The Great Atlantic & Pacific Tea Co., Inc.

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