The Great Atlantic & Pacific Tea Co., Inc.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 757 The test of independent contractor status is whether the employer or principal retains the right of control over the manner of performance of the contractor. Thus in the case of Golden Age Dayton Corporation, 124 NLRB 916, the Board said, The Board has frequently held that, in determining the status of persons alleged to be independent contractors , the Act requires the application of the "right of control" test. Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment; on the other hand, where control is reserved only as to the result sought , the relationship is that of independent contractor . The resolution of this question depends on the facts of each case, and no one factor is determinative. See also N.L.R.B. v. Nu-Car Carriers, Inc., 189 F. 2d 756 (C.A. 3); N.L.R.B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C.A. 7); Southern Shellfish Co., Inc., 95 NLRB 957. In the instant case the facts do not reflect control in the Respondent over the manner or means of performance by the dealers. Manifestly the Respondent may not continue to direct the operation of the stations under the guise of "suggestions." However, neither must it, in order to avoid a conclusion of control, eschew all manner of suggestive--or even critical--comment. The difference between what is control and what is not may at times be subtle, but it is nevertheless real. Here I am persuaded that the Respondent neither exercises nor has the right to control the manner or means of performance by the dealers. Cases cited by the General Counsel , such as Shell Oil Company , 90 NLRB 371; Standard Oil Company ( Indiana), 81 NLRB 1381 ; J. G. Howard Lumber Company, 93 NLRB 1230; Southern Shellfish Co., Inc., 95 NLRB 957; H. T. Davenport, d/b/a Enterprise Lumber & Supply Co., 96 NLRB 7.84; Ernest Whiting, et al., d/b/a Whiting Lumber Co., 97 NLRB 265, are distinguishable. In each of those cases the relationship contained substantial elements of employer control, reflecting employer- employee status. Upon the basis of the facts in this record, it is found that the dealers are inde- pendent contractors, and that neither they nor the attendants at the leased stations are employees of the Respondent . There was therefore no obligation to bargain con- cerning the conditions of employment of such persons. In such circumstance it is unnecessary to consider other questions raised , such as whether the Union continued to represent a majority of the station attendants at the time of the alleged refusal to bargain, or whether there is an appropriate bargaining unit . It will be recom- mended that the complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not committed unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. [Recommendations omitted from publication.] The Great Atlantic & Pacific Tea Company, Inc. and John J. Schobel. Case No. 14-CA-2240. November 25, 1960 DECISION AND ORDER On April 14,1960, Trial Examiner Arnold Ordman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act and recommending that it cease and desist therefrom, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the 129 NLRB No. 88. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent filed exceptions to the Intermediate Report, a supporting brief, and a request for oral argument.1 Pursuant to the provisions of Section 3(b) of the National Labor Relations-Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Jenkins and Fanning]. ,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 the case, and finds merit in some of the Respondent's exceptions. Accord- ingly, the Board adopts the findings of the Trial Examiner only inso- far'as consistent with this Decision and Order. 1. The Trial Examiner found that the Respondent violated Section 8 (a) (3) and (1) of the Act by Chalfalit's discharge of Alvin Hongser- meier and Charles Thompson on December 7, 1959. In reaching this conclusion, the Trial Examiner relied principally on the following: (a) The alleged'discriminatees were in the forefront of union ac- tivity at Respondent's plant and Respondent knew of their union sympathies; (b) approximately a week before the representation elec- tion held at the plant 'on July 22, 1959, W. L. Anderson, who was at that time a supervisor at the plant but who has since left, had interro- gated Hongsermeier as to main union supporters; threatened him with loss of benefits in the event of his continued support of the Union ; and sought to induce him to withdraw such support; (c) no disciplinary action was taken against Harold Newman, a participant in the inci- dent upon which the two' discharges were allegedly predicated; and (d) the discharges took place toward the end of the 6-month period during which the filing of a new representation petition by the Union was precluded.' The Respondent contends that the. Trial Examiner was biased as evidenced by his distortion of testimony and gross speculation 3 and that the above 8(a) (3) and (1) findings are not supported by evi- dence on the record as a whole. As to (a) above, the Respondent con- tends that uncontradicted evidence establishes that the discharges 1 As the record , including the exceptions and brief , adequately sets forth the issues and positions of the parties , this request is hereby denied 2 As noted by the Trial Examiner, the Regional Director, by letter dated July 30, 1959, advised the Respondent and the Union that the lattei 's request for the withdrawal of its petition for certification as bargaining representative of the Respondent's employees had been approved and that the Board, absent good cause shown , would not entertain a new petition from the Union for a period of 6 months. a This charge of bias is not based on any alleged statements of the Trial Examiner which might indicate that he had prejudged this case nor upon his conduct or rulings made at the hearing ; but, as indicated, is directed to his findings and conclusions , and the analysis of the facts upon which they are based, as set forth in the Intermediate Report ' Possible errors of this sort are hardly sufficient to establish bias. Accordingly , we reject this contention . Sears Roebuck & Company, 110 NLRB 226, 227, footnote 2. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 759 were effected following instructions issued by Chalfant's superiors to him during the month preceding the discharges to increase production in the plant and that repeated violations, following warnings, were another contributing factor in the discharges for leaving their jobs when needed for.production. As to (b), it argues that it was not shown that Chalfant knew of Anderson's animus toward Hongser- meier. As to (c), its position is that Newman was not engaging in work violations. As to (d), it points out that the discharges occurred almost 2 months before a new petition could have been filed. Of the above findings, (a) raises only a suspicion of discriminatory discharge. As to (b), the incident involving Supervisor Anderson occurred, as noted, almost 5 months before the discharges and there is no evidence of any union activity in the interim. On these facts, we are unable to infer any causal connection between the discharges and Anderson's union animus.' As to (c), Newman, unlike the alleged discriminatees, was not, at the time 'of the incident out of which the discharges arose, responsible for keeping the girls supplied with eggs. Hence this dereliction in supplying eggs was applicable to the dis- criminatees only. Further, Newman had not been warned for prior offenses, ashad the other two. Also, the Respondent was aware of the union sympathies of all three. We find, unlike the Trial Examiner, that under these circumstances, the failure to discharge Newman does not indicate disparate treatment. As to (d), we disagree with the conclusion that the discharges took place toward the end of the 6- month period during which the Union was precluded from filing a new representation petition, inasmuch as they occurred almost 2 months before the end of such period. Furthermore, as noted above, it does not appear that, at any time during the 6-month period, the Union engaged in any activity whatsoever at the Respondent's plant or exhibited any indication that it intended to file a new petition.5 The only evidence of motivation for the discharges, in the interim was instructions to Chalfant to increase production. There also were repeated violations of working instructions by the two alleged dis- criminatees, despite Chalfant's warnings. Under the circumstances, we find no discriminatory motivation in the timing of the discharges. Thus, of the above findings relied on by the Trial Examiner, only the one that Hongsermeier and Thompson were in the forefront of union activity and that the Respondent knew of their union sympa- thies, is sustained by the record. However, the Board has found that an employer's knowledge of union activity by its employees is not alone sufficient to establish discriminatory motivation,' ' Rugcrofters of Puerto Rico, Inc., 112 NLRB 724, 726. 5A new petition for employees at the Respondent 's plant was not filed until August 4, 1960, and by a different local of the Union. 6I ucille of Hollywood, 93 NLRB 37, 38 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of all the foregoing, and on the entire record, we find that the preponderance of evidence fails to support a finding that 'the two discharges were discriminatory. 2. The Trial Examiner also found that the Respondent, by Ander- son's remarks to one employee on a single occasion consisting of inter- rogation, threats, and solicitation to withdraw support from the Union, violated Section 8(a) (1) of the Act. As this one isolated inci- dent is the only remaining issue for our consideration, we find that, under the circumstances, it would not serve any useful purpose to issue any cease-and-desist order based thereon? In view of the foregoing, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER JENKINS, concurring : I agree that the complaint in this case should be dismissed nl its entirety. I am of the opinion, however, that my colleagues have not made the reasons for the dismissal sufficiently clear. Under the cir- cumstances, I feel constrained to separately state my views with respect to this case. In June 1959, the Union began to organize the Respondent's ware- house employees. It filed a petition for certification, the parties entered into a consent-election agreement, and an election was held on July 22, 1959. The ballots were never tallied, however, because the Union had in the meantime requested withdrawal of its petition. On July 30, 1959, the Board's Regional Director advised the parties that the request for withdrawal had been approved and that absent good cause shown a new petition would not be entertained for a period of 6 months. After the July 22 election there was no union activity whatever, and there is no evidence that the Respondent did anything to oppose the unionization of its employees. I shall advert later, and in some detail to an incident which occurred about July 15, 1959, which the Trial Examiner used as a basis for finding an independent 8(a) (1) viola- tion and which my colleagues and I are unanimous in reversing. Almost 5 months later, on December 7, 1959, the Respondent dis- charged Hongsermeier and Thompson. The circumstances surround- ing these discharges are fully related in the Intermediate Report. The Trial Examiner, despite his ultimate conclusion, found that these em- ployees were "admittedly derelict in their duties on the occasion in question," and the facts, in my opinion, makes this manifest. The cir- 4 The Frohman Manufacturing Co., Inc, 107 NLRB 1308, 1315; Atla8 Storage Division, P et V Atlas Industrial Center, Inc., 112 NLRB 1175, 1180 THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 761 cumstances surrounding the December 7 episode were preceded by earlier incidents involving Hongsermeier and Thompson. About 2 months before, Manager Chalfant told another employee to go up to the attic to get some envelopes and Hongsermeier, in Chalfant's presence, told that employee not to do it. Both Hongsermeier and .Thompson admitted engaging in horseplay in the work area during worktime and had to be cautioned by Chalfant to quit cutting up and to pay attention to their work. This occurred in October 1959. In early November 1959, one of the office girls called to Chalfant's atten- tion that during the lunch hour Thompson and Hongsermeier had let the tables run out of eggs and that when the female employees had called for eggs, made fun of them, ignored them, and went "playing around." The following day, another complaint was made to Chal- fant, and again he had to caution them to "cut out the foolishness and get back to work." On this occasion, the lights were turned off, and when Chalfant reprimanded Hongsermeier, the latter retorted, "We like to work in the dark." On November 17, Chalfant's superior, hav- ing previously warned him that he would have to improve production, called a meeting of the female employees to discuss the situation. At this meeting several of these employees complained that they would have to have more cooperation from the "boys." There appears to .have been an awareness following the November 17 meeting that it was necessary to pay closer attention to the work. This background of events leading up to the discharges on Decem- ber 7 is significant. It indicates rather clearly the circumstances that surround Chalfant's decision to discharge Hongsermeier and Thomp- son on that date. The horseplay on December 7 when Hongsermeier spent time examining a shotgun while the egg candlers were calling for eggs, in the light of the incidents which had preceded them, represented a culmination of events that finally resulted in the two discharges. In appraising these facts, I can come only to one conclusion and that is that the discharges were for cause. The evidence of the cause for discharge is clear, the Trial Examiner recognized that the Re- spondent had a right to discharge for the reasons stated, and what- ever union activity there may have been had come to an abrupt halt almost 5 months prior to the events of December 7. In these circum- stances, discriminatory motivation was not established, and the complaint insofar as it alleges violations of Section 8(a) (3) of the Act must be dismissed. I turn'now to the allegation that the Respondent had engaged in an independent violation of Section 8 (a) (1). Approximately July 15, 1959, Hongsermeier and Anderson (a tem- porary supervisor brought in from another town) spent the evening 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD together. They had been friends who had on many occasions fished and hunted together. That evening they met at a tavern and pool hall about 7 miles from Nashville, played pool, sat at a bar for 11/2 or 2 hours, and then sat in Anderson's car for another 2 hours. Both consumed beer for many hours on this occasion. During the course of this session, Anderson made remarks which the Trial Examiner found constituted unlawful interrogation and threats of detriments which would follow unionization. I cannot sustain this finding. To find a violation of the Act on facts such as these is to be wholly un- realistic and to shut one's eyes to the facts of life. Moreover, the courts have sought over the years to clarify the statutory policy so as not to impute to employers responsibility for statements made under circumstances such as present here. Thus, the Fifth Circuit in N.L.R.B. v. Whittier Mills Company, et al., 111 F. 2d 474, 479, stated: Isolated speeches like these made by underlings, though having some authority, in casual conversation with fellow employees, which are not authorized or encouraged or even known to the management, ought not to be too quickly imputed to the employer as his breaches of the law. When not made in the exercise of authority, but in personal conversation, they do not appear to be the sentiments of the employer nor his acts, and to make them such the circumstances ought to show some encouragement or ratification or such repetition as to justify the inference of a policy which they express. I fully subscribe to this enunciation of principle, and for this reason reject the Trial Examiner's finding of an independent violation of Section 8 (a) (1). In summary, we have in this case a failure on the part of the Gen- eral Counsel to establish a prima facie violation of the Act in the first instance. Nonetheless, the Respondent goes forward with the evi- dence and establishes good cause for the discharges. The Trial Ex- aminer, in attempting to make out a case of discriminatory discharges, reaches out for a straw, the Hongsermeier-Anderson drinking bout, to inject a possible union animus when it is obvious the Union has been completely out of the picture for almost 5 months and there is not a scintilla of evidence that the Respondent has evinced any oppo- sition to the unionization of its employees. Indeed, the very episode the Trial Examiner strains so hard to utilize is one that preceded the stillborn election in July, and can therefore be of no particular relevancy in passing on the circumstances surrounding the discharges in December, when the Union had completely faded from the picture. It is for these reasons that I conclude that the Respondent had not violated Section 8 (a) (1) or (3) of the Act. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC . 763 INTERMEDIATE REPORT STATEMENT OF THE CASE The proceeding, with all parties represented, was heard before the duly designated Trial Examiner in St. Louis, Missouri, on February 16 and 17, 1960, on complaint of the General Counsel and answer of The Great Atlantic & Pacific Tea Company, Inc., herein called Respondent. The controverted issues are: (1) Whether Respond- ent by certain acts and conduct of its supervisors interfered with its employees' organizational rights in violation of Section 8(a)(1) of the National Labor Re- lations Act, as amended (61 Stat. 136, 73 Stat. 519); and (2) whether Respondent discriminatorily discharged two employees, Alvin Hongsermeier and Charles Thomp- son, in violation of Section 8(a)(3) and (1) of that Act. General Counsel argued the case orally at the close of the hearing and briefs have been filed and duly considered. Upon the entire record,' and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a New Jersey corporation engaged in nationwide purchase, retail sale, and distribution of groceries, meats, produce, and eggs. Included among its operations is an egg-grading plant at Nashville, Illinois, the only facility here in- volved, at which eggs are received, graded, and ultimately shipped to Respondent's retail store outlets in Illinois and Missouri. Respondent admits, and I find, that the volume of Respondent's business and the scope of its interstate operations are ample to warrant the assertion of jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Local 585, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union , is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background During the period here relevant, from June to December 1959, the production and maintenance employees at Respondent's Nashville plant consisted of 16 women candlers who graded and sorted eggs and -a handful of men who did the heavier work such as loading and crating. Supervision was afforded by Dean Chalfant who reported to the Nashville plant as plant manager in May 1959. From May to October 1959, W. L. Anderson, manager of Respondent's nearby Litchfield egg plant, also acted in a supervisory capacity at Nashville and was responsible for training Chalfant in his managerial role. Organizational activities among Respondent's Nashville employees began in the latter part of June 1959. Two organizational meetings were held attended by all the production and maintenance employees and by representatives of the Union. The first meeting was held on the afternoon of July 1, following the close of work at 4 p.m., at the Odd Fellows hall in Nashville, about a 5-minute drive from the plant. The second meeting was held in the same place at the same time of day about 2 weeks later. During this ,period the Union filed a petition for certification as bargaining repre- sentative of the Nashville employees, and pursuant to a consent-election agreement between Respondent and the Union, an election was conducted among the employees on July 22, 1959. The ballots were never tallied, however, because the Union had in the meantime requested withdrawal of its petition. By letter dated July 30, 1959, the Board's Regional Director for the Fourteenth Region (St. Louis, Missouri) ad- vised Respondent and the Union that the request for the withdrawal of the petition had been approved and that the Board, absent good cause shown, would not enter- tain a new petition from the Union for a period of 6 months. i A stipulation to correct certain patent inaccuracies in the transcript of the testimony, executed by counsel for each of the parties and received by the Trial Examiner on March 18, 1960, is hereby approved. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference, restraint, and coercion 1. Surveillance General Counsel alleges that Manager Dean Chalfant engaged in unlawful sur- veillance of a union meeting in violation of Section 8(a) (1) of the Act. The relevant facts are virtually undisputed. The second meeting took place, as already indicated, at the Odd Fellows hall in Nashville shortly after 4 p.m. A number of the employees left the meeting early, returned to .the plant and told Dean Chalfant that they had been ousted from the union meeting. They asked Dean Chalfant what they should do, but Chalfant made no response. In the meantime the employees who supported the Union continued their meeting and adjourned at 5 p.m. They then left the Odd Fellows hall in a group. As they emerged from the hall, they saw Chalfant standing in plain view with Harold Rix- man behind a big plate glass window in the latter's garage which was situated across the street from the Odd Fellows hall. The employees waved to Chalfant and Rixman and Chalfant and Rixman waved back. Chalfant denies that his presence at Rixman's garage on this occasion was for the purpose of surveillance. Under all the circumstances I credit this denial. Real- istically, there was no need for Chalfant to have engaged in surveillance. The information already furnished him by the employees who came to see him would have sufficiently apprised him of the nature of the meeting and the identity of those present. Moreover, any information he lacked in that regard would undoubtedly have been furnished him readily by those same employees, had he chosen to inquire. Moreover, Chalfant's presence in Rixman's garage on this occasion, which might otherwise give rise to an adverse inference, is scarcely susceptible to such an in- ference in the instant case. Undisputed evidence establishes that Chalfant and Rix- man were good friends and that it had been Chalfant's practice for some time to drop in to see Rixman two or three times a week after work. Chalfant's conduct on the day here in question was wholly consistent with his prior practice. It is arguable, of course, that Chalfant should have realized from the information earlier given him that the union meeting might still be in progress and that he should have stayed away from the area of the meeting hall lest his presence be misunder- stood. I am doubtful that the Act can be read as imposing such a requirement. Furthermore, the record tends to refute any suggestion that Chalfant's presence with Rixman on this occasion might be misconstrued by the employees. Chalfant's friend- ship with Rixman was known as employee Hongsermeier's testimony reveals, and the fact that the employees in question waved to Chalfant and Rixman and were waved to in return tends to belie the suggestion that the employees would thereby feel under a sense of constraint.2 In sum, therefore, a finding that Chalfant engaged .in unlawful surveillance or that the employees might have derived that impression could be predicated only on suspicion or conjecture. I find that General Counsel has not sustained his burden of proof in that regard and recommend dismissal of the allegation respecting surveillance. 2. Interrogation and threats The remaining allegations of the complaint relating to interference, restraint, and coercion, apart from the incidental impact of the discharges, relate to the conduct of W. L. Anderson. As already noted, Anderson served in an admittedly supervisory capacity at the Nashville plant from May to October 1959. According to Alvin Hongsermeier, a leading protagonist of the Union and one of the two employees alleged to have been discriminatorily discharged on December 7, 1959, he and Anderson spent several hours together, about a week before the July 22 election, at a tavern in New Minden about 5 miles from Nashville. Anderson had suggested that They go to the tavern to play pool, an activity in which they had en- gaged on prior occasions .3 Each drove his own car to the tavern, arriving about 5 p in. They played pool until about 10:30 and then sat at the bar for about 11 to 2 hours where Anderson drank a number of beers, and then went out to sit in Anderson's car where the latter consumed some more beer. Hongsermeier testified further that about 11 p.m. while sitting at the bar Anderson introduced the subject of the Union with the comment, "You won't be able to prove In this connection, it is pertinent to note that Rixman was opposed to the Union and at times discussed with Chalfant the union sympathies of Chalfant's employees. How- ever, there is no evidence, and no claim is made, that Rixman was in any way an agent of, or occupied any official position with, Respondent. $Anderson and Hongsermeier had also gone on fishing and hunting trips. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 765 what I am going to tell you, because there is just you and me here, and , after all, I have been with the Company about 25 years ." Anderson went on to say that he had taken Charles Thompson (the other employee alleged to have been discriminatorily discharged ) and Hongsermeier into his confidence and that if they voted for the Union they would never get any place with the A. & P. He said he had boys at the Litchfield egg plant who were eligible for promotion but they were still on the floor and "that is where they were going to stay." Anderson added that the Nashville em- ployees did not need a union and that they had the same benefits and wage scale as the Litchfield employees. He also asked Hongsermeier who was going to send his children to college, commenting that the A . & P. was going to send his, and asked Hongsermeier how many people he knew that were union members and were sending their children to college. Anderson also said he knew that employee Kathryn Broad- water was one of the main union supporters and asked Hongsermeier who else was. Hongsermeier did not reply to this query. W. L. Anderson, who testified in Respondent 's behalf, corroborated much of Hongsermeier's testimony. Preliminarily, Anderson acknowledged that he and Hongsermeier had met at the tavern for a session of pool and that each had driven to the tavern in his own car. Anderson testified that, as he recalled , Thompson was also present at the beginning of the evening but was not present when he discussed the Union with Hongsermeier at the bar. However, Anderson declared that Hong- sermeier had raised the subject of the Union although he could not remember how. In direct examination Anderson denied that he had questioned Hongsermeier con- cerning the latter 's union activities or the union activities of other employees , or that he had threatened Hongsermeier with loss of benefits if he continued to support the Union. Finally, Anderson acknowledged that he might have discussed the difference in sick benefits between the unionized Litchfield plant and the nonunionized Nash- ville plant. On the other hand, Anderson, who acknowledged that he had consumed a quantity of beer, admitted that he had told Hongsermeier almost at the outset of their con- versation that the latter couldn' prove what Anderson said because they were alone. As to other phases of the conversation and later events that evening, Anderson credibly testified that his memory was vague . Thus, he predicated his denial that he had engaged in interrogation and threats on the ground that such action would be contrary to company instructions . Yet Anderson conceded that it was "questionable" whether he was capable of following those instructions at all times that evening .4 On the basis of the foregoing , I credit Hongsermeier's version, corroborated in sub- stantial part by Anderson , of the events and conversations at the tavern . Accordingly, I find that Anderson-admittedly a supervisor-interrogated Hongsermeier concern- ing union activities , threatened him with loss of benefits if he continued supporting the Union, and sought to induce him to withdraw his support of the Union . I find fur- ther that Anderson's statement concerning the failure of deserving employees at the unionized Litchfield plant to obtain promotions constituted a further threat as to the detriments which would follow unionization at Nashville . In this connection, I recognize that the history of friendly association between Anderson and Hongser- meier and the former's lack of sobriety on the occasion in question might be regarded as detracting somewhat from the coercive force of his remarks. On the other hand, the fact that these remarks were uttered 1 week before the forthcoming election and that Anderson was prompted to reveal an attitude which otherwise might have been circumspectly concealed could not fail to impress Hongsermeier , or any fellow em- ployees to whom he may have communicated this conversation , with the reprisals which Respondent was ready to visit upon union adherents. Accordingly, I find that Respondent , by Anderson's interrogation , threats, and solicitation to withdraw support from the Union, violated Section 8(a) (1) of the Act. C. The discriminatory discharges The complaint alleges and the answer admits that Respondent discharged Alvin Hongsermeier and Charles Thompson on December 7, 1959. A brief description of the Nashville plant's processes and its physical layout will facilitate understanding of the events preceding the discharges and Respondent's de- fenses in that regard . The plant which faces west runs from west to east a distance of about 150 feet and is 40 feet wide from north to south . There is a door at the 4 There is no evidence in the record that the employees were ever apprised of the existence of such instructions. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD front of the plant to which individual farmers bring eggs . Two of Respondent's male employees-during the period here relevant , Alvin Hongsermeier and Charles Thompson-receive the eggs, note the name and address of the farmers and the number of eggs he brings , make out an appropriate ticket, and load the eggs on candling tables, hereinafter described , for grading and crating by the candlers.5 The office where Plant Manager Dean Chalfant and the office help work occupies an enclosed space to the right of the front door in the southwest corner of the build- ing. Running along the northern side of the building for about half its length is a compartment known as the candling room . The candling room has 16 enclosed candling booths side by side which face toward the middle of the building and which together extend a distance of about 70 feet . The 16 women candlers employed by Respondent work in these booths which are darkened and have only a single small light which the women use for candling the eggs before grading and sorting them. Behind the booths there is a 3 -foot wide aisle running the length of the candling room which has doors at either end and which provides access to the candling booths. On the other side of the aisle against the northern wall are stored the various types of 12-egg cartons which the candlers use for packaging the eggs. When the women candlers complete their operation , the cartons of eggs go from the candling room on a belt to a sealing machine and then to a packing table located about the center of the plant where the cartons are further packed into cases for shipment to Respond- ent's retail outlets or for temporary storage in the storage cooler. The storage cooler is a large compartment along the southern side of the plant opposite the candling room beginning about 15 or 20 feet beyond the office enclosure and extending a little more than half way down the length of the plant . The back part of the plant con- tains a lunchroom, restrooms, and a large storage area. The heavy packing and loading at the back of the plant is done by male employees who on occasion, as the need arises and if time is available, help the men who work in front. In front of each candling booth is a table in the form of a conveyor belt which runs into the candling booth and is operated by a pedal inside the candling booth. Each table holds 11/2 cases of eggs or about 45 dozen which are carried by the con- veyor belt into the candling booth through an opening several inches high which is covered by a plastic curtain . One of the principal duties of Hongsermeier and Thompson , as already noted , is to keep the candling tables in front of the candling booths supplied with eggs for the candlers to work on. Turning now to specific consideration of the discharges , the evidence establishes that Alvin Hongsermeier began his employment with Respondent at the Nashville plant in March 1957 , and worked until his discharge on December 7, 1959 . Charles Thompson started working in July 1959, and was likewise discharged on December 7, 1959. Beginning in the latter part of June 1959 , both individuals became inter- ested in forming a union at the Nashville plant. Enlisting the aid of employee Kathryn Broadwater, one of the candlers, they contacted Joe Vargo , representative of the Union . Thereafter Hongsermeier and Thompson arranged for union meetings at the Odd Fellows hall, and solicited employee attendance at the meetings and em- ployee support for the Union . Their activities on behalf of the Union were open and unconcealed, and Respondent admits its knowledge of their union sympathies. The events of December 7, 1959, which, according to Respondent , led to the discharge of Hongsermeier and Thompson , were testified to by several witnesses and the respective accounts are relatively free of major discrepancies . The lunch break for the employees is from 11:30 a.m . to 12 noon. At 11:30 a.m. on December 7, Hongsermeier clocked out for lunch. A few minutes before noon he returned, bringing with him his shotgun which Harold Newman , a fellow employee, had asked to see, and a picture of his baby . Hongsermeier handed the shotgun to Thompson and Newman who were standing just inside the front of the building , clocked in at exactly 12 noon, and went into the candling room to show the picture of his baby to the candlers. He spent about 5 minutes in this activity and then returned to where Thompson and Newman were standing examining the gun. As he approached, Newman commented that the gun looked as though its barrel had been sawed off. At that instant Plant Manager Dean Chalfant emerged from his office where he had just finished preparing the order for the outgoing shipment of eggs which he would hand to Newman whose job it was to load the shipment. Chalfant testified that dust before he left his office, he heard several of the candlers calling for eggs for their 6 These two employees also receive two bulk deliveries of eggs which are made daily by the Illinois Farm Supply Company at a side door on the south side of the plant. Upon receiving these bulk deliveries , the eggs are processed in the same way as those bought by Individual farmers THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC . 767 candling tables.6 As Chalfant stepped out of his office, he saw Newman, Thompson, and Hongsermeier congregated around the gun and ordered them, in substance, to quit fooling around, to get back to work, and to keep the candling tables supplied with eggs. The three men complied with Chalfant's directive? Chalfant and New- man lent brief assistance to Thompson and Hongsermeier at this juncture and then Chalfant left for his lunch and Newman returned to his regular duties at the back of the plant. No further events of any consequence took place at the plant for the remainder of that day. When Hongsermeier clocked out that afternoon at 3:45 p.m.8 and went to his car, he found Chalfant standing there. Chalfant told Hongsermeier he need not report for work. Chalfant gave no reason and Hongsermeier asked for none. Hongser- meier then left. He returned, however, about a half-hour later, realizing that he had the key to the plant which he used to open the plant in the morning and that Chalfant had not asked for the key. Chalfant and Hongsermeier talked in the back of the building. Hongsermeier asked Chalfant why he was being laid off and whether the layoff was "for good." Chalfant replied, "Yes, it is for good and I am taking this action because of what happened in the afternoon today." Hongsermeier then asked whether that was the only reason and Chalfant said, "Yes, it is." No further conversation of any consequence ensued and Hongsermeier left after turning over the key. There was no further contact between Chalfant and Hongsermeier. The discharge of Thompson took place at the latter's home about 5 p.m. that same day. Thompson had clocked out at 4:30 p.m. At that time Chalfant was apparently still engaged in his second conversation with Hongsermeier. Thereafter Chalfant drove to Thompson's home and knocked on the door. Thompson came to the door and invited Chalfant in. Chalfant declined the invitation, told Thompson he need not report for work, and gave as the reason what had happened that afternoon. Thompson, after questioning the adequacy of the reason, asked if the separation was final. Chalfant said it was. Thompson, admittedly quick tempered, then stepped down to where Chalfant was standing, took a swing at him, and hit Chalfant on the shoulder. Thompson's wife, who was home at the time, stepped in between the two men and apologized to Chalfant. Thompson and his wife then went back in the house and Chalfant left. Harold Newman, the third participant in the events of the early afternoon, was not discharged. At the hearing Chalfant explained that Newman, whose principal job was in the back of the plant, did not have the responsibility for keeping eggs on the candling tables except when the men in front were behind in their work and called for help. Unlike Hongsermeier and Thompson, however, Newman, so far as appears, played no active role in the organizational campaign although Chalfant testified that it was his understanding that Newman was also in favor of the Union. General Counsel's position in substance is that Hongsermeier and Thompson were discharged because of their adherence to, and their activity in support of, the Union and that the incident in the early afternoon of December 7 was merely a pretext which Chalfant seized upon to effect the termination of their employment. The burden of proof in this regard, of course, lies with General Counsel. The record establishes that Hongsermeier and Thompson were in the forefront of union activity. Respondent openly acknowledges that it knew of their union sympathies. Respondent's opposition to the unionization of its Nashville plant and its readiness to discriminate against union supporters is also manifest from Anderson's disclosures to Hongsermeier at the New Minden tavern. The fact that no disciplinary action was taken against Harold Newman who was a coparticipant in the incident upon which the discharge of his two fellow employees was predicated likewise merits consideration nothwithstanding Respondent's disclaimer that Newman's required work performances was not directly affected thereby. Finally, it is significant that the discharges of the two leading proponents of the Union took place toward the end of the 6-month period during which the filing of a new representation petition by the Union was precluded and when the filing of a new petition would be permissible. The foregoing evidence is, to be sure, largely circumstantial. However, as the late Judge Parker long ago pointed out in a comparable situation in Hartsell Mills 8 There is considerable variance in the testimony of the several witnesses as to whether one or several candlers were calling for eggs at this time. To the extent that it is material I find that two or three of the candlers were calling for eggs a According to Chalfant, Hongserineier did not comply with sufficient alacrity and Chalfant told him to "get a move on." 8 Hongsermeier's workday, because of certain preparatory work be had to do in the morning, began and ended 15 minutes earlier than that of the other employees 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4), in language repeatedly cited with approval by the courts: It must be remembered, in this connection, that the question involved, is a pure question of fact; that, in passing upon it, the Board may give consideration to circumstantial evidence as well as to that which is direct; that direct evidence of a purpose to violate the statute is rarely obtainable; and that where the finding of the Board is supported by circumstances from which the conclusion of discriminatory discharge may legitimately be drawn, it is binding upon the courts . . . . [Emphasis supplied.] On the other hand, of course, Respondent is entitled to show, and it sought to do so here, that its action was not prompted by antiunion considerations at all. Thus, Chalfant made it explicit to both Hongsermeier and Thompson that the inci- dent early in the afternoon of December 7 was the reason, and the sole reason, for their discharges. If that is so, Respondent must be exonerated from a charge of unfair labor practice in that regard. A consideration of that defense is therefore in order. Hongsermeier, Thompson, and Newman were admittedly derelict in their duties on the occasion in question, and although their dereliction was limited at most to a 5- or 10-minute lapse from their assigned duties, a discharge of any or all of them for that reason would be lawful. This, however, does not resolve the issue whether that was the true reason or merely a pretext to conceal antiunion motivation for the discharge. In this connection the evidence reveals that past practice in the plant did not suggest that derelictions of the kind were customarily, if at all, punished by the harsh remedy of discharge. In fact, discipline in the plant was rather loose. Thus, testimony which I credit establishes that it was not uncommon for employees to bring in pictures of their babies to show their coworkers. Anderson, on occasion, had brought in guns for employees to look at. Plant Manager Chalfant himself had a propensity for telling jokes during working hours and on one occasion during working hours, as he himself admitted, played a somewhat crude practical joke 9 on a truckdriver in his office with Charles Thompson in attendance. Profanity, though apparently frowned upon by Chalfant, was not uncommon in the plant and was indulged in to some extent even by the women candlers who also talked back and forth to one another from their enclosed booths while they were working. Moreover, there were no serious consequences flowing from the dereliction assigned as ground for the discharges, a fact which Chalfant either knew or could readily have discovered before he took his disciplinary action against two of the three indi- viduals involved Credible testimony establishes, and I find, that there were only about a dozen cases of eggs available for candling at the beginning of the afternoon work period, and that this supply, though replenished later in the afternoon, was exhausted about 12:30 p.m. so that there were for a while no eggs to supply to the candlers.io Under all these circumstances I conclude that the explanation of the discharge offered by Respondent fails to stand up under scrutiny and that this failure laugments the inference of discrimination afforded by other evidence in this case. N L R.B. v. Bird Machine Company, 161 F. 2d 589, 592 (C.A. 1). This conclusion is further buttressed, I believe, by the fact that Respondent, who, at the time of the discharges predicted his action solely and emphatically on the incident of December 7, adduced evidence at the hearing that Hongsermeier and Thompson had been guilty of various acts of misconduct extending over a period of several months prior to their termina- tion. This misconduct, some of it admitted, related to alleged profanity, insubordina- tion, breaking of eggs, "cutting up" on the job, failure to give full time and attention to work, and other instances of improper work performance. Respondent could, of course, have lawfully discharged Hongsermeier and Thompson for any of these asserted violations and certainly for an accumulation of them. This was not done. Indeed, except for an occasional reprimand and single instance where Thompson was temporarily transferred for a very brief period to work in the back of the plant, no disciplinary action was taken. Compare Hartsell Mills Company v. N.L.R.B., 111 F. 2d at 292 (C.A. 4) (discharge of Love). And when the discharges did take place, no reference was made to any prior derelictions. Instead, Chalfant at that 0 Chalfant inflated a small balloon , concealed it in a chair , and had a truckdriver who was in his office at the time sit on it. Chalfant did not recall whether he played the same joke on Thompson 10 Chalfant admitted on cross-examination that the supply of eggs was low at the time. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC . 769 time expressly disclaimed reliance or anything other than the December 7 incident to explain his action. On the whole record, therefore, I am satisfied the real and underlying reason motivating the discharge of Hongsermeier and Thompson was their adherence to and support of the Union. Accordingly, I find that by discharging Hongsermeier and Thompson for this reason, Respondent violated Section 8(a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth 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 affecting commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a) (1) and (3) of the Act including discriminatory discharges which go to the very heart of rights protected by the Act (N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) ), I shall recommend that it cease and desist from such conduct and from any other conduct violative of the rights guaranteed by Section 7. See Entwistle, supra, and cases there cited. Insofar as the discriminatory discharge of Thompson is concerned, however, a qualification is required in the affirmative remedy of reinstatement and backpay usually prescribed in such instances. As already set forth, Thompson upon being informed by Chalfant that he was discharged, lost his temper, took a swing at Chalfant, and hit him on the shoulder." Whether Thompson would have inflicted further damage on Chalfant, and to what extent, is a matter of conjecture inasmuch as Thompson's wife intervened. Thompson's action here does not bear on the legality of his discharge because the discharge had already been consummated and, indeed, triggered Thompson's assault. Thompson, admittedly quick tempered, un- doubtedly felt deeply aggrieved by what he plainly conceived to be the gross injustice of his discharge. On the other hand, the Board has uniformly held that resort to this kind of self-help and private retribution rather than resort to the peaceful processes of the statute is not to be encouraged. Carthage Fabrics Corporation, 101 NLRB 541, 553-555; Renfro Hosiery Mills, Inc., 122 NLRB 929, 930, and footnote 2, distinguishing cases like Efco Manufacturing, Inc., 108 NLRB 245, enfd. 203 F. 2d 458 (C.A. 1), cert. denied 350 U.S. 1007. Accordingly, as the cited cases dictate, I will not recommend reinstatement and backpay for Thompson. So far as Hongser- meier is concerned, however, I shall recommend that he be offered immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges, and that he be made whole for net loss of earnings from the date of his discharge to the date of Respondent's offer of reinstatement, the computation of said earnings to be made on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, as found above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily discharging Alvin Hongsermeier and Charles Thompson because of their adherence to and support of the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (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.] n Thompson is a robust individual 6 feet tall, weighing 180 pounds, and 22 years of age. Chalfant, whom I observed when he testified, was a much slighter individual and apparently much older. 586439-61-vol 129-50