The Great Atlantic & Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 900 (N.L.R.B. 1967)

900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Great Atlantic & Pacific Tea Company,
Inc. and Meat Cutter , Butcher and Allied
Food Workers , District Union 327,
affiliated with the Amalgamated Meat
Cutters and Butcher Workmen of North
America, AFL-CIO. Case 15-CA-2875
June 23, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On February 3, 1967, Trial Examiner Lowell
Goerlich issued his Decision 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 Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof, and the General Counsel filed cross-
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
The Great Atlantic and Pacific Tea Company, Inc.,
Ponchatoula, Louisiana, its officers, agents,
successors, and assigns, shall:2
1. Cease and desist from:
(a) Discouraging membership in the Meat Cutter,
Butcher and Allied Food Workers, District Union
' We agree with the Trial Examiner's 8(a)(1) findings relating to
the 10-cent-an-hour wage increase and the 15-minute coffeebreak
We rest our finding on the ground that these benefits, although
lawfully conferred under company policy, were unlawfully
represented to an employee as a reward for abstention from the
Union
The General Counsel at the hearing disclaimed that he was
alleging an 8(a)(3) violation or seeking backpay remedial relief as
to Allen Kinchen Because of that disclaimer, we do not adopt the
Trial Examiner's backpay order as to Kinchen, although we affirm
the Trial Examiner's 8(a)(1) finding based on Respondent's
harassment of him
2 The Board is of the view that the normal and customary
327, affiliated with the Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO, or any other labor organization, by
discriminatorily discharging any of its employees or
discriminating in any other manner in respect to
their hire or tenure of employment, or any term or
condition of employment.
(b) Unlawfully threatening employees, unlawfully
promising employees benefits, unlawfully interrogat-
ing employees, and unlawfully inducing employees
to engage in surveillance of other employees in
violation of Section 8(a)(1) of the Act.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer John Monroe Easley, Jr., and Charles E.
Martin3 immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, and make them whole for any loss of pay
which may have been incurred by reason of the
Respondent's discrimination against them, in
accordance with the recommendations set forth in
the section of the Trial Examiner's Decision entitled
"The Remedy."
(b) Notify John Monroe Easley, Jr., if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Ponchatoula, Louisiana, store,
copies of the attached notice marked "Appendix." 4
Copies of said notice, to be furnished by the
Regional Director for Region 15, after being duly
signed by the Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
remedies are sufficient in this case and has modified the
Recommended Order of the Trial Examiner accordingly
3 Although the record reveals Martin's previous reinstatement
by the Respondent , it is not clear whether he was returned to
work with full seniority and all other rights and privileges
Accordingly, we include his name in the Order Associated
Wholesale Grocery of Dallas, 119 NLRB 41,50 Cf KellyBrothers
Nurseries, Inc , 145 NLRB 285, fn 1
' In the event that this Order is enforced by a decree of a United
States Court of Appeals, there shall be substituted for the words
"a Decision and Order" the words "a Decree of the United States
Court of Appeals Enforcing an Order "
165 NLRB No. 136
GREAT A & P TEA CO.
Respondent to insure that said notices are not
altered , defaced, or covered by any other material.
(e) Notify the Regional Director for Region 15, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
WE WILL NOT question you in any way over
the Union.
WE WILL NOT threaten you in any way over
the Union.
WE WILL NOT promise you any benefits in
order to convince you that you should not join
the Union or that you should quit the Union.
WE WILL NOT ask you to tell us about other
employees ' union activities.
WE WILL NOT discourage union activity or
membership in the Meat Cutter , Butcher and
Allied Food Workers, District Union 327,
affiliated with the Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO, or any other labor organization, by
discharging or otherwise discriminating against
any of you because you may choose to engage in
union activity.
WE WILL offer John Monroe Easley, Jr., and
Charles E. Martin immediate and full
reinstatement to their former or substantially
equivalent positions , without prejudice to their
seniority and other rights and privileges, and
will make each of them whole for any loss they
may have suffered by reason of their unlawful
discharge.
WE WILL respect the right of our employees
to self-organization , to form, join , or assist any
labor organization , or to bargain collectively in
respect to the terms or conditions of
employment through the above-named Union,
or any representative of their own choosing, or
to refrain from such activity , and we will not
interfere with , restrain , or coerce our employees
in the exercise of these rights. You and all our
employees are free to become members of any
labor organization or refrain from so doing.
THE GREAT ATLANTIC &
PACIFIC TEA COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee
if presently serving in the Armed Forces of the
901
United States of his right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended , 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.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office, T6042 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner : On charges filed
by the Meat Cutter , Butcher and Allied Food Workers,
District Union 327, affiliated with the Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board , herein called the
Board , on behalf of the Board by the Regional Director for
Region 15 on September 23, 1966, issued a complaint and
notice of hearing in which the Great Atlantic & Pacific Tea
Company, Inc., was named the Respondent . It was alleged
that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended , herein called the Act. The
Respondent filed timely answer denying that it had
engaged in or was engaging in the unfair labor practices
alleged.
Pursuant to due notice the case came on to be heard
before Trial Examiner Lowell Goerlich on November 21
and 22 , 1966 , at Hammond, Louisiana . Each party was
afforded full opportunity to be heard , to call , to examine
and cross -examine witnesses , to argue orally on the
record , to submit proposed findings of fact and
conclusions of law , and to file briefs. All briefs have been
reviewed and considered by me.
The principal issue before me is whether the
Respondent terminated the employment of John M.
Easley , Jr., and Charles E. Martin on July 8 and 9, 1966,
respectively, because of their membership in and
activities on behalf of the Union in violation of Section
8(a)(1) and (3) of the Act.
Upon the whole record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , the Great Atlantic & Pacific Tea
Company, Inc., is engaged in the business of operating a
chain of approximately 5,000 retail food stores and related
businesses throughout the United States and Canada from
which the Respondent has receipts from retail sales in
excess of $ 1 billion annually. The operations of the retail
food stores and related businesses are carried on by and
through the Great Atlantic & Pacific Tea Company, Inc.,
and various wholly owned subsidiaries , including, but not
299-352 0-70-58
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limited to, Great A & P Tea Co., a New Jersey corporation,
Great A & P Tea Co., an Arizona corporation, Great A & P
Tea Co., a Nevada corporation, and Great A & P Tea Co.,
Ltd., and others. In the operation of its chain of retail
stores, Respondent annually purchases meats, groceries,
produce, and other products valued in excess of $1 million
which it ships or causes to be shipped in interstate
commerce to its various warehouses and retail stores
throughout the United States and Canada.
As part of its chain of retail food stores, Respondent
maintains and operates a retail food store in Ponchatoula,
Louisiana, which is the only store directly involved in
these proceedings. In the operation of its Ponchatoula,
Louisiana, store, Respondent, during the preceding 12-
month period, which is representative of all times material
herein, had cash receipts from retail sales in excess of
$500,000.
Respondent is, and has been at all times- material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Maryland.'
Respondent admits and I find that the Respondent is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATION
Meat Cutter , Butcher and Allied Food Workers, District
Union 327, affiliated with the Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO,
herein referred to as the Union , is a labor organization
within the meaning of Section 2 (5) of the Act.2
III. THE UNFAIR LABOR PRACTICES
A. Incidents Occurring Prior to July 5,1965
The Respondent operates a typical supermarket at
Ponchatoula, Louisiana, composed of grocery, produce,
and meat departments. At all times material herein Store
Manager Adolph A. Davis and Assistant Store Manager
Charles M. Lloyd supervised the grocery and produce
departments. The meat department was under separate
supervision.
After a successful representation election on
January 13, 1966, the Union was certified on January 21,
1966, as the collective-bargaining agent of the
Respondent's employees for the unit covering the meat
department employees. Thereafter on April 27, 1966, the
Union and the Respondent executed a collective-
bargaining agreement covering the meat department
employees. Henry G. Arnold was the shop steward for the
meat department employees. The grocery and produce
department employees who constituted the remainder of
the Respondent's employees in the Ponchatoula store
were not represented by any labor organization.
During the period in which the events described herein
occurred the Respondent was accustomed to employ part-
i The foregoing facts are admitted in the Respondent's answer
to the complaint
2 The Respondent so admits in its answer filed to the
complaint
8 Davis admitted that he asked the question, "John, as a whole
what do you think about unions?" According to Davis, Easley
responded that " he thought [ unions ] were a real good thing "
4 As noted above the Union was certified as the bargaining
agent for the meat department employees prior to this
conversation.
time employees who were recruited from the local
Ponchatoula High School and were of high school age.
Among these employees was John Monroe Easley, Jr., age
17, who was hired on July 3, 1965, as a grocery clerk.
Easley was a Ponchatoula High School student in the 12th
grade.
In the latter part of March 1966, at the rear of the
Ponchatoula store near a trash disposal, Manager Davis
opened a conversation about the Union with Easley by
asking him what he thought about unions.3 A discussion
followed during which, according to Easley, Davis said
that there would probably be a man from the Union come
around the store to talk to the employees and that he
would probably tell them "a lot of lies" about what the
Union could accomplish for them. Davis added that "A &
P would take care of its own, if [the employees] would
stick with them." Easley also quoted Davis as stating that
if the employees stayed with the Employer they would
"probably get raises."
Later that same evening Davis testified that Easley
came to his office and "volunteered" to talk to him further
about unions. Easley told Davis that "he got to thinking
that unions were good for some things, but he didn't think
they would be good for a grocery department." Davis
agreed with Easley and said that he didn't believe that
unions would be "good for a grocery department."4
Easley testified that shortly after he had received a 10-
cent-an-hour wage increase , Davis mentioned the raise
and commented, "You see what the Company is doing for
you?" Easley replied, "That is mighty good." Davis added,
"From now on, don't take a ten-minute coffee break; take
a fifteen-minute one." Easley responded, "That's great."
Davis agreed that he had informed Easley of his 10-cent-
an-hour wage increase and at the same time commented
on the "real good shape" of the Ponchatoula store and how
"dirty and filthy" certain union -organized stores were.
Davis said, "It would be a shame to have the Union come
down here, and our store would look just like the ones I
stopped in up North, all dirty and filthy." Easley quoted
Davis as also saying, "As for money ... A & P will take
care of you."
The foregoing conversations occurred between March
and July 5, 1966.5
B. Incidents Occurring on July 5,1966
On the evening of July 5, 1966, while a number of part-
time employees of high school age6 were mopping the
store they "got talking about the Union." It was decided
that they wanted to hear the other side of the question
from Henry Arnold, "because he was a shop steward for
the Meat Department." As put by Easley, "we said we
would all go home and tell our parents we were going, and
we would meet at the Malt Shop and all go over to Henry's
house together." Of these employees, five, Easley, Martin,
Kinchen, Picou, and Ferrant appeared at Arnold's house
around 9 o'clock. Each signed an authorization card for the
Union.
5 In view of the lack of specific denials on the part of Davis as to
certain matters included in the conversations with Easley and in
view of the fact that Davis' statements as detailed by Easley fit the
pattern which evolved in the events which followed and upon the
basis of demeanor, I have credited the testimony of Easley in
respect to the above incidents where there is a substantial
variance between Easley's testimony and that of Davis.
8 These employees were Joe Jason, Allen Kinchen, Wayne
LeBourgeou, Darrell Picou, Eugene Ferrant , John Monroe Easley,
Jr , and Charles Martin.
GREAT A & P TEA CO.
C. Incidents Occurring on July 6,1966
Allen Kenneth Kinchen, age 18, was in the employment
of the Respondent at its Ponchatoula store from "about
May 1965 until September 1966."7 About 2 o'clock in the
afternoon on July 6, 1966, Assistant Manager Charles
Lloyd asked Kinchen such questions as "Allen, what did
you all talk about last night? Was you all talking about the
Union? Where did you all go last night?" Kinchen denied
"everything." Lloyd commented, "Some of the boys have
told me different."8 On three occasions during the
remainder of Kinchen's working day Lloyd pressed similar
questions.
Prior to Kinchen's encounter with Lloyd, Manager
Adolph Davis had asked him what was said while the boys
were mopping the preceding night and where they had
gone after they had left work. Kinchen denied that
anything had been said or that they had gone any place.
On July 6, 1966, Manager Davis asked employee Martin
to accompany him to the storeroom where he inquired
whether Martin had heard anything about the Union.
Martin answered, "No, sir." Davis remarked that, "he had
heard someone had been talking about the union the night
before while [the employees] were mopping." Martin said
that he had heard nothing. Lloyd appeared and Davis said
to him , "Charles says he hasn't heard anything, either. It
must have been Darrell Picou, or Eugene Ferrant
spreading the news around that night." Lloyd described
the "hard time" union employees were having in
Hammond , Louisiana. Davis then said that if anyone
talked to Martin about the Union or he heard anything
about the Union to tell him about it "because the Union
was one thing that they didn't want in that store." Davis
added that "Union" was one word that he didn't want
uttered in the store "because they were against it."9
D. Incidents Occurring on July 7,1966
On July 7, 1966, Lloyd continued his questioning of
Kinchen.10 Lloyd accused Kinchen of lying and told him
he had gone to Arnold's house and discussed the Union.
Kinchen continued his denials. Lloyd accused him of
being "a liar." Lloyd said that he knew that Kinchen was a
liar and that he knew'that he went to Arnold's house and
talked about the Union. Kinchen continued to deny
"everything." About 5:15 that evening Lloyd asked
Kinchen, "Allen, what would you do if you were fired or
laid off?" Kinchen replied, "I wouldn't know what I would
do, Charlie." Lloyd retorted, "Well, how come you won't
tell me what I want to know then?" Kinchen replied,
"Well, Charlie, I am not that low to tell on my buddies."
Then he said, "Charlie, I quit." Kinchen's pay was at once
figured out and he left. On his way out of the store Kinchen
r Findings of fact relating to incidents in which Kinchen was
involved are drawn from his uncontradicted testimony which I
credit.
8 Kmchen testified:
I said, "Charlie, I am not lying to you. We didn't talk about
nothing last night."
He said, "Where did you all go after you got off from
work?"
I said , "We went and got a coke and went home."
He said, "Are you sure?"
"Yes, sir "
"You all didn't go to nobody's house last night 9"
"No, sir."
The foregoing findings involving employee Martin are drawn
903
told Easley that Lloyd had given him a choice "to quit or
be fired" and that he had quit, "naturally."
Upon arriving home Kinchen's mother asked why he
had quit. He replied that he had "just got tired of being
pressured so much." His mother advised him to ask for his
job back whereupon Kinchen immediately left to locate
Lloyd whom he found with Assistant Superintendent
BoushielI at O'Johnny's Lounge and Pool Hall. Kinchen
waited until Boushie had departed and then he informed
Lloyd that he would like to talk to him. Upon the
suggestion of Lloyd both sat in Lloyd's car in front of
O'Johnny's Lounge and Pool Hall. Kinchen asked Lloyd
for his job back and said that he was sorry that he had
caused all "that trouble about the Union." Kinchen said
. if I can get my job back I'll tell you everything I know
about the Union, and you won't ever hear me talk about
the Union no more." Lloyd responded that he would try to
do his "best" for him but that he felt that it was already too
late since Kinchen's separation papers had already been
sent . Lloyd asked Kinchen who had visited Shop Steward
Arnold on July 5, 1966. Kinchen supplied Lloyd with the
names of Easley, Martin, Picou, and Ferrant. Upon Lloyd's
inquiry Kinchen told him what Arnold had said about the
Union. On parting Kinchen said that "if he could get his
job back they would never hear anything out of [him] no
more."
E. Incidents Occurring on July 8, 1966
On July 8, 1966, Kinchen went to the store at or about
10 a.m. and met Manager Davis in his office. He informed
Davis that he had quit. Davis asked him why he had quit
and Kinchen explained that Lloyd had given him the
choice "to quit or be fired." Kinchen added that he
"realized that if [he] would have told him about the Union
that [he] could have stayed at work, but [he] didn't tell
him." Kinchen said that he wanted his job back and that
he would "tell him everything [he] knew about the Union
to get [his] job back." He then told Davis the same thing
that he had told Lloyd the previous night. He related that
he, Ferrant, Martin, Easley, and Picou had signed union
cards at Arnold's house. Lloyd appeared and Kinchen
asked him if he could get his job back. Lloyd answered "I
don't know. We might can, if we still have the papers,
resignation papers." The resignation papers were found
and Davis said that since Kinchen had been honest enough
to tell the truth and tell him about the Union and
"everything" that he would give him his job back. Davis
instructed Kinchen to- report the following Monday for
work. Kinchen received no pay for Friday and Saturday,
January 9 and 10, 1966.12
When employee Easley arrived at the store on July 8,
1966, he "commenced to bag." After about a half an hour
from Martin's uncontradicted and credited testimony.
10 Lloyd asked such questions as "Did John Easley go? Did
Charles go9 Did Eugene go? What did they promise you?"
11 Boushie was in charge of the grocery departments in 11 or
more of the Respondent's stores. Manager Davis was responsible
to him directly
i2 While both Lloyd and Davis testified, neither denied
Kinchen's testimony. Davis said that Kinchen did not "actually"
quit. Davis testified, " . . him and my assistant had some kind of
disagreement Thursday, and the boy come in and talked to me
Friday morning, and we hadn't sent any termination papers in, so
he wanted his job back, so . I told him that morning. . during
our conversation to take Friday and Saturday off, and to come
back Monday "
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis told him "to put up stock." About a half an hour
later Lloyd ordered him "to go up front and-bag" even
though Easley told Lloyd he had been sent to put up stock
by Davis. Davis saw him bagging and inquired why he was
not putting up stock. Easley said that he had been sent to
bag by Lloyd. Davis said that he did not want Easley to bag
and sent him to help Lloyd unload a truck that had dust
arrived. Easley reported to Lloyd who said he did not want
his help even though Davis had sent him. Lloyd ordered
Easley to put up stock. While Easley was putting up stock
Davis directed him to watch a Coca-Cola truck which had
just arrived and "keep track of how many fulls and
empties he was bringing in and taking out." Easley
"watched the coke man" for about 20 minutes when Lloyd
passed. Shortly thereafter he received a message through
another employee that he was to check. Easley was
relieved by the other employee and proceeded to the office
where Lloyd said he had not sent the message and put
Easley to bagging . Easley continued at this job until the
store closed at 6 o'clock. Thereupon Easley put up stock
for about 30 minutes when Lloyd directed him to take care
of the Coke bottles, a job which Kinchen had usually
performed. 13
According to Lloyd, Easley lacked diligence in the
accomplishment of the Coke-bottling job. As a result Lloyd
reminded Easley that he should speed up. Later Lloyd
observed Easley again "in slow motion" and called to him
from a distance of about 60 or 70 feet, "John, come on,
let's get a little pace going . We are about through, and you
haven't even gotten good and started." Easley stopped and
looked toward Lloyd; Lloyd shouted, "Well, Allen could
do that in about 30 minutes." Easley replied, "Well, if you
want Allen to do it, g- d- it, get Allen to do it." 14 Lloyd
retorted, "Ok, John, we'll get Allen to do it. Go punch
out." Lloyd testified that he discharged Easley because
"he cussed [him] out." Davis witnessed the incident and
testified that he told Lloyd at the time that he would have
done the same thing, under the same circumstances, and
that "he just beat [him] to it." Lloyd admitted that at the
time he discharged Easley he knew of Easley's association
with the Union.
Easley said that he answered Lloyd sharply because he
had been yelling at him and he had been pushing him all
day long and "had different ones that favored the
Company, my friends not to speak to [him] and treat
[him] like an outcast...."
According to Lloyd, he did not believe that he would
have discharged Easley "if he hadn't cussed [him] out."15
Lloyd testified that a few of the Respondent's high
school boy employees were "dirty mouthed" and that "just
about all of them at one time slip." Lloyd testified that
there exists to a certain extent "this disciplinary problem
anytime you have a bunch of boys like that working."
Lloyd explained that because of the few years' difference
between his age (22 years) and that of the high school boys,
19 Easley testified that it was unusual for him to have been
assigned so many different tasks in one day Easley testified,
"They usually don't assign them to me . I come in , and I know
what needs to be done , and I go about doing it."
14 Easley's version was substantially the same except that he
denied that he had said , "g-d-."
is On cross -examination Lloyd testified that he fired Easley
because he cussed him by saying , "g- d- it, get Allen to do it "
A question was put , "So he really didn ' t cuss you . 9" Lloyd
answered , "Well, I interpreted it as he was cussing "
is While Boushie testified , he did not deny Mrs Ferrant's
testimony
sometimes the boys forgot that he was the boss.
Nevertheless, Lloyd said that he maintained friendly
relations with the boys. On these occasions, when the boys
caused difficulty, he said that he "cracked down" on
them. Lloyd defined "cracked down" to mean "you crack
down, and he realizes your still boss." Lloyd had never
discharged a high school boy prior to the discharge of
Easley for "cussing." Lloyd said that in cracking down on
a boy he is made to realize that you are "his friend, but you
are his boss."
On July 8 or 9 Glenda Borque was approached by
Manager Davis and asked whether she had heard anything
about the Union trying to organize the store. Borque
replied that she heard that the Union was trying to come in
for the checkers and baggers. Davis also inquired as to
what she "thought" about the Union and whether she
thought it had a "chance of coming in." She responded
that she had no opinion on the Union and whether it had a
chance of succeeding "depended on how people voted on
it."
Shortly after July 5, 1966, Ruth Ferrant, a meatwrapper
and the mother of employee Eugene Ferrant, testified that
Assistant Superintendent Boushie told her that he had a
bone to pick with her. After several futile attempts to
persuade him to elucidate, she finally said, "Mr. Boushie,
I want to know is it anything concerning my son signing
the Union card?" Boushie answered, "Yes. It is." Mrs.
Ferrant then detailed why her son signed the card. 16
On July 8, 1966, while employee Martin was waiting to
punch in, Davis, passing on several occasions, said that he
hated a dirty liar and "felt like one of his friends was
stabbing him in the back with a knife, and twisting it
around and around." Employees Hollis Gassen and Easley
and Assistant Manager Lloyd were within earshot. 17
A representation petition was filed by the Union on
July 8,1966.
F. Incidents Occurring on July 9,1966
On the night of July 9, 1966, Manager Davis informed
employee Martin that he was "letting" him go in that he
had too much help. 1e
G. The 8(a)(1) Violations
The interrogations, above described, directed to
employees Easley, Martin, Kinchen,19 and Borque
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed by Section 7 of the Act.
These interrogations clearly served no legitimate employer
purpose but were utilized for the purpose of acquiring
information most useful for discrimination and to prime
the employer with knowledge by which it could more
successfully combat the Union's organizational campaign.
The interrogations were of such character as to restrain
employees in the exercise of their rights guaranteed by the
i7 These findings are drawn from the uncontradicted and
credited testimony of Martin.
is Martin was returned to work on August 27, 1966. While
Martin had been in the employment of the Respondent, he had
never been reprimanded
is The Board has said in Abex Corporation- Engineered
Products Diviston, 162 NLRB 328, " . interrogation which seeks
to place an employee in the position of acting as an informer
regarding the union activity of his fellow employees is coercive."
GREAT A & P TEA CO.
Act and were unlawful. Charlotte Union Bus Station, Inc.,
135 NLRB 228, 229; Mallory Plastics Company, 149
NLRB 1649; The Rushton Company, 158 NLRB 1730. I
find that the Respondent's use of such interrogations was
in violation of Section 8(a)(1) of the Act.
The harassment of Kinchen by the Respondent which
culminated in his forced quitting and his return to
employment conditioned on his repudiation of the Union
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed by Section 7 of the Act.
I find that such conduct was in violation of Section 8(a)(1)
of the Act.
The following conduct of Davis occurring in the setting
chosen had the coercive tendency to induce Easley to
avoid affiliation with the Union and to dissuade him from
participation in activities connected with the Union and
was in violation of Section 8(a)(1) of the Act: (1) Davis'
promise to Easley that the Respondent would take care of
its own if the employees would "stick" with it, and that the
employees would probably receive raises; (2) Davis'
implied threat that the Union would not be good for the
grocery department; (3) Davis' representation to Easley
that the 10-cent-an-hour raise was an example of a benefit
which the Respondent had bestowed on Easley without the
intervention of a union; (4) Davis' grant to Easley of a 15-
minute break under circumstances which implied that
such benefit was given as a fulfillment of Davis' prior
promise that the Respondent would take care of its own if
its own would "stick" with it and reject the Union; and
(5) Davis' promise to Easley in the context of a union
discussion that "as for money, A & P will take care of
you.,,
Davis' instruction to Martin to tell him if he heard
anything about the Union because "the Union was one
thing that they didn't want in the store," Davis' statement
to Martin that union was a word they didn't want said in
the store "because they were against it," Davis' remark
directed toward Martin in the hearing of other employees
that he hated a dirty liar and "felt like one of his friends
was stabbing him in the back with a knife, and twisting it
around and around," were likewise violations of Section
8(a)(1) of the Act in that such conduct interfered with,
restrained, and coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act.
H. The Discharge of John Monroe Easley, Jr.
As noted above, John Monroe Easley, Jr., was a lad of
17, a Ponchatoula High School student in the 12th grade.
His conduct had not been subject to censure until the
incident described above occurred on July 8, 1966. At that
time he retorted to a remark of Assistant Manager Lloyd in
a manner which caused Lloyd to order him to punch out.
Manager Davis, who heard and saw the incident,
concurred in the discharge and observed that he would
have discharged Easley had Lloyd not spoken first.
The testimony is conflicting as to whether Easley said
"G- d-." If he did not use the term "G- d- " Lloyd's
basis for discharging him is unsupported by fact. However,
the ultimate question before me is not whether Easley
used the words "G- d-" but, rather, assuming arguendo
that the words were uttered, was the use of these words
the "real reason" for the discharge of Easley. The
Supreme Court teaches that it is the "real motive" of the
20 It has been said in N L R B. v Longhorn Transfer Service,
Inc , 346 F 2d 1003, 1006 (C.A 5), "We have repeatedly held that
905
employer which is decisive in resolving an 8(a)(3) violation
of the Act. N.L.R.B. V. Brown, d/b/a Brown Food Store, 380
U.S. 278, 287. Moreover, even though a lawful cause for
discharge is available, it is no "defense where the
employee is actually discharged because of his union
activities." N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847
(C.A. 8).20 If Lloyd is to be believed, the "real reason" for
his discharging Easley was that "he cussed the Assistant
Manager." However, Lloyd conceded that what Easley
said did not really constitute a "cussing" of the assistant
manager but such was his interpretation. Thus Lloyd by
his testimony cast some doubt as to whether the alleged
"cussing out" was the "real motive" for Easley's
discharge.
I am convinced that the "real motive" for which Easley
was discharged was his union activities and that the
incident relied on by Lloyd and Davis was used as a
convenient pretext to shroud the true reason for the
discharge.
Easley was one of the active union participants who
appeared at Shop Steward Arnold's house on July 5, 1966,
and signed a union authorization card. He also was with
the group who while mopping in the store expressed a
desire to learn the other side of the union question.
Easley's discharge followed closely on the Respondent's
learning that Easley was associated with the Union. No
other high school boy had been discharged for profane
remarks although there was frequent use of profanity
among the high school boys. These "slips" were
customarily treated with understanding and tolerance.
"Cracking down" had been the usual remedy, not
discharge.
It is further significant that Easley had been subjected
to harassing treatment throughout the day of his discharge
and that by the use of Kinchen's name in the remark which
caused Easley's retort, Lloyd was undoubtedly
anticipating that Easley knew of the Kinchen incident.
Lloyd's remark was the kind of goading which was likely to
provoke a sharp retort from a youngster of high school age.
Furthermore, the Respondent's treatment of Kinchen
manifested a strong resolution to cause the separation
from employment of union adherents. To destroy union
affection the Respondent was willing to resort to unfair
labor practices. Thus there is no basis in the record for
drawing the conclusion that union considerations were not
a motivating cause for Easley's discharge. The "real
reason" behind Easley's discharge was not that he
"cussed out" Lloyd; the "real motive" for discharging
Easley was to "discourage membership" in the Union and
to interfere with employees' rights of self-organization and
to form or assist labor organizations. The incident cited as
cause for Easley's discharge was clearly a pretext seized
upon by the Respondent to rid the Employer's
establishment of a strong union advocate as well as to
drive home to its employees that like consequences would
befall other employees if they remained partisans of the
Union. I find that the discharge of Easley was
discriminatory and was in violation of Section 8(a)(3) of the
Act.
1. The Discharge of Charles E. Martin
It is the position of the Respondent that Charles E.
Martin , age 17, was terminated because it was necessary
`if the discharge is because of union activity it is a violation of the
Act even though a valid ground for dismissal might exist ".
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reduce help21 in order to accommodate the need for an
increase in the pound average22 of the Ponchatoula store
and that "Martin was selected for termination because, of
the several part-time clerks hired at or about the end of the
school year, he was the least satisfactory." The General
Counsel contends that the "Respondent's real motive in
discharging Martin was Martin's union activities and that
economic reduction in force played no part in
Respondent's motivation... .
At the time of Martin's separation from employment
nothing was said to him about the possibility of future
employment. He was reemployed on August 27, 1966, and
according to Davis thereafter proved to be one of his
"better employees." Prior to Martin's recall the
Respondent had employed new employee Gary Van Pram
on August 18, 1966. Davis said that he had reemployed
Martin because he had got "wind that the Labor Board
had filed suit" and because he thought "maybe he had
learned a lesson."
Subsequent to Martin' s initial employment on May 27,
1966, the Respondent had employed James Baham, John
Jarrell, and Wayne Thompson on June 10, 1966, and Glen
Simon on June 24, 1966. These employees were not
terminated. At the time of his discharge Martin was
working 30 hours a week.
Davis testified that he preferred Thompson over Martin
because he had previous experience at another grocery
store. Jarrell was chosen to continue because "he worked
in the produce department." Baham was retained because
his work was superior to that of Martin. Davis did not
explain the reason for retaining Glen Simon. In respect to
Martin he was "the least man." According to Davis he
spoke to Martin four or five times a week about his
unsatisfactory work habits. Martin was not warned that
continued dissatisfaction with his work would result in his
discharge.23 Davis noted that ". . . all the part-time boys
generally come in on Wednesday, and you have got to keep
right behind each one of them, if you are going to get a job
properly done, and that is what I tried to do."
The decision to discharge Martin was made on or about
June 15, 1966. Davis testified:
We had decided that about a week and a half before
the big week that Mr. Boushie had been talking about,
the big week prior to the 4th of July. We knew we
were going to have to cut some help, or cut some
hours, and instead of just cutting hours down again, I
just decided I would cut Mr. Martin out completely.
[Emphasis supplied.]
Heretofore it had not been the practice to cut an
employee "out completely" but to reduce the number of
hours to achieve an improved pound average.24 Assistant
21 Martin credibly testified that he was told by Manager Davis
on July 9, 1966, that he was "letting [him] go because he had too
much help."
22 Assistant Superintendent Boushie defined pounds as
follows-
Pounds is a term used to define somewhat the expense rate
regarding Clerks It is derived simply by dividing the number
of hours used in any one particular week into the sales for
that week, thereby arriving at the sale per employee hour.
Then in turn that is divided by the current rate of
commodity per pound, which presently is approximately 27
plus cents.
To illustrate an example, I might use a 1,000 hours into
$27,000, would be $27 per man hour That divided by 27 cents
per pound would give us 100 pounds.
Boushie said that the Ponchatoula store goal was 110 pounds
For example, if the hours utilized in the above example had been
Superintendent Boushie explained that the "on" weeks
(such as the "big week" prior to the Fourth of July) and the
"off" weeks were adjusted by a reduction of the hours of
part-time help.25 Such adjustment was left to the
discretion of the respective store manager . While Boushie
gave no specific instructions to Davis to lay off employees
during the period around July 4, 1966, he did advise Davis
to whittle part-time hours. Prior to June 15, the date upon
which Davis decided to terminate Martin, Davis had
received a written communication from Boushie dated
June 11, 1966, stating, among other things, that the
Ponchatoula store's pound average was "BAD."26 For
"Immediate Action" Boushie stressed, " It is apparent that
due to school being out flagrant use of hours is occurring.
This must be controlled immediately!!" Nevertheless,
Davis continued in employment the three boys hired on
June 10, 1966, and hired another boy on June 24, 1966.
Thus it is clear that Davis did not respond to Boushie's
request by laying off employees. Hence the termination of
Martin rather than the reduction of hours seems
incongruous in the light of the Respondent's past practice
and Davis' actions.
Davis' reason given to Martin that he was "letting [him]
go because he had too much help" does not have a
convincing ring. In order to discourage union activities the
Respondent had forced the quitting of Kinchen and had
discharged Easley. Through Kinchen's capitulation, the
Respondent was aware of Martin's union act:,iities. After
Davis' alleged resolution to terminate Martin but before
his union activities were known to him, Davis hired an
additional employee. Moreover, Davis did not inform
Martin of his termination until 15 minutes before he was
separated from employment,27 which separation followed
closely on Davis' learning of Martin's union activities.
Davis completed Martin's termination, although, after the
decision was made to reduce force by one and before
Martin was terminated, the work force was reduced by one
employee with the discharge of Easley. Furthermore, in
the face of an alleged need to reduce force, Kinchen, who
had disclosed other employees' union activities, was
reinstated. With the exception of Martin, before and after
his termination, hours were reduced without a reduction in
force. (For example, when the grocery hours were reduced
from 858 hours for the week ending June 11 to 807 hours
for the week ending June 18 no employees were laid off,
although the reduction in hours was greater than the 30
hours a week worked by Martin. Indeed three new
employees were hired on June 10, 1966. When the grocery
hours were reduced from 848 hours for the week ending
July 16 to 805 hours for the week ending July 23 no
employees were laid off.) Martin's return to work after he
reduced to approximately 905 hours the pound average of 110
would have been reached
42 Martin testified that he had never received a reprimand from
the Respondent
24 Davis testified that the usual way "this-off-week sort of
thing" was handled was "to reduce everybody's hours until you
have an on week and then you pick back up."
25 Boushie testified , "Our first recourse to adjust , . . is to
reduce part-time hours."
26 Davis received somewhat similar communications from
Boushie dated June 23 and 26 and July 19 and 27,1966 In that the
alleged decision to terminate Martin was made on or about
June 15 , 1966, I deem these communications immaterial as part of
the Respondent's motive on June 15, 1966
17 When Davis was asked if there was a reason Martin had not
been previously notified, Davis said, "Well, there wasn't no
reason why I didn't. I just didn't tell him."
GREAT A & P TEA CO.
"had learned a lesson ` 211 is not unlike the experience of
Kinchen who was reinstated after he was "honest enough
to tell the truth" about the Union. Martin's termination
was in line with the Respondent's purpose "to learn" these
high school boys the consequences of associating with the
Union. All these things as well as the entire record
convince me that Martin was selected for termination
because of his association with the Union. I find that the
Respondent's termination of Martin on July 9, 1966, was
discriminatory and was in violation of Section 8(a)(1) and
(3) of the Act. The Respondent's real motive in terminating
Martin was to discourage membership in a labor
organization.29
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship 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
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.30
It having been found that the Respondent unlawfully
discharged John Monroe Easley, Jr., on July 8, 1966, and
unlawfully terminated Charles E. Martin from
employment on July 9, 1966, and thereby violated Section
8(a)(3) and (1) of the Act, it is recommended that the
Respondent remedy such unlawful conduct. It is
recommended in accordance with Board policy31 that the
Respondent offer to John Monroe Easley, Jr., and Charles
E. Martin immediate and full reinstatement to their former
or substantially equivalent positions and without prejudice
to their seniority or other rights and privileges and make
them whole for any loss of earnings they may have
suffered as a result of the discrimination against them, by
payment to them of a sum of money equal to the amount
they would have earned from the date of their
discriminatory discharges to the date of an offer of
reinstatement' 32 less net earnings during said periods to
be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and shall include interest at the rate of 6
39 Since Martin was not told when he was terminated that his
work was unsatisfactory, it would appear that the lesson Davis
sought to teach by Martin's termination related not to Martin's
work habits but to the union activities which the Respondent
sought to stifle.
E9 I conclude in respect to the Respondent's motives for the
discharge of Easley and the termination of Martin have been
reached without consideration of the testimony of Henry G.
Arnold in which he attributed to Lloyd the statement. "I got one.
Got another one Makes two. That's two down, and we've got
three to go " Nevertheless, Lloyd impressed me as a person who
under the circumstances would make a statement of such
character.
30 In formulating my recommended remedy I am not unmindful
of the fact that the unfair labor practices herein found may not be
attributed entirely to the zeal of the local store management for
during the period in which the unfair labor practices were
907
percent per annum, to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
There is special concern for the discriminatees in this
case since they are juveniles.33 At the threshold of their
confrontation with the realities of work for pay, they and
other juveniles were subjected to experiences which may
indelibly mark their attitudes toward the economy in
which they live. These schoolboys should not be suffered
to grow into manhood with the idea that it is the law that an
employer may suppress (as was done in this case) his
employees' efforts to gain improvements in their working
conditions through the collective action protected by the
National Labor Relations Act, as amended. The remedial
objectives of the Act contemplate that the scars left by the
experiences of the juveniles be effaced. It would be most
unfortunate if these boys looked on our democratic
economy as a sea of oppression rather than a sea of
opportunity for self-attainment and achievement.
While the posting of the recommended notice herein at
the Respondent's premises will suffice to some extent to
dissipate the effects of the Respondent's unlawful acts
visited upon these juvenile employees, it will not obviously
reach-those who have left the Respondent's employment.
To provide a remedy in this respect I recommend that
each employee or ex-employee on the Respondent's
payroll at the Ponchatoula, Louisiana, store between
July 5, 1966, and the date of the Respondent's compliance
with the Recommended Order herein be mailed a copy of
the attached notice marked "Appendix" at the
Respondent's expense.34
As noted above, no sooner had the Respondent's
employees commenced to organize themselves into the
Union than the Respondent resorted to unfair labor
practices to discourage and stifle union organization.35
Had the Respondent complied with the law, it is probable
that the question of representation would have long past
been submitted through the Board's procedure with the
chance that collective bargaining may have become a
reality. Moreover, had the employees been able to muster
a majority for the Union in the face of the Respondent's
unfair labor practices, under the facts of this case, the
remedy herein would have been an order to bargain. But
the Respondent nipped the employees' organizational
efforts in the bud and thus the practice and procedures of
collective bargaining could not be put to the test.
As was stated in International Broadcasting
Corporation (KWKH), 99 NLRB 130,133:
It was the duty of the Respondent to refrain from
disturbing the status quo by coercive conduct pending
the resolution of the representation question, and to
committed Assistant Superintendent Boushie was present in the
vicinity and was seen in the presence of Assistant Manager Lloyd.
He appeared at the store and "picked a bone" with employee
Ruth Ferrant over her son's association with the Union.
31 See Rushton Company, 158 NLRB 1730, In 2
31 If Martin was restored to his former or a substantially
equivalent position on August 27, 1966, the backpay
recommended for him shall cease on such date
33 The State is parens patria for its children Kent v United
States, 383 U S.541,554.
31 Cf. The Great Atlantic & Pacific Tea Company, Inc., 134
NLRB 458.
35 "Obviously the discharge of a leading union advocate is a
most effective method of undermining a union organizational
effort." N.L.R B v Longhorn Transfer Service, 346 F.2d 1003,
1006 (C A. 5).
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permit the Union to have a free opportunity to
increase and retain its membership by legitimate
organizational activity and to participate in a free and
uncoerced election, which would determine whether
or not it was the statutory representative....
Legitimate recourse to the electoral processes of the
Board unhampered by an employer's unlawful
interference is a powerful impetus to the growth of union
adherence. But here the Respondent destroyed an
environment conducive to a free choice. It used its store as
a locus for the perpetration of its unfair labor practices and
thus created an environment pervading its store which
continues as a cogent reminder of these events. For
example Davis warned employee Martin that "Union" was
the one word he didn't want uttered in the store. Hence in
order to dissipate the effects of the Respondent's unfair
labor practices, a new environment must be created
wherein the employees may enjoy a free and untrammeled
reception of union facts. It must be made known to the
Respondent's employees that the Respondent's premises
are free from any unlawful restrictions relating to union
discourse or association. Thus to dispel the fear which has
been engendered in the Respondent's employees while
present on the Respondent's premises and in order that it
may be demonstrated that the Respondent's premises are
safe for lawful union activities and to counteract the
imbalance created by the Respondent's unfair labor
practices, I recommend that for a period of 60 days after
the Respondent has posted the notice marked "Appendix"
Respondent shall permit the Union and its
representatives, upon reasonable request, freely to solicit
union authorizations and conduct union organizational
meetings of the Respondent's nonsupervisory employees
in the grocery and produce departments on the
Respondent's Ponchatoula, Louisiana, store premises,
during the employees' nonworking time, if such activity is
confined to nonselling areas and does not interfere with
the normal operations of the Respondent's business.
It is further recommended that upon request of the
Union made within 1 month from the date of compliance
with the Recommended Order herein, the Respondent
immediately grant the Union and its representatives
reasonable access for a 3-month period to its bulletin
boards and all places where notices to employees are
customarily posted. (See H. W. Elson Bottling Company,
155 NLRB 674.)
As for employee Allen Kenneth Kinchen, had he not
been the victim of the Respondent's unfair labor practices
he would not have lost 2 days' work. In remedying the
8(a)(1) violations thrust upon him it is recommended that
he be paid the wages he lost for the 2 days in accordance
with the Board's customary formula noted above.36
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By unlawfully discharging John Monroe Easley, Jr.,
on July 8, 1966, and by unlawfully separating Charles E.
Martin from employment on July 9, 1966, the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act.
4. By causing the forced quitting of Allen Kenneth
Kinchen on July 7, 1966, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. By interfering with , restraining , and coercing its
employees in the exercise of their rights guaranteed them
by Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
36 In Plastic Applicators, Inc., 150 NLRB 123, the Board
ordered reinstatement and backpay as a remedy for 8(a)(1)
violations.