Delchamps, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1977

232 N.L.R.B. 168 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Delchamps, Inc. and Retail Clerks Union, Local No.
1657, AFL-CIO-CLC, R.C.I.A. Case 15-CA-
6189
September 20, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 23, 1977, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent and counsel
for the General Counsel filed exceptions and sup-
porting briefs, and Respondent filed an opposition to
General Counsel's exceptions.
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
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy,2 and to adopt his
recommended Order.
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 Administrative Law Judge and
hereby orders that the Respondent, Delchamps, Inc.,
Fairhope, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It 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 Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent in its exceptions asserts also that the Administrative Law
Judge was biased and prejudiced against it. We have carefully reviewed the
record and the Administrative Law Judge's Decision and we find nothing
therein which would support such a charge.
The General Counsel has excepted to the Administrative Law Judge's
failure to make additional findings that Respondent violated Sec. 8(aX1) of
the Act by creating the impression of company surveillance over employees'
protected activities. We find it unnecessary to pass on these exceptions,
since any additional findings would merely be cumulative and, therefore,
would not affect our remedy herein.
2 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977, in which the "adjusted pnme interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
232 NLRB No. 17
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the chance to
give evidence it has found that we violated the
National Labor Relations Act and we have been
ordered to post this notice and to abide by it.
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in
bargaining
To act together for your common interest
or protection
To refuse to participate in any or all of
these things.
WE WILL NOT create the appearance that your
union activities are under surveillance.
WE WILL NOT threaten you with discharge
because you are a member of or support Retail
Clerks Union, Local No. 1657, AFL-CIO-CLC,
R.C.I.A., or any other union.
WE WILL NOT discharge you, lay you off,
transfer you to other jobs, or otherwise discrimi-
nate against you because you are a member of
Retail Clerks Union, Local No. 1657, AFL-CIO-
CLC, R.C.I.A., or any other union, or because
you have supported Retail Clerks Union, Local
No. 1657, AFL-CIO-CLC, R.C.I.A., or any other
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in exercising the
rights guaranteed to you by the National Labor
Relations Act. The National Labor Relations
Board found that we violated the Act by
discharging Susan C. Johnson because she assis-
ted Retail Clerks Union, Local No. 1657, AFL-
CIO-CLC, R.C.I.A.
WE WILL offer to reinstate Susan C. Johnson to
her former job without loss of seniority or other
rights and WE WILL reimburse her for any loss of
earnings she may have suffered as a result of our
discrimination against her together with interest.
DELCHAMPS, INC.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge: This
proceeding was heard in Mobile, Alabama, on December 8
and 9, 1976, upon a charge filed on August 20, 1976, and a
168
DELCHAMPS, INC.
complaint issued on October 20, 1976, which was amended
at the hearing. The amended complaint alleged that the
Respondent, Delchamps, Inc., violated Section 8(a)(l) of
the National Labor Relations Act, as amended, by creating
the impression of surveillance over its employees' union
activity and by threatening to discharge employees who
supported Retail Clerks Union, Local No. 1657, AFL-
CIO-CLC, R.C.I.A. (referred to herein as the Union). The
complaint also alleged that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Susan C. Johnson
because of her union activity. Respondent answered
denying commission of any unfair labor practices. Follow-
ing the hearing, the General Counsel and Respondent
timely filed briefs.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying, and upon
consideration of the posthearing briefs, I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Respondent, an Alabama corporation, sells groceries,
meat, and related food products to the public at a number
of retail store locations in the States of Alabama,
Mississippi, and Florida. Respondent annually purchases
and receives goods and materials valued in excess of
$50,000 directly from points located outside the State of
Alabama and annually receives gross revenues in excess of
$500,000.
The complaint alleges, the answer admits, and I find that
Respondent is now and has been at all times material an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent denies the complaint's allegation that the
Union is a labor organization within the meaning of
Section 2(5) of the Act. However, I find from the
uncontradicted testimony of the Union's organizing direc-
tor, David Johnson, that the Union is an organization in
which employees participate and which exists for the
purpose of representing such employees in bargaining with
employers concerning wages, hours, and working condi-
tions. As such, the Union is party to collective-bargaining
agreements with employers including Bruno's Food World
stores in the State of Alabama. In its capacity as a
collective-bargaining representative, the Union handles
employee grievances. Accordingly, I find that the Union is
a labor organization within the meaning of Section 2(5) of
the Act. E. W. Wiggins Airways, Inc., 210 NLRB 996, 997
(1974).
' Under cross-examination, Johnson appeared uncertain as to the
content of Hall's warning. However, Hall appeared more at ease while
testifying than did Johnson, and satisfied me that he had omitted this
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This case presents questions as to whether Respondent in
attempting to counter union activity among its employees
violated Section 8(a)(3) and (1) of the Act by discharging
employee Susan C. Johnson because she was a union
activist, and Section 8(aX)() of the Act by statements which
were likely to give employees the impression that their
union activity was under surveillance and by threats of
economic reprisal.
B. Susan C. Johnson's Discharge
Except as noted, the facts are undisputed. The Company
first hired Susan C. Johnson as a part-time cashier in 1971
at its Spanish Fort, Alabama, store. Approximately I year
after her hire, the Company changed Johnson's status to a
full-time cashier. In mid-January 1976, the Company
transferred Johnson to its store No. 34 at Fairhope,
Alabama, where she was employed as a full-time cashier
until her termination on August 16, 1976.
On July 3, fellow employee Don Boutwell, who had
attended a union meeting where he had obtained authori-
zation cards from the Union, successfully solicited John-
son's signature on one of the cards. Along with her own
card, Johnson received a number of authorization cards
from Boutwell which she thereafter distributed to at least
six fellow employees. Johnson solicited for the Union
during her lunch hour, before and after work, off the
Fairhope store's premises, and in its parking lot.
In addition to her solicitation activity, Johnson attended
union meetings. She first attended a meeting on July 16 at
the home of fellow employee Eloise Beaty. One such
meeting occurred at her home on July 28, which was
attended by approximately 15 of Respondent's employees
and 2 union representatives. Thereafter, prior to her
termination, Susan Johnson attended two or three addi-
tional union meetings.
At the July 28 meeting, Susan Johnson joined the union's
organizing committee. Thereafter, until her discharge, she
in league with other members of the committee sent out
letters urging fellow employees to support the Union.
At the time Boutwell enlisted Johnson's aid in the
union's organizing effort, he instructed her to be secretive
and quiet in carrying out her union activities. He also
suggested that she not discuss her union activity or
attitudes with the Fairhope store's management.
On an evening during the first week in July, Susan
Johnson asked a Fairhope store assistant manager, Ken-
neth W. Hall, an admitted supervisor, what Respondent's
reaction would be to her union activity. Hall warned that
the-Company would terminate union supporters.'
On August 1, at a nearby Fairhope restaurant, Susan
Johnson again encountered Assistant Store Manager Hall.
Hall told her that the Company was aware of her union
activity, that management knew that she'd had a meeting
in her home and had sent "a spy" to Johnson's meeting and
incident from his pretnal affidavit through inadvertence. I have therefore
credited his version of his remarks to Johnson in early July.
169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the earlier meeting at employee Eloise Beaty's house.
Hall would not disclose the spy's identity. Hall also stated
that Eddie H. Holmes, the Fairhope store manager, knew
the names of the employees in attendance at the meetings
and what had transpired there.
Susan Johnson also had discussions regarding the Union
with a second Fairhope assistant manager, Leonard
Robinson, also admittedly a supervisor. The first encounter
occurred around July 21. As Johnson was clocking out,
Assistant Manager Robinson leaned over to her and said
that Respondent's area supervisor, Hugh Bray, had
"received one of the letters that the Union sent out."
Johnson asked, "What letters?" Robinson came back with,
"You know what letters. The letters that the Union sent
out." Johnson responded, "I don't know what you are
talking about." At this point employee Myram Ann Beaty
joined the discussion and advised Johnson to contact
Union Representative David Johnson "and tell him about
it." Susan Johnson denied knowing who David Johnson
was. At this, the discussion broke off. In early July,
Assistant Store Manager Leonard Robinson had told
employee Myram Ann Beaty he was aware of Johnson's
prounion sentiment.
Johnson's second encounter with Assistant Manager
Robinson occurred toward the end of July, at the store's
break room, during Susan Johnson's lunch hour. Robinson
approached her and said, "Well, I finally hear you got
James Harbin to sign up." His reference was to an
employee at the Respondent's Spanish Fort store. Johnson
was reluctant to reply and finally answered, "Well, Mr.
Robinson, you are a company employee and I'm just an
employee and I'd rather not talk to you about the Union."
One week later, in the Fairhope store's break room
Johnson again encountered Assistant Manager Robinson.
Robinson warned her, "You don't have to say anything to
me but I want you to know that you've have got a nigger in
the woodpile." Johnson looked at him quizzically. He
added: "You know what I mean, don't you?" At this,
Johnson said, "Well, not really." Robinson resumed:
"You've got somebody who is pretending they're some-
body they're not." At this, Johnson asked, "Do you mean a
spy?" To which Robinson replied, "Yes." At this point,
Johnson said, "Well, I wouldn't be surprised and I think I
know who it is." At that, the conversation ended.
In late July, Holmes expressed concern to his assistant
managers about union activity at Respondent's stores.
Holmes remarked that "the union activity was working
within the company and the people were going around to
the stores trying to solicit employees." Holmes wanted to
be informed if there were any cars in the parking lot
bearing a Birmingham County tag. He also remarked,
"that if anybody was for the Union that the Company
would not stand for it."
I find from Hall's testimony that, during the first week in
August, Holmes told Hall that he knew that union
meetings had been held at the homes of Susan Johnson and
2 Holmes denied knowledge of a union meeting at Johnson's home and
denied knowing the identity of those attending any union meetings. He also
denied telling anyone he had such information. However, Hall impressed
me as being more straightforward and detailed in his testimony, much of
which went undisputed. I have determined therefore that of the two Hall
was the more reliable witness. Accordingly, I have rejected Holmes' denials
Eloise Beaty. Holmes also named some of the employees
who attended the meetings and expressed the thought that
the meetings were "for the Union." 2
Finally, in the early or middle part of August, Area
Supervisor Bray asked Assistant Store Manager Hall what
he knew about union activity among Respondent's em-
ployees. Hall had little to report on and no facts to support
the rumors he was repeating. However, when Bray sought
identification of Hall's informants the assistant manager
declined to provide the requested information. At this Bray
admittedly warned him to "screw his head on right. Get his
thinking cap on correctly."
On August 5, Mrs. Crutherds, a good customer of the
Fairhope store, visited that store, purchased close to $100
worth of groceries and went to the checkout counter where
Johnson was employed as a cashier. As Johnson checked
out Mrs. Crutherds' groceries, bagboy Tommy Leonard
began packaging Mrs. Crutherds' order. At this point, Mrs.
Crutherds handed Johnson a stack of product discount
coupons. Johnson went through the stack of coupons
comparing them with Mrs. Crutherds' order. Johnson
rejected those coupons which she found for items not
carried by Respondent, or which she found unaccompa-
nied by the appropriate purchase. In checking Crutherds'
purchases, Johnson asked bagboy Leonard if the appropri-
ate item was in the packed bags. Johnson gave Crutherds
credit for those items which she found covered by discount
coupons and returned the bulk of the coupons to the
customer. Johnson's refusal to take all of the coupons
persisted in the wake of Crutherds' insistence that she had
more of the items covered by the coupons then Johnson
gave her credit for. While walking to her automobile,
accompanied by bagboy Tommy Leonard, Mrs. Crutherds
voiced her intention to contact the Respondent to protest
Johnson's refusal to credit more of her coupons.
At all times material to this case, Respondent's policy
limited redemption of discount coupons to products
carried in its stores. If an item covered by a discount
coupon was purchased from Respondent, Respondent
permitted redemption of only one coupon per item
purchased.
Later, on the morning of August 5, Sherry A. Tuttle,
secretary to Respondent's vice president and secretary, Joel
Swanson, received an angry and agitated telephone call
from Mrs. Crutherds. Crutherds reported that a cashier at
the Respondent's Fairhope store had refused to honor
discount coupons for items which Crutherds claimed she
had purchased. Crutherds complained to Tuttle that the
cashier had refused to check her groceries to ascertain
whether she was entitled to the redemption of discount
coupons. Mrs. Crutherds also charged that the same
cashier had been "very rude and ugly to her on previous
occasions." Crutherds went on to threaten to take her
patronage to one of Respondent's competitors. Mrs. Tuttle
took Crutherds' name and telephone number and assured
her that a representative of Respondent would contact her.
and have credited Hall. In assessing Holmes' testimony, I have also noted
that, in July, Assistant Manager Robinson repeatedly indicated that
Respondent was aware of Johnson's union activity. For Robinson's
assertions provide reasonable ground for inferring that his immediate
superior, Holmes, was well informed about Johnson's role in the union's
campaign.
170
DELCHAMPS, INC.
Mrs. Tuttle immediately sought out Vice President
Swanson and related Mrs. Crutherds' complaint to him.
Sometime during the first or second week of August, Area
Supervisor Hugh Bray received word of Mrs. Crutherds'
complaint from his superiors. As Bray heard it, Mrs.
Crutherds' complaint was that one of the cashiers at the
Fairhope store had refused to cash her coupons and had
argued with her. Bray was instructed to investigate the
matter.
Bray contacted Mrs. Crutherds and asked her to recount
the August 5 incident. She told Bray that a cashier at
Respondent's Fairhope store had refused to give her credit
for coupons covering items she had purchased, that the
cashier did not check her groceries and was "ugly and had
a very nasty attitude." Mrs. Crutherds could not identify
the cashier by name but described her as being heavy set
and having long blonde hair. Bray asked Mrs. Crutherds to
describe the offending employee to Store Manager Holmes
when next she visited the Fairhope store.
Store Manager Holmes first became aware of Mrs.
Crutherds' complaint on the morning of August 12, when
he received a phone call from Area Supervisor Bray. Bray
instructed Holmes to identify the offending cashier,
suspend her, and hold an investigation.
That same morning, Crutherds appeared at Holmes'
store, recounted her complaint, and described the employ-
ee involved. She described the individual as "the big heavy
set blonde." Holmes identified the cashier as Susan C.
Johnson.
Shortly thereafter, Johnson arrived for work. Holmes
came to her and directed her to the store break room.
There, in the presence of Assistant Manager Leonard
Robinson, Holmes asked Johnson if she remembered an
incident which had happened the previous week involving
a customer "who came in with a large order and a stack of
coupons which you wouldn't take?" Johnson recalled the
incident. Holmes sought an explanation of her refusal to
accept the coupons. Johnson replied that Mrs. Crutherds
had presented coupons for items she had not purchased
and for other items which Respondent did not carry.
Holmes told Johnson that Crutherds had complained
about Johnson's refusal to take coupons and that Johnson
"was rude and ugly to her." Johnson denied being rude and
ugly and requested an opportunity to talk to Crutherds.
Holmes denied her request. He then handed Johnson a
prepared warning notice which he asked her to sign.
Johnson observed that the notice reported that she had
"refused to take coupons from Mrs. Crutherds and that I
was rude and ugly to her." Johnson refused to sign the
warning notice. Concluding the interview, Holmes told
Johnson that he intended to investigate the incident and
suspended her until the following Monday, August 16.
Johnson suggested that Holmes talk to the bagboy who had
witnessed her encounter with Mrs. Crutherds. Holmes said
he would do so.
On August 12, following Johnson's suspension, Holmes
began his investigation. He checked the August 5 work
schedule and contacted two employees, Mary Ann Cham-
bers, a cashier who had worked at a checkout station next
to Johnson's that day and Tommy Leonard, the bagboy at
Johnson's checkout counter.
Holmes obtained the following statement from cashier
Mary Ann Chambers:
I was checking at no. 3 register and Suzy Johnson was
at no. 4. I heard her customer over there arguing about
some coupons. She was pretty upset about it. Suzy told
her that she did not have the coupons. The lady said
something to her, so then she started checking the
groceries on top of the register and I did not see her
check the groceries in the bag. Because I had to check
my customer out. I don't know what else went on after
that.
Holmes obtained the following statement from bagboy
Tommy Leonard:
Suzy checked out customers groceries. Lady presented
coupons to Suzy. Customer was told that she didn't
have items for coupons. Groceries were bagged up and
were not checked back through. To the best of my
knowledge coffee was the only thing given credit for.
On Monday, August 16, at 9 a.m., Susan Johnson
reported to Respondent's Fairhope store. Upon her arrival,
Johnson proceeded to the break room where she met Area
Supervisor Bray. At Bray's direction, Johnson went to the
store timeclock and punched in. She returned to the break
room to find Store Manager Holmes with Bray. Bray asked
Johnson for an explanation regarding her refusal to take
coupons from Mrs. Crutherds. He also questioned Johnson
as to why she was "ugly and rude" to Crutherds, and had
argued with her without calling an assistant manager or the
store manager over to clear up the dispute. Johnson denied
that she had been ugly and rude to Crutherds. Johnson also
replied that she had not accepted the coupons because
Crutherds did not have the purchased items covered by
those coupons. As for her failure to call for management
assistance, she asserted that there had been no problem
requiring such action. Notwithstanding Johnson's protest,
Bray repeated the accusations. Johnson responded, "Well,
I didn't do it." At this, Bray notified Johnson that she was
terminated because of being ugly and rude and refusing to
accept Crutherds' coupons. After cleaning out her locker
and refusing to sign a blank separation notice, Susan
Johnson left the Fairhope store.
Prior to her termination on August 16, Johnson had been
disciplined only twice by Respondent. The first instance
occurred when she was employed at the Respondent's
Spanish Fort store. In that incident, Johnson received a
written warning after a customer short changed her in the
amount of $60. The punishment for that incident was a
warning. In another incident, Johnson made a $45 void on
her cash register tape while working at the Spanish Fort
store. For this infraction, Respondent suspended her for I
week.
For several reasons I do not credit Manager Holmes'
testimony that "several months" prior to the Crutherds
incident Assistant Manager Robinson reported "two
discrepancies in regard to customer relations" involving
Susan C. Johnson. First, Holmes provided no details of
these asserted reports. Further, Robinson did not testify.
Significantly, Johnson credibly denied that Robinson ever
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warned her about either her treatment of customers or her
relations with customers. She also denied without contra-
diction that Holmes ever mentioned Robinson's com-
plaints to her. Finally, Bray's testimony that Holmes
mentioned Robinson's report to him after Crutherds had
identified Johnson to Holmes and that Holmes also
mentioned them to Johnson on August 16, finds no
corroboration in Holmes' testimony.
In sum, my impressions that Holmes and Bray were
more concerned with vindicating Respondent than with
providing full and forthright testimony, together with the
factors I have listed above, persuaded me to reject
Respondent's assertions that Robinson had complained
about Johnson's treatment and attitude toward customers.
C. Analysis and Conclusions
1. Interference, restraint, and coercion
As found above, in late July, Assistant Store Manager
Hall told Myram Ann Beaty that Store Manager Holmes
had asserted that union meetings had been held at Susan
Johnson's home and at the home of Eloise Beaty. Hall also
reported that Holmes said he knew which employees had
attended those meetings and had recited the names of
those employees to Hall. By these assertions, transmitted
through Hall, Respondent was likely to create the unmis-
takable impression that it was surreptitiously watching the
union's meetings. It is also reasonable to infer that Hall's
report would seriously impair the employees' freedom to
attend union meetings or otherwise engage in union
activity. Accordingly, I find Hall's remarks violated
Section 8(a)(l) of the Act. Central Power & Light Company,
173 NLRB 287, 293 (1968), enfd. 425 F.2d 1318 (C.A. 5,
1970).
I also find that Assistant Manager Hall's remarks to
Susan Johnson on August 1 conveyed the impression that
Respondent was using espionage to identify Johnson and
other employees as union supporters. This impression was
likely to arise from Hall's assertions that Respondent knew
of Johnson's union activity, that she had had a union
meeting at her home, that Respondent employed spies to
infiltrate that meeting and another meeting, and finally
that Respondent had identified the employees who had
attended those meetings. In this incident, as in the incident
reported above, I find that Hall's remarks created the
impression that the Respondent was maintaining surveil-
lance over its employees' union activities and thereby
violated Section 8(a)(l) of the Act. Hatteras Yachts, AMF,
Incorporated4 207 NLRB 1043, 1047 (1973).
In late July 1976, Respondent again violated Section
8(a)(1) of the Act in an incident involving Assistant
Manager Hall. According to employee Myram Ann
Beaty's credited testimony, Hall told her that Holmes knew
of the union's meetings, their locations, and the names of
employees attending. When Beaty asked whether Holmes
had mentioned her name, Hall responded: "I can tell you
there is definitely a pimp in this store." Hall also credibly
testified that he also warned: "Well, Ann I think they're
going to find out that you're for this thing too, and so
you're going to be gone too." Hall's remarks regarding
Holmes' knowledge, followed so closely by Hall's unmis-
takable warning that there was a spy among the employees
were likely to persuade Beaty that Respondent was
engaged in surveillance of its employees' union activities.
By this intrusion into Beaty's right to engage in union
activity Respondent violated Section 8(a)(1) of the Act.
Respondent also violated the same section of the Act when
Hall threatened Beaty with discharge if Respondent
detected her prounion sentiment.
In September 1976, Assistant Manager Robinson told
Beaty that Holmes had asserted that she had telephoned
Respondent's other stores soliciting employee support for
the Union. Beaty denied this assertion. The following day
Robinson told Beaty that Holmes had asked if Robinson
knew "anyone who would stand behind the Company."
When Robinson said, no, Holmes replied: "All will have to
go then." Taken in context, with his remarks to Beaty on
the previous day, Robinson's report of Holmes' warning
could reasonably be taken as a threat that Respondent
contemplated the discharge of all employees with apparent
union sympathy. By this remark, I find Respondent
violated Section 8(a)(l) of the Act.
I do not agree with General Counsel, however, that
Robinson's remark to Beaty in July 1976 to the effect that
he was aware of Johnson's prounion sentiment was likely
to create the impression of unlawful surveillance. For the
record shows that about this same time Susan Johnson was
openly assisting the Union's organizing drive during
lunchbreaks, before work, and, in the store's parking lot.
Thus, Beaty might reasonably have concluded that Robin-
son had learned of Johnson's union activity by casual
observation rather than surreptitious espionage. I find,
therefore, in these circumstances that the evidence does not
sustain a finding that this remark by Robinson violated
Section 8(a)(l) of the Act.
I also find that Respondent did not create the impression
of unlawful surveillance when Assistant Manager Robin-
son told Suzy Johnson that Area Supervisor Bray had
obtained a copy of a union letter. Nor do I find, as urged
by the General Counsel, that Assistant Manager Robinson
created the impression of unlawful surveillance when he
told Johnson, "Well, I finally hear that you got [Spanish
Fort store employee] James Harbon to sign up." In neither
of these instances did Robinson's remarks provide basis for
believing that the information reported was obtained
through espionage.
I have found above that, in early August, Robinson in
essence warned Johnson that an employee posing as a
union supporter was in fact a spy. However, Robinson did
not tie the so-called spy to Respondent. Nor was there any
showing that as of early August the Company's espionage
had gone beyond planting spies at two union meetings. In
these circumstances, Robinson's warning to Susan Johnson
was not likely to give her the impression that Respondent
had planted this spy. Accordingly, I find that Robinson's
remarks to Johnson in this context did not violate Section
8(a)(1) of the Act.
2. Susan Johnson's discharge
The General Counsel argues that the Crutherds incident
was merely a pretext, and that the real motive for
Johnson's termination was her union activity. Respondent
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DELCHAMPS, INC.
denies that its decision to terminate Johnson was motiva-
ted by any reason other than the Crutherds incident. For
the reasons given below, I find that Respondent terminated
Susan C. Johnson because of her union activity and
thereby violated Section 8(aX3) and (1) of the Act.
Although Susan C. Johnson is not the leading union
supporter at the Fairhope store, she engaged in consider-
able union activity. Beginning in early July, Johnson signed
a union authorization card and distributed similar cards to
at least six of her colleagues. She also attended union
meetings and permitted her home to be used for such a
meeting on July 28. In recognition of her leading role in the
Union's organizing campaign at the Fairhope store,
Johnson was selected as a member of the Union's
organizing committee.
Respondent's assertion that it was unaware of Johnson's
union activity is belied by abundant contrary evidence in
the record. Around the first of July, Assistant Store
Manager Robinson spoke to employee Myram Ann Beaty
and revealed that he was aware that Susan Johnson was for
the Union. At the end of July, Robinson again revealed
that he was aware that Johnson was for the Union and
expressed suspicion that she was a union activist when he
told her that he knew she had obtained a signed
authorization card from employee James Harbon. Finally,
in early August, Robinson warned Johnson to the effect
that her union activity was under the surveillance of a
company spy. Also around the first of August, Assistant
Manager Hall informed Johnson that Respondent was
aware of her union activities and that she had had a union
meeting at her home. In view of the remarks of Assistant
Managers Hall and Robinson I find that, by the beginning
of August, Respondent at least strongly suspected that
Johnson was a leading union activist.
Respondent argues that the General Counsel had failed
to establish union animus in this case. In an effort to
establish that such animus was not present Respondent
introduced Vice President Joel Swanson's testimony to the
effect that Respondent instructed its supervisors not to
engage in antiunion activity including unlawful threats,
interrogation, or promises of benefits in an effort not to
interfere with the union activity. However, there is no
showing that these instructions extended to espionage and
surveillance of employees' union activities. Nor is there any
showing that Respondent policed or enforced these rules
against its supervisors. I also note the absence of evidence
that Respondent advised employees of.its stated policy, or
told them they were free to engage in union activity as
permitted under Section 7 of the Act.
Instead, as found above, the record shows violations of
Section 8(a)(1) of the Act. Thus, Assistant Supervisor Hall
threatened Johnson with discharge if the Company
discovered that she was a union supporter. I have also
found that Manager Robinson told employee Beaty that
his superior, Holmes, stated that union supporters would
be terminated. In addition to these strong expressions of
union animus, I have found above that Respondent
through Assistant Store Managers Hall and Robinson
repeatedly warned its employees that it was engaged in
surveillance of their union activities including meetings at
their own private homes and that there were spies among
them who would be quick to advise of the identity of union
activists. Thus, despite Vice President Swanson's asser-
tions, the record shows that Respondent maintained a
hostile attitude towards union activity among its employees
and translated that hostility into unfair labor practices.
Thus, I find that the record amply supports General
Counsel's contention that Respondent manifested union
animus prior to Susan C. Johnson's discharge.
Further ground for finding that Johnson's union activity
and sentiment motivated the Respondent's decision to
terminate her was provided by the timing of the discharge
about 2 weeks after a flurry of incidents in which Johnson
learned from management that Respondent was engaged in
espionage regarding her union activity and that Respon-
dent had already persuaded itself that she was a union
supporter.
The final element in General Counsel's case was the
showing that Johnson's discharge was an extraordinary
event. Respondent Store Manager Holmes testified that
Susan Johnson was the first employee he had heard of
during his 16 years in Respondent's employ who was
terminated because of a customer complaint. Hall, whose
employment with Respondent spanned 11 years, did not
know of an instance in which the Company terminated an
employee because of a customer complaint. He also
credibly testified that Respondent suspended two employ-
ees, Von Kelly and Darnell, because of customer com-
plaints. Finally, Area Supervisor Bray, who has been with
Respondent for 27 years, conceded that prior to Johnson's
discharge he knew of no other employee whom Respon-
dent had terminated as a result of a customer's complaint.
In an effort to rebut the General Counsel's evidence of
disparate treatment Respondent introduced Vice President
Swanson's testimony and a separation notice issued to
Assistant Manager Paul D. Gunther, who until March 20,
1976, was stationed at Respondent's store No. 10. The
Company terminated Gunther according to the separation
notice with the following comment: "Violation of company
policy (attitude toward customers unacceptable. Cannot
communicate with customers in proper manner to fill his
job responsibility.)" At another point on the separation
notice the Respondent wrote: "Would not hire for position
to deal with the public but could fill a job where there is
only production." However, Vice President Swanson
conceded that, at the time Gunther was discharged,
Respondent had received other complaints regarding his
treatment of customers including two which Mr. Swanson
received himself. According to Swanson his investigation
of the Gunther situation revealed that after previous
complaints Respondent had attempted to correct Gun-
ther's conduct repeatedly. When this final incident arose
Gunther's superiors decided, "That they had tried enough
to help Mr. Gunther to see his problems and that it was not
working and for the good of the Company Mr. Gunther
would have to be terminated." In contrast to the Gunther
situation, Respondent found the single complaint of
customer Crutherds sufficient basis for terminating John-
son.
In sum, General Counsel has provided ample evidence to
support his contention that the Company seized upon the
Crutherds incident as an excuse for ridding itself of a
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leading union activist. That the Respondent chose to
permit other union activists to remain employed at its
Fairhope store does not detract from the strength of the
General Counsel's case. For an employer intent upon
destroying support for a union among its employees may
achieve its purpose by selecting one or two well-known
union activists for discriminatory treatment. For by dealing
harshly with one such union adherent, an employer may
persuade other employees to abandon their union activities
rather than face a similar fate.
Respondent argues that Mrs. Crutherds' complaint was
the sole cause of Johnson's discharge. However, the
Respondent's treatment of Mrs. Crutherds' complaint
suggests an attempt to use it to conceal its true motive. A
circumstance which casts suspicion on Respondent's
defense is its shifting and inconsistent nature. On August
16, at the time he discharged Susan Johnson, Area
Supervisor Bray gave as reasons for Johnson's termination
that she was "ugly" and rude" to Mrs. Crutherds and had
refused to take the discount coupons which Mrs. Crutherds
had offered. In a document entitled "Report of Confer-
ence" signed by Store Manager Holmes following her
discharge, the reasons given for her termination were:
"Number 1, indifferent, impersonal handling of a custom-
er" and "Number 2, violation of procedures .... Employ-
ee refused to cash in valid coupons for customer upon
request with the purchase of items." At a later point, under
cross-examination, Holmes conceded that "ugly" is the
equivalent of rude. When asked to explain what the words
"indifferent and impersonal" meant as stated in the
conference report, Holmes declared that the words "indif-
ferent and impersonal" were the equivalent of rude and
ugly and then he added that they also meant "that the
management wasn't called, which is what the dismissal is
about, anyway." On cross-examination, Area Supervisor
Bray gave as the reason for Johnson's termination, "That
she argued with a customer and she did not call the
manager up front and she tried to handle the complaint
herself." In describing the reasons for Johnson's termina-
tion in a state government form designated "Request for
Separation Information," Respondent declared: "Fired for
serious procedural violation. Refusal to take customers
coupons with purchase. Arguing in check out with
customer." In sum it appears that Respondent is uncertain
as to its reasons for terminating Johnson.
Respondent's superficial investigation of the Crutherds
incident also casts doubts upon its defense. Thus, the
record shows that Store Manager Holmes obtained one
short statement from the bagboy, Tommy Leonard, and a
second short statement from cashier Marion Chambers.
Although Respondent claims that Johnson was "rude and
ugly" in her confrontation with Mrs. Crutherds on August
5 neither Chambers' nor Leonard's statement provides
support for that allegation. The most the two statements
show is that there was an argument between Crutherds and
Johnson. I also note that, while one of the reasons offered
by Respondent for Johnson's termination is her failure to
accept valid coupons from Mrs. Crutherds, Store Manager
3 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 herein shall, as provided in Sec.
Holmes conceded in his testimony that his investigation
did not include consideration of that aspect of the
confrontation. Thus, he admitted that he never investigated
the question of whether Susan Johnson properly refused to
honor Mrs. Crutherds' coupons.
In sum, I have concluded that the Crutherds incident
furnished Respondent with a pretext for terminating a
leading union activist among its Fairhope store employees.
For I am persuaded by the record as a whole, including the
General Counsel's evidence and the infirmities in Respon-
dent's defense, that the real reason for Susan Johnson's
termination was her union activity. Accordingly, I find that
her discharge on August 16 was violative of Section 8(a)(3)
and (1) of the Act.
CONCLUSIONS OF LAW
1. By unlawfully interfering with, restraining, and
coercing the employees as found herein, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. By discriminating against Susan C. Johnson because
of her activity in support of the Union, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the 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 effectuate the policies of the Act. Included
in this affirmative action will be a recommendation that
Respondent offer reinstatement with backpay to Susan C.
Johnson and post a notice to that effect. In accordance
with the usual requirements, reinstatement will be to
Johnson's former or substantially equivalent position,
without prejudice to her seniority or other rights and
privileges. Johnson will be made whole for any loss of
earnings she may have suffered by reason of the discrimi-
nation against her by payment to her of a sum of money
equal to that which she normally would have earned from
the date of the initial discrimination against her (August
16, 1976) to the date of the offer of reinstatement, less net
earnings, if any during such period, to be computed in the
manner described in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
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:
ORDER3
The Respondent, Delchamps, Inc., Fairhope, Alabama,
its officers, agents, successors, and assigns, shall:
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.
174
DELCHAMPS, INC.
I. Cease and desist from:
(a) Creating the impression that the union activities of its
employees are under surveillance.
(b) Threatening discharge or other reprisals because its
employees engage in union activities or express prounion
sentiment.
(c) Discouraging union membership or activities in
Retail Clerks Union, Local No. 1657, AFL-CIO-CLC,
R.C.I.A., or in any other labor organization by discriminat-
ing in any manner against any of its employees in regard to
their hire and tenure of employment, or any term and
condition of employment, because of their union member-
ship, sympathies, or activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed by the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Susan C. Johnson immediate and full reinstate-
ment to her former job or, if this job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges and make her whole
for such loss of pay as she may have suffered as a result of
4 In the event the Board's 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
the Respondent's discrimination against her, in the manner
set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its store at Fairhope, Alabama, copies of the
attached notice marked "Appendix." 4 Copies of said
notice on forms provided by the Regional Director for
Region 15, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notice is not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint be,
and it hereby is, dismissed in all other respects.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
175