Dillman Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1980

253 N.L.R.B. 843 (N.L.R.B. 1980)

DILLMAN FOODS. INC.
Dillman Foods, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, Local
No. 610, United Food and Commercial Workers
Union, AFL-CIO. Case 9-CA-13880
December 18, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELI.O, AND
ZIMMERMAN
On August 12, 1980, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge, but not to adopt his recommended Order.3
ADI)TIONAI. CONCI.USION OI LAW
Add the following as Conclusion of Law 5(e):
"(e) Instructing employees to report the identity
of union card solicitors."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
Respoldent ha, excepted to certain credibility findilngs made b the
Administrative Law Judge It is the Board's estabhlished plicy no to
overrule an administrative law judge's resolutions with respect to credl-
bility unless the clear prepoiderance of all of the rele ant eideince con-
vinces us that the resolutioins are incorrect Standard Dry Wall Product.
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
The Administrative Law Judge found that Roger Dillman. Respond-
ent's owner, told employee David Campbell that he was "still aware that
you're still going around behind my hack causing problems and still in
active support of the Union." However, in his discussion of whether Re-
spondent had knowledge of Campbell's unioin activity, the Administrative
Law Judge failed to mentioin this statement, and instead relied upon, inter
alia, Dillman's alleged awareness that the Meat Cutters organize meat de-
partment employees; upon information supplied to Dillman by employee
Dara Boster that "probably" every meat department employee was in-
volved in union activities; and upon the small-plant doctrine We find it
unnecessary to rely upon these factors, because Dillman's credited state-
ment to Campbell shows he had direct knowledge of Campbell's particu-
lar participation in union activities prior to the time that Dillman was dis-
charged
2 The Administrative Law Judge iniadvertently neglected to incorpo-
rate into the Conclusions of Law his finding that Respondent violated
Sec 8(a)(1) of the Act by instructing employees to report the identity of
union card solicitors We will therefore add Conclusion orf a 5(c) to
reflect this finding
3 We will issue an Order in lieu rif that of the Admnini-tratve L\,
Judge, because his recommended ()rder omits cease-and-desisl provisions
corresponding to two violations of the Act which he found, and because
It contains other inadvertent errors
253 NLRB No. 114
lations Board hereby orders that the Respondent,
Dillman Foods, Inc., Middletown, Ohio, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating
against, employees because of their membership in.
or activities on behalf of, Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
Local No. 610, United Food and Commercial
Workers Union, AFL-CIO, or any other labor or-
ganization.
(b) Threatening employees with layoffs should
they choose a union as their collective-bargaining
representative.
(c) Telling employees that they wil not receive
their annual pay raise while a union is attempting
to organize Respondent's facility.
(d) Threatening employees with discharge be-
cause of their activities on behalf of a union.
(c) Telling employees that it is aware of their ac-
tivities on behalf of a union, thereby creating the
impression that it keeps its employees' union activi-
ties under surveillance.
(f) Instructing employees to report the identity
of union card solicitors.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer David T. Campbell immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make employee David T. Campbell whole
for any loss of earnings he may have suffered due
to the discrimination practiced against him, as pro-
vided in the section of this Decision entitled "The
Remedy." 4
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its office and place of business at 2100
Central Avenue, Middletown, Ohio, copies of the
attached notice marked "Appendix." 5 Copies of
I Member Jenlkins would award inleresl on the backpai in accordance
wrth the formula set forlh in his partial dissent In Olympic Medical ( iii-
ration, 250 NLRI 14h (19q))
In the esient hait his Order is niitrced b) i Judgment ofa U[nited
States Courl of Appals the s iord, in the notice reading "PI'sted h5
Crmnios'd
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said notice, on forms provided by the Regional Di-
rector for Region 9, after being duly signed by Re-
spondent's authorized representative, shall be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
Order of the National l.abor Relations Hoard" shall read "Posted I'ursu-
ant to a Judgmelt of the Uniled Stales Court of Appeals Erliorcing an
Order of the National I.abor Relions Board."
APPENDIX
NoTICll To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAI LABOR REi.ATIONS BOARD
An Agency of the United States Government
WE WIL.L NOT discharge, or otherwise dis-
criminate against, employees because of their
membership in, or activities on behalf of,
Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 610,
United Food arid Commercial Workers Union,
AFL-CIO, or any other labor organization.
WI WILL. NOT threaten employees with lay-
offs should they choose a union as their collec-
tive-bargaining representative.
WE WIll. NOT tell employees they will not
receive their annual pay raise while a union is
attempting to organize our facility.
WE WIl.L NOT threaten employees with dis-
charge because of their activities on behalf of
a union.
WE WIL NOT tell employees that we are
aware of their activities on behalf of a union,
thereby creating the impression that we keep
our employees' union activities under surveil-
lance.
WE Wll. NOT instruct employees to report
the identity of union card solicitors.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
Wi WILL offer David T. Campbell immedi-
ate and full reinstatement to his former job or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make David T. Campbell whole
for any loss of earnings he may have suffered
due to our unlawful discharge of him, plus in-
terest.
DILI.LMAN FOODS, INC.
DECISION
STAIEMIINT O IHI CASE
GleORC;I NORMAN, Administrative Law Judge: This
case was heard in Cincinnati, Ohio, on January 28 and
29, 1980. It is based on a charge filed by Amalgamated
Meat Cutters and Butcher Workmen of North America,
Local No. 610, United Food and Commercial Workers
Union, AFL-CIO,' herein called the Union, on May 18,
1979,2 against Dillman Foods, Inc., herein called Re-
spondent. A complaint based on that charge was issued
on July 5, 1979, hby the Regional Director for Region 9
of the National Labor Relations Board. The complaint
alleges that Respondent committed certain unfair labor
practices within the meaning of Section 8(a)(l) and (3) of
the National Labor Relations Act, as amended, herein
called the Act. Respondent denies that it has committed
any unfair labor practices.
All parties were given a full opportunity to participate.
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. The General Coun-
sel and Respondent filed post-trial briefs.
Upon the entire record, including my consideration of
the briefs and observation of the demeanor of the wit-
nesses, I make the following:
FINI)IN(;S 01- FACT
I. HF ItUSINFSS 01 IHF FMPI OYFR
Respondent Employer is an Ohio corporation engaged
i the retail sale of food and related products at several
locations in Ohio including one at its 21() Central
Avenue, Middletown, Ohio, facility. During the past 12
months, a representative period, Respondent received
gross revenues in excess of $500.00. During the same
period Respondent purchased and received goods and
materials valued in excess of $10,000, which were
shipped to its Middletown, Ohio, facility directly from
points outside the State of Ohio. Respondent is an em-
ployer within the meaning of Section 2(2) of the Act en-
gaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
At i.t hciaring. upon nitotloll fr the ( icncral COillisel which was
granled, the title of this case w;'a al tieClnded Ito inLiLId the word, ls '11i t-d
Food and Commercial Workers t nion, AF. CIO() "
2 Urlless oIthrwise indicated ail vellns hereil (C'currcd i l Ihe year
19)79
844
DILLMAN FOODS, INC
HI. rH I.LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Hi. HE AL.LF(iI.D UNFAIR L.ABOR PRACTICtS
A. The Facts
Respondent operates three grocery stores, one in West
Carrollton, Ohio, and two in Middletown, Ohio. The
two in Middletown, will be referred to as the University
Avenue store which has about 80 employees, and the
Central Avenue store which has about 25 employees.
The unfair labor practice charges herein concerned the
employees of the Central Avenue store.
Roger Dillman owns the Respondent Company and
makes all the ultimate decisions regarding employment
and discharge. He and his family have been in the gro-
cery business in the area since 1926. The Central Avenue
store has been in operation since 1963. Dillman, who
spends about 2 hours a day in the Central Avenue store,
has a close relationship with both customers and employ-
ees. Respondent considers the customers in the Central
Avenue store as being high on the society social and
economic scales. Respondent also considers the meat de-
partment as the most important department in terms of
drawing customers "because if they are not pleased with
the meat then they don't shop there." The company per-
sonnel handbook emphasizes "the customer is 'always
right' if they receive bad merchandise from our store."
The handbook also provides that customers who abuse
this policy should be referred to the store manager.
The company handbook also contains the following
statement:
UNION STATEMENT
We prefer to deal with people directly rather
than through a third party. This is a non-union or-
ganization. It always has been, and it is certainly
our desire that it always be that way. This does not
mean that from time to time we do not have prob-
lems. However, we have always been able to work
these out among ourselves without the intervention
of outsiders. No organization is free from day-to-
day problems, but we believe that we have policies
and practices to help resolve problems rather than
fight with each other. Unions have never gotten
anyone his job neither have they caused anybody to
keep his job. Only all of us working together to
make this a viable, healthy organization are able to
do that. We encourage you to bring your problems
to your supervisor or anyone else you feel can help
you, and we, in turn, promise to listen and give the
best possible response that we can. In today's world
there are many pressures. We want to keep our or-
ganization free from artificially created tensions that
can be brought on by the intervention of outsiders,
such as a union. We feel that a union would be of
no advantage to any of us. It would hurt the busi-
ness on which we all depend for our livelihood. We
accept our re;ponsibility to provide the best work-
ing conditions, pay. and benefits that we can afford.
It is not necessary for you to pay union dues to re-
ceive fair treatment in this company. Each of you is
an individual, and you have the right to speak for
yourself.
If anyone should come to you and ask you to
sign a union authorization card, we are asking you
now to refuse to sign it. You have a right not to
join and belong to a union. If any other employee
should interfere or try to coerce you into signing a
union authorization card, please report it to your su-
pervisor and we will see that the harassment is
stopped immediately. 3
There have been several unsuccessful attempts by
unions to organize at Respondent's stores, which includ-
ed two National Labor Relations Board elections involv-
ing Respondent's employees.
B. The Events Leading to Discharge of David T.
Campbell
Respondent hired David T. Campbell sometime in
mid-May 1978 as a meatcutter employee in its Central
Avenue store. Campbell's job included cutting and proc-
essing various kinds of meats, preparing special orders,
and waiting on customers. At the time that Campbell
,was hired, three others worked in the Central Avenue
store meat department, Richard Shackelford, the meat
department manager, Goldie Sizemore, a meat wrapper,
and Raymond Hall, a part-time employee. All the meat
department employees as well as the other employees at
the Central Avenue store were under the supervision of
the store manager, Bill Greer. Greer, in turn, reported to
Roger Dillman, the owner and president of all three
stores. For all times material herein, all three of Re-
spondent's stores have been nonunion.
About a month after hiring Campbell, Dillman prom-
ised Campbell and Shackelford a bonus if, after the ensu-
ing 13 weeks, the meat department achieved a desired in-
crease in gross profits. However, in September 1078. at
the end of the 13 week period, Dillman called Campbell
and Shackelford together and informed them that they
would not be receiving the bonus inasmuch as they had
not increased the profits to the level expected by Dill-
man. Upon receiving that news Campbell and Shackel-
ford expressed their disappointment to Dillman over the
denial of the bonus, arguing that they had expected the
bonus so as to offset their low wages. Campbell also
complained of the higher wages paid to meatcutters at
Dillman's other stores. Dillman's response was that his
other meatcutters made more money because they had
worked for him longer.
In early November 1978 while Campbell and his co-
workers were working in the meat room in the rear of
the store, grocery department employee Dara Boster
came to them and told them that she was soliciting au-
thorization cards for the Retail Clerks Local 1099 (herein
called Clerks). Campbell, Shackelford, and Sizemore
each took and signed a Clerks card and gave it back to
Boster. Boster then invited them to attend a meeting at
' I[i (i Iicrll (I i, 1%cl do(
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t I!1 llll dl tI.1 thi, I oittcnl n t I.11%111Wi1.'i
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845
I)lICISIONS ()F NATIONAL LABOR RELATIONS B)OARI)
her house the following Tuesday at which time officials
of the Clerks would give a presentation. About 10 em-
ployees including Campbell and Shackelford attended
the meeting at Boster's house. Of those attending, five or
six worked in the Central Avenue store. At the meeting
the union official handed out Clerks cards to the assem-
bled employees and both Campbell and Shackelford
again signed cards. However, one of the union officials
told Campbell and Shackelford that, as meatcutters, they
did not fall within the Clerks' jurisdiction, but rather
within the jurisdiction of the Meat Cutters Union.4 The
Clerks representative told them he would turn their
cards over to the Meat Cutters Local for that area and a
representative of that Local would be contacting them
shortly after that.
After a few weeks passed without hearing from the
Meat Cutters local Campbell phoned and asked them
whether their signed cards had been received. The Meat
Cutters Local president assured them that he had re-
ceived the cards but that his office was too busy at the
time to start a campaign. He suggested that they post-
pone their organizational efforts until Meat Cutters Inter-
national Representative Jerry Everly was available to
handle their case.
C. Dillman Calls Meeting of Employees
In the meantime, as the Clerks campaign was progress-
ing, Respondent Dillman called an employee meeting in
early December 1978 at the Central Avenue store. The
meeting was held on company time and was attended by
all of the employees except Shackelford who was absent
from work. Dillman opened the meeting by stating that
he was aware that there was union activity afoot and
that the activity was untimely as they were approaching
one of his busiest times of the year, the Christmas holi-
day. He further stated that, if the employees were dissat-
isfied with the wages or conditions, they had the oppor-
tunity to go elsewhere. He said that, because of the pos-
sibility there would be more than likely higher wages
paid to them if they were represented by a union, it
might be difficult for him to pay the wages to all the em-
ployees so some of them would have to be let go. He
also mentioned that he was considering not giving the
annual raises normally given in January each year be-
cause he feared union charges of bribery should he grant
the wages. He closed by advising all employees that, if
they were approached to sign a union card, they had the
right to refuse to sign, "and if anyone persisted in pursu-
ing us to sign such cards . . . he would like to know
about it, who it was . . . and he would take care of it
accordingly."
D. Campbell Continues Union Activity
Campbell continued his union activities by placing sev-
eral phone calls to the Meat Cutters Local 610 asking for
International Union Representative Everly and engaging
in frequent worktime conversations with employees
Shackelford and Boster as to the progress of the Clerks
campaign among the grocery employees. Those conver-
4 At the time the two Unions had not yet merged
sations which were held in the breakroom and in the
meat department were also attested to by Boster.
Also during this time, I day shortly before Christmas,
Dillman arrived at the store and Campbell noticed that
Dillman appeared upset and had ignored Campbell.
Campbell followed Dillman into the stockroom and
asked him what was wrong. Dillman replied, "I've had it
with you." Campbell asked what he meant, and Dillman
replied that he was "through with" Campbell. When
asked for an explanation, Dillman told Campbell that he
thought they had an understanding as of the time Camp-
bell was hired and, if Campbell had a problem, that he
should tell Dillman and they could work it out, but that
Campbell was "still going around disrupting business and
causing problems." Campbell again told Dillman that he
did not know what Dillman was referring to. Dillman
then raised with Campbell his dissatisfaction with his pay
rate and failure to get a bonus stating that Campbell
knew what the pay structure had been when he was first
hired. Dillman then repeated to Campbell the substance
of what he had said at the employee meeting a few
weeks earlier, that he might have to suspend the imple-
mentation of the annual raises due in January in order to
avoid union charges of bribery. Dillman also told Camp-
bell that he noticed that Campbell had little interest in
what he had to say at the meeting and that at one point
Campbell had not been listening to the speech. He then
accused Campbell of appeasing him on the outside and
probably laughing at him on the inside.
Campbell continued his organizational activities into
early 1979, and in February Campbell made phone con-
tact with Union Representative Everly. At Everly's re-
quest, Campbell agreed to contact the other meat depart-
ment employees to set up a meeting with Everly. The
next day, Campbell spoke with coworker Sizemore and
persuaded her to come to a meeting as long as it was on
a Friday evening and was held in Middletown. The
meeting was set for a Friday at Shackelford's home in
Middletown. On Thursday of that week Campbell called
Sizemore at her home to make sure she was going to
attend the union meeting the next day. Sizemore told
Campbell that she had just had a phone conversation
with Dillman and now felt that she did not think that
going to a meeting would do any good. Campbell again
urged her to come to the meeting as previously planned,
and she said she would.
On Friday afternoon of the union meeting, Campbell
approached Dillman while leaving work and asked him
why he was ignoring him for the past several days. Dill-
man said that he thought after their last encounter they
had come to a mutual understanding of how things were
supposed to be. He then told Campbell that he was "still
aware that you're still going around behind my back
causing problems and still in active support of the
Union." Campbell asked Dillman what he was talking
about. He replied "someone" had told him that he was
causing problems. Campbell asked him his source but
Dillman refused to tell him. Campbell then asked Dill-
man whether the source was the store's bookkeeper
846
I)ID.I.MAN FOODS, INC
Martha Boringer. 5 Dillman again refused to tell him the
source and abruptly walked away.
The union meeting was held as scheduled on Friday at
Shackelford's home. Campbell told Everly about his ear-
lier conversation with Dillman wherein Dillman accused
him of being active in the Union, whereupon Everly of-
fered to send a letter to Dillman officially advising him
that Campbell and Shackelford were members of the
"In-House Organizing Committee," but both rejected the
offer. Everly gave them more union cards to pass out to
other meatcutters. During the meeting, Goldie Sizemore
telephoned and said that she would not make the meet-
ing because her husband had not gotten home from work
and there was nobody to babysit her niece. Everly sug-
gested to Campbell and Shackelford that they hand out
cards to the employees at the University Avenue store.
Following that suggestion they visited the meat depart-
ment employees to sound them out atd, according to
Campbell, all of them appeared hostile to unionization,
so no effort was made to get them to sign cards.
E. The Discharge of Campbell
On March 14, Dillman called Campbell into Store
Manager Greer's office and read to him from three
pieces of paper, each of which referred to Campbell's al-
leged malfeasances during the past 2 weeks: (1) question-
ing the request by a customer for a refund for meat she
returned as inedible; (2) failure to prepare an order for a
customer by the time she was scheduled to pick it up;
and (3) failure to prepare an order for the Kahn's meat
salesman. Dillman then said that he had taken all he
could from Campbell and that Campbell was fired.
Campbell replied that he was sorry that Dillman was
doing that and then left the store. 6
IV. DISCUSSION AND) CONCLUSIONS
The fact that David Campbell was engaged in union
and other protected concerted activities is not in dispute.
In fact, the record indicates that Campbell spearheaded
the drive to organize the meat department employees.
He made numerous contacts with the Union's local office
until he was able to make contact with International
Representative Everly. It was Campbell who set up the
meat department employees' meeting with Everly and
persuaded reluctant employees to attend. After that
meeting Campbell and Shackelford not only talked to the
meat department employees at the Central Avenue store
but also inquired at the University Avenue store as to
whether the meatcutter employees there were interested
in the Union. He and Shackelford protested to Dillman
about Dillman's decision not to give them the bonus he
earlier promised. Campbell also attended the Clerks
meeting in the fall of 1978. Moreover, Campbell dis-
cussed the progress of the union campaign on many oc-
5 Campbell suspected Boringer because on two separate occasions
Campbell noticed her standing behind the thin aluminum and glass door
where she could easily hear and see Campbell and Shackelford talk about
the Union. They were in fact talking about their organizational efforts on
these occasions. Campbell's suspicions concerning Martha Boringer were
shared by Shackelford.
6 Campbell had not previously been warned that his job performance
was such that he was in danger of being discharged.
casions with coworkers Shackelford and Boster and tried
to persuade them that a union was needed at the store.
In addition, Campbell was often criticizing the working
conditions in the meat department
Dillman admitted knowing that the employees in gen-
eral were engaged in organizational efforts but denied
that Respondent knew that Campbell was involved. In
that connection, I credit Campbell and not Dillman inas-
much as Campbell was consistent, open, and aboveboard
in his testimony, whereas Dillman was hesitant and eva-
sive. Respondent contends that it was aware of only the
Clerks campaign and not the Meat Cutters campaign.
However, I reject Respondent's contention for the fl-
lowing reasons. Dillman, who has been in the grocery
business for many years and has observed, in the past,
union organizing campaigns in his stores, is aware of or
should he aware of the practice of the Meat Cutters
union organizing meat department employees and of the
Clerks, the grocery employees. Dillman admitted that
Dara Roster informed him early in the campaign that the
organizational effort had spread to the meat department
and that every employee in the department was men-
tioned probably being involved. In addition, the small
complement of employees in the meat department and
the relatively small size of the Central Avenue store (25
employees) would place that store within the Board's
"small plant" doctrine and knowledge of Campbell's
union activities may be imputed to Respondent. Florida
Cities Water Company, 247 NLRB No. I11 (1980); Torn's
Ford, Incorporated, 233 NLRB 23 (1977); Marsden Elec-
tric Cornany, Inc., 226 NLRB 1097 (1976); Rose 0ool &
Plastics, Inc., 218 NLRB 506 (1975); Wiese Plow Welding
Co., Inc., 123 NLRB 616 (1959).
A. Respondent's Reasons for Campbell's Discharge
As previously indicated Respondent cited three inci-
dents occurring in March 1979 as the immediate basis for
Campbell's discharge. The first incident involved em-
ployee Linda Mullins who approached Campbell and re-
quested a refund on a roast she purchased at the store at
an earlier date but which ad turned dark and thus was
inedible.
According to Campbell, when Mullins first brought
him the roast and claimed that she had purchased it just
a day or two before, Campbell had reason to doubt the
veracity of her statement in that the package was coded
in such a way to indicate that the meat was processed
for sale on a date far earlier than that claimed by Mul-
lins. Thus, it could not possibly have been purchased
upon the recent date alleged by Mullins because in ac-
cordance with store policy it would have been with-
drawn from sale by that time. Campbell hesitated to give
her a refund because of a similar incident 2 days earlier
wherein Mullins returned some discolored ground beef
which she claimed she had bought the previous evening.
In the prior case Campbell gave her an immediate
refund although the coding on the package disclosed that
the ground beef had to have been purchased far earlier
than the date Mullins claimed. Campbell however did
give Mullins a refund on the roast. At the time, Mullins
sarcastically remarked, "I guess I'll have to take my busi-
847
DECISIONS ()F NATIONAL LABO(R RELATIO)NS BOARID
ness to Kroger's." Campbell responded, "I guess you'll
really have to. I really don't think we can afford to con-
tinue to give credit for something that wasn't really
spoiled."
Later that day, Campbell told of the entire incident to
Bill Greer, the store manager. Campbell said that Mullins
had no grounds to claim a refund in that she could not
have purchased the meat as recently as she claimed.
Greer remarked that "some of these customers just don't
understand." Campbell said this was not just a customer
but employee Linda Mullins. Greer responded, "Oh
Linda, well, okay, I'll take care of it." Campbell testified
that Greer did not appear at all upset over what had
happened.
According to Respondent, Campbell had treated Mul-
lins in an improper fashion in violating the established
rule that "the customer is always right." The General
Counsel contends, however, that Campbell acted proper-
ly under the circumstances and that he had every reason
to believe that Mullins had purchased fresh merchandise
and brought it back for a refund many days later during
which time she probably mishandled the meat herself.
Yet, he did not refuse her the refund and Campbell was
looking out for the best interest of his employer. I agree
with the General Counsel and I also agree that the rule
is "the customer is always right if they receive bad mer-
chandise from the store" and customers who abuse this
policy should be reported to the store manager. The
General Counsel contends that in this case the customer
received good merchandise and mistreated it and, in the
circumstances, the customer was not entitled to a refund.
In addition, this was the second time that the customer
brought back merchandise that when received was good,
not bad. I agree that Campbell acted precisely in accord
with Respondent's own guidelines, as set forth in Re-
spondent's personnel handbook, when he questioned
Mullins as to her entitlement to the refund. Also, in
accord with the handbook guideline, Campbell immedi-
ately referred the matter to the store manager who, sig-
nificantly, did not react as though Campbell had done
anything wrong.
The second reason cited by Respondent for firing
Campbell was his failure to have an order of 20 chicken
wings ready for a customer to pick up. The uncontro-
verted evidence reveals that on Friday, March 9, Goldie
Sizemore told Campbell that, while he was out to lunch,
a Mrs. Lovely had placed an order of 20 chicken wings
which she would be picking up after I p.m. the next day,
Saturday. At that point Campbell could have fixed the
order for chicken wings which had been in the frozen
food case. However, since he had previous experience
with Lovely and knew she was one of those customers
who always insisted on a fresh product he decided not to
use the wings in the case but rather wait until Saturday
morning when the chicken distributor delivered the fresh
product. At that point, Campbell was reasonably sure he
would have the order prepared by I p.m. the next day
inasmuch as the distributor normally made deliveries be-
tween 8 and 11 a.m.
However, by noon on Saturday, the fresh chickens
had not yet arrived. Campbell went to lunch and re-
turned at approximately 1:50 p.m. Campbell expected the
chicken delivery momentarily and expected to have
plenty of time to make up the order for Lovely who
would not be there to pick it up until after 1 p.m. Camp-
bell testified without contradiction that to cut and pre-
pare an order of chicken wings would take only 3 to 4
minutes at most.
The chicken wings were not delivered to the store
while Campbell was at lunch.7 Lovely appeared and,
when she found that her order had not been prepared,
Sizemore referred her to the University Avenue store to
purchase chicken wings on hand at that store.
Respondent claims that Campbell should have filled
the order with present stock that he had in the food case.
Secondly, Respondent contends that, once Campbell re-
alized on Saturday that the fresh chicken wings had not
yet been delivered, he should have, instead of going to
lunch, attempted to obtain chicken wings from the Uni-
versity Avenue store.
The General Counsel claims that Campbell acted prop-
erly throughout the whole incident stating that the easy
thing to do would have been to fill Lovely's order with
the frozen chicken wings in the case but that Campbell,
mindful of Respondent's customer satisfaction policy, de-
cided to go the extra mile to insure that Lovely, whom
he knew to be one of those extra particular customers,
would receive the freshest product available. He waited
to fill her order with the next day's fresh delivery which
he had every reason to believe would be made in the
morning as scheduled. If Campbell had filled Lovely's
order with the less fresh wings in the frozen case, he
might have been accused of laying down on the job by
giving a special customer substandard treatment.
I agree in part with the contention of the General
Counsel. I do not agree that Campbell acted properly in
going to lunch and not returning until 1:50 p.m. Howev-
er, as for getting the chickens from the University
Avenue store both the Central Avenue store and Univer-
sity Avenue store were on the same delivery route of
Respondent's chicken supplier. Therefore, the chicken
wings that he would have obtained from the University
Avenue store would have been no fresher than those
which were in the Central Avenue store. However, inas-
much as the delivery was not made until 3:30 and Camp-
bell was prepared all morning to fill the order which
would have taken only 4 to 5 minutes, as it turned out it
would not have mattered if Campbell did skip lunch.
However, it would have demonstrated greater customer
concern. As it turned out, Campbell was trapped by the
unforeseen late delivery by a novice driver. In all cir-
cumstances, I agree with the General Counsel that
Campbell's actions were not so horrendous that they
should have been used as a basis for his discharge.
The third incident involves an admitted mistake on
Campbell's part. He forgot to place a meat order with a
local meatpacker and distributor. Campbell admitted that
he became busy with other tasks and forgot to place the
Kahn's order. When confronted by Dillman, Campbell
admitted to Dillman that he had made a mistake and that
7 On the Saturday in question there was a new delivery driver who
did not know the route. As a consequence the chicken mings were not
delivered until 3:30 p m that afternoon.
848
DILLMAN FOODS, INC.
he was sorry. Campbell had not in the past been assigned
this type of work task. He simply failed to remember to
place the order. Shackelford testified that he too on oc-
casions had through inadvertence or carelessness forgot-
ten to place a meat order. However, on these occasions,
Respondent did not take any formal disciplinary meas-
ures against Shackelford, such as a formal warning, sus-
pension, or discharge. As for the first two events afore-
mentioned, if Campbell exercised poor judgment, he
erred on the side of looking out for the best interest of
his employer. As for the third, his memory failed him
concerning the performance of a new and unfamiliar
work task.
Respondent adduced testimony at the hearing concern-
ing Campbell's behavior toward customers and fellow
employees. His conduct caused many customers to
report to Dillman and tell him that they were consider-
ing taking their business elsewhere because of the treat-
ment they were getting from Campbell. Campbell told
the night manager that he would not stock the night case
and "did not give a damn" whether it was filled or not.
This conduct on the part of Campbell, according to Re-
spondent Dillman and employee witnesses, dated almost
from the start of Campbell's employment with Respond-
ent, and yet no action was ever taken against Campbell
such as a warning of discharge, suspension, or discharge.
Campbell's discharge came at the height of his and other
employees' organizational activities. I agree with the
General Counsel who stated simply that, "given this 10
month back drop of general tolerance of the grossest
abuses, Respondent's sudden discharge of Campbell in
March on the basis of the aforementioned trilogy of rela-
tively trivial events, where the equities themselves were
unclear, gives rise to the strong inference that other and
more sinister factors were at work, namely Campbell's
current union activities."
B. The 8(a)(1) Activity
The complaint alleges that Respondent violated Sec-
tion 8(a)(l) of the Act when Dillman told an assembly of
employees at the plant on company time in December
1978 that a union in the store would ruin him and might
result in layoffs since Respondent could not afford a
higher wage structure.
In support of that allegation the General Counsel of-
fered the testimony of employees Campbell and Shackel-
ford. Campbell attended the meeting and therefore the
testimony concerning what was said at the meeting came
from Campbell. Shackelford missed the meeting but on
the following morning Dillman was at the store waiting
for Shackelford to go over what he had stated at the
meeting. Shackelford testified as follows:
And he gave me his side of the story about, you
know, what the Union could do to the store, you
know, whether it could hurt our business or-not
really our business, it could hurt him, it could hurt
some of the employees.
Campbell testified, in effect, that Dillman stated in the
speech to the employees in December 1978 that a union
in the store would ruin him and might result in layoffs
since he could not afford a higher wage structure. As
previously indicated I credit the testimony of Campbell
and not Dillman including as to what Dillman stated
during that speech. Dillman's statement that the Union
would "ruin him" and would cause him to pay such a
high pay scale that he would have to lay off employees
is without any factual basis. Accordingly, I find that it is
an unlawful threat violative of Section 8(a)(1) of the Act.
C. P. & W. Printing Ink Company, Inc., 238 NLRB 1483
(1978); Little Lake Industries, Inc., 233 NLRB 1049
(1977); Mueller Brass Co., a Subsidiary of U I' Industries.
Inc., 204 NLRB 617 (1973); Marathon Le Tourneau Corn-
pany, Gulf Marine Division of Marathon Manufacturing
Company, 208 NLRB 213 (1974).
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act when Dillman told an assemblage
of employees on company time in a speech in December
1978 that, due to the current Clerks campaign, the previ-
ously scheduled January 1979 pay raise for employees
would be postponed.
In support of that allegation the General Counsel ad-
duced the testimony of Campbell who testified that Dill-
man, in the meeting of employees in December 1978,
stated that he had reservations about giving the January
1979 "seniority raises because the Clerks might read it as
a bribe." Campbell said that Dillman repeated the state-
ment to him later in the stockroom. Dillman denied
having made the statement but Respondent presented no
employee witnesses to contradict Campbell's testimony. I
credit Campbell.
Under Board law an employer cannot lawfully with-
hold a regularly scheduled pay raise during a union cam-
paign out of fear, real or otherwise, that the union migh
regard implementation of such a pay raise as an unlawful
grant of a benefit, or a "bribery." The general rule is an
employer should continue to grant or withhold benefits
as he would if a union were not in the picture. If his
action in granting or withholding benefits is prompted by
the presence of a union, he is in violation of the Act.
Osco Drug, Inc., 237 NLRB 231 (1978); Travis Meat &
Seafood Company, 237 NLRB 213 (1978); G. C. Murphy
Co., 223 NLRB 604 (1976). 1 find that the threat to with-
hold the previously scheduled seniority raises is unlawful
in violation of Section 8(a)(1) of the Act.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by Dillman's threat in late De-
cember 1978 to employee Campbell that he would be
discharged if he continued to engage in union activities.
As previously indicated, Campbell testified that, when
he first talked to Dillman in late December after the
meeting with the employees, Campbell asked him what
was wrong and Dillman replied, "I've had it with you
.. I'm through with you." Dillman further stated that
instead of going to him with his problems Campbell was
still going around disrupting business and causing prob-
lems. I find that, by telling Campbell that he was
"through with him" and "had it" with him, Dillman was
in effect telling him that his job was in jeopardy should
he continue his organizational efforts on behalf of the
Union. I find that to be an unlawful threat within the
meaning of Section 8(a)( 1) of the Act.
R49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that Respondent violated Sec-
tion 8(a)(l) when in February 1979 it created the impres-
sion in the mind of Campbell that his union activities
were being kept under surveillance.
Campbell testified that, when Dillman told him that he
was "still going around behind my back causing prob-
lems and still in active support of the Union," he further
told Campbell that he had "sources" but Dillman would
not reveal them when Campbell asked who they were. I
find that statement by Dillman to constitute creating the
impression of surveillance in violation of Section 8(a)(1)
of the Act.
The complaint alleges that Respondent violated Sec-
tion 8(a)(l) of the Act when Dillman, during his speech
to the employees, referred to above, instructed them to
notify Respondent as to any employee who asked them
to sign authorization cards.
In support of that allegation the General Counsel of-
fered the testimony of Campbell who said that Dillman
told the employees that if anyone approached them on
signing cards and "persisted in pursuing us to sign such
cards, he would like to know about it, who it was, what
it was, and he would take care of it accordingly." Dill-
man himself testified that he called the employees togeth-
er and informed them that he had been told that there
were some attempts to sign cards and he explained his
company policy that he certainly did not want a union
and that they would not have to partake in any harass-
ments to have union cards signed and if there was any
harassment, to please inform him. He stated further that
he asked them to notify him if there is any undue pres-
sure applied to them to sign cards to please inform me.
He further testified that no one reported to him that
there were any threats or harassments concerning the
signing of cards.
I agree with the contention of the General Counsel
that what Dillman was in fact asking his employees to do
was to spy on the union card solicitors among them and
report to him so that Dillman could put a stop to such
solicitation. Dillman's promise that he would "do some-
thing about it" or "take care of it accordingly" could
easily be taken as a promise to punish the perpetrators.
First, employees are in effect being told to inform on
their coworkers. Secondly, prounion employees are now
reluctant to engage in the protected concerted activity of
soliciting authorization cards for fear that they might be
accused of harassments or using undue influence to get
employees to sign cards. Moreover Respondent has not
shown any legitimate business justification for announc-
ing such a rule and in the circumstances its statement
certainly had a chilling effect on employees who wish to
engage in legitimate organizational activities.
Accordingly, I find that Respondent's rule and its
statements concerning the rule were unlawful restraints
and coercions upon its employees in violation of Section
8(a)(1) and Section 7 of the Act.
CONCLUSIONS OF LAW
I. Dillman Foods, Inc., is an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, Local No. 610, United Food and
Commercial Workers Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. Respondent discharged its employee David T.
Campbell because of his sympathy for, membership in, or
activities on behalf of the Union.
4. Respondent discriminated in regard to hire and
tenure of employment of its employees by said discharge
and engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
5. Respondent interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing, its em-
ployees in the exercise of rights guaranteed in Section 7
of the Act by:
(a) Threatening employees with layoffs should they
choose the Union as their collective-bargaining repre-
sentative.
(b) Telling employees that they would not receive
their annual pay raise while the Union was attempting to
organize Respondent's facility.
(c) Threatening an employee with discharge because
of his activities on behalf of the Union.
(d) Telling an employee that he was aware of his con-
tinued activities on behalf of the Union, thereby creating
the impression that Respondent kept its employees' union
activities under surveillance in violation of Section
8(a)(1) of the Act.
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and desist therefrom, and take certain affirma-
tive action in order to effectuate the purposes of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, it will be recommended that Re-
spondent be ordered to cease and desist therefrom and
take certain affirmative actions necessary to effectuate
the purposes of the Act.
I have found that Respondent discharged David T.
Campbell in violation of the provisions of Section 8(a)(3)
and (I) of the Act. I shall therefore recommend that Re-
spondent make David T. Campbell whole for any loss of
pay which he has suffered as a result of the discrimina-
tion practiced upon him. The backpay provided herein
with interest thereon is to be computed in the manner
prescribed in F W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).8
[Recommended Order omitted from publication.]
a See, generally, fsts Plumbing d Heating Co., 138 NLRB 716 (1962).
850