Delchamps, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1978

234 N.L.R.B. 262 (N.L.R.B. 1978)

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-
6311
January 16, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 23, 1977, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in response to the General Coun-
sel'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, findings,
and conclusions1 of the Administrative Law Judge
only to the extent consistent herewith.
The Respondent, whose corporate headquarters
are located in Mobile, Alabama, operates a chain of
44 retail grocery stores in Alabama, Florida, Louisi-
ana, and Mississippi. In early July 1976, the Charg-
ing Party began a campaign to organize employees at
the Respondent's stores in the Mobile, Alabama,
area; approximately 17 stores were affected. The
Respondent admittedly learned of this activity short-
ly thereafter. On November 28, 1976, the Respon-
dent implemented a wage increase of between 45 and
75 cents per hour at all of its 44 stores. An election
petition for a unit including the store involved in this
proceeding was not filed until April 19, 1977.2
The General Counsel has excepted to the Adminis-
trative Law Judge's dismissal of that aspect of the
complaint alleging that the Respondent granted the
wage increases for the purpose of discouraging the
1 In the absence of exceptions, we adopt. pro forma, the Administrative
Law Judge's dismissal of the allegations that the Respondent unlawfully
solicited and promised to remedy grievances, solicited employees to
withdraw union authorization cards. implemented rules prohibiting employ-
ees from talking and restricting their movements, and changed the work
schedules of known union adherents.
2 On February 23, 1977, the Union filed a petition in Case 15-RC--6068,
seeking to represent the employees at the Respondent's Fairhope, Alabama,
store. The Regional Director dismissed that petition, reasoning that a single-
store unit was inappropriate. Thereafter, on April 19, 1977, the Union filed a
petition, seeking to represent the employees at the Respondent's 17 stores
located in Mobile and Baldwin Counties, Alabama. Most of the conduct
which is the subject of this proceeding occurred at one of these stores.
3 Joel 0. Swanson and Hugh Bray, area supervisor for the Mobile area,
both of whom testified in this proceeding, figured prominently in those
unfair labor practices.
4 Notwithstanding his assertion and the Administrative Law Judge's
finding that such evaluation was "continuous." Swanson's testimony reveals
234 NLRB No. 47
union activities of its employees. We find merit in
this exception.
We disagree with the Administrative Law Judge's
failure to consider as background the Board's Deci-
sion in Delchamps, Inc., 232 NLRB 168 (1977), which
was concerned with events occurring during the same
organizing campaign as is involved in this proceed-
ing. In that case, the Board affirmed the Administra-
tive Law Judge's finding that, in late July and early
August 1976, the Respondent violated the Act at its
Fairhope, Alabama, store by creating the impression
employees were under surveillance, threatening to
discharge union members, and actually discharging a
leading union adherent. 3 The Administrative Law
Judge, in this proceeding, declined to rely on the
earlier case because he believed the Board had not
yet ruled on the Respondent's exceptions to the
Administrative Law Judge's Decision in that case,
and that it was inappropriate for him to rely on
another Administrative Law Judge's Decision before
the Board had disposed of exceptions to it. The
Board, however, issued its Decision and Order
affirming the Administrative Law Judge in the earlier
proceeding on September 20, 1977, 3 days prior to
the issuance of the Decision presently before us.
Accordingly, we shall notice the earlier case for
purposes of this Decision.
We also disagree with the Administrative Law
Judge's suggestion that the General Counsel failed to
establish a prima facie case as to the alleged illegal
wage increases. The record shows that, in early
August 1976, Joel O. Swanson, the Respondent's vice
president and secretary, ordered that the Respon-
dent's wage structure be evaluated in comparison
with those of its competitors,4 and that several weeks
later a decision was made to increase wages.5
Contrary to the Administrative Law Judge, we are of
the view that, particularly in light of the union
animus demonstrated by the Respondent's commis-
sion of unfair labor practices at its other store, the
General Counsel has established a sufficient nexus
between the decision to raise wages and the advent of
that data on competitors was not collected between March and August
1976. Although the Administrative Law Judge expressly credited Swanson's
testimony throughout his Decision, and despite the fact it has long been our
policy not to reverse an Administrative Law Judge's credibility findings, we
believe Swanson's testimony was so inconsistent and contrived as to be
unworthy of belief. See W. T Grant Company, 214 NLRB 698 (1974).
s Swanson equivocated as to the date upon which he reached his
decision. The following exchange is illustrative:
Q. Do you know approximately when the decision was made to
implement the November raise?
A. The decision to do it and the timing of it were made not too far
in advance of it, but the decision on the one that was going to be made
was in effect during the whole time that we were doing the survey work,
so we knew in August that we were going to--that we were working on
a new wage plan, and it wasn't until several weeks later that we had
picked a date for it.
262
DELCHAMPS, INC.
the union organizing drive in the chain to require the
Respondent to produce evidence that the wage
increase was unrelated to the presence of union
activity. Newport Division of Wintex Knitting Mills,
Inc., 216 NLRB 1058 (1975); Revco Drug Centers of
the West, Inc., 188 NLRB 73 (1971).
We further disagree with the Administrative Law
Judge's finding that the Respondent has shown that
its November wage increase was consistent with an
established practice of periodically granting wage
increases to maintain a competitive posture in the
local labor markets. Not only is it apparent, contrary
to its claim, that the Respondent did not continuous-
ly survey its competitors' wages,6 but Swanson was
evasive when questioned about the criteria used in
periodically determining whether a wage increase
was necessary to remain competitive.7 Similarly,
when asked specifically about the factors revealed by
the wage survey which prompted the decision to raise
wages in November 1976, he was equally evasive. 8
Finally, although he testified at one point that he
periodically prepared a "spread chart" to reflect the
Respondent's competitors' wage structures, he sug-
gested that the chart used for the November increase
had been destroyed and accordingly that it could not
be produced at the hearing. The failure to produce
this critical documentary evidence, in the face of the
extensive documentation of the amounts of previous
increases, and the General Counsel's prima facie
evidence of a violation of the Act, warrants an
inference that had it been produced it would have
been damaging to the Respondent's case. Interstate
Circuit, Inc. v. United States, 306 U.S. 208 (1939).
The Administrative Law Judge places much reli-
ance on the timing and amounts of the Respondent's
previous wage increases, which he finds evidence a
pattern of granting substantial raises every 6 to 9
months. We are of the opinion that the Respondent's
policies have been anything but consistent. Appendix
A, attached hereto, illustrates the Respondent's wage
policies after it switched from a system of granting
raises on an individual basis in May 1973. With few
exceptions, the November wage increases were the
largest percentage increases ever given by the Re-
spondent. Moreover, although the Respondent
claims that decisions to raise wages were evenly
6 See fn. 4, supra.
For example, Swanson testified on cross-examination:
Q. Were you competitive, equal to, or better than your competi-
tors from March of'74 until March of'76?
A. From March of '74 to March of '76, we carried on a continual
program to keep our wage rates competitive. We adjust them on a
frequent basis.
Q. I believe that was [not] in response to my question.
From March of '74 til March of '76, did you consider your stores,
Delchamps Stores, competitive with all of your competitors in wage
rates?
spaced about 6 to 9 months apart, the dates upon
which wage increases became effective are at best
erratic.
We therefore find that the Respondent failed to
rebut the General Counsel's prima facie case. Ac-
cordingly, we find that in granting a wage increase
on November 28, 1976, the Respondent interfered
with the rights of its employees and thereby violated
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Delchamps, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, Retail Clerks Union, Local No.
1657, AFL-CIO-CLC, R.C.I.A., is, and all times
material has been, a labor organization within the
meaning of of Section 2(5) of the Act.
3. By granting its employees wage increases on
November 28, 1976, with knowledge of and for the
purpose of affecting the Union's organizing cam-
paign, the Respondent has interfered with, re-
strained, and coerced employees in the exercise of
rights guaranteed by the Act and has committed an
unfair labor practice within the meaning of Section
8(a)(l) thereof.
4. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Since the Respondent granted the wage increases
at all of its locations, and since we have found that
the increases interfered with the employees' self-
organizational rights at the Saraland, Alabama,
store, logically it also interfered with the rights of all
employees affected by the organizing campaign in
the 17 stores in Mobile and Baldwin Counties,
Alabama. Further, we have previously found in
Delchamps, Inc., 232 NLRB 168, that the Respondent
violated the Act in a store which is also I of its 17
stores in Mobile and Baldwin Counties, Alabama.
Therefore, we believe that effectuation of the policies
of the Act will be achieved by ordering that Respon-
dent post notices at all of its stores located in Mobile
A. We made changes between that time.
s For example, he testified:
Q. Who was the competitor in August of'76 that prompted you to
get the wage increase in November?
A. There was no single competitor, Mr. Romero. I keep telling you
that.
Q. Tell me who they all were.
A. [Recites a list of all of the Respondent's competitors.l
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Baldwin Counties, Alabama. See Texas Gulf
Sulphur Company, 195 NLRB 13 (1972), enfd. 463
F.2d 788 (C.A. 5, 1972).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Delchamps, Inc., Mobile, Alabama, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting wage increases or other benefits to
employees for the purpose of impeding or interfering
with their self-organizational activities; provided,
however, that nothing herein shall be construed to
require said corporation to revoke any wage in-
creases or benefits heretofore granted.
(b) In any like or related manner interfering with,
restraining, 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 repre-
9 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a
sentatives of their own choosing; and to engage in
either concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection or
to refrain from any or all such activities.
2. Take the following affirmative action which
will effectuate 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 B."9 Copies of said notice, on
forms provided by the Regional Director for Region
15, after being duly signed by Respondent's represen-
tative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by 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
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
NDIX A
HOURLY RATES AND PERCENT INCREASES FOR GROCERY CLERKS,
CASHIERS, PRODUCE CLERKS, MEAT WRAPPERS, AND DELI/BAKERY CLERK
Length of Service May 13 April 28 Oct. 20 July 29 Mar. 14 July 4 Nov. 28
a/ h/
(in months) 1973 1974 1974 1975 1976 1976 1976
Rate 2 Rate 2 Rate 2 Rate % R Rate Rate 2 Rate 2
c/
New Part-Time 1.90 -0- 2.00 5.2 2.10 5.0 2.25 7,1 2.25 -0- 2.30 2,2 3,05 32.6
o - 6 2.15 -0- 2.25 4.7 2.50 11.1 2.75 10.0 2.90 5.4 3.05 5.2 3.50 4
6 - 12 2.35 -0- 2.45 4.3 2.75 12.3 3.00 9.1 3.15 5.0 3.30 4.8 3.75 13.6
12 - IB 2.65 -0- 2.75 3.8 3.00 9.1 3.25 8.3 3.10 4.6 3.55 4.4 4.00 12.7
18 - 24 2.9o -0- 3.05 5.2 3.25 6.2 3.50 7.7 3.65 4.3 3.80 4.1 4.25 12.0
24 - 3( 3.15 -0- 3.25 3.2 3.50 7.7 4.00 14.3 4.15 3.8 4.30 3.6 4.75 1
30 + - --0-__ 3.40 -0- 4.00 17.6 -0- -0- 4.40 0.0 4.50 2.3 5.00 11
a/ The Administrative Law Judge declined to consider the April 28, 1974, increase because he viewed its
timing as distorted by the fact it occurred at the termination of Federal wage-price controls. We agree
that the 11-1/2-nmnth interval between Msv 13, 1973, and April 28, 1974, might overstate the normal
Interval between wage increases. The Administrative Law Judge, however, should have considered the
amounts of the April 28 increases since, if anything, they would have overstated the normal increments.
In fact, they were substantially less than the 5.5-percent increases w-ich were permitted during the
period of wage-price controls.
b/ The Respondent announced a wage increase in March 1976, half of which was deferred until July 1976. The
Administrative law Judge chose to consider this as one wage increase. We are of the view that it should
be considered from the perspective of the employees, and hence as two wage increases.
c/ If anything, the figure shown for the November 28, 1976, increase for new part-time clerks and cashiers
is understated since the Respondent also introduced a policy whereby, after 30 days, such employees would
receive an additional 45 cents, boosting them to the full-time starting rate.
d/ The data for the after-30-month category are somewhat distorted since there were apparently no employees
in this classification on May 13, 1973, and on July 29, 1975. We note this because the Administrative
Law Judge apparently placed some reliance on the magnitude of the October 20, 1974, and the March 14, 1976,
increases for this category in drawing his conclusion that the November 28, 1976, increase wsa not inordinate.
264
DELCHAMPS, INC.
APPENDIX B
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 the National Labor Relations Board
has found that we have violated the National Labor
Relations Act 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
bargaining with us
To act together for your common interest
or protection
To refuse to participate in any or all of
these things.
The Board has ordered us to promise you that
we will not interfere with your rights.
WE WILL NOT in the future grant our employees
wage increases, or other benefits, for the purpose
of interfering with their self-organizational efforts
or to interfere with their activities on behalf of the
Retail Clerks Union, Local 1657, AFL-CIO-CIC,
R.C.I.A., or any other labor organization.
DELCHAMPS, INC.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This case
was heard before me at Mobile, Alabama, on May 25 and
26, 1977, pursuant to complaint issued on February 10,
1977, and charges filed on December 6, 1976 by Retail
Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A.1
(herein the Union). The complaint alleges violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, consisting of soliciting and promising to remedy
grievances; soliciting employees to withdraw union autho-
rization cards; implementing work rules prohibiting em-
ployees talking and restricting their movement; changing
R.C.I.A. is an abbreviation for Retail Clerks International Association.
2 Errors in the transcript have been noted and corrected.
3 The facts set forth herein are based on a synthesis of the credited
aspects of the testimony of all witnesses, the exhibits, stipulations of fact,
and careful consideration of the logical consistency and inherent probability
of the facts found. Although I may not, in the course of this decision, advert
work schedules of known union adherents; and granting
wage increases; all at Respondent's Store No. 5. Del-
champs, Inc., herein sometimes called the Respondent or
the Employer, filed a timely answer denying the commis-
sion of any unfair labor practices.
Upon the entire record,2 including my observation of the
witnesses as they testified, and after careful consideration
of the posttrial briefs of the parties, I make the following:
FINDINGS AND CONCLUSIONS
I. THE RESPONDENT'S BUSINESS
The Respondent is an Alabama corporation engaged in
the retail sale of groceries, meat, and related food products
at various store locations in Alabama, Mississippi, and
Florida, including stores in Mobile and Baldwin Counties,
Alabama. During the 12 months prior to issuance of the
complaint, the Respondent purchased and received goods
and materials valued in excess of $50,000 directly from
points located outside the State of Alabama, and received
gross revenues in excess of $500,000. The 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. THE LABOR ORGANIZATION
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts3
The only matters before me are occurrences at the
Employer's Store No. 5. It appears that the Union has
made several organizational attempts over a period of
several years among the Respondent's employees. The
Respondent became aware of some union activity in its
chain of stores shortly before August 12, 1976,4 and set out
to express its position regarding the Union to its employ-
ees. I credit the testimony of Joel Swanson, Respondent's
vice president and secretary, that a written speech was
prepared and typed in his office for delivery to employees
in the Mobile area on August 12 and 13. I1 am persuaded
that the speech was given at Store No. 5 on August 12 by
vice president of operations, Turnipseed, to two groups of
employees. Turnipseed first read the written speech, which
reads, in pertinent part, as follows:
to all of the record testimony or documentary evidence, it has been carefully
weighed and considered and, to the extent that testimony or other evidence
not mentioned herein might appear to contradict the findings of fact, that
evidence has not been disregarded but has been rejected as incredible,
lacking in probative worth, surplusage, or irrelevant.
4 All dates are in 1976 unless specified otherwise.
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I want to talk to you about a very serious matter.
Some union people have been knocking on the doors of
our folks, trying to talk them into signing union cards. I
want all of you to understand just how serious that is. I
want to be absolutely sure that you know the compa-
ny's position because it would be mighty unfortunate if
someone made a mistake.
I'm going to be frank and honest right now so there
can be no misunderstanding. WE DO NOT WANT UNION
OUTSIDERS IN THIS STORE OR IN ANY DELCHAMPS STORE.
WE BELIEVE IT WOULD BE A SERIOUS MISTAKE FOR YOU,
AS WELL AS FOR THE COMPANY, TO LET THE UNION COME
IN HERE. WE ARE COUNTING ON YOUR HELP TO KEEP THE
THREAT OF THE UNION AWAY FROM HERE.
* * .
I want to make absolutely certain that each of you
realizes the seriousness of signing a union card. That
card can legally bind anyone who signs it. If you sign a
union card, that can take away your right to deal with
us directly. Signing a union card also could cause a
union to come into Delchamps without your even
having a chance to vote in an election-that's right, you
could give up your rights to vote in a democratic,
secret-ballot election. The union may tell you that those
cards can't obligate you in any way. But that's simply
not the truth. The union doesn't worry too much about
the truth-all it's concerned with is getting you in its
trap. The truth is that if you put your name on the
dotted line you may be taking on serious obligations.
The union may force you to pay union dues, union
assessments or any other union fees. If you refuse to
pay, it can even go into court and force you to pay. It
may do that if you sign a union card no matter what it
told you at the time you signed. But I'll bet the union
would never tell you about that! In other words, the
union could be forced down your throats whether you
like it or not. I don't want to see that happen here, and
I'm completely convinced that the overwhelming ma-
jority of people at Delchamps don't want to see that
happen either.
It's terribly important for you to fully understand the
truth and facts of this matter. The union will use all
sorts of tricks to get you to sign a union card-tricks
such as telling you that, "All we need is one more card
signed," or, "Everybody else is signing and wants a
union," or, "You'll get into trouble if you don't sign,"
or, "If you don't sign up now you won't get another
chance...." In addition to the kinds of things I just
mentioned, the union pushers have also been falsely
claiming that they have got a whole crew signed up, or
a whole store signed up-and people are telling us the
union won't give straightforward answers to their
questions. It's most unfortunate that the union pushers
are saying and doing those things, trying to use pressure
and tricks like that. But, it's because of those things that
you really have to be on your guard.
. . . It's human nature to always want more and
better things. The union tries to take advantage of this
fact of life, to get a hold on those human emotions and
feelings, and entice people to sign union cards. But
don't believe it.
. . . The law holds you responsible for knowing and
understanding the consequences when you sign your
name to a union card-so don't give away your
signature without thinking long and hard about it, and
without making absolutely sure you know what the real
facts are.
. . . These union outsiders are professional salesmen.
The money they make, personally, depends on how
many of you they get signed up on union cards and
how much money the union is able to get out of your
pockets in union dues, assessments or other union fees.
No matter what they may tell you, you mean dollars to
them, and that's their only real interest in you. There's
no need for you to get involved in a union fight. There's
no need for you to get caught in the trouble the union
can bring. If you're going to take my advice, you'll have
nothing to do with these union outsiders.
Some of you may have already been talked into
signing union cards. Remember that those cards are
dangerous to you as long as they are in effect, and they
stay in effect until you do something to cancel them.
If anyone pushing the union approaches you, we
strongly urge you to think seriously before you sign
anything or commit yourself to anything. It's terribly
important for you to make sure you have all the facts
and understand both sides of the story. So don't
hesitate to see your store manager or Mr. Bray
(supervisor) or me before you act in haste and possibly
make a mistake.
We're a family-type business here. We can know
each other and work with each other-and we've done
just that. Sure-we have problems from time to time.
But we can work out our problems in a friendly way,
just as we've done in the past, without having to run the
risk of union strikes and other union trouble.
* * * S *
If any of you have any questions at any time or if
you want our advice, be sure to come and talk to us,
and we'll be sure you get the truth and the facts.
At the close of his reading, Turnipseed asked if there
were any questions. After the first meeting, he was asked
(I) questions about future dental insurance; (2) the reasons
for discontinuing a Christmas bonus a year or two prior;
(3) if the bookkeeper could be provided with a stool; and
(4) why had Emily Tew, who was not at this meeting, not
been able to remove the name of her estranged husband
from her insurance. In reply to the foregoing, Turnipseed
said (I) there was no plan for future dental insurance; (2)
the Christmas bonus was discontinued to give other
266
DELCHAMPS, INC.
benefits to employees; (3) if the cashiers could stand all
day, so could the bookkeepers; and (4) said Tew's problem
would be looked into. I am also persuaded from her own
testimony, considered in its entirety on the topic, that
employee Gail Payne was referring to the last sentence of
the written speech, rather than any additional invitation by
Turnipseed, when she testified that he invited employees to
bring any problem they might have to him or anyone else
at the office, and I conclude that she thereafter, during the
question-and-answer period, told him that employees were
afraid of him, whereupon he told her that they could go to
their store manager if they were afraid to come to the
office.
After the second meeting, at which no questions were
asked, and after the other employees in attendance had
dispersed, Emily Tew approached Turnipseed and told him
of the difficulties she had encountered in getting her
estranged husband removed from her Blue Cross-Blue
Shield insurance coverage. Turnipseed told Tew that Area
Supervisor Hugh Bray, who was also present, was taking
notes and they would check it out. Bray did check it out,
according to Turnipseed whom I credit on this. Bray was
sent a memorandum from the Company's insurance clerk
Bonnie Woodman that she had discussed the matter with
Blue Cross in late July and that Tew's estranged husband
had been removed from her insurance contract effective
August 10. The Respondent's records and the uncontra-
dicted and credible testimony of Joel Swanson fairly
establish that Tew's husband was dropped from her
insurance on or about August 10.
Gail Payne, who signed a card for the Union in August,
testified to a conversation with Assistant Store Manager
Pat Lami. Lami did not testify and the date of the
conversation is uncertain, but I conclude that it happened
some time after she signed the union card, because of the
content of the conversation. In view of her testimony that
the conversation happened before her work schedule was
changed in late November, it therefore must have occurred
on some unspecified date in August, September, October,
or November. A careful sifting of Payne's testimony, which
although uncontroverted is somewhat confused, leads me
to the conclusion that Lami had been giving warning slips
to some "boys" (presumably the bagboys). When Lami
came in and sat down with Payne and two or three other
employees at lunch in the breakroom, one of the female
employees other than Payne "shamed him" for giving out
the written warnings. I construe "shamed him" to mean
that Lami was told that he should be ashamed. Lami's
response, in substance, was that he was giving the warnings
so that he would have a record if he found it necessary to
fire the boys. At that point, apropos of nothing so far as I
s Lanham credibly testified that he had a similar checklist which he used
at Store 4 to instruct employees.
6 This direction is more lenient than the Respondent's memorandum to
all store managers pertaining to "WAGE AND HOUR REOULATIONS," and dated
December 6, 1974, which reads:
To be in full compliance with the Wage and Hour Regulations it is
necessary we restrict the "off the clock time" hourly employees spend in
the store.
Hourly employees shall report to work no more than 10 minutes
prior to clocking in and not remain in the store after clocking out.
unless that employee is shopping.
can detect, Payne volunteered that she wanted to make it
clear that she had signed a union card. Lami commented
that "it better go in," and said nothing more about the
union.
Effective November 22, Area Supervisor Bray trans-
ferred Ronald Lanham from Store 4 to be the manager of
Store 5, and transferred Jackson, the previous manager of
Store 5, to Store 4. Bray avers, in substance, that he did so
because he did not think Store 5 was being operated in an
efficient manner, with particular reference to lack of store
cleanliness, poor stocking, and employees not keeping
busy. Transfer of managers between store is not an unusual
incident and has been done by the Respondent in the past
on several occasions.
For about the first week he was at Store 5, Lanham
merely observed and compiled a list of matters to be
corrected. According to Lanham, he found the operation of
the store to be too lax and, after compiling checklists of
matters to cover,5 called in employees and went over the
rules he wished them to follow. These employee interviews,
with one or two employees at a time, commenced Novem-
ber 27. Lanham used different checklists for checkout
cashiers and grocery employees. Common to both lists are
instructions on appropriate attire, designated smoking
areas, prohibition on receiving other than emergency
phone calls, use of register number one for employee
purchases, responsibility for signing employee's own time-
card and not to sign or punch for other employees,
prohibition of shopping while on the timeclock (except for
consumption during break), instructions on responsibility
of employees to know and work their own schedule,
direction to wear name badges, instructions on parking
areas, prohibition of employment in a "like business,"
direction to answer three rings of the bell, direction not to
be in the store 15 minutes before scheduled or 15 minutes
after checking out,6 prohibition against leaving personal
items in the front office, and an instruction to address the
manager and assistant manager by their surname prefaced
by "Mr."
In addition, the checklists contain items pertaining
specifically to checkout or grocery. Thus, the checkout list
notes that only the manager and assistant manager will
check prices and handle all complaints; 7 that there will be
no talking among cashiers and all cashier questions should
be directed to the manager or assistant manager; all
cashiers are to maintain an upright posture at the check
stand and thank every customer, but not engage in idle
conversation; 8 no personal items are to be kept in the
check stand or the cooler; no gum chewing; 9 no checks for
cash; no conversation between cashier and bagboy while
Turmpseed, the author of the 1974 memorandum, credibly testified the
reason for the rule is that if an employee is in the store prior to clocking in
there is a danger he might inadvertently perform work and thereby violate
the wage and hour law prohibiting working off the clock.
I Cashier Emily Tew testified that the former manager, Jackson, had told
her, before Lanham came to the store, that she was supposed to ask the
manager or assistant manager about prices.
8 This fairly implies, as Lanham asserts, no idle conversation with
customers or each other.
9 The evidence shows this is a repetition of a longstanding instruction.
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are in checkout; report all derogatory remarks to the
manager; 10 cashiers will not be over 6 feet from their
register without having it put in safe; 1 cashiers are to
report directly to the manager or his assistant, not the
bookkeeper; 12 several other rules relating to the handling
of merchandise, money, and food stamps; reference to a
coffee fund, a bell system, and a hot line (none of which are
important to this case); and a prohibition against checking
out relatives, roommates, or very close friends.
Similarly, the grocery employees checklist used by
Lanham contains stocking, pricing, labeling, and clean-
liness instructions, as well as a reference to talking, eating,
or drinking in the wareroom.13
Lanham spoke to all of the Store 5 employees except
approximately three who were not at work during the few
days he conducted the interviews. He testifies that the
reason for going over the checklists with employees was to
explain what he expected of them, and it appears from the
composite testimony of Lanham and the employee wit-
nesses called by General Counsel that he covered the items
on the list with each of them and placed special emphasis
on limiting conversations by employees with customers
and conversations between employees in certain respects.
Lanham testified that it was his purpose to eliminate idle
conversations on the job which were not pertinent to the
business at hand. Employee Payne states that prior to
Lanham's arrival cashiers would talk to each other on
worktime about personal matters, if they were not busy
with a customer. According to Payne, Lanham told her
that the reason for restricting talking between employees
was to maintain a business-like atmosphere; and that when
a customer came in he or she should be greeted by "good
morning" or "good evening" and thanked for shopping at
Delchamps, but was not to be asked how he or she felt
because this would tend to be talking to the customer.
Cashier Tew says that Lanham told her not to engage in
lengthy conversations with customers, and concedes that
employees already knew that they were not supposed to
talk with customers. Employee Shirley Smith says that
Lanham told her to keep conversations with customers
short, and not to talk with other employees unless they
were in the breakroom. There is no evidence whatsoever
that employees were restricted in the subject matter of their
conversations when they were in the breakroom.
During the same period of time that he was having these
conversations with employees as to what he expected of
them, Lanham took over the scheduling of cashiers from
Payne, and instructed her that she would no longer
schedule cashiers or keep them busy, as she had done
under Jackson, because these duties were not to be part of
her job as bookkeeper and head cashier, but would be his
responsibility. Lanham made extensive changes in the work
schedules, including a change of Tew's offday from
Monday to Thursdays. Tew testified that she never object-
ed to this and, about 3 weeks prior to the hearing herein,
when she asked for a Monday off, her offday was changed
back to Monday. Additionally, when Lanham came, Gail
10 This refers to remarks by customers.
it Cashiers Smith and Tew aver that Jackson also had mentioned the 6-
foot rule, but neither he nor Lanham strictly enforced it.
12 When Lanham came to the store, head cashier and bookkeeper Gail
Payne was working on alternating Saturday nights. Lan-
ham was not satisfied with the bookkeeping performance
of the employee alternating with Payne on Saturday nights.
Lanham and Payne agree that, after Lanham expressed his
views of the abilities of the alternating employee to Payne,
Payne worked every Saturday night for a 2-month period.
Lanham asserts that he told Payne that she would have to
train someone and that, until she did, since she was the
head cashier, she would have to work on Saturday. He
further says that Payne trained Linda Phillips for the 2
months Payne worked every Saturday night. Payne claims
that she was not training anyone for the first 6 weeks, but
then trained Linda Phillips on bookkeeping during the last
2 weeks of the 2-month period, after which she returned to
working alternate Saturday nights. Under questioning by
General Counsel, Payne testified that she volunteered to
work every Saturday night, when Lanham told her that he
wanted her to, because she loves her job, likes doing the
books, and would do anything to help the store.
On November 28, 1976, the Employer raised the starting
rate for part-time employees by 75 cents an hour, and gave
full-time employees either a 45 or 50-cent increase depend-
ing on their seniority and classification. This increase
covered all 44 retail stores operated by the Respondent, not
just Store 5 at Saraland, Alabama. Respondent's vice
president, Swanson, credibly testifies that the Respondent
carries on a continuous wage review program with a
primary ingredient being the examination of competitor's
wage rates in the areas in which the Company operates.
Once the Respondent determines, on the basis of this
review, to grant a wage increase, and then grants it, the
whole process of wage review begins anew. Prior to 1973,
the Respondent gave raises on an individual basis under a
merit system. After the new system was adopted, the
Respondent gave wage increases at all of its retail stores on
May 13, 1973; April 28 and October 20, 1974; June 29,
1975; a two-part raise announced and granted on March
14, 1976, with the second installment of the raise taking
effect July 4, 1976; and the raise on November 28, 1976,
which is an issue in this case. The intervals between these
raises were, therefore, 11, 6, 8, 9, and 8 months respectively.
I consider the March and July increases to be one single
raise announced in March, with a portion deferred to July,
and shall hereafter refer to them collectively as the March
1976 raise. There appears to be no precedent for the 75-
cent increase in the starting rate of part-time clerks and
cashiers which, effective November 28, 1976, brought their
rate to $3.05, the beginning rate for full-time clerks and
cashiers after the July installment of the March 1976 raise.
With respect to the amounts of the raises given, the
Respondent's wage raise schedules reflect that the June
1975 raise gave 4 classifications a greater wage increase
and 12 a lesser in terms of percentage when compared with
the October 1974 increase. The March 1976 raise gave 12
classifications a greater percentage increase than they
received in June 1975, and 4 classifications a lesser
percentage than 1975. The November 1976 schedule gave
Payne had been handling some of the scheduling and direction of the work
of cashiers.
13 The wareroom is apparently a storage area, as opposed to the
breakroom where employees do eat, drink, and talk.
268
DELCHAMPS, INC.
nine classifications a greater percentage than the March
1976 raise and eight classifications a lesser percentage.
These figures are somewhat misleading because the No-
vember 1976 increase gave grocery clerks, cashiers, pro-
duce clerks, meat wrappers, and the deli/bakery clerk
considerably higher percentages of increase at all levels,
except the 30-month plus service level, than the March
1976 increase. The Respondent concedes that a majority of
the employees are classified as clerks. For purposes of
illustration and comparison percentages of wage increase
for these classifications are set forth below:
PercentaRe of Increases
months of Oct. June IHr. Nov.
Level Service 1974 1975 1976 1976
1
2
3
4
5
6
0-6
6-12
12-18
1 6-24
afte.r-24
after-30
11.
12.2
9.1
6.6
7.7
17.6
10.
9.1
8.3
7.7
14.3
14/
10.9
1n.
9.2
8.6
7.5
12.3
15/
14.8
13.6
12.7
11.8
10.5
11.1
On or about December 20, the Respondent received a
letter dated December 18 which notified it of an organiza-
tional campaign by the Union, and which bears the
signatures of 50 employees under the legend "Organizing
Committee." Among the signers were Payne, Tew, and
Shirley Smith, all of whom testified before me. On
February 23, 1977, the Union filed a representation
petition seeking to represent employees at the Employer's
Fairhope, Alabama, store. The petition was dismissed by
the Regional Director. Thereafter, on April 19, 1977, the
Union filed a petition seeking to represent Respondent's
employees of its 17 stores located in the Mobile and
Baldwin Counties areas, including Store 5.
No evidence was offered and none adduced of any union
activity, or employer knowledge of any, at the Saraland
store between the Lami-Payne conversation and the April
19, 1977, petition.
B. Conclusions
I am convinced from a synthesis of the credible evidence
that Turnipseed read his August speech verbatim and did
not deviate therefrom. Any fragment of testimony that
might indicate the contrary is hereby expressly discredited
as employee interpretations rather than as accurate recitals.
Contrary to the General Counsel, I find the speech to be
nothing more than permissible campaign propaganda.
Turnipseed's discussion of union cards and the effects of
signing them does not add up to a coercive solicitation of
union authorization withdrawals violative of Section
8(aXl) of the Act, and is protected commentary within the
meaning of Section 8(c) containing "no threat of reprisal or
force or promise of benefit." I further find that Turnip-
seed's invitation to employees to talk to the Respondent's
management if they had any questions or wanted advice
14 Level 6 does not appear on the June 29, 1975, schedule.
15 Percentage noted on Respondent's record for March 1976 rate.
's In reaching this conclusion and all others herein, I have kept in mind
was not a solicitation of grievances but, rather, was an
invitation to ask the Employer for what it considered to be
the true facts about matters raised by the Union in its
campaign. That Turnipseed was not making any promise,
express or implied, to remedy grievances or satisfy employ-
ee desires is made clear by his refusal to provide the
bookkeeper with a stool, his disavowal of any plan for
better dental insurance, and his simple explanation of the
discontinuance of the Christmas bonus without the slight-
est implication that it could be revived. With respect to
Tew's question about her insurance, all Turnipseed prom-
ised was that her problem would be looked into, which is
nothing more than a normal managerial reaction in any
case and conveys no promise that Tew's problem would be
resolved favorably to her. Any contention that an employer
must not look into routine complaints involving an estab-
lished insurance program merely because a union is
conducting an organizational campaign is patently frivo-
lous. As the record clearly shows, Tew's problem had been
remedied by contacts between the Respondent's insurance
clerk and the insurance carrier prior to Turnipseed's
speech. For all the foregoing reasons, I conclude and find
that the General Counsel has not shown by a preponder-
ance of the credible evidence that Turnipseed solicited or
promised to remedy grievances in order to induce its
employees to forgo union activities.
General Counsel posits a basic premise that Lanham was
transferred to Store 5 to impede the Union's organizational
efforts. In addition to the fact that the record does not
disclose whether or not the Union's efforts were ever
actively conducted in the store, there is no evidence, other
than General Counsel's conclusion, that Lanham was
transferred to Store 5 for any reason other than to improve
the appearance and operation of the store, including the
work performance of the employees at the store. That
Lanham's predecessor Jackson remarked to Payne that, "I
would not do ya'll what they wanted me to do and that is
probably why I am leaving," does not establish that he was
transferred because he would not interfere with or restrict
employees' union activities. To so conclude would totally
ignore the strong probability that Jackson was referring to
his unwillingness to replace what appears to have been a
rather casual and informal relationship with his employees
with a stricter, more business-like mode of operation in
accordance with Bray's judgment that the store was being
too loosely run. I am persuaded that Lanham was assigned
to Store 5 because the Respondent was dissatisfied with the
way it was being run, and reasonably exercised its business
judgment in assigning Lanham. 16
After careful examination of the checklists utilized by
Lanham in instructing the employees, and all testimony
pertinent thereto, I am not persuaded that his instructions
were motivated by antiunion considerations. His instruc-
tions are consistent with commonsense and reasonable
business judgment. They are not interdicted by or inconsis-
tent with any established employer policy or practice, nor
are they so oppressive or unreasonable as to warrant an
inference of unlawful motivation. The General Counsel
the Respondent's hostility to unionization evidenced by the August speech,
and given this factor careful consideration.
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places considerable emphasis on Lanham's instructions
relative to conversations between employees and customers
and conversations solely between employees. With respect
to the first, all that is prohibited is idle or lengthy
conversations. 17 With respect to the second, employees
were not, as General Counsel contends, enjoined from all
conversation with each other, but were instructed to
confine their nonbusiness conversations to the breakroom.
I do not find that this restriction is so broad as to be
inherently unlawful, and I can perceive of no reason,
considering the lack of evidence of illegal motivation, that
Lanham could not legitimately prevent employees from
discussing personal matters at their work stations. In any
event, General Counsel has not shown that the restrictions
on conversations were "primarily for the purpose of
blocking union activity and harassing union supporters" as
contended. The same is true with regard to the changes in
work schedules made by Lanham. Although the complaint
alleges a discriminatory changing of schedules of known
union adherents, the General Counsel focuses on the work
schedule changes of Payne and Tew, of whom only Payne
has been shown to be a known union adherent, to the total
exclusion of the other extensive work schedule changes that
Lanham credibly testified were made. As set forth hereina-
bove, Tew had no objection to her schedule change and
Payne, although it is probably true that she had little
choice, was so agreeable to an every Saturday night
assignment until another bookkeeper was trained that she
admittedly gladly cooperated with Lanham because she
loves her work and would do anything to help the store.
After the training of another bookkeeper, Payne returned
to working on alternate Saturdays without incident. On the
basis of the evidence before me, I find that the Respondent
did not unlawfully change work schedules as alleged.
Although it may well be true that a grant of a wage
increase during a union organizational campaign might in
and of itself persuade employees to refrain from selecting
the union as their representative, it is incumbent on
General Counsel to establish by direct evidence or reason-
able inference from the facts that the purpose of the raise
was to induce employees to refrain from supporting the
union.18 On the other hand, when an employer grants a
wage increase while a representation petition is pending, the
Board has found a strong presumption of illegality, and
noted that unless the evidence shows that other factors
governed the timing of the announcement interference with
employee freedom of choice would be regarded as the
motivating factor.' 9 In the instant case there was no
petition pending at any of Respondent's retail stores until
February 23, 1977, so far as the record shows, but the
Respondent admittedly had knowledge that some union
organizational activity was afoot in its chain in August
1976 and Gail Payne expressly advised Assistant Manager
Pat Lami of her union card signing sometime thereafter in
1976. An employer is obliged to carry out his wage setting
practices during a union campaign in the same manner that
1? According to Emily Tew. whom I credit, employees were aware before
the coming of Lanham that they not supposed to carry on conversation with
customers.
is Revco Drug Centers of the West, Inc., 188 NLRB 73, 75 (1971);
Tonkawa Refining Co., 175 NLRB 619 (1969).
s1 Newport Division of Wintex Knitting Mills, Inc., 216 NLRB 1058
(1975).
he would have done in the absence of the union's
presence.20
In examining the record of past increases I have adopted
the percentage of increase as a more revealing standard of
comparison than pure dollars and cents because it is
obvious that as basic wages increase an identical increase
in terms of cents, such as a yearly 50-cent raise, will
produce a diminishing percentage of increase with each
succeeding year. It is equally obvious that annual increases
of equal percentage in terms of the existing wage rate each
succeeding year will yield an increasingly larger actual
monetary increase. I have eliminated the May 1973 and
April 1974 increases from consideration because the May
1973 increase appears to have been the first of the new plan
and the April 1974 increase occurred at the end of the
Federal wage and price controls in effect until early 1974.
Looking to the remaining four increases,21 I find nothing
disparate in the timing of the November 28, 1976, raise, or
any departure from past practice. I do, however, note that
the percentage of increase, in all but the "after 30-month"
category, is higher than any of the three increases immedi-
ately preceding. I further note, although I deem it of little
significance in view of the lack of such data on other
employees, that all three of General Counsel's employee
witnesses fall in the "after 30-month" pay level. After a
careful consideration of the records of increases and the
testimony of Respondent's vice president, Joel Swanson,
whom I observed to be a credible witness in demeanor and
whose testimony regarding the Respondent's method of
determining the amount and time of increased wage rates is
uncontroverted, I conclude that the Respondent has given
a reasonable and persuasive explanation for the November
28, 1976, wage increases. In the absence of countervailing
evidence sufficient either to warrant rejecting Swanson's
explanation, or sufficient to establish an unlawful motiva-
tion, I find and conclude that the General Counsel has not
shown by a preponderance of the evidence that the
November 28, 1976, wage increase granted to all 44 stores
in the Respondent's chain was for the "express purpose" 22
of discouraging union activities in violation of Section
8(a)(1) of the Act.
General Counsel would also have me find, on the basis of
Swanson's statement on cross-examination to the effect
that the Respondent plans to do nothing in the area of
implementing a new wage plan during the pendency of the
petition, that the Respondent has now abandoned its
practice in violation of Section 8(aXl) of the Act. Apart
from the fact that I would be reluctant to find a violation
on the basis of a mere expression of intention elicited on
cross-examination, this belated contention was neither
alleged in the complaint nor further litigated at hearing.
Accordingly, General Counsel's request that I find the
violation he now asserts is denied. Similarly, I make no
finding with respect to the Lami-Payne conversation, other
than to consider it as evidence of employer knowledge,
20 McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237. 1243 (1966).
21 I treat the March and July 1976 increases as part of the March raise
because it was then announced as one raise with part deferred.
22 Cf. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405,409(1964).
270
DELCHAMPS, INC.
because it was neither alleged as a violation by General
Counsel nor fully litigated.
General Counsel has not established by a preponderance
of the credible evidence that the Respondent violated the
Act as alleged in the complaint,2 3 and I hereby make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
23 On General Counsel's motion, over Respondent's objection, I took
official notice of Administrative Law Judge Wagman's Decision involving
the same parties at Respondent's Fairhope, Alabama, location. Administra-
tive Law Judge Wagman's Decision has been excepted to by the Respon-
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. General Counsel has not established by a preponder-
ance of the evidence that the Respondent has violated the
Act as alleged in the complaint or in any other manner.
[Recommended Order for dismissal omitted from publi-
cation.]
dent and the Board has not, at this writing issued its Decision thereon.
Accordingly, I have not relied on Administrative Law Judge Wagman's
Decision in reaching my decision here. Cf. Walton Manufactunng Company.
125 NLRB 485,487 (1959).
271