Davis Food City, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1972

198 N.L.R.B. 94 (N.L.R.B. 1972)

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Food City, Inc. and Local 455, Retail Clerks
International Association, AFL-CIO. Case
23-CA-4084
July 10, 1972
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 23, 1972, Trial Examiner Herzel H. E.
Plaine issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Davis Food City, Inc., its officers , agents,
successors, and assigns , shall take the action set forth
in the Trial Examiner 's recommended Order, as
herein modified:
1. Amend paragraph 2(a) of the recommended
Order by deleting the words "restore her schedule of
full-time , daytime hours" and substituting therefore
"restore her to her former schedule of full-time
hours."
2. Amend paragraph 2(c) of the recommended
Order by striking the phrase "stores in Houston and
Dallas , Texas," and substituting the phrase "store at
8106 South Park Boulevard , Houston , Texas."
3. Substitute the attached notice for the Trial
Examiner 's notice.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner . It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F.2d 362 (C.A 3) We have carefully examined the record and find no basis
for reversing his findings.
WE WILL NOT coercively interrogate you as to
the union sympathies and activities of your fellow
employees.
WE WILL NOT grant wage increases or other
economic benefits in order to persuade you not to
become interested in the Union or not to join the
Union.
WE WILL NOT discourage your interest or
membership in the Union by subjecting you, if
you engage in union activity, to denials of wage
increases, cuts in wages or hours, or assignments
to less desirable hours, or otherwise discriminate
against you in your tenure and conditions of
employment.
Since the Board found that we failed to give
employee Bonnie Guillory a wage increase on
August 1, 1971, and cut her wages and hours and
assigned her to less desirable hours, because of her
union activity, WE WILL give her backpay with
interest for the loss of earnings since August 1, 1971,
and place her in the higher job and wage classifica-
tion to which she was entitled by reason of the wage
increase of August 1, 1971, and will restore her to her
former schedule of full-time hours.
DAVIS FOOD CITY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-4296.
TRIAL EXAMINER'S DECISION
HERZEL HE. PLAINE, Trial Examiner: The question
presented was whether Respondent, Davis Food City, Inc.,
a chain grocery, violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by granting a wage increase
to employees in August 1971 to blunt a union organizing
drive of its store employees by the Charging Party (the
Union), Local 455, Retail Clerks International Association,
198 NLRB No. 24
DAVIS FOOD CITY 95
AFL-CIO, and by interrogating employees about the
union activities of fellow employees; and whether, at the
same time , Respondent violated Section 8(a)(3) and (1) of
the Act by decreasing the wages and hours of work of the
employee leader of the union organizing drive.
The case was tried in Houston, Texas, December 21 and
22, 1971, on a complaint filed September 30, 1971 (resting
on a charge filed August 27, 1971), and Respondent's
answer, generally denying any wrongdoing. General
Counsel and Respondent have filed briefs.
Upon the entire record of the case, including my
observation of the witnesses and consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Texas corporation engaged in sale at
retail of groceries in various stores or supermarkets in
Houston and Dallas, Texas. In the year prior to issuance of
the complaint, Respondent sold goods valued in excess of
$500,000, and received goods valued in excess of $50,000
transported in interstate commerce from places outside
Texas.
Respondent is engaged, as it admitted, in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Union is, as Respondent also admitted, a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Discrimination Against Employee Guillory
Respondent operates five grocery stores or supermarkets
in Houston and one in Dallas, and employs between 150
and 200 employees in the five Houston stores, according to
its president and owner (sole stockholder) A.L. Davis. Only
the personnel of the meat department of the stores are
unionized, affiliated with the Meatcutters Union and so
affiliated when Davis acquired the stores.
In December 1970, the Union inaugurated an informa-
tional handbilhng, outside Respondent's stores, asking
prospective customers to boycott the stores because,
testified President Davis, he was said to be paying
substandard wages to his employees. This handbilling or
boycott lasted about 10 days and terminated just before
Christmas 1970.
At the time, and since, employee Bonnie Guillory was
and is a grocery checker on the cash registers in the South
Park store in Houston, employed since June 1970. Neither
she nor any other employee had been involved in the
informational handbilling or boycott.
In early July 1971, testified employee Guillory, she
undertook in cooperation with the Union to help organize
the nonunion employees of the South Park store (also
known as store 2). There were about 35 such employees she
said, and employee Guillory testified that she approached
and talked to about 27 or 28 of them, almost entirely in
and about the store premises. Pursuant to instructions from
the union official, she carried a pad of paper and asked
each employee who might be interested in the Union to put
his or her name and address on the pad. Most of those she
approached on the subject signed the pad, Guillory
testified, but a few did not. Generally, she said, the signers
asked questions about benefits and union dues. Employee
Guillory was the only store employee who engaged in this
organizing activity.
Employee Guillory turned in her list of names and
addresses to the Union and, according to Union Business
Representative Noria, the Union mailed, to each of the
approximately 21 employees listed , a letter (G.C. Exh. 4)
telling of what it hoped to do for them in terms of wages
and benefits and urging each to sign and return an
enclosed union authorization card. The letter was dated
July 30, 1971, and Nona testified it was mailed that day.
Later, on August 13, the Union , using one of its
professional staff, attempted to handbill the employees
inside the store but, after partially distributing the leaflets
(dated August 11, 1971, G.C. Exh. 5), was stopped by Store
Manager Howard Haglar, second in command to Supervi-
sor-Manager Jim Ward. (There was a similar distribution
made or attempted at other of Respondent's stores.)
The union letter of July 30 was received by the
employees to whom it was addressed, and was also seen by
the store management . Witness Gregory Johnson, for the
General Counsel, testified that employee Guillory talked to
him about the Union in the third week of July 1971, and
that he received the July 30 letter about 1 or 1-1/2 weeks
thereafter. Witnesses for Respondent, Jim Ward, supervi-
sor-manager (in charge of the store), and cashier Nancy
Johnson, indicated that they saw copies of the letter
brought in to them by employees who had received copies.
Supervisor-Manager Ward claimed he didn't see a copy of
the letter until Tuesday, August 17, when a cashier brought
it in. Cashier Nancy Johnson testified that employee Lou
Franks brought a copy of the letter to the office after
August 13 when the Union did a handbilling of the store,
at least she thought it had to be them, but wasp t sure.
Employee Franks came to the office with they letter,'
according to cashier Nancy Johnson, addressing both
Ward and herself and wondering (aloud) how she got the
letter. Cashier Nancy Johnson undertook to reply (Ward
said nothing, according to her), and her reply indicated full
previous knowledge of the organizational effort and how it
was conducted: "I said, `Well, Lou, if you got the letter, the
only way you could get it would be if you gave your name
and address to Bonnie [Guillory] and she gave it to the
union and they sent you the letter.' "
Cashier Nancy Johnson also testified that she too had
been approached to sign up by Bonnie Guillory, possibly 3
to 5 weeks pnor to the August 13 handbilling, but declined
to sign; and employee Gregory Johnson (who since
resigned his job on Thanksgiving 1971) testified that he
heard cashier Nancy Johnson telling Supervisor-Manager
Jim Ward, at a time pnor to the August 13 handbilling,
that Guillory was trying to get the Union in the store.
I This was evidently not the same copy of the letter Supervisor-Manager with her copy of letter on a Monday, Wednesday , or Thursday , according to
Ward referred to receiving on Tuesday, August 17, because cashier Nancy Nancy Johnson.
Johnson said she did not work on Tuesdays, and employee Franks came in
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cashier Nancy Johnson in her direct testimony denied that
she ever told Supervisor-Manager Ward that employee
Guillory was doing the organizing for the Union, but
cashier Nancy Johnson's own testimony on cross-examina-
tion, particularly the quotation above, made in Ward's
presence, indicates the contrary. I am also satisfied that the
information concerning Guillory's union activity was
conveyed to and known by Supervisor-Manager Ward well
before August 13, notwithstanding his denial.2 Indeed
there is testimony by employee Gregory Johnson that, even
prior to the Nancy Johnson-Ward conversation which took
place before the August 13 handbilhng, Ward told his
second in command, Store Manager Howard Haglar, that
employee Bonnie Guillory was trying to get the Union in
the store.3 (See fn. 4, infra.)
On Thursday, August 5, 1971, according to Store
Manager Haglar, he received word from Respondent's
central office that there was to be a general pay raise,
starting with the week already begun on Sunday, August 1.
Haglar immediately called Supervisor-Manager Ward at
his home, where he was on vacation, to aid, said Haglar, in
preparing the list of employees to receive the increases, in
turn to be reported back to the central office for making up
the Saturday payroll (paid to the employees on the
following Wednesday). Ward testified that was when he,
too, first learned of the pay raise.
Employee Guillory, who was a checker, and employee
Marvin Cox, who worked in the produce department, were
the only two of the eligible employees who did not receive
the pay raise (in their classifications the increase was from
$2.25 per hour to $2.50 per hour), according to Supervisor-
Manager Ward and Store Manager Haglar. However, it
turned out, on cross-examination of both supervisors, that
employee Cox was on vacation at the time, and when he
returned he was given the raise. However, employee
Guillory was not given the raise but was given a cut in pay.
Supervisor-Manager Ward said he talked to employee
Cox when Cox returned from vacation on August 16 and
told him that his previous wage rate of $2.25 per hour had
been abolished under the August 1 schedule, and that he
was going to have to be worth $2.50 per hour, the new rate.
Ward said he gave employee Cox the choice of improving
or of being fired, and paid him the $2.50 rate. As Store
Manager Haglar testified and General Counsel's Exhibit
13, the payroll for the week ending August 14, shows,
employee Cox actually received the new rate of $2.50 per
hour in the week ending August 14; hence the raise was
given Cox retroactively following Ward's conversation
with him on August 16.
In employee Guillory's case, on the other hand, she was
informed by Assistant Store Manager Senale on or about
August 9 that while her previous $2.25 hourly rate had
been replaced by the $2.50 hourly rate, she would not be
getting the new rate and would be paid henceforth $2 per
hour, the next lower rate. Getting no satisfactory explana-
8 Ward's denial was worthless, because he claimed he did not know of
Guillory's union activity until the unfair labor practice charge was filed
(August 27, 1971), whereas the testimony of Respondent 's witness cashier
Nancy Johnson made clear that Ward knew of Guillory's activity well
before then
3 In this connection , these conversations, at the store "office," could
readily be observed and heard by persons nearby even if not directly
tion for the cut from Senale, employee Guillory went to
Supervisor-Manager Ward the next day. According to
Ward, he told employee Guillory that with the elimination
of the $2.25 wage rate at which she had been paid, he could
not move her up to the $2.50 rate because of her job
performance, and so he had to put her back to the next
lower rate of $2 per hour. According to Guillory, Ward's
explanation of the cut in pay was that she wasn't helping
the store where others were.
When Guillory asked Ward if there were others who had
been similarly cut in pay, Ward testified he told her he
would not discuss other employees with her. In this
connection, the wage rate classifications are not posted,
said Ward; an employee had to come in and ask about
them. The August 1 wage increase was effective in all of
Respondent's stores, said Ward, but Guillory was the only
employee identified as receiving a pay cut. -
Discussing employee Guillory's alleged poor perform-
ance, said to be the cause for the pay cut, her most
immediate supervisor, Assistant Store Manager Seriale,
testified that on "the register she is a great checker," but
that she had a tendency to wander off from the register.
Supervisor-Manager Ward claimed that prior to the wage
cut, when Guillory worked on the late shift, she would not
stay beyond the 10 p.m. closing and help put groceries
back on the shelves. He cured that by talking to her, said
Ward, but thereafter when she stayed late, she started
throwing groceries at random in open places on the
shelves. Again he talked to her, said Ward, and she
improved in that regard. There was an episode when she
refused to clean up a cash register area, but this occurred in
October 1971 (about 3 months after the wage cut),
according to Ward. He also complained, in his testimony,
that she had been absent or late in connection with Sunday
work, but admitted that he had never reprimanded her for
absences on Sunday or because she came late.
At the same time that employee Guillory was informed
of her pay cut she also suffered a cut in her scheduled
hours of work, and a rescheduling that was essentially
evenings and nights rather than her previous daytime
hours, She formerly was scheduled for from 38 to 40 hours
per week, but after the week ending August 14, 1971, her
scheduled hours according to Ward were reduced to a
maximum of 28 hours per week over 4 days per week, and
these were hours that ended up at 10 p.m. each day, except
Saturday at 6 p.m. According to Ward, the reduction in
hours was principally Sunday hours (Sunday is a regular
workday in the store).
Again, as with the pay cut, employee Guillory was not
informed until after the cut in hours was made. Supervisor-
Manager Ward claimed that he explained to employee
Guillory that neither Store Manager Haglar nor Assistant
Store Manager Seriale, who usually took turns in handling
the store on Sundays, wanted her working on Sundays
because she needed supervision they could not give when
involved, because, as Store Manager Haglar stated , the office is actually an
open cigarette counter and booth where Nancy Johnson operates as both
cigarette booth operator and cashier . Employee Gregory Johnson testified
that he was at the counter for change when the Nancy Johnson-Ward
conversation took place, and was going by the "office " when the Ward-
Haglar conversation occurred
DAVIS FOOD CITY 97
either of them was in charge alone. Ward admitted that he
had never told employee Guillory that Supervisors Haglar
or Senale complained about her prior to the time he cut her
out of Sunday work and reduced her hours; and he also
conceded that, though he permitted employees who had
taken off time to make up lost time, he did not allow
Guillory to work more than the reduced schedule.
Section 8(a)(3) and (1) Findings
Employee Guillory was the only store employee engaged
in organizing the employees for the Umon. The store
employees and management knew it, and Respondent
retaliated by (1) reducing her hourly rate of pay at the
same time it increased the hourly rate of the other
employees, (2) reducing her total wages with a cut in the
scheduled hours she could work per week, and (3) putting
her regularly on the less desirable evening and nighttime
hours of work in place of her previous usual daytime
schedule. She alone was the sole employee reduced in pay,
hours, and desirable scheduling.
This discriminating action by Respondent was initiated
abruptly and without any warning to employee Guillory,
immediately following the Union communicating individu-
ally with the store employees whom Guillory had begun to
recruit. While the abruptness and timing of the discrimina-
tion are, by themselves, persuasive evidence of Respon-
dent's unlawful motivation, N.L.R.B. v. Sutherland Lumber
Co., 452 F.2d 67 (C.A. 7, 1971), Respondent's sham
explanation for its conduct toward employee Guillory, and
its singular treatment of her, even different from that
accorded marginal employees, provide additionally persua-
sive evidence of Respondent 's illegal intention.
Employee Guillory was admittedly an excellent checker,
but Respondent claimed that it cut her pay and hours
because she had exhibited certain failings, such as wanting
to leave at the 10 p .m. close of business, on occasions when
she worked late, without helping to restore merchandise to
the shelves or putting the merchandise in the proper
shelves. However, Supervisor-Manager Ward admitted he
had cured these alleged failings prior to making the cut in
pay, by talking to her, and that he had not previously
raised any question with, or reprimanded, employee
Guillory about certain absences or late arrivals on
Sundays, also suggested at trial as a further failing. The
alleged incident of a failure by employee Guillory to clean
her register was conceded to have happened several
months after the cut in pay. And Respondent's alleged
reason for the reduction in Guillory's hours, namely, that
the store supervisors complained they did not want her
working with them on Sundays because it was said she
wandered about the store, was admittedly never called to
employee Guillory's attention until after the cut in hours.
Altogether, the total explanation had the appearance of
either resurrecting dead issues or conjuring up complaints
that had not arisen when the discrimination took place.
Nevertheless, even if we were to assume that employee
Guillory was not performing her work in all respects as
Respondent wanted; the disparate wage and hour treat-
ment accorded her was in sharp contrast to that accorded
the alleged marginal or submarginal employee Marvin
Cox. Both employees Guillory and Cox were not put on the
original list by Supervisor-Manager Ward to receive the
wage increase of August 1, on the alleged ground that
neither was deserving . However in the case of Cox, who
was on vacation , when he returned , Supervisor-Manager
Ward talked to him, explained why Ward was unhappy
with his performance , but gave him the wage raise , starting
in the previous week, on condition that Cox would strive
for and show improvement in performance of his work.
The same discussion and opportunity was not offered to
employee Guillory, notwithstanding the fact that she had
previously shown responsiveness and improvement when
Supervisor-Manager Ward brought a complaint to her
attention. This special discrimination against employee
Guillory reinforces the view that her activity for the Union
was the real problem of concern to Respondent , not her
work performance, and that retaliation against her, to
impress her and all the employees with Respondent's
disapproval of her union activity and to discourage that
activity, was the object that Respondent had in mind.
Respondent's discriminatory conduct toward employee
Guillory was a violation of Section 8(a)(3) and (1) of the
Act. N.L.R.B. v. Bin-Dictator Co., 356 F.2d 210, 215 (C.A.
6, 1966), denial of wage increase to union protagonist;
N. L. R. B. v. My Store, 345 _ F.2d 494, 497 (C.A. 7, 1965),
cert. denied 382 U.S. 927, cutting hours of employment of
union adherents; N.L.R.B. v. Lowell Sun Publishing Co.,
320 F.2d 835, 840 (C.A. 1, 1963), assignment to less
desirable night work of employee member of union
organizing committee.
B. Interrogation Concerning Union Activity
Employee Carl Schmidt is an employee at Respondent's
South Park store who had been working for 8 months at
the time of the trial . Since he was also a high school
student , age 16 , he worked part time. His job was a stocker,
and he shared in the wage increase of August 1, 1971.
Employee Schmidt testified that some weeks before the
August 13 handbilling of the store by the Union, he was
engaged in conversation with Store Manager Haglar.
Haglar asked him, said Schmidt , if employee Bonnie
Guillory had said anything to him or other employees
about the Union. Schmidt testified that he replied, no, but
asked Haglar , "since you mention the Union , would it help
me?" Haglar replied , according to employee Schmidt, that
a union would not help a part-time boy much.
Employee Schmidt further testified that he did not know
at the time of his conversation with Store Manager Haglar
that employee Guillory was active for the Union, that she
got in touch with him later and asked if he wanted to join
the Union, and told her yes.
Store Manager Haglar admitted talking with Schmidt
about the Union, but said the discussion occurred after the
August 13 handbilling and related only to Schmidt's
,question, whether belonging to the Retail Clerk 's Union
would help Schmidt, and Haglar's reply, that he couldn't
see how it would help Schmidt.
However , it was brought out in cross -examination by
Respondent of employee Guillory, that Store Manager
Haglar was asking other employees who was behind the
Union, a fact that supported employee Schmidt's testimo-
ny. Moreover, because employee Schmidt was in the
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vulnerable position of a current employee testifying
adversely to his employer, his credibility was entitled to
added support, Georgia Rug Mill, 131 NLRB 1304, 1305,
fn. 2 (1961); Wirtz v. B.A.C. Steel Co., 312 F.2d 14, 16
(C.A. 4, 1963).4
Section 8(a)(1) Fording
Store Manager Haglar's inquiry of employee Schmidt
and other employees as to who among their fellows was
pushing the Union was coercive , N.L.R.B. v. Harbison
Fischer Manufacturing Co., 304 F.2d 738, 739 (C.A. 5,
1962), and interfered with the employees' free exercise of
their organizational rights under the Act, in violation of
Section 8(a)(1), N.L.R.B. v. Midwestern Instruments, Inc.,
264 F .2d 829 , 831 (C.A. 10, 1959).
C. The August 1971 Pay Raise
According to the testimony of President A. L. Davis, the
August 1971 pay raise applied to all of its stores and
became effective for the week ending August 7, 1971.
Davis testified that the raise did not include everyone, but
did affect a substantial number, about 50 percent of the
employees, he said. However, looking at the details
supplied for the South Park store, it appeared that the
percentage was much higher, because 20 out of 32
employees, or 63 percent, received the wage rate increase in
the week ending August 7, or, as in the case of employee
Marvin Cox, in the week ending August 14. All 20 were
full-time employees, who averaged 40 hours or better per
week.5
President Davis testified that there was no schedule for
the timing of pay raises, and that he alone in the Company
made the judgment that an increase was necessary or
desirable, based on the competitive wage market and
ability of the Company to pay. There had been four
previous increases between August 18, 1970, and June 14,
1971 (each gradation in the classifications did not get a
boost each time), and, although the last wage increase had
been only 1-1/2 months previous, President Davis said he
decided to move up the next increase to August 1 because
he thought there might be some governmental controls and
he did not want the Company caught with a low wage scale
during the period of controls. "Therefore," said Davis, "I
speeded up the increase that would have actually been put
into effect at some later date in the year . . . . The time
was influenced by the imminence of a freeze."
However it is general knowledge that the wage and pnce
freeze announced by President Nixon on August 15, 1971,
effective at the close of August 14, 1971, was a well-kept
secret before its promulgation, and came as a surprise to
the Nation, particularly since the national administration
4 It would also appear from employee Schmidt's testimony and the
related testimony , that Store Manager Haglar was aware of union
organizing in the store and of employee Guillory's activity in that regard,
prior to July 30 and before she had completed her recunting of member
prospects and turned her list in to the Union.
8 G C. Exh 7 showing the employee roll and wage rates on July 31 is
starting point . Of the 46 names appearing thereon, the last 8 , Nos. 39
through 46 , the meat department personnel , who have a separate pay
agreement , are eliminated . Also eliminated from the remaining 38 names
are 6 more names, for a net of 32 The six are Tony Postel, No. 21, and
had taken the public position, up until the actual
announcement of the freeze, that it was against, and would
not invoke, wage and price controls.6
On cross-examination, President Davis admitted that
this state of affairs was so that he did not have any advance
knowledge of, and did not know there were going to be,
wage controls or a freeze when he made his decision to give
the wage increase of August 1, and that, like everyone else,
he knew that President Nixon had said he was against
controls until he announced the freeze of August 14. Davis
said what he really meant was that the business journals
had been debating for a long time the need for controls but
he also admitted that in June, July, and August, 1971, there
were no articles in the journals or occurences that led him
to believe wage control was more imminent then than it
had been 4 or 5 months before.
President Davis testified that he had been aware of the
December 1970 handbilling and informational picketing
by the Union. He claimed that his first knowledge of the
Union's activity in 1971 came in the second week in
August, when the stores called into him to say they were
being handbilled inside the stores.
President Davis also claimed that he made his decision
(to put a wage increase into effect) prior to July 29, and
made it without consulting anyone; but that he did not
notify the stores until sometime between July 29 (a
Thursday) and August 6 (a Friday), with oral instructions
to the store managers that the raise was to go to everyone
in the class entitled to the raise if performing satisfactorily,
and that marginal employees were to be reclassified.
However, the only other testimony on this subject came
from Supervisor-Manager Ward and Store Manager
Haglar, who testified that they first learned and were
informed of the wage increase on Thursday, August 5, with
a request to get the names of the employees in at once for
the payroll for the week ending Saturday, August 7.
Section 8(a)(1) Finding
From the total circumstances, I think it is fairly clear that
Respondent made the decision and acted to accelerate
giving a wage increase, starting with the week that began
August 1, on or about August 5, 1971, after the Union had
circularized its authorization cards with its July 30 mailing
to the list of interested employees obtained by employee
Guillory. It has already been established that the store
management was contemporaneously aware of Guillory's
recruiting for the Union prior to July 30, and of the union
letter of July 30 to the South Park store employees, and it
appears from the testimony of President Davis that the
store managements kept him informed of union activity at
the stores.
The action of President Davis in ordering the wage raise
Justin Smith , No. 26, who do not appear on the subsequent payrolls, L
Garcia, No. 8, and Lester Poster , No. 20, who were dropped after August 7,
and Richard Brown, No 3, and Mike Martinez, No. 18, who were dropped
after August 14 (see G C Exh . 6 and 13, payrolls for weeks ending August 7
and 14, respectively, and G .C Exhs 14 through 17 for the subsequent 4
weeks in August and September)
6 Executive Order 11615, August 15, 1971, 36 Fed. Reg. 15727. Business
Week for August 21, 1971, for example , described the President's
announcement of August 15 as "one of the most radical reversals of policy
in all political history," p 21
DAVIS FOOD CITY 99
on August 5 for the week already begun was a reaction to
the Union's organizing effort . The timing of the raise, the
sham reason for it-i.e., accelerating an increase that
would not have been ordered so soon after the previous
increase in order to anticipate a then unknown and
unpredicted wage freeze-and the discriminatory denial of
the wage increase to the one employee who was organizing
for the Union , provide persuasive evidence that the real
purpose of the wage increase was to dissuade the
employees from pursuing their interest in the Union.
Bestowal of economic benefits by an employer for such
purpose is a restraint upon the freedom of choice of
employees for or against unionization , and a violation of
Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Co.,
375 U.S. 405 , 409-410 (1964).
CONCLUSIONS OF LAW
1. By discriminatorily denying a general pay increase to
employee Guillory and instead reducing her pay, hours,
and desirable schedule of hours because of and to
discourage her union organizing activity, and to discourage
union affiliation by Respondent's nonunion employees,
Respondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(3) and (1) of the Act.
2. By coercively interrogating its employees concerning
the union sympathies and activities of fellow employees,
and by granting a wage increase -to dissuade employees
from pursuing their interest in the Union, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that the Respondent ( 1) cease
and desist from its unfair labor practices; (2) make
employee Guillory whole for the loss of pay suffered since
August 1, 1971, by reason of the lost increase, and the
reduction, in wage rate and the reduction in hours, and
place her in the higher job and wage classification to which
she was entitled under the wage increase of August 1, 1971,
and restore her schedule of full- time , daytime hours. The
backpay shall be computed on a quarterly basis as set forth
in F. W. Woolworth Co. 90 NLRB 289 (1950), approved in
A.LR.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953),
with interest at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), approved
in Philip Carey Manufacturing Co. v. N.LR.B., 331 F.2d
720 (C.A. 6, 1964), cert. denied 379 U. S. 888 ; and (3) post
the notices provided for herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended: 7
ORDER
Respondent , its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees as to the union
sympathies and activities of fellow employees.
(b) Granting wage increases or other economic benefits
in order to dissuade its employees from becoming
interested in and supporting the Union.
(c) Discouraging interest or membership of its employees
in the Union by subjecting employees, who engage in
union activity , to denials of wage increases , cuts in wages
and hours , or assignments of less desirable hours, or
otherwise discriminating against them as to their tenure
and conditions of employment.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make employee Bonnie Guillory whole in the manner
set forth in the section of the decision entitled "The
Remedy," for any loss of earnings she may have suffered
as a result of the denial of the wage increase and reduction
in pay and hours after August 1, 1971, place her in the
higher job and wage classification to which she was
entitled by reason of the wage increase of August 1, 1971,
and restore her schedule of full-time, daytime hours.
(b) Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to ascertain the backpay due under the terms of
this Order.
(c) Post in its stores in Houston and Dallas, Texas, copies
of the attached notice marked "Appendix." 8 Immediately
upon receipt of copies of said notice, on forms to be
provided by the Regional Director for Region 23, Houston,
Texas, the Respondent shall cause the copies to be signed
by one of its authorized representatives and posted, the
posted copies to be maintained for a period of 60
consecutive days thereafter in conspicuous places, includ-
ing 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.
(d) Notify the Regional Director of Region 23, in
writing, within 20 days from the date of the receipt of this
Decision what steps the Respondent has taken to comply
herewith .9
7 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
8 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board ," shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director of Region 23, in writing, within 20 days from
the date of this Order, what steps Respondent has taken to comply
herewith."