The J. S. Dillon & Sons Stores Co., Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1963

144 N.L.R.B. 1235 (N.L.R.B. 1963)

THE J. S. DILLON & SONS STORES CO., INC. 1235
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist any labor organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any and all such activities , except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively , upon request , with Amalgamated Meat Cutters
and Butcher Workmen of North America, Local 385, AFL-CIO, as the ex-
clusive representative of all our employees in the bargaining unit described
below with respect to rates of pay, wages , hours of employment , and other
conditions of employment , and, if an understanding is reached , embody such
understanding in a signed agreement.
The bargaining units are:
All production and maintenance employees of the Employer at its Lewis-
ton, Maine , plant, including shipping and receiving employees , but excluding
all office clerical employees , professional employees , farm supervisors,
laboratory employees , salesmen, foremen , assistant foremen , floorladies,
pickup crews, truckdrivers, guards, watchmen, and supervisors as defined
in Section 2 (11) of the Act.
HILLCREST POULTRY INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , Boston
Five Cents Savings Bank Building, 24 School Street, Boston 8, Massachusetts, Tele-
phone No. Lafayette 3-8100, if they have any question concerning this notice or
compliance with its provisions.
The J. S. Dillon & Sons Stores Co., Inc. and District 50, United
Mine Workers of America . Case No. 17-CA-2113. October 28,
1963
DECISION AND ORDER
On July 15, 1963, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. He also found that the Respondent had not engaged in
other unfair labor practices and recommended that the complaint be
dismissed as to them. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
144 NLRB No. 116.
727-083-64-vol. 144-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and the recommenda-
tions of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
1 While in agreement with his colleagues in all other respects, Member Leedom finds, con-
rary to the Trial Examiner, that the Respondent did not violate Section 8(a) (1) of the
Act by granting the Welfare Committee's requests for additional knives and rubber mats,
new brooms, and repair of a radio at a time when the Union's petition for an election was
pending. The record discloses that, before the advent of the Union, the Welfare Committee
for many years represented the Respondent's employees and that it was long the employer's
practice to supply the employees with knives, rubber mats, brooms, and radios for use in
connection with their work Accordingly, as the supply of such items at the request of
the Welfare Committee was a long existing practice and was established before the advent
of the Union, Member Leedom is of the opinion that the granting of the requests did not
constitute a change in terms or conditions of employment within the meaning of American
Fieightways Co., Inc., 124 NLRB 146, 147. Member Leedom believes that these were mere
grievances which the Respondent disposed of under its existing policy without creating any
new policy. This the Respondent was privileged to do, and the exercise of such privilege
does not unlawfully invade any employee rights under the Act See Shea Chemical, 121
NLRB 1027, 1029. Moreover, the benefits granted here appear to be too trivial to have a
tendency to interfere with employee rights.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, its officers, agents, successors, and assigns , shall:
INTERMEDIATE REPORT
On January 28, 1963, District 50, United Mine Workers of America, herein called
the Union, filed charges against J. S. Dillon & Sons Stores Co., Inc., Hutchinson,
Kansas, herein called the Respondent.' The General Counsel 2 issued a complaint
on March 13, 1963, and an amended complaint on April 11, 1963. As amended,
the complaint alleges that on or about January 24, 1963, the Respondent discharged
its employee Edward Rupp, and has since failed and refused to reinstate him, be-
cause of his membership in and activities on behalf of the Union, and to discourage
union membership. It is further alleged that the Respondent, since on or about
August 20, 1962, has interfered with, restrained, and coerced its employees in cer-
tain specified respects. It is alleged that this conduct violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein
called the Act. Thereafter the Respondent filed an answer denying the material
allegations of the amended complaint.
Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on April 25 and 26, 1963, at Hutchinson, Kansas. All parties were represented and
participated fully in the hearing. The General Counsel moved to further amend
the amended complaint by adding a new paragraph V(h); the motion was granted.
The General Counsel then moved to withdraw this amendment; this motion was
likewise granted. At the close of the General Counsel's case, the Respondent
moved to dismiss paragraphs V, VI, VIII, IX, and X of the complaint as amended.
The motion was granted with regard to paragraphs V(a), V(c), and V(f) of the
amended complaint, and denied in all other respects.3 The General Counsel
orally moved to amend paragraph V(f) of the amended complaint; the motion
1 The original charge named the Respondent as "J. S Dillon & Sons, Warehouse " This
was changed in an amended charge filed March 1, 1963
2 The term "General Counsel" refers to the General Counsel of the National Labor Rela-
tions Board and his representative at the hearing
3 Paragraph V (a) was dismissed for lack of supporting evidence Paragraph V (c)
and V ( f) were dismissed because of fatal variance between the pleadings and the proof.
THE J. S. DILLON & SONS STORES CO., INC. 1237
was granted on condition that the amendment be reduced to writing the following
morning. On the following day the General Counsel withdrew the amendment to
paragraph V(f), and announced that he would "stand on the complaint as written."
At the close of the case, the Respondent again moved to dismiss the remainder of
the amended complaint; ruling on this motion was reserved. For reasons which
appear below, the motion is now granted with regard to paragraphs V(g), VIII,
and IX of the amended complaint, and denied in all other respects. Briefs were
filed on May 27, 1963, by the General Counsel and the Respondent; they have
been duly considered.
Upon the entire record in this case,4 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found that the Respondent is,
and at all material times has been, engaged in commerce as defined in the Act,5
and its operations meet the Board's jurisdictional standards; 6 and that the Union is,
and at all material times has been, a labor organization within the meaning of
the Act.
A. Introduction
1. The Respondent's operations
The Respondent operates a number of retail food stores in Kansas and Colorado.
It also maintains a warehouse in Hutchinson, Kansas, the only facility involved
here. This warehouse is made up of six different departments, physically separated
from one another: the maintenance department, the trucking department, the ware-
house department, the general office department, the cafeteria department, and the
advertising department. The warehouse department in turn appears to be broken
down into shipping, receiving, grocery, and produce.
Ray Dillon, Jr, is president of the Respondent and Harold Ryan is personnel
manager. The supervisor of warehousing is Claude Creel. There are two assistant
warehouse superintendents, one in charge of receiving and the other, Dale Douglas,
in charge of shipping. Approximately 20 employees are engaged in shipping work,
including such categories as order pullers and fork truck operators. Douglas also
has supervision over packing and pricing operations, which tasks are performed
within the warehouse department by approximately 15 employees. Fred Caywood
is supervisor of trucking. It is not disputed and I find that Dillon, Ryan, Creel,
Douglas, and Caywood are, and at all material times have been, supervisors within
the meaning of the Act?
2. The Welfare Committee
For approximately 15 years before the events described hereafter, the Respond-
ent's warehouse has had a Welfare Committee composed of employee representa-
tives elected by the warehouse employees by secret ballot. Its functions are to
furnish flowers for ill employees, to arrange employee parties, and "to handle
grievances of labor and carry their requests for wages, increase in wages and such
things to management." Originally, an employee took up his grievance in the first
instance with his immediate supervisor. If no satisfaction was obtained, his repre-
sentative on the Welfare Committee would present the matter to Dillon. Since
about 1961 an intermediate step-a conference with Ryan-was inserted before the
issue was taken up with Dillon.
* The official transcript Is hereby corrected in accordance with the attached Appendix A
The Respondent is engaged in the retail distribution of foodstuffs. Its total retail
sales exceed $500,000 annually. In addition to facilities elsewhere, it operates a ware-
house in Hutchinson, Kansas, where it annually receives foodstuffs originating outside the
State of Kansas valued at more than $50,000 See N.L R.B. v. Reliance Fuel Oil Corpora-
tton, 371 U S 224
6 Carolina Supplies and Cement Co, 122 NLRB 88, 89; Great Leopard Market Corpora-
tion, Inc, d/b/a King Jack's Foodarama, 140 NLRB 1154; and Jay's Food Center, Inc,
d/b/a Jay's Sparkle Market, 142 NLRB 1332
7 The General Counsel maintains, and the Respondent apparently denies, that Duane
("Bud") Beer, foreman in the shipping division of the warehouse department, is a super-
visor within the meaning of the Act. I deem it unnecessary to resolve this issue. I note
In passing that in his Decision and Direction of Election in Case No. 17-RC-4076, issued
April 26, 1963 (not published in NLRB volumes), the Regional Director held that "this
record fails to show that [Beer] possess[es] or exercise[s] any authority which is other
than routine In nature or which requires the exercise of independent judgment" and in-
cluded him in the appropriate unit
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Welfare Committee meets from time to time with representatives of manage-
ment, Dillon and Ryan. At one such meeting in January 1962, Raymond Bigger,
then representing employees of the grocery division of the warehouse department,
asked "for regular meetings to be held" and Ryan indicated that meetings would be
held every 2 months. (Actually, they may have been held monthly thereafter.)
At the same meeting Bigger asked, on behalf of the employees he represented, for
an increase in wages, a cut in hours, time and a half for excess over 8 hours per day
and 40 hours per week, seniority on vacations, and lounge equipment. In March
1962 Ryan summoned Bigger and told him that wages and hours would be con-
sidered together in July of each year from then on. Based upon the foregoing, I
find that employees participate in the Welfare Committee, and that it exists, at least
in part, to deal with the Respondent concerning grievances and working conditions.
Accordingly I find that the Welfare Committee is, and at all material times has been,
a labor organization within the meaning of the Act.8
B. The discharge of Rupp
1. Facts
Edward F. Rupp 9 began working for the Respondent in 1955 as an order puller
in the warehouse department. In 1962 he was also made assistant fork truck relief
driver. When he drove the fork truck ("a few hours each day"), he was paid 6
cents per hour more than when he was pulling orders or loading trucks. He, there-
fore, considered the assignment to assistant fork truck relief driver as a promotion.
Undoubtedly Rupp appears to have been a satisfactory employee, at least until
1960. The caliber of his performance from 1960 on is, however, a matter of
,dispute. According to the General Counsel's witnesses, he was "the best order
puller in the warehouse" with a high piece count (the number of pieces pulled per
hour), whose work had been complimented by Creel in April or May 1962. The
Respondent's witnesses, on the other hand, pictured Rupp ( in recent months espe-
ciallyd as having damaged merchandise excessively, overloaded trucks on several
occasions, exhibited a surly attitude when ordered to do work other than order
pulling, filed grievances when he thought he was being unfairly treated regarding
overtime, and deliberately slowed up production. According to these witnesses,
Rupp's conduct had given rise to complaints in November and December 1962, and
early January 1963, by several of his fellow employees, and had caused discussions
between Douglas and Creel regarding his performance. I deem it unnecessary to
resolve this conflict or to make any evaluation of Rupp's work performance.
On about January 8 or 9, 1963, Donald Diggs, a forklift operator in the Re-
spondent's warehouse, contacted a representative of the Union, signed a union card,
and was given blank cards to pass out. He gave some blank cards to Rupp, who
signed one and passed out others to employees of the Respondent on company
property during working hours. In sum, Rupp was among the first two or possibly
three earliest proponents of the Union at the Respondent's warehouse.
On Friday, January 18,10 Douglas requested employee Herbert Janson to work the
following day, Saturday. Janson replied that he could not work Saturday morning,
but agreed to do so Saturday afternoon. Douglas then asked Rupp to work Saturday
morning only, explaining that Janson would come in on Saturday afternoon. Rupp
responded: "Hell no, if I can't work all day, I won't work a half day." On Monday,
January 21, Douglas asked Rupp if he wanted to work overtime that night. Rupp
refused. On the same day Rupp filed a grievance with Robert Curley, the repre-
sentative of his department on the Welfare Committee, regarding the distribution
of overtime in the warehouse department." Curley, on the same day, presented
the grievance to Creel on Rupp's behalf.12 Creel investigated, then informed Curley
that he considered the grievance lacking in merit.
8 N.L R.B. v. Cabot Carbon Company, et al., 360 US 203; Edmont, Inc, 139 NLRB
1528; and Lawson Milk Company, 136 NLRB 538, at 545, enfd. in part 317 F. 2d 756
(C.A 6), 53 LRRM 2346.
8 Named in the complaint as Edward Rupp.
10A11 dates hereafter refer to the year 1963 unless otherwise noted.
"This was not the first time Rupp had filed a grievance regarding overtime. He had
done so at least once in 1962
12 As described above, the normal grievance procedure at this time called for submission
of the matter to Ryan The record does not explain why Curley brought it to Creel instead
THE J. S. DILLON & SONS STORES CO., INC. 1239
On that day and the next, Creel "reviewed" Rupp's work performance. It is not
entirely clear just what the "review" consisted of, but at least it included discussing
Rupp's record with both Douglas and Rupp's foreman, Duane ("Bud") Beer. Creek
asked Douglas and Beer if they still thought they could "straighten out" Rupp and,
each replied in the negative. Creel and Ryan then conferred with Dillon about the:
matter on either Tuesday, January 22 or Wednesday, January 23. Creel stated that
Rupp had deliberately slowed down in his work and had a "bad attitude that was
spreading." He recommended that Rupp be discharged. Dillon replied that Creel
should "go ahead and do it."
Late in the afternoon of January 24, after informing Douglas and Beer of his
intention, Creel summoned Rupp and discharged him in Douglas' presence. Rupp•
was paid off, including severance pay. Creel's version of the discharge interview,
substantially corroborated by Rupp, was as follows:
I told Mr. Rupp that he had been crossways with the Company and with his
job and that we could no longer ignore that, that he was no longer of value
to the company and I felt we were even imposing a hardship on him as he was
not happy in his job, I didn't think he ever could be, that we had attempted to
do what we could to make his work pleasant, we had failed, we were admitting
it and we were going to have to let him go. . In addition we remarked to
him I was personally sorry this had worked out that way because I felt a deep
regret that I had failed somehow to make this job what it should be for him
and what I realized a man should have in his place of work. So his reply at the
end of that was, "you needn't feel sorry because I don't give a Goddam."
On the following day, January 25, Creel called in Curley and told him why Rupp
had been discharged. The record does not furnish any further information about
this conference. On the same day Creel summoned George Nelson, a fork truck
operator in the shipping division of the warehouse department, and Kenneth Elliot,
another employee. In Douglas' presence, Creel told him that Rupp had been dis-
charged because of his hate for the Company, inability to get along with the Com-
pany, damaging quite a bit of merchandise, talking other employees into slowing
down production, and failing to cooperate in regard to overtime. Furthermore,
Creel stated that Rupp had been "unhappy" and did not like Beer. Creel explained
that he was telling them this because "he thought the fork driver saw the other
[order] pullers and they might ask questions and he didn't know if the other
grievance man would get to all of them."
On the same day, Caywood asked Douglas why Rupp had been discharged. Ac-
cording to George Sugg, an employee who overheard the conversation, Douglas
replied that Rupp had been a "bad influence to other men in his department."
According to Douglas, Douglas answered that Rupp "apparently had talked some
of the men into a slowing down in their production."
2. Contentions of the parties
Paragraph VII of the complaint alleges, and the answer denies, that Creel dis-
charged Rupp, an employee of the Respondent, on January 24, and thereafter has
failed or refused to reinstate him. At the hearing, however, the Respondent con-
ceded the truth of these facts.
The only remaining issue regarding Rupp is the reason for the discharge and failure
to reinstate. Paragraph VIII of the complaint alleges the reason to be "because
of [Rupp's] membership and interest in, and activity on behalf of, the Union and
to discourage membership in the Union." At the hearing the General Counsel
stated that he did not rely upon the filing of grievances by Rupp, even if the com-
plaint could be read to include them, but relied entirely on Rupp's activity on the
Union's behalf.13
13 At oral argument, the following colloquy took place:
TRIAL EXAMINER' . . . is it the General Counsel's contention it was his activities
on behalf of the United Mine Workers that motivated the discharge or his filing of
several grievances or combination of both? . . . what is your position . . as to the
grievances'
Mr. Ross: As to the grievances?
TRIAL EXAMINER: Does that enter into it?
Mr Rosa: No, sir, we are alleging his union activity.
In this posture of the case, I need not determine whether requesting a labor organization
to process grievances constitutes protected concerted activity. See American Dredging
Company, 123 NLRB 139 , enfd . as modified 276 F. 2d 286 ( C A. 3), rehearing denied
April 26, 1960, cert . denied 366 U.S. 908.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent mounts a twofold attack upon the General Counsel's position.
In the first place the Respondent maintains that, at the time of the discharge, none
of its supervisors or agents knew of or suspected Rupp's prounion activities; there-
fore, such activities could not possibly have provided the Respondent with a motive.
Secondly the Respondent contends that Rupp was discharged for reasons entirely
aside from his union activities, whether known or unknown, namely, he had become
an unsatisfactory employee. In short, urges the Respondent, Rupp was discharged
for cause.
3. Conclusions
To indicate that the Respondent knew of or suspected Rupp's efforts to sign
employees for the Union, the General Counsel points to certain remarks by manage-
ment representatives (concerning Rupp's hate for the Respondent, his noncoopera-
tive attitude and his bad influence on other employees) as veiled references to his
prounion conduct. But it must be recalled that Rupp had filed a grievance just
before his discharge. Furthermore, so far as the record shows, the subject of the
Union was not mentioned either in conversations between management representa-
tives (the Creel-Douglas, Creel and Ryan-Dillon, and Douglas-Caywood conversa-
tions ) or in conversations between employees on the one hand and management
representatives on the other (the Creel-Rupp, Creel-Curley, and Creel-Elliot and
Nelson conversations). In this context it cannot be said that the remarks about
Rupp's hate for the Respondent, lack of cooperation and bad influence reasonably
indicate that the Respondent knew of Rupp's union activities. Indeed Beer, Douglas,
Creel, and Dillon all denied that at the time of Rupp's discharge they were aware
of any union activity by Rupp or any other employee.
Although Rupp distributed union cards on company property and during working
time, there is not a scintilla of evidence that any management agent saw him do so.
His own testimony on this point was positive:
Q. (By Mr. HAYNES.) If I understand you correctly .. . sometime between
January 8 and January 24, you not only signed a U M.W. card and on com-
pany time and property, but you distributed cards for signatures of other em-
ployees, is that true?
A. That is right.
Q. Now then, do you have any knowledge of any supervisor seeing you
do this9
A. Yes, I am sure they didn't see me. [Emphasis supplied.]
Q. They did not see you?
A. That is right.
Finally, the General Counsel argues that the Respondent's knowledge of Rupp's
prounion activities can be assumed from the small size of the operation. Aside
from the question of whether such a presumption would be strong enough to over-
come the denials of Beer, Douglas, Creel and Dillon,14 the Hutchinson warehouse
had a total working complement of approximately 260 people. The General
Counsel calls attention to a case in which the so-called "small plant" presumption
was applied to a plant of 130 people 15 But more recently the Board refused
to apply the rule to a plant of 275 employees.is I am therefore of the opinion that
the plant involved here is too large to justify application of the presumption. More-
over the General Counsel urges that the number of employees in the appropriate
bargaining unit which included Rupp is between 125 and 135, and the number of
employees supervised by Douglas is only about 30. But the small plant rule is
14In Hadley Manufacturing Corporation , 108 NLRB 1641, at 1650, the Board stated*
... Respondent denied knowledge of the union activities of Evans and Whitte-
more . . . . The General Counsel admitted on the record that a finding that Re-
spondent had such knowledge must be inferred from the small size of Respondent's
plant However , the mere fact that Respondent's plant is of a small size , does not
permit a finding that Respondent had knowledge of the union activities of specific
employees, absent supporting evidence that the union activities were carried on in
such a manner, or at times that in the normal course of events, Respondent must have
noticed them [Emphasis supplied.]
18 Quest-Shon Mark Brassiere Co, Inc, 80 NLRB 1149, 1150, enfd. 185 F. 2d 285
(CA. 2), cert denied 342 US 812.
16 Tennessee Packers, Inc , Frosty Morn Division , 143 NLRB 494 (discharge of William
L. Brown).
THE J. S. DILLON & SONS STORES CO., INC. 1241
based upon the size of the plant, not the size of the department or appropriate
bargaining unit, as the General Counsel conceded.17
For the reasons set forth above, I conclude that the General Counsel has failed
to establish that, at the time of Rupp's discharge, the Respondent knew of or sus-
pected Rupp's activities on behalf of the Union. It follows that an essential ele-
ment of a discriminatory discharge-company knowledge-has not been proved.18
Accordingly, the Respondent's motion to dismiss paragraphs VIII and IX of the
complaint is granted, and the reference to Section 8(a)(3) of the Act is stricken
from paragraph XI. In this posture of the case, it is unnecessary for me to deter-
mine whether, as the Respondent claims, Rupp was discharged for cause.19
C. Interference, restraint, and coercion
1. Threats of reprisal by Caywood
(a) Facts
On February 15 the Union filed with the Board a petition seeking to represent all
production, maintenance, warehouse, and shipping employees and over-the-road
truckdrivers at the Respondent's warehouse, with exclusions not here material (Case
No. 17-RC-4076).
In the latter part of February, Caywood summond to his office Richard Bridge-
water, a truckdriver at the Respondent's warehouse. Caywood stated: "You know
how I stand on this union. I told you before how I stand." 20 After remarking that
he had heard the employees had "been talking union," he said: "We can't have
that here. Ray Dillon has to keep his boys happy and he can't do it with agitators
around." He also told Bridgewater that the employees "didn't need the Union"
and that "Dillon could handle things there themselves, they were doing a pretty
good job." Finally, Caywood stated that if the Union came in "everything would be
tighter and everything would be run on a schedule" and "they could put these
tattletales 21 or whatever it is, on the trucks and we would cut out coffee breaks
(instead of stopping every 25 miles when you feel like stopping for coffee as we
usually stop, we wouldn't be able to because we would be on a schedule of getting
in on time and that would put us late) and it would be rough" for the employees.22
(b) Contentions and conclusions
Paragraph V(b) of the complaint as amended alleges, and the answer denies,
that on or about February 16 the Respondent, through Caywood, violated the Act by
threatening employees with reprisals if they joined the Union or engaged in activities
supporting it. The facts related above convince me, and I find, that in late February,
Caywood threatened Bridgewater that the Respondent would visit reprisals upon
the employees if they joined or assisted the Union. This threat interfered with the
employees' freedom of choice of bargaining agent and therefore violated Section
8(a) (1) of the Act. Accordingly, the Respondent's motion to dismiss paragraph V (b)
of the complaint as amended is denied.
17 At the hearing the following colloquy occurred,
Mr. Ross: In any event, Douglas had a small number under him
TRIAL EXAMINER: The small plant rule applies to the size of the plant [Emphasis
supplied I
Mr. RosE: I think perhaps it does
1sPhoenis; Newspapers, Inc, 142 NLRB 827; Wausau Concrete Company, Inc, 142
NLRB 33; Diamond Ginger Ale, Incorporated, 125 NLRB 1173; Hadley Manufacturing
Corporation, supra; and Tennessee Packers, Inc, Frosty Morn Division, supra (discharge
of William L. Brown).
'O N L R.B v. T. A. McGahey, Sr, et al., d/b/a Columbus Marble Works, 233 F 2d 406,
at 412-413 (C.A. 5) ; Lawson Milk Company, supra, at 546 in the Board's opinion and
at 2349 in the Court's opinion; Wausau Concrete Company, Inc, supra, at footnote 5 of
the Intermediate Report ; and Tennessee Packers, Inc., Frosty Morn Div ision , supra (dis-
charge of William L Brown)
20 Two or three years before, Caywood had informed Bridgewater that "the first thing
he would fire a man for is talking union "
-1 Tattletales are mechanical devices mounted on trucks to record the times of starting
and stopping and the speeds attained
22 The findings of fact regarding this conversation are based upon the undenied testimony
of Bridgewater. Caywood did not testify.
1242 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD
2 Granting benefits
(a) Facts
Some years before the events related herein, the Respondent had supplied four
rubber mats for employees of the grocery division of the warehouse department to
stand upon while working, and a radio for them to play. However, since then the
number of the employees had increased so that additional mats were needed and the
radio had broken down. On about March 12 the Welfare Committee held its regular
monthly meeting with Ryan and Dillon. The representative of the grocery division
of the warehouse department asked for additional rubber mats, repair of the radio,
some additional cutting tools needed for opening boxes, and some new brooms to
replace those which had worn out. Barbara Hobbick, the representative of the female
employees of the produce division of the warehouse department, then requested rubber
mats for the use of employees in that division, as they had not previously been
furnished with any. There were other requests from other representatives for
premium pay for employees who worked in the freezer, and for changes in working
hours. Dillon replied that, "in regard to hours, we could not discuss anything at this
time that would change their working conditions" [Emphasis supplied) 23 However.
sometime between that date and April 25 the Respondent granted the requests of the
representatives of the grocery and produce divisions of the warehouse department
regarding knives, brooms, rubber mats, and the radio.
(b) Contentions of the parties
Paragraph V(d) of the complaint as amended alleges, and the answer denies, that
in March Dillon violated the Act by "grant[ing] benefits to employees by changing
working conditions in the grocery and produce departments." 24 Specifically the
General Counsel points to the granting of the requests for mats, brooms, knives, and
radio repair in the grocery and produce divisions of the warehouse department as
changes in working conditions beneficial to the employees which, timed as they were,
had "a tendency to interfere with the employees' Section 7 rights." 25 The Respondent,
on the contrary, argues that "The items requested and granted were not of substantial
benefit which could be considered sufficient inducement to dissuade employees from
supporting the Union . The record is devoid of evidence that the meeting of
these requests was calculated or intended to induce employees to forgo their Section 7
rights or to discourage them from engaging in union activities. Moreover the
record is devoid of evidence that the granting of these requests had such a result."
(c) Conclusions
When the Union filed its petition in Case No. 17-RC-4076 on February 15, this
raised a genuine question concerning the representation of the employees, among
others, in the grocery and produce divisions of the warehouse department, which
question was still pending on April 25, when the hearing in the instant case began.
The Respondent of course knew this. It has long been held that it is a violation of
the Act for an employer to recognize either of two competing labor organizations
under such circumstances, for the employer thereby illegally arrogates to himself
the resolution of the representation dispute, encroaches upon the Board's exclusive
domain, and disrupts the orderly representation procedure established under the
Act.28 Applying that principle here, it is clear, and I find, that the Respondent violated
Section 8 (a) (1) of the Act by granting benefits negotiated through a labor organiza-
tion ( the Welfare Committee ), thus according it a certain status, at a time when a real
question concerning representation raised by another labor organization (the Union)
21 The findines of fact regarding this meeting are based upon a synthesis of the testimony
of Hobbick and Ryan
=* Undoubtedly the terms "grocery and produce departments" refer to the grocery and
produce divisions of the warehouse department.
25 At oral argument the General Counsel also urged that in 1962 the Respondent met
only infrequently with the Welfare Committee and "took a very, very long time to act" on
any employee requests ; while in 1963 during the Union's campaign, by contrast, the
Respondent met more frequently with the Welfare Committee and granted employee re-
quests more rapidly . I deem it unnecessary to consider this contention
26 Midwest Piping & Supply Co , Inc., 63 NLRB 1060; Shea Chemical Corporation, 121
NLRB 102T ; Halben Chemical Co , Inc., 124 NLRB 872 , 878, enfd as modified 279 F. 2d
189 (CA . 2) ; and Reliance Fuel Oil Corp ., 129 NLRB 1166, 1177 , set aside and remanded
on other grounds 297 F 2d 94, rehearing denied January 4, 1962, at 99 ; reversed 371 U.S.
224, enfd . on remand February 26, 1963.
THE J. S. DILLON & SONS STORES CO., INC. 1243
remained unresolved and pending before the Board. And this is true even though
the Welfare Committee had not sought to intervene in the representation case.27
Moreover, the questions whether the Respondent intended to interfere and whether
the Respondent's conduct actually resulted in coercion do not arise. Under the
Board's decision in American Freightways Co., Inc., the only pertinent inquiry is
"whether the employer engaged in conduct which, it may reasonably be said, tends
to interfere with the free exercise of employee rights under the Act." 28 Under the
circumstances existing here, that question must be answered affirmatively. Nor do I
find merit in the Respondent' s argument that the benefits granted to the employees by
the Respondent were too trivial to have the proscribed tendency; they seem to me to
be more substantial than those which the Board found violative of the Act in
American Freightways Co., Inc. Accordingly, the Respondent's motion to dismiss
Paragraph V(d) of the amended complaint is denied.
3. Threats of reprisal by Dillon
(a) Facts
Five female employees perform repack operations in the produce division of the
warehouse department. They work varying hours from a minimum of about 15
hours to a maximum of about 44 hours per week, depending upon the need for their
services. They are considered regular part-time employees 29 and participate in the
same fringe benefits, such as vacations, insurance, etc., as do regular full-time
employees.
On March 23, Dillon and Ryan met with these five employees to discuss problems
relating to vacations and hours. Dillon pointed out that they were the only part-time
employees in the entire company who were "treated as full-time" employees so far
as fringe benefits were concerned. In response to an inquiry from one of the em-
ployees, Dillon stated that he knew of no union which could represent part-time
help. He cited as an example the collective-bargaining contract governing the Re-
spondent's employees in Colorado, which he stated did not grant fringe benefits to
part-time employees. He further remarked that if the Union were chosen to repre-
sent the employees of the Hutchinson warehouse they, as part-time employees,
"would lose all [their] fringe benefits." He added that "the company wouldn't be
able to help it because [the part-time employees] couldn't be covered by it and there-
fore the Union couldn't give [them] any benefits either." 30
(b) Contentions and conclusions
Paragraph V(e) of the complaint as amended alleges, and the answer denies, that
on or about March 23, Dillon violated the Act by "threaten[ing] employees with
reprisals if the Union were to become their certified collective bargaining repre-
sentative." The Respondent, conversely, argues that Dillon merely compared the
working conditions existing under the union contract in Colorado with those existing
at the nonunion Hutchinson warehouse, a comparison which Section 8(c) of the Act
protects.
I cannot agree with the Respondent that Dillon's remarks constituted the mere
exercise of free speech allowed by Section 8(c) of the Act. Rather, I construe them
as a warning that the selection of the Union as their bargaining agent would auto-
matically cause the regular part-time employees to lose benefits they would otherwise
continue to enjoy. In short, Dillon portrayed the loss of fringe benefits as an in-
"In Edmont, Inc, 139 NLRB 1528, as here, the Committee was not on the representa-
tion ballot. The Board there stated- "we note that . . . the Committee . . . represented
an outlet for employee grievances The Committee was recognized, given unlawful support
and assistance and was thereby accorded a certain status by the Respondent. We find
that this assistance to the Committee given just prior to the election, wherein the em-
ployees were, called to express their desires with respect to representation by another union,
tended to interfere with the employees' free choice of a bargaining representative "
- 124 NLRB 146, 147. In True Temper Corporation, 127 NLRB 839, this test was fur-
ther discussed In my opinion, nothing said in Trite Temper altered or modified the test
laid down in American Freightways Co, Inc
20 I note in passing that the Regional Director , in his Decision and Direction of Election
in Case No. 17-RC-4076, issued April 26, 1963, in footnote 4, classified these women as
"regular full-time employees "
30 These findings of fact are based upon a synthesis of the testimony of Hobbick, Ryan,
and Dillon . Where their versions conflict, I credit that of Hobbick, as I find her a more
reliable witness with regard to this meeting than either Ryan or Dillon.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evitable consequence of union representation. Viewed in this light, the statements
clearly interfered with the employees' freedom of choice. And the fact that Dillon
added that the Respondent was powerless to avoid such a loss of benefits is imma-
tenal; the right of the employees to choose their bargaining agent free of restraint
or coercion was nevertheless compromised.31 For the foregoing reasons, I find that
such conduct violated Section 8 (a) (1) of the Act, and I therefore deny the Respond-
ent's motion to dismiss paragraph V(e) of the complaint, as amended.
4. The profit-sharing plan
(a) Facts
Since about 1943 the Respondent has maintained a pension plan for its employees.
In about April 1962, the Respondent retained a firm of actuaries to explore the
possibility of changing this into a profit-sharing plan for employees. The profit-
sharing plan was "finally formulated" in June 1962, and submitted to and approved
by the board of directors and the stockholders in September 1962. In October 1962,
the Respondent sent a letter to its full-time employees outlining the proposed changes.
The letter read, in part:
... Subject to the approval of the Internal Revenue Service, we intend to have
our new plans in effect for all of the current fiscal year, which will end June 30,
1963. This means that the amount of money which will go into your individual
profit-sharing account depends on the profits earned by your efforts right now.
In effect, you cannot get less than under our present plan-you may get much
more as our profit-sharing fund reflects the efforts of all employees to increase
profits.
* * * * * * *
If you are presently under our pension plan, you will be a participant in the
new profit-sharing plan as of last July 1.
* * * * * * *
Some details of our plans must still be worked out. After that you will receive
a full description of the plans and the benefits they offer you ....
The first quarter of that fiscal year ended September 29, 1962, and in the middle
of October 1962, an entry was made on the Respondent's books setting aside an
estimated 8 percent of the first quarter's profits (from both the Kansas and the Colo-
rado operations) for the profit-sharing fund. Additional similar entries were made
after the close of the second quarter ending December 29, 1962, and the third quarter
ending late in March 1963. No cash was actually paid over to the trustee, nor was
any intended before the close of the fiscal year on June 29, 1963. Moreover, no
employee was permitted to contribute until after that date.
On March 14, 1963, the head of the Respondent's advertising department verbally
explained the changes to the employees in that department. During the same month
store meetings for a similar purpose were held by managers in approximately 47
stores in Kansas.
Early in April the Respondent distributed to some of the warehouse employees at
meetings a document explaining the details of the profit-sharing plan, which docu-
ment had been printed in the advertising department of the Hutchinson warehouse
several weeks earlier.32 Dillon "read it over with [the employees] and explained
what it was all about." The document, consisting of six pages, contained examples
of how the new plan would work and the following statements, among others-
Our new Pension and Profit-Sharing plan went into effect July 1, 1962.
At the end of each year, each employee will be furnished a statement
showing how much he has in the fund, including earnings.
* * * * * * *
All employees employed before January 1, 1963, will be guaranteed at least as
much monthly retirement income after they become 65, as they would have re-
81 Standard Cost Products, Inc., 99 NLRB 899, at 907
32 The first batch was printed on March 12 or 13 and contained a statement* "This plan
will not apply to union members as they have a pension plan of their own " The second
run, which was distributed to employees, omitted that sentence. As the first batch, con-
taining this sentence, does not appear to have been distributed, no useful purpose would
be served by discussing the sentence's legality. Compare Melville Confectsons, Inc., 142
NLRB 1334.
THE J. S. DILLON & SONS STORES CO., INC. 1245
ceived under the old plan . . . All employees employed after January 1,
1963 . . . will not be guaranteed the same benefits as under the old plan.
During the last 6 months of 1962 the employees' share of the company profit
set aside for the profit-sharing was $125,000. This money will be credited to
the individuals eligible to participate in the plan ....
Beginning next July, employees may put into the fund up to 10 percent of
their total annual earnings in addition to the company contribution ....
(b) Contentions and conclusions
Paragraph V(g) of the complaint as amended alleges, and the answer denies, that
on or about April 3 Dillon "put into effect a profit-sharing plan retroactive to July 1,
1962, and advise[d] employees thereof." In his brief the General Counsel poses the
issue as follows: "The question is whether the announcement of the plan in detail in
April 1963, two weeks after the representation hearing [in Case No. 17-RC-4076],
tended to interfere with, restrain or coerce the employees." [Emphasis supplied.]
He argues that the announcement, coming when it did, tended to interfere with the
employees' interest in the Union and therefore, under the American Freightways
doctrine, violated the Act. The Respondent disputes this, contending in its brief:
"the preponderance of evidence clearly establishes that the Profit-Sharing Plan .. .
did [not] tend to interfere with the employees' Section 7 rights."
So far as the amended complaint alleges that the profit-sharing plan was "put into
effect" after the Union's advent at the Hutchinson warehouse-and assuming that
the General Counsel by his statement in his brief has not abandoned this contention-
the record shows the contrary. As found above, the plan was put into effect in 1962,
long before the Union's campaign began, and entries to effectuate it were made on the
Respondent's books. Furthermore, the plan was announced to the employees as far
back as early October 1962.
There remains the question, under the American Freightways principle, whether
Dillon's announcement of the plan's details in April 1963, "may reasonably be said
[to] tend to interfere with the free exercise of employee rights under the Act."
In my opinion, this must be answered in the negative. Considering that the October
1962, announcement had promised "a full description" of the plan at an undeter-
mined future date, and in light of the fact that the details were communicated to
affected employees outside the appropriate units 33 (including the employees of many
stores in Kansas), I am convinced, and find, that the announcement made by Dillon
on or about April 3 had no significant tendency to impair the rights of the employees
guaranteed in Section 7 of the Act. The Respondent's motion to dismiss paragraph
V(g) of the amended complaint is accordingly granted
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The J. S. Dillon & Sons Stores Co., Inc., is, and at all material times has been,
an employer within the meaning of Section 2(2) of the Act.
2. District 50, United Mine Workers of America, is, and at all material times has
been, a labor organization within the meaning of Section 2(5) of the Act.
3. By threatening its employees with reprisals if they join or assist the above-named
labor organization, changing their working conditions under such circumstances as
reasonably tended to interfere with the free exercise of their rights under the Act, and
warning them that they would lose benefits if they select the above-named labor
organization as their bargaining agent, thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed them in Section 7 of
the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
4. The unfair labor practices found above tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
5. The General Counsel has failed to establish that the Respondent put a profit-
sharing plan into effect or advised its employees thereof in such a way as to interfere
with the free exercise of their rights under the Act, or that the Respondent
discriminated against Edward Rupp within the meaning of Section 8(a)(3) of the
Act.
330n March 18, 1963, the Union had filed a petition in Case No. 17-RC-4109, seeking
to represent the employees in the Respondent's advertising department.
1246 DECISIONS OF icATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this case, it is recommended that The J. S. Dillon & Sons
Stores Co., Inc., Hutchinson, Kansas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening its employees with reprisals if they join or assist District 50,
United Mine Workers of America, or any other labor organization.
(b) Establishing, promulgating, instigating, or putting into effect any modification
or change in any, term or condition of employment of its employees under such
circumstances as reasonably tends to interfere with the free exercise of their rights
under the Act; provided, however, that nothing contained herein shall be construed
as requiring or compelling the Respondent to vary or abandon any economic benefit
or any term or condition of employment which it has heretofore established.
(c) Warning its employees that they would lose economic benefits if they select
the above^named labor organization, or any other labor organization, as their
collective-bargaining representative.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is found to be necessary and ap-
propriate to effectuate the policies of the Act:
(a) Post at its warehouse in Hutchinson, Kansas, copies of the attached notice,
marked "Appendix B." 34 Copies of such notice, to be furnished by the Regional
Director for the Seventeenth Region, shall, after being signed by an authorized
representative of the Respondent, be posted immediately upon receipt thereof and
maintained for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply
herewith.35
"If this Recommended Order should be adopted by the Board, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. If the Board's Order should be enforced by a decree of a
United States Court of Appeals, the notice shall be further amended by the substitution
of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for
the words "A Decision and Order"
311f this Recommended Order should be adopted by the Board, tins provision shall be
modified to read- "Notify the said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
CORRECTIONS OF THE OFFICIAL TRANSCRIPT
1. Page 15, line 15: Strike the word "caused" and substitute therefor the word
"discussed."
2. Page 56, line 15: Strike the word "closed" and substitute therefor the word
"close."
3. Page 73, line 20: Strike the word "reframed" and substitute therefor the word
"framed."
4. Page 78, line 1: Strike the word "subjects" and substitute therefor the word
"subsections."
5. Page 143, line 7: Strike the word "successful" and substitute therefor the word
.,suggested."
6. Page 150, line 2: Strike the word "say" and substitute therefor the word
"stay."
7. Page 165, line 16: Strike the words "what then" and substitute therefor the words
"that when."
8. Page 183, line 3: Strike the word "admitted" and substitute therefor the word
"amended."
9. Page 189, line 8 : Strike the name "Williamsburg" and substitute therefor the
name "Wellington."
10. Page 191, line 17: Strike the words "that, that love."
11. Page 191, line 18 : Strike the words "notion that Congress didn't accept to."
RETAIL CLERKS UNION LOCAL NO. 324 , ETC. 1247
12. Page 191, line 19 : Strike the words "a power" and substitute therefor the words
an employer."
13. Page 192, line 2: Strike the numeral "(6)" and substitute therefor the letter
14. Page 196, line 3: Strike the word "normal" and substitute therefor the word
"formal."
15. Page 204, line 4: Strike the word "line" and substitute therefor the word
"volume."
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Relations
Act, as amended, you are notified that:
WE WILL NOT threaten our employees with reprisals if they join or assist
District 50, United Mine Workers of America, or any other union.
WE WILL NOT change the working conditions of our employees in such a way
as to interfere with the free exercise of their rights under the National Labor
Relations Act, as amended.
WE WILL NOT warn our employees that they will lose benefits if they select
a union as their collective-bargaining agent.
WE WILL NOT in any related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist District 50, United Mine Workers of America, or any other union, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from such activities.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any union.
THE J. S. DILLON & SONS STORES CO., INC.,
Employer.
Dated------------------- By------------------
-------- - -----------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Anyone having any questions concerning this notice or compliance with its pro-
visions may communicate directly with the Board's Regional Office, 1200 Rialto
Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No. Baltimore
1-7000, Extension 2732.
Retail Clerks Union Local No. 324 , Retail Clerks International
Association , AFL-CIO and Vincent Drugs No. 3, Inc. Case No.
21-CB-1918. October 28, 1963
DECISION AND ORDER
Upon unfair labor practice charges duly filed on July 5, 1962, by
Vincent Drugs No. 3, Inc., herein called the Employer, the General
Counsel of the National Labor Relations Board, by the Regional Di-
rector for the Twenty-first Region, issued a complaint on September
13,1962, alleging that Retail Clerks Union Local No. 324, Retail Clerks.
International Association, AFL-CIO, herein called the Union, had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8(b) (2) and (1) (A) of the National Labor Rela-
tions Act, as amended Copies of the charges and the complaint, the
144 NLRB No. 108.