Raley's, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1981

256 N.L.R.B. 946 (N.L.R.B. 1981)

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raley's, Inc. and Retail Clerks Union, Locals 373,
588, and 1179, affiliated with United Food and
Commercial Workers International Union,
AFL-CIO
Independent Drug Clerks Association and Retail
Clerks Union, Locals 373, 588, 1179, affiliated
with United Food and Commercial Workers In-
ternational Union, AFL-CIO. Cases 20-CA-
14815, 20-RC-14833, and 20-CB-4938
June 29, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
On February 23, 1981, Administrative Law
Judge Gordon J. Myatt issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
Raley's, Inc., filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions
and a supporting brief, the Charging Party filed a
brief in answer to Respondent's exceptions, and
Respondents Raley's, Inc., and Independent Drug
Clerks Association jointly filed a brief in opposition
to the General Counsel's cross-exceptions.
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 conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Raley's, Inc., Sacramento, California, its officers,
agents, successors, and assigns, shall take the action
I Respondet Raley's, Inc., has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
2 In adopting the Administrative Law Judge's Decision we wish to
point out that, while an employer may lawfully state its preference be-
tween competing unions in a representation election (Srewari-Warner Cor-
poralton, 102 NLRB 1153 (1953)), Respondent clearly ent beyond indi-
cating its preference by according the incumbent Union privileges and fa-
vored treatment so as to enhance that Union's position to the detriment
of the petitioning Union.
We hereby correct the Administrative Law Judge's inadvertent omis-
sion from his Conclusions of Law that Respondent violated Sec 8(a)(1)
of the Act by making derogatory remarks about the Retail Clerks Union
to employees. The recommended Order and notice are changed to reflect
this correction.
We also correct an inadvertent error in sec D of the Administrative
Law Judge's Decision In the second paragraph he states that "Sordillo
replied she didn't know " This should read "Louritt" rather than "Sor-
dillo."
256 NLRB No. 155
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph l(b) and re-
number the successive paragraphs accordingly:
"(b) Making denigrating statements about the
Retail Clerks Union to employees."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
IT IS FURTHER ORDERED that, as we have adopt-
ed the Administrative Law Judge's recommenda-
tion to sustain the Retail Clerks Union's Objections
I and 2 to the conduct of the election, the election
be, and it hereby is, set aside, and that this case be
remanded to the Regional Director for Region 20
for appropriate action.
[Direction of Election and Excelsior footnote
omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
In recognition of these rights, we hereby
notify you that:
WE WILL NOT unlawfully interrogate our
employees about their union membership, sym-
pathies, or activities.
WE WILL NOT make denigrating comments
and statements about the Retail Clerks Union,
Locals 373, 588, and 1179, affiliated with
United Food and Commercial Workers Inter-
national Union, AFL-CIO, to our employees.
WE Wll. NOT threaten our employees with
discharge or discipline if they speak to repre-
RALEY'S, INC, 947
sentatives of the Retail Clerks Union, or any
other labor organization, while at the same
time allowing representatives of the Independ-
ent Drug Clerks Association to campaign
freely among the employees in all areas of our
stores.
WE WILL NOT unlawfully announce the
granting of increased benefits to employees in
order to induce them to select Independent
Drug Clerks Association as their collective-
bargaining agreement and to discourage sup-
port for the Retail Clerks Union, or any other
labor organization.
WE WILL NOT remove campaign literature
of the Retail Clerks Union, or any other labor
organization, from employee bulletin boards
while allowing such literature from Independ-
ent Drug Clerks Association to remain posted.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
RALEY'S, INC.
DECISION
STATEMENT OF THE CAS-
GORDON J. MYATT, Administrative Law Judge: Upon
charges and subsequent charges filed by Retail Clerks
Union, Locals 373, 588, and 1179, affiliated with United
Food and Commercial Workers International Union,
AFL-CIO (hereafter called the Retail Clerks), in Cases
20-CA-14815 and 20-CB-4938 against Raley's, Inc.
(hereafter called Raley's), and Independent Drug Clerks
Association (hereafter called IDCA), the Regional Di-
rector for Region 20 issued an order consolidating the
cases and a consolidated complaint and notice of hearing
on October 31, 1979.1 An amended consolidated com-
plaint was subsequently issued on December 19. Pursuant
to telegraphic notification, the complaint was further
amended at the time of the hearing herein.
In addition, the Retail Clerks, as Joint Petitioners, filed
a representation petition on June 6 in Case 20-RC-14833
for a unit of Raley's employees in its Drug and Family
Center stores in northern California. 2 The parties, with
IDCA as intervenor, executed a Stipulation for Certifica-
tion Upon Consent Election agreement, which was ap-
proved by the Regional Director on July 5. An election
was held on August 16 and the tally of ballots indicated
t Unless otherwise indicated. all dates herein refer to the year 1979.
2 The unit was described in the consent agreement as:
All full-time and regular part-time Drug and Family Center employ-
ees employed by Raley's. Inc, at its stores located in the State of
California. excluding Tehama Counly, excluding all employees co,-
ered by other collective-bargaining agreements. security officers. li-
censed and/or registered pharmacists, and super sors including
managers and first and second assistant managers. and guards, as de-
fined in he Act.
that of approximately 213 eligible voters 106 cast ballots
for IDCA, 79 cast ballots for the Retail Clerks, and I
ballot was against representation by either labor organi-
zation. There were seven challenged ballots which were
not sufficient in number to affect the results of the elec-
tion. The Retail Clerks filed timely objections to the
election and on December 18 the Acting Regional Direc-
tor issued his Report on Objections. 3 The Acting Re-
gional Director determined that the objections and the
allegations of the amended complaint in the unfair labor
practice cases constituted a "single, overall controversy"
and consolidated the objections with the unfair labor
practice cases for purposes of hearing.
A hearing was held on this consolidated matter on
February 26, 27, and 28, 1980, in Sacramento, California.
All parties were represented and afforded full opportuni-
ty to examine and cross-examine witnesses, and to pres-
ent material and relevant evidence on the issues in con-
troversy. 4 Briefs were submitted by all parties and have
been duly considered.
Upon the entire record in this case5 and from my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following:
FINDINGS OF FACT
I. URISDICTION
Respondent Raley's, Inc., is, and has been at all times
material herein, a California corporation with its princi-
pal office and place of business located in Sacramento,
California. Respondent Raley's is engaged in the retail
sale of food, drugs, and other related products at various
facilities consisting of freestanding drugstores and combi-
nation supermarkets and drug centers in northern Cali-
fornia. During the calendar year ending December 31,
1978, Raley's in the course and conduct of its business
operations derived gross revenues in excess of $500,000.
During the same period of time, Raley's purchased and
received goods and services valued in excess of $50,000
from sources located outside the State of California. Ac-
cordingly, I find that Raley's is, and has been at all times
material herein, an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the National Labor Relations Act,
as amended, 29 U.S.C. § 151, et seq. (hereafter called the
Act).
11. THE LABOR ORGANIZATIONS INVOLVFD
Retail Clerks Union, Locals 373, 588, and 1179, affili-
ated with United Food and Commercial Workers Inter-
national Union, AFL-CIO, and Independent Drug
Clerks Association are labor organizations within the
meaning of Section 2(5) of the Act.
' he original objections filed by the Retail Clerks tIotaled 13 in
number The Joint Petitioners subsequently withdrew all but three, which
were left for consideration bh he Acting Regional Director
Ciounsel for the Retail Clerks did not appear at the heanng and
Larry Hiclsc. rgaiiling director for Local 588. entered an appearance
Hiowccr. counsel .ubmitted post-hearing brief in behalf of the Retail
Clerk,
(eralnl rrors, in Ihe trailscripr are hereby noted and corrected
RALEY'S, INC.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ilt. HE ISSUES INVOLVED
1. Whether Raley's, through its supervisors and agents,
unlawfully interrogated employees at its various facilities
about their union membership, sympathies, and activities.
2. Whether Raley's, through various supervisors and
agents, threatened to terminate employees if they spoke
to representatives of the Retail Clerks on company time.
3. Whether Raley's unlawfully announced that it was
granting, and did grant, its employees increased health
and welfare benefits to induce the employees to select
the incumbent IDCA as their bargaining representative
and to discourage employee support for the Retail
Clerks.
4. Whether Raley's, through various supervisors and
agents, rendered aid, assistance, and support to IDCA by
permitting representatives of that organization to cam-
paign among the employees during working hours in all
areas of the stores while instructing employees not to
talk to representatives of the Retail Clerks during work-
ing hours.
5. Whether Raley's, acting through a supervisor, ren-
dered aid, assistance, and support to IDCA by permitting
campaign literature of that organization to remain posted
on an employee bulletin board at one of Raley's facilities
while removing campaign literature of the Retail Clerks
from the same location.
6. Whether Respondent IDCA, through its president,
violated the Act by threatening to cause the transfer of
employees if they supported the Retail Clerks.
7. Whether Respondent Raley's transferred employee
Mary Elliott because she assisted and supported the
Retail Clerks and engaged in protected activities on
behalf of that organization, and also to discourage other
employees from engaging in such activities on behalf of
the Retail Clerks.
IV. HE A EGI) UNFAIR L.AHOR PRACTIICES
A. Background Facts
The facilities of Raley's that are involved in these pro-
ceedings consist of the freestanding drugstores and com-
bination supermarkets and drug centers (Family Centers)
located in northern California. The bargaining history
discloses that the food department employees at these
facilities are, and have been, represented by the local
unions which constitute the Charging Parties in this
matter. The drug center and drugstore employees, how-
ever, have been represented by IDCA since that Union
was certified by the Board in 1963. IDCA and Raley's
have been parties to successive collective-bargaining
agreements from that time through the events involved
in this case. The latest IDCA agreement was effective
from September 5, 1976, to, and including, September 1,
1979. (Resp. Exh. 1.)
One of the provisions in that agreement addressed the
right of IDCA representatives to visit the stores for con-
tract-related purposes. Specifically, this section of the
agreement provided:
VISITS TO STORES:
It is agreed by both parties hereto that the business
representative or any other person designated by
the Association for such purpose shall have the
right and shall be allowed by the Employer to visit
any and all stores covered by this Agreement for
the purpose of observing working conditions,
making inquiries from the employees concerning
working conditions, complaints of members of the
Association and/or any violations of this Agree-
ment. The Association agrees there will be no un-
necessary visits or interference with the proper per-
formance of the work of employees covered by this
Agreement. [Resp. Exh. 1, p. 12.]
Sometime in April 1979, the Charging Parties began a
campaign to organize the employees working in Raley's
drug centers and drugstores. This campaign resulted in a
Board-conducted election held on August 16. As previ-
ously noted, the IDCA received a majority of the votes
cast, and the Retail Clerks filed objections to conduct al-
leged to have affected the results of the election.
B. The Alleged Unlawful Conduct by Raleys
Supervisors at the Iarious Stores
After the Retail Clerks commenced its efforts to orga-
nize Raley's drug department employees in April, Mary
Elliott, a pharmacy technician at Store No. 71 (Carmi-
chael), became an active supporter of that Union in her
store. According to the testimony of Elliott, she an-
swered questions employees had about the Retail Clerks,
passed out literature for that Union, and met frequently
with the organizers of the Retail Clerks during her lunch
hours or in the parking lot on breaks. Elliott testified
that sometime in late April or early May she had been
discussing the Retail Clerks' campaign with coworkers in
the back room of the store while the then store manager,
Gene Flick, was working nearby. According to Elliott,
as she was leaving, Flick asked what she thought about
the Retail Clerks. Elliott replied that she was a supporter
of the Retail Clerks and had been a member of that
Union when she worked for another employer. She also
told Flick that the Retail Clerks had been helpful to her
on several occasions.
Flick, on the other hand, denied that he ever asked El-
liott her feelings about the Retail Clerks. He recalled that
he and Elliott were in the warehouse pricing an order
and engaging in a "general conversation." Flick stated
that the upcoming election was mentioned during this
conversations It was at this time, according to Flick,
that Elliott volunteered information that she was a sup-
porter of the Retail Clerks, and that it had assisted her
when her aunt needed an operation while Elliott was
working for another employer. Flick testified he merely
listened to Elliott's comments but never asked the em-
ploycce how she felt about the Retail Clerks.
Employee Dixie Stermer, a drug clerk, worked at
Store No. 63 located in El Dorado Hills. Stermer testi-
fied that, sometime in May, Larry Heise of the Retail
Clerks came into the store and spoke with her. Later
t; he Relail Clerks' peitilrl lr ;n tlItCll sails tl d oilC JIunc 6
RAI.FEY'S, INC' 940
that same month, the store manager, Edward Pine, spoke
to her in the back room of the store. According to
Stermer, Pine stated that she would probably be contact-
ed by a representative of the Retail Clerks and if she
wanted to speak to that person she would have to do so
outside the store on her own time. Stermer replied that
she was interested in learning what the Retail Clerks had
to say. At this point, according to Stermer, Pine said that
he had been a member of that Union and Stermer would
not want to hear about the Retail Clerks because of the
"pressure and vandalism." 7
Mary (Peggy) Baggerman, an employee at Store No.
62 in Placerville, testified that in early May Heise and
another organizer for the Retail Clerks came into the
store and spoke with her about the wage rates negotiated
by the Retail Clerks for nonfood employees at the stores.
Baggerman stated that, shortly after the union repre-
sentatives left, she went into the back room and spoke
with the store manager. Fred Hegy. According to Bag-
german, she asked Hegy why the Retail Clerks was get-
ting wages that were higher than the wages Raley's em-
ployees were receiving. Baggerman stated that Hegy
said, "This [talking to representatives of the Retail
Clerks in the store] will not happen again." He told Bag-
german that she could lose her job by talking to repre-
sentatives of the Retail Clerks on company time. Bagger-
man further testified that Hegy repeated this admonition
to her at least a half a dozen times prior to the holding
of the election on August 16.
Hegy's testimony concerning this conversation differs
with the version given by Baggerman. Hegy stated that
Baggerman approached him and told him of her conver-
sation with Heise at her work station. According to
Hegy, Baggerman wanted to know if it was permissible
to speak to representatives of the Retail Clerks while on
the work floor or if she would be fired for doing so.
Hegy stated that he told Baggerman not to do it again
until he checked with his superior because he did not
know the company policy. Hegy testified he called
Robert Teel, drug center supervisor, and was informed
that employees could not talk to representatives of the
Retail Clerks while on duty because it violated the Com-
pany's no-solicitation rule.
Baggerman also testified that in mid-May Hegy told
her and Dolly Richards, a coworker, that Kay Sordillo,
secretary-treasurer of IDCA, was in his office, and he
wanted the employees to talk to Sordillo about their in-
surance benefits, the Retail Clerks, or whatever com-
plaints they had. Baggerman stated that she and Richards
did not punch out, and the meeting with Sordillo lasted 2
hours. According to Baggerman, Sordillo talked about
her recent surgery and how the insurance plan paid for
it. In addition, she discussed the wages earned by Raley's
employees represented by the Retail Clerks in Nevada.
After the conclusion of the meeting, Baggerman told
Hegy that he "shot two hour's pay for the employees to
listen about Sordillo's operation and how 'sorry' the
Retail Clerks were."
7 Pine was not presented as witness a the hearing and Stcrmer t-
limony concerning this consersation is unrefuted in the record.
Several weeks later. Sordillo returned to the store and
spoke to aggerman and other employees in the back
room while they were still on the clock. She told the
employees not to believe anything the Retail Clerks said
and that Raley's "would not go for a Retail Clerks' con-
tract" According to Baggerman, Sordillo made periodic
visits thereafter to the store. even though she had only
visited the store once or twice a ear prior to the orga-
nizinig campaign of the Retail Clerks. O each visit until
the election in August, Sordillo 'would always talk to
Baggerman about the disadvantages of being represented
by the Retail Clerks.
Hegy, on the other hand, testified that Baggerman and
another employee had been complaining to him in May
about their insurance coverage. He stated that. when
Sordillo came to the store. she informed him that she
vwanted to talk with the employees about their various
complaints. According to Hegy, he told the employees
that Sordillo was in the store and. if they wanted to
speak with her about their problems, theN could do so.
Hlegy admitted that Sordillo had not been in the store for
about 6 months prior to this visit He further acknowl-
edged that after the meeting Baggerman complained that
2 hours were wasted listening to Sordillo talk about her
operation. He denied, however, that Baggerman men-
tioned that Sordillo was talking against the Retail Clerks
or promoting support for IDCA during the meeting.
The Retail Clerks filed a petition on June 6 and the
parties signed a Stipulation for Certification Upon Con-
sent Election Agreement on June 29, agreeing to an elec-
tion on August 16. Baggerman testified that several
weeks prior to the election Hegy told her that George
Kalafatich, a clerk in the grocery department of the
store." could no longer come over to the drug depart-
ment and have lunch with her or other drug department
employees in the back room. Prior to this, it was custom-
ary for Kalafatich to come over to the drug department
side at least two or three times a week from his work
area in the grocery department to eat his lunch with the
drug clerks in their back room. He followed this practice
even though the grocery department employees had
their own lunch or breakroom. Baggerman testified that
Hegy said he did not want any representatives of the
Retail Clerks or anyone "who thinks Retail Clerks" talk-
ing to his employees. Baggerman testified that Richards
came up at the time, and Hegy repeated the same admo-
nition to her.
Hegy testified that in late July and early August he
observed Kalafatich coming over from the grocery de-
partment to eat his lunch with the drug department em-
ployees in their breakroom. He admitted that he watched
Kalafatich for several days before deciding to put a stop
to this practice. According to Hegy, he felt there was
too much tension between the drug department employ-
ees over the competing Unions, and he told Kalafatich
not to use the drug department breakroom until after the
election. He stated that he explained his reason for the
decision to Kalafatich as well as to the drug clerks. He
Riles , grocer\ 1ill rilelt dpartnlint erilplo cos wcre r epresenlted h
tl Retail Clerks md the Mca;llcutters hich nmerged nto one union
(United t ,..id anid Co tmm rcial Workers) In J lnr 1'7')
RAIF. INC 9
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further stated that Kalafatich readily agreed to accept his
decision.
Finally, Baggerman testified that on August 14 Hegy
asked if she was going to a meeting being held by the
IDCA that evening. Baggerman indicated that she was
not. Later that same day, Glenda Hammonds, the IDCA
shop steward in the store, asked Baggerman the same
question. When Baggerman replied that she was not
going to attend the meeting, Hammonds said she was
going and intended to tape the meeting on a portable re-
corder. The following day, according to Baggerman,
Hammonds spent a good portion of her workday in the
breakroom playing the tape for any of the employees
who chose to listen. She asked Baggerman if she wanted
to hear the tape and, when Baggerman refused, Ham-
monds turned the volume up so that Baggerman could
hear it at her work station. At the end of the day, Bag-
german overheard Hammonds asking the second assistant
manager to lock the tape up in the "safe room."
Hammonds testified that she only played the tape
during her lunch hour and denied that she asked Bagger-
man to listen. Hegy testified that when Hammonds told
him she was going to tape the IDCA meeting he told her
that if she played it back in the store she would have to
do so on her own time. He stated that he saw Ham-
monds' recorder in the breakroom the following day.
At Store No. 59 (South Lake Tahoe), Lillian Louritt
was employed as a drug clerk. Louritt testified that in
early August, the store manager, Rick Sparks, came into
the employees' breakroom. She observed Sparks go to
the bulletin board where some campaign material from
both Unions was posted. The IDCA material listed the
wage scale of employees at Incline Village. The Retail
Clerks' leaflet showed a wage scale for "non-food
clerks," with the journeyman wage rate of $5.96 under-
lined in red. Louritt testified that Sparks removed both
pieces of literature and went into the next room where
he made a telephone call. She overheard him mention
the $5.96 journeyman rate contained on the Retail
Clerks' document. Several minutes later, according to
Louritt, Sparks returned and reposted the IDCA litera-
ture but did not repost the document showing the Retail
Clerks' wage scale.
Sparks testified that the only literature he ever saw
posted on the bulletin board in his store was literature
from the IDCA. He identified a survey questionnaire
sent out to the drug department employees on June 7 by
IDCA as the literature he noticed on the bulletin board
in the store. (See Resp. Exh. 16.) Sparks specifically
denied ever noticing any campaign material relating to
the Retail Clerks and its journeyman rates posted in the
store.
Mark Boggess, a drug clerk at Store No. 53 (Freeport)
testified that in early August he was eating lunch in the
store manager's office. He stated that Al Zimmerman,
the second assistant manager, came in and asked how he
was going to vote in the election. Boggess replied that
he intended to vote in his own best interest. According
to Boggess, Zimmerman then replied, "Good, your best
interests lie with the Retail Clerks." Zimmerman went
on to say that if the Retail Clerks got in, he (Zimmer-
man) would have to become a union member. That way
he could receive paid overtime on an hourly basis in-
stead of a salary and would get at least 2 days off a
week. 9
C. The Announcement to the Employees at the
Various Stores of the Improved Insurance Benefits
There is considerable testimony from employees at the
various stores that representatives from the IDCA and a
representative from the insurance carrier (Provident
Mutual Life) handling the policy covering the employ-
ees' medical and welfare benefits came to the stores in
July and August to explain that the benefits had been in-
creased. James Teel, vice president in charge of oper-
ations, testified that this was done under his instructions.
Teel stated that prior to 1977 Raley's negotiated for its
health and welfare benefits through the Northern Cali-
fornia Grocery Association and the insurance carrier was
Firemen's Fund. When notified that Firemen's was going
to increase its rates dramatically, Raley's dropped this
carrier and changed to Provident Mutual, who was pro-
viding coverage for Raley's employees in stores located
in Nevada. These latter employees were represented by
the Retail Clerks and the Meatcutters.
According to Teel, Sordillo, the chief negotiator for
the IDCA, was called into a meeting between him and
Robert Gilbert, Provident Mutual's agent in Nevada.
Sordillo insisted at the time that the California employees
not experience a loss in benefits due to the change in in-
surance carriers. Teel stated that, as a result of this meet-
ing in 1977, Sordillo extracted a verbal agreement from
him that when the Nevada contract was negotiated by
the Retail Clerks and the Meatcutters any increase in
medical or welfare benefits over the California coverage
would be granted to California employees.' ° She also in-
sisted, and management agreed, that IDCA would retain
the right to negotiate further increases when its contract
covering the northern California employees expired.
In March 1979, Raley's, as a member of the Reno Em-
ployers' Council, entered into negotiations with the
Retail Clerks and Meatcutters for a new contract cover-
ing the Nevada stores. A memorandum agreement which
contained certain changes in the health and welfare bene-
fits was reached on April 8. (Resp. Exh. 14.) A final
agreement was executed by the parties on July 31. (Resp.
Exh. 15.)
Because certain provisions in the health and welfare
benefits exceeded those of the northern California em-
ployees, Teel testified, he instructed Gilbert to update
the California plan to place it in a parity with the in-
creased benefits granted as a result of the Nevada negoti-
ations. No changes were to be made in the California
plan where it exceeded the benefits contained in the
Nevada plan. These changes were to become effective
for the northern California employees as of May 1, al-
though the Nevada contract, as finally negotiated, was
effective from February 11, 1979, to May 2, 1982. The
9 Although he testified as to other matters, Zimmerman did not refute
the statements attributed to him by Boggess
'° The health and welfare benefits in the IDCA agreement applied to
all employees represented by that Union, all supervisors at the various
stores, and to all nonrepresented employees.
RAI.EY'S, INC. 951
new benefits for the northern California employees re-
sulted in an increase in premiums of $5.52 per month for
each employee. This increase was to be paid in full by
Raley's.
Gilbert testified that Teel gave him these instructions
sometime in April-presumably after the memorandum
agreement was signed. He stated, however, that the
benefits were not instituted until the latter part of May
and were made retroactive to May I.
Teel stated that in early July he received a call from
Sordillo saying that she had been receiving questions
from employees at the various stores about the health
and welfare coverage. She asked Teel to have Gilbert
visit each store and explain the extent of the increased
benefits to the employees. Teel called Raley's labor at-
torney for advice on this matter and was told that Gil-
bert could do this, but that he should remain neutral in
the contest between the Retail Clerks and IDCA. Teel
then instructed Gilbert to contact Sordillo and arrange
to visit the stores in northern California to apprise the
employees of the updated insurance and welfare benefits.
He stated that he cautioned Gilbert not to make any
comparison with any other plan.
Gilbert testified that he contacted Sordillo and they
went to each store together to explain the update in the
health and welfare coverage. He stated that he did not
inform Sordillo that he had been told by Teel to confine
his remarks merely to an explanation of the benefits. He
further testified that it was not unusual for him to go to
the places of employment to explain the benefits to em-
ployees. He stated there were times when he did this on
request of the union or the employer involved, and he
was usually accompanied by a representative from man-
agement, the union, or both.
Gilbert further testified that on his visits to Raley's
stores with Sordillo he merely informed the employees
of the new benefits they would now receive under the
updated insurance coverage. He passed out a list to the
employees showing the schedule of benefits provided by
the current plan. (G.C. Exh. 7.)12 He also stated that,
while he adhered to Teel's instructions, he did make a
comparison at two stores between the new coverage and
benefits offered by Retail Clerks' plans in northern Cali-
fornia. Gilbert testified that in the Pittsburg and Antioch
stores, employees specifically asked him to compare the
updated dental coverage with that provided by the
Retail Clerks in northern California, and he did so. How-
ever, he testified that he could not recall ever telling em-
ployees that the updated medical and welfare coverage
under the IDCA contract was better than that contained
in contracts negotiated by the Retail Clerks in northern
California.
" Teel testified that, although Raley's management had decided to
adopt a neutral position in the struggle between the Retail Clerks and
IDCA. it favored the IDCA as the collective-bargaining representative of
its employees.
"2 Gilbert stated there as normally a 3-to-4-month timelag between
the effective date of the insurance coverage and the actual printing up of
a certificate booklet containing full explanations of the coverage by his
home office Cenificate booklets were subsequently printed up and pro-
vided to Raley's by his home office for distribution to the employees.
(G.C. Exh 5)
The testimony of several employee witnesses who at-
tended these meetings with Gilbert and Sordillo differs
somewhat from that of Gilbert. Ola Helzen, a clerk at
Store No. 59, testified that on July 9 she was called from
the sales floor by the store manager and told to attend a
meeting between employees and Gilbert. She stated that
Norm Galonka, the assistant manager, also attended this
meeting. According to Helzen, Sordillo introduced Gil-
bert to the employees and he explained the improve-
ments in their insurance coverage Helzen stated that on
two occasions, Gilbert told the employees that the bene-
fits they were now receiving were superior to those ne-
gotiated by the Retail Clerks in northern California. She
also testified that she did not recall ever hearing Gilbert
say the improved benefits were the result of negotiations
between Raley's and the Retail Clerks in Nevada.
Louritt also testified regarding a meeting with Gilbert
in Store No. 59. She stated that the store manager set up
chairs in the back room and instructed the employees to
attend the meeting. The managers also attended because
as salaried employees they were covered by the same in-
surance program. While Louritt corroborates Helzen's
testimony that Sordillo introduced Gilbert to the em-
ployees, she recalled that Gilbert said the new benefits
were as good as the benefits offered by the Retail Clerks
in northern California.
Mary Elliott testified concerning the meeting held in
Store No. 71 in Carmichael. According to Elliott, on
July 30 Gilbert appeared at the store and spoke with the
employees in the warehouse area. Gilbert told the em-
ployees of the increased insurance benefits they would
now receive and that the benefits were retroactive to
May 1. He handed the employees a list setting forth the
benefits (G. C. Exh. 3). At no time, however, during her
testimony regarding this meeting, did Elliott state that
Gilbert compared the new benefits with those offered by
the Retail Clerks in northern California.
D. The Enforcement of Raleys .Vo-Solicitation Rule
James Teel testified that Raley's had a no-solicitation
rule in effect in its stores for at least 30 years. Teel stated
that this rule was never reduced to writing, but that
Raley's had always enforced it. Under this rule, solicita-
tions could not be made of employees while working,
but had to take place outside the store on their own
time. Robert Teel, brother of James and supervisor of
the drug centers, testified that in June he went to James
and informed him that a number of the managers were
asking questions about their role in the election cam-
paign. He suggested that top management meet with the
store managers to establish Raley's official policy on the
election. As a result, Raley's attorney met with the man-
agers and supervisors and instructed them to adopt a role
of neutrality between the competing Unions. The manag-
ers were told to enforce the no-solicitation rule against
all campaigning in the stores. James Teel testified that
Raley's decided to treat the representatives of the Retail
Clerks as "outside solicitors" and require them to meet
with employees outside the stores on the employees' own
time. Regarding the IDCA, Teel stated that the manag-
ers were told that the representatives of that Union had a
952 I) CISI()NS ():OF NA I()NAI IAB()R RLATIONS 13BOARD
right to come into the stores to administer and enlforce
the terms of the collective-bargaining agreement so long
as they did not interfere with employees while working.
However, according to Teel, the managers were also
told that, if they observed the IDCA representatives
campaigning among the employees, they were to enforce
the no-solicitation rule against them as they would
against any representative of the Retail Clerks.
The testimony of several employee witnesses, howev-
er, indicates that IDCA representatives campaigned ex-
tensively in the stores. Louritt testified that on July 9
(the day of the meeting with Sordillo and Gilbert) Sor-
dillo came into Store No. 59 and spoke with her while
she was working at the cosmetic counter. Sordillo was
accompanied by Joann Schuster, vice president of
IDCA, and another woman. According to Louritt, Sor-
dillo introduced Schuster to her and identified the other
woman as a cosmetician from Raley's Freeport store. :1
Louritt testified that Sordillo asked how the employees
felt about the Unions. Sordillo replied she did not know
and would make up her own mind. Schuster then told
Louritt the Retail Clerks would promise the employees
anything but would settle for far less. Louritt disagreed
with this statement and said the Retail Clerks would
have to negotiate terms and come back to the employees
for approval. According to l.ouritt, the conversation
with Sordillo and Schuster lasted for approximately 15
minutes. Sara Morris, another clerk at Store No. 59, was
the IDCA steward for that store. Morris testified that in
the past she had always made contact with Sordillo by
telephone regarding employee problems at the store. 14
She stated that in late June or early July Sordillo came
into the store accompanied by her husband and another
person. Sordillo told Morris that she had come to take
her out to lunch and that it might run overtime. Morris
told Sordillo to get permission from the manager (Spur-
geon) in charge at the time. They went to Spurgeon and
Sordillo told him she was taking Morris out to lunch and
that it might run overtime. Spurgeon gave them permis-
sion to do so. Morris clocked out and they went to
lunch. While there, Sordillo asked Morris how a major-
ity of the employees in the store felt about the Retail
Clerks. Morris replied that the employees were not satis-
fied with the representation they had been getting from
the IDCA. They then proceeded to discuss the election
campaign in general and Morris stated that there was no
discussion regarding any specific employee complaint or
matters involving contract administration. The meeting
lasted 1-1/2 hours although Morris was only permitted I
hour for lunch. Morris testified that when she returned
to work nothing was said to her by anyone from man-
agement nor were her wages docked because she had
taken an extended lunch hour.
Teresa Baker, an employee at Store No. 59, testified
that in late July Jack Oie, president of IDCA, accompa-
nied by Schuster, came into the store and told her and a
I.ouritt tated that, prior to this encounter. she had nes er talked
with Sordillo in the store She stated her o(nly contacIs ith Sordillo
were at IDCA meetings away from the store.
4 Morris stated Ihat during her term as seward she had never filed a
written grievance Morris gaec up her steward's position in September
1979.
coworker (Ron Forkner) that the union representatives
wanted to take them out for coffee. Oie went over to
Assistant Manager Galonka and received permission for
the employees to leave. Baker testified that she did not
clock out and they went to a nearby coffeeshop. There
Oie told the employees that IDCA would get them a 10-
percent wage increase but that the Retail Clerks would
settle for a "sweetheart contract." He also told the em-
ployees that under the Retail Clerks the older employees
would lose their pensions. This meeting between the em-
ployees and the IDCA representatives lasted for an hour.
Baker testified that when she returned to her work sta-
tion nothing was said about her absence by the assistant
manager nor was her pay docked for being away from
the store.
Melody Wroblewski, a pharmacy clerk at Store No. 69
(Auburn), testified that in late July, Sordillo had a con-
versation with her in the pharmacy area about the pend-
ing election. Sordillo asked the employee if the Retail
Clerks had been in to see her. She also asked what
Wroblewski thought about the IDCA and the Retail
Clerks. Wroblewski replied that she wanted to hear both
sides before making up her mind. Wroblewski further
testified that in early August Schuster came into the
pharmacy area of her store and asked Wroblewski how
she intended to vote. At no time during these conversa-
tions with Sordillo or Schuster did any of her supervi-
sors or managers speak to her about conversing with the
IDCA representatives while on duty.
Cindy Gesinger, another drug clerk at Store No. 59,
stated that in late July or early August, Oie and Schuster
came up to her in the camera department. They asked
Gesinger to go out to have coffee with them. Gesinger
responded that she was not scheduled for a break and
Oie stated that it was all right because "they" [manage-
ment] knew the union representatives were in the store.
Gesinger testified that she left with Oie and Schuster
without requesting permission from her manager. At the
coffeeshop, Oie told Gesinger that if the Retail Clerks
won it would sign a "sweetheart contract." He also
stated that if the Retail Clerks won the election Raley's
would tie it up in court for 2 years and the employees'
wages would be frozen. The conversation between the
IDCA representatives and Gesinger lasted for approxi-
mately a half hour. Gesinger testified that when she re-
turned to the store she was never questioned about her
absence. Gesinger further testified that on August 15-
the day before the election-Oie came into the stock-
room of the store where she was working. He gave Ge-
singer a pamphlet purportedly stating the "truth" about
the Retail Clerks and urging support for the IDCA.
(G.C. Exh. 6.) Gesinger testified that Oie also posted a
copy of the document on the employees' bulletin board.
Stermer from Store No. 63 testified that on August 13
Oie and Schuster came into her store and spoke with her
in the back room while she was getting stock. Schuster
introduced Stermer to Oie as the new "third man" of the
store. ' Oie asked Stermer if she had been invited by the
I: Sternier as to receive a promnolionl as [he econd assistant manager
inl he store All second assistant managers wcre commonly referred to by
Ihe employees as the "third man" in charge of the store
RALEYS, INC 9 3
clerks to play racketball and also if she knew how a co-
worker was going to vote in the election. Stermer indi-
cated that she did not know the information sought by
Oie. According to Stermer, 2 days later, Oie spoke to
her on the drug floor and gave her several copies of the
so-called "truth pamphlet" to distribute to the other em-
ployees. He told Stermer that IDCA had to win the
election.
Wroblewski of Store No. 69 also testified about an en-
counter she had with an organizer of the Retail Clerks at
her store. Wroblewski stated that in mid-July a Retail
Clerks' organizer (Greg Cory) came into the store to talk
with employees. He asked Wroblewski if he could speak
with her after work and she agreed. Approximately 10
minutes thereafter, Assistant Manager Russ Hicks came
over to Wroblewski and asked if Cory was connected
with the Retail Clerks. When Wroblewski responded he
was, Hicks told her she was not to talk to union organiz-
ers on company time. Wroblewski testified that on an-
other occasion, Cory again came to the store and spoke
with her. She stated that Hicks came up to her and asked
what Cory wanted and she replied that he wanted to
talk. According to Wroblewski, Hicks stated that, if
Cory kept coming in and talking with her, he would
have to report the situation to the store manager.
Oie and Sordillo testified regarding their conduct
during the election campaign. Oie was the pharmacist at
Store No. 71 and Sordillo was a full-time employee at
another store. 16 Sordillo testified that when the petition
was filed by the Retail Clerks she took an unpaid leave
of absence for 2 months with an option to extend it if
needed. Oie and Schuster took unpaid leave on a day-to-
day basis as they saw fit during the election campaign.
Oie acknowledged that he frequently spoke to employ-
ees at various stores about the pending election. He as-
serts, however, that he always deceived management
into believing that he was dealing with employee com-
plaints or administering contract problems. He further
stated that when he passed out leaflets to Gesinger and
Stermer the store managers were unaware of his activi-
ties. He also testified that Assistant Manager Galonka
became angry with him when he kept employees Baker
and Forkner out to coffee for an extended period of
time. He stated that he lied to Gesinger when he indicat-
ed to the employee that management knew he was in the
store and gave him permission to take her out on an un-
scheduled coffeebreak.
Sordillo testified that several store managers gave her
a "hard time" when she visited the stores. She asserted
they wanted to be certain she was in the store for pur-
poses of administering the contract and not for cam-
paigning among the employees.
E. The Transfer of Elliott
As previously noted, Elliott worked as a pharmacy
technician in Store No. 71 in Carmichael and was a chief
supporter of the Retail Clerks. Alonzo Moore was the
head pharmacist at Store No. 71 and Oie worked there
as a pharmacist.
'6 Schuster was also a full-time employee at one of Rale's sltorcs
Elliott testified that, prior to the campaign of the
Retail Clerks, she and Oie enjoyed a good relationship.
On one occasion during the Christmas season in 1978,
Elliott was short of funds and Oie loaned her $400. At
the time of the hearing, Elliott had repaid only 100 of
this amount to Oie. However, it is apparent from the tes-
timony that the outstanding indebtedness had not inter-
fered with their relationship. It was not until the advent
of the Retail Clerks' campaign that the relationship be-
tween them deteriorated from one of friendly bickering
over the relative merits of the rival Unions to one of
deep enmity.
Elliott testified that in early June she and Oie used to
"kid" each other about the campaign of the rival Unions.
She stated that in late June Oie asked her to campaign
with him at other stores for IDCA and she refused, stat-
ing she was busy. In the latter part of July, however. the
friendly nature of their rivalry changed when she and
Oie were discussing the differences between the Retail
Clerks and IDCA. According to Elliott, Oie told her
that if she did not vote for IDCA in the pending election
"it would put a strain" on their relationship.
On August 9, according to Elliott, there was a meeting
of the employees in the store regarding pension benefits.
As she was returning to the pharmacy after the meeting,
she saw one of the organizers from the Retail Clerks,
Mike Vesploi, and exchanged greetings with him. Elliott
testified that Oie observed her and told Sordillo, who
was also in the store at the time, that "guys from the
clerks were in the store." Elliott further testified that in
the pharmacy area Oie told her that he knew she was
working against him, and "[he was] going to make it so
f-king hard for [her] that it was going to be unbeliev-
able." Elliott stated that she was upset over Oie's threat
and, when Moore came in, he inquired as to what was
wrong. Elliott repeated Oie's statement to him and
Moore said, "This has gone too far." She said Moore
stated the differences between Elliott and Oie were dis-
rupting the operation of the pharmacy. He promised to
speak to Oie, who had left the pharmacy area before
Moore arrived.
Sometime over the weekend of August 12, Elliott's
apartment was broken into and ransacked. When she re-
turned to work on August 14, she told several employees
and Moore that she felt the breakin was due to the union
conflict and that Oie was involved in some manner.
During the day, Elliott met Schuster in the store.
There was an IDCA meeting scheduled for that evening
and Schuster said Elliott was not wanted at the meeting.
When Elliott reminded Schuster that she was still a
member of IDCA. Schuster replied, "The pharmacy
people stick together and we flat don't want you coming
around." Elliott reported this conversation to Moore,
who she testified later told her he ordered Schuster to
get out of the store. According to Elliott, Moore told
her to go to lunch and calm down.t8 Elliott stated that
17 Elliotl attcmpt(cd unsu:ic sfull to gain adn ltlll c ti the It)CA
mlCtilig that c',,elllilg at liical iltmotel
,, & cording I t liott's ..affiia'lt. slc asked lorc fir the .ihtca rl.o
off iand he granted her request She then Ifleft the stl anid teltephoned
ltise h ho atdvised her It calm t11 ' (izll i;lid rtrln it i, iork
RALEYS. INC 53
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when she punched back in, Moore advised her that he
had talked to the pharmacy supervisor and Elliott would
he transferred to another store.
Elliott testified that she was transferred to Store No.
52 in North Sacramento on August 20. She stated she
had to commute 15 miles from Carmichael to the store as
opposed to a 2-mile commute from her home to Store
No. 71. Elliott also stated that the store in North Sacra-
mento was an old store located in a bad part of town.
She acknowledged that since the transfer she has re-
ceived a merit wage increase and that Teel said she was
doing a good job.
Moore testified that he was aware of the breakdown of
the working relationship between Elliott and Oie after
the commencement of the organizing campaign by the
Retail Clerks. He stated that there was constant bicker-
ing in the pharmacy area between the two and it inter-
fered with customer service. Because of this, he advised
the two employees "to cool it." On August 9, according
to Moore, Elliott told him of Oie's statement as to how
hard he was going to make it for her. Moore said he
spoke to Oie and warned him not to engage in any fur-
ther such conduct toward Elliott.
After Elliott's apartment was broken into, she told
Moore she thought Oie was involved in some way.
Moore testified that he became concerned about Elliott's
accusation and telephoned Oie to advise him what Elliott
had been saying. He stated Oie denied any involvement
and became upset himself. Moore then called Flick, the
district manager, and suggested they get together to re-
solve the problem at the store.
According to Moore, Flick came to the store that
afternoon and it was decided that Flick would initiate a
transfer of one of the employees. Elliott was the likely
choice because Oie had more seniority and worked well
with Moore. In addition, according to Moore, there
were several other considerations that influenced the de-
cision to select Elliott as the one to be transferred. An-
other drug clerk with more seniority than Elliott had ex-
pressed a desire to transfer to Store No. 71. Also, the
store to which Elliott would transfer had a computer ter-
minal and he and Flick felt Elliott had the capacity to
learn this additional skill. Moore stated that, when he in-
formed Elliott of the decision to transfer her, she threat-
ened to quit. He then persuaded her not to do so by tell-
ing her the transfer provided her with an opportunity to
learn other skills (operation of the computer terminal),
which could prove valuable to her in the future.
As to Elliott's testimony about her confrontation with
Schuster that day and Moore's reaction to it, Moore as-
serted he had no recollection of Elliott being upset over
a conversation with Schuster. However, he did admit on
cross-examination that he told Schuster not to make any
trouble in the store and not to campaign during visits
there.
Flick testified that on August 14 Moore told him the
problems between Elliott and Oie were disrupting the
pharmacy. He further stated that earlier that day he had
encountered Oie accompanied by Schuster at Store No.
60, one of the stores in his district. According to Flick,
Oie related that working conditions between Elliott and
him had become strained because she had accused him of
being involved in the breakin at her apartment. Flick
said he became concerned over the situation and went to
Store No. 71 to discuss the matter with Moore. After
talking with Moore, he decided to transfer Elliott be-
cause the conflict was interfering with the operation of
the drug department of the store.
Concluding Findings
Raley's asserts that its management adopted and main-
tained a policy of neutrality during the campaign of the
Retail Clerks to unseat the IDCA as the collective-bar-
gaining representative of the unit employees. Raley's
contends that this neutral posture was announced to and
carried out by all of its managers and supervisors in the
stores, even though management preferred to have
IDCA continue to represent the employees. I find that,
contrary to this professed policy of neutrality, the record
evidence establishes that several of the store managers
engaged in conduct which made it clear to the employ-
ees that management was opposed to having them repre-
sented by the Retail Clerks. I further find that this con-
duct interfered with the right of the employees to freely
select their bargaining representative in violation of the
Act.
Elliott testified that Flick asked her views about the
Retail Clerks in May when she was discussing that
Union with other employees in the back room. Although
Flick testified that he and Elliott were in the warehouse
engaged in a general discussion about the pending elec-
tion and Elliott voluntarily expressed her preference for
the Retail Clerks, I do not credit him in this regard. El-
liott impressed me as forthright and candid in her testi-
mony, and I find her account of this particular incident
to be more reliable than the testimony given by Flick.
Therefore, I find that Elliott responded to a specific
question put to her by Flick. It is evident from the testi-
mony of both Elliott and Flick that Elliott had no hesi-
tancy in expressing her views nor did her relationship
with Flick change thereafter. However, the absence of
fear on the part of an employee when responding to a
question about union preference is not the test by which
to judge such inquiries by a supervisor. Flick was the
store manager at the time he spoke with Elliott and there
was no justification for his inquiry. Nor did he give the
employee any assurances at the time that she would not
experience any reprisals if she chose to respond to his
question. As the Board has stated:
An employee is entitled to keep from his [or her]
employer his [or her] views concerning unions, so
that the employee may exercise a full and free
choice on the point, uninfluenced by the employer's
knowledge or suspicion about those views and the
possible reaction to the employee that his [or her]
views may stimulate in the employer. [Quemetco,
Inc., a subsidiary of RSR Corporation, 223 NLRB
470 (1976).]
Accordingly, I find that the interrogation of Elliott by
Flick regarding her views on the Retail Clerks was un-
lawful and violated Section 8(a)(1) of the Act. Cf. Laredo
Coca Cola Bottling Company, 241 NLRB 167 (1979).
RALEY'S, INC. q55
I also find the conversation between employee Stermer
and Store Manager Pine to be a violation of Section
8(a)(l) of the Act. Stermer's testimony is unrefuted that,
when Pine told her she would probably be contacted by
a representative of the Retail Clerks and she would have
to speak to that person outside the store on her own
time, she stated she was interested in what the Retail
Clerks had to say. It was at this point that Pine told the
employee she really did not want to hear from the Retail
Clerks because of "pressure and vandalism." These re-
marks were clearly intended to denigrate the Retail
Clerks in the eyes of the employee and were not mere
expressions of opinion protected by Section 8(c) of the
Act. I find, therefore, that by making these statements to
Stermer Pine was interfering with her right to freely
decide whether she wanted to be represented by a union
and, if so, which one. Accordingly, I find that by Pine's
remarks to Stermer Respondent Raley's has committed
an additional violation of Section 8(a)(l) of the Act. Cf.
Lehigh Lumber Company and Brown-Borhek Company,
230 NLRB 1122 (1977).
The testimony also establishes that at Store No. 62 in
Placerville Raley's professed neutrality was breached by
Store Manager Hegy. When employee Baggerman asked
Hegy in May why the wage scales negotiated by the
Retail Clerks were higher than the wages the employees
were receiving from Raley's, he told the employee she
could lose her job for talking to representatives of the
Retail Clerks on company time. Although Hegy testified
that Baggerman asked him if she would lose her job for
talking to union representatives at her work station, I do
not credit his testimony. As a witness, Hegy impressed
me as one shading the truth and tailoring his answers so
as to avoid any suspicion of unlawful conduct. There-
fore, where his testimony conflicts with that of Bagger-
man, or any other employee, I do not credit him. Ac-
cordingly, I find that Hegy warned Baggerman on sever-
al occasions that her employment would be in jeopardy
if she talked with representatives of the Retail Clerks on
company time.
In contrast to this, Hegy instructed Baggerman and
Richards to go to his office in mid-May while they were
on duty to meet with Sordillo to discuss any problems
they had about their insurance coverage, any questions
concerning the Retail Clerks, and any other matters they
wished to air. When Baggerman told Hegy after the
meeting that the Company had wasted 2 hours' pay for
the employees to listen about Sordillo's surgery and to
hear her talk against the Retail Clerks, Hegy took no
action whatsoever against Sordillo for campaigning
among the employees during their working hours. Thus,
his actions made it clear to the employees that he en-
dorsed Sordillo's campaigning activity.
Nor did Hegy's opposition to the Retail Clerks end
here. Several weeks before the election, Hegy stopped
Kalafatich, the employee from the grocery department of
the store, from eating his lunch with the drug clerks in
the breakroom of the drug department until after the
election was over. As explanation for this action, Hegy
told Baggerman and Richards that he did not want any
representative of the "Clerks or anyone who thinks
Retail Clerks" talking to the drug department employees.
Finally, on August 14, Hegy asked Baggerman if she
intended to go to the IDCA meeting that evening. There
was no legitimate purpose for making this inquiry other
than to further let the employee know of his preference
for the IDCA. The following day, after employee Ham-
monds had taped the meeting, Hegy permitted her to
play the tape repeatedly in the breakroom, even during
times when she was supposed to be on the sales floor.
On the basis of the above, I find that Hegy actively
sought to interfere with and restrain the drug department
employees in his store from freely exercising their right
to choose their bargaining representative and assisted and
supported the representatives of IDCA in their efforts to
persuade the employees to vote for that Union. It is basic
that such conduct is proscribed by the Act and violates
Section 8(a)(l) and (2). Samuel Liefer and Harry Os-
treicher, a Copartnership, d/b/a/ River Manor Health Re-
lated Facility, 224 NLRB 227 (1976).
Employee Louritt testified that she observed Store
Manager Sparks remove IDCA and Retail Clerks litera-
ture from the employee bulletin board in the store, make
a telephone call where he reported the journeyman rate
noted on the Retail Clerks material, and then repost only
the IDCA literature. While Sparks denied ever seeing
any material relating to the Retail Clerks posted in his
store, he never refuted Louritt's testimony regarding
making the telephone call concerning the journeyman
rate of the Retail Clerks on that occasion. I view this
omission to be deliberate and indicative of the fact that
Sparks' testimony was unreliable and unworthy of belief.
I therefore find that the incident occurred as related by
Louritt. I further find that the removal of the Retail
Clerks' literature from the employee bulletin board while
reposting that of IDCA was a conscious effort on the
part of Sparks to assist and support IDCA by removing
from employee consideration any material in the store
which might cause the employees to favor the Retail
Clerks over the incumbent union. Thus, I find that by
Sparks' actions Respondent Raley's violated Section
8(a)(2) and (1) of the Act.
Finally, Raley's claim of neutrality has been further
dispelled by the interrogation of employee Boggess by
second Assistant Manager Zimmerman at Store No. 53.
Although Zimmerman was called as a witness, none of
his testimony related to the incident described by Bog-
gess. Therefore, I credit the statements of Boggess and
find the interrogation occurred as he described. Zimmer-
man asked the employee how he intended to vote in the
election. When Boggess replied he would vote in his
own best interest, Zimmerman supported this position
and indicated his interests were best served by the Retail
Clerks because he (Zimmerman) would profit in some
way. While Zimmerman expressed support for the Retail
Clerks in this conversation, it was nevertheless unlawful.
As noted previously, employees are entitled to keep their
own union preferences and sympathies to themselves so
that they may exercise a full and free choice on whether
to select a union or not. Laredo Coca Cola Bottling Com-
pany, supra, Quemeico, Inc., supra. I find, therefore, that
Zimmerman's interrogation of Boggess was unlawful and
constituted a violation of Section 8(a)(I) of the Act.
RALEYS. INC 9
956 I)F CISI()NS ()F NA'IONAIL I.ABOR RELATIONS BO)ARD
The complaint alleges that the announcement and
granting of the increased health and welfare benefits to
the employees in July and August was for the purpose of
inducing the employees to select incumbent IDCA as
their bargaining representative and to discourage support
for the Retail Clerks. While I do not find the granting of
the increased benefits to be a violation, I do find that the
manner and the timing of the announcement of the in-
creased benefits warrants the conclusion that it was done
in this fashion so as to influence the employees when
they voted in the pending election.
It is well established in Board law that, during the
pendency of a representation election, an employer's
"legal duty in deciding whether to grant benefits . . . is
to determine that question precisely as if a union were
not in the picture." Newport Division of Wintex Knitting
Mills, Inc., 216 NLRB 1058 (1975); McCormick Longmea-
dow Stone Co., Inc., 158 NLRB 1237, 1242 (1966). It is
also well established that an announcement of the grant-
ing of increased benefits while a representation petition is
pending will be regarded as interfering with employee
freedom of choice unless the employer establishes a justi-
fiable motive for this action. Newport Division of Wintex
Knitting Mills, Inc.. supra; Colonial Knitting Corp., 187
NLRB 980 (1971); The Baltimore Catering Company, 148
NLRB 970 (1964).
In the instant case, Teel and Gilbert credibly testified
that in 1977 when Raley's decided to change its insur-
ance carrier Sordillo was called in and she and manage-
ment entered into a verbal agreement regarding the
health and welfare benefits to be applied to the northern
California employees.'" Under this arrangement, any su-
perior benefits negotiated by the Retail Clerks for
Raley's Nevada employees would be granted to the
northern California employees. Since the testimony dis-
closes that the negotiations between Raley's and the
Retail Clerks in 1979 resulted in a memorandum agree-
ment in April which gave the Nevada employees health
and welfare benefits exceeding the northern California
benefits, it was incumbent upon Raley's to change the
benefits which were to be applied to the latter group.
Because the testimony discloses that the Nevada contract
was to be retroactive to February 11 and the final agree-
ment was not executed until July 31, it is evident that
Teel arbitrarily selected May I as the date the increased
benefits would apply to the California employees. As
counsel for the Retail Clerks correctly observed, there is
no logical connection between the effective date that the
benefits would become operative in northern California
and the execution of the memorandum agreement and
the final contract with the Retail Clerks in Nevada. I do
not view this, however, as an indication of anything
other than the fact that Teel simply chose May I as the
date the benefits would apply to the California employ-
ees. The central point here, in my view, is that Raley's
had an obligation to increase the health and welfare
benefits of the California employees pursuant to the
verbal agreement with Sordillo. I therefore credit Gil-
bert's testimony that he was instructed by Teel in late
it Although General Cunsel and counsel for the Retail Clerks ques-
tioned the veracity of Gilbert and Teel concerning the verbal agreement
with Sordillo, I credit their testimony on this point.
April to change the California plan to reflect the in-
creased benefits resulting from the Nevada negotia-
tions. 20
In my judgment, the critical circumstances to be exam-
ined here are the timing and the manner in which the in-
creased benefits were announced to the employees. The
testimony of Gilbert reveals that in 1977 when Provident
Mutual took over the insurance coverage there was one
meeting at Raley's main office in Sacramento to explain
the benefits to the employees. In contrast to this, Teel in-
structed Gilbert to arrange with Sordillo to visit each of
the northern California stores to explain the increased
benefits to the employees. Furthermore, it was known at
least by mid-May that the benefits would be increased
but it was not until July and August-the period immedi-
ately preceding the election-that Gilbert and the IDCA
representatives visited the stores to announce and explain
the increases to the employees. While Gilbert and Teel
testified that Gilbert was instructed not to make compari-
sons between the increased benefits and the health and
welfare plans negotiated by the Retail Clerks in northern
California, it is evident from the testimony of the em-
ployees, which I find credible, that comparisons were in
fact made. Indeed, Gilbert admitted that in two stores
(Antioch and Pittsburg) he made a comparison of the
dental benefits in response to employees' questions. I
find, however, that he made such comparisons on other
occasions. It is also evident from the testimony that nei-
ther Gilbert nor Sordillo told the employees the in-
creases in their benefits were the result of the negotia-
tions between Raley's and the Retail Clerks for the
Nevada employees.
It is these circumstances that cause me to conclude
that Raley's seized upon the results of the Nevada nego-
tiations with the Retail Clerks as an opportunity to influ-
ence employee support for the Union it favored and to
discredit the Retail Clerks. By having Sordillo and other
IDCA representatives accompany Gilbert to each of the
stores to announce the increased benefits; by not explain-
ing to the employees why the increases were being
given; by causing the visits to be made during the period
immediately preceding the election wherein the employ-
ees would have to choose between the competing
Unions; and by comparing the increased benefits with
plans negotiated by the Retail Clerks in northern Califor-
nia, it is quite evident that Raley's was attempting to in-
fluence the employees' selection of a bargaining repre-
sentative and interfere with their freedom of choice guar-
anteed by the Act. Accordingly, I find that by this con-
duct Raley's violated Section 8(a)(1) of the Act.
V.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964);
Arrow Elastic Corporation, 230 NLRB 110 (1977), enfd.
573 F.2d 702 (Ist Cir. 1978); Essex International, Inc., 216
NLRB 575 (1975); Newport Division of Wintex Knitting
Mills, Inc., supra.
The next issue to be addressed here is Raley's enforce-
ment of its no-solicitation rule. 2 ' Teel testified that the
20 Gilbert's testimony in this regard is supported by his letter dated
May 15 sent to Raley's personnel director (GC. Exh 8
21 Although the no-solicitation rule was not in writing, I credit the tes-
tinlony of Teel and find that it had been a rule of long standing
RALEY'S. INC
managers were instructed to enforce the rule against
both Unions and there was to be no campaigning in the
stores. However, the representatives of IDCA were to
be permitted in the stores to handle employee grievances
and matters relating to the administration of the contract.
As has been noted, the application of this policy prevent-
ed representatives of the Retail Clerks from communicat-
ing with the employees in the stores but allowed the
IDCA representatives to freely campaign among the em-
ployees while they were working. Furthermore, it is
more than apparent that the IDCA campaigning in the
stores was conducted with the knowledge and consent of
the various store managers. The testimony of the wit-
nesses for both General Counsel and Raley's clearly indi-
cates that, prior to the election campaign, representatives
of IDCA rarely visited the stores more than once or
twice a year. Indeed, Morris, the IDCA steward at the
store in South Lake Tahoe, stated she dealt with Sordillo
over the telephone when there were employee problems
that required the Union's attention. In sharp contrast to
this pattern of infrequent visits, after the start of the
Retail Clerks' campaign to unseat IDCA, Sordillo.
Schuster, and Oie became frequent visitors to all of the
stores. Their presence at the stores was never questioned
by the managers. The testimony of Morris, Stermer, Ge-
singer, and Baker stands unrefuted that the store manag-
ers allowed them to take unscheduled breaks or extended
lunch hours to talk with the IDCA representatives
whenever they appeared at the stores. Although Oie and
Sordillo testified that they deliberately deceived the man-
agers by pretending to be in the stores on legitimate con-
tract business, I find their statements in this regard to be
unpersuasive. Rather, the facts warrant the inference that
they were given carte blanche authority by the managers
to freely campaign in the stores. Indeed, the credited tes-
timony of Baggerman shows that Store Manager Hegy
did not question Sordillo's conduct even after Bagger-
man put him on notice that Sordillo spent the employees'
time campaigning against the Retail Clerks. 22
Thus, I find that by threatening employees with dis-
charge or discipline if they talked with representatives of
the Retail Clerks in the store (Baggerman and Wrob-
lewski), while granting employees extended lunch hours
(Morris) and unscheduled coffeebreaks (Gesinger and
Baker) to talk to representatives of IDCA, and by failing
to question the frequency of the visits to the stores by
the IDCA representatives, even when informed by em-
ployees that the representatives were campaigning, the
managers assisted and supported that Union in seeking
employee support in the pending election. Cf. Union Bus
Terminal of Dallas, Inc., 231 NLRB 347 (1977); Glass-
master Plastics Company, 203 NLRB 944 (1973); Northern
Metal Products Company, 171 NLRB 98 (1968).
Finally there is the question of the transfer of Elliott
to another store because of the conflict between her and
Oie over the competing Unions. In my judgment, this
transfer was not for discriminatory reasons. It is apparent
from the testimony of all involved, including Elliott, that
22 1 also note at this point that, s hen Heg sent Baggerman and Rich-
ards to his office to talk with Sordillo. he told the emplosees they Deere
being sent there to discuss their medical insurance. the Retail Clerks, and
any other problems they may have had
the dispute between these two adherents of the rival
Unions had become so intense and heated that it inter-
fered with the operation of the pharmacy and resulted in
a breakdown in service to the customers. Moore, the
head pharmacist, had to intervene on several occasions
by telling the employees to "cool it" and by warning Oie
about expressing threats to Elliott. It is also evident that,
after Elliott made known her suspicions to several em-
ployees and Moore, Oie was somehow involved in the
breakin and ransacking of her apartment, the working re-
lationship between these two employees was completely
shattered. Clearly then, management had an obligation to
intervene in order to restore harmony in the pharmacy
and to protect the quality of service to its customers.
I find the explanations offered by Flick and Moore for
selecting Elliott for transfer to another store to be per-
suasive and based on sound business judgment. More-
over, I note that the transfer did not result in a demotion
for Elliott but, rather, was to a store where she could ac-
quire an additional job skill. In addition, the transfer did
not take effect until after the election and since being
transferred Elliott has received a merit pay increase.
In these circumstances, it can hardly be said that El-
liott's transfer was discriminatorily motivated. I find.
therefore, that the allegation of the complaint asserting
that Raley's transferred Elliott for unlawful reasons must
be dismissed. I further find that there is no evidence in
the record to support the allegation that O()ie or any
other IDCA representative threatened to cause or did
cause Elliott's transfer because she was a supporter of
the Retail Clerks. Therefore, this allegation against the
IDCA must likewise be dismissed.
The Objections to the Election
In light of the above findings. it follows that the objec-
tions of the Joint P'etitioners to Raley's conduct prior to
the election have merit and must be sustained. Specifical-
ly, Objection I relating to the nianner in which the in-
creased health and welfare benefits were announced to
the employees at each store must be sustained because it
is clear that this conduct was calculated to influence the
employees' choice of a collective-bargaining representa-
tive in the pending election. Arrow Elastic Corporation,
supra; N'ewport Division of Wintex Knitting Mills, Inc..
supra. Likewise, Objection 2 relating to the unfettered
solicitation of employees by representatives of IDCA in
all areas of the store during working hours while enforc-
ing the no-solicitation rule against representatives of the
Retail Clerks must be sustained. By this conduct Raley's
clearly demonstrated favoritism for the incumbent Union
and thereby interfered with the election process. River
Manor Health Related Facility, supra: Glassmaster Plastic
Company, supra.
As to Objection 3, there is no evidence in the record
to support the contention that IDCA representatives
were keeping a list of names of Retail Clerks supporters
or that they threatened these supporters with transfer to
far-distant stores after the election. Therefore, it will be
recommended that this objection be overruled.
Accordingly, it is recommended that Joint Petitioners'
Objections I and 2 be sustained, that Objection 3 be
957
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overruled, and finally that a new election be conducted
after the unfair labor practices found herein have been
remedied in the required fashion.
CONCI.USIONS OF LAW
1. Respondent Raley's is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Independent Drug Clerks Association and Retail
Clerks Union, Locals 373, 588, and 1179, affiliated with
the United Food and Commercial Workers International
Union, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By unlawfully interrogating employees about their
union membership, sympathies, and activities, Respond-
ent Raley's has violated Section 8(a)(1) of the Act.
4. By threatening employees with discharge or disci-
pline if they spoke to representatives of the Retail Clerks
on company time while allowing representatives of
IDCA to freely campaign among the employees in all
areas of the stores, Respondent Raley's has violated Sec-
tion 8(a)(l) and (2) of the Act.
5. By unlawfully announcing the granting of increased
health and welfare benefits in order to induce the em-
ployees to select the incumbent IDCA as their bargain-
ing representative and to discourage employee support
for the Retail Clerks, Respondent Raley's violated Sec-
tion 8(a)(1) and (2) of the Act.
6. By removing campaign literature of the Retail
Clerks from the employees' bulletin board while allow-
ing literature from the incumbent IDCA to remain
posted, Respondent Raley's has violated Section 8(a)(2)
and (1) of the Act.
7. Respondent Raley's did not violate Section 8(a)(l)
and (3) of the Act by transferring employee Mary Elliott
to another store.
8. The record evidence does not establish that Re-
spondent Independent Drug Clerks Association violated
Section 8(b)(1) or 8(b)(2) of the Act.
9. The above are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent Raley's has engaged in
certain unfair labor practices within the meaning of Sec-
tion 8(a)(l) and (2) of the Act, it shall be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. It
shall also be recommended that the election held on
August 16. 1979, be set aside and that Case 20-RC-14833
be remanded to the Regional Director for Region 20 for
the purposes of conducting a new election at such time
as it is deemed the circumstances will permit a free
choice of a bargaining representative.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 2 :
The Respondent, Raley's, Inc., Sacramento, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees about their
union membership, sympathies, or activities.
(b) Threatening employees with discharge or discipline
if they speak to representatives of the Retail Clerks while
at the same time allowing representatives of IDCA to
freely campaign among the employees in all areas of its
stores.
(c) Unlawfully announcing the granting of increased
benefits to employees in order to induce them to select
the incumbent IDCA as their bargaining representative
and to discourage support for the Retail Clerks.
(d) Removing campaign literature of the Retail Clerks
from employees' bulletin boards while allowing cam-
paign literature of the IDCA to remain posted.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its northern California drugstores and drug
centers copies of the attached notice marked "Appen-
dix."2 4 Copies of said notice on forms provided by the
Regional Director for Region 20, after being duly signed
by Respondent Raley's authorized representative, shall
be conspicuously posted at the facilities indicated above
immediately upon receipt thereof, and be maintained by
it for consecutive days thereafter, in places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I1 is FURTrIER ORI)EIREI) that the allegations of unlaw-
ful conduct in the consolidated complaint not specifically
found herein be dismissed.
II IS RCOMIN)EI) that Joint Petitioners' Objections
I and 2 be sustained and Objection 3 be overruled.
I I' is FURTHIR R.COMM NDII)D that the election con-
ducted on August 16, 1979, be set aside and a rerun elec-
tion conducted at a time deemed appropriate by the Re-
gional Director for Region 20.
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