Red Food Store

National Labor Relations Board - Board Decisions

Sep 11, 1980

252 N.L.R.B. 116 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Red Food Store and Anna B. Guthrie. Case 10-CA-
13567
September 11, 1980
DECISION AND ORDER
On June 13, 1980, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in response.
The Board has considered the attached Decision
in light of the exceptions and briefs and has decid-
ed to affirm the rulings, findings, and conclusions
of the Administrative Law Judge, except as noted
below, and to adopt his recommended order, as
modified herein. '
The Administrative Law Judge concluded that
Respondent did not violate Section 8(a)(l) of the
Act by asking its employees whether they had
signed union cards. We find merit in the General
Counsel's exceptions to this conclusion.
On March 4, 1980, Store Manager Holley and
Assistant Store Manager West called a meeting of
the 30 employees at Respondent's LaFayette,
Georgia, store. During this meeting, Holley told
the employees that a unionized competitor,
Bruno's, was trying to get the Union into Respond-
ent, recounted incidents of violence during a previ-
ous organizational campaign, said Respondent
would not hire anyone who had worked for a
unionized store, and asked the employees to report
the presence of any Bruno's employees so that Re-
spondent could take action against their activity.2
According to the uncontradicted and credited testi-
mony of Anna Guthrie, in the middle of this meet-
ing West asked "if anyone had signed Union
cards," and, in response, "[s]ome of the boys shook
their head no."
The Administrative Law Judge, in dismissing the
allegation that Respondent coercively interrogated
the employees, relied, inter alia, on his finding that
there was no coercion inherent in West's single
question and that it did not appear any of the em-
ployees would have seriously thought they were
required to respond to it. Contrary to the Adminis-
trative Law Judge, we find that in the context of a
meeting attended by all employees during which
Respondent expressed its intent to prevent union
I The Administrative Law Judge recommended that Respondent be or-
dered to post notices at six of its stores. Since the unfair labor practices
found herein occurred only at Respondent's LaFayette, Georgia, store
and absent special circumstances warranting a broader posting, we shall
amend his recommended Order to limit posting to that location.
2 The Administrative Law Judge found, and we agree, that the latter
request constituted coercive solicitation to report the activities of suspect-
ed union organizers in violation of Sec. 8(aXI) of the Act.
252 NLRB No. 23
organization by indicating, inter alia, it would not
hire anyone who had worked for a unionized store,
and also violated Section 8(a)(1) of the Act by so-
liciting employees to report the activities of sus-
pected union organizers, West's remark constitutes
coercive interrogation. Furthermore, we note that,
although the Administrative Law Judge speculated
that the employees did not feel they were required
to respond to West's question, he also found that
several employees did respond. Accordingly, we
find Respondent violated Section 8(a)(1) of the Act
by coercively interrogating employees by asking
whether they had signed union cards. Finally, al-
though not specifically alleged in the complaint,
we find that Holley's statement that he would not
hire anyone who had worked at a unionized store
constituted an unlawful threat in violation of Sec-
tion 8(a)(1) of the Act. 3
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 3:
"3. By coercively soliciting employees to report
the activities of other employees suspected of being
union organizers, coercively interrogating employ-
ees by asking them whether they had signed union
cards, and by stating that it would not hire anyone
who had worked in a unionized store, on March 4,
1978, Respondent violated Section 8(a)(l) of the
Act."
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,
Red Food Store, LaFayette, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraphs l(b) and (c)
and reletter the subsequent paragraph accordingly:
"(b) Interrogating its employees by asking them
whether they have signed union cards.
"(c) Stating that it will not hire anyone who has
worked in a unionized store."
2. Substitute the following for paragraph 2(a):
"(a) Post at its place of business in LaFayette,
Georgia, copies of the attached notice marked
"Appendix." 2 1 Copies of said notice, on forms pro-
vided by the Regional Director for Region 10,
after being duly signed by Respondent's representa-
3 See, generally, Crown Zellerbach Corporation, 225 NLRB 911, 912
(1976).
116
RED FOOD STORE
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other materi-
al."
3. Substitute the attached notice for that of the
Administrative Law Judge.
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.
WE WILL NOT coercively solicit our em-
ployees to report to us the presence in our
stores of other employees thought to be union
organizers.
WE WILL NOT interrogate our employees by
asking them whether they have signed union
cards.
WE WILL NOT state that we will not hire
anyone who has worked in a unionized store.
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 Act.
RED FOOD STORE
DECISION
BERNARD RIES, Administrative Law Judge: This
matter was heard in Chattanooga, Tennessee, on January
21-22, 1980. The complaint alleges that at six of Re-
spondent's stores ' in Georgia and Tennessee, Respond-
ent violated the Act by virtue of certain conduct direct-
ed not only at its own employees, but at employees of
Mayfield Dairy Farms, Inc., a separate and independent
employer.
Briefs have been received from counsel for the Gener-
al Counsel and counsel for Respondent. On the basis of
the entire record 2 and the briefs, I make the following
findings and conclusions. 3
1. THE SECTION 10(B) ISSUE
At the hearing, Respondent moved to dismiss most of
the allegations of the complaint on the ground that the
charge filed in the case did not support those allegations.
I reserved ruling on the motion. Respondent has re-
newed the motion in its brief to me.
The charge upon which the complaint is predicated
was filed on April 3, 1978, by Anna B. Guthrie. The
"Employer Against Whom Charge Is Brought" is shown
on the form as "Red Food Store," with an address of
"N. Main Street, LaFayette, Georgia 0728," at which the
"Number Of Workers Employed" is "Approx. 40." The
charge form states that the "above-named employer" has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act. The section entitled
"Basic [sic] of the Charge" reads: "The Employer, in
order to discourage membership in a labor organization,
discriminate in regard to the hire and tenure of employ-
ment and to the terms and conditions of employment of
Anna B. Guthrie, on or about and after March 9, 1978."
At the bottom of this section of the form appear the
printed words, "By the above and other acts, the above-
named employer has interfered with, restrained, and co-
erced employees in the exercise of the rights guaranteed
in Section 7 of the Act." While this is the language of
Section 8(a)(1), that section is not expressly mentioned.
The transcript of hearing shows that Guthrie believed
that she was discharged for some reason relating to an
organizing campaign by Retail Clerk's Local Union 1557
at the store at which she worked as a cashier. By letter
of May 16, 1978, however, the Regional Director for
Region 10 told Guthrie that it did not appear that "fur-
ther proceedings are warranted on the allegation that
you were discharged in violation of Section 8(a)(3) of
the Act." While he refused to issue complaint on that al-
legation, the Regional Director added, "This decision in
no way affects the remaining Section 8(a)(1) allegations."
On June 2, 1978, the Regional Director issued the
complaint in this case. The complaint contains two alle-
gations relating to the LaFayette, Georgia, store, at
which Guthrie had worked. The record shows that these
I Although Respondent's correct name is probably "Red Food Stores"
or "Red Food Stores, Inc.,-" I shall, in the absence of a motion to amend,
leave the caption as it is styled in the complaint.
2 Certain errors in the transcript have been noted and corrected.
a The answer to the complaint, as amended, admits that Respondent is
an employer engaged in commerce within the meaning of the Act. I con-
sider it appropriate for the Board to assert jurisdiction here. The answer
further concedes that "Retail Clerk's [sicl Local Union 1557" and Team-
sters Local Union 515, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor
organizations within the meaning of the statute
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations-pertaining to solicitation of Red Food Store
employees to report union activities of their fellow em-
ployees and unlawful interrogation of Red Food Store
employees-are based on a speech made by the La-
Fayette store manager on March 4, 1978. The remaining
20 substantive allegations of the complaint refer to con-
duct by managers at 5 other Red Food Stores in Tennes-
see and Georgia directed against employees of Mayfield
Dairy Farms, Inc., an independent supplier which fur-
nishes milk and other dairy products to Respondent at
the stores involved.
The record discloses that on February 7, 1978, Team-
sters Local Union 515 filed a petition to represent the
Mayfield Dairy drivers located at Mayfield's distribution
branch in Chattanooga. Testimony reveals that sometime
in February Respondent held a meeting of its store man-
agers and supervisors at which Don Blevins, president
and chairman of the board of Red Food Stores, was the
presiding officer. At this meeting, the supervisors were
told that the Retail Clerks and the Teamsters were both
conducting organizational campaigns, the former at Red
Food Stores and the latter at Mayfield Dairy. The super-
visors were told that if they didn't "have the guts to
fight the Union to get up and leave the room." They
were instructed to "bird-dog" anyone attempting to pass
out cards in the grocery stores, to retrieve any cards
from the employees, and to inform the office and the
other stores of such activity. They were told that if they
suspected that some employees favored the Union, those
employees should be eliminated. They were told to
notify their employees that, if the Union were selected,
Respondent would have to "cut back on our help" and
some people would lose their jobs. They were further in-
structed to tell the Mayfield drivers, as they came into
the grocery stores, "to take a look at what had happened
to Holsum Bread Company, their shelf space, and to tell
them that if they went union that their space would be
cut, that they'd sell very few products in our stores."
The evidence shows that after this meeting various
Red Food Store managers did in fact solicit Mayfield
drivers to withdraw their support from the Teamsters,
threatened them with a reduction of display space for
their products, questioned them about their interest in
the Teamsters, and apparently reduced space at certain
of the stores.4 This conduct is alleged to violate, various-
ly, Section 8(a)(3) and (1) of the Act.
Respondent contends that the complaint issued by the
Regional Director, insofar as it alleges unlawful conduct
by Red Food managers addressed to Mayfield Dairy em-
ployees, departed so drastically from the charge filed by
Guthrie alleging that her dismissal was caused by her ac-
tivities on behalf of the Retail Clerks campaign at the
LaFayette store, that a fatal variance exists between the
charge and the complaint. s After reviewing the authori-
4 Two former managers of Respondent's stores testified on behalf of
the General Counsel at the hearing, as did several Mayfield drivers. Re-
spondent presented no testimony to contradict that given in the General
Counsel's case-in-chief. I found no reason to disbelieve any of the uncon-
tradicted testimony given by the witnesses for the General Counsel.
b Respondent also argues that an employer is legally incapable of com-
mitting unfair labor practices against employees who are neither his own
employees nor under his control. The complaint allegations relating to
the Mayfield employees are founded on the seminal case of Fabric Serv-
ties in a vain attempt to isolate a clear set of principles
applicable to this subject, I must say that I am in full
agreement with then Judge John Paul Stevens, who
stated, in his dissent in N.L.R.B. v. Braswell Motor
Freight Lines, Inc., 486 F.2d 743, 748 (7th Cir. 1973),
"Exactly when one alleged unfair labor practice should
be considered sufficiently related to another to permit
one charge to support two Board complaints-or per-
haps I should say two counts in one complaint-is un-
clear."
Section 10(b) of the Act reads, in pertinent part:
Whenever it is charged that any person has en-
gaged in or is engaging in any such unfair labor
practice, the Board, or any agent or agency desig-
nated by the Board for such purposes, shall have
power to issue and cause to be served upon such
person a complaint stating the charges in that re-
spect, and containing a notice of hearing before the
Board or a member thereof, or before a designated
agent or agency, at a place therein fixed, not less
than five days after the serving of said complaint:
Provided, That no complaint shall issue based upon
any unfair labor practice occurring more than six
months prior to the filing of the charge with the
Board and the service of a copy thereof upon the
person against whom such charge is made ....
The requirement that the Board act only upon a
charge filed with it, as opposed to granting the Board a
roving commission to investigate possible unfair labor
practices, may be said to have been a reasoned and delib-
erate decision by the Congress, or at least part of it,
when the Wagner Act was enacted in 1935. The legisla-
tive history shows that S. 1958, the Senate bill which
eventually was enacted, originally began, in the counter-
part of Section 10(b) "Whenever there is a charge or the
ices. Inc., 190 NLRB 540 (1971). In that case, then Trial Examiner Arthur
Leff held that the respondent employer violated Sec. 8(aXl) by refusing
to permit a nonemployee repairman to wear a union emblem on the em-
ployer's premises. After careful analysis of the statute and relevant au-
thorities, the Trial Examiner concluded that because the stranger employ-
er "was in a position of sufficient control effectively to enforce its direc-
tion" to the offending stranger employee, its conduct constituted interfer-
ence with, and restraint of, the employee's protected activity, in violation
of Sec. 8(a)(l). In so holding, the Trial Examiner distinguished Local 'o.
447, United Association of Journeymen and Apprentices (Malbaff Landscape
Construction Co.), 172 NLRB 128, 129 (1968), which concluded that an
employer could not violate Sec. 8(a)(3) "by ceasing to do business with
another employer because of the union or nonunion activity of the lat-
ter's employees."
In view of my conclusion that Respondent's motion to dismiss should
be granted, I need not reach the question of where Malbaff leaves the
8(aX3) allegations contained in the present complaint. I do note that Dews
Construction Corp., 231 NLRB 182, fn. 4 (1977), approved a finding that a
stranger employer violated Sec. 8(a)(3) by causing the discharge of an-
other employer's employee based on his union activities; in so holding,
the Board cited, with apparent approval, both Fabric Services and Mal-
baff In A. M. Steigerwald Co., 236 NLRB 1512, 1515 (1978), the Board
also found a nonemployer credit union guilty of maintaining a bylaw dis-
criminative against organized employees, although the violation found
was limited to Sec. 8(a)(1).
Similarly, I also note, but need not consider here, the question of the
extent to which such conduct as interrogation and solicitation to with-
draw union support has coercive impact when directed against employees
by supervisors who are not their own
118
RED FOOD STORE
Board shall have reason to believe .... " I Leg. Hist.
1301. When the Senate Committee on Education and
Labor reported the bill out on May 1, 1935, the "reason
to believe" language had been deleted and the present
language substituted therefor. II Leg. Hist. 2292.6
The Board and the courts have viewed with some lib-
erality the statutory requirement that complaint allega-
tions be bottomed on a charge. As expressed by the Su-
preme Court in N.L.R.B. v. Fant Milling Co., 360 U.S.
301, 307-308 (1959):
A charge filed with the Labor Board is not to be
measured by the standards applicable to a pleading
in a private lawsuit. Its purpose is merely to set in
motion the machinery of an inquiry. N.L.R.B. v. I.
& M. Electric Co., 318 U.S. 9, 18. The responsibility
of making that inquiry, and of framing the issues in
the case, is one that Congress has imposed upon the
Board, not the Charging Party. To confine the
Board in its inquiry and in framing the complaint to
the specific matters alleged in the charge would
reduce the statutory machinery to a vehicle for the
vindication of private rights. This would be alien to
the basic purpose of the Act. The Board was cre-
ated not to adjudicate private controversies but to
advance the public interest in eliminating obstruc-
tions to interstate commerce, as this Court has rec-
ognized from the beginning.
The Court went on to hold that, with respect to viola-
tions occurring after a charge has been filed, no further
charge need be filed in order for the General Counsel to
include such violations in a complaint, so long as the
added allegations are unfair labor practices "which are
related to those alleged in the charge and which grow
out of them while the proceeding is pending before the
Board." The Court cautioned, however, that "[w]hat has
been said is not to imply that the Board is, in the words
of the court of appeals, to be left "carte blanche to
expand the charge as they might please, or to ignore it
all together." Id. at 309.
As noted by the court in N.L.R.B. v. Kohler Company,
220 F.2d 3, 6, 7 (7th Cir. 1955), some early cases held
that, "because Section 10(b) gives the Board the power
to issue a complaint only after a charge has been filed,
the Board's complaint must be limited to the allegations
of the charge," but "the courts then began to interpret
Section 10(b) as requiring something less than exact simi-
larity between charge and complaint." The problem of
constructing a standard which describes the permissible
"something less"-but not too much less-than "exact
similarity between charge and complaint" has not been
easy to resolve. Some of the earlier court cases, cited by
the Court in Kohler Company, supra, 220 F.2d at 6, al-
lowed any specific allegations in the complaint which
6 The only reference I have been able to find in the testimony before
the Committee on this point was given by William H. Davis, a repre-
sentative of the Twentieth Century Fund, Inc., at a hearing on April 1,
1935 In passing. Davis said that he would "go very far in the direction
of limiting the powers of this board to initiate the investigation. I am not
sure that I would limit it absolutely to questions where complaints had
been filed, because there is always the difficulty of getting an employee
to file a written complaint." I Leg. Hist. 2095.
were of "the same general nature" as the matter asserted
in the charge. In the Kohler case itself, the court stated
(220 F.2d at 7):
There must be some relationship between charge
and complaint, however. Section 10(b) makes the
filing of a complaint contingent upon the existence
of a charge, and it has been consistently held that
the Board can not initiate a complaint on its own
motion. N.L.R.B. v. National Licorice Co., 2 Cir.,
104 F.2d 655, affirmed 309 U.S. 350, 60 S.Ct. 569,
84 L.Ed. 799. So long as the Board entered the con-
troversy pursuant to a formal charge, it may allege
whatever it finds to be a part of that controversy.
But if it gets so completely outside of the situation
which gave rise to the charge that it may be said to
be initiating the proceeding on its own motion, then
the complaint should fall as not supported by the
charge.
The court went on to hold that charges which accused
the employer of unlawfully discharging certain employ-
ees properly supported allegations in the complaint set-
ting out certain statements made to employees in viola-
tion of the Act. While these were "totally different kinds
of acts," they were "done during a common endeavor
for a single purpose." Id. at 7.
In N.L.R.B. v. Dinion Coil Co., Inc., 201 F.2d 484, 491
(2d Cir. 1952), a case frequently cited, the court summa-
rized its position on the question:
If a charge was filed and served within six months
after the violations alleged in the charge, the com-
plaint (or amended complaint), although filed after
the six months, may allege violations not alleged in
the charge if (a) they are closely related to the vio-
lations named in the charge, and (b) occurred
within six months before the filing of the charge.
The "closely related" test often recurs in the cases, and
the Board has frequently made use of it. See, e.g., North
Country Motors, Ltd., 133 NLRB 1479, 1480, fn. 3 (1961);
Sunrise Manor Nursing Home, 199 NLRB 1120, 1121
(1972); Pennco, Inc., 212 NLRB 677 (1974). At other
times, the Board seems to have settled for a less-than-
"close" relationship between the charge and the com-
plaint allegations. Stokely-Van Camp, Inc., 130 NLRB
869, 872 (1961) ("Since a charge must be filed before any
complaint may issue, some relationship is required be-
tween the charge and the complaint."); Triboro Carting
Corporation, 117 NLRB 775 (1957). ("[S]ome relationship
is required between the charge and allegations of the
complaint.") In N.L.R.B. v. Central Power & Light Com-
pany, 425 F.2d 1318 (5th Cir. 1970), enfg. 173 NLRB 287
(1968), the court appeared to disapprove the "closely re-
lated" doctrine of Dinion Coil. supra, saying that it "does
not seem to be in keeping with the purpose of the
charge-complaint procedure." The court went on to say,
"The relationship need be close enough only to negate
the possibility that the Board is proceeding on its own
initiative rather than pursuant to a charge." 425 F.2d at
1321, fn. 3. At the same time, however, the court seemed
119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to adopt the principle of prior cited cases that "sufficient
relation has generally been found between acts that are
part of the same course of conduct, such as a single cam-
paign against a union." Id. at 1320. The difference be-
tween that test and the "closely related" standard is not
entirely clear.7
It should be noted that a determination that a com-
plaint allegation is sufficiently related to the charge,
whichever standard-"closely related," "some relation-
ship" "close enough to negate the possibility that the
Board is proceeding on its own initiative," "a part of that
controversy," or whatever-is applied, will resolve not
only the question of whether the Board is acting pursu-
ant to the mandate that its machinery be triggered from
outside the agency, but also whether the 6-month statute
of limitation of Section 10(b) has been satisfied. It is now
quite clear that a charge which specifically alleges that a
certain employee was discharged because of his partici-
pation in a union organizational campaign will support
allegations of similar discriminatory conduct uncovered
during the investigation of that charge, even though the
amended charge and/or the complaint may not come to
the attention of the employer until more than 6 months
after the conduct is added to the charge or the com-
plaint. 8
In the Dinion Coil case, for example, where the charge
alleged unlawful discharges on a certain date, the Gener-
al Counsel was allowed to amend the complaint at the
hearing to allege two discharges occurring during the
same week as the discharges originally complained of but
some 7 months before the amendment was filed. Accord,
Cathey Lumber Company, 86 NLRB 157 (1949), enfd. 185
F.2d 1021 (5th Cir. 1951), enforcement denied on rehear-
ing on another ground 189 F.2d 428 (5th Cir. 1951),
where the complaint, which issued more than 6 months
after the discharges, alleged 17 additional discharges not
mentioned in the charge. It might be contended that
such freedom to add violations tends to subvert the in-
tention of Section 10(b) to put stale claims to rest and to
free an employer of concern if 6 months have passed
after a specific action without notification to him of its
claimed unlawfulness.9 The cases hold, however, that
the filing of a timely charge, indicating to the charged
party that "other acts and conduct" of a related nature
within the preceding 6 months may be held up to scruti-
ny, provides sufficient notification for purposes of Sec-
tion 10(b) so as to make such other conduct actionable.
As discussed above, the requirement that there be a
nexus between the charge and all of the allegations of
the complaint arises not only from the imperatives of the
6-month limitation period but also from the prerequisite
7 Subsequently, in N.L.R.B. v. International Union of Operating Engi-
neers, Local 925 [J. L. Manra, Inc.), 460 F.2d 589, 596 (5th Cir. 1972), the
court applied the "closely related" test, calling it "settled."
8 ome of the cases rely on the form language printed on the charge
form that the employer violated the Act not only by the specified mis-
conduct but also by "other acts and conduct." See, e.g.. N.L.R.B. v. Cen-
tral Power & Light Company, supra, 425 F.2d at 1320; N.L.R.B. v Reli-
ance Steel Products Company., 322 F.2d 49, 53 (th Cir. 1963); North
American Rockwell Corporation v. N.L.R.B., 389 F.2d 866., 870 (10th Cir.
1968).
9 Until the 1947 Taft-Hartley amendments, Sec. 10(b) contained no
limitation period at all for the filing of charges.
that some charging party other than the Board initiate
the complaint of an unfair labor practice. When the cases
attempt to describe the required relationship in terms
other than such abstractions as "closely related" or
"some relationship," language such as that found in
Kohler (the Board "may allege whatever it finds to be a
part of that controversy"), Central Power & Light Compa-
ny ("part of the same course of conduct, such as a single
campaign against a union"), and Rock Hill Telephone
Company v. N.L.R.B., 605 F.2d 139, 142 (4th Cir. 1979)
("all of the allegations in this case concern the Compa-
ny's response to the Union's organizing effort"), is often
encountered. During one period, the Board applied the
test of "was related to and arose out of the same situa-
tion as that conduct alleged to be unlawful in the timely
filed charges," Stainless Steel Products, Inc., 157 NLRB
232, 234 (1966); Exber, Inc., d/b/a El Cortez Hotel, 160
NLRB 1442, 1447 (1966). This sort of language indicates
that a charged party, upon receipt of the charge, may
regard himself as subject to inquiry about and possible
prosecution on any matters arguably pertaining to the
controversy to which the charge alludes and to the con-
text in which it may reasonably be said to have arisen.
Board cases finding an impermissible variance between
the charge and the allegations of the complaint are in
some instances explicable by this rationale and in others,
not so easily explained. In the following six cases, the
Board held that the necessary relationship was absent.
Stokely-Van Camp, Inc., supra, 130 NLRB 869, apply-
ing the "some relationship" standard, held that the Trial
Examiner should have granted a motion to dismiss where
the charge had alleged that the charged union had
"force[d] representation" on the employees and the com-
plaint had alleged that the union had in fact threatened
to refuse to represent them as it was obliged to do. The
Board said, "We perceive no relationship between a
charge which alleges a violation based on insistence on
representation and a complaint which alleges refusal to
represent." 130 NLRB at 874. Under a more expansive
approach, it might be argued that notification to the
union that a question was raised about its representation-
al rights and obligations to certain employees sufficiently
preserved the General Counsel's authority to issue the
sort of complaint to which his investigation of the
charge had led.
In Champion Pneumatic Machinery Co., 152 NLRB
300, 301, fn. 1, 302, 303 (1965), the Board held that the
filing on July 20, 1964, of a charge alleging violation of
Section 8(a)(l) and (3) by granting a wage increase, by
transferring employees, and by "other acts," did not sup-
port a complaint allegation that the company violated
either Section 8(a)(2) or (1) by establishing a grievance
committee at the end of January 1964, even though all
the allegations arose in the context of a union organizing
campaign which had commenced "at the beginning of
1964." Again, since it would appear, on the face of the
evidence recited, within range of reasonable argument
that the establishment of the committee was part of a
campaign to defeat the union, it might be contended that
the 8(a)(2) allegation was authorized. However, although
the Board itself referred to the Section 8(a)(2) violation
120
RED FOOD STORE
as "time-barred," the case may be explained by the fact
that the General Counsel had so conceded.
In Prince Pontiac, Inc., 174 NLRB 919 (1969), the
Board adopted without comment the decision of a Trial
Examiner holding that a charge alleging that the employ-
er had unlawfully discharged an employee because of his
activities on behalf of Local 259 did not support an alle-
gation that the employer had violated Section 8(a)(2) by
giving assistance to Local 815. Although Local 259 filed
its own charge about the latter conduct, that charge was
filed outside the 6-month period, and the Regional Di-
rector attempted to predicate the validity of the unlawful
assistance allegation on the 8(a)(3) charge filed by the in-
dividual charging party. The Trial Examiner found that
there was no adequate connection either in the charge or
on the evidence as developed to satisfy the requirement
of relationship.
Sunnen Products, Inc., 189 NLRB 826 (1971), held that
a charge alleging a threat in violation of Section 8(a)(l)
did not support a complaint of an act of unlawful assist-
ance in violation of Section 8(a)(2). The Trial Examiner
held that the alleged assistance was not "closely related"
in character or time to the alleged threat, and that the
intent of Section 10(b) would be disregarded by relying
on the catchall "other acts and conduct" form language.
Two of the more recent cases, one citing the other,
seem to apply a fairly stringent test of relationship. In
Hunter Saw Division of Asko, Inc., 202 NLRB 330 (1973),
the complaint challenged the legality of a layoff of three
employees in November 1971, claiming that it had been
instigated by a grievance filed by one of the three; the
underlying charge, however, referred only to the failure
to recall from layoff in January 1972 the employee who
had filed the grievance. The Board held (id. at fn. 1):
In reaching our conclusion herein, we find it un-
necessary to pass on the Administrative Law
Judge's findings and conclusions with respect to the
legality of the November 5, 1971, layoff and the
General Counsel's exceptions to his findings and
conclusions. The record shows that the original
charge filed March 23, 1972, only related to the fail-
ure to recall in January 1972 and made no refer-
ence, direct or indirect, to any other unlawful con-
duct. The amended charge, alleging, for the first
time, the illegality of the November layoff was filed
on July 19, 1972. In these circumstances, and since
more than 6 months had elapsed prior to the filing
of the amended charge, further proceedings with re-
spect to the November layoff are precluded by the
provisions of Sec. 10(b) of the Act.
It might be contended, on the basis of some prior deci-
sions, that the original charge appropriately raised a
question about the layoff as well as the failure to recall.
Subsequently, in Allied Industrial Workers of America,
AFL-CIO, and its Local Union No. 594 (Warren Molded
Plastics Incorporated), 227 NLRB 1541 (1977), the Board
cited Hunter Saw Division with approval. In Warren, an
employee had filed a charge on December 17, 1975,
complaining that her union had brought intraunion
charges and levied excessive fines against her because of
her activity on behalf of another union. The charge also
set out a "broad general allegation of 8(b)(1)(A) restraint
and coercion." On June 18, 1976, she amended the
charge to allege that the union had unlawfully expelled
her from a union meeting on June 27, 1975, and the com-
plaint as issued contained only this allegation. Ruling in
the union's favor on a motion for summary judgment,
the Board stated:
We agree with Respondent that the original and
amended charges allege distinct and separate viola-
tions even though the broad language concerning
8(b)(1)(A) restraint and coercion of Thorp in the ex-
ercise of her Section 7 rights appears in both. In
effect the amended charge contains new matter and
omits the specifics of the original charge, as does
the complaint. We therefore conclude that further
proceedings with respect to the treatment of Thorp
at the June 27, 1975, union meeting as alleged in the
complaint and necessarily based on the amended
charge of June 18, 1976, are precluded by the provi-
sions of Section 10(b) of the Act. See Hunter Saw
Division of Asko, Inc., 202 NLRB 330, fn. 1 (1973).
Given the nature of the original charge and the other
broad catchall language, it could be argued that the
charge and the complaint allegation, both evidently aris-
ing from the same dispute between the charging party
and the union, were closely enough related, at least in
the view of certain of the precedents. The Board con-
cluded, however, that the violations alleged in the two
charges were too "distinct and separate" to support the
complaint.
Research has unearthed no case bearing a strong re-
semblance to the situation presented here. Closer than
any, I would say, are the facts in N.L.R.B v. Braswell
Motor Freight Lines, Inc., 196 NLRB 76 (1972), enfd. 486
F.2d 743 (7th Cir. 1973). In that case, the union which
represented the employees at the employee's Chicago
terminal filed charges, in January 1970, alleging viola-
tions of Section 8(a)(1), (3), and (5). In November 1970,
the complaint was amended to allege 8(a)(3) violations at
the employer's Braswell's unrepresented Atlanta and
Jackson terminals, occurring more than 6 months prior
to the amendment. The record showed that Respondent's
president played a direct role in the events at all three
terminals. The Board's decision did not refer to the 10(b)
issue. A majority of the court panel found the relation-
ship between charge and complaint, while presenting a
"difficult" question, to be acceptable (id. at 746):
The record here reveals a sufficient nexus be-
tween the Chicago conduct mentioned in the origi-
nal charge and the Atlanta and Jackson conduct al-
leged in the complaint so that the Board was not
precluded by Section 10(b) from considering the
Atlanta and Jackson allegations. The practices com-
plained of all occurred within the same general time
period, a one to two month span of time. Although
different locals were involved at each location, they
were all members of the International Brotherhood
of Teamsters. When the testimony concerning the
121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific unfair labor practices is viewed in the con-
text of the respondent's past relationship with the
teamsters, it is clear that the company's conduct at
the three locations was part of an overall plan to
resist organization by the Teamsters. Too, the spe-
cific allegations in the complaint with respect to the
Atlanta and Jackson terminals were of the same
class and character as those set out in the original
charge. Thus, we conclude that the respondent's
conduct at its Atlanta and Jackson terminals was
properly before the Board.
Then Judge Stevens dissented for the following reason
(id. at 747-748):
Exactly when one alleged unfair labor practice
should be considered sufficiently "related" to an-
other to permit one charge to support two Board
complaints-or perhaps I should say, two counts in
one complaint-is unclear. It does not seem to me
that the fact that the same company, or even the
same executive of that company, was involved in
both transactions should be sufficient to supply the
nexus. And, of course, neither uncouth language
nor a consistent antiunion purpose should be con-
trolling; for at least the latter can always be alleged
and I would suppose the Board's jurisdiction should
be tested by the General Counsel's allegations
rather than his proof.
In my judgment it seems more reasonable to
focus on the employees' interest in the proceedings.
If all of the allegations involved the same bargain-
ing unit, I would assume that a wide variety of ap-
parently separate transactions could appropriately
be included in a single complaint based on a charge
filed by a member of that unit. However, if the stat-
utory requirement of a charge is to be meaningful, it
does not seem to me that a charge filed by a Chica-
go local should be sufficient to authorize a nation-
wide investigation of all layoffs within the recent
past. I do not reach the question whether it would
be wise policy to authorize such broad investigatory
powers for the Board. I simply am not persuaded
that Congress has yet executed that "carte
blanche." 3 I therefore respectfully dissent.
a In the final paragraph of its opinion in Fant Milling, the Court
stated:
"What has been said is not to imply that the Board is, in the
words of the Court of Appeals, to be left "carte blanche to expand
the charge as they might please, or to ignore it altogether," 258
F.2d . at 856. Here we hold only that the Board is not pre-
cluded from 'dealing adequately with unfair labor practices which
are related to those alleged in the charge and which grow out of
them while the proceeding is pending before the Board.' National
Licorice Co.v. Labor Board, 309 US 350 . . at 369." 360 US at
309 ....
Some of the factors relied on by the majority in Bras-
well are present in the instant case, others are not. The
practices here complained of in the charge and the ex-
panded complaint all occurred, as in Braswell, within the
same general time period. The allegations in the charge
and in the complaint might be said to be of the "same
class and character." Here, however, the employer was
not fighting on several fronts against locals of the same
International union, nor is there any indication that Re-
spondent has had any "past relationship" with either of
the two unions, at least a hostile one.' 0
Examining only the charge and the complaint plead-
ings, as then Judge Stevens apparently would have
done, " one might wonder how it came about that a
charge alleging discrimination at the LaFayette store
evolved into a complaint containing two paragraphs re-
lating to statements made in a speech at the LaFayette
store and 20 other paragraphs pertaining to conduct by
Respondent's managers at five other stores in Georgia
and Tennessee addressed to employees other than Re-
spondent's own, none of which stores included the La-
Fayette store. There was no testimony on this question.
A document in the file strongly suggests, however, that
the information came to the attention of the Regional Di-
rector by virtue of an investigation into objections filed
after an election held among the employees of Mayfield
Dairy on March 17, 1978. The Regional Director's
report on objections shows that during the investigation,
five Mayfield employees testified that supervisors at var-
ious Red Food Stores had threatened them with loss of
shelf space should the Mayfield employees select the
Teamsters Union as their representative. Three Mayfield
witnesses also testified that, during the critical period,
their shelf space at Red Food Stores had in fact been de-
creased, according to the report.
The report on objections in the Mayfield representa-
tion case issued on May 3, 1978. The complaint in this
case issued on June 2, 1978. While the burden of the al-
leged conduct by Respondent's store managers fell upon
the Mayfield employees and thus upon the Teamsters
Local seeking to represent them, there is, curiously, no
clear showing on this record that the Teamsters ever of-
ficially complained to the Board that Respondent had
violated the statute. I say that with some hesitation be-
cause the present transcript contains statements by both
counsel for Respondent and counsel for the General
Counsel which suggest the contrary.
At the present hearing, in attempting to determine, for
purposes of cross-examination of a General Counsel wit-
ness, the number of statements the witness had given to
the Board, counsel for Respondent stated that the wit-
ness had been "named in this charge that the Teamsters
filed against Red Food Stores in case number 10-CA-
13825." He further stated that the witness was "alleged
to have been discriminated against in a charge filed
against Red Food Stores as well, subsequently with-
drawn." Counsel subsequently repeated that "this charge
was withdrawn." Counsel for the General Counsel
agreed to contact the Regional Office to see if the wit-
ness had given any other statements, and subsequently
reported that "a check was made of the Regional Office
files regarding a charge filed by the Teamsters Union at
the Red Food Stores, 10-CA-13825, I believe is the case
number, and there was [sic] no affidavits at all in that
'o Research discloses no prior Board cases involving this Respondent.
I As Judge Stevens stated: "I would suppose the Board's jurisdiction
should be tested by the General Counsel's allegations rather than his
proof' supra.
122
RED FOOD STORE
case and none for Mr. Bettis .... " On the basis of
these statements, I can properly conclude nothing more
than that the Teamsters did file a charge of some sort
against Red Food Store. There is no legitimate basis for
characterizing its contents or its ultimate resolution.
As earlier discussed, the court in N.L.R.B. v. Kohler
Company, supra, 220 F.2d at 7, stated, "So long as the
Board entered the controversy pursuant to a formal
charge, it may allege whatever it finds to be a part of
that controversy. But if it gets so completely outside of
the situation which gave rise to the charge that it may be
said to be initiating the proceeding on its own motion,
then the complaint should fall as not supported by the
charge."'1 2 If my speculation concerning the source of
the majority of the complaint allegations here is a cor-
rect one, and I have little doubt of that, it might con-
vincingly be argued that the Board was "initiating the
proceeding on its own motion" insofar as it swept into
Guthrie's complaint against Red Food Store the informa-
tion obtained from the Mayfield Dairy representation in-
vestigation. It seems rather forced to conclude that the
allegations involving the Mayfield employees are "a part
of that controversy" to which Guthrie's charge referred.
It further seems clear that the Region did not "find" the
Mayfield material as a result of entering the Guthrie con-
troversy; that material was evidently adduced by Team-
sters Local Union 515 in support of its objections filed
on March 21, 1978, 2 weeks before Guthrie filed her
charge. ' 3
The Region engaged in no improprieties here; it sent
out no investigators to plow virgin ground; from all that
appears, the material simply fell into its lap. But the fact
is that the Teamsters, which seemingly had the most
direct and immediate interest in Respondent's conduct,
filed no official complaint about it, so far as we can per-
missibly infer from the record, and that Union may have
had its own reasons for not doing so. 4 If the test be, as
the court said in N.L.R.B. v. Central Power & Light Com-
pany, supra, 425 F.2d at 1321, fn. 3, that "[t]he relation-
ship need be close enough only to negate the possibility
that the Board is proceeding on its own initiative rather
than pursuant to a charge," it could well be contended
here that the relationship between the charge and the
eventual complaint is not close enough "to negate [that]
possibility."
This a troublesome issue. Generally speaking, as dis-
cussed, the Board and the courts have been reasonably
generous in finding a relationship between a charge and
a complaint. The fact that in the present case the inspira-
tion for the conduct directed to Mayfield employees
came at a high-level meeting of Respondent's managers
at which time they were also instructed to engage in an-
tiunion activity against their own employees seems to
12 In Alberici-Fruin-Colnon, 226 NLRB 1315, 1316 (1976), the Board
quoted this language from N.L.R.B. v. Reliance Steel Products. Co.. supra,
322 F.2d at 53, which in turn had quoted from Kohler Company.
'3 The Teamsters objection reads:
Red Food Stores agent acting on behalf. The employees of Mayfield
dairies. By telling the employees they would reduce the amount of
counter space in the stores [sic]
"1 I am, of course, aware that anyone, with or without a legal or bene-
ficial interest in the matter, may file a charge with the Board.
bolster the appeal of concluding that there was a qualify-
ing relationship. However, it seems probable that Re-
spondent was by many leagues less interested in prevent-
ing the unionization of Mayfield employees than in
thwarting the organizational effort of its own employees.
Moreover, it is most likely that the General Counsel was
totally unaware of the background evidence regarding
the February 1978 supervisors meeting until long after
the complaint issued in June 1978. One former supervisor
who testified about the meeting said that he had been
asked to resign from Respondent in January 1979, at
which time he "decided to go to the Labor Board and
make an affidavit"; the other former supervisor who cor-
roborated the first did not leave Respondent's employ
until August 1979.
Further equitable appeal is found in the fact that the
complaint itself was issued within 6 months of all the
conduct charged against Respondent relating to the
Mayfield employees. That is, however, strictly an equita-
ble consideration, because the threshold legal question is
not whether sufficient notice was given to Respondent of
the allegations against it, but whether the Region was
empowered to issue those allegations on the basis of this
charge. The issue boils down to one of authority.
It is my obligation to apply the law as construed by
the Board. Two of the more recent Board cases, Hunter
Saw Division and Warren Molded Plastics Incorporated,
appear to me to betoken a thrust toward limiting the im-
plications of the charge. 15 But even under a more expan-
sive view, I think it is reasonable to conclude that the
allegations relating to the Mayfield employees were not
"a part of that controversy" (Kohler Company, supra) to
which Guthrie's charge was addressed. While the Region
apparently did not root out the Mayfield evidence on its
own initiative, it does appear to have taken advantage of
the material entered into the Mayfield representation
proceeding and, without any official complaint, to have
itself imported that material into this proceeding.
In Fant Milling, the court said that the Board was not
to be left "CARTE BLANCHE, to expand the charge as they
might please, or to ignore it altogether." What happened
here seems to me to have been a reaching out "to expand
the charge." I would therefore recommend that the com-
plaint allegations relating to the Mayfield employees be
dismissed, as requested by Respondent's motion. This
conclusion may be deemed to rest on a technicality, but
it is a technicality imbedded in the statute which ex-
presses the will of the Congress. In a statute thorny with
technicalities, upon which both employers and unions are
sometimes impaled, technical dispositions are not a
rarity.
There appears to be still another relevant technicality
which might be noted. Guthrie's 8(a)(3) complaint was
dismissed by the Regional Director. In Pennco, Inc..,
supra, 212 NLRB 677, the Board held that when the
only 8(a)(3) allegation in the charge was dismissed by a
Regional Director, the General Counsel could not add to
the complaint an 8(a)(3) allegation pertaining to another
'" In both cases, as noted, an argument might certainly be made that
the uncharged complaint allegation was related to and "a part" of the un-
derlying controversy brought to the Board's attention by the charge
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject. The Board stated that such an allegation "could
not relate back to a viable 8(a)(3) subject covered in the
charge since the only 8(a)(3) allegation originally in the
charge had been specifically dismissed."' On that rea-
soning, it would appear that the 8(a)(3) allegations in the
present complaint claiming that Respondent reduced
shelf space for certain of the Mayfield drivers (and im-
posed more onerous working conditions on one of them
by virtue of his being required to make an extra delivery
each week) would not be supportable. It would further
seem, from the Board's language in Champion Pneumatic
Machinery Co., supra, 152 NLRB at 301, fn. 1, that this
conduct also could not be treated simply as violative of
Section 8(a)(1). ' 7
II. THE VIABLE ALLEGATIONS
There remain for consideration two allegations of the
complaint which charge that the manager at the La-
Fayette, Georgia, store, in a speech to assembled em-
ployees on March 4, 1978, "solicited [Respondent's] em-
ployees to report to [Respondent] the Retail Clerk's
Union activities of their fellow employees" and "interro-
gated [Respondent's] employees concerning their Retail
Clerk's Union membership, activities and desires and the
Retail Clerk's Union membership, activities and desires
of other employees." Respondent does not contend that
these allegations are beyond the scope of the charge.
Anna Guthrie testified that on March 4, Store Man-
ager Wayne Holley and Assistant Store manager Her-
schel West called a meeting of the 30 employees at the
LaFayette store. Holley told the employees that Bruno's,
a competitor chain, was "pushing the Union trying to get
it into Red Food Stores." Holley mentioned that the
Union had tried to organize once before, that damage
had been done to employees' cars, and that Respondent
would pay for such damage if it happened again, as Re-
spondent had done before. He further said that Respond-
ent would not hire anyone who had previously worked
for a unionized store. Guthrie testified that Assistant
Manager West at one point in the meeting "asked if
anyone had signed union cards." She said that in re-
sponse, "some of the boys shook their heads no." The
others did not say anything.
While Guthrie's testimony was rather confusing on
this point, it ultimately appeared that Holley also said
that "if we seen anyone from Bruno's in our store, we
were to let him know and he would stay on their tails
until they left the store." He described certain Bruno em-
ployees who were thought to be circulating cards and
said that they might approach the Red Food employees
on the parking lot or they might call at 3 in the morning.
Guthrie's final testimony on this subject, intended to
1' Ace Drop Cloth Co., Inc., 178 NLRB 664, fn. 1, 665 (1969), cited by
the General Counsel, appears to be factually distinguishable; if it is not, it
is inconsistent with the later case.
17 The Board stated: "The Trial Examiner found, nevertheless, that the
allegation as to the meetings on grievances (paragraph 8(d) of the com-
plaint) was an attempt to relitigate, under the guise of an independent
Section 8(a)(1) violation, what the General Counsel had previously al-
leged to be unlawful support to an Employee Grievance Committee in
violation of Section 8(aX2), but which was time-barred under Section
10(b). We agree with the Trial Examiner's disposition as to paragraph
8(d)."
clarify ambiguity in the record, made it plain to me that
she intended to state that Holley was discussing only cir-
culation of cards by Bruno's employees, in contrast to
such circulation by Red Food employees.'s
The complaint alleges that Store Manager Holley co-
ercively interrogated the employees, but the evidence
shows that Holley asked no questions. It does indicate,
however, that Assistant Manager West asked "if anyone
had signed union cards." Guthrie testified that West
posed this question but once, and the only response was
that some of the employees shook their heads negatively.
I do not find any coercion inherent in this single ques-
tion. It does not appear that any of the employees would
have seriously thought that they were required to re-
spond to it. It was hardly the kind of systematic polling
which might have turned the spotlight on the individual
employees, thereby having a restraining effect on their
Section 7 activities.
The other allegation of the complaint is that Respond-
ent, by Holley, "solicited its employees to report to it the
Retail Clerk's Union activities of their fellow employ-
ees." As discussed above, it appeared in the end, from
Guthrie's testimony, that what Holley in fact said related
to employees from Bruno's rather than to Guthrie's
"fellow employees." Despite this discrepancy, I think a
violation was committed here. This adjuration to the La-
Fayette employees-"if we seen anyone from Bruno's
come into the store we were to come tell him and he
said he would stay on their tails until they left the
store"-plainly tended to convey to the employees the
extreme animosity by Respondent's management toward
any such activity and would have had the foreseeable
effect of restraining their own efforts on behalf of the
Retail Clerk's Union. The instruction further put the em-
ployees in the untenable and unacceptable position of
having to inform on union organizers, thereby effectively
interfering with their right to sympathize with the union
effort. I find, therefore, that by instructing the LaFayette
employees to report the presence in the store of employ-
ees of another employer, so that action might be taken
against those employees in order to deter their organiz-
ing activity, Respondent engaged in conduct having the
natural and foreseeable effect of restraining its employees
from engaging in Section 7 activity, and of interfering
with that activity. 9
'8 The testimony is as follows:
JUDGE RIFE: Just to follow up on that last one and to make sure
that Mrs. Guthrie understands what she is being asked. The general
thrust of what Mr. Holley was saying to you as I understand what
you've been telling us is that there are these outsiders who might be
coming trying to circulate Union cards and those are the ones that
he wanted you employees to tell him about if they showed up?
The Witness: Yes, sir.
19 While Respondent argues on brief that "these remarks referred to
activities of Bruno personnel in public areas of Red's store and at places
where employees were at work," and were thus an assertedly legal pro-
scription, it seems to me that the threat to follow around any Bruno's
employee who "come into the store" was not confined to a statement of
legal rights. Bruno's employees were undoubtedly free, under the law, to
enter the store like other citizens.
124
RED FOOD STORE
CONCLUSIONS OF LAW
1. The Respondent, Red Food Store, is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Retail Clerk's Local Union 1557 and Teamsters
Local Union 515, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By coercively soliciting employees to report the ac-
tivities of other employees, suspected of being union or-
ganizers, on March 4, 1978, Respondent violated Section
8(a)(1) of the Act.
4. The variance between the charge and complaint in
this case precludes any findings or conclusions that Re-
spondent in any other manner alleged in the complaint
violated the Act.
5. The unfair labor practice described in paragraph 3,
above, is an unfair labor practice affecting commerce
within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I shall recommend that the tradi-
tional remedies be applied to it. While I have found only
a single violation of the statute, it seems to me to be a
reasonably serious one, in that Respondent told 30 of its
employees that it would attempt to rout any employees
from another firm, thought to be organizers for a union,
who were seen in Respondent's store, and reasonably
communicated to its own employees that they would
similarly be subject to punitive action should they be
found engaging in protected activity. I think that behav-
ior merits remedial action, and it is my understanding of
the position of a present majority of the Board that the
Board would think so as well. United States Postal Serv-
ice, 242 NLRB 228 (1979).
I shall therefore recommend that Respondent be re-
quired to post the customary notices, and that a cease-
and-desist order be entered. I shall further recommend
that these remedies be extended to all of Respondent's
stores referred to in the complaint, since the uncontra-
dicted evidence is that the misbehavior found at the La-
Fayette store emanated from the highest councils of
management and was done pursuant to company policy
as announced at a meeting of all the store managers.
Upon the foregoing findings of fact and conclusions of
law, I hereby issue the following recommended:
ORDER 2 0
The Respondent, Red Food Store, LaFayette, Geor-
gia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively soliciting its employees to report to it
the presence in Respondent's stores of any other employ-
ees thought to be union organizers.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is con-
sidered neccessary to effectuate the policies of the Act:
(a) Post at its place of business in Fort Oglethorpe,
Rossville, Trenton, and LaFayette, Georgia, and South
Pittsburgh and Tiftonia, Tennessee, copies of the at-
tached notice marked "Appendix." 2 ' Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's rep-
resentatives, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all 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 cov-
ered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of of this Order,
what steps Respondent has taken to comply herewith.
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings. conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes.
21 In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
125