The Great Atlantic & Pacific Tea Co. Inc.

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Great Atlantic & Pacific Tea Company, Inc.' and Local' 525, Amalgamated Meat Cutters & Butcher Workmen of North America, ' AFL-CIO. Case No. 11-CA-2349. January -14, 1965, DECISION AND ORDER On October 26, 1964, Trial Examiner Laurence A.' Knapp issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices as alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Respondent filed exceptions to ,the Trial Examiner's Decision. 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 [Members Fanning, Brown, and Jenkins]. - - I ,r>;. The Board has reviewed the rulings of the Trial Examiner -made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision , the exceptions, and the entire record in this case, and hereby adopts the Trial Examiner's findings , conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order , the Order recom- mended by the Trial Examiner and orders that the Respondent, The Great Atlantic & Pacific Tea Company , Inc., its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Exam- iner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ' Following preliminary proceedings in accordance with the National Labor Relations Act, as amended, herein called the Act,l this case came on for hearing before Trial Examiner Laurence A. Knapp at Asheville, North Carolina , on June 1, 1964. Whether Respondent engaged in certain violations of Section 8(a)(1) of the Act, hereinafter described, are the questions presented for decision. Upon consideration of the entire record, including my observation of the demeanor of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT ; THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find- that Respondent,, The Great Atlantic & Pacific Tea Company, Inc., is a retail enterprise which during the 12 months 'The charge herein was filed on February 7, 1964, and was thereafter duly served on Respondent ; the complaint issued on March 25 , 1964; and Respondent answered on March 27, 1964. 150 NLRB No. 102. THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1011 preceding issuance of the complaint had gross sales across State lines in excess of $10,000,000. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, Local 525, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES In the latter part of January 1964 ,2 the Union undertook to organize the employees of Respondent's stores in the city of Asheville , North Carolina . As an incident of this organizing effort, the Union held a meeting for the employees concerned on the evening of February 5 at an establishment in Asheville variously described in the record as Home's Restaurant or Horne's Motor Lodge. So far as this record shows, notice of this meeting was spread among the employees by word of mouth, and in the days immediately preceding the prospective meeting it was the subject of discussion among some employees while at their work. The bulk of this case involves alleged conduct of supervisors of Respondent relative to this meeting. A. Supervisor J. T. Campbell Campbell is an assistant superintendent with supervisory authority over several stores in Asheville proper and the surrounding area, including the Patton Avenue store in Asheville. February 5, the day of the union meeting, was the day off for Andrew Jackson Lyles, an employee of the Patton Avenue store, on the second floor of which is located the office of Campbell . During the afternoon of that day, Lyles was informed over the telephone by some supervisor that Campbell wished to see him . Lyles demurred about appearing because he was in the process of moving his residence that day but the supervisor with whom he talked told him to come to Campbell's office anyway-that Campbell wanted to talk with him.3 Lyles testified as follows in this paragraph concerning what transpired in his meeting with Campbell . Campbell asked him if he was planning to attend the union meeting that night. Lyles replied in the negative , stating that he was in the middle of moving and thought he would not have time . Campbell went on to say that he would like Lyles to go to the meeting to see who was there, what went on, and what was said. Lyles reiterated that he did not think he would be able to attend , whereupon Campbell desisted from his request that Lyles attend. Campbell then told Lyles that if he disclosed to anyone what Campbell had said , Campbell would call him a liar so it would not do Lyles any good to reveal this conversation to others. I turn now to Campbell's testimony concerning this incident . On his direct exami- nation, Campbell, offering no explanation as to how his conversation with Lyles happened to come about, stated that he asked Lyles if he had heard there was to be a union meeting at Home's Restaurant that night and that Lyles replied in the affirma- tive ; that he then asked Lyles if he was going to attend tb see "what benefits they had or anything" ; and that Lyles said he was moving and was not going to attend. Camp- bell further testified that after Lyles related some amusing incident of his moving, he excused Lyles and "That was it." Campbell denied that he told Lyles he wished him to attend the meeting, and, with respect to Lyles' testimony that he told Lyles he would call him a liar if he reported Campbell's remarks, Campbell first stated he did not "remember" making that statement and then denied that he made it. On cross-examination, Campbell admitted that Lyles had been called to come in but denied that this was done at his request or that he knew why Lyles had been sent for. He did admit that he had asked some five or six other employees that afternoon whether they were going to attend the union meeting and, referring to Lyles' absence that day, stated that "we give the opportunity to anybody to go to the meeting." On redirect, Campbell was asked for a further explanation and then stated he did not know whether Lyles had heard of the union meeting and that he thought any employees not at work "should have the benefit" of attending the meeting. Finally, under examination by the Trial Examiner, Campbell was asked on what basis he had 2 All dates herein refer to 1964. 3 With just which supervisor Lyles personally spoke over the telephone ( after an initial message had concededly been left with his wife by Assistant Store Manager Smith) Is somewhat uncertain under the pertinent testimony . But resolution of. this subsidiary question is unnecessary , since Respondent's witnesses conceded that Lyles was called to come in by some supervisor at Campbell's Instructions . There is nothing in the related testimony which in any way reflects upon Lyles' credibility. 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selected Lyles and the other employees for purposes of mentioning the union meeting to them. Campbell's reply was that he just did this at random, that he did not "pick" any of them, and that he did not call Lyles. He then admitted, however, that Lyles had been called by some supervisor because he, Campbell, wished to talk to Lyles. He further admitted that he did not suggest to the general body of employees that they attend the meeting. This review of Campbell's full testimony as it gradually unfolded through direct, cross, redirect, and Trial Examiner questioning, marks Campbell as a rather artful witness. His effort to put upon others the initiative for calling Lyles, in the face of circumstances and his own later admissions establishing that the responsibility for this initiative lay with him, shows that Campbell was disposed to quibble and spar concern- ing the extent and nature of his connection with and participation in this incident, and thus manifests a guilty conscience. For there was nothing improper in his having sent for Lyles; what mattered was what took place when Lyles met with him. Campbell's version of what then took place is inherently implausible. If, as Camp- bell sought to establish, his purpose in talking to Lyles and the five or six' other employees was merely to insure that the affected employees became informed concern- ing'the Union's prospectus of benefits, such an aim would scarcely be'attained by his speaking, at random, to a few employees,.and is scarcely compatible with the special and insistent instructions by which Lyles, in particular, was brought in from his home to meet with Campbell in person. An open announcement to all employees affected would seem, under the circumstances, to have been the more appropriate course to satisfy the broader and innocent end Campbell professed to be attempting to serve. For these and related reasons, it seems clear that Campbell had some more particular and pressing reason for desiring to speak to Lyles, and to do so in the privacy of his office. Such a reason is offered by Lyles' testimony, which I credit. Accordingly, I find that Campbell questioned Lyles as to Lyles' prospective attendance at the union meeting and that this questioning had as its purpose, or in any case had as its necessary effect, sounding out Lyles respecting his union activities, sympathies, and desires, in violation of Section 8(a)(1) of the Act as charged in the complaint. I further find that in the conversation Campbell importuned Lyles to engage on Respondent's behalf in surveillance over those who attended and what transpired at the meeting, in further violation of Section 8(a) (1).4 , B. Supervisor James A. Anderson Herman Smith testified as follows' concerning a telephone call he received during the afternoon of February 5 from Anderson, manager of the Patton Avenue store where Smith worked. Anderson asked Smith if he knew about the union meeting that night, and Smith replied that he did not. Andersonthen said such a meeting was being held that night at Home's Restaurant and asked Smith if he was going. Smith replied that he did not think he could attend, explaining (apparently to Anderson) that due to illness in his family he had to do the laundry. Anderson then said "All right" and hung up. Anderson did not testify.5 I find the facts as testified to by Smith and that, through Anderson's questioning of Smith as to his intentions relative to attendance at the union meeting, Respondent interrogated Smith concerning his union activities, sympathies, and desires in violation of Section 8 (a) (1) as charged. C. Supervisor W. T. Beattie Beattie (whose name is mistakenly given as Warren-K. Beatty in the complaint) is an assistant superintendent of stores in the Asheville area, a position comparable to that of Campbell (supra). The complaint charges that Beattie engaged in surveillance over the union meeting of February 5. Evidence in support of this allegation was given by two witnesses for the General Counsel. Some description of the meeting place will facilitate an understanding of all pertinent testimony. The meeting, lasting from about 8 to 10 p.m., was held in a private dining or meet- ing room at Home's Restaurant. There was access to this room from another dining room, known as the Crown Room, and there was access to the Crown Room, in turn, * This latter unfair labor practice was not charged in the complaint but following a request for clarification made by the Trial Examiner at the close of the General Counsel's case, counsel for' the Geneial -Counsel 'stated, without objection by counsel for Respond- ent, that he was' claiming such a violation. Thus this issue'was fully litigated on notice. 5 Anderson was in the hospital at the time of the hearing but Respondent did not at hearing indicate that his testimony could not have been taken otherwise than by personal appearance at the hearing. THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1013 from the outside. By use of a folding door or partition, the room used for the.Union's meeting could be closed off from the Crown Room, but-to obtain a complete closure was somewhat difficult because of the way the closing mechanism was working. While the meeting was in progress, the folding door or partition failed to effect a complete closure or complete partition between the two rooms, leaving an open gap of about 1 foot. Employee,Lyles testified that about midway of the meeting, he observed Beattie in the Crown Room, looking into the meeting room through this aperture with his head turning from side to side. He placed Beattie about 1 foot away from the gap, and he, Lyles, about 15 feet from Beattie. Lyles stated that he kept his'eyes on Beattie in this position for about 5 seconds and then he, Lyles, shifted his gaze from Beattie to the speaker who was addressing the meeting. When the meeting ended, Lyles testified, he mentioned to the Union's president what he had seen but that this matter was already under discussion and consequently, he testified, "I just said that I had seen him." The General Counsel's other main witness in this connection .was a Mrs. Lillian Freeman, hostess and cashier at Home's Restaurant at this time. During a previous period, Freeman had for some 11 years owned and operated a business near an "A & P" store and was well-acquainted with Beattie. Freeman testified as stated in this paragraph. She first noticed'Beattie and his wife seated at a' table in the Crown Room, waiting for their food-order to be served, at which time she spoke to them and served them coffee. Later, Beattie came up to pay his check. At this juncture, Beattie either stated "that some of my people who worked for A & P" were in the private dining room, and then said to her, "Do you know any of them, Lillian?" She replied that she knew several by their faces but not-many, or. not any, by their names. On Beattie's way back to his 'table, after he had paid his check, he paused at the opening into the Union's meeting room and, standing as close to the opening as he could, looked into the meeting room glancing from side to side while looking into the room. Beattie so occupied himself for a few seconds and then returned to the table where his wife was waiting. She did not see Mr. and Mrs. Beattie depart from the restaurant but her duties kept her in regular- movement within and beyond the Crown Room. She knew before the Beatties arrived that "A & P" employees were present at the meeting but she did not know until after its termination (sometime after the Beatties had left) that it was a union meeting, which she ascer- tained from pamphlets she observed when the room was being cleaned. Her essential testimony was not shaken on cross-examination.6 I tum now to a summary of Beattie's testimony. He testified that he and Mrs. Beattie dined at restaurants most of the time, and most frequently at Buck's Restau- rant. On this occasion, he determined upon Home's because it was a rainy evening and the entrance to Home's had overhead protection not provided at Buck's. He denied knowing that any "A & P union" meeting was being -held at Home's, denied looking into the union meeting room, and denied seeing any A &,P employee while at the restaurant. As to Freeman's testimony, which he had heard, he stated that when paying his check he did not say to her but she said to him "some of your folks are in here in a meeting"; that he then turned his head (meaning, apparently, in the direction of the private room); that he may have but did not remember having asked her who were in attendance; and that he then went directly back to his table and escorted Mrs. Beattie from the restaurant. In assessing the foregoing main body of relevant evidence, the testimony of Freeman is entitled to paramount weight since she was a disinterested witness. More- over, she impressed me as a person of considerable presence and an alert, intelligent, and honest witness stating what she knew as accurately as she could recall and without fear or favor. I credit her testimony. It is a salient feature of that testimony that either in the form of a statement or a question put to her by Beattie, he volunteered to her definite or qualified knowledge that a meeting of Respondent's employees was proceeding in the adjoining room.? 6 On cross-examination, she said that while it was possible that she was the first to make reference to the "A & P" employees being in the private room when Beattie came up to her to pay the check, she as "almost positive" that this first mention was made by Beattie, and completely positive that he asked her if she knew any of the employees in attendance and that Beattie then engaged in his observation into the meeting room. 7 As previously stated, according to Freeman, Beattie either stated that, or inquired whether, some "A & P" employees were assembled in the private room. But even if he used the question form, what he said implied' that he had some reason to believe that employees were gathered there. In this connection, I find, as the weight of Freeman's testimony indicates, that Beattie, rather than she, first made reference to the existence of the gathering of employees: 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I so find, and further find that he thereupon asked her to identify those in attendance and, when she could not do so by name, he proceeded to look into the meeting room in the manner Freeman and employee Lyles described. I further find that Beattie knew in advance of the meeting and its character. His prior knowledge is indicated by his initial remarks to Freeman . Moreover, colleagues of his on Respondent's Asheville supervisory force were aware of the meeting and had that afternoon taken steps designed to inform Respondent concerning who might attend and what might transpire at the meeting. Furthermore, Beattie shared with Campbell top supervisory authority over the stores in the city of Asheville, the ones to which the Union was limiting its organizational efforts,8 and what Campbell knew it is reasonable to infer Beattie did also.9 These circumstances, combined with what Beattie actually said and did while at Home's Restaurant, persuade me, as I find, that Beattie visited Home's Restaurant for the purpose of engaging in and there did engage in surveillance over the union meeting. By his conduct in so doing, Respondent engaged in a violation of Section 8(a)(1) of the Act. D. Frank W. Alexander Alexander was at the relevant time manager of the meat department of the Biltmore Avenue store in Asheville. There were four employees under his supervision, includ ing Ruth Rice, Geneva Boone, and Eldo Reed. Alexander's immediate supervisor was Grover Thompson, supervisor of the meat departments of the stores in the Ashe- ville area, including the Biltmore Avenue and the six other stores in the city to which the Union's organizational effort extended. Excluding its meat department; the Bilt- more Avenue store was one of those under Beattie's supervision 10 Rice and Boone gave substantially the same testimony. It is that during the morn- ing of February 6, the day following the union meeting, Alexander told them (while he and they were together) that Thompson had told him that Beattie had said that three employees in Alexander's department had been at the meeting; and that Alex- ander named the two ladies and employee Reed as the three. All three, in fact, had attended the meeting. Thompson's testimony is that when he appeared at this store that morning, "some people" at the front of the store ",were discussing the union meeting of.the preceding evening, and: somebody said to me, he said, "Did you know you had 3 from the meat department of Biltmore Avenue at the meeting last night," and I said, "No," I did not have that information. Thompson testified that he then spoke to Alexander as follows: I said, "Frank, did you realize that you had 3 employees at the meeting last night," and he says, "what meeting," and I said, "Do you mean to tell me you didn't know there was a union meeting last night," and he said, "I did not." I said, "Well, there was and you are supposed to have had 3 representatives there." Thompson denied receiving this information from Beattie, with whom, he testified, he had had no conversation until later on February 6. Alexander confirmed that he told the ladies that Thompson had told him that three of his employees had attended the meeting. He denied, however, that Thompson had mentioned to him, or that he had mentioned to the ladies, the name of Beattie. Whether Beattie's name was mentioned, and whether Beattie was Thompson's source of information, are immaterial points of fact. What is material is the two ladies were told that their presence at the union meeting the night before was known to their employer. Nothing that was said to the employees indicated that this information had reached Respondent's attention in any innocent way, or that the fact of their attend- ance was of no moment to Respondent. Rather, what Alexander told the ladies and 8 Respondent has seven stores in the city proper, five of which were under Campbell's and two under Beattie's authority. e The fact that Beattie had been heavily preoccupied in the days preceding and includ- ing February 5 with remodeling a store some 25 miles distant from Asheville, stressed in Beattie's testimony, has no tendency to establish any absence of communication between him and supervisory colleagues of his who were keenly interested in the subject of the union meeting. 10 The supervisory authority of Messrs. Campbell and Beattie embraced the grocery and produce operations but not the meat departments of the Asheville area stores under their respective jurisdictions. 3 'Later, Thompson identified the store manager as among these "people"; he could not recall the others: THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 1015 what prompted him to say it (the report from his superior which he passed on to them) was calculated to give them the impression that they had done something both wrong and in secret, but which Respondent nevertheless had ferreted out. Since employees normally and for good reason surround their attendance at such organizing meetings with secrecy or privacy so far as their employer is concerned, these ladies were entitled, absent any other explanation to them as to how this information had been obtained, to believe that someone on Respondent's behalf had kept a watch over the meeting and noted their attendance. By thus creating in them the impression that Respondent had engaged in such surveillance, Respondent violated Section 8(a) (1) of the Act. E. Alfred Smith Smith was assistant manager of the Patton Avenue store at the time of the incident dealt with below. Employee Aldon Bradley testified that on a date which I find was Friday, February 7, 2 days after the union meeting, Smith asked him what he thought about the Union; and that, in reply, he said to Smith that the Union had its good and its bad points. Smith testified that he had a conversation with Bradley on this date, "assumed" that the Union was its subject, and "maybe" asked Bradley "how he felt." Hence, I find that Smith made the inquiry as Bradley described it. Smith's inquiry, while the organization campaign was in progress, as to Bradley's attitude toward the Union was unlawful interrogation, in violation of Section 8(a) (1) of the Act. Ill. THE REMEDY The unfair labor practices call for a corresponding cease-and-desist order, and, as appropriate affirmative relief, a requirement that Respondent post a suitable notice at its stores in the city of Asheville, where are employed the employees affected by the unfair labor practices. CONCLUSIONS OF LAW 1. By interrogation of its employees respecting their union activities, sympathies, and desires; by seeking to induce an employee to act as an informer respecting a meet- ing of the Union; by giving employees the impression that their union activities were under surveillance; and by engaging in surveillance of the union activities of its employees, Respondent has engaged in unfair labor practices in violation of Section 8 (a)( 1 ) of the Act. 2. The aforesaid are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the foregoing findings of fact and conclusions of law, on the entire record as a whole, and pursuant to Section 10(c) of the Act, I recommend that the Respondent, The Great Atlantic & Pacific Tea Company, Inc, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees respecting their union activities, sympathies, or desires. (b) Inducing or attempting to induce any employee to act as an informer respect- ing the union activities of its employees. (c) Engaging in surveillance, or giving its employees the impression that it is engaging or has engaged in surveillance, of or over the union activities of its employees. (d) In any like or related manner interfering with; restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act:(a) Post at all its stores in the city of Asheville, North Carolina, copies of the attached notice marked "Appendix." 12 Copies of such notice, to be furnished by the Regional Director for Region 11, shall, after being duly signed by an authorized representative of the Respondent, be posted immeditaely upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, 12 In the event that this Order is adopted by the Board, the words "as Ordered by" shall be substituted for "as Recommended by a Trial Examiner of" in the notice. In the further event that the Board's Order is enforced by a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order of" shall be inserted immediately following "as Ordered by." 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 11, in writing , within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.l3 11 In the event that this Order is 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, we are posting this notice to inform our employees of the rights guaranteed them in the National Labor Relations Act: ALL OUR EMPLOYEES have the right to join or assist Local 525, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other labor union . They also have the right not to join or assist any labor union. WE WILL NOT question any of our employees regarding their attendance or prospective attendance at any union meeting or otherwise coercively question them concerning their union activities , sympathies, or desires. WE WILL NOT request any employee to inform us concerning the attendance of our employees or what may take place at any union meeting, and WE WILL NOT engage in surveillance of union meetings of our employees or create the impression that we are engaging or have engaged in such surveillance. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) 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, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone No. 724-8356, if they have any questions concerning this notice or compliance with its provisions. Local Freight Drivers, Local No. 208 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica; and Steel, Paperhouse & Chemical Drivers & Helpers Local No. 578, IBT and Les Brockman. Case No. 21-CC-755-1. January 14, 1965 DECISION AND ORDER On November 10, 1964, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision. The Respondents filed no exceptions. 150 NLRB No. 104.