores. The issue to be decided in this case is whether
a preponderance of the evidence on the record as a whole supports the allegations
of the complaint that the six were transferred and/or discharged because of their
union activity.2
'All towns mentioned in this report are in North Carolina.
2 Each of the alleged discriminatees was a witness and, unless otherwise indicated, the
findings of fact set forth in this Intermediate Report are based on their testimony, which
I credit. All credibility determinations are based in part upon my observation of the de-
meanor of the witnesses while testifying In the case of the alleged discriminatees I also
note that much of their testimony, even on critical matters, was undisputed. This fact is
particularly significant since at least two of the company officials to whom they attributed
statements damaging to the Respondent's case were not called as witnesses although they
were present throughout the hearing.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. eJ
B. The transfers and discharges
1. The transfer of Barnes to Kinston
Henry G. Barnes, who has lived in Roanoke Rapids most of his life, began work-
ing for A. & P. in 1947 and was employed steadily by the Company from 1955 to
May 1962.3 On several occasions prior to 1962, Barnes was transferred for brief
periods to out-of-town stores, usually to help "set up" new stores. On such occa-
sions, the Company paid Barnes' travel expenses and room and board.
Barnes was one of the group of employees who first discussed the possibility of
obtaining union representation and he was the employee to whom Union Representa-
tive Capps spoke in store 265 on April 4. He was also 1 of the 13 employees who
attended the union meeting on April 18. On April 21, Area Supervisor E. D. McCain
told Barnes that he was transferring Barnes to a store in Kinston "for a while." 4
McCain said that Barnes needed more training and that he might have a "slot" for
Barnes in the new store downtown.5
Kinston is approximately 100 miles from Roanoke Rapids and Barnes asked
McCain about the "usual expenses when you are transferred for training." When
McCain said that the Company would not pay Barnes' expenses, Barnes replied
that in that case it would be impossible for him to make the transfer because he
was buying his home in Roanoke Rapids, his wife worked in a local bank, and his
car was in "bad shape." McCain answered, "Well, you have to go or else" and
indicated that Barnes should go to Kinston the following Wednesday.6
The day before Barnes left for Kinston, he went to store 265 to get his personnel
card and met Carlton Fanney, the manager of store 262? According to Barnes'
undenied testimony, he asked Fanney, "What's going on, all this transferring?" and
Fanney replied, "You should know, you went to the union meeting .... Don't try
denying it." Barnes said he was not denying it and Fanney remarked, "My boy that
works for me downtown, Julian Cullom, he was at that meeting," adding, "Mr.
McCain knows who was at that meeting." 8
Barnes went to Kinston on Wednesday, April 25, and worked until early Saturday
afternoon. He returned to Roanoke Rapids that afternoon and stopped at store 265
where he talked to Manager Bryant Parrish.9 It is undisputed that Barnes asked
Parrish, as he had Fanney, "about all this transferring" and Parrish answered that
it was because [Barnes] went to that Retail Clerks Union meeting." 10
Barnes returned to Kinston the next week and on May 3 McCain spoke to Barnes
in the Kinston store. McCain said that he had heard that Barnes was quitting on
Saturday night. Barnes explained that he had no other choice because he was
unable to "make living expenses" on his salary. He would "stick it out," Barnes
said, if he got "expenses" or a raise. McCain assured Barnes that he would get
neither, adding that A. & P. would "let" Barnes resign and that "We might as well
get it over with." McCain went to the office and prepared Barnes' termination
"paper" listing "Disliked locality" as the reason for Barnes' resignation. Barnes did
not want to sign the slip but McCain told him, "You'll sign it, or I'll . . . put down
there that you were careless and incompetent." Barnes signed the slip.
2. The transfer of Barefoot to Goldsboro
Jackie Barefoot worked for A. & P. in Roanoke Rapids from September 1957 to
April 28, 1962. He was one of the employees who initiated the idea of obtaining
union representation and attended the April 18 meeting at which he signed a card.
3 Barnes is frequently referred to in the record as Granger Barnes.
4 The Roanoke Rapids stores are located in A. & P.'s eastern North Carolina territory of
which R H Wade is superintendent. McCain is one of eight supervisors or assistant
superintendents under Wade.
5A & P is apparently building a new store in Roanoke Rapids.
'TO the extent that McCain's testimony concerning his conversations with the em-
ployees differs from that of the employees (and there are comparatively few differences),
it is discredited.
a Prior to about March 1, 1962, Fanney was assistant manager of store 265.
Although Fanney was present throughout the hearing, he was not called as a witness
sPrior to about March 1, 1962, Parrish was manager of store 262. He was assistant
manager of store 265 from March 1 to April 9, and relief or acting manager from April 9
to July 16.
10 Although Parrish was present throughout the hearing, he was not called as a witness.
708-006-64-vol. 141-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barefoot was on vacation the week of April 16. He returned to work April 23,
and that evening Manager Parrish remarked to him, "I guess the store will go union
next week." Barefoot replied, "Is that right . . . ?" whereupon Parrish commented
that McCain "has the names of the thirteen employees who attended . .. the
union meeting." Parrish added that Barefoot should know more about the meeting
than he because Barefoot was at the meeting.
A few minutes later, Parrish notified Barefoot that Barefoot was going to be
transferred. "Mr. McCain," Parrish went on, "told me that he was going to transfer
you because you went to that union meeting." Barefoot admitted to Parrish that
he had attended the meeting and signed a card.11
The following Saturday, April 28, McCain asked Barefoot if he would consider
taking a transfer to Goldsboro which is approximately 90 miles from Roanoke Rapids.
When Barefoot asked about expenses, McCain said that the Company would not
pay Barefoot's expenses. Barefoot replied that his wife worked in Roanoke Rapids,
that he had built a home there, and that he could not pay on his home and pay his
expenses in Goldsboro unless he got "expenses" or a raise. McCain answered that
if Barefoot wanted the Goldsboro job, he should report to Manager G. R. Register,
at 8:30 Monday morning. If Barefoot did not take the job, McCain continued,
he was "through with the Tea Company." However, at Barefoot's request, McCain
postponed Barefoot's reporting time to noon on Tuesday..
On the evening of April 28, four of the other employees who attended the union
meeting (Barnes, Walters, Cullom, and Hux) were at Barefoot's home. They dis-
cussed how they could find out who had told management the names of the em-
ployees who attended the union meeting and Barefoot suggested that it might have
been Jesse Shell, the produce manager at store 265. Barefoot proposed calling Shell
and pretending to be Superintendent Wade and in fact placed a call to Shell. When
the latter answered, Barefoot identified himself as "Mr. R. H. Wade" and said he
wanted Shell to repeat the names he had turned in to McCain. Shell replied, "Yes,
sir, Mr. Wade . . . The only two I told on were my two boys that worked on pro-
duce, Don Hux and Bill Bryant." Barefoot thanked Shell and hung up.
A few minutes later, Shell called Barefoot and asked if Barefoot had "just called,"
saying, "I thought I recognized your voice . if you are trying to find out any-
thing about . Don Hux getting fired and Bill Bryant getting transferred to Wil-
mington, I don't know anything." 12
When Barefoot reported to Manager Register at Goldsboro, Register asked why
Barefoot was being transferred. Barefoot said that Manager Parrish had told him
it was because he went to a union meeting. Register commented that he had been
told by McCain that the latter was sending him a "good checker" from Roanoke
Rapids. Register added that he knew Barefoot was not getting "expenses" and
promised to talk to McCain about expense money for Barefoot.
The next day, Register told Barefoot that McCain had said again that there would
be no expenses for Barefoot. When Register predicted that Barefoot would be trans-
ferred back to Roanoke Rapids in 2 weeks, Barefoot asked how he could be "sure."
Register's only answer was that "They are having the same trouble in Rocky Mount
that you are having in Roanoke Rapids." 13
On May 3, Barnes called Barefoot and told him about McCain's request that
Barnes resign immediately when McCain found out that Barnes was going to quit on
Saturday. As a result, Barefoot notified Register that he was quitting that night.
Register commented that he did not "blame" Barefoot and gave Barefoot his pay.
3. The discharge of Walters
James D. Walters was first employed by A. & P. in Roanoke Rapids in 1959 and
worked at store 265. When the employees became interested in a union, Barnes
asked Walters if he knew anyone he could talk to about bringing a union representa-
tive to town. Walters said that he did and, as previously stated, James Capps talked
to Barnes at store 265 on April 4. Walters attended the April 18 meeting, signed a
card, and received some cards to be signed by other employees.
On April 28, McCain told Walters that Manager Parrish and Assistant Manager
Moore had recommended Walters for a "trainee" job and asked Walters what he
thought about a transfer. Walters said it sounded good to him because he wanted
IS As previously noted, Parrish was not a witness.
12 Shell, whose supervisory status is conceded by Respondent, was not a witness. Bryant
was in fact transferred to Weldon.
is Register was not a witness although he was present throughout the hearing.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 5
to "get ahead" but mentioned that his wife was working and that he had a child in
school. McCain said they would talk about it later.
A day or so later, Manager Parrish told Walters to report to Tarboro the following
Tuesday. One of Walters' children had become ill since Walters' talk with McCain
and Walters told Parrish he did not see how he could go to Tarboro, which is about
50 miles from Roanoke Rapids. Walters told Parrish that McCain had said they
would have another talk about the matter of a transfer. Walters asked if McCain had
said anything about expenses but Parrish said that all he knew was that McCain had
said he wanted Walters to report to Tarboro. Parrish added that McCain would
be in store 265 in 2 or 3 days and that Walters could talk to him. Walters did not
go to Tarboro and when McCain came to store 265 a few days later, he asked
Walters why he had not done so. Walters explained that he had understood that he
would not be transferred until they had another talk about it.
A day or two earlier, Walters had registered for unemployment insurance because
he found that his "papers" were missing from the store and "figured [his] job was
gone." McCain wanted to know why Walters had signed up for unemployment
insurance and Walters answered that his wife had to go to work, that she had a new
job, that his children were in school, and he had no car to drive back and forth to
Tarboro. When Walters asked if he would get expenses or a raise, McCain said,
"No." Under those circumstances, Walters said, he did not see how he could go
to Tarboro, adding, "That's exactly why I signed up, to be safe."
Walters then asked if he had a job. McCain answered in the negative, saying,
"As far as I am concerned, you fired yourself." McCain remarked that in his
opinion Walters had "committed a Federal crime by signing up" for unemployment
insurance but Walters pointed out that he had received no money but wanted to be
"on the safe side for [his] family" because he "figured" he was being transferred
like the other employees without expenses or "anything else."
4. The discharge of Reid
Robert Reid, who worked in store 265, began working for A. & P. in 1953 and had
worked full time since 1957. He talked about the Union to various employees in
the store, attended the April 18 meeting , and signed a card.
On Saturday, April 14, Reid was called to a local motel to talk to Superintendent
Wade. Wade asked Reid if he had ever seen anyone steal anything from the store
and Reid said that he had not. Wade then asked, "You have been here nine years
and never saw anybody taking anything?" When Reid again answered in the nega-
tive, Wade commented, "You must be mighty stupid then." Reid replied that he
was no more stupid than Wade whereupon Wade said that if that was the way Reid
felt about his service at A. & P. Reid could hand in his resignation or the Company
could fire him. "If we fire you," Wade said, "it will be right hard for you to get
a job." Reid retorted that Wade could do as he pleased and walked out.
The next day, Reid called Manager Parrish and asked what happened after he
left. Parrish said that Wade reported that Reid "flew off the handle," that Reid
could take a week off to think about it and Wade would "contact" Reid the next
weekend, and that he might be transferred to another store.
The union meeting was held the following Wednesday, April 18, and Reid was
present and signed a card.
On Saturday, April 21, Reid went to the store and saw Manager Parrish.14 Parrish
told him that "something had come up on Friday evening," that McCain had
changed his mind, and that Reid should fill out "a paper" stating that he had quit.
At this point, Reid left.
On the evening of May 9, Reid and Nick Downing, another employee at store
265, saw Parrish on the street in Roanoke Rapids. They asked Parrish the reason
for the transfers and discharges. Parrish said, "The instigators for the Union were
the first to be gotten out." One or the other of the employees inquired what Parrish
meant to which Parrish replied with a question: "Who [were] the first ones to leave?"
Downing mentioned Bryant and Reid mentioned himself and Granger Barnes.
Parrish commented, "That's right." 15
14 Although the transcript shows Reid as having testified that he saw "Mr. Price," It is
clear from the rest of his answer that Reid was referring to Parrish
18 Downing, as well as Reid , testified concerning this conversation. As would be ex-
pected, there are minor variations in their testimony but the differences, if anything, are
indicative of the truthfulness of their testimony rather than otherwise. As noted previ-
ously, Parrish was not a witness and I credit the testimony of both Downing and Reid.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The discharge of Hux
Donald Hux, a produce clerk, began working at store 265 in 1950 or 1951. His
wife worked at Colonial Stores, another grocery chain, and belonged to the Union.16
Hux was one of the employees who first discussed the possibility of union representa-
tion for the A. & P. employees and one morning took a union pay scale, which his
wife had received through the mail, to store 265.
The following morning, Produce Manager Shell told Hux that Store Manager
Hester 17 had told Shell that he had heard that Hux had brought union literature
into the store and that if he brought any more in, "it would be mighty embarrassing,
that they might have to let [Hux] go." 18
Hux attended the April 18 meeting and signed a card. On April 28, McCain
told Hux, "We are going to let you look for another job." When Hux asked why,
McCain said, "Your wife works at Colonial Stores, doesn't she? ... Well, you can't be
loyal to the A. & P. with her working up there, so we will have to let you go."
Hux asked what kind of recommendation the Company would give him and McCain
said that Hux would have to say that his wife worked at Colonial Stores and that
he "couldn't be loyal to A. & P."
6. The transfer of Cullom
Julian Cullom attended the union meeting on April 18, signed a union card, and
later gave a card to another employee. As set forth supra, it is undisputed that
Carlton Fanney, manager of store 262, revealed to employee Barnes that he
(Fanney) knew that Cullom attended the meeting and Fanney also told Barnes that
McCain knew who was present at the meeting.
On April 20, Cullom was transferred from store 262 to store 265.19 It is un-
disputed that about a week later, Cullom asked Store 265 Manager Parrish the "main
reason" for the transfers and Parrish replied, "The union question."
Mrs. Cullom, like Mrs. Hux, worked for Colonial Stores and belonged to the
Union. A few days after Cullom's conversation with Parrish, McCain told Cullom
that he understood that Cullom's wife worked for Colonial Stores. When Cullom
said that she did, McCain replied, "That can't happen, it will either be you or her,
she'll have to quit." Cullom told McCain that Mrs. Cullom would have to quit
later on anyway because she was expecting a baby. McCain answered, "Make sure
she is not working [after] Saturday night .... If she is working Monday morning,
there is no need for you to come . . . to work."
C. Respondent's explanation for its actions20
1. The shortages
Beginning in June 1961, and continuing through May 1962, the inventory losses in
the grocery department in store 265, in which all of the alleged discriminatees
(except Cullom) worked, were abnormally high. Admittedly, some loss due to
pilferage is expected with the normal loss for a store the size of store 265 being
about $600 a quarter. For the first quarter of fiscal 1961 (March to May) store
265 had a shortage of only $389 which means that it was better than average.
However, the department had the following shortages during the next four
quarters:
June to August (1961) ---------------------------------------- $1,551
September to November (1961) --------------------------------- 6,830
December to February (1961-62) -------------------------------- 3,373
March to May (1962)----------------------------------------- 1,676
19 The testimony of Cullom, whose wife also worked for Colonial Stores, that the em-
ployees "voted for the Union" but that he did not know whether "the contract is signed,"
suggests that the Union was relatively new at Colonial Stores.
14 Hester's name is frequently spelled "Heston" in the record He was store manager
prior to April 19, 1962 He was not a witness
18 As indicated previously, Shell was not a witness.
19 Although Cullom first testified that he was transferred on the Friday prior to the
union meeting, he later testified that he was transferred on April 20.
'0 Unless indicated otherwise, the findings of fact in this section are based upon the
testimony of Respondent's witnesses Tarp, Wade, and McCain. Although, as set forth
infra, I do not credit all of their testimony, I do credit those portions in which they
describe the general problem which had existed for nearly a year in store 265 and the
steps taken prior to April 11 to solve it.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 7
When it was determined that the shortage for the summer quarter of 1961 was
well above average, A. & P. officials in Charlotte discussed the problem and Super-
intendent R. H. Wade was ordered to take steps to correct the situation. On
November 6, Ray Lawson, manager of a large volume store in Raleigh, was tem-
porarily transferred to store 265 as manager and 265 Manager Hester was trans-
ferred (temporarily) to a store in Greenville. As Personnel Manager Earp put it,
the officials in Charlotte "decided along with Mr. Wade to make a change in super-
vision, thinking that might help." Lawson remained at store 265 until December 22,
1961, when Hester returned as manager.
Lawson was not a witness but Wade testified that he reported "some laxness gen-
erally" in the store and instituted some "reforms" which were "for the most part
physical," such as changes in working schedules.
Superintendent Wade himself evaluated Manager Hester and the then area super-
visor, C. P. Short. Wade said that he concluded that Hester was a "very fine
man" and in his "opinion" an "honest" man but that he was "entirely too trusting"
about "many of his employees." Wade described Short as well qualified but ex-
plained that a supervisor who has been in one location a long time becomes ac-
customed to a store's appearance and mode of operation so that he overlooks things
which need attention. In Wade's words, it was decided that "we needed to make a
change from the top down to get [the situation] straightened out."
Accordingly, several managerial changes were made the last week in February
1962. At that time, jurisdiction over the Roanoke Rapids stores was transferred
from Supervisor Short to Supervisor McCain. Carlton Fanney, the assistant manager
of store 265, became manager of store 262 and the manager of the latter store,
Bryant Parrish, became assistant manager of store 265.
Approximately 6 weeks later, on April 9, Manager Hester was transferred
permanently to Wilson, was demoted to clerk, and his salary was reduced from
$170 to $100 a week. Assistant Manager Parrish was made "relief" or acting
manager of the store and Don Moore was brought in from Goldsboro to act as
assistant manager.
Finally, on July 16, J. W. Shea was brought from Wilmington as manager.
Parrish dropped back to assistant manager and Moore returned to Goldsboro.
McCain testified that he spent 2 or 3 days a week at store 265 after it was assigned
to him in late February "trying to find out why we were having ... short inven-
tory ...." McCain "watched the checkers, watched the price marking, watched
the receiving, watched the local vendors; in other words, [he] supervised the store
while [he] was in it." McCain did not "find anybody deliberately violating instruc-
tions" although he did find "a lot of laxity throughout the store, there wasn't much
enthusiasm over their jobs." The best word to describe the situation, McCain said,
was "gold-bricking."
It is obvious that the large losses involved here were attributable to something
more serious than petty pilfering by customers or employees. Either hundreds of
cases of groceries or, as seems more likely, substantial sums of money "disappeared."
Nonetheless, Respondent asserted at the hearing that it had been unable to determine
what had really happened or who was responsible. It is difficult to believe, however,
that an organization such as A. & P. did not know, after investigating for a year,
either the method used to defraud the Company or the identity of the culprits.
Be that as it may, throughout much of the hearing Respondent' s witnesses seemed
to be saying that the transfers and discharges of the rank-and-file employees involved
in this proceeding were decided upon because the prior changes in managerial person-
nel had not solved the problem?i That the problem had not been completely solved
is clear since, as discussed infra, a "misplaced" case of cigarettes was discovered
on April 9 .22
2 'For example, Wade testified that the Company had made up its mind not to tolerate
such losses any longer and "was absolutely adamant in requiring that we make some
moves here, clean house, take everyone out of the store." After testifying about the
managerial changes, Earp went on, "we didn't get the situation corrected, so we had to
keep on down the line and keep making changes . . . .
22 As proof that its action against the employees was justified, Respondent cited the
fact that its inventory loss for the quarter following the employees' departures was well
below normal But it is just as probable that the drop was due to the changes in man-
agement personnel which occurred in March and April. Moreover, the problem was not
solved entirely for it is undisputed that shortly before the hearing some part-time em-
ployees were terminated for passing beer out a window.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, Respondent subsequently stated flatly that it was not contending that the
employees involved in this proceeding were terminated because of dishonesty. Thus,
Wade testified:
The decision was not made to turn these men loose . . . because of their
dishonesty . . . . [The decision was] based entirely on their carelessness or
apparent carelessness and indifference ... .
2. The cigarette incident and the interviews
Merchandise is delivered to the store by trucks which are unloaded in the
rear of the building. The merchandise leaves the truck on a conveyor from which
the cases are removed, opened, and their contents priced and stacked by a crew
of store employees. The most important member of the crew is the checker who
counts and records the number of cases received. Although Manager Parrish usually
checks in the freight, Henry Barnes sometimes acted as checker.
There was at least one delivery the morning of April 9 which was checked by
Barnes. The other crew members were Gene Hales, Horace DeLoach, Jackie
Barefoot, Robert Reid, and J. D. Walters. Sometime that morning, a case (60
cartons) of cigarettes valued at $120 was found hidden in a back storage room
and the Company reasonably concluded that the cigarettes were in the process of
being stolen.
Wade learned of the cigarette incident on the night of April 9. McCain learned
of it via a telephone call from Manager Parrish on Wednesday, April 11, which was
also the day on which the union meeting was supposed to be held. McCain called
Wade and they arranged to meet in Roanoke Rapids on Friday night.
On Friday night, McCain and Wade reviewed the length of service, responsibilities,
attitude, punctuality, and "general prospectus" of each employee in the store. The
next day Wade and McCain talked to Manager Parrish and interviewed five store
265 employees: Estelle, Barnes, Barefoot, Walters, and Reid. Although Wade
testified that he probably would not have interviewed any employees but for the
cigarette incident, he said that he also selected the employees to be questioned on the
basis of "certain information" about them which had been "conveyed" to him "in
general terms."
Wade testified that he had heard many unfavorable comments about the store's
operation from town people who mentioned "questionable practices" around the
checkout counters. As a result, Wade said, he directed McCain to "follow up par-
ticularly on certain people" (whom Wade did not identify at the hearing) and to
transfer cashiers to handling stock or to the produce department and also to transfer
some dairy clerks to other departments 23 There is no evidence, however, that the
work assignment of any of the employees involved herein was changed prior to the
events at issue in the instant case.
Wade also testified that he had been told by store employees that "certain of the
checkers" were taking single packages of cigarettes without paying for them, that
produce and meat were being underpriced for fellow employees or friends, that
Barefoot did not always remove and ring up every item in the customers' baskets,
and that Reid had taken nonfood items from the store.
In most cases, Wade did not identify the persons making the reports although
the Trial Examiner pointed out that little weight could be given to testimony
such as "based on remarks I heard around town," "I had been told by employees,"
and "I had information that." Finally, on redirect examination, Wade named the
employees from whom he had received the reports he had referred to earlier and
which, he said, were partially responsible for his selection of the employees to be
questioned.
Wade's chief employee source of information was clearly Elton Wheeler who
was transferred (at his own request) from store 265 to Williamston on April 1. Wade
first testified that he talked to Wheeler before the interviews and gave the date as
April 11. However, after the luncheon recess and just before Wheeler took the stand,
Wade was recalled and testified that he talked to Wheeler on April 18, that is, 4
days after the interviews. Wade stated that he also erred in testifying that Wheeler
told him he had seen Reid take a single package of cigarettes without paying for them.
23 Although the record is not clear, it suggests that the regular cashiers were women.
There is no evidence that any of the employees involved in this proceeding, except Barefoot,
was assigned to checking out customers although each may have done so occasionally.
Although Barefoot did some "relief" checking, he also worked as "stock boy" and "pack-
age boy " None was a dairy clerk Although Reid had worked in the dairy department
in late 1961, this was long before McCain was supervising the store.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 9
Under these circumstances, I credit only those portions of Wade's testimony
concerning the interviews which relate to: the cigarette incident; general conditions
in the store; and specific acts by the employees which the record clearly shows were
reported to Wade by named persons before the interviews. Furthermore, I have
given little or no weight to those portions of Wade's testimony in which he describes
in broad generalizations reports concerning unidentified employees, communicated
to him by unidentified persons. In evaluating Wade's testimony, I have also taken
into account the marked differences between his testimony and that of McCain who
was in the store (and Roanoke Rapids) 2 or 3 days a week, beginning March 1,
and who was conducting the on-the-scene investigation. Unlike Wade, McCain testi-
fied to no adverse reports concerning any employee by management employees, or
townspeople 24
As stated above, Wade questioned five employees on April 4. The first was Joe
Estelle who had been working in store 265 for about 2 weeks and worked in the
dairy department in which the cigarettes were sold. The other four were members
of the six-man crew which unloaded the truck on the morning of April 9.
Wade asked each of the five what he was doing that morning, his responsibility,
and the physical details of the unloading process. According to Wade, there was
little or no agreement in their descriptions of the morning's events although all
agreed that a number of cases of cigarettes were received and each admitted that
he carried one or more cases to the dairy department in the front of the store. How-
ever, Wade testified that the "most disturbing factor" was the general attitude of
the men (other than Barnes and Estelle) which he described as a "very indifferent
and `I don't care' attitude." In his words, "There was no feeling of real interest in
the tone of their voices and their reactions to me." Barnes and Estelle, Wade said,
were "quite concerned" about the incident 25
According to Wade, when the interviews were concluded, he told McCain to
terminate Barnes, Barefoot, Walters, and maybe one other, who was probably Reid.
The decision, Wade said, was based on "carelessness on the part of Granger Barnes
in receiving merchandise, and his crew, to allow a case of cigarettes . . . not to
reach their destination."
McCain, on the other hand, testified that Wade "wanted to dismiss everybody in
the store," at least everybody in the grocery department.26 At no time did McCain
indicate that Wade mentioned Barnes, Barefoot, Reid, or Walters particularly.
McCain was able to persuade Wade to let him "try the boys out" in other stores
because he felt that they would do better "under new environments."
3. Miscellaneous complaints against the employees
As set forth supra, Wade testified that he ordered McCain to terminate Barnes,
Barefoot, Walters, and Reid not because of "dishonesty" but for "carelessness" and
"indifference" in connection with the cigarette incident. He also testified that the
decision to discharge these four was made at the conclusion of the interviews on
April 14.
Nonetheless in its brief, Respondent seems to justify its action on the grounds of
information in its possession "by April 28," including that supplied by Wheeler on
April 18. Under these circumstances, it is necessary to consider the circumstances
under which the reports were made by Wheeler and to comment on some of the
reports.
"McCain had obviously talked to townspeople for he testified that people outside the
store mentioned the "awful inventory shortage" and asked what the trouble was
25 Like much of the rest of his testimony, Wade's description of the interviews was
largely conclusionary despite a warning by the Trial Examiner that less weight would be
given to such testimony than to detailed accounts of what was said In its brief, Re-
spondent takes out of context and therefore distorts the meaning of Barnes' testimony
that the shortage was "none of [his] business."
"McCain was asked:
Q What, if any, action did you and Mr Wade take [on April 141?
A . Mr. Wade wanted to dismiss the whole crowd
TRIAL EXAMINER: You mean the entire staff of the store?
The WITNESS: The entire staff of the store? Yes, Sir.
TRIAL EXAMINER, All forty?
The WITNESS' In the grocery department.
Q. (By Mr CAUDLE.) You mean to say that Mr. Wade wanted to dismiss everybody
in the store's
A Yes, sir.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Wheeler, Wade asked him if he knew about any "dishonesty" in
store 265. Wheeler said that he hesitated about telling Wade anything but Wade
"pinned [him] down" and since his "job was concerned," he admitted that he knew
there was a "little bit of dishonesty in the store." Wheeler, who admitted that he
"wouldn't have anything to do with the union," volunteered at the hearing that Wade
"didn't say anything about any advancement" for Wheeler and asserted that he did
not want a promotion because he was not "capable of it right yet " 27
Although I credit the testimony of Wheeler and Wade concerning their conver-
sation on April 18, I do not credit Wheeler's testimony that he, rather than Wade,
introduced the name of Barnes and the others into the conversation. I think it much
more likely, and I find, that Wade asked Wheeler if he had ever seen these employees
do anything dishonest and Wheeler did his best to please.28
Most of Wheeler's descriptions of what he had seen were carefully hedged. For
example, he told Wade, "I thought or I knew" that Barefoot regularly checked out
the same employee and "I didn't think he was checking out all items." Wheeler
expressed his belief that on one or more occasions Barefoot did not remove all items
from the basket, the implication being that he did not charge for those items. How-
ever, Wheeler did not know that the items left in the basket were not "rung up," as
they well may have been. In fact, Wheeler claimed for himself only that he "dumped
most everything." 29 Moreover, Wheeler did not disclose the date on which most of
the incidents occurred although he placed one in "November" and another "just
before Christmas."
All in all, including my observation of Wheeler's demeanor as a witness, I am
convinced that while he may have seen some of the things he testified to, his ability
to interpret what he had seen was better when he was questioned by Wade than it
was when the conduct occurred.
The reports made by Wheeler and others are discussed and evaluated below.
Barnes: According to Wheeler, he had seen Barnes pick up single packages of
cigarettes. Barnes denied having done so and I credit his testimony and discredit
that of Wheeler. In any event, Barnes had worked for A. & P. for many years and
was apparently regarded as the "number three" man in the store, that is, as ranking
just below the manager and assistant manager. In view of these facts I do not
believe that the Respondent's opinion of Barnes was materially altered by Wheeler's
report.
The record discloses that Barnes and Barefoot worked several nights a week in
small, outlying groceries and Respondent indicated that it suspected that some of
the missing inventory was reaching such stores. However, I discredit Wade's vague
and irrebuttable testimony that he had reason to believe that these stores were
selling cigarettes which came from store 265.30
Barefoot: The first employee interviewed by Wade on April 14, Joe Estelle, told
Wade that two checkers "often" brought him a lot of change and asked him for a
bill in exchange.31 Both of the checkers, Wade said, were involved in the instant
proceeding. However, Wade named only Barefoot, Barefoot was the only one of
the group who checked for any substantial periods, and he was the only one ques-
tioned by Wade on this subject.
Barefoot denied ever having asked anyone to give him a bill for a quantity of
change. Even when Wade said he had a "man saying you did," and warned that he
could "bring a man in to prove it" and "if he says you did it, I am going to fire you."
37 Wheeler began working for the Company in 1953 . He was transferred to a store in
Raleigh a week before the hearing
es At one point, Wheeler testified that Wade "asked me if I ever saw Robert Reid take
anything from the store."
20 Barefoot testified that there was a rule requiring the manager to be present when an
employee's purchases were being checked out and that he did not recall having checked
out any fellow employee without the manager being present. Barefoot admitted that he
did not always remove all items from a basket if he had a "boy bagging" for him. On
such occasions, Barefoot said , the "boy" would tell him the price of any items the latter
left on the bottom Although this may have been a violation of a company rule, it did
not reflect adversely on Barefoot' s honesty.
3O Wade testified that:
There had been some calculation on the part of some of the information coming
to me that one or two of these places , or maybe both, had been buying cigarettes
coming from the store.
3t The implication of Estelle's statement is that when customers paid the checkers the
exact amount owed in change, the checkers did not ring up the sale but pocketed the money.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 11
Barefoot replied, "Well , Mr. Wade, if you have that man , bring him in , because I
didn 't do it ." Estelle was not brought in and was not a witness.32
Moreover , Estelle's report is improbable on its face. He had been in the store
only since April 1 but nonetheless told Wade that the two checkers "often" brought
him change . His naming of Barefoot is even more incredible for Barefoot was only
a "relief" checker and even if he had wanted to, it is unlikely that he could have
collected large amounts of change very "often " in 2 weeks . In addition , this is the
period in which McCain was supervising the store which he said included "watching
the checkers" and who observed nothing more serious than "gold-bricking ." Finally,
it is undisputed that Goldsboro Manager Register told Barefoot that McCain had
told Register that he was sending Register a "good checker," that is, Barefoot.
In view of all of the foregoing facts, I find that Estelle 's report played no part in
the decision to transfer Barefoot who, it will be recalled, was told by Manager
Parrish that he was being transferred because of his union activity.
Reid: Wheeler reported to Wade that he had seen Reid pick up two sheets, two
pillow cases , and some socks and take them upstairs "to the locker ." He admitted
later, however, that he could not say whether Reid went upstairs but said he did
see Reid go into the "back room ." 33 On another occasion , date unspecified , accord-
ing to Wheeler , he saw Reid "bend over like he was putting something in a bag, I
[ didn't] know what at the time, until I saw him pick up one case of beer, and it
was a sugar bag, and then I saw [him ] walk out the door ; I didn 't see him pay
for it, I didn't know whether he paid for it or not, I just didn 't see him pay for
it . . . " Upon being asked by Respondent 's counsel whether Reid went through
the checkout line, Wheeler said that Reid did not.
If Wheeler's description of the two episodes is accurate , it would mean that Reid
was openly stealing bulky items which , in one case , he removed via the front door.
There is no evidence that Reid , who had been employed at the store since 1953 and
who had worked full time since 1957, had ever been suspected of dishonesty as he
surely would have been had he engaged in such practices frequently. On the other
hand, it is difficult to believe that Wheeler should happen to observe the only times
Reid engaged in what amounted to highway robbery. In short , I think it much
more likely that when Wade asked Wheeler if he "ever saw Robert Reid take anything
from the store ," Wheeler described two events which could be so interpreted by
anyone wishing to do so.
Moreover , the record suggests the reason Reid did not pay for the beer at the
checkout stand was , Reid testified without contradiction , that certain items such as
"wine" are paid for in the dairy department . If so , it seems likely that beer would
be paid for the same place, which means that there would be no need for Reid to
pay the cashier at the checkout counter. And having already paid for the beer,
Reid may well have put it in a sack because it was easier to carry that away.
In any event , even if the events described by Wheeler were a factor in Respondent's
decision to discharge Reid-which Respondent states in its brief occurred before
Wade had talked to Wheeler-it is clear from Manager Parrish 's statement to Reid
and Downing several weeks later that Reid's union activity was the dominant factor.
And "If employees are discharged partly because of their participation in a cam-
paign to establish a union and partly because of some neglect or delinquency, there
is nonetheless a violation of the National Labor Relations Act." N.L .R.B. V. James-
town Sterling Corp., 211 F. 2d 725, 726 (C.A. 2).
Hux: Wheeler reported to Wade that Hux underpriced produce for Wheeler and
others. It is undisputed , however , that Hux was told that he was discharged because
his wife worked at Colonial Stores and that meant he could not be loyal to A. & P.34
Walters: When Wheeler was asked by Respondent's counsel if he had told Wade
anything about Walters , Wheeler answered, "I don't recall . I believe I did tell him
I had seen J. D. Walters pick up a loose pack of cigarettes ." [Emphasis supplied.]
This is the only evidence in the record concerning any misconduct by Walters.
D. Analysis and concluding findings
As set forth supra, Barnes, Barefoot . Hux. Reid, and Walters began discussing
union representation sometime in March and Union Representative Capps visited
82 According to Wade, Estelle was on vacation the week of the hearing
s3 Wheeler placed the date as being just after he started on the nonfood rack "in
November ," year unstated.
"Wheeler also attributed underpricing of meat to one employee not involved in this
proceeding It is apparent from Wheeler 's testimony and was also apparent from his
demeanor that he did not get along very well with his fellow employees and was annoyed
because he believed that he did not get as much of a reduction as some of the others.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store 265 on April 4 and talked with Barnes.35 A union meeting was scheduled for
April 11 but was postponed to April 18. The above-named employees, along with
Julian Cullom who was then working at store 262, attended the April 18 meeting.
All signed cards and were given cards to distribute among their fellow employees.
By April 28, Barnes, Barefoot, Walters, Hux, Reid, and Cullom had either been
transferred to another store or discharged. Moreover, it is undisputed that Store
265 Manager Parrish and Store 262 Manager Fanney repeatedly told the employees
that the transfers and discharges were caused by the union activity.
1. Respondent's denial that it knew of any union activity
Respondent, however, denies that the employees' union activity was in any way
responsible for the changes in their fortunes. In fact, Earp, Wade, and McCain
testified that they knew nothing about the union activity until after the charge was
filed which set the instant proceeding in motion. I do not credit their testimony in
this respect.
Personnel Manager Earp, whose office is in Charlotte, testified that the "people
out in the field" are under instructions to and do report "all union matters" to him.
Moreover, store 265, where Barnes, Barefoot, Walters, Reid, and Hux worked, had
been under investigation for months. Wade visited the store and talked to many
townspeople. Beginning about March 1, McCain was in the store two or three times a
week. Both Wade and McCain were in Roanoke Rapids for the specific purpose
of learning everything they could about the store's operations, its problems, and
its personnel.
With the cigarette incident on April 9, Wade and McCain became even more
interested in the store, if that was possible. McCain learned of it via a telephone
call from Manager Parrish on April 11, the very day on which the first union meeting
was to be held. McCain called Wade and they arranged to meet in Roanoke Rapids
on April 13. Wade admittedly talked with Parrish, the manager of store 265; Shell,
the produce manager at that store; and Fanney, the manager of store 262, and the
undisputed evidence establishes that all three had knowledge of the April 18 meeting
and which employees had attended it. On April 18, Wade talked to employee
Wheeler who also knew about the union activity although he was opposed to it.
Wheeler testified that he "mingled with" Barefoot, Reid, and Cullom and admittedly
supplied Wade with information about Barnes, Barefoot, Walters, Reid, and Hux.
_n view of the foregoing facts, it is incredible that neither Parrish, nor Fanney,
nor Shell, nor Wheeler mentioned to Wade or McCain that some of the employees
were interested in a union, that a meeting had been scheduled, and that one was
actually held. It is also undisputed that Parrish told Barefoot that McCain had the
names of the 13 employees who attended the union meeting, that Fanney told Barnes
that McCain knew who was present at the meeting, and that Shell told Barefoot
that he (Shell) had "turned in" Hux's name to McCain. Accordingly, on the basis of
the record as a whole, I find that Earp, Wade, and McCain knew about the union
activity before the events here in issue and that Wade and McCain, at least, knew which
employees were involved.
2. The transfer of Barnes, Barefoot, and Walters and the discharge of Reid
But the fact that management knew that Barnes and the others were engaging
in union activity does not prove that they were discharged because of such activity
rather than for the reasons asserted by Respondent. Broadly speaking, Respondent
contends that its transfer of Barnes, Barefoot, and Walters and its discharge of Reid
were but a continuation of its efforts to solve what was unquestionably a major
problem, i.e., the large inventory losses in the grocery department at store 265 which
began in the summer of 1961.
The fact remains, however, that until the employees became interested in a union,
none of them had been discharged, transferred, demoted, or even reprimanded not-
withstanding extensive and intensive investigation of the problem by Wade and
McCain In contrast, beginning in November 1961, Respondent made multiple
managerial changes, the most drastic of which occurred in early April 1962, when
Manager Hester was demoted to clerk and transferred permanently to Wilson. Then
'5
There is no merit in Respondent 's contention that the employees began their union
activity after the April 14 interviews as a matter of insurance for the testimony of its
witness Wheeler shows that he knew about the union activity before lie left Roanoke
Rapids which was sometime before April 1
TH : GREAT ATLANTIC i, PACIFIC TEA CO., IN C. 13
a few days later, after the first union meeting, Respondent took action against five
employees of store 265 , all of whom were among the small group which had
initiated the union activity.
Respondent 's explanation for this coincidence is that on April 9, four of the five,
Barnes, Barefoot , Reid, and Walters , unloaded a truck whose contents included a
number of cases of cigarettes , and that shortly thereafter a case of cigarettes was
found under circumstances which indicated that it was in the process of being stolen.
At first blush , these facts seem to explain the otherwise suspicious timing of the
Respondent 's action with respect to these employees . Upon examination , however,
the following facts and circumstances cast doubt upon the Company 's claim that
it was the cigarette incident which caused it to terminate Barnes, Barefoot, Reid,
and Walters.
1. There is no evidence that the case of cigarettes found on April 9 was one
which had been delivered that morning . It is possible , perhaps probable, that it
had been in the storage room for several days or even longer. According to Reid's
undisputed testimony , the key to the storage room in which the cigarettes were found
was kept either by Manager Rester or "up front in a drawer."
2. Wade did not question all of the members of the crew which unloaded the
truck and made no attempt to explain why he did not do so. And , contrary to
Respondent 's statement in its brief, crew member Males was not transferred or dis-
charged. Crew member DeLoach was transferred to store 262 . Furthermore , Wade's
additional explanation for why he decided to question Barnes, Reid, Barefoot, and
Walters-that he had received adverse reports concerning them-does not stand up
under scrutiny since they came principally from Wheeler-4 days later.
3. The cigarette incident does not explain the transfer o 2 Cullom and the discharge
of Hux since Cullom was working at store 262 on April 9 and Hux was a produce
clerk who had nothing to do with unloading the truck . Neither was questioned by
Wade on April 14.
4. McCain 's testimony that Wade instructed him on April 14 to dismiss the entire
staff of the store and ivicCain's failure to refer to any directive from Wade with
respect to Barnes, Barefoot , Walters, or Reid in particular creates serious doubt
that the cigarette incident was the motivating cause of their transfers. In any
event , no action was taken until after they attended the union meeting on April 18
and signed cards.
5. Although Respondent denied that it was implying that any of the employees
was dishonest , the fact remains that this is the general import of the testimony of
its witnesses . Under the circumstances , it is difficult to understand why Respondent
was willing to transfer all of them ( except _-^-Iux who is a special case ) to other stores.
Respondent 's explanation is that McCain believed that the employees ' short-
comings would disappear if they were sent to work under other managers and in "new
environments ." Another explanation , of course , is that the leaders of the union move-
ment would be removed from Roanoke Rapids if Barnes went to i .ston , Barefoot
to Goldsboro , etc., and significantly , the record contains no evidence of any union
activity after the events here in issue. Moreover, having learned their lesson, none
of them would be likely to renew his union activity in his "new environment."
Dcspto the foregoing , the cigarettes were found on April 9 and although Respond-
ent had no very convincing reason for suspecting that any of the four employees or
all four, acting in concert , had hidden the cigarettes , they had unloaded cigarettes
that morning . Under these circumstances , I would find it difficult to conclude that
the preponderance of the evidence supports the allegations of the complaint with
respect to these four but for the undisputed evidence that Store 265 Manager Parrish
and Store 262 Manager Fanney repeatedly stated that the union activity was respon-
sible for the transfers.
Concededly , neither Parrish nor Fanney made the decision to transfer the em-
ployees , but Respondent did not contend at the hearing and does not contend in
its brief that Parrish and Fanney did nct know the reason for the Company's
actions. Moreover , it is most improbable that the store managers did not know
what caused the Company to act and it is even more incredible that they would
tell the employees that it was their union activity if it was not . In its brief,
Respondent disposes of the statements of Parrish and the others by stating that
serious questions of credibility exist and that even if credited , the statements are
"inadequate to prove an unlawful act ." But there is no credibility problem for
Parrish and Fanney were present throughout the hearing and co uld have but did
not deny having made the statements attributed to them by the employees. More-
over, it is hard to imagine more direct and convincing proof that the employees were
transferred because of their union activity.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, this is one of the rare cases in which the record contains undisputed
and direct evidence that the employer violated the Act. Cf. Hartsell Mills Company
v. N.L.R.B., 111 F. 2d 291, 293 (C A. 4).
3. The transfer of Cullom and the discharge of Hux
As indicated above, the cigarette incident does not explain the Company's actions
against Hux and Cullom for Hux was not one of the unloading crew and Cullom
was working at store 262 on April 9.
On April 20, 2 days after the union meeting, Cullom was transferred to store 265
and shortly thereafter was told not to report to work the following Monday if his
wife continued to work for Colonial Stores. And Hux was told that he was being
discharged because Mrs. Hux worked for Colonial Stores and this meant that he
could not be "loyal" to A. & P.
According to Respondent, it discharged Hux and transferred Cullom and condi-
tioned his continued employment upon Mrs. Cullom's resignation from Colonial
Stores because it had learned that it was known all over town that store 265 had a
shortage "in the thousands of dollars" and "in every case" the source of the informa-
tion was Colonial Stores. According to Wade, when shortages occur, the amount
of the shortage is so "confidential" that it is not usually disclosed even to the store
manager. In other words, the inference Respondent drew was that Hux and
Cullom had revealed confidential information to their wives who had revealed it to
others.
Although I have no doubt that the troubles at store 265 were known to many
people outside the store, I do not credit the testimony that the source "in every case"
was Colonial Stores. Admittedly, the subject of short inventories was discussed "all
over the store" and it is likely that Hux, at least, told his wife that there had been
shortages at store 265, and that she told her fellow employees and friends. There is
no evidence , however, that these things in fact occurred. Moreover, there were
33 employees at store 265 besides Hux and 5 at store 262 besides Cullom, not
to mention the succession of managers and assistant managers at store 265. And
it is obvious that if relatively accurate figures were disclosed, they came, at least
originally, from a management representative. Finally, there is no evidence that
any employee, let alone Hux or Cullom, was ever told that the information was
"confidential."
Even more significant is the absence of any claim by Respondent that it had
learned of the alleged dissemination of "confidential" information by "Colonial
Stores" only recently and, as a matter of fact, Wade's testimony suggests just
the contrary. Moreover, by the last of April 1962, the shortages were such an old
story that it is doubtful that they were a current topic of conversation except among
A. & P. officials.
However, there was another subject which was current, at least among A. & P.
employees, and that was the desire of some of them to obtain union representation.
It may have been, although it probably was not, a coincidence that the employees
of Colonial Stores were represented by a union and that this was, apparently, a
recent development. In any event, Mrs. Hux and Mrs. Cullom were union members
and on one occasion, in March 1962, Donald Hux took a union pay scale (which his
wife had received in the mail) to the store. It is undisputed that the next day,
Produce Manager Shell told Hux that the then store manager, Hester, had told Shell
that he (Hester) had heard that Hux had brought union literature to the store and
that if it happened again, "it would be mighty embarrassing" and that they "might
have to let [Huxi go "
I am convinced that it was this community of interest between Hux and Cullom
and the employees of Colonial Stores which annoyed Respondent and to which
McCain referred when he told Hux that Hux could not be "loyal" to A. & P.
because his wife worked at Colonial Stores Although McCain did not use the
word when talking to Cullom, he made Cullom's continued employment contingent
upon proof of his loyalty-i.e., the termination of his wife's employment.
In any event, it is undisputed that when Cullom asked Manager Parrish the
"main reason" for the transfers, Parrish replied "the union question," that Produce
Manager Shell told Barefoot he had told McCain that Hux had attended the union
meeting, and that Parrish told Reid and Downing that it was the "instigators for
the union" who were "gotten out "
4. Summary
In view of all of the foregoing facts, including Respondent's knowledge of the
union activity of the six employees, the timing of the transfers and discharges, the
failure of Respondent's explanation of its actions to stand up under scrutiny, par-
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 15
ticularly in the case of Hux and Cullom, and the undisputed evidence that Managers
Parrish and Fanney stated on several occasions that the employees were transferred
or discharged because of their union activity, I find that a preponderance of the
evidence supports the allegations of the complaint that Respondent discharged
Walters, Hux, and Reid; 36 transferred Cullom to store 265; and transferred Barnes
and Barefoot to Kinston and Goldsboro, respectively, and caused them to quit
by withholding the customary "expense money," all because of their union activity.
It follows, therefore, and I find, that Respondent thereby violated Section 8(a)(3)
and (1) of the Act 37
I also find that the statements made by Managers Parrish and Fanney to various
employees, which disclosed that Parrish and Fanney knew and that Supervisor
McCain also knew the identity of the employees who attended the union meeting
and that the employees were discharged or transferred because they attended that
meeting, constituted interference, restraint, and coercion within the meaning of
Section 8 (a) (1) of the Act and therefore violated that section. The statements
clearly indicated that Respondent had kept itself informed about the union activities
of the employees and had taken reprisals against them for such activities. The
natural inference to be drawn from these statements is that Respondent will take steps
to learn of any future union activity on the part of its employees and will or at least
may take action against some or all of the employees involved. The statements
therefore constituted a threat of reprisals against other employees who may at some
future date engage in union activity.
III. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend the customary cease-and-desist order and the affirmative relief
which is conventionally ordered in cases of this nature.
More specifically, I shall recommend an order directing Respondent to reimburse
Barnes for any expenses he incurred in connection with his transfer to Kinston,
and to reimburse Barefoot for any expenses he incurred in connection with his trans-
fer to Goldsboro, since such expenses were the result of their transfers which were
caused by their union activity. Although Julian Cullom did not object to, and suf-
fered no hardship because of, his transfer from store 262 to store 265, the transfer
nonetheless violated Section 8(a) (3) and (1) of the Act having been caused by his
union activity. Accordingly, I shall recommend that Cullom be given the choice of
remaining at store 265 or returning to store 262. Any backpay shall be computed
in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Since discrimination against employees because of their union activity goes to the
very heart of the Act and the evidence establishes more than isolated acts in violation
of the employees' right of self-organization (N.L R.B. v. Entwistle Mfg. Co., 120 F.
2d 532, 536 (C.A. 4) ), I shall include in my Recommended Order a provision direct-
ing Respondent not to interfere with, restrain, or coerce its employees in any manner
in the exercise of their statutory rights. Since it is clear that Respondent's conduct was
not based on the identity of the Union involved but resulted from its opposition to
all union activity among its employees, my Recommended Order will prohibit
interference with the employees' right to engage in activity on behalf of the Union
or any labor organization.
Finally, my Recommended Order will direct Respondent to post copies of the
notice in the store in Kinston to which Barnes was transferred and in the store in
Goldsboro to which Barefoot was transferred. Each of them had been told that
31 Respondent admitted in its answer that Reid was discharged and it is undisputed
that when Reid called Manager Parrish on the day after he was interviewed by Wade,
Parrish told him that he was to think things over for a week, that Wade would "contact"
Reid at that time, and that he might be transferred to another store. It is also un-
disputed that when Reid talked to Parrish the following Saturday, Parrish explained that
"something had come up" and that Reid should resign In view of these facts, I find that
Reid did not quit but was discharged as Respondent admitted in Its answer.
37 It is undisputed that Barnes and Barefoot resigned because they were unable to main-
tain their homes in Roanoke Rapids and pay the expenses arising out of their transfers
Respondent itself recognizes the financial burden created by such transfers for it admittedly
pays the expenses of employees who are transferred for the "good" of the Company.
Under these circumstances, I find that Respondent must have known that Barnes and
Barefoot would resign if they were transferred to distant towns, without expenses, and
it must therefore be found (and I find) that Respondent intended to cause and did cause
their resignations.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was being transferred because of his union activity and it is reasonable to assume
that in their conversations with fellow employees in Kinston and Goldsboro, re-
spectively , the employees would naturally ask why they were transferred and that
Barnes and Barefoot would repeat the reason given him by management . And, as
a matter of fact, the record shows that this was the answer Barefoot gave Manager
Register when the latter asked the reason for Barefoot 's transfer.
CONCLUSIONS OF LAW
1. Respondent in an employer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By transferring employees Henry G. Barnes and Jackie Barefoot without pay-
ing their expenses, thereby causing them to quit their employment with Respondent,
by transferring J. Walters and discharging him when he did not accept the trans-
fer, by transferring Julian Cullom, and by discharging Donald Hux, all because of
their union activity, Respondent has engaged in unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act.
4. By stating to employees that Respondent's officials knew the number and
identity of the employees attending the union meeting, Respondent engaged in an
unfair labor practice within the meaning of Section S (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record, the Trial Examiner recommends that Respondent, The Great Atlantic
& Pacific Tea Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or in any other labor organization
by discharging, transferring, or by discriminating in any other manner against em-
ployees with respect to their hire, tenure, or any term or condition of employment
because of activity on behalf of the Union or any other labor organization.
(b) Threatening employees with reprisals for engaging in activity on behalf of
the Union or any other labor organization.
(c) In any other manner interfering with , restraining , or coercing employees in
the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer Henry G. Barnes, Jackie Barefoot , J. D. Walters , Robert Reid, and
Donald Hux immediate and full reinstatement to their former positions in store 265
in Roanoke Rapids, or substantially equivalent positions if their former positions
are not available, without prejudice to their seniority and other rights and privileges,
and make them whole for any loss they may have suffered as a result of the discrim-
ination against them , including any and all expenses incurred by Barnes and Barefoot
in connection with their transfers , in the manner set forth in the section entitled
"The Remedy."
(b) Offer Julian Cullom a choice between remaining in store 265 in Roanoke
Rapids or of returning to store 262 in Roanoke Rapids.
(c) Preserve and, upon request , make available to the Board or 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 analyze the
amounts of backpay due and the right to reinstatement under this Recommended
Order.
(d) Post at its stores in Roanoke Rapids, its store in Kinston to which Barnes
was transferred , and its store in Goldsboro to which Barefoot was transferred, all
in North Carolina, copies of the attached notice marked "Appendix ." 38 Copies of said
181n the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "As Recommended by a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Circuit Court of Appeals, the words "Pursuant to a Decree of
the United States Court of Appeals , Enforcing an Order" shall be substituted for the
words "Pursuant to a Decision and Order."
T}- L GREAT ATLANTIC & PACIFIC TEA CO., INC. 17
notice, to be furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the Respondent's authorized representative, be posted by
the Respondent 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 to
insure that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eleventh Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply therewith.39
19 In the event that this Recommended Order be 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
As recommended by a Trial Examiner of the National Labor Relations Board
and in order to conduct our labor relations as required by the National Labor
Relations Act, we notify our employees that:
VVE WILL NOT discharge, transfer, or take any other action against any em-
ployee because he engages in activity on behalf of Retail Clerks Local Union
No. 204, or any other labor organization.
WE WILL NOT threaten any employee with reprisal for engaging in union
activity on behalf of Retail Clerks Local Union No. 204, or any other labor
organization.
WE WILL offer the following employees their old jobs back without loss of
any rights or privileges they had in such jobs; and will make each of them
whole for any loss he may have suffered by reason of our discrimination against
him:
Henry G. Barnes
Jackie Barefoot
J. D. Walters
Robert Reid
Donald Hux
Julian Cullom
WE WILL NOT interfere with, restrain , or coerce employees in any other man-
ner, in connection with the exercise of the right to self-organization , to form
labor organizations , to join or assist the above -named or any other labor organi-
zation, to bargain collectively through representatives of their own free choice,
and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection , or to refrain from any or all 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.
All our employees are free to become, remain, or refrain from becoming or
remaining , members of any labor organization , except to the extent that the right
may be affected by a lawful agreement requiring membership in a labor organization
as a condition of employment.
THE GREAT ATLANTIC & PACIFIC TEA CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 1831
Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if they
have any question concerning this notice or compliance with its provisions.