The Great Atlantic & Pacific Tea Company, Inc.

National Labor Relations Board - Board DecisionsMay 13, 1974

210 N.L.R.B. 593 (N.L.R.B. 1974)

THE GREAT ATLANTIC & PACIFIC TEA CO. 593 The Great Atlantic & Pacific Tea Company, Inc., Birmingham Division and Retail Clerks Union, Local 1557 , AFL-CIO, affiliated with Retail Clerks International Association . Cases 26-CA-4714, 26-CA-4715,26-CA-4716, and 26-CA-4758 May 13, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 19, 1973, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief.' Respondent also filed exceptions to the Decision and a brief in support thereof, as well as a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record2 and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order except as modified herein. 1. We agree with the findings of the Administra- tive Law Judge that Respondent, through the actions of its agents in interrogating and threatening various employees, has violated Section 8(a)(1) of the Act. 2. The Administrative Law Judge also found, and we agree, that as of February 26, 1973, when the Union demanded recognition, it represented a majority of the employees in Respondent's Law- renceburg, Tullahoma, and Fayetteville stores by means of valid authorization cards. Likewise we agree that the Respondent should be ordered to bargain with the Union as exclusive representative of the employees in each of these stores, inasmuch as its actions in threatening to close down or cut hours were sufficiently serious that conducting a free and fair election at this time would be impossible. 3. We disagree, however, with the Administrative Law Judge's finding that the termination of David Durham was not violative of the Act. The basic facts with respect to Durham's termination are undisput- ed. He had worked for Respondent for a year previous to his termination. His union activities consisted of attending a union meeting, signing cards, and soliciting other employees to do likewise. Respondent was admittedly aware of this. Shortly after engaging in this activity, he was told he would have to give up his outside TV repair work or leave his job with Respondent. Although there is no dispute about the fact that in the past Durham had been warned that his work, while more than adequate in quality, was too slow, neither is there a contention that his outside work was ever mentioned as a reason for this, nor that he was ever warned before the ultimatum that he would have to give up this work. We acknowledge, as the Administrative Law Judge points out, that Durham's fellow employees may have complained to management about his slowness. However, we fail to see how this in any way changes the inference of antiunion motivation as urged by the General Counsel. The crucial fact is that even though complaints had been made about and to Durham for some time nothing was done about them until he had engaged in activity on behalf of the Union, activity of which the Respondent was aware. We also view as insignificant the fact that other union advocates were not similarly treated by Respondent, especially in light of Respondent 's clear union animus established by its numerous violations of Section 8(a)(1). Likewise, the fact that the Union still possessed a card majority even after Durham's discharge does not diminish the chilling effect that his discharge would necessarily have had upon an election. Finally, contrary to the Administrative Law Judge, we find Respondent's stated reason for Durham's termination is, in light of all the circumstances, pretextual. It is clear that, if, in fact, Respondent felt that Durham's outside business was interfering with his work at the store, he would have been warned about this when the complaints about his slowness were made. Respondent never objected to Durham's outside business and even encouraged it by placing his business placard in the front office. This attitude continued up to the time he became involved with the Union. Abruptly at this point he was given the choice of giving up his business or leaving his job. By this time, as Durham testified, he had invested too much money in repair equipment to simply abandon it on short notice. All of these facts compel the conclusion that Respondent's ultimatum to Durham was motivated, at least in part, by his union activity. In view of the foregoing, we find Respondent's action constituted a constructive discharge of David Durham in violation of Section 8(a)(1) and (3) of the Act. Accordingly, we shall order that Respondent offer David Durham immediate and full reinstatement to his former job or, if that job no longer exists, to a I Because of the disposition we make of this case , we find it 2 Respondent's unopposed motion to correct the transcnpt is hereby unnecessary to rule on the General Counsel's motion to strike granted. 210 NLRB No. 89 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantially equivalent position, and make him whole by payment of a sum equal to that which he normally would have earned from the date of discrimination to the date of offer of reinstatement, less his net earnings during that period. The backpay provided herein shall be computed in accordance with our formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that The Great Atlantic & Pacific Tea Company, Inc., Birmingham Division, its officers, agents , successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order as herein modi- fied: 1. Add the following as paragraph 1(b): "(b) Constructively discharging employees because of their union activities." 2. Insert the following as paragraph 2(a) and renumber the existing paragraphs accordingly: "(a) Offer David Durham immediate and full reinstatement to his former job or, if that job no longer exists , to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings in the manner prescribed in this Decision." 3. Substitute the attached notice for the Adminis- trative Law Judge's Appendix A. CHAIRMAN MILLER, concurring in part and dissenting in part: I would adopt the findings, conclusions and recommendations of the Administrative Law Judge in their entirety. Unlike my colleagues, I find insufficient basis to reverse any of his findings. I find the question of the appropriateness of the remedial bargaining order difficult. Accepting the credibility resolutions of the Administrative Law Judge, however, I am of the view that the recurring theme of direct and indirect threats of store closing was sufficiently established by the record to justify the need for such a remedy. The issue of whether the cards obtained at the Lawrenceburg store are sufficiently reliable indica- tors of union majority status there is the closet issue in the case. The Administrative Law Judge below did not construe the testimony of employees Moyers and Mattas, even if credited, as establishing that signers were told that the cards solicited at Lawrenceburg were to be used solely for the purpose of obtaining an election . I disagree . If employees were in fact told that they were for the purpose of seeing if 50 or 51 percent of the employees showed enough interest to persuade the Union to come and talk to the employees or to have an election, it would seem to me that the plain impact of such remarks would indeed be that the cards were to be used solely for those purposes, and not to establish any commitment or choice by the employees. But since the Administrative Law Judge character- ized Moyers' and Mattas' testimony as "a subjective afterthought not consonant with their thinking at the time they were 'gung ho' . . . about the Union," I conclude that he intended to, although he failed specifically to, discredit their testimony as to what had in fact been said in the course of the solicitation. On that somewhat tenuous premise , I am willing to concur, dubitante, in the conclusion of my colleagues that a bargaining order may properly be entered with respect to the Lawrenceville unit. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate in regard to the hire and tenure of employment of our employees because of their union or protected concerted activities to discourage membership of our em- ployees in Retail Clerks Union , Local 1557, AFL-CIO, affiliated with Retail Clerks Interna- tional Association , or any other labor organiza- tion. WE WILL NOT illegally interrogate employees about their union activities or attitudes. WE WILL NOT threaten employees to cease operations if they select a union to represent them for the purpose of collective bargaining. WE WILL NOT threaten employees with loss of employment or other economic reprisals if they select the Union to represent them for the purpose of collective bargaining. WE WILL NOT in any other related manner interfere with , restrain , or coerce employees in the exercise of the right to self-organization , to form labor organizations , to join or assist Retail Clerks Union , Local 1557, AFL-CIO, affiliated with Retail Clerks International Association, or any other labor organization , to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual THE GREAT ATLANTIC & PACIFIC TEA CO. 595 aid or protection, or to refrain from any and all such activities. WE WILL NOT engage in surveillance of employ- ees' union activities. WE WILL offer David Durham immediate and full reinstatement to his former job or, if that job is no longer available, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner prescribed in the Decision of the Board. WE WILL, upon request, bargain with Retail Clerks Union, Local 1557, AFL-CIO, affiliated with Retail Clerks International Association, as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appro- priate unit is: All employees excluding office clerical em- ployees, store managers , assistant store managers, guards and supervisors as defined in the National Labor Relations Act, as amended. All our employees are free to become, or to refrain from becoming, members of any labor organization. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., BIRMINGHAM DIVISION (Employer) Dated By (Representative) (Title) This is art official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat . 136), herein called the Act, was heard at Columbia , Tennessee, on various dates from July 31 to August 8, 1973, pursuant to due notice. The consolidated complaint was issued on June 12, 1973, by the Regional Director for the Region 26 (Memphis , Tennessee), on behalf of the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board . The complaint was based upon duly served charges filed by Retail Clerks Union, Local 1557, AFL-CIO, affiliated with Retail Clerks International Association (herein called the Union) on April 16, 1973, in Cases 26-CA-4714, 4715, and 4716 and on June 1 , 1973, in Case 26-CA-4758. The complaint, as amended at the hearing , alleged that Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. In its duly filed answer Respondent denied the commis- sion of any unfair labor practices. Upon the entire record' in the case , including my observation of the witnesses , I make the following: FINDINGS OF FACT 1. RESPONDENT 'S BUSINESS At all times material Respondent has been a corporation doing business in the State of Tennessee with offices and places of business located in Fayetteville , Tullahoma, and Lawrenceburg, Tennessee , where it is engaged in the business of operating a chain of retail grocery stores. During the 12 months preceding issuance of the complaint Respondent in the course and conduct of its business operations at each of the named locations had a gross volume of business in excess of $500 ,000; and during the same period of time Respondent purchased and received at each of said locations products valued in excess of $50,000 directly from points located outside the State of Tennessee. Respondent at all times material has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all times material Retail Clerks, Locar 1557, AFL- CIO, affiliated with Retail Clerks International Association, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Issues The issues, as substantially reflected in Respondent's brief, are as follows: 1. Did Respondent interrogate employees ; threaten loss of jobs , layoff, loss of hours, and intolerable working conditions ; engage in surveillance; create an impression of surveillance ; and urge employees not to vote in the election , in violation of Section 8(a)(l) of the Act? I Respondent's motion to correct the transcript in various respects is hereby granted 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Were the assistant store managers and the meat merchandiser supervisors within the meaning of the Act? 3. Were employees Phil Rogers and David Durham constructively discharged in violation of Section 8(a)(1) and (3) of the Act? 4. Was the language on the authorization cards and related documents , signed by employees of Respondent's Lawrenceburg , Tennessee , store , vitiated by the statements of Philip Moyers and union representatives? 5. Did Respondent refuse to bargain in good faith with the Union concerning terms and conditions of employment in Respondent 's Fayetteville , Lawrenceburg, and Tullaho- ma, Tennessee , stores? 6. Should the alleged unlawful conduct be separately evaluated only on a store-by-store basis, with no considera- tion for the combined effect of any unfair labor practices which may be found? 7. Should Respondent be ordered to recognize and bargain with the Union as the collective-bargaining representative of employees at Respondent's Fayetteville, Lawrenceville , and Tullahoma , Tennessee , stores? Background Respondent is a nationwide retail grocery chain. The three subject stores are located in Lawrenceburg , Tullaho- ma, and Fayetteville , Tennessee . All three stores are in Respondent 's Birmingham division. In December 1972 the Union began organizing the three stores . By letter dated February 20 , 1973, received by Respondent on February 26, 1973 , the Union requested recognition in separate units for each store . About the same time the Union filed representation petitions for each store with the Board. Thereafter Respondent and the Union entered into a consent -election agreement . Elections were scheduled for Thursday , April 19 , 1973. On April 16, 1973, the Union filed charges alleging 8(axl), (3), and (5) violations which resulted in postponement of the elections. The Supervisory Question Assistant Store Managers Ronnie C . Newton , manager of the Tullahoma store, testified as follows regarding the duties and responsibilities of his assistant store manager , Doug Green : Newton has 12 employees including the assistant store manager under him. He is in complete charge of the store , accounts for the money , assigns job duties, and makes up work schedules. The store is open 6 days a week but Newton works only 5. Green is in complete charge on the 6th day, taking over all the duties and responsibilities of the manager. The assistant manager is also in similar charge on all other absences of the manager , such as for illness,2 vacations, and when otherwise out of the store . When Newton is present Green is in charge of the part-time grocery stock clerks and assigns jobs in the grocery department . He also helps with the work. Newton confers with Green on what assignIm nts employees are to have in the store . Green can assign employees to any job without Newton's approval. Green, unlike rank-and-file employees , participates in conversations with visiting officials regarding the business condition of the store . Green also uses the office with Newton and like Newton has access to the personnel files. According to Newton the employees consider Green (and so does Newton ) a supervisor . There is nothing in the record to show any substantial variance regarding the duties of the other stores assistant store managers. I find that the assistant store managers are supervisors within the meaning of the Act. The Meat Merchandiser As meat merchandiser , Jeff N. Davis had charge of 18 stores including the 3 in question . His job was to see that merchandise in each store was displayed, cut, and ordered properly , and to help all markets that were in trouble. Davis denied having the authority to fire employees,3 but stated that he "just showed them the figures and let them know they might be firing themselves ." Davis admitted reprimanding employees , and having on one occasion suggested to one employee that he thought it would be better if he found another job. Davis visits the stores approximately once every 2 weeks in his responsibility for their performance and attends supervisory meetings that are held by Respondent . Davis has access to employee personnel records whereas rank-and-file employees do not have this access. Store Manager Ronnie Newton testified that Davis "is a supervisor" whom he considers as his "boss ." Davis instructs employees on what he wants done in the meat department , reprimands employees, transfers employees , and promotes employees . Davis was introduced to employees as a supervisor and employees look upon him as a boss . Davis has told employees that he was their supervisor and that they would do things the way they wanted them done. I find that Davis also is a supervisor within the meaning of the Act. The Majority Status There is no dispute (except as to the Lawrenceburg store) that by February 26, 1973 (the date that the Union demanded recognition as bargaining agent), the Union had valid bargaining authorizations from a majority of the employees in appropriate units4 in each store . Thus, as of January 11, 1973, 10 of the I 1 employees in the Tullahoma unit had signed authorization for representation cards and in addition had signed membership application and dues checkoff cards. Also at a union meeting on January 11 the same 10 signed a statement in which they agreed to let the Union use their names in any way it saw fit, that they would serve on any committee the Union wished them to serve , and that they would vote yes for the Union on election day. At the Fayetteville store all 10 employees in the unit had 2 Newton was off sick for 5 weeks in the spring of 1973 during which supervisors within the meaning of the Act, I find that the appropriate unit time Green ran the store for each store was comprised of all employees excluding all office clerical J Russell Johns, a meatcutter in the Lawrenceburg store testified that he employees, store managers , assistant store managers, guards, and supervi- was hired by Davis This testimony stands undemed and is credited. sors as defined in the Act. 4 In view of the above finding that assistant store managers are THE GREAT ATLANTIC & PACIFIC TEA CO. signed authorization cards and membership application and dues checkoff cards as of January 17. The day before, 7 of the 10 had also signed a statement in which they agreed to serve on any committee the Union wished and to work for the union cause. At the Lawrenceburg store 11 of the 12 employees in the unit had signed authorization cards and membership application and dues checkoff cards as of January 2, 1973. As of December 27, 1972, 8 of the 12 had signed a statement that they would serve on any committee deemed necessary by the Union, that the Union could use their names in any way it saw fit, and that they desired the Union to represent them in getting a collective-bargaining agreement , and that they would work to help the Union do this. As indicated, the only dispute as to the foregoing majority representative status of the Union regarding the three above units involves the Lawrenceburg store. In that unit Respondent contends that the various bargaining authorizations were invalidated by reason of what was said to induce the people to sign them. In this connection, according to Respondent's testimony, when cards were passed out the recipients were told that they were for the purpose of seeing if 50 percent were interested in having an election and that "it would be left up to the people to vote it in or out ..."; that they were for the purpose of seeing if enough were interested to have the Union come and talk to the employees and let them know what the Union had to offer and to find out whether the employees wanted an election and that the signing of the cards was a mere "formality." The foregoing was from the testimony of Respondent's witnesses Philip Moyers and Thomas Mattox, who was elected union steward soon after the cards had been signed . Mattox also testified that he "personally, didn't believe . . most of the employees . . . felt like they were under any complete obligation to the Union." Moyers testified that when he was given cards by Union Representative Melvin Powers for the purpose of soliciting the employees he was told to tell them they needed 51 percent of the employees to sign before the Union could come and explain what it had to offer or to have an election. According to Moyers, Powers also told him not to "tell the people anything else . . . because we're liable to get in trouble later on if you tell them or promise them something that's not true." That Moyers' and Mattox's testimony represents a subjective afterthought not consonant with their thinking at the time they were "gung ho" (in the words of Mattox) about the Union would seem to be shown by the following excerpt from the transcript: Q. (By Mr. Agee) How much education have you had, Mr. Moyers? ' The pertinent parts of the authorization card read "Desiring to enjoy the rights and benefits of collective bargaining, I the undersigned employee of A&P- hereby authorize RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, or its chartered Local Union to represent me for the purposes of collective bargaining respecting rate of pay, wages, hours of employment, or other conditions of employment in accordance with applicable law " The membership application in pertinent part read "I hereby make 597 A. Twelve years. Q. Most of the people in the store are high school educated people, aren't they? A. Yes, sir. Q. And all of those people that you saw sign cards and these rosters here are most literate individuals? A. Yes, sir, except for a small amount there. Q. Which ones are there that are not literate? A. When we signed those. Q. You don't think you were literate when you signed those? A. I don't think we were now. Q. When did you change your mind? A. When I found out y'all couldn't do a bit more than the Company was already doing for us. In any event, on the basis of current law it is clear that the foregoing evidence is not sufficient to invalidate the signed cards here . Both cards were single purpose cards stating clearly and unambiguously on their face that the signer was designating the Union to represent him in collective bargaining .5 At no time in the solicitation of the cards were the signers told that the cards were to be used solely for the purpose of obtaining an election. Thus, under the rule stated in Cumberland Shoe, 144 NLRB 1268, cited with approval by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 584, 606 (1969), the cards in question here were valid authorizations to be counted in determining the majority 6 On the basis of the foregoing I find that as of February 26, 1973, when the Union demanded recognition, it represented a majority of the employees in the Lawrenceburg store as well as the Tullahoma and Fayetteville stores. As to what effect this majority status will have on the 8(a)(5) allegations , here , of course , will depend on the legality or illegality of Respondent 's conduct and its extent at each store. N.LR.B. v. Gissel Packing Co., supra. For that purpose I turn now to an analysis of the conduct at each store which I feel must be considered and evaluated as separate entities. The Lawrenceburg Store The Alleged (8)(a)(I) Russell Johns, meatcutter in the Lawrenceburg store, testified credibly and without denial that on March 8, 1973, Store Manager James Ricky Gean asked him if he was for or against the Union. Johns answered that he "happened to be for it." Gean asked, "Even though it means your job?" Johns asked Gean what he meant by his remark. Gean explained that "Since the market wasn't getting its pounds that if the Union came in (Johns) would probably have to be laid off . . . that the business of the store wouldn't be that good." Gean then asked Johns in application for membership in RETAIL CLERKS INTERNATIONAL ASSOCIATION and . I authorize the RETAIL CLERKS INTERNA- TIONAL ASSOCIATION to represent me for the purposes of collective bargaining and handling of grievances , either directly or through such local union as it may designate " 6 Cf Peerless of America, Inc. v. N.LR B., 484 F 2d 1108 (C. A. 7, 1973), where almost identical representations made to the solicited employees were approved 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect if he would support the Union even if it meant his job and Johns said yes. Gean also asked Johns about a part-time job on this occasion. About this matter Gean testified that he commented as follows: Well, if it does come in and the demands are too high I guess you know there's the possibility of hours being cut and the possibility of the store closing because we can't continue to operate at any more loss than we already are.7 I said, "You mean to tell me that even it might cost you your job and cost me my job and Philip's job and every employee in the store that you're going . . . for it." He just said, "Well" and turned around and walked off. About 2 weeks later, according to Johns' further undenied and credited testimony, Gean introduced Philip Kramer, vice president of Respondent's Birmingham district. Kramer asked to come behind the meat counter to talk to Johns. Kramer started the conversation talking about store matters then said, "You know there' s union activity in this area." Johns said he knew. Kramer said, "Well, let's be honest with each other. What can these people . . . give that we can't give and why did you sign the card." Then Kramer wanted to know if Johns had any complaints that he or any of the supervisors could handle. Johns stated none at that time but later that afternoon sought out Kramer and voiced some complaints that Kramer said would be taken care of. In this second conversation Kramer told Johns "that if the store came under union contract . . . they would sell the store," but that they were too proud to sell it at that time.8 Kramer further told him that he did not mean this remark as a threat. Several days after his conversation with Kramer, Johns testified he was called into the office by Gean after he had clocked out. There ensued an hour long conversation. Apparently most of it pertained to the complaints Johns had made to Kramer which Gean felt "had stabbed him in- the back."9 Gean said that to make up for the matter raised by Johns with Kramer "if the Union came into the store he would have to cut something like 80 hours from the payroll" which "would mean getting rid of four part- time employees." Either on this occasion or on another occasion Gean told Johns that if the Union came in, the time Johns and Ricky Holland had spent working in another grocery store, Red Star, could not be counted as experience in computing their wages. Johns further testified about a remark he heard Gean make to Thomas Mattox about mid-April or a week before the election date. Gean said, according to Johns, "Thomas, we don't fire people who have had anything to do with organizing the Union . . . sometimes we might make it 7 Regarding the profit position of the store Gean testified that when he was considering taking over the Lawrenceburg store he was told it was "in economical bad shape" but that Respondent believed he "could pull it out and make a money-making store out of it which would be golden opportunity" for him In the third quarter of 1972 the Lawrenceburg store had "lost approximately $10,000 in profits" according to Gean He knew that it was not doing enough business to make money because it was about twice the size of his previous store in Florence , Alabama, but some weeks he did not do any more business than the Florence store had done hard on them so they might leave but we don't fire them." 10 Johns testified also that he did not tell any one of the employees about his conversation with Gean but did tell Mattox about the Kramer conversation. According to Gean's testimony, as he was coming back from lunch one day Philip Moyers called to him from the meat case to ask if he had seen Union Representative Melvin Powers come into the store. Gean said he had as he was leaving for lunch. Moyers said, "Well, I want to tell you he brought me some union cards to pass out and I don't want to do anything behind your back. I want you to know what's going on." Gean replied that "If the employees decided they wanted a union that was . . . their privilege." About a month later, according to Gean's further testimony, Moyers told him, "Well, I guess you know we got the union cards signed in the store." Gean said he had not heard about it. Moyers then asked in effect if Gean did not want to know how many had signed. Gean's reply was, "Not particularly." After a brief silence Moyers spoke up, "Well, 100 percent is not bad, is it?" Gean said he did not know. Thomas Mattox, Respondent's witness , testified that in a conversation with Gean one morning after a union meeting, Gean told Mattox "that as far as he could see the Union never had done a great deal for the boys that was covered by the Birmingham contract . . " but that if the Union could get the things it claimed it could for the employees he "truthfully wouldn't blame (them) for voting for it either." In his further testimony Gean admitted making the remark to Johns about not getting credit for experience gained in the Red Star grocery explaining credibly that his opinion was directed to fringe benefits rather than wages and was based on a union booklet that did not list Red Star (an independent) along with several chain groceries listed as providing credited experience. Nor could he "truthfully say" that he did or did not make the comment to Mattox (overheard by Johns) about not firing union adherents but making it hard for them. Except as previously found, I credit the General Counsel's version in the two above instances. On the basis of the foregoing I find that Gean and Kramer both violated Section 8(a)(1) by interrogating Johns regarding his union attitude, threatening loss of hours, jobs, and the closing of the store if the Union came in. I also find that Gean's remark to Mattox about making it tough on union supporters violated the Act. The Alleged Discrimination Against Durham David Durham, an alleged discriminatee herein, testified as follows: He was hired at the Lawrenceburg store as a checker in February 1972, learned the bookkeeping job, 8 This remark apparently meant to convey the idea that Respondent was unwilling to admit that the store was being hurt by the competition from a Kroger store that had opened in January 9 The complaint involved the number of hours being worked on the clock by the meat manager Gean's position apparently was that Johns should have taken the matter up with him rather than Kramer 10 According to the testimony of Shirley Konig, a witness called by Respondent , Thomas Mattox told her of a similar remark Vice President Kramer had made to him THE GREAT ATLANTIC & PACIFIC TEA CO. 599 and then was transferred to stock. He attended one union meeting and signed authorization and membership appli- cation cards. He also solicited two employees to sign authorization cards at their homes in the evening . He never wore a union button. Philip Moyers was the most active union pusher in the store . Thomas Mattox also became active and was elected steward in an election held in the store. When the subject of the Union first came up in the store, Store Manager Gean told the employees that if they wanted the Union "they would get no static from him." All during his employment with Respondent, Durham was operating a TV repair shop from his home with the full knowledge of Respondent. Durham admitted on the stand that he had "no great love" for the grocery business and that he had told this to Gean. It was late in February that Gean told him it would be necessary for him to make a choice between his TV business and the grocery business. He also told Durham that he would like Durham to stay if he was willing to devote himself full time to the job. When Durham said that he "had too much money tied up in the shop" Gean told him he would rather Durham would defer making his decision until after his (Durham's) vacation for which he would be eligible in about a week or 10 days but which Gean was going to try to get moved up. Gean called personnel and learned that the vacation could not be moved up but that if Durham worked until his anniversary date he would receive his vacation regardless of his decision to quit. Durham agreed to this and in the intervening period had time to think about his decision . Then when Gean asked Durham if he had made up his mind Durham told him he had already made his decision on the day that Gean first brought up the matter and observed that he did not think it was anyone's concern what he did on his own time as long as it did not interfere witb his work. When the termination actually occurred Durham asked Gean what he was going to show as a reason for his termination. Gean said it would be "involuntary." Durham said he would not sign it that way so the reason was changed to "voluntary." Among other things his termina- tion papers stated that "employee enjoys working in electronics. He feels that he would like that field of work better than the grocery business." It also stated that "The employee is a very good person and is very capable if he really enjoyed his work." There is no real conflict in Gean's testimony about the matter . He testified that not long after he came to the Lawrenceburg store, Durham told him about his TV shop and that he did not plan to make a career out of the grocery business-"He didn't particularly like it." Accord- ing to Gean's further testimony Durham's work was slow and "on most occasions he had to have help to complete putting up his stock." This gave rise to complaints from the other employees about Durham. Thomas Mattox talking about Durham told Gean, "I don't see how you can keep him . . . he kills your whole operation" and went on to 11 The total number of employee man-hours which a store manager is entitled to use during any given week is determined by Respondent's "pounds" system . Under this system (designed to produce profitability) a certain amount of sales must be made to support one man-hour explain that Durham was the "slowest person he had ever seen ...." 11 Gean told Mattox that he wanted to give Durham a chance, that he (Gean) had only been manager since October and he thought Durham ought to "be given a chance to speed up ." At least three times Gean spoke to Durham about his performance telling him that what he did was neat but that he was not getting the stock back from the backroom fast enough. Considering all the factors here , I am not convinced that the General Counsel has proved by the necessary prepon- derance of the evidence that Durham was constructively discharged in violation of the Act. The complaint about Durham's work eminated not only from management but from his fellow employees who were required to do some of his work.12 Analysis of the possible reason for his unsatisfactory performance could logically involve his outside TV work which was done largely at night and weekends . His admission that he was not interested in the grocery business was no help to him either. Since the employees had signed up for the Union 100 percent, the elimination of Durham could hardly have been for the purpose of affecting the majority in the coming election. And as for a chilling effect on the other employees of a discriminatory termination, others were much more active in support of the Union and thus more likely candidates for such a ploy. The significance of Gean's remark to Johns (which Gean denied) that he hoped Durham would not be chosen steward because he did not believe he would be able to get along with Durham weighs in favor of Respondent's position rather than the General Counsel's because the steward had already been chosen when the alleged pretextual termination first came up. This fact suggests, as pointed out by Respondent, that Gean harbored some personal animosity toward Durham that might have motivated his approach to Durham's performance totally unconnected with the Union. In the last analysis, if Gean's motive was discriminatory it would seem odd that he did not accept Durham's immediate offer to resign rather than counseling him to wait until after he had taken his vacation to make up his mind. For these reasons I find that Durham's termination was not violative of the Act. At most the evidence merely establishes a suspicion in that respect. The Fayetteville Store The Alleged 8(a)(1) Stock clerk Philip Rogers testified that about March 1, Store Manager William Allen called Rogers over and started reading from a paper applicable "to all A&P non- union members . . . about vacations, time and a half for working on Sundays, holidays, and things like that." Allen stopped reading and asked Rogers if he belonged to the Union. Rogers said he did and Allen said the paper did not apply to him and walked off. 12 In addition their interest apparently stemmed from Respondent's per pounds formula of production that reflected the combined production of all the employees and affected the store as a whole. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 2 weeks later Allen again spoke to Rogers about which Rogers testified as follows: ... Mr. Allen came over there and said, "How does it feel to do some stupidjob," and I said, "What do you mean?" He said, "Well, you signed one of those union cards, didn't you," and I said, "Yeah." Then he said, "Well, you got the least seniority and you'll be the first to go." And then he said something like, "You people think you got the Union in but it's a lot of trouble and it's a lot of work." I said, "Well, that's what they're supposed to be doing is working on it." He left and then came back about a minute later on and said, "I was just kidding you." According to the testimony of Produce Manager Ricky Holt, on March 28 Allen came over where he was working and told Holt that he heard from a union supporter that Holt had said something about Allen at a union meeting and wanted to know if Holt had something against him. Holt denied having "anything special" against him. Allen said he must have had or if he did not one of them were liars . A heated argument ensued. Holt raised his hand and Allen told him "to go ahead-and hit (me)." Holt denied any assault intention and asked a fellow employee who was witnessing the tableau if it looked that he was going to hit Allen and was told, "Yeah, you were shaking your fist." That was the end of it. Checker Joyce Honea testified that about February 12, when a union meeting had been scheduled, Allen asked her if she was going to meet her "comrades" that night. Honea answered "Yes, I'm going to see what they've got to offer" On another occasion, weeks later, according to Honea's testimony, she and Allen got to talking about the Union. He told her to "have a little common sense about this thing. He said that a small store like this can't pay .. . what the Union said they'd pay" and that Respondent would close the doors. Hones retorted that ". . . it wouldn't be the union closing them. It would be Winn- Dixie opening." 13 At this point employee Don Paplin walked up and Allen asked, "Don, what does a padlock look like?" In April it was rumored that there was going to be a strike at the Huntsville store . This gave rise to another conversation between Honea and Allen about which Honea testified as follows: ... He said they were going to strike in Huntsville and he asked me if I would walk the picket line with them. I said, "Shoot, no, I'll stay home and enjoy it." So after a while he said, "Joyce, did you really mean that statement you made a while ago," and I said, "Oh, Mr. Allen, what are you trying to get started now?" And he said, "I'm not trying to start anything." He said, "I was told by Birmingham to do this." He said, 13 A Winn-Dixie grocery store was expected to open shortly. According to Allen 's undenied and credited testimony, Allen, on another occasion in the presence of three or four of the employees to whom Union Organizer Melvin Powell was talking, asked Powell what his estimate would be of the effect on the store of an anticipated opening of the Winn-Dixie store in Fayetteville Powell said it would cut the business in half-down to about $8,000 a week Allen then asked, "Melvin, what do you think A&P will do the store earning $8,000 a week?" Powell answered , "They will close the "Will you cross the picket line," and I said, "Well, I'd hate to get shot at or get mixed up in anything but I need the work." According to Honea at this time she asked Allen, ".. . How did you know who I'm for or against. I haven't told anybody." Allen said, "Well, the Company has got you down as for the Union." All the foregoing was undenied by Allen and is credited. On this basis I find that Allen violated Section 8(a)(1) by interrogating Rogers about signing a union card and asking Honea if she was going to meet her comrades; by threatening Rogers that he would be the first to go; and telling Honea the doors would be closed if the Union came in. I also find coercive and violative of the Act Allen's remark to Honea that the Respondent had her counted as a union supporter. Under the circumstances I do not find Allen's inquiry whether Honea would cross the picket line if a strike took place (and similar inquiries of other employees as will be seen) to be a violation. The Alleged Discrimination Against Rogers Philip D. Rogers, 17, worked for Respondent 4 to 10 hours a week as a part-time student stock clerk at its Fayetteville store from October 1972 to April 1973. He signed union authorization and membership application cards at a union meeting and attended four or five such meetings. He also wore a union button for about a week. On April 9, according to Rogers' testimony, when he came to work he was told something about a strike by a fellow employee, Ricky Holt, who added that the store manager, Elgene Allen, had asked him if he would cross a picket line to go to work. When Rogers got to the office he asked Allen, "Mr. Allen, what's this about a strike?" Allen said that the store in Huntsville might strike14 and asked Rogers the same question he had asked Holt. Rogers told Allen he would not cross the picket line. Allen had a piece of paper in his hand at this time but Rogers was not sure whether Allen made a note of his answer. At this point Rogers (who apparently had just learned that he was scheduled to work on Saturday) "told (Allen) that (he) wouldn't be there Saturday..... Allen asked Rogers if he had a good reason and Rogers said he thought he did although he did not recall if he told Allen the reason. According to Rogers' further testimony Allen said, "Well, what do you want me to do lay you off?" Rogers said, "What do you mean?" Allen said, "Well, you won't be losing much. You won't be losing anything and you might be able to draw some of your unemployment." Rogers then asked if he would be able to come back to work. Allen told him that if it was busy enough he would call him back but added, "I don't know if it will ever be that busy again." 15 Allen then filled out the termination papers and had the Goddamn thing." 14 The Huntsville employees were being represented by the Union which was in the process of contract negotiations. 15 At that time Winn-Dixie was expected to open up in Fayetteville any time The store did open about mid-May and Respondent's Fayetteville business volume dropped some 50 percent. Moreover, even prior to the opening of Winn-Done it was common knowledge around the Fayetteville store that it "was not doing very well profit wise...." THE GREAT ATLANTIC & PACIFIC TEA CO. office girl call about Rogers' unemployment compensation. Then he told Rogers where to check on the unemployment compensation and a conversation about the Union ensued. Rogers asked Allen if he would still be able to vote in the union election. Allen said that he would but that if he voted he would have people mad at him so "The best thing to do would be just not to vote." Allen also told Rogers he knew that the Union would f- him up and added, "I guess your parents have already told you about the Union." Allen also told Rogers that "he had a boy working at Big K and the Union tried to come in down there and if they did he would kick his son on the ass and make him quit." From Rogers' cross-examination it appears that all the employees wore union buttons and all except one attended meetings , most of them for a longer period of time than Rogers. Also Rogers was the least senior employee. Moreover, in his conversation Rogers told Allen that he had "thought about it and . . . planned to vote against the Union." He also had told Allen previously that he was planning to leave Respondent's employment in about a month. There is little in Allen's testimony about Rogers' layoff in conflict with Rogers. What differences there are tend only to render credible Allen's testimony. Thus Allen testified, and I credit him, as follows: He was a little shocked at Rogers' statement that he was not going to work the posted schedule and asked, "Phil, if you're not going to work the schedule and don't want to work the hours you're scheduled for would you rather I just lay you off or terminate you?" Rogers asked Allen if he thought he would be getting any more work in the future than he had in the past. Allen said it was his opinion he would be getting less because of the impending opening of Winn- Dixie. Rogers said, "Well, if you think it's going to get worse then possibly I have just better go ahead and terminate." Allen then told him it "was his decision and he needn 't have to and that it was up to him, whatever he wanted to do." Allen added that he could not promise Rogers any hours and also suggested that he might be able to draw unemployment compensation. After checking the unemployment compensation procedure Rogers "agreed to do that" 16 and indicated that Allen "could go ahead and fill out his termination." On the basis of the foregoing testimony, both Allen's and Rogers', it appears to me that the General Counsel has failed to prove by a necessary preponderance that Rogers' termination was connected with his union activity. While Allen's antiunion attitude was amply demonstrated in his conversation with Rogers, the fact that Rogers told him he was going to vote against the Union undercuts any discriminatory motivation here. Accordingly I shall recom- mend dismissal of this allegation of the complaint. The Tullahoma Store The Alleged 8(a)(1) Charles E. Phipps, a former employee of the Tullahoma store, testified that after the first union meeting all the employees wore union buttons in the store the next day. 601 Store Manager Ronnie Newton was upset but did not say anything. Phipps called Newton to the backroom and asked him, "Ronnie, what's wrong?" Newton said, "Well, you had a union meeting last night and I don't appreciate your trying to get my job." Phipps said, " I'm not trying to get your job." Newton said, "Well, that's what will happen if the store goes union. It will more than likely be closed by the Company." Later Newton told Phipps that he had called his superior Ernest Broderick about the Union. Broderick told him to handle it the best that he could and indicated that he would have Jeff Davis "come up and give Charles a pretty rough time about the Union." Newton's version was that he explained that "since the store wasn't making any money I thought this Union was dust one more step towards closing ." He also denied telling Broderick about the union activity in the store. I find Newton's threat to close a violation of Section 8(a)(1) of the Act. Sometime later according to Phipps ' further testimony, on a visit to the Tullahoma store while unloading some meat from Davis' car, Davis told Phipps, "Charles, I heard there was a lot of union talk going on in Tullahoma." Phipps said, "Well, there's some." Davis said, "Well, from what Mr. Broderick tells me it's pretty strong" and he continued, "you seem to be the instigator of the whole thing." Phipps said, "Well, not necessarily all of it." Davis said , "Well I brought you some meat up here and I didn't get a transfer on it and you put it in your freezer and use it and I will see you later." Davis denied the foregoing in his testimony . I credit Phipps and find Davis' remarks to be coercive within the meaning of Section 8(a)(1) of the Act. George Puckett currently employed in the meat depart- ment at Tullahoma, testified credibly about a telephone conversation with Davis as follows: On the telephone call Mr. Davis made to me he first started off by saying he didn't know how the situation was that I was in but he didn't want it to go the wrong way. If it went the wrong way it could mean a lot of trouble and I think-let's see . A raise was mentioned that I was supposed to be getting within a 6 months period and that I wouldn't receive the raise. And I think that was about it on the phone. According to Puckett's further testimony Davis also told him "that other people were looking for our jobs and he knew of two who right now from Kroger they could hire at any time, and that he wanted us to get the meat market going as well as we could." In his testimony Davis admitted telling Puckett "whi- chever way you go don't go the wrong way" and that he told him "I don't know how you feel but if you go the wrong way it will mean a lot of trouble." He also told Puckett that if he was in favor of the Union or promoting it ,.It just causes more trouble...." And added on the stand .,and it does ." He also claimed that Puckett asked him if the store would close if the Union came in and that he told Puckett he "didn't believe he had anything to worry about 16 Although Rogers made an initial inquiry to the unemployment compensation people he never did file a claim 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as far as (he) knew." I find Davis' comment about promoting the Union causing trouble to violate Section 8(a)(1) of the Act. Also violative of 8(a)(1) was his implied threat to Puckett of loss of a raise and of his job for union support. Stock clerk Ricky Moms testified that on the morning after the first union meeting Newton told him before he punched in that he would appreciate it if Morris "wouldn't wear the union button and did not rub it in." Two or three weeks later Newton came to him as he was putting up stock and asked how he felt about the Union. Morris said he did not know but that he "liked the seniority...." In his testimony Newton admitted that he asked Moms "how he felt about the Union, and what reasons he thought we might need the Union if any." Morris also testified credibly and without denial that on one occasion in early March, Assistant Store Manager Doug Green told him that Broderick had told Green "that if the store went Union it would be closed." Newton's interrogation and Green's threat violated the Act. Puckett also testified that in July Newton, in a discussion regarding subpenas and the unfair labor practice hearing, had told him that "he remembered one of the fellows that signed one statement and he would remember him for a long time across the table and there might be others that he might see when he went to court." In his testimony Newton admitted having had such a conversation with Puckett explaining that he "was angry and having to come to court and lose the work" and that he knew that Puckett had given a statement and they would both "have (their) day in court...." He denied, however, telling Puckett he would remember those across the table for a long time. I credit Puckett and find an additional 8(a)(1) violation. Several other General Counsel' s witnesses testified about Assistant Manager Green and Newton on March 28 several times driving slowly past and looking at a group of employees and union representatives standing outside the Tuilahoma City Hall one evening where they had sched- uled a union meeting. Newton testified that he had been off sick at this time and that he had gone down to help Green who had been running the store in his absence and was behind in his bookwork. Green had not been to the post office for 3 days so that is where they were going that night. When they saw the group at the city hall, Newton told Green to take an unintended turn because he "had a curiosity to see what they were doing." He admitted driving by the group twice. He also admitted that Green had previously informed him of the union meeting that night and the time it was to take place. He also admitted that he did not need the mail to do the bookwork he had gone down to help Green with. This was surveillance within the meaning of Section 8(a)(1) of the Act. The Bargaining Order Issue In my opinion the foregoing conduct of Respondent at each of the stores is of sufficient gravity to warrant a bargaining order under the Gissell doctrine. Blanket threats to close down or cut hours as a penalty for union support certainly must affect an employee's decision to accord such support. I can think of nothing more apt to influence an employee in the voting booth than such threats. In my opinion , even the discriminatory discharge or threat of discharge of an individual employee (the kind of conduct that has been described by the Board and the courts as going to the very heart of the Act) can have no more chilling or coercive effect on a decision to support a union. At least in the latter situation the overall continuity of employment is not threatened . Thus the more adventurous or hardy employee might not be intimidated by the individual threat of discharge or such a discharge-the employee being willing to take his chances on not being detected in his union activity . In the face of a threat to close down , however, no such option would be open no matter how intrepid the employee. Considering here that the total original union support in all stores was almost 100 percent ; that the employees signed not one but two unambiguous cards authorizing the Union to represent them (including a majority in each store volunteering to serve on union committees ); that the signers were all literate individuals whose intelligence in my estimation was superior to the average card signer, all having at least a high school education , and that each unit was composed of only about a dozen employees , I think that the cards better reflect the true uncoerced desires of the employees than could an election in the foreseeable future. Respondent's reliance on isolated testimony that em- ployees were not intimidated by Respondent's threats or that the threats were not communicated to other employees is rejected as valid defense . As pointed out by Shirley Konig (head cashier of the Lawrenceburg store testifying at the call of Respondent) when asked if she had heard any talk about the Union she answered , "Oh, yes, constantly. That's all there was talk of." Having found that bargaining orders are required here, I find it unnecessary to pass on the refusal to bargain allegation. See Tri-City Paving, Inc., 205 NLRB No. 32, fn. 3. IV. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I , above, have a close , intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom. Also having found that in order to effectuate the policy of the Act bargaining orders are necessary to each of the three stores herein, I shall recommend that Respondent, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate units, and, if an THE GREAT ATLANTIC & PACIFIC TEA CO. 603 understanding is reached, embody such understandings in signed agreements. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Great Atlantic & Pacific Tea Company, Inc., Birmingham Division, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1557, AFL-CIO, affiliat- ed with Retail Clerks International Association, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees excluding office clerical employees, store managers , assistant store managers, guards, and supervisors (as defined in the Act) at Respondent's Lawrenceburg, Fayetteville, and Tullahoma, Tennessee, stores constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 26, 1973, the above-named labor organization has been and now is the exclusive representa- tive of all employees in the aforesaid appropriate units for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 The Great Atlantic & Pacific Tea Company, Inc., Birmingham Division , its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Illegal interrogation of its employees, threateningthemi in various ways with loss of employment or with other' economic reprisal, engaging in surveillance of their union activities, or in any other like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request bargain with the above-named labor organization as the exclusive representative in each store of all employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at each of the aforesaid stores copies of the attached notice marked "Appendix A" for the Lawrence- burg store, "Appendix B" for the Tullahoma store, and "Appendix C" for the Fayetteville store.18 Copies of said notices, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 17 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. la In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT illegally interrogate employees about their union activities or attitudes. WE WILL NOT threaten employees to cease opera- tions if they select a union to represent them for the purpose of collective bargaining. WE, WILL NOT threaten employees with loss of employment or other economic reprisals if they select the Union to represent them for the purpose of collective bargaining. WE WILL NOT in any other related manner interfere with , restrain, or coerce employees in the exercise of the right to self-organization , to form labor organizations, to join or assist Retail Clerks Union , Local 1557, AFL-CIO, affiliated with Retail Clerks International Association , or any other labor organization , to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. WE WILL, upon request, bargain with Retail Clerks Union, Local 1557, AFL-CIO, affiliated with Retail Clerks International Association, as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay , wages, hours of employment , and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All employees excluding office clerical employ- ees, store managers , assistant store managers, guards and supervisors as defined in the National Labor Relations Act, as amended. All our employees are free to become , or to refrain from becoming, members of any labor organization. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., BIRMINGHAM DIVISION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT illegally interrogate employees about their union activities or attitudes. WE WILL NOT threaten employees to cease opera- tions if they select a union to represent them for the purpose of collective bargaining. WE WILL NOT threaten employees with loss of employment or other economic reprisals if they select the Union to represent them for the purpose of collective bargaining. WE WILL NOT in any other related manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Retail Clerks Union, Local 1557, AFL-CIO, affiliated with Retail Clerks International Association, or any other labor organization, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. WE WILL NOT engage in surveillance of employees' union activities. WE WILL, upon request , bargain with Retail Clerks Union , Local 1557, AFL-CIO, affiliated with Retail Clerks International Association , as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All employees excluding office clerical employ- ees, store managers , assistant store managers, guards and supervisors as defined in the National Labor Relations Act, as amended. All our employees are free to become , or to refrain from becoming, members of any labor organization. Dated By THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., BIRMINGHAM DIVISION (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street , Memphis, Tennessee 38103, Telephone 901-534-3161.