Deichamps, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1979

244 N.L.R.B. 366 (N.L.R.B. 1979)

I)'('ISIONS Of: NATIONAl. LABOR RL.ATIONS BOARD
Delchamps. Inc. and United Food and Commercial
Workers International Union, Local 1657, AFL-
CIO.' Case 15-CA 6501
August 20. 1979
DECISION AND ORDER
BY C(IAIRMAN FANNING ANI) MEMBERS JENKINS
ANI) PNE..1)
On March 12, 1979. Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and counsel for the (ien-
eral Counsel filed a limited exception and supporting
brief. Respondent filed an answering brief to counsel
for the General Counsel's limited exception.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief's
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge's
findings that Respondent violated the Act by threat-
ening that it would never sign a contract with the
Union: threatening that employees would lose their
employment if the Union won the scheduled election:
interrogating employees; restricting an employee's
movement and prohibiting his conversations with
other employees because of his union support: and
creating an impression of surveillance. However, we
do not agree with the Administrative Law Judge's
failure to find that Respondent violated the Act by
excluding union supporters from its preelection lun-
cheon and dinner meetings, and by its statements to
employees that they were being excluded because
they supported the Union.'
The name of the Charging Party, formerly Retail Clerks Union, Local
1657, AFL CIO: R.C.I.A., is thereby amended to reflect the change result-
ing from the merging of Retail Clerks International Union and Amalga-
mated Meatcutters and Butcher Workmen of North America. on June 7.
1979.
2Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. I is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Drv Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
' In view of our finding that the exclusion of union supporters and the
statements to them about why they were being excluded constitute violations
of Sec. 8(aX I ) contrary to the Administrative Law Judge's statements, we, of
course, also find such conduct to he objectionable in a representation case
context.
During the period from approximately early May
through June 15, 1977, Respondent held a series of
campaign meetings at which it provided employees in
attendance with a free lunch or dinner. In addition, at
all of these meetings except those held on June 15.
1977. the day before the scheduled election, employ-
ees were paid for their time spent in attendance. In
some instances, employees who were not scheduled to
work at the time a meeting was being held, and who
attended that meeting, were instructed by their store
manager to clock in before and clock out after the
meeting so that they would be paid just as if' they
were working. Respondent's stores remained open
during the campaign meetings: thercel're. some em-
ployees were required to staff the stores during the
meeting times.
The record shows that sometime prior to June 15 a
notice was posted at Respondent's stores which
stated. "All Employees are invited to a luncheon or
dinner meeting Wednesday, June 15. Your manager
will check with you about your schedule." The notice
further stated that attendance was voluntary and that
employees would not be paid for their attendance at
the June 15 meetings. A. F. Delchamps, Jr.. Respon-
dent's president, testified that he instructed manage-
ment personnel that, as far as possible. every em-
ployee was to be given an opportunity to attend at
least one of the meetings. It is clear, however, that the
store managers did not contact all employees who had
not previously attended a meeting about their sched-
ules on June 15, 1977, in order to make arrangements
for them to attend.4 As for the lunch and dinner meet-
ings held prior to June 15. which employees were
paid to attend, the record does not show that notices
were posted notifying all employees of the meetings,
nor does it show how particular individuals were se-
lected to attend those meetings.5
On the other hand, the record does show that prior
to June 15. 1977, Respondent communicated to a
number of employees the fact that they had not been
invited to the meetings because of their union sup-
port. In May 1977 Al Jernigan, assistant store man-
ager at store 46, told employee William Ditto that if
he had not been wearing a "vote yes" button he could
have gone to a company luncheon. Similarly, after
the first of Respondent's campaign meetings which
According to employee Claudia l.evins' credited testimony, she asked
Store Manager Pridgen a week or two before the scheduled June 16 election
whether she would ever be able to attend one of the meetings. and he re-
sponded. "he didn't think so." Then, on approximately the day before the
June 15 meetings. Levins approached Pridgen and told him she wanted to
attend a meeting on June IS. He responded that she could not because she
was "supposed to be on the list" in order to attend.
s While Delchamps testified that attendance was dependent on scheduling
needs at the various stores, this does not explain how it was decided which
employees would stay and run the stores and which would attend the meet-
ings.
244 NLRB No. 51
366
DEI.(IHAMPS, IN(
included a free meal, employee and known union ad-
herent Marion Chambers asked assistant store man-
ager at store 34. Betty RejczNk. why she (Chambers)
was not invited. Rejczyk responded. "You know why
Marion." 6 A week or two before the scheduled June
16 election Rick Pridgen. store manager at store 34.
without further explanation told known union sup-
porter Claudia Levins, in response to her question
about the meetings, that he did not think she wkould
be able to attend. A week before the election date
employee Tommy Leonard asked Assistant Store
Manager Rejczyk why none of the union supporters
were going to any of the luncheons. Rejczyk re-
sponded, "[bh]ecause you're not for the company.'
In finding that Respondent's conduct related to the
luncheon and dinner meetings did not violate the Act.
the Administrative Law Judge relied on two lines of
cases. One line of cases holds that an employer may
exclude union supporters from meetings held during
working time at which the employer expresses its op-
position to unionization.' The other holds that parties
can provide free meals to employees during nonwork-
ing hours at campaign meetings, and that such con-
duct will not, per se, constitute conduct interfering
with an election." Based on this precedent, the Ad-
ministrative Law Judge concluded that even if Re-
spondent had excluded union supporters from its lun-
cheon and dinner meetings it would not have violated
the Act. The Administrative Law Judge went on to
find, however, that the evidence was insufficient to
show a general exclusion of union adherents from the
meetings. The Administrative Law Judge further con-
cluded that since Respondent could lawfully exclude
union supporters from the luncheon and dinner meet-
ings. it was not unlawful for Respondent to inform
individual employees that they were being excluded
because of their union support.
Contrary to the Administrative Law Judge. we find
that Respondent's policy of excluding union support-
ers from its luncheon and dinner meetings violated
'Chambers testified at one of the previous National Labor Relations
Board hearings involving Respondent in December 1976. Furthermore. her
signature appeared on the letter to Respondent dated December 18. 1976.
written on behalf of employees who supported the Union and who desig-
nated themselves as the "Organizing Committee."
'The Administrative Law Judge specifically credited all of the employees
in the conversations discussed above, with the exception of Ditto. The Ad-
ministrative Law Judge made no specific findings with respect to Ditto's
credibility on this matter, but he did implicitly credit )itlto when he noted
that Jernigan did not specifically deny telling Ditto that he could not attend
because of his "yes" button. We credit Ditto. finding no basis in the record
for not doing so.
$ Mueller Bra.r. Co.. a subsidiary' of U V Industries Inc . 220 NI.RB 1127
{1975). enforcement denied 544 F.2d 815 5th Cir 1977): Spartus Corpora-
tion. 195 NLRB 134 ( 1972): Luxurav of New YTork Divsiion of Bieaunit (Crpo-
ration. 185 N IRB 100 (1970).
' Northern States Bee/], Ina.. 226 NLRB 365 1976): Ohnil .anllfiulutring
Comparts. Ill NL.RB 888 (1955).
Section 8(a)( ) of the Act. As noted. the Administra-
tive Law Judge cited two lines of cases in concludini
that Respondent's policy was not violative of Section
8(a)( I ) of the Act. In certain circumstances the 3Board
has held that the excluding of union supporters ftrom
meetings on compan5 time is lawful and, in others.
that an ofer of free meals during a campaign is la.\-
till. Although we do not suggest here that the combiln-
ing oft these two legitimate catmpaign tactics necessar-
il\ violates the Act.' ) we believe the Adminilistrative
a Judge erred in ldiling to ealuate the fact that
Respondent, as part of its policy regarding it. lun-
cheon and dinner meetings. permitted employees wIho
were scheduled for offldays to clock in fr the sole
purpose of attending those meetings. This aspect of
Respondent's policy granted emplo ces attending the
Ineetings an opportunit\ to be paid for hours abo e
and beyond their normal wkorking hours. therebh at-
fording a clear benefit to those emnplo\ees. Therefore ,
as Respondent's policy as to its meetings included a
denial of benefits to union supporters. we find it viola-
tive ofl Section 8(a)( I1) of the Act.
The discriminatory exclusion of individual uLnion
supporters from the luncheon and dinner meetings is
shown by the statements of supervisors to various
union activists about why they were not invited. I lhe
conclusion that union supporters were discriminlator-
ily excluded is further buttressed hb Assistant Store
Manager Betty Rejiczyk's testimon that she engaged
in interrogations of emploees t( see w hether it would
be worthwhile to present Respondent's position on
unionization to them. Similarly, Respondent pur-
posel) excluded certain union adherents from its lun-
cheon and dinner meetings because of the belief' that
these individuals would not be swayed by Respon-
dent's arguments.'' While an employer need not con-
tact each of its employees with its campaign message.
in choosing whom to tr3 to persuade an employer
may not lawfully den\ benefits such as were involved
herein to employees because of their union support.
Accordingly, we find that Respondent unlawfully ex-
cluded employees Ditto. Chambers, Levins. and
m Member Jenkins finds. additionally . that the combination oi these tic-
tics consluted a discriminator' conlerral of a benefit based on union sup-
port or nonsupport. In his view. although excluding union supporters from
meetings is permissible in some circumstances and although the nondis-
crminatlory prosislin of free meals to emploees mav alsos he la.flul. the
combination of the two tactics invollves the discriminatorsr prosi,sion ot .
benefit. Accordingly. he would rely on this additional reason in finding the
Respondent's free meal-meeting polihc siolatlie of the Act
u Insoflar as the record does not show a pattllern i(t systematic Iand unitorm
exclusion of sll union supporters, we agree sith the Admlnistr.aile l.as
Judge's finding that there was no "general" excluslon of union supporters
from the meetings. Hlwever, to the extent that Respondent discriminatoril
denied benefits to even a single emploee because of his or her union sup-
port. that is unlawful. regardless ot whether Respondenl treated other union
adherents in the same tflshion The record shosss that Respondent didi dls-
criminate against certain union supporters h laling I provide them slth
the opportunlt It) sllend the mceings hereh s ilanrie the 4.ci
I)ECISIONS OF NATIONAL. LABOR RELATIONS HOARD
Leonard from its luncheon and dinner meetings.' 2 We
find additionally that the statements to the union ad-
herents that they were not being included because of
their union support constitute independent violations
of Section 8(a)( I) of the Act.' 3
Amended Conclusions of Law
Substitute the following for Conclusions of Law 4.
5. and 6 of the Administrative Law Judge:
"4. By excluding employees Ditto, Chambers, Le-
vins and Leonard from its luncheon and dinner meet-
ings because of those employees' union support or
sympathies, Respondent has engaged in unfair labor
practices within the meaning of' Section 8(a)( I ) of the
Act.
"5. By telling union adherents that they were being
excluded from the luncheon and dinner meetings be-
cause of their union support or sympathies, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)( 1 ) of' the Act.
"6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 8(a)(1) of the
Act.
"7. Respondent has not otherwise violated the Act
as alleged in the complaint."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent.
Delchamps. Inc., Fairhope, Mobile, and Spanish
Fort, Alabama, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order, as so modified.
1. Add the following as paragraphs (f) and (g)
and renumber the subsequent paragraph accordingly:
n The lict that employee William Ditto was given an opportunity to at-
tend an unpaid June IS meeting does not detract from the fact that at an
earlier point in time he was excluded, as shown by Jernigan's statement that
Ditto was not being invited because of his "ves" button.
1" Respondent has excepted to the Administrative Law Judge's ruling al-
lowing counsel for the General Counsel to amend the complaint on the
morning of the hearing by adding pars. IO(e) and 12(b) which deal with the
statements to the union supporters about their exclusion from the meetings.
We find such exceptions to be meritless. The original complaint contained an
allegation concerning the exclusions, and the statements to employees about
why they were being excluded are intimately related to that original allega-
tion. Additionally. Respondent did not object to testimony concerning the
statements when it was introduced at the hearing. Finally. when the Admin-
istrative Law Judge granted the General Counsel's motion he advised Re-
spondent that it should move for a continuance at the conclusion of the
General Counsel's case if it found it needed additional time for preparation.
Respondent failed to move for such continuance. Accordingly, we conclude
that Respondent suffered no prejudice from the amendments on the day of
the hearing.
"(f) Excluding employees from luncheon or dinner
meetings because of those employees' union support
or sympathies.
"(g) Telling employees that they were excluded
from luncheon or dinner meetings because of their
union support or sympathies.
2. Substitute the attached notice fior that of the
Administrative Law Judge.
APPENDIX
No II( F 1o EMPI .()OYI IS
PosIII) BY ORDIR O1 ()i I:
NAII()NAI. L ABOR RtI.A II)NS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
give evidence, the National Labor Relations Board
has found that we have violated the National Labor
Relations Act, as amended, and has ordered us to
post this notice.
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in bar-
gaining with us
To act together for your common interest or
protection
To refuse to participate in any or all of these
things.
Wt: Wl~l. NOI interrogate you about your
union membership or sympathies or the union
membership or sympathies of your relatives.
WE WILL NOT create the impression among
you that your union activities are under surveil-
lance.
WE WIL.L NOI threaten you that we will refuse
to sign a collective-bargaining agreement with
United Food and Commercial Workers Interna-
tional Union, Local 1657, AFL-CIO, or any
other labor organization which you might select
to represent you.
WE WIL.L NOT threaten you that you will lose
your employment if you select the above-named
or any other labor organization to represent you
in collective bargaining.
WE Wil.I NOT unlawfully restrict your move-
ments or conversations in order to interfere with,
restrain, or coerce you in the exercise of your
rights of self-organization.
WE WII.[. NOr exclude any of our employees
from luncheon or dinner meetings because of
those employees' union support or sympathies;
nor will we tell employees that we have done so.
368
DEICHAMPS, INC
WE wII.I. Not in any like or related manner
interfere with, restrain, or coerce you in exercis-
ing the rights guaranteed to you by the Act.
D I .(IIAMPS. INC.
DECISION
SIAIIMINI ()F 11t: CASI.
HUIr-ON S. BRANDON, Administrative Law Judge: This
case was heard before me in Mobile. Alabama, on Septem-
ber 18 and 19, 1978, pursuant to a complaint issued on
August 12. 1977.' and a charge filed on June 13 by Retail
Clerks Union. Local No. 1657. AFL CIO. R.C.I.A.. herein
called the Union. The complaint alleges that Delchamps.
Inc.. herein called Respondent, violated Section 8(a)(1) of
the National Labor Relations Act, herein called the Act, by
threatening employees with loss of employment in the event
of unionization: threatening employees with futility in se-
lecting a union or engaging in activities in behalf of a
union: interrogating employees concerning employee union
activities and sympathies; restricting employee movements
within its store because of employee union activity: creating
the impression among its employees of surveillance of
union activities; advising employees that they were not in-
vited to Respondent sponsored luncheons and excluding
them from such luncheons because of their union activities;
advising employees that promotions were withheld because
of their support of the Union: and threatening employees
with strict enforcement of disciplinary rules in the event the
Union was selected to represent the employees. The com-
plaint further alleges that Respondent violated Section
8(a)(3) of the Act by changing and reducing the work hours
of its employee Ann Beaty for a period of 3 weeks begin-
ning April I i and by assigning its employee James C. Akins
to a different work schedule on and after April 25. The
unfair labor practices are alleged by the complaint to have
occurred in Respondent's stores and facilities located in
Fairhope. Spanish Fork, and Mobile, Alabama.' Respon-
dent filed a timely answer to the complaint denying the
commission of any unfair labor practices.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent. I
make the following:
FINDINGS OF FA(T
I. JURISDICTION
Respondent is an Alabama corporation engaged in the
retail sale of groceries, meat, and related food products at
multiple store locations in Alabama. Mississippi, and Flor-
ida, including the stores involved herein. During the 12
months prior to issuance of the complaint, Respondent pur-
chased and received goods and materials valued in excess of
All dates herein are in 1977 unless otherwise stated.
2 These stores are also numerically designated by Respondent as store 34.
45. and 46. respectively, and are hereafter referred to byh these numbers.
$50.000 directl, from points located outside the State of
Alabama and received gross revenues in excess of $500).(XX).
Respondent's answer admits. and I find. that Respondent
is. and has been at all times material herein. an employer
engaged in commerce within the meaning of' Section 2(6)
and (7) of the Act.
II. II I AB()R (OR(iANIZI (ON
Respondent's answer admits, and I find. that the Inion
is. and has been at all times material herein. a labor organi-
zation within the meaning of Section 2(5) of the ,Act.
111. iIF Al 1(1-I) t NI IR IABO()R PRA('II('t S
A. Rackground
The background in this case is largel b set forth in previ-
ous Board decisions3 involving Respondent. and upon mo-
tion of the General Counsel and over Respondent's objec-
tion I have taken official notice of such decisions. Based
upon those decisions as well as other undisputed evidence
presented by the parties in the hearing before me it appears
that in July. 1976. the Union began a campaign to organize
the employees at Respondent's stores in the Mobile. Ala-
bama, area. Initially, the Union filed a petition on February
23 with the Board's Regional Office, Case 15 RC 6068.
seeking a representation election in a single store unit in
Respondent's Fairhope store. The unit sought was found to
be inappropriate by the Board's regional director. and the
petition was dismissed on April 12. Subsequently. on April
19. the Union filed another petition seeking an election in a
17-store unit comprised of Respondent's stores located in
Mobile and Baldwin Counties. Alabama. An election was
scheduled for June 16 in the unit sought. However, the elec-
tion was blocked by the filing of the charge herein and was
never held. For the most part. the unfair labor practices
alleged herein occurred in the 2-month period prior to the
scheduled election date.
B. The Alleged 8(a)(l) I iolations
1. The exclusion of union supporters from Respondent's
luncheons
In preparation for the election Respondent, beginning in
early, May, sponsored a series of employee luncheons or
' 232 NLRB 168 (19771 and 234 NLRB 262 (1978). In the first cited case
the Board found that Respondent. at its Fairhope store, had violated Sec
8(aX ) of the Act by creating among its employees the impression of sursNeil-
lance of their union activities and by threatening employees with discharge
because of their union activities. A violation of Sec. 8(a)(3) of the ci V3 as
found based upon the discharge of one employee. Johnson In the second
case the Board found Respondent had violated Sec. 8(ax I) b granting a
general wage increase to its emplosees at its Saraland. Alabama. store in
response to the employees' organlzAtional efforts. Fhe first case was enforced
with respect to the 8a)(1) findings onl. 585 F.2d 91 (5th (ir 1978). but
enforcement was dented with respect It* the second case. 589 F.2d 1 166 (5th
Cir. 1979).
I have considered the presious Board decisions for enlightenment as to the
background of the instant case but have found it unnecessary tii rely upon
them in reaching an 5 conclusions as to the violations alleged in this proceed-
ing.
369
DI(' ISIONS OF NATIONAL LABOR REL.AlIONS BOARI)
dinners at which it communicated to employees attending
its position in opposition to the Union. According to A. F.
Delchamps. Jr.. president of Respondent. Respondent paid
both for the hod consumled and for the employees' time in
attendance.4 I)elchamps testified that his instructions to su-
pervisors was that "as far as possible everyone was to get to
come to at least one meeting." but that the stores were not
closed during the luncheons and it was left to the store
managers to arrange for their people to make one of' the
meetings. A general invitation to all employees to attend
the June 15 luncheon or dinner was posted the week prior
to June 15.' The notice advised employees to check with
their store manager about their schedules and specified that
attendance at the meeting would be voluntary and employ-
ees would not be paid for attending. The General Counsel's
witness, Claudia Levins. an employee in store 34 at the
time, testified she saw the notice concerning the June 15
luncheon in the employee breakroom. This posting was also
confirmed by the testimony of employee Christine Babb.
The complaint alleges that Respondent excluded from its
luncheons and dinners employees who supported the
Union. Moreover, the complaint alleges that Respondent,
through certain of its supervisors, independently violated
Section 8(a)(I ) by informing employees that they were not
invited to Respondent's luncheons and dinners because of'
their union support. In support of these allegations the
General Counsel presented four witnesses, employees Wil-
liam Ditto, Tommy Leonard. Marion Chambers, and for-
mer employee Levins.
Ditto testified that he signed a union card in February
and subsequently displayed his union sentiments to man-
agement by wearing a button at work with the words "Vote
Yes" on it. According to Ditto, in early May Assistant
Store Manager Albert Jernigan, admitted by Respondent to
be a supervisor, approached Ditto in the frozen food section
of store 46 where they both worked and told Ditto that if
Ditto had not been wearing a "yes" button he could have
gone to a company luncheon. Ditto who was wearing his
"Vote Yes" button at the time of the incident could recall
no other comments by Jernigan immediately before or after
his remark about the luncheon.
Jernigan, called as a witness by Respondent. did not spe-
cifically deny the remark attributed to him by Ditto. How-
ever, he did testify that Ditto had asked whether he would
be able to go to a luncheon and he gave him an opportunity
to attend the last luncheon about June 15. but Ditto de-
clined saying he probably would not go. Ditto was not re-
called in rebuttal to deny Jernigan's testimony in this re-
gard. Jernigan impressed me as a credible witness whose
testimony on other matters reflected below was substanti-
ated. Accordingly, I credit his testimony that he gave Ditto
an opportunity to attend a luncheon.
Employee Leonard6 testified that during the week prior
to June 16 he talked to Assistant Store Manager Betty Rej-
'The employees were not paid for the last luncheon held on June 15. the
day before the scheduled election.
Resp Exh .
' Leonard was a well known union supporter who wore a "Vote Yes"
button at work. Moreover, Leonard had testified in behalf of the Urion on
December 8 and 9. 1976, in connection with the case reported at 234 NLRB
262 X 1978).
czyk in store 34 during a 3 p.m. break. L.eonard asked Rej-
czyk why any of the Union people did not get to go to any
of the luncheons, and Rejczk responded that it was be-
cause "you're not for the Company." On cross-examination
Leonard conceded that "just about all" of the employees of
store 34 were supporters of the Union in the spring. Fur-
ther, he admitted that at least one of the union supporters
he knew who had worn a union button in the store, Dorsey
Henderson, had attended one of Respondent's luncheons.
Rejczyk, called by Respondent. acknowledged that l.eon-
ard had mentioned the luncheons to her. She stated that
Leonard asked her why he was not invited to the luncheons
and she responded by asking him if he would listen if he
were invited. She testified that nothing else was said. Rej-
czyk's testimony, while differing from Leonard's, concedes
an implication that union supporters were not invited be-
cause they would not listen. This implication lends some
support to Leonard's testimony and, because I otherwise
found him to be a believable witness, I credit Leonard's
version.
A comment of Rejczyk's similar to that attributed to her
by Leonard was related in the testimony of employee
Chambers. According to Chambers, after the first dinner
sponsored by Respondent in early May, Chambers asked
Rejczyk in store 34 why Chambers was not invited. Rejczyk
responded "You know why, Marion." Chambers testified
that she was a union supporter and had not attended any of
Respondent's parties or dinners.' In her testimony Rejczyk
did not specifically deny the comment attributed to her by
Chambers. Accordingly, I credit Chambers' testimony in
this regard.
Former employee Levine who worked in store 34 until
September 3 testified that about the first part of June she
asked the manager of store 34, Richard Pridgen, if she
would ever get to go to a luncheon. Pridgen responded that
he did not think so. Subsequently, either the day before the
June 15 luncheon or the morning of it Levins told Pridgen
she wanted to go to the luncheon, and he told her she could
not go. When evins asked why, Pridgen responded "You
were supposed to be on the list." Levine, based on her belief
that the store managers were supposed to contact the em-
ployees about the luncheon consistent with what Respon-
dent's notice about the luncheon had said,8 told Pridgen
that he was supposed to tell the employees when they were
supposed to go and that Levins had not known anything
about having to be on a list. Levins, who had worn "Vote
Yes" buttons at the store and who had been named on the
organizing committee Respondent was made aware of the
previous December, testified that she did not attend the
luncheon. Pridgen. called by Respondent, did not testify on
this issue. I found Levins to be a sincere and candid witness
and credit her testimony on the point.
Based upon the foregoing, it is the General Counsel's
position that Respondent engaged in a "calculated program
of excluding known union adherents from Respondent-
'Chambers was identified to Respondent as a union supporter by being
listed on the Union's organizing committee in a letter sent to Respondent on
D)ecember 18. 1976. Resp Exh. 2
i1 he notice stated "All employees are invited to a luncheon or dinner
meeting Wednesday. June 15. Your Manager will check with you about your
schedule."
370
D[t.('HAMPS. IN('
sponsored luncheons and/or dinners." The General ('oun-
sel further argues. without citation and authority. that Re-
spondent conferred benefits (luncheons and/or dinners) on
employees who supported Respondent while denying those
same benefits to union supporters. Such action was coercive
under Section 8(a)(I) according to the General Counsel.
Moreover. the General Counsel contends that Jernigan's
statement to Ditto that Ditto could have gone to a lun-
cheon if he had not been wearing a "Vote Yes" button
independently violated Section 8(a)(I) because the "clear
intent and effect of such a statement is coercion of employ-
ees in the exercise of their rights under the Act." On the
same premise the remark of Rejczyk to Leonard to the ef-
fect that he was not invited to a luncheon because he was
not for the company is urged to be independently violative
of Section 8(a)(1).
Respondent's brief argues that the facts do not substanti-
ate the complaint allegation that Respondent excluded pro-
union employees from the luncheons or dinners. Respon-
dent contends, on the contrary, that the record shows that
known prounion employees did attend, specifically James
Akins, Elizabeth Christine Babb, Dorsey Henderson, Janice
Weeks, and Laverne Darnell. Of those, only Babb had not
been listed on the "organizing committee" of December 18,
1976. The failure of Levins to attend was explained in Re-
spondent's brief as being the result of a scheduling program
caused by her late notification to Pridgen that she wanted
to attend. Finally. Respondent argues that even if the pro-
union employees were excluded from the dinners or lun-
cheons such exclusions were not unlawful. In this regard
Respondent cites Mueller Brass Co.. A Subsidiar' of LI'
Industries, Inc., 220 NLRB 1127 (1975), enforcement de-
nied 544 F.2d 815 (5th Cir. 1977), Spartus Corporation, 195
NLRB 134 (1972), and Luxurav of New York Division of
Beaunit Corporation, 185 NLRB 100 (1970).
In the cases cited by Respondent. the Board found that
the employers therein did not violate the Act by systemati-
cally excluding known or suspected union supporters from
in-plant meetings on working time at which the employers
expressed their union opposition. The union supporters re-
quired to continue to work at their jobs during the meet-
ings. The rationale for these holdings. although not ex-
pressly stated, appears to be that prounion employees who
were excluded from the meetings were not deprived of any
benefits and the employers were not required under the Act
to communicate the basis for its opposition to the Union to
known union adherents or to provide such adherents an
opportunity to speak at called employer meetings.
The instant case is distinguishable from the above-cited
precedent on the basis that the meetings took place off em-
ployer premises and included a free lunch or dinner. How-
ever, these are distinctions without a real difference in my
opinion. The fact that the meetings were held off premises is
of no significance, and the Board has long held that the
holding of a free lunch or dinner by a party to a Board-
conducted election is a legitimate campaign tactic which
does not, per se, constitute conduct interfering with an elec-
tion. Northern States Beef, Inc.. 226 NLRB 365 (1976): Oh-
mite Manufacturing Companyv, Ill NLRB 888 (1955). If
I The payment for attendance at such a lunch or dinner is significant onls
in determining whether the group lunch or dinner breaches the Board's pol-
such conduct does not interfere with an election It can
hardly be found to be a violation of the Act on the ground
that it constitutes a conferral of a benefit on employees. If
the lunches or dinners do not constitute a conferral of a
benefit, it logically follows that there was no deprivation of
benefits to union supporters here, even if they were system-
atically excluded from attendance. Accordingly, I find that
the authority cited by Respondent is apposite and conclude
that the exclusion of union adherents from the luncheons or
dinners would not amount to a violation of Section 8)( I )
of the Act.
In any event, I find that the evidence is insufficient to find
that there was any general exclusion of union adherents
from the luncheons. At most, the General Counsel's evi-
dence shows three employees were not given a specific op-
portunity to go to the luncheons. Of those three it appears
that only one. Levins, specifically asked, although belat-
edly. to attend and was not given the opportunity. Thus,
considering the fact that known union adherents did attend
the luncheons and dinners, general exclusion from such lun-
cheons or dinners of union adherents in a 1 7-store unit con-
sisting of about 500 employees has not been established.
Finally. since I have found that Respondent could have
lawfully excluded union adherents from the luncheons. it
was not unlawful for Jernigan or Rejczyk to make the state-
ments attributed to them to the effect that Ditto and Leon-
ard were not allowed to attend because of wearing "Vote
Yes" buttons or because of not being "for" Respondent. See
Mueller Brass Co.. supra. Accordingly, I find Respondent
did not violate Section 8(a) I) by these statements of Jerni-
gan and Rejczyk.
2. The speech of A. F. Delchamps
The complaint alleged that A. F. Delchamps, Respon-
dent's president, made a speech at one of the employee
luncheon meetings about May 15 wherein he impliedly
threatened employees with loss of employment and existing
pay in the event of unionization and threatened that Re-
spondent would refuse to negotiate with the Union if it
were successful in a representation election. In support of
this allegation the General Counsel relies upon the testi-
mony of Elizabeth (Christine) Babb, an employee at Re-
spondent's store 34. Babb testified that she attended one of
Respondent's luncheons at a restaurant 2 to 3 weeks prior
to June 16 and Delchamps spoke to the employees at the
luncheon about the Union. According to Babb, Delchamps
stated that if the Union was to "get in" Respondent was
going to "set down to the table with a blank piece of pa-
per," salaries would be completely erased, and "it would all
be negotiated." and if employees were out on strike there
would be other people to run the store and the employees
could expect the Union to pay their salaries. In addition.
Babb said Delchamps told the employees that he was not
going to sit down at any bargaining table with the Union.
Babb could recall no other details of Delchamps' comments
about negotiations.
ic announced in Prllh,s PA1 '-ud Compativ, 107 NL.RB 427 (1953), hich
makes emploee campaign meetings on paid time within 24 hours so a Board
election objectionable conductl Respondent here aoided Peicrs' P wed
complications b> not paying employees for the June 15 luncheon and dinner
meetings.
371
I)E('ISIONS OF NATIONAI. LABOR R.ATIONS BOARD
Delchamps testified fIr Respondent that he did make
speeches to employees in the luncheon meetings and that
during one of the meetings he was asked "Will the company
negotiate?" Delchamps. in response, related that he did not
think that there would be negotiations because he expected
that the majority of the employees would vote for the com-
pany and that the Union would not be the bargaining agent
so there would be no negotiations. He added, however, that
if he were wrong and the Union did get in that he would
start the negotiations from a blank sheet of paper and the
people could get more than they currently had, and they
could get less. He denied that he said that he would not sit
down at the bargaining table with the Union and further
denied saying anything other than that set forth immedi-
ately above regarding bargaining from a blank piece of pa-
per.
While I was impressed by Babb's sincerity in testil'ing.
regarding Delchamps' speech, her testimony on the point is
not corroborated by any of the other 32 employees she tes-
tified were present at the meeting. In addition, her testi-
mony on the speech is self-contradictory because she attri-
butes inconsistent statements to Delchamps. A statement
that Delchamps was not going to negotiate with the Union
is obviously inconsistent with a statement that Delchamps
would negotiate with the Union with a blank piece of pa-
per. On the other hand, Delchamps' version of his com-
ments is more inherently consistent. Finally, on cross-ex-
amination Babb exhibited some confusion as to exactly
what Delchamps had said and conceded that he may have
said that he did not think that he would have to sit down
with the Union at the bargaining table but if he did he
would have a blank sheet of paper. Under these circum-
stances, and because Delchamps otherwise appeared to be
truthful in testifying, I credit Delchamps' version of his
comments.
Considering the foregoing, I find that Respondent did not
threaten through Delchamps that it would not negotiate
with the Union if it were selected by the employees. More-
over, I do not view Delchamps' comment regarding bar-
gaining with a blank sheet of paper as a threat to unilater-
ally discontinue existing benefits prior to negotiation or a
threat to adopt a regressive bargaining posture designed to
force a reduction of existing benefits for the purpose of pe-
nalizing the employees for choosing collective representa-
tion. Cf. Coach and Equipmeni Sales Corp.. 228 NLRB 440
(1977). Delchamps' credited version of his remarks clearly
reveals that the employees could get more or less than their
existing rates, thus showing only the possible pitfalls of the
collective-bargaining process rather than the certainty of
economic reprisal. Since I find no threatened refusal to bar-
gain or to reduce benefits, Delchamps' reference to a strike
in his comments, a reference not denied by him. does not
imply the inevitability of a strike and is not therefore viola-
tive of the Act. Accordingly, I find that Respondent did not
violate Section 8(a)(1) through Delchamps' speech.
3. The alleged 8(a)(l) violations by Store Manager
Pridgen
Claudia Levins testified that on May 10 she was ap-
proached in store 34 by the manager. Richard Pridgen who
initiated a conversation with her by inquiring whether she
thought that a comment made to Pridgen in the store by
inion Organizer David Johnson in l.evins' presence earlier
that day was funny. In the ensuing conversation, according
to Levins' testimony. Pridgen stated that l)elchamps would
not sign a union contract, and that the employees would
have to go out on strike to get Respondent to sign, and that
if the employees voted to strike the Union could fine those
who refused to strike. Furthermore, Levins testified that
Pridgen asked her if there was going to be a union meeting
that week, if it was going to be that night, where it was
going to he, and if it was going to be at the "D and B"
[apparently a restaurant] and if l.evins was going.
In response to the foregoing. Pridgen testified that he re-
called having a conversation with Levins but denied saying
that Delchamps would never sign a contract and denied
ever telling Levins that employees would have to go out on
strike to get a contract. His testimony. however, was some-
what vague and his recollection poor as to exactly what he
told her about he signing of a contract. Thus, he testified he
told Levins that the Company had a right to negotiate and
to bargain and "if the contract the Union had, that the
company had the right to reject it if it was not equal to both
sides" and it "possibly could happen that the company
would reject that contract." He also stated that what he
"probably" told Levins was that "if' the contract that they
[the Union] set out for us was not compatible for both com-
pany and union it was most likely that the Union would
have to call them [the employees] out on strike in order for
them to get a contract, or something along this line...."
Pridgen said he told Levins that if employees had signed a
union card and there was a strike the employees could be
fined if they did not go out on strike. Pridgen could not
recall asking Levins the questions she attributed to him re-
garding the union meetings. However, he testified that Le-
vins quite freely volunteered information to him regarding
the Union and had once mentioned a union meeting to him
at a place called "Gambino's" but denied he had asked for
the information.
Considering the testimony of Levins and Pridgen, I find
Levins to be the more reliable witness. She appeared to be a
forthright and candid witness whose disinterest was re-
flected by the fact that she was no longer an employee of
Respondent at the time of the hearing. Pridgen's testimony,
on the other hand, was ambiguous and his recall not as
clear. Moreover, he did not specifically deny asking Levins
the questions she attributed to him about the union meet-
ing. I therefore find, based upon Levins credited testimony,
that Respondent through Pridgen did threaten that Respon-
dent would not sign a contract with the Union and did
interrogate Levins regarding a union meeting and her inten-
tions with respect to attending. Such conduct I find to be
violative of Section 8(a)( I) of the Act as alleged in the com-
plaint.
The General Counsel also alleges, based on the testimony
of employee Babb, that Pridgen engaged in other interroga-
tion of employees and threatened employees with loss of
employment by advising Babb that only those employees
who supported Respondent in the union campaign would
continue to be employed following the Board-conducted
election. Babb's testimony in this regard that in May Prid-
372
DEL.Ct displayed
the name of the I[nion on a shirt "pocket-saver," an item
used to protect the pocket rorm soiling rom frequent inser-
tions and remosvals of pens and pencils. According to Akins,
on June 9. after attending a meeting at which a manage-
ment representative spoke about the Union, he changed his
mind and decided to support Respondent on the union
question. lie commLunicated that Decision to Joel Swanson.
Respondent's vice-president. Subsequently Akins went to
store 34 and during worktime advised at least three employ-
ees there, two in the wareroom and one in the breakroom
of his decision to "forget the Union."
That evening, after a discussion with Union Representa-
tive Darrell Johnson, Akins again changed his mind and
reverted back to a position of union support. Ilohseser. he
decided that he would continue to allow Respondent's rep-
resentatives to think he was supporting Respondent. Ac-
cordingl. the tfllowing morning he went to store 34 and
asked Manager Pridgen tor a "Vote No" button. Pridgen
was out ot such buttons so Akins printed a "Vote No" sign
on a piece of paper and pinned it to his shirt. l'hereafter he
walked through the store and into the breakroom, telling
employees along the way who knew him that in spite of the
"Vote No" sign he was still supporting the Union and that
he was going to show Pridgen how he could be fooled by
just changing signs. lite left the store but returned later to
talk to employee I)on Batwell on Batwell's lunch period.
On this occasion, continuing his subterfuge, Akins asked
Pridgen what he should tell the employees to get them to
support Respondent. Pridgen told him to tell them of
strikes. fees, and fines. With respect to Batwell. Pridgen told
Akins not to make him angry because he was "real strong
for the Union." Pridgen himself entered the Akins discus-
sion with Batwell in the hreakroom. Akins left the break-
room first and saw Union Representative Don Williams in
the store. Still wearing his "Vote No" sign, and still con-
tinuing his farce. Akins returned to the hreakroom and
asked Pridgen if he wanted to see Williams' face when Wil-
liams saw the "Vote No" sign on Akins. Pridgen replied he
did not want to miss it, and the two proceeded to the front
of the store where Akins confronted Williams and upbraid-
ed him for "l ing" to Akins all along about the Union.
Willianms, alert to Akins' charade, went along with it.
Shortl thereaftter Akins left the store.
373
DI) (lISIONS ()1: N I IONAI. ABOR REL.ATIONS BOARI)
In mid-afternoon Akins returned to store 34."' This time
Pridgen told Akins to tell the employees that the lUnion had
lost, that it only had It) percent of' the vote. Akins testified
that he suspected that Pridgen at this time knew about
Akins subterfuge, so Akins returned to the front of the store
where he saw Union Representative Williams, who also had
returned to the store. Pridgen came to the front of the store.
and Akins took off his 'Vote No" sign and put back on a
"Vote Yes" button telling Pridgen "ThItt's just like the
Company's been fioling me for months now." Akins testi-
fied that Pridgen was angered but did not say anything.
Akins then went to the frozen food section of the store and
began to talk to an employee there. Pridgen approached
and told Akins to leave the man alone, that he had work to
do. According to Akins, he responded "You've been letting
me talk to employees all day long, now why all of a sudden
since I've got a 'Vote Yes' button I can't talk to them'?"
Pridgen's only response was "ie's got work to do."
Akins then walked down the produce aisle with Pridgen
behind him. As Akins approached employee Ray lender-
son and when Henderson saw Akins "Vote Yes" button,
Henderson jokingly said "Vote No. Vote Yes, Vote No."
Pridgen, still angered, called Akins a lying son-of-a-bitch
and closely followed Akins until he left the store.
Pridgen did not testify regarding any of the foregoing
testimony of Akins. Akins' testimony is credited.
Respondent argues in its brief that the evidence is insutffi-
cient to establish that Pridgen knew and allowed Akins to
talk to on-duty employees during the time Akins was pre-
sumed to be supporting Respondent. In this regard Respon-
dent points out that those places that Akins talked to em-
ployees in the store on the day in question were in
noncustomer access areas the produce room and meat
preparation room. Pridgen was not present in either loca-
tion at the time Akins talked to the employees and could
not stop what he did not know was taking place. The only
time that Pridgen himself was present in customer areas
when Akins talked to on-duty employees Pridgen asked
Akins to stop, but even then Pridgen did not ask Akins to
leave the store. Accordingly, Respondent's brief argues that
the record does not support a conclusion that Pridgen was
permitting the store rules' be broken in order for prore-
spondent discussion to be had.
Contrary to Respondent's argument, and particularly in
the absence of testimony from Pridgen on the point. I be-
lieve a conclusion is warranted that Pridgen, believing
Akins was spreading the "Vote No" gospel, allowed Akins
time to talk to on-duty employees. It is true that Pridgen
was not in the certain areas when Akins talked to employ-
ees on duty in those areas, but I believe an inference may
fairly be drawn based on a number of factors that Akins'
activities and discussions in the store were with Pridgen's
knowledge and consent. First, in this regard, is Pridgen's
instructions to Akins as to what to tell the employees. Quite
clearly Pridgen was using Akins' presence and his "change
of heart" to carry support for Respondent and, given the
inordinate amount of time Akins was spending in the store
m0 Akins was able to make several visits to the store because it was his day
off.
H1 The record does not establish the existence of any "o-solicitation"
rules.
that day. Pridgen could well expect him, absent instructions
to the contrary, to talk to employees on as well as off duty.
Secondly, it cannot be mere coincidence that Pridgen's in-
attention to Akins' discussions with on-duty employees
ended with Akins' reversion to his "Vote Yes" button. It
was only at this point that Pridgen became concerned with
the possibility Akins was talking to on-duty employees. Fi-
nally, and most revealing, however, was Akins' accusation
expressed to Pridgen that Pridgen had allowed him to talk
to employees all day until he changed to a "Vote Yes"
button, an accusation that Pridgen failed to deny at that
time or at the time of the hearing herein. Considering the
foregoing. I find and conclude, as alleged by the General
('ounsel. that Respondent restricted Akins conversations
with other employees in its store 34. as well as his move-
menits, by fillowing him alter he changed his "button," not
because of his hampering cmployees' work, but because of
Akins' reversion to a position of union support. I therefore
find such action to constitute inlerlerence, restraint, and
coercion of employee rights and to be violative of Section
8(a;)( I ) of the Act.
4. The alleged 8(a( I) violations by Assistant Manager
Rejczyk
Assistant Store Manager Betty Rejczyk is alleged to have
interrogated employees regarding their union activities on
three separate occasions. Thus. Elizabeth Babb testified
that about 2 weeks after the conversation she had with
Pridgen outside store 34, as related above, she talked to
Rejczyk in the breakroom at store 34. There Rejczyk in-
fiormed Babb she had some questions she wanted to ask her.
Rejczyk proceeded to ask Babb if she had ever belonged to
a union, whether her father or mother belonged to a union,
and finally, whether her in-laws belonged to a union. Babb
testified that Rejczy k recorded in a notebook Babb's re-
sponses to each questiotn and at one point told Babb that
she hated to ask the questions but that she was told to do
so. At the conclusion of the questioning Rejczyk asked
Babb to give Rejczyk any union literature Babb might re-
ceive by mail. Babb refused, however, saying that to do so
would make her feel like a "pimp."
Rejczyk in her testimony could not recall having a con-
versation in the breakroom with Babb about the Union nor
could she recall asking Babb if Babb had ever belonged to a
union. However, she specifically denied asking Babb about
the union affiliation of her relatives or requesting Babb to
give her union literature. I credit Babb's testimony over
that of' Rejczyk. Babb's testimony was sufficiently detailed
to suggest accuracy and was too emphatic to have been the
result of misinterpretation. Moreover, Rejczyk admitted
that she did ask several employees about where their hus-
bands or wives worked and recorded their answers. Al-
though she denied she had been instructed to ask the ques-
tions or record the answers, she admitted that a purpose of'
the questions was to ascertain whether it would "do any
good" to present Respondent's antiunion arguments to cer-
tain employees.
Former employee Levins also testified about questioning
by Rejczyk on or about May 18. According to Levins. Rej-
czyk around 7 p.m. on that date asked Levins near the front
374
375
office in store 34 what l.evins wanted Respondent to dlo lor
her. where her husband worked. and if levins' husband was
in a union. Rejczyk wrote down I.evins' answers. O()ther em-
plosees present. according to evins. were Ann Beats. lo-
ise Beats. Marion Chambers. and Scott (allowa .
Rejczyk did not deny Levins' testimony as to the tlrego-
ing questioling. No legitimate basis \was presented bh Re-
spondent for the questions by Rejczyk of Babbs and l.evins.
Respondent contends Rejczyk's questions were friendly and
noncoercive and therefore not violative of the Act. While
the record suggests a generally friendly employee comple-
ment, the record does not establish any significant friend-
ship on the part of RejczNk to Babb and Levins that would
tend in any respect to diminish the tendency of Rejczyk's
questioning to have a coercive impact on employees. In any
event. the Board has held that the coercive effect of numer-
ous interrogations is not necessarily lessened by whatever
personal relationship exists between the questioned enn-
ployee and the interrogator or because the interrogation
arose out of a casual conversation. AbheA Corporation-Engi-
neered Products Division, 162 NLRB 328 (1966): Arkan.eas
Grain Corporation, 160 NLRB 309 (1966): lI.ittl Rock
Hardboard Company. 140 NLRB 264 (1962). The Ialct re-
mains that Rejczyk's questioning of employees was system-
atic with no legitimate basis for the questioning expressed
to the employees and no assurance against reprisals. Ac-
cordingly. I find Rejczyk's questioning of Babb and l.evins
was violative of Section 8(a)( I).
Other questioning by Rejczyk concerning the Union was
testified to by Marion Chambers. Chambers related that on
an evening in March she and Rejczyk were together in the
office at store 34 when the subject of the union arose. Rej-
czyk. according to Chambers. asked how many people
"they" had signed up fobr the Union in Mobile. and added
she knew how "we had it" for store 34. Chambers re-
sponded that they had enough for an election, and then the
subject changed. On another occasion in late April Cham-
bers heard Rejczyk ask employee Ralph Rowley how he
was going to vote in the union election. Rowley responded
that he did not know, and Chambers told Rowley to tell
Rejczyk that he was going to vote for the Union. Rejczyk
then asked Chambers what she had against Respondent. In
the ensuing conversation which continued as Rejczyk and
Chambers went to the breakroom together. Chambers ex-
plained that "harassment" was the basis for her opposition
to Respondent. Rejczyk asked Chambers to explain, and
Chambers then referred to the Susie Johnson situation. 2
Rejczyk replied, "Well, you signed a card before what hap-
pened to Susie."
Rejczyk in her testimony admitted talking to Chambers
regarding employees signing up for the Union in other
stores in Mobile but her version has it that she only advised
Chambers that Chambers should find out how many em-
ployees were signed up in Mobile for her own sake so she
would know what was going on in other stores. Rejczyk
denied she asked anybody how they were going to vote. She
did recall the conversation with Chambers in which she
2 Johnson was discharged by Respondent on August 16, 1976. and was
the discriminates involved in the case reported at 232 NLRB 168 (1977).
admittedl\ asked ('hambers s hat she had against Respon-
dent. and she also admiltted in sustance ('hambers' reflr-
ence to Susie Johnson's case and Rejcz.k's response. I haxe
lfund (hamhers to he a reliable witness Nwhose testimony
was not contradicted in substantial part hb Rejczsk. Ac-
cordingly. I credit Chambers' ersion o the remarks and
questions of RejIcNk directed to ('hambers as well as to
Rowle, .
In addition to the unlawful interrogation of (Chambers.
the General Counsel contends that the assertioin of Rejcz k
to ('hambers that ('hambers had signed a union card prior
to the Susie Johnson discharge conveed the impression
that Respondent had employee union actixit under sur-
veillance. Respondent's brief did not specifically address
the point but generally characterized the commnents of Rej-
czyk, based on its version of the evidence. as uncoercive
and innocuous. I concur with the position of the General
Counsel. While ('hambers was admittedly an outspoken
union advocate. the record reveals no evidence establishing
a basis for Rejczb k's knowledge that ('hambers had signed
a card tor the Union prior to Susie Johnson's discharge.
Although the record does reflect that almost all store 34
employees were union supporters, it does not show at what
point in time the Union reached that degree of support at
that store. It was not until December 18, 1976. some 4
months after Susie Johnson's discharge that Respondent
was advised of the names of members of the Union's orga-
nizing committee, including Chambers. Under these cir-
cumstances I ind Chamber might reasonabl, have con-
cluded that Rejczyk's knowledge its to Chambers signing a
unlion card prior to Joh nson's discharge was acqllired sur-
reptitiousl and. in the absence of explanation. unlawfully.
I therefore find that ReJczsk's comment to Chambers had
the tendenc to create the impression that Respondent did
have the employees' union actiities under surveillance. Ac-
cordingly. I conclude that Respondent violated Section
8(a( I ) of the Act in this regard. I further find that Rejczyk's
questioning Chambers regarding the number of cards
signed for the Union in the Mobile stores and questioning
Rowle) how he was going to ote also amounted to unla-
ful interrogation in violalion of Section 8(a)( I) of the Act.
5. The remaining 8(a) 1 ) allegations
James C. Akins testified that about December 18. 1976.
he had a conversation with Store Manager Neal Butler,
store 46. as Butler. who was being transferred to another
store. was in the process of telling the store employees
goodbye. Akins posed the question to Butler of who Butler
thought would be the new assistant store manager. Butler
replied. according to Akins "Well, you know, you probably
would have made it if you hadn't been for the Union so
strong." Akins responded that he imagined he would have
been. Nothing else was said. Butler was not called as a
witness to contradict Akins' testimony.
The General Counsel argues that Butler's statement was
coercive and violative of Section 8(a)( 1 ). Respondent argues
that even if Butler's statement would constitute a violation
of Section 8(a)( I ). a conclusion not conceded, the evidence
did not sufficienth show that the statement occurred within
the 6-month period prior to the filing of the charge and,
I)EI.('HAMPS. IN('
l)t.('ISI()NS ()1 NHOI()N%1, I.ABOR RI.AIlIONS BOARI)
thus, complaint thereon was barred hby Section 10)(h) Of the
Act. ' In support of this contention Respondent points to
Akins' testinmonl on cross-examination when he concededthat he was rot even sure in what monrth Butler made the
statement he attributed to him. Akins testified that he en-
erally made notes about cverCts at work that he thought
were important and dated them. lie also testified that the
December 18 date came from his notes. lowever. it is clear
that Akins had no real independent recollection of the date
of Butler's statement. and his testirnonN was not substanti-
ated by introduction of his notes as a past recollection re-
corded. Accordingly. I am not persuaded that the record
adequately establishes that Butler's statement was made
within the 10(h) period. I therefore conclude that no finding
of a violation of the Act may be premised upon Butler's
comment."
Employee William Ditto testified that in March he had a
conversation regarding the Union with Assistant Store
Manager Jernigan in the store 46 hreakroom. Ditto re-
marked to Jernigan that it would be good if "we" (the em-
ployees) had a union "in the store." Jernigan's brief re-
sponse was, according to Ditto, that if they got a union in
there he would just "write us up" three times and "that
would be it." Ditto testified that at that time Respondent
had no progressive system of discipline ending in termina-
tion following written warnings. The General Counsel con-
tends that the remarks attributed to Jernigan by I)tto con-
stitutes a "threat" of "strict en rcement of disciplinary
rules and loss of employment if the Union were to represent
the employees."
Respondent's version of the matter was asserted through
the testimony of Jernigan and employee Charles Grant,
who was also present during the remarks in the hreakroom.
Jernigan testified that as he came into the breakroom the
employees were discussing the Union and Ditto stated to
Jernigan. "I heard that if the Union came in if I got wrote
up three times I'd automatically be fired." Jernigan replied
only that he did not know, that it could be dependent upon
what the contract said. He added that he had a cousin that
worked in a union store in Miami and their contract pro-
vided that if a person "wrote" up three times for the same
offense they would automatically be fired. Emploee
Grant's testimony corroborated Jernigan's. I have previ-
ously found Jernigan to be a credible witness. tHere he is
corroborated by Grant, who not only appeared to be a can-
did witness but also a disinterested one. Accordingly, I
Sec. 1 0(b) of the Act provides in pertinent part:
[N]o complaint shall issue based upon any uniair labor practice occur-
ring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom
such charge is made....
Even i I were to find thai the comment was made within the t0b)
period. I would find no violation of the Act based thereon. This is because it
is couched in speculative terms and reflects no specific "inside" information.
Further. Akins conceded in his testimony that Butler was "pro-union" and.
in any event, had nothing to do with promotions. Under these circumstances.
I conclude that Akins could have recognized that Butler's remark was simplythe expression of the personal view of one who sympathized with the Union,
even though the remark may have occurred in the context of other iolations
of the Act by Respondent ound herein. Cf. Las egas Sun, 209 N.RB 240
(1974).
credit Jeriligan and (irault and conclude that no unlawful
threats were made to l)itto by Jernigan.
( . l all'egd (ao)(3) i/ollfiooS
I. The alleged change and reduction in hours of Miranm
Ann Beat\
Miram Ann Beaty was employed by Respondent at its
store 34 as a bookkeeper and cashier since 1968. At all
relevant times herein she worked on a part-time basis. The
complaint alleges that during the week of April II and lor a
period of 3 weeks thereafter Respondent changed and re-
duced the work hours of Beaty because tf her union activi-
ties and sentiments in violation of Section 8(a)(3).
Beaty signed a union authorization card on July 16. 1976.
She was listed n the Union's organiz.ing committee in the
letter sent to Respondent in December 1976. Also, she testi-
fied in behalf' of the Union in the unfair labor practice pro-
ceeding involving Respondent in December 1976 as well
as in a representation case hearing involving Respondent
and the Union in March 1977. Thus, Beaty's union sup-
port was clear to Respondent at all relevant times.
Beatv testified that about 2 weeks before former Store
Manager ddie Holmes left store 34 (around the last of
March) her hours were cut from 20 hours per week to 18
hours, although the time of her work, generally afternoons,
was not changed. She continued to work such hours until
about 2 weeks after Pridgen became manager, about 4
weeks in all. Pridgen then changed her hours to mornings,
explaining that he wanted his bookwork done in the morn-
ings. Beaty testified that Pridgen's new schedule put her
back to 20 hours per week. Nevertheless, according to
Beaty, in practice she did not get her full 20 hours per week
because when she finished her bookkeeping early she was
sent home. That practice lasted for about 3 weeks until
Beaty complained to Assistant Store Manager Rejczyk. Af-
ter her complaint she testified she began to get her full 20
hours per week.
On cross-examination Beaty admitted that in January
and February she sometimes worked more and sometimes
less than 20 hours per week. She further admitted that when
Pridgen changed her schedule to mornings he had allowed
her to come in at 8 a.m. rather than 7 a.m. when the other
employees came in order to accomodate a babysitting prob-
lem she had. Moreover. Beaty testified that in April she
probably worked more hours than in February or March,
and the increase was due to Pridgen assigning her more
hours after inquiring of her if her "health" would permit it
and after she had responded "we can try it."
Respondent, through the testimony of Pridgen, denied
that Beaty had suffered any cut in hours. In support of this
testimony Respondent introduced a compilation of Beaty's
hours of work on a weekly basis from January I through
May 7. That compilation shows that Beaty worked 20.3
hours for the week ending March 19 and 19.8 hours for the
week ending March 12. This represents the 2-week period
prior to the time Pridgen assumed managership of Store 34
232 NLRB 168 1977).
5t Case 15 RC 6068.
376
DE.I.(HAMPS. INC.
on March 20. For the 3-week period after Pridgen became
manager the compilation shows Beats worked 23.9 hours
for the week ending March 26, 17.8 for the week ending
April 2. and 19.6 for the week ending April 9. For the pe-
riod alleged in the complaint herein. i.e.. the 3 weeks fol-
lowing April I 1, the compilation shows Beaty worked 23.5
hours the week ending April 16. 19.0 hours for the week
ending April 23 and 20.2 hours for the week ending April
30.'Lastly, the compilation shows also that Beats's hours
varied from week to week in January and Februar bhut
were generally slightly above 20 hours per week.
Pridgen admitted changing Beaty to morning hours hut
testified it was consistent with the practice of the other
stores in which he had worked. In this regard he testified
the bookkeeping was done in the mornings to enable a
quicker bank deposit in order to avoid having excess cash in
the store.
While Respondent's compilation of Beaty's hours shows
sporadic drops below 20 hours per week in March and
April, such drops from a timing standpoint are not consis-
tent with either Beaty's testimony or the allegations of the
complaint. On the contrary, she averaged working more
than 20 hours per week for any given consecutive 3-week
period in March or April. I am not therefore persuaded that
Beaty suffered any significant cut in hours Moreover. even
assuming the establishment of a slight cut in weekly hours.
I would find no evidence of a csual connection with
Beaty's union activities. The alleged "cut" in hours was
long after Respondent was first aware of Beaty's union
sympathies and long after her testimony in the previous
unfair labor practice case. Moreover, even Beats admits
that Pridgen wanted to increase her hours if her "health"
permitted and she agreed to "try it." Finally, even though
Pridgen did change her schedule from afternoon to morning
hours he sought to accomodate her with respect to her
babysitting problem. All of this is not in any way indicative
of discriminatory action. Accordingly, I find that the record
does not establish by a preponderance of evidence the
8(a)(3) violation alleged with respect to Beaty.
2. The alleged discriminatory change in the work
schedule of James C. Akins
The complaint alleges that Respondent violated Section
8(a)(3) of the Act on and after April 25 by assigning James
C. Akins to, and requiring him to work, a different work
schedule. Akins, as has already been noted herein, worked
in store 45. Akins had signed a union authorization card in
July 1976 and had solicited other employees to sign such
cards. He wore "Vote Yes" buttons in his store beginning
around the time in April when the Union filed its petition
seeking an election in the multistore unit. However, his
union sentiments were well known to management as early
as December 1976 when his name appeared on the Decem-
ber 18 letter or "petition" to Respondent naming him.
among others, as being on the Union's organizing commit-
tee. Moreover. he testified he started wearing his "pocket
saver" with the Union's name on it in his store shortly after
he signed a union card in July 1976.
Akins testified that about April he experienced a change
in his work schedule. Whereas he had customarily been
reporting for work at 7 a.m. on Thursdays, Akins was there-
after required to report at 5 a.m. in order to wax the store's
floors. Ile had not previously been required to wax floors
since that had been done during regular store hours by an-
other employee using a wax that required hutting or polish-
ing. ThG earlier start of Akins' Thursday shift resulted in a
corresponding earlier quitting time for him. Akins suffered
no reduction in the total number of weekly hours worked as
a result of the schedule change nor did he suffer any' loss of
pay. On the contrary, his pa' was increased because he
received a premium hourl rate for the 2 hours he came in
early on Thursdays prior to the general opening of the store
at 7 a.m.
The General Counsel argues that since Akins was a
strong union advocate whose union position was known to
management and since his schedule change shortl) fl-
lowed his wearing of the union buttons, it must be clear
that the change was discriminatorily motivated. Respon-
dent. based also on Akins' testimony, claims that Akins'
schedule change was prompted by legitimate business needs
and was not discriminatorily motivated. In this regard.
Akins testified that under Respondent's old waxing system
wax was applied and buffed during the day when the store
swas open to customers and at some inconvenience to the
customers. Uinder the new system such inconvenience w\as
avoided by cleaning and preparing the floors on Wednes-
day evenings with Akins and another employee coming in
on T'hursday mornings at 5 a.m. to apply two coats of a
self-polishing w;ax l hich required no buffing. The two coats
were applied and were allowed to dry prior to the store
opening.
I find nothing in the timing of Akins' schedule change to
suggest that it was discriminmltorilv motivated. His union
sympathies were well known to management several
months before the change took place. While he did inspire
some animosity from Priden as a result of his switching
back to a prounion position after misleading Pridgen. as set
forth in detail herein. that animosity arose substantially af-
ter the schedule change alleged here to be discriminatory.
As a result there is nothing to indicate that the schedule
change wias retaliator, or even detrimental to Akins. He
made no complaints about the change at any time, and
there is nothing in the record to establish that Respondent
would anticipate that Akins would find the change objec-
tionahle. There was also no showing that the work was
more arduous or otherwise undesirable. And finally, there
was no evidence that Akins' selection for the change, as
opposed to some other employee, was discriminatory.
Akins himself testified that another employee's schedule
was also changed so that that employee. Raines, could
come in with Akins to apply the self-polishing wax. Raines
had not been shown to be a union supporter known to man-
agement. The change also required an assistant store man-
ager to report for work with Akins and Raines. It is highly
unlikely that Respondent would have inconvenienced its
own management by requiring an assistant store manager
to come in early I day a week simply to inconvenience a
union advocate, if indeed he was inconvenienced, a fact the
record does not reveal. Considering all the foregoing, I am
persuaded that the General Counsel has failed to establish
by' a preponderance of evidence that Respondent violated
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) and () of the Act with respect to Akins'
schedule change.
CON('CLUSIONS ()F LAW
I. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By unlawfully interfering with, restraining, and coerc-
ing employees, as fund herein, by interrogating them re-
garding their union sentiments. by creating an impression
of surveillance of employee union activities, by threatening
employees with a loss of employment and a refusal to sign a
contract with the Union if the employees selected a union
to represent them, and by restricting an employee's conver-
sations and movements within its stores, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate Section 8(a)(3) or () of
the Act with respect to its actions in regard to employees
Miram Ann Beaty or James C. Akins.
6. The General Counsel has not established by a prepon-
derance of evidence that Respondent has violated the Act
as alleged in the complaint except to the extent noted in
paragraph 3 above.
Timl RMIEI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
necessary to remedy the unfair labor practices and to effec-
tuate the policies of the Act, to include the usual posting of
appropriate notices." In my opinion, since the unfair labor
practices found herein affected employees of more than one
of Respondent's 17-store unit in Mobile and Baldwin Coun-
ties, and since there appears to be a close association be-
tween employees in that group of stores, effectuation of the
policies of the Act will best be achieved by requiring Re-
spondent to post notices to employees at all its stores lo-
cated in Mobile and Baldwin counties. Alabama. The
Board previously found that a posting in Respondents 17
stores was appropriate to remedy the previous unfair labor
practices which the Board found Respondent committed.
Delchamps, Inc., 234 NLRB 262 (1978).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1" Respondent's brief contends that certain evidence regarding misconduct
by the Union, which was rejected by me at the hearing, precludes the issu-
ance of a remedial order in this case. Respondent relies in this regard upon
Herbert Bernstein. Alan Bernstein, Laura Bernstein, a co-partnership d/b/a
Laura Modes Company, 144 NLRB 1592 (1963). 1 find the cited case inappo-
site as the Union's conduct there warranted issuance of a complaint which
was settled prior to the hearing. Here the charge filed by Respondent on the
Union's alleged misconduct was dismissed and no complaint was ever issued.
In addition, in the Laura Modes case the Board withheld a bargaining order
remedy, only, and did find a remedial order necessary to remedy the employ-
er's Section 8(a)( I violations notwithstanding the Union's misconduct.
The Respondent, Delchamps, Inc., Fairhope. Mobile,
and Spanish Fort, Alabama, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Interrogating its employees about their union mem-
bership or sympathies or the union membership or sympa-
thies of their relatives.
(b) Creating the impression that the union activities of its
employees are under surveillance.
(c) Threatening its employees that it would refuse to sign
a collective-bargaining agreement with Retail Clerks Union
Local No. 1657, AFL CIO, R.C.I.A.. or any other labor
organization which the employees might select to represent
them in collective bargaining.
(d) Threatening its employees that they would lose their
employment if they selected Retail Clerks Union, Local No.
1657, AFL-CIO, R.C.I.A., or any other labor organization
to represent them in collective bargaining.
(e) Unlawfully restricting the movements and conversa-
tions of its employees within its stores in order to interfere
with, restrain, or coerce its employees in the exercise of
their right to self-organization.
(f) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization: to form, join, or assist the above-
named Union. or any other labor organization, to bargain
collectively through representatives of' their own choosing:
and to engage in other concerted activities for the purpose
of collective-bargaining or other mutual aid or protection,
or to retrain from any or all such activities.
2. Take the following affirmative action which will effec-
tuate the purposes of the Act:
(a) Post at each of' its stores in Mobile and Baldwin
Counties. Alabama. copies of the attached notice marked
"Appendix."'l Copies of said notice, on forms provided by
the Regional Director for Region 15, after being duly
signed by Respondent's representative, shall be posted by it
immediately upon receipt thereoft; and be maintained by it
tor 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 15. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
11 Is F:URliER ORDERIIFD that the complaint as amended
be, and it hereby is, dismissed in all other respects.
1' 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, and recommended Order shall, as provided in Sec. 102.48 of the
Rules and Regulations, he adopted b) the Board and become its findings,
conclusions, and Order, and all objections thereto shall be deemed waived
for all purposes.
'9 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Fnforcing an Order of the Na-
tional .abor Relations Board."
ORDER's
378