The Great Atlantic & Pacific Tea Co.

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The Great Atlantic & Pacific Tea Company, Inc. and Retail, Wholesale and Department Store Union , AFL-CIO. Case No. 10-CA-4026. Februanj 25, 1960 DECISION AND ORDER On October 6, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Intermediate Report with a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Chairman Leedom and Members Bean and Jenkins.] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner? ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 'No exceptions were filed to the Trial Examiner 's finding that the General Counsel failed to sustain his burden of proving that Respondent discriminated against Com- plainant Field Consequently, we adopt this finding The Respondent has excepted to the Trial Examiner's credibility findings As it is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility except where, as is not the case here, the clear preponderance of all the relevant evidence convinces it that the resolutions were incorrect, we find no ba:s,s for disturbing the Trial Examiner's credibility findings. Standard Di,j Wall Products, Inc., 91 NLRB 544 enfd 188 F 2d 362 (C A 3) 3 Contrary to the Respondent, we find insufficient reason for denying reinstatement to Complainant Kirby in the Huffstetler incident occurring prior to his discharge, wli.ch is reported in the Intermediate Report. 126 NLRB No. 102. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 821 Relations Board hereby orders that the Respondent, The Great At- lantic & Pacific Tea Company, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Retail, Wholesale and Depart- ment Store Union, AFL-CIO, or any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees concerning their interests in, and in- tentions with respect to joining, the above-named or any other labor organization, in a manner constituting interference, restraint, or coercion violative of Section 8(a) (1) of the Act. (c) Informing employees not to mention the Union to employees at any time, that they could not work for the Union and the Company at the same time, that the Company will fight the Union, and that the Company will not recognize the Union even if it won a Board- conducted election. (d) Threatening employees with discharge or other economic re- prisals for their union activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Bill Kirby immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its stores located in the city of Knoxville, Tennessee, and the communities of Alcoa and Oak Ridge, Tennessee, copies of 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the notice attached hereto marked "Appendix A."' Copies of such notice, to be supplied by the Regional Director for the Tenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon the receipt thereof, and 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 to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the aforementioned Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondent violated Section 8 (a) (1) , (3), and (4) of the Act by its treatment and discharge of Bonnie K. Field. 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 "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organiza- tion, by discharging or refusing to reinstate any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their interests in, and intentions with respect to joining, the above-named or any other labor organization, in a manner constituting interference, restraint, or coercion violative of Section 8(a) (1) of the Act. WE WILL NOT inform our employees not to mention the above- named Union to employees at any time or that they should not Work for said Union and the Company at the same time, or that the Company will fight said Union, or that the Company will not recognize said Union even if it won a Board-conducted election. WE WILL NOT threaten our employees with discharge or other economic reprisals for their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the above- named or any other labor organization, to bargain collectively THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 823 through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement authorized in Section 8 (a) (3) of the Act, as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. WE, WILL offer to Bill Kirby immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from be- coming or remaining, members of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Retail, Wholesale and Department Store Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint, dated May 8, 1959, against The Great Atlantic & Pacific Tea Com- pany, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent (1) engaged in specified acts of interference, restraint, and coercion; (2) discharged employee Bill Kirby on or about October 20, 1958, and thereafter refused to reemploy him because of his union and concerted activities; (3) refused to grant full-time employment status and a wage increase to employee Bonnie K. Field, discharged her on or about December 4, 1958, and thereafter refused to reemploy her, all because of her union and concerted activities and because she gave testimony under the Act; and (4) by the foregoing conduct has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its duly filed answer, Respondent admits the jurisdictional allegations and the discharge of employees Kirby and Field but generally denies all unfair labor practice allegations. Pursuant to due notice, a hearing was held on July 14, 1959, at Knoxville, Tennessee. The General Counsel and the Respondent were represented at the hearing. All parties were afforded full opportunity to be heard , to examine and cross-examine witnesses , to introduce relevant evidence , to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. Respondent's motion to dismiss the complaint, made before the close of the hearing and upon which I reserved ruling, is denied in part 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and granted in part, in accordance with the findings and conclusions made below. After the close of the hearing, the General Counsel and the Respondent filed briefs, which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Arizona corporation engaged in the operation of retail grocery stores in various States throughout the United States, including the State of Tennessee. During the 12 months preceding the date of the complaint, which period is repre- sentative of all times material herein, the Respondent, in connection with its opera- tions in the State of Tennessee, purchased and received goods, valued in excess of $1,000,000, directly from suppliers located outside the State of Tennessee. Upon the above-admitted facts, I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find, that Retail, Wholesale and Department Store Union, A51-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issues in this proceeding are whether Respondent (1) unlawfully discriminated with respect to the hire, tenure, and terms of employment of Bill Kirby and Bonnie K. Field, and (2) engaged in certain specified acts of interference, restraint, and coercion. As much of the testimony bearing on these issues is directly in dispute, the resolution of the credibility of the witnesses will have an important bearing on the determination of these issues. A. Prior pertinent proceedings Pursuant to a representation petition filed by the Union on July 3, 1957, the Board issued a Decision and Direction of Election on November 25, 1957, in Case No. 10-RC-3909,1 directing that an election be held on December 11, 1957, among the Respondent's employees in nine stores located in the city of Knoxville, Tennessee, and in the communities of Alcoa and Oak Ridge, Tennessee. On March 21, 1958, the Board issued a Second Direction of Election, scheduling the election for April 9, 1958. Of the 163 ballots cast in the election held on that date, 76 were for the Union, 82 for no labor organization, and 5 ballots were challenged. On or about April 14, 1958, the Union filed timely objections to the conduct of the election and on October 4, 1958, the Board directed that a hearing be held on certain of these objections. Meanwhile, on September 11, 1958, the General Counsel issued a complaint, alleging that Respondent had engaged in unfair labor practices violative of Section 8(a)(1), (3), and (4) of the Act. Thereafter, the unfair labor practice proceeding was consolidated with the hearing on objections, and a single hearing was held before Trial Examiner Wheatley in Knoxville, Tennessee, on November 18, 19, and 20, 1958. On August 5, 1959, the Board issued its Decision in this consolidated proceeding,2 finding that Respondent violated Section 8 (a) (1) of the Act by threats of economic reprisals and unlawful interrogation engaged in by Store Managers Jarnigan, Whit- ley, Bishop, and Huffstetler, and dismissing the allegations of discriminatory dis- charges in violation of Section 2(a) (3) and (4) of the Act. In addition to the usual order based on such findings, the Board ordered that the election be set aside and that a new election be conducted at such time as the Regional Director "deems that circumstances permit the free choice of a bargaining representative." B. Discrimination in employment 1. Bill Kirby a. Kirby's union activities • When the Union began its organizational campaign in the summer of 1957, Kirby had been employed in Respondent's Alcoa store in the produce and stock depart- 1119 NLRB 603. 2 124 NLRB 329. THE GREAT ATLANTIC & PACIFIC TEA COMPANY) INC. 825 ments for about 2 years. He immediately became active on behalf of the Union, and during the lunch period and in the evenings solicited the store employees to sign union authorization cards. He attended all union meetings, testified for the Union at the representation hearing held in Atlanta, Georgia, on August 8, 1957, and acted as an observer for the Union in the Board-conducted election on April 9, 1958. Kirby continued his union interests and activities after the election. He had made no secret of his union activities and interests, and Hubert Huffstetler, manager of the Alcoa store, was well aware of them. b. Relevant events preceding Kirby's discharge (1) At the Alcoa store On Saturday, September 20, 1958, Kirby refused to sign the 6-month work progress report prepared by Manager Huffstetler because of his belief that he merited a better report. Huffstetler reported the matter to Area Supervisor Davis, when the latter visited the Alcoa store the following Tuesday, September 23. Davis discussed the matter with Kirby, in Huffstetler's presence. In response to Davis' query, Kirby stated his reason for not signing the report and explained that he felt that in downgrading him on some of the factors Huffstetler was discriminating against him because of his activities on behalf of the Union.3 Davis asked Kirby why he was for the Union. Kirby replied that he had studied unionism in school, that he lived in a union town, and that he was raised by a union family. Davis also asked if Kirby would join the Union if it got in. Kirby answered that he would be one of the first to join. Davis then stated, "Well, the Union can't do a thing for you and you can't work for the Company and the Union at the same time." Kirby replied that he felt that he could. When Davis stated that he could work with a union or without a union and that it did not make any difference to him, Kirby then asked if that was his attitude "why was he fighting the Union so?" Davis replied that "we have not even began to fight this union yet" and that they would not recognize the Union even if it got voted in. The conversation ended with Davis stating that he did not like Kirby's "attitude" and that he was going to transfer Kirby to another store. Davis asked Kirby if he would prefer to go to the Knoxville store or to the Oak Ridge store. Kirby replied that he would prefer the Knoxville store because it was nearer to his home. The conversation lasted about 30 minutes.4 (2) At the Oak Ridge store Despite Kirby's expressed preference for the Knoxville store, he was informed at the end of the week that Davis had ordered his transfer to the Oak Ridge store, 9 Kirby's feeling in this regard is understandable in view of Huffstetler's prior un- successful efforts to persuade Kirby to drop his activities on behalf of the Union and Huffstetler's threat that if the Union won the election Kirby's "two raises a year" would not be forthcoming, as found by the Board in the unfair labor practice proceeding, supra. 4 The findings as to this conversation are based on the credible testimony of Bill Kirby Contrary to Respondent's erroneous assertions in its brief, Kirby's testimony in this proceeding is neither inconsistent nor in conflict with his testimony given in November 1958 in the prior unfair labor practice hearing In the prior hearing Kirby was not questioned, and consequently did not testify, about any of the conversations concerning which he testified at the hearing in the instant case Davis testified that he did not get into any discussion about the Union and denied having made the statements about the Union hereinabove set forth. He admitted, how- ever, that he told Kirby "he couldn't work for the Union in our store, on our time." If there had been no discussion about the Union or Kirby's union activities, there would have been no occasion for making such a statement Davis further testified that he said he felt there was ill feeling between Kirby and Huffstetler and that Kirby might be transferred to another store, without mentioning any particular store Huffstetler merely denied that Davis asked Kirby anything about joining the Union. He did not give any direct answer to corroborate Davis' denials about having made the statements concerning the Union, as set forth in the text. On cross-examination, he testified that he did not "remember" whether Davis said anything else about the Union. Both Davis and Huffstetler admitted that the conversation lasted from 25 to 30 minutes. Under all the circumstances, including my observation of the demeanor of the witnesses and for the reasons hereinafter discussed with respect to Davis' asserted reasons for discharging Kirby, I do not credit the testimony of Davis and Huffstetler to the extent that it conflicts with that of Kirby. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located about 40 miles from Knoxville. Kirby reported for work at the Oak Ridge store on Monday morning , September 29. While employed at the Oak Ridge store, Kirby continued to talk to the store employees in favor of the Union . About Friday morning, October 3, Store Manager Ken Silvers called Kirby into the backroom, told him that some of the employees had complained that he had been talking to them about the Union on company time or property , and announced that he did not want to hear Kirby mention the Union around here at any time to any of his employees . Kirby denied that he had been talking about the Union on company time or property and asserted his intention to continue to talk about the Union on his own time and off company property . Silvers warned that "If I was you, I would not be so brave for this Union, or the Company will bump you off." Silvers then ordered Kirby to go back to work and "not to mention Union to any of his employees any more." About a week later Silvers again called Kirby into the backroom and told him that he was to report to the Chapman Highway store the following Monday night to work the night shift . In reply to Kirby's query as to whether his work had been satisfactory, Silvers replied in the affirmative, adding that Kirby "was a good worker." Silvers then warned Kirby again that "if you are going to be for this Union, that I would keep my mouth shut , and wouldn't be so brave, or the Com- pany might bump you off." The foregoing findings are based on the credible testimony of Bill Kirby. Silvers testified that he received a complaint from one of his employees on the afternoon of Kirby's first day of employment and from three other employees a few days later to the effect that they resented the fact that Kirby was discussing the Union on the job and "downing the A & P Tea Company," and that he talked to Kirby about these complaints in the backroom .5 Silvers admitted that Kirby had denied talking about the Union on the job. Silvers , however, denied having made any of the other state- ments concerning the Union, hereinabove set forth, and further denied mentioning the Union in his second conversation. Area Supervisor Davis testified that shortly after Kirby began working at the Oak Ridge store , Manager Silvers informed Davis by telephone that some of the em- ployees were complaining that they resented Kirby "running down the A & P Tea Company" and carrying on union talk during working time; that Davis told Silvers to talk to Kirby about it; and that Silvers replied that he had already talked to him about it. Davis further testified that a few days later Silvers telephoned to him again, reported that Kirby was "still doing some of it," and that he did not want Kirby in his store any longer . Davis testified that he then found a place for Kirby in the Chapman Highway store to stock in the store at night. However, Silvers ' version differs in some material respects from that of Davis. He testified to only one telephone conversation with Davis a few days after Kirby began working in the Oak Ridge store ; that he told Davis that Kirby "is not going to work out here, because we are going to have trouble if he keeps knocking the A & P Tea Company" and that it would be test to transfer Kirby somewhere else. He further testified that Davis telephoned to him later and told Silvers to inform Kirby to report to the Chapman Highway store Respondent did not call as witnesses any of the employees who allegedly made the complaints to which Silvers testified , and made no claim or showing that they were unavailable. Nor did Silvers testify to having received any further complaints after having talked to Kirby the first time or that Kirby thereafter continued to engage in union talk on company time or property. Moreover, by Silvers' own admission, his report to Davis made no mention of any activity on company time or property. In view of all the foregoing, and the credible testimony of Kirby that he did not engage in any union activity on company time or property, I am convinced and find that Kirby's transfer was truly motivated by a desire to keep him from propagandiz- ing the store employees in favor of the Union as against the Company , and not because of any alleged belief or genuine concern that this was being done during working time. Under all the circumstances , including my observation of the demeanor of the witnesses , I do not credit Silvers' testimony to the extent that it conflicts with that of Kirby with respect to the two conversations held in the back of the Oak Ridge store. (3) At the Chapman Highway store On Monday night , October 13 , Kirby reported for work at the Chapman High- way store, located about 18 miles from the Alcoa store. That night he stocked the merchandise on the shelves with incorrect prices and did not rotate the stock c Respondent's statement in its brief that the conversations reported to Silvers were not regarding the Union is erroneous and contrary to Silvers ' own testimony. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 827 according to company policy. Kirby made the corrections the next morning when it was called to his attention. Store Manager Jarnigan testified that it was reported to him on Wednesday that Kirby had stocked 2-pound bags of sugar and had mis- marked them, and that he had Kirby make that correction.6 Jarmgan further testified that he reported to Davis that he could no longer use Kirby because of these errors. On Saturday night, October 18, Jarnigan informed Kirby that he was to report to the Broadway store the following Monday morning to work in the produce department. c. The discharge of Kirby on October 20 Kirby lived about 1 mile from the Alcoa store, which was located about 20 miles from the Broadway store. Before reporting for work at the Broadway store on Monday morning, October 20, Kirby went to the Alcoa store to buy some bacon and eggs for his children While there, he was talking to some of the employees at the produce counter. Manager Huffstetler came over and told Kirby to leave because he was interfering with the work of the employees or he would have Kirby thrown out. Kirby thereupon made an obscene remark to Huffstetler, and left the store.? Kirby had worn a sport shirt when he was working at the Chapman Highway store. He reported for work at the Broadway store Monday morning, also wearing a sport shirt. Store Manager Spencer Ross asked Kirby why he was not wearing his dress shirt and bow tie. Kirby replied that Davis had given him permission to wear a sport shirt, but promised to wear a dress shirt and bow tie the next day. He also volunteered to go back home and get it then. However, Manager Ross told Kirby to fill out his timecard, and then put him to work in the produce department.8 Later that day Davis came to the Broadway store and, together with Manager Ross, called Kirby into the backroom where Davis confronted him with his state- ment to Ross that Davis had told hem he could wear a sport shirt and no tie. When Davis denied that he had ever discussed this subject, Kirby replied that it must have been Hubert Huffstetler or someone else. Davis told Kirby that he did not like Kirby's attitude" and did not want to see him around anymore. Kirby asked if Davis was referring to Kirby's "attitude toward the Union." Davis replied, "That damn Union is the big thing, and your attitude toward this tie." Davis then dis= charged Kirby and told Manager Ross to get Kirby's pay During the course of the conversation, Kirby had asked Davis if he knew anything about the incident that morning with Manager Huffstetler and if Huffstetler had the right to throw Kirby out of his store. Davis replied that he did not know anything about it, that he had not seen or talked to Huffstetler, and that what Huffstetler did with his store was his own business. Davis and Ross denied that the Union was mentioned or that Davis said he had not talked to Huffstetler and knew nothing about the incident that morning at Huff- stetler's store, as Kirby had credibly testified. Davis admitted that "there was mention about attitude," and Ross admitted that Davis said he did not like Kirby's "general attitude about the whole thing " Davis also admitted that Kirby had asked if Huffstetler had a right to run him out of the store and that he had replied that Huffstetler had a right to run anyone out whom he did not want in the store. Davis further testified that he had received a telephone call from Manager Huffstetler that morning and that Huffstetler told him about the incident with Kirby at the Alcoa store, that he at that point decided to discharge Kirby because "he can't talk to one of my managers like that and work for me," and that he went to the Broadway store for the express purpose of discharging Kirby. He further testified that when he arrived at the Broadway store, Manager Ross asked if Davis had told Kirby he could wear a sport shirt without a tie, that Davis denied discussing the subject with Kirby, that Ross replied that Kirby had made such a statement to him, and that Davis and Ross then decided to call Kirby into the backroom to talk to him about this matter. Yet, both Davis and Ross admitted that Davis did not mention the Huff- stetler incident to Kirby at all Nor did Davis tell Ross at any time that he had decided to discharge Kirby It seems unlikely to me that, if Huffstetl_er had in fact already reported the incident to Davis and Davis had come to the store for the 6 Kirby denied at the hearing that he had stocked the 2-pound bags of sugar that day He testified that he had stocked the 5-pound bags of sugar, that no one had said anything to him about the 2-pound bags of sugar, and that he did not change any prices on the 2-pound bags I find it unnecessary to resolve this conflict 7I do not credit Huffstetier's testimony that Kirby made the obscene remark before be told Kirby to get out of the store s The findings in this paragraph are based on the mutually consistent testimony of Kirby and Ross $28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD express purpose of discharging Kirby because of it, Davis would not have mentioned this to Kirby as a reason for his discharge or told Ross that he had already decided upon Kirby's discharge when Ross discussed the matter of Kirby's statement about wearing a sport shirt without a tie. Davis' testimony becomes even more unbeliev- able in view of his silence in this regard when the opening for such an explanation was afforded by Kirby who, according to Davis' own testimony, stated that Huff- stetler had run him out of his store that morning and asked if Huffstetler had a right to do so. Moreover, Davis testified that when Ross said that he no longer wanted Kirby working in his store, Davis replied, "If you don't want him, I can't move him anywhere else, so get his money and pay him off." This is hardly the response normally to be expected from one who had come to the store for the express purpose of discharging Kirby because of the Huffstetler incident. Under all the circumstances, and upon my observation of the demeanor of the witnesses, I find that Davis had not been informed of the Huffstetler incident at the time of Kirby's discharge,9 and do not credit the testimony of Davis and Ross to the extent that it conflicts with that of Kirby, as hereinabove set forth. d. Kirby's efforts to seek reinstatement On December 1, 1958, Kirby went to the Alcoa store, which is located about a mile from his home, and asked Manager Huffstetler for an employment application. Huffstetler replied, "Bill you know better than that. It won't do you any good. I will give you an application but it won't do you any good." 10 e. Concluding findings The Respondent contends in its brief that Kirby was discharged for "inefficiency and insubordination and his inability to get along with other employees . coupled with his obscene statement to a Store Manager and his deliberately mis- representing a conversation with the Area Supervisor" relating to wearing apparel. The foregoing constitutes Respondent's description of the incidents hereinabove related. Significantly, except for Kirby's statement regarding Davis' permission to wear a sport shirt without a tie, none of these incidents were admittedly mentioned to Kirby at the time of his discharge. The explanation for this silence lies in the fact that (1) the incident concerning the obscene remark to Manager Huffstetler had not yet been reported to Area Supervisor Davis when he discharged Kirby, as previously found, and (2) it had not been Respondent's practice to regard the other matters as grounds for discharge. Thus, Davis admitted that an employee is not required to sign the work progress report if he does not wish to do so, and that Respondent does not hold it against any employee for refusing to sign because he does not agree with the ratings. Joe Kanipe, Respondent's own witness who was in charge of the stock clerks in the Chapman Highway store, testified that it was not uncommon for stockboys to put up the wrong prices on stock. All that happened on such occasions, according to Kanipe's testimony, was to point out the errort to the clerk and have him make the corrections; none were transferred to other stores because of such errors. The record is devoid of any probative credible testimony that Kirby was unable to get along with other employees. As previously found, Kirby's activities in propagandizing the employees of the Oak Ridge store in favor of the Union as against the Company were not carried on during working hours, and his transfer from that store was not motivated by any bona fide belief or genuine concern that working time was involved, as previously found. Davis testified that it was his policy to require the clerks who came in contact with customers to wear a dress shirt and bow tie, and that other clerks could wear anything they wanted. Kirby was required to wear different apparel at each of the stores in which he worked. When he was working in the Alcoa store in September 1958, he was wearing a sport shirt. When he reported at the Oak Ridge store wearing a sport shirt, Manager Silvers told him to wear a long sleeve dress shirt and bow tie the next day. Kirby complied with this request. When he reported to the Chapman Highway store wearing a long sleeve dress shirt and bow tie, Manager Jarnigan told him to wear a sport shirt the next day. Kirby complied with this request. He reported for work in a sport shirt at the Broadway store because he had been wearing that type of shirt in the previous store. He volunteered to go 9I do not credit Huffstetler's testimony that he had informed Davis of the incident that morning. 10 The findings in this paragraph are based on the credible and undenied testimony of Kirby. Huffstetler merely testified that he did not remember the incident. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 829 home that morning to change his apparel when Ross indicated he should be wearing a dress shirt and bow tie. Davis and Ross later accused him of having misrepre- sented that Davis had given him permission to wear a sport shirt without a tie. Although Kirby then explained that he was mistaken and that it must have been Hubert Huffstetler or someone else, he was summarily discharged. During the discussion over Kirby's refusal to sign Manager Huffstetler's Work Progress Report, Area Supervisor Davis displayed his union animus and resentment over Kirby's militant advocacy of the Union. When Davis warned Kirby that he could not work for the Company and the Union at the same time, Kirby indicated his disagreement with this position. As a result of this discussion, Davis transfered Kirby to the Oak Ridge store because he did not like Kirby's "attitude." At the Oak Ridge store, Kirby defied Davis' prior warning and continued his vigorous advocacy of the Union. Manager Silvers warned Kirby not to be "so brave" for the Union or the Company would "bump" him off, and ordered him not to mention the Union to any of the employees at any time. Kirby, however, asserted his right to advocate the Union on his own time and off company property and thereafter continued to do so. Manager Silvers reported Kirby's conduct to Davis and complained that "we are going to have trouble if he keeps knocking" the Company. To prevent Kirby from propagandizing the store employees in favor of the Union as against the Com- pany, Davis transferred Kirby to the Chapman Highway store, as previously found. When Kirby made some errors in stocking merchandise, he was immediately trans- ferred again, contrary to the prior practice with respect to other employees who had made similar errors. As Kirby had received different instructions with respect to his wearing apparel from the managers of each store in which he had worked, he reported to the Broadway store wearing a sport shirt, which was the type of apparel he had been wearing at the previous store to which he was assigned. Ignoring Kirby's explanation that he was mistaken about Davis giving him permission to wear a sport shirt and that it must have been one of the other store managers who had given him such permission,,, Davis stated that he did not like Kirby's "attitude" and sum- marily discharged him. When Kirby asked if it was his attitude toward the Union which Davis did not like, Davis admitted that "that damn Union is the big thing." Thereafter, in an effort to bolster his defense of the discharge, Davis asserted as afterthoughts the other incidents, hereinabove set forth, as additional grounds therefore. Under all the circumstances, and upon the basis of the entire record considered as a whole, I am convinced and find that Davis seized upon the bow tie incident as a suitable pretext for ridding the Respondent of an employee who had become undesirable because of his continued militant advocacy of the Union.12 By such conduct, Respondent has discriminated with respect to the hire and tenure of em- ployment of Bill Kirby, thereby discouraging membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. 2. Bonnie K. Field In 1958 Bonnie Field was reemployed in the Respondent's Fountain City store as a part-time employee at $1.18 per hour. At that time, Store Manager Whitley promised to employ her on a regular full-time basis when an opening arose. When Manager Bull replaced Whitley, sometime in August, Field told him about Whitley's promise and Bull replied that if he should have occasion to put on a full-time em- ployee he would consider her for that opening. She also asked Bull for a wage increase, and Bull promised to make every effort to get one for her. On November 1, Field received a wage increase of 5 cents per hour. On Saturday evening, November 15, Bull had a conversation with Area Supervisor Davis and received Davis' permission to use Field full time on a temporary basis; this would result in Field getting a raise. Bull informed Field of this conversation.13 ii As previously found, Kirby wore a sport shirt in the Alcoa store under Manager Huffstetler and in the Chapman highway store under Manager Jarnigan 12 Respondent erroneously states in its brief that in his testimony at the previous un- fair labor practice hearing Kirby "specifically denied any discrimination of any kind subsequent to April 1958 " Kirby gave no such testimony As previously stated, Kirby's case was neither litigated nor mentioned in the prior hearing; Kirby neither was ques- tioned nor gave any testimony concerning any of the matters hereinabove set forth. "Field testified that she heard Davis instruct Bull to put Field on a regular full-time basis the following Monday morning with a $2 raise, and that Bull reported this con- versation to her I find that Field was mistaken as to the purpoit of the conversation between Davis and Bull and as to the nature of Bull's reiloit to her I do not credit her version. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following week Field stayed out of work to attend the hearing in the prior unfair labor practice proceeding and also testified as a witness on behalf of the Union. When she received her pay that Saturday night, she noticed that she had not received a $2 wage increase which, as previously found, she mistakenly believed had been promised her. Bull told Field that he had been instructed by Davis not to put on any more full-time help. The following week Field worked 33 hours with Thanksgiving Day off. On Saturday night, November 29, Bull told her not to report the following week until Thursday morning because he had been instructed by Davis to cut down the store hours Field protested that she could not work less than 36 hours, that she could not afford to go all the way out there and pay a babysitter, and that if Bull did not have any more time for her than he was proposing, why did not Bull fire her. Bull replied that he did not want to fire her.14 That evening Field's husband telephoned to Area Supervisor Davis to inquire why Field's hours had been cut. Davis explained that they had to curtail the hours of people in the Fountain City store because the work performance of that store was not up to the average of Respondent's stores in the area. Mr Field stated that his wife could not afford to go all the way to Fountain City unless she worked 33 or 36 hours a week. Davis replied that if Mrs. Field could not work the hours everyone had to work, it would be best for Mr. Field to keep his wife home. The following Monday, Davis reported his conversation with Mr. Field to Man- ager Bull. Davis told Bull that he received the impression from Mr. Field that his wife would not return to work because she could not afford to come out there with a reduction in the hours and that they had beter look around to get someone who was willing to work the number of hours that were available. However, no steps were taken to find a replacement for Field. Field did report for work at 8:30 a.m. the following Thursday, December 4, and was was scheduled to work until 7 p.m. About 6 p.m. Manager Bull asked her if she had reconsidered and was willing to work the number of hours the store had to offer her. She indicated that she had not changed her position and that she could not afford to work for less than 30-36 hours a week. Bull thereupon made out her termination slip which states the following reason for her termination: "Unable to promise employee over thirty hours per week, she says not worthwhile to pay baby sitter and drive this distance unless she can be guaranteed certain no. of hours." Field refused to sign the termination slip, contending that she had never said any- thing about a babysitter. Field was terminated that day.is That evening, Field telephoned to Davis to protest her termination. She com- plained that she was being discriminated against and could not afford to go out there unless she worked 36 hours. Davis replied that he reserved the right to run his own business.16 On June 26, 1959, Respondent offered Field employment in one of its stores. Field refused because she had other employment. The General Counsel's Contentions and Concluding Findings The General Counsel contends, as alleged in the complaint, that Respondent refused to grant Bonnie Field previously promised full employment status and a wage increase and discharged her because of her union activity and because she had testified on behalf of the Union at the hearing in the prior unfair labor practice proceeding in November 1958. Field's union activity consisted of no more than signing a union authorization card in June 1958 Her testimony at the prior unfair labor practice proceeding was very brief and related solely to a conversation held before the election of April 9 with Store Manager Whitely, who was subsequently replaced by Manager Bull. The record shows that a number of employees from the Fountain City store had also testified on behalf of the Union at the prior hearing and that additional employees from that store were present at the hearing room on the Union's behalf. Indeed, so many employees from the Fountain City store were present at the hearing room 14 Field denied saying she could not afford to pay a babysitter and drive all that dis- tance. Field impressed me as a highly excitable person At one point she testified that she was so mad that she did not know what she said Bull impressed me as a forthright and reliable witness Under all the circumstances I do not credit Field's testimony to the extent that it conflicts with that of Bull 16I do not credit Field's testimony to the extent that it may conflict with that of Bull ie I do not credit Field's testimony to the extent that it may conflict with that of Davis THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 831 on the Union's behalf, that Respondent was required to get other help to take their place. On the other hand, the record shows that at that time the Fountain City store was below the average of other Respondent's stores in the area with respect to the pounds sold per man-hour of work, that for that reason Davis instructed Manager Bull to cut down on the number of hours that he was using in manning that store, and that it is Respondent's practice in such situations to cut down first on the hours of the part-time employees. Moreover, the record further shows, as Bull credibly testified, that about the same time Manager Bull also reduced the hours of about five other employees, none of whom had testified at the hearing in the prior unfair labor practice case. No new full-time employees were hired during that period, nor was any full-time status given to any part-time employee.17 Nor does the record support the testimony of Field and the contention of the General Counsel that another part-time employee, Parnell, received more hours than Field prior and subsequent to Field's termination. Upon the basis of the entire record considered as a whole, I am not persuaded that the General Counsel has sustained his burden of proof with respect to the allegations concerning Bonnie K. Field by a preponderance of the credible evidence. Accord- ingly, I will recommend the dismissal of these allegations. C. Interference, restraint, and coercion The parties stipulated that Area Supervisor Davis and all store managers are supervisors within the meaning of the Act. As previously found, Area Supervisor Davis interrogated Kirby as to why he was for the Union and if he would join the Union if it got in; told him that the Union could not do a thing for him and that he could not work for the Union and the Company at the same time; stated that "we have not even began to fight this Union yet"; and warned that Respondent would not recognize the Union even if it got voted in. Also, as previously found, Store Manager Silvers instructed Kirby not to mention the Union to any of his employees at any time, and, on two occasions, warned him not to be "so brave for the Union or the Company will bump you off." I find that by the foregoing conduct, Respondent interfered with, restrained, and coerced the employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby violated Section 8(a) (1) thereof.18 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, which occurred in connection with the operations of the Respondent described 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 the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that Respondent discriminated in regard to the hire and tenure of employment of Bill Kirby, I will not recommend that the Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the Respondent's discrimi- nation against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said periods, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolwoi th Company, 90 NLRB 289, 291-294. In view of the nature of the unfair labor practices and the fact that the Board has found that Respondent has violated the Act in a prior proceeding, there exists the danger of the commission of other unfair labor practices proscribed by the Act. I will accordingly recommend that Respondent cease and desist from in any other manner infringing upon the rights guaranteed employees by Section 7 of the Act. Bull admitted that he may have hired a package boy or two for Friday evening and Saturday, which is the stores busiest period 18 See, e g, The Great atlantic if Pacific Tea CoinpanV, Ine, 124 NLRB 329. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i 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. By discriminating in regard to the hire and tenure of employment of Bill Kirby, thereby discouraging membership in Retail, Wholesale and Department Store Union, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 2. By the foregoing conduct, by interrogating an employee as to why he was for the Union and if he would join the Union if it got in, by telling him that the Union could not do a thing for him and that he could not work for the Union and the Company at the same time, by stating that "we have not even began to fight this Union yet," by warning that Respondent would not recognize the Union even if it got voted in, by telling an employee not to mention the Union to the employees at any time, and by warning him "not to be so brave for the Union or the Company will bump you off," the Respondent has interfered with, restrained, and coerced its employees employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (4) of the Act by its treatment and discharge of Bonnie K. Field. [Recommendations omitted from publication.] Local 401, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO; International Brotherhood of Boilermakers , Iron Ship Build- ers, Blacksmiths, Forgers and Helpers, AFL-CIO; and John Stender, International Vice President and Orran Lyman Chamberlain and M. A. Roberts and James' G. Roberts, Part- ners, d/b/a M. A. Roberts & Company, Parties to the Contract Local 401, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO and George B. Seybold and M. A. Roberts and James G. Roberts, Partners, d/b/a M. A. Roberts & Company, Parties to the Contract. Cases Nos. 36-CB-203 and 36-CB-204. Feb- ruary 25, 1960 DECISION AND ORDER On February 10, 1959, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondents filed exceptions to the Intermediate Report and a support- ing brief.' 1 As the record, exceptions, and brief adequately reflect the issues and positions of the parties, the Respondents' request for oral argument is denied. 126 NLRB No. 91.