The Great Atlantic & Pacific Tea Co., Inc

THE GREAT A&P TEA CO. The Great Atlantic & Pacific Tea Company, Inc. and Retail Clerks International Association, Local Union 1636, AFL-CIO. Case 12-CA-3531 June 28,1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed by Retail Clerks Interna- tional Association, Local Union 1636, AFL-CIO, on May 19, 1966 , the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 12, issued a complaint and notice of hearing, dated June 29, 1966, against The Great Atlantic & Pacific Tea Company, Inc., herein called Respondent , alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3), and 2(6) and (7) of the Na- tional Labor Relations Act, as amended . Copies of the charge and complaint were duly served upon Respondent. With respect to the unfair labor practices, the amended complaint alleges in substance that Respondent discriminated against certain em- ployees at its Orlando and Winter Park , Florida, stores , by announcing and thereafter withholding benefits from said employees, and otherwise also interfered with, restrained, and coerced said em- ployees by threatening to have employee Cairns discharged because he failed to cooperate and give information to Respondent's attorney concerning the Union and its activities. On July 8, 1966, the Respondent duly filed its answer, admitting certain allegations of the com- plaint but denying the commission of any unfair labor practices. On August 19, 1966 , all parties to this case en- tered into a stipulation requesting that this case be transferred and submitted directly to the Board for findings of fact, conclusions of law, and a Decision and Order. The parties waived hearing before a Trial Examiner and the issuance of a Trial Ex- aminer's Decision. On August 24, 1966 , the Board entered an order approving the stipulation and transferring the case to the Board. Thereafter, the Respondent and the General Counsel filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the basis of the parties ' stipulation, and upon the entire record in this case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 27 The Respondent is engaged in the business of operating a multistate retail food store chain, in- cluding stores in Florida. During the past 12 months, Respondent had a gross volume of busi- ness in excess of $1 million and received in Florida goods and supplies valued in excess of $100,000 directly from points outside the State. The com- plaint alleges, the Respondent has admitted, and we find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Local Union , 1636 , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Allegations of the Complaint The complaint alleges that since on or about April 25, 1966, the Respondent announced an addi- tional paid holiday but then discriminatorily withheld it from its grocery and produce employees at the Orlando and Winter Park, Florida, stores, because of employees' membership in or activities on behalf of the Union, although granting such benefit to all employees in the Jacksonville unit; and that such conduct is violative of Section 8(a)(1) and (3) of the Act. The complaint further alleges that in or about the middle of March 1966, Leonard Richardson, Respondent's assistant store manager, told employee William Cairns that Respondent's at- torney, Bartholf, threatened to have Cairns discharged because Cairns failed to cooperate and give information concerning the Union and its ac- tivities; and that such conduct was also violative of Section 8(a)(1) of the Act. B. Stipulation - The parties stipulated that on April 26, 1966, the Respondent issued a letter to its employees at its Orlando and Winter Park, Florida, stores, explain- ing that they were not being given an additional paid holiday as were other employees in the Jacksonville unit, and that this benefit was withheld because an election was pending. The parties further stipulated that during the middle of March, Respondent's su- pervisor, Leonard Richardson, told an employee, William J. Cairns, that Respondent's attorney, David Bartholf, threatened to have employee Cairns discharged because he failed to cooperate 166 NLRB No. 36 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and give information to Mr. Bartholf concerning the Union and its activities, during an investigation by Mr. Bartholf of charges which had been filed against the Respondent. It was further stipulated that on or about April 7 and August 8, 1966, the Respondent sent letters to employee Cairns, which were received by him, disclaiming any alleged threatss to discharge him. C. Background of the Dispute The stipulation of facts reveals that two elections have been conducted among all of Respondent's grocery and produce employees in eight Orlando and Winter Park, Florida, stores . The Union here was the Petitioner in both instances . The first elec- tion, conducted on September 29, 1965 , and lost by the Petitioner, was objected to on the ground that the Employer had interfered with the election "by giving unilateral raises and promises of additional raises within 6 months after the direction for the election had been issued." The Regional Director investigated the objections and issued a report on November 1, 1965 , in which he concluded that cer- tain objections relating to a pay raise and the an- nouncement of future pay raises interfered with the election, and he recommended the direction of a second election. The Respondent excepted to the report , and on December 28, 1965 , the Board is- sued its decision adopting the report and directing a second election. On February 10, 1966 , a second election was conducted and the Petitioner which lost the elec- tion, again filed objections alleging that, among other things, the Respondent was continuing to grant wage increases , which interfered with the election. Pursuant to a stipulation of the parties, the second election was set aside by the Regional Director and an order was issued directing a third election. The scheduling of this third election has been held in abeyance awaiting the outcome of this case. D. The Current Dispute (1) We are initially concerned here with the Respondent's withholding of ' an additional paid holiday from the same group of employees while a third representation election is pending. In support of its decision not to grant the addi- tional benefit to its grocery and produce employees in the Orlando and Winter Park stores, the Re- spondent contends that it wanted to be careful to avoid engaging in any objectionable conduct prior to the third election. Since a third election was pending, the Respondent's attorneys advised the Respondent not to make any changes whatsoever in any of the benefits enjoyed by those employees, except those in accordance with a preannounced company policy. The fact that the Respondent's decision was undertaken as a result of legal advice, of course, does not absolve the Respondent from the responsibility for the course of action under- taken, if in fact it is unlawful. The Respondent states that the primary purpose of the letter of April 26 was to keep the employees from having to ask questions of the managers and assistant managers regarding why they had not received the additional benefit. The Respondent states further that it was concerned that the managers and assistant managers, not being skilled in the field of labor relations, might say something in reply which could be pointed to later by the Union as objectionable conduct. The letter an- nounced that the holiday benefit was being withheld and then specifically stated: The reason for this is because the National Labor Relations Board has said that an em- ployer shall not increase or decrease the benefits its employees are receiving while an election is pending. As a matter of fact, the reason we are having to go through another election is because of the increase in the wages which was given to many of our Orlando and Winter Park employees before the last election. Therefore, we are unable to include you in this additional holiday. We are sure that you are just as tired of this union business and rerun of elections as we are, and we regret that we are unable to give you this additional holiday. We are sure that were we to grant this additional holiday to you prior to this election, the union would again file charges as they have in the past that the Com- pany cheated in the election by buying votes. (2) The complaint alleges, and the parties stipu- lated, that supervisor Richardson told Cairns, that Respondent's attorney, Bartholf, threatened to have Cairns discharged because he failed to cooperate and give information to Bartholf concern- ing the Union and its activities, during an investiga- tion by Bartholf of charges which had been filed against the Respondent. On or about April 7, 1966, the Respondent sent a letter to all of its employees, one of which was ad- mittedly received by employee William J. Cairns. The Respondent stated that "the purpose of this letter is merely to express my sincere thanks to each of you for your very warm cooperation to him [Mr. Bartholf] in these talks, to assure you that no action will be taken by the Company to `get even' with anyone for supporting the union, to report to you the results of his investigation and to clear up a few things." At the time this letter was sent, the Respondent had no knowledge of any threats by Assistant Manager Leonard Richardson to William J. Cairns. Following an interview with Leonard Richardson in which he admitted he had told William J. Cairns THE GREAT A&P TEA CO. 29 essentially the facts noted previously, the Respond- ent, through its personnel manager, Dreaden, sent a letter to William J. Cairns, on August 8, stating, "Please be assured that as long as you do your work properly you will have a job with the company. I ex- pressed that thought in my earlier letter to all the employees." The earlier letter referred to is the April 7 letter. The August 8 letter followed is- suanceof the complaint herein. E. The Contentions of the Parties The General Counsel contends that the dis- semination of the letter announcing the withholding of the additional holiday benefit and the actual withholding constituted violations of Section 8(a)(1) and (3). The General Counsel further contends that Respondent's alleged threat to discharge employee Cairns for failure to cooperate with its attorney warrants a finding of a violation of Section 8(a)(1), and requires the posting of a remedial notice ir- respective of Respondent's subsequent letters to Cairns disclaiming such threat. The Respondent claims that, inasmuch as the Board had previously held that the granting of wage increases to employees in this same unit while an election was pending interfered with and resulted in the setting aside of a prior election, it had little choice but to deny the additional paid holiday benefit to unit employees. The 'Respondent also contends that its letter of April 7 sent to all Orlando employees, and its letter of August 8 sent only to Cairns, cured or remedied any alleged violation. F. Discussion Prior to April 26 , 1966, the Respondent granted preelection wage increases to influence employees in an election.' On April 26, when Respondent sent its letter , neither the Union nor any of the em- ployees at the locations involved had raised any questions concerning the additional holiday. Yet, without any apparent reason for doing so at this time , it granted holiday benefits to unorganized em- ployees, and at the same time, withheld such benefits from employees about to vote on union representation . The April 26 letter tells these em- ployees in effect that , but for the Union, they too would have received an additional holiday. Further, the- additional gratuitous comment in the letter that "We are . .. just as tired of this union business, as we are sure you are and we regret that we are unable to give you this additional holiday," illus- trates that the letter was more than a mere informa- tional notice but was intended to exploit and bring home to the employees that the Union was respon- sible for their being deprived of additional benefits. In all the circumstances , we conclude that the Respondent's letter, announcing its withholding of benefits as well as its actual withholding of such benefits and its exploitation of such action, was a tactical maneuver designed to discriminate against employees and to interfere with the employees' freedom of choice, in violation of Section 8(a)(3) and (1) of the Act.2 Moreover, we further find that in the context presented, the discriminatory treatment of em- ployees was violative of Section 8(a)(1) and (3) whether or not there is proof that Respondent was motivated by an unlawful purpose as it was "in- herently destructive of employee interests,"3 and no persuasive evidence of a legOitimate purpose ap- pears therefor. Respondent in essence concedes that its super- visor threatened employee Cairns with discharge but that its subsequent letters cured any alleged violations. However, under all the circumstances, including the fact that the August 8 letter followed issuance of the complaint , we conclude that Super- visor Richardson's statement to Cairns should be found a violation of Section 8(a)(1), and that a post- ing of a notice is warranted.4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations of Respondent as set forth in section I, above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom, and that it make the em- ployees whole for the losses they have sustained as a consequence of the unlawful conduct, by granting the benefits that were instituted on April 26, 1966, with interest computed as in Isis Plumbing & Heat- ' As a general rule, an employer, in deciding whether to grant benefits while a representation election is pending, should decide that question as be would if a union were not in the picture On the other hand, if an em- ployer's course of action is prompted by the Union's presence, then the employer violates the Act whether he confers benefits or withholds them because of the Union. See McCormick Longmeadow Stone Co , Inc., 158 NLRB 1237; Agawam Food Mart, Inc., dlb/a The Food Mart, 158 NLRB 1294, T. L. Lay Packing Company, 152 NLRB 342; International Ladies' Garment Workers' Union, AFL-CIO, 142 NLRB 82, 143 NLRB 1168, enfd 339 F 2d 126 (C.A 2). 2 See McCormick Longmeadow Stone Co., Inc , 158 NLRB 1237. 3 N.L.R.B v. Great Dane Trailers, Inc., 388 U S. 26. 4 See Korner Kafe, Inc, 156 NLRB 1157, Chevrolet Motor Division, General Motors Corporation, 144 NLRB 862. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Co., 138 NLRB 716, and that it post ap- propriate notices. Cf. McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237; I.L.G.W. U., 142 NLRB 82, 83, enfd. in pertinent part 339 F.2d 126, 132-133 (C.A. 2). CONCLUSIONS OF LAW 1. The Great Atlantic & Pacific Tea Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local Union 1636, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By threatening an employee with loss of em- ployment because he failed to cooperate and give information to Respondent's attorney concerning the Union and its activities during an investigation, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby en- gaged in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. By its discriminatory treatment of employees on and after April 26, 1966, in its announcement of and the withholding of certain benefits, the Re- spondent engaged in an unfair labor practice affect- ing commerce within the meaning of Sections 8(a)(3) and (1), and 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relation Board hereby orders that the Respond- ent, The Great Atlantic & Pacific Tea Company, Inc., Orlando, and Winter Park, Florida, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) 'Threatening to discharge any of its em- ployees for refusing to give information concerning the Union and its activities. (b) Advising employees thereof and withholding benefits from them in order to discourage member- ship in a labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make its - employees whole, in the manner described in the portion of this Decision entitled "The Remedy," for any losses suffered on and after April 26, 1966, by virtue of the withholding of the holiday benefits then instituted. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms hereof. (c) Post at its stores at Winter Park and Orlando, Florida, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms pro- vided by the Regional Director for Region 12, after being duly signed by the Company's represen- tative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with loss of employment because they refused to give information concerning the Union and its activities. WE WILL NOT discriminate against em- ployees in order to discourage membership in a labor organization. WE WILL make the benefits we instituted on April 26, 1966, available to all of our em- ployees as of that date. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706 Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.