Winn-Dixie Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1965

153 N.L.R.B. 273 (N.L.R.B. 1965)

WINN-DIXIE STORES, INC. 273
Employees may communicate directly with the Board's Regional
Office, 746 Federal Office Building, 167 North Main Street, Memphis,
Tennessee, Telephone No. 534-3161, if they have any question concern-
ing this notice or compliance with its provisions.
Winn-Dixie Stores, Inc. and Meat Cutters, Packinghouse and
Allied Food Workers Union , Local 433, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO.
Case No. 12-CA-2878. June 3;?, 1965
DECISION AND ORDER
On February 15, 1965, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, Respondent, the General Coun-
sel, and the Charging Party filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers
in connection with this case to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.'
i The Trial Examiner refused to count the authorization card signed by employee
Foracker (sometimes referred to as Fouracker in the transcript) in computing the num-
ber of valid cards on the crucial dates. He did so on the ground that there was no reliable
evidence to corroborate the December 31, 1963, date written on the card. We do not
agree. The card is imprinted with a union date stamp of January 11, 1964. Robert
Ackerman, the Union's secretary-treasurer, identified the date stamp on Foracker's card
and stated that it was the Union's practice to affix the stamp on the next business day
following receipt of cards. On the basis of the entire record, and particularly the above-
related testimony, we find that Foracker signed his card prior to the two demand dates.
As the inclusion of Foracker's card would not give the Union a majority, we shall not
disturb the 'F al Examiner's conclusion that Respondent was under no statutory duty
to bargain.
At the hearing , the complaint was amended to allege that Respondent 's garage super-
ictendent, Abbott, had interrogated and threatened employees Lewis Champion and Irving
Fleming in violation of Section 8(a) (1) of the Act. The Trial Examiner did not discuss
153 NLRB No. 29.
796-027-66-vol. 153-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Respondent, Winn-Dixie Stores, Inc., Jacksonville, Florida, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
this aspect of the case in his Decision. The uncontradicted testimony of Champion was
that in December 1963 Abbott called Champion into his office and questioned Champion
and Fleming, who was also present, as to whether and why they had signed union cards.
Abbott also warned Fleming, who had denied signing a card, that if Abbott found out he
had signed he was going to fire him, but that if Fleming had not signed, he had a job at
Winn-Dixie "as long as he wanted to." Champion further testified that a few weeks
after the above-related incident Abbott told Champion that, "I have been waiting for you
to come in my office and tell me you was through with that union and I would hate to
tell you the second time what could happen to all the fellows that participate In that
union " In view of this testimony, we find that Abbott interrogated and threatened em-
ployees Champion and Fleming in violation of Section 8(a) (1) of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and amended charges filed by Meat Cutters, Packinghouse and
Allied Food Workers Union, Local 433, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, herein called the Union, on March 5,
June 15, and July 23 and 29, 1964, respectively, against Winn-Dixie Stores, Inc.,
herein sometimes referred to as Respondent or Company, the General Counsel of
the National Labor Relations Board issued a complaint and notice of hearing dated
July 29, 1964. The complaint, as subsequently amended on September 17, 1964,
alleged that Respondent had engaged in unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein
called the Act. In its answer Respondent admitted certain allegations of the com-
plaint, as amended, but denied the commission of any unfair labor practices. A hear-
ing was held before Trial Examiner George J. Bott at Jacksonville, Florida, on
October 5, 6, 7, 8, and 9, 1964, at which all parties were represented. Subsequent
to the hearing, counsel for the General Counsel and the Respondent filed briefs which
have been fully considered.
Upon the entire record 1 in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation with its principal office in Jacksonville,
Florida. Respondent owns and operates a multistate chain of retail grocery stores
and included within the chain are company-owned warehouses. The Company's
warehouse in Jacksonville, Florida, is the only warehouse or store involved in this
proceeding.
During the year prior to the issuance of the complaint, Respondent, in the course
and conduct of its business operations, had a gross volume of business in excess of
$10 million, made shipments of goods valued in excess of $50,000 to its stores in
Florida directly from States other than the State of Florida, and shipped from its
warehouse in Jacksonville, Florida, to points outside the State of Florida goods
valued in excess of $50,000.
l Respondent's motion to correct the record is granted, except that, as General Counsel
points out in his motion, Hixon's name Is properly spelled Hixon, at pp. 34, 36, and 37;
and Striglers', at p 638, is Striglers. General Counsel's motion to correct the record,
which Is opposed In part by Respondent, is also granted, except in the following respects:
At p. 18, 1. 9, the record is correct, except that "6" should be "96"; at p. 556, 1 13,
Xenophone is spelled with an "X," as Respondent points out ; the requested changes of the
record at pp. 611, 613, and 614 to make "production" read "perishable" are denied, be.
cause the word is "produce," as Respondent suggests.
WINN-DIXIE STORES, INC. 275
Respondent concedes, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The evidence as to alleged violations of Section 8(a)(1) of the Act;
findings and conclusions with respect thereto
Union activity among the employees in the alleged appropriate unit in this case 2
appears to have begun in late November 1963, according to the testimony of Robert
Ackerman, secretary-treasurer of the Union, and Leo Donaldson, one of the alleged
discriminatees in the case. Ackerman testified that Donaldson and two or three
other employees of Respondent got in touch with him in November 1963, that he
held meetings with them in the last week of November, as well as in December 1963,
and the early months of 1964, at which cards designating the Union were signed by
a certain number of employees. Donaldson corroborated Ackerman with respect to
the inception of the union activity among the employees involved and his role in it.
I find that there was a substantial amount of union activity as early as the last week
in November 1963, and that this activity, including solicitation, union card signing,
and attendance at union meetings, continued through late January 1964, when
Respondent admittedly became aware of it, and thereafter. During this period cer-
tain of Respondent's supervisors are asserted to have engaged in certain conduct or
made certain statements to employees which were unlawful.
1. Respondent interrogates Striglers and asks him to report
on union activities
Employee William Striglers signed a union authorization card on December 8,
1963. He testified that Gordon Keeling, perishable warehouse superintendent, and
John Blackburn, superintendent of the entire warehouse and Keeling's superior, spoke
to him about the union activities in the warehouse. According to the witness, on
January 11, 1964, during the night shift, Keeling told Striglers to come to the office
in the meat department to see him after he finished work. At 3 a.m., after work,
Striglers went into the office. Keeling asked the employee if there was anything he
wanted to tell Keeling, and Striglers said there was not. Keeling asked if Striglers
was involved in the "trouble Clarence Bowen was in," and Striglers denied that he
was. It should be noted here that employee Clarence Bowen signed a union card on
December 8, 1963, and according to the testimony of Respondent witness, Ellis
Courson, foreman of the grocery department, Bowen came to Courson's home in
late January, told him he had gone to a union meeting, signed a union card, and
wanted to "get out of it."
After asking Striglers about Bowen, Keeling asked him if he had signed a card.
Striglers denied it, and Keeling questioned him about the activities of other employees
in the department, naming them by name and inquiring whether they were "involved"
with the union activities. Striglers stated that he had no information, and Keeling
accused him of lying to him. Keeling spoke against the Union, stating that it dis-
rupted relationships between employees and employer and that an employee could
not thereafter bring his "troubles" to the Company. He concluded that Striglers was
in "trouble" and that he should telephone Blackburn at 9 o'clock that morning.
Keeling wrote Blackburn's telephone number and extension on a piece of paper and
gave it to the employee, advising the employee to keep their meeting secr@t.
Striglers telephoned Blackburn at 9 a.m., and Blackburn told him to come in to
see him at 10 o'clock in his office in the grocery department, which Striglers did.
21n Winn-Dixie Stores, Inc., 138 NLRB 1355, enfd. 324 F. 2d 502 (C.A. 5), Respond-
ent was four l to have refused to bargain with the union in a unit of meat and cheese
processing employees at the Jacksonville warehouse, and to have otherwise interfered
with, restrained, and coerced employees in violation of Section 8(a) (1) of the Act. In
Winn-Dixie Stores, Inc., 147 NLRB 788, Respondent was found to have violated Section
8(a)(5) and (1) of the Act by discontinuing the cheese processing and packaging opera-
tions at the warehouse in March 1963 The unit in this case is in the same warehouse,
but involves predominantly shipping and receiving employees, although there is a dispute
about the inclusion of certain other categories. See section III, C, 1, infra.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Striglers testified that when he arrived Blackburn asked him what he wanted and
that he replied that Keeling told him to telephone Blackburn and that he was there
to tell him what he and Keeling had talked about early that morning. Blackburn
asked the employee what he and Keeling had talked about, and Striglers told him it
was the Union. Blackburn then asked Striglers if he had signed a union card, which
Striglers denied. Blackburn then inquired whether Striglers knew who was involved,
but Striglers gave no information. Blackburn asked where the employees went after
work and what they talked about, but Striglers was evasive. Blackburn accused him
of lying, said he knew Striglers was involved in the union activity and asked him if
he had not talked with employee Clarence Bowen. Striglers answered that he had
and that Bowen was a union member. Blackburn continued to press Striglers for
information, asking him for names and accusing him of lying. Striglers continued
to deny any involvement with the Union or knowledge of it, and he said that he
finally convinced Blackburn who told him to inform him if he obtained any infor-
mation about the Union.
In their conversation Blackburn spoke critically of the Union, and, according to
Striglers, stated that Winn-Dixie was "not going to have a union." Subsequent to
their meeting, Striglers said, Blackburn would see him at work, stop, and ask if the
employee had "heard anything."
Keeling admitted to a meeting with Striglers, but his version of the reason for it
and what occurred in it is substantially different from Striglers'. He testified that
he had seen several employees "talking and roaming about the warehouse," and he
thought that they might be dissatisfied with something that he had done. Because
he had been superintendent of that operation for a short period, he deduced that no
one would tell him what was wrong and he called in Striglers for help "on the prob-
lem" because of his "being associated ... and talking to several of them." He said
he asked Striglers if the employees had any "gripes" or whether Keeling was doing
something that they did not like. According to Keeling, Striglers said that, as far
as he knew, none of the men had any grievances, and Keeling replied, "Okay, that's
all I want to know."
Asked why he gave Striglers Blackburn's telephone number, Keeling replied that
after talking with Striglers for 10 or 15 minutes he decided that Striglers was not
going to tell him whether or not the employees had a grievance, which indeed might
be about Keeling himself, but that Striglers "might tell Mr. Blackburn if he wouldn't
tell me."
Keeling denied that he knew of any union activity going on at the time of the
Striglers interview, and he said he did not ask him if he had signed a union card or
who else was involved in union activities. He also denied that he told Striglers that
he was in trouble. Under cross-examination, Keeling stated that he discussed the
Union with no one, including his fellow supervisors. He was also asked if he knew
whether employee Martin had signed a union card, and said he did not. He stated
that he never talked union with Martin. His first knowledge of the union activities
was received in the latter part of January, according to Keeling, when Blackburn
told him that employee Bowen had visited a supervisor's home.
John Blackburn testified that Striglers telephoned him about 9 a.m. on a Saturday
morning, "mumbled something over the phone" which Blackburn could not under-
stand, and Blackburn told him if he wanted to talk to come in. He said he did not
know at that time why Striglers wished to see him. Striglers arrived at Blackburn's
office, was motioned in, and sat down silently. After about 30 or 40 seconds, accord-
ing to Blackburn, the employee told him that he had talked to Keeling the night
before "about different phases of the operation and the perishable warehouse and
about the buzzing and talking going around, and that Keeling talked about that."
He said he did not ask Striglers if he had signed a union card or if he knew who was
involved with the union. In addition, he denied that he accused Striglers of lying
or asked him to make reports about union activities. He also said he did not say
Winn-Dixie would not have a union. Blackburn's first knowledge of union activities,
he said, came to him in late January or early February 1964 from Supervisor Courson
who told him that employee Bowen had visited his home and informed him that he
signed a union card.
Striglers, in my opinion, was the most credible witness of the three, and I accept
his version because of various considerations. In the first place, Striglers told a
straightforward story on the witness stand in an apparently credible fashion. His
account was simple and unexaggerated and has certain internal factors which support
it, as contrasted with Keeling's account, which is implausible on its face. Striglers
did not ask for the meeting with Keeling, Keeling called him in. Stnglers did not
volunteer to go to Blackburn, Keeling suggested it and gave the employee Blackburn's
telephone number, and Striglers was told to come in when he telephoned Blackburn.
WINN-DIXIE STORES, INC. 277
Striglers' presence in Keeling's office also coincided with union activity among the
employees, and cannot be easily explained away by some mysterious dissatisfaction
among employees with Keeling, as Keeling said he feared, without some corrobora-
tion of it, but there is nine. Another factor within the Striglers' version which sup-
ports it is the mention of Clarence Bowen, who admittedly had signed a card and
gone to see Supervisor Courson. Striglers' statement that Bowen was suggested as
the connecting link to Striglers dovetails with Bowen's contact with Courson as well
as the fact that he signed a union card at the same time and place as Striglers.
Conversely, Keeling's account does not hang together, but to the contrary sounds
unlikely. Why he should pick Striglers out from a group of men to discuss Keeling's
possible failings as a supervisor was never made too clear by Keeling, and Keeling's
explanation that he sent Striglers to Blackburn, who is Keeling's superior, so that
Striglers could tell Blackburn privately where Keeling had fallen down, is hard to
accept. Keeling, in my view, had some information that Striglers knew something
about the Union, but Striglers successfully threw him off the track, so Keeling sent
him to Blackburn for another interview.3 Finally, I do not accept Blackburn's state-
ment that he did not know why Striglers wanted to see him, as well as the clear
implication of his testimony that Striglers' telephone call was completely unexpected.
Keeling would not have sent a potential informer against either himself or the Union
to Blackburn without preparing Blackburn with at least a telephone call.
I find that Keeling, on or about January 11, 1964, interrogated Striglers about
employees' union activities and threatened said employee by admonishing him that
he was in "trouble." I also find that John Blackburn interrogated Striglers about his
union activities and the activities of others, and, in addition, asked Striglers to report
to Blackburn any information he could get about employees' union activities.
2. Blackburn talks with other employees in January, February,
and March, 1964
The complaint also alleged that Blackburn made statements to other employees in
violation of law during the months of January, February, and Maich, 1964. Black-
burn conceded that he talked with employees about the Union, but again his version
is different from theirs.
Employee Ernest Lott, who has worked in Respondent's drug department for 14
years, testified that Blackburn talked separately with him and other employees in
the drug department in March 1964. The employees were concededly called, one
at a time, over the public address system to Supervisor Joseph Foster's office for the
discussions. According to Lott, Blackburn interviewed him privately, after Foster
left the office, and asked him if he had signed a union card. Blackburn said the
Union had claimed a majority but that he did not believe it. Blackburn asked the
employee what the Union could do for him and stated that the Union wanted only
his dues. Lott stated that Blackburn wanted to know how many children he had,
and told him to think how they would suffer if he went on strike, because Lott could
be replaced during a strike. Blackburn said he hoped that the employee had not
signed a card, but also asked him how many meetings he had attended. Lott also
said that Blackburn spoke about what would happen if the Union should get in at
Winn-Dixie. He said that bargaining would start froi,i scratch and the employees
would lose certain benefits, such as retirement, paid vacations, and insurance.
George Macon was also employed in the drug department of the warehouse under
Foster and was interviewed by Blackburn in March 1964. He said Blackburn asked
him if he knew anything about the Union, if he had signed a card, and whether he
knew if employee Graham had. Blackburn wanted to know how many children
Macon had and if he knew that if the Union were successful "the retirement fund
would be stopped." Strikes were also mentioned by Blackburn, who cited an example
of an employee who had lost his home and car because of a strike.
Blackburn talked to employee Henry Sharp of the drug department in Foster's
office on the same day in March that he talked with the others in that department,
and, according to Sharp, Blackburn asked him if he had signed a card or heard any-
thing about the Union. Blackburn said that the Company would "start from scratch"
in bargaining and employees would lose benefits by signing with the Union. Black-
burn wanted to know how many children the employee had and suggested that
3 Keeling's statement that he never discussed the Union with employees or even fellow
supervisors was incredible. Indeed, employee Martin, witness for Respondent, credibly
testified that Keeling asked him about the Union.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sharpe's family would suffer in a strike. Sharpe was also asked if he had ever bor-
rowed money from the Company, and he said he had. Blackburn indicated that this
practice would cease if the Union were successful.
Dewitt Cooper of the drug department was interviewed by Blackburn in March
1964. Cooper recalled that "profit-sharing" was mentioned, with Blackburn stating
that the employee would lose benefits if the Union were to get in.
Marion Graham, also of the drug department, was questioned by Blackburn, he
said, and asked if he had signed a union card. Graham said Blackburn explained
to him what benefits the Company "had to offer" and "what we would lose" if the
Union came in.
Jerry Thornton, sent for by Blackburn and interviewed on March 14, 1964, in
Blackburn's office, was asked "what the union could do for him." He said Blackburn
told him that if the Union came in the employees would lose benefits, such as profit-
sharing and vacations. A few days later, Blackburn asked the employee if he had
thought about their previous conversation and he agreed that he had. Blackburn
then asked him if he had signed a union card and Thornton admitted that he had.
Asked why, he stated that he had heard that the Company was going to get rid of
.,all the old colored help," but Blackburn told him that his information was wrong.
Sometime later at a time which the witness could not recall, but which he said was
the same day that employee Leo Donaldson was called to Blackburn's office, Black-
burn had him in the office to tell him to stop "pestering the men about signing cards."
He said Blackburn mentioned his going to employees' homes as well as "pestering"
them on the job.
Willie Upson was talked to by Blackburn in March 1964, he said, and was asked
what he thought of the Union and what it could do for him. Blackburn asked him
if he had signed with the Union, and he admitted that he had. Then Blackburn
stated, according to Upson, that employees would lose benefits like profit-sharing,
because "you have to start from scratch." Under cross-examination he conceded
that Blackburn said that if the Union won there would be negotiations and that the
"benefit program was subject to negotiations."
Employee David Whitehead testified that Blackburn questioned him at work in
January 1964. He said Blackburn asked him if he had joined the Union, would he
join, and what he would do in the event of a strike. Whitehead told him he did not
know because he had a family to consider. Whitehead also recalled that employee
Neloms was nearby and that Blackburn went to speak with him after he finished with
Whitehead.
Ulysses Neloms said that Blackburn spoke with him one day in January 1964, while
Whitehead was standing near, and asked him upon what date he had signed a union
card. Neloms had signed a card in December 1963.4
Blackburn spoke with Ivory Cox, employed as janitor in the warehouse, in March
1964. Cox said Blackburn told him that he understood that a majority of employees
had signed cards and asked Cox if he had and, if so, why. Blackburn said that if
the employees went on strike they would lose their profit-sharing and other benefits.
Under cross-examination it was developed that Blackburn had spoken to Cox at an
earlier date, perhaps in January 1964.5 Blackburn told the employee that he had
information that some employees were trying to "get the company in trouble" and
mentioned the name of a union official which Cox thought was "Hoffa." He said
that Cox "would understand" what he meant.
Theodore Rutledge testified that Blackburn called him into his office sometime
after he had signed a card for the Union and asked him if he had, which Rutledge
admitted. Blackburn asked him why he let the men "mess" him up, and he replied
that he did not know. Rutledge told Blackburn that he had attended two union
meetings when Blackburn asked him. Blackburn told him to go home, talk with
his wife, and let her know how the men had "messed" him up. Rutledge had signed
a union card on December 29, 1963, and he thought that his conversation with Black-
burn occurred in the following January."
+ Whitehead and Neloms were spoken to on the same day. Whitehead thought it was
In the middle of January , but he was not sure . Neloms thought the conversations took
place in January , but he admitted it could have been February.
5 Cox was not sure of the date of this talk and said it was "possibly January" 1964
6 Rutledge also said he had two conversations with Blackburn , one about production and
the other about the Union . He stated that they were about a month apart and that the
second talk-the union talk-occurred after the enlarged photograph of a union meeting
was posted by Respondent . If this is so, then the union conversation occurred in March,
for the picture was posted in early March 1964 , and the first conversation must have been
in February.
WINN-DIXIE STORES, INC. 279
Employee Chester Young testified that he was told by Supervisor Koontz to go to
Blackburn's office which he did. Blackburn asked him if he had signed a union card,
which he admitted, and also asked him if Leo Donaldson had taken him to the Union
to sign a card. He denied it, and said he had gone on his own. He was uncertain
about the date of the event, but thought it had occurred in April or May 1964.
Donald Allen, a former employee, was hired in February 1964 and discharged in
the summer of 1964. He testified that he was interviewed by Blackburn at the time
of employment and asked how he felt about the Union. He told Blackburn that he
was not thinking of the Union and had nothing to do with it. He said that Blackburn
also questioned him on more than one occasion, in March 1964, about whether he
had been approached in reference to the Union and asked to sign a card. He also
testified that sometime shortly after March 1964, Blackburn assembled all the white
employees employed as selectors and spoke against the Union. According to Allen,
Blackburn "cautioned" them not to sign cards, and said that he did not want a
"nigger union in the warehouse."
Blackburn also talked about the Union with employees Leo Donaldson and Porter
Turner, two of the alleged discriminatees in the case, sometime in March 1964.
Donaldson testified that he went to the warehouse office on March 25, 1964, his day
off, to get his paycheck and was told by Supervisor Corley that Blackburn wanted
to see him in his office. Donaldson saw Blackburn who, according to Donaldson,
opened the conversation by stating that "they" claim a majority, "but we say they
have not." Donaldson made a noncommittal remark, and Blackburn stated that "you
did sign a card, didn't you," which Donaldson admitted. Blackburn then told the
employee that unions could do him no good, because they merely made promises and
called strikes. Donaldson replied that he would take "his chances" with the Union.
Blackburn then told him that he had called him in to warn him about going to
employees' homes and "harassing them about signing union cards." Porter Turner
said that Blackburn approached him at work on March 12, 1964, stated that the
Union claimed a majority, and asked him if it were true. Turner said he did not
know. Blackburn asked him what he thought the Union could do for him, and the
employee suggested "job security." Blackburn told him he was wrong and that there
would be no union at the Company. He added that he thought Turner had made
a mistake, that he had forgotten that the Company had paid for his car and his ali-
mony. Blackburn asked him what he would do in a strike and told him he could
be replaced by employees from one of the Company's other divisions. Turner then
asked Blackburn how he could get his card back from the Union, and Blackburn told
him that he had gotten himself in it and could get himself out.
Blackburn conceded that he discussed the Union with all of the employees whose
testimony has just been outlined, but he denied that he threatened employees, improp-
erly interrogated them about themselves or others, or said various other things con-
tained in the testimony given by the employees. He said that his talks with employees
followed a certain general scheme, which he called a "format," and which he elabo-
rated on in employee Lott's case He said that he went into the drug department
on March 19, 1964, and told Supervisor Foster to call the men in on the public
address system. Lott was first and he, in Blackburn's words, "briefed him more or
less" as follows: He told Lott that the Union claimed a majority of employees had
signed cards and asked Lott what he thought the Union could do for him Lott
thought the Union could not do anything for him, and then, according to Blackburn,
the two discussed "various phases of the operation in the warehouse and drug depart-
ment, how he was getting along with the job, did he have any particular problems
that needed to be brought to my attention ...." Blackburn continued that Lott said
he had no problems and ". . . he seemed pretty well satisfied, liked it. As I remember,
Ernest has a number of children. We discussed that. I was amazed, I didn't know
at that time that he had so many children. And we went over the employee benefits,
hospitalization and insurance program. We also discussed that if a union won the
bargaining, if it came to that, in case of a strike, that he could be replaced and not
taken back." He continued that, with respect to benefits, "Ernest was told that they
would be and could be subject to negotiations before a contract was signed."
As indicated above, Blackburn said he held a number of discussions with employ-
ees in the middle of March, but the "format" followed the same general line that he
had outlined in Lott's case. He was referred to the testimony of each witness who
had testified about his interviewing them and specifically denied certain statements
attributed to him. No point would be served by referring to the testimony of every
witness he contradicted-examples should suffice-because he said the "format" was
always the same.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said he did not ask employee Macon if he or employee Graham had signed
union cards. The interview, he said, was in the same format; that the Company had
a letter from the Union and it did not believe the Union really had a majority. He
denied that he asked Chester Young if he signed a card and if Leo Donaldson had
taken him to the Union to sign a card.
When Blackburn interviewed Donald Allen for employment, he did not ask him
how he felt about unions, but, according to Blackburn, he merely outlined employee
benefits to him and explained Winn-Dixie 's position regarding labor unions. He
denied, as Allen had testified, that he told a group of white selectors that the Com-
pany did not want a "nigger union , and would go to any extent to keep it out."
In regard to Ivory Cox's testimony, Blackburn said that the incident occurred
when he was walking through the warehouse and noticed that Cox was cleaning up
some broken cases of merchandise. This caused him to stop and ask Cox what had
happened. After a few minutes conversation, Blackburn mentioned the "letter of
demand that had come from the union, and along the same format that we have on
the other men " He did not ask Cox, however, if he had signed a card.
Blackburn denied that he had told Henry Sharp that he would lose his retirement
benefits and that the Company would eliminate the loan program if the Union came
in. He said he told the employee that the benefit program was subject to negotiation
if the Union won the election. In talking with employees Cooper and Graham, he
used the same "format," he said.
Blackburn recalled the time and place of his conversations with Whitehead and
Neloms. He said they were not together, however, and he denied interrogating them.
The conversation took place in late February, he said, and not January, as Whitehead
had testified.
Blackburn said he warned Donaldson against soliciting for the Union on the job
and also warned Thornton against "harassing" employees at work in reference to the
Union, which was contrary to the testimony of these employees that the interdiction
was general and included visiting employee homes as well.
Employees Lott, Macon, Sharp, Graham, Thornton, Upson, Whitehead, Neloms,
Cox, Rutledge, Young, Allen, Donaldson, and Turner all testified that Blackburn
interrogated them about the Union. The employees appeared to me to be testifying
in a straightforward manner, and, although some of them were hazy about dates or
other detail, they appeared to be giving all they could recall without reserve and as
they remembered it without exaggeration Blackburn, on the other hand, although he
could remember exactly when he talked with various employees and certain very
unimportant details surrounding the meetings, confined himself, in describing the
substance of the conversations, to the conclusion that they were of the same "format"
as in Lott's case.? His testimony impressed me as contrived to conceal the important
facts In addition, Blackburn's own account of his talk with Lott, which he said was
the "format" for his talks with the others, sounds false. Blackburn's version, as he
gave it, is set out above. His statement that he and employee Lott "went on about
various phases of the operation in the houseware and drug department .. " does not
ring true and is also, in my opinion, an example of an attempt to pitch the conversa-
tion with the employee on a wholly innocent plane. The entire account as given by
Blackburn does not sound like it was held with employee Lott, the warehouse
laborer. Lott said Blackburn told him to think how his children would suffer if he
went out on strike. Blackburn testified that ". . Ernest has a number of children
We discussed that. I was amazed ...." The thing-stylistically-speaks for itself.
Lott's story sounds true, Blackburn's false. Blackburn could not have been calling
employees in to supplement their income tax withholding forms and without reference
to the union problem with which the Company was concerned at the time. Finally,
Lott had testified that Blackburn said that bargaining "would start from scratch" and
the employees would lose benefits such as retirement, vacations, and insurance if the
Union got in. Blackburn denied it, but said that "Ernest was told that they would
be and could be subject to negotiations before a contract was signed." Blackburn's
stilted statement, if true, which I do not believe, is milder than the letter he wrote to
7 Blackburn's recall of exactly what Whitehead was doing before Blackburn talked with
him, and that Neloms was "50 to 60" feet away at the time, sounded unreal and was a
clever attempt, in my view, to discredit the employees who testified that they were close
to each other when interviewed The employees, incidentally, did not attempt to cor-
roborate each other about the content of the interviews. In Thornton's case, Blackburn
denied talking with him on a second occasion about the Union, as Thornton had testified,
but he remembered a conversation with him about "conditions of the warehouse from a
merchandise standpoint " Blackburn would rather talk about "the warehouse from a
merchandise standpoint" than discuss the meat of his talks with the employees about
the Union.
WINN-DIXIE STORES, INC. 281
the employees on February 17, 1964, in which he said that ". . . conditions are subject
to negotiations. You don't start at what you have-you start from scratch." It
would seem that Blackburn in his private talks with employees would be at least as
informal, if not more so, as in his written communications to them. It is clear from
the tenor of the talks, even so much of them as is admitted, that Respondent was
doing much more than merely testing a union's claim to majority status, but was also
attempting to at least persuade and convince the employees that Respondent would
prefer that they not choose the Union. Lott's statement that Blackburn said "you
start from scratch" and that benefits would be lost is more in keeping with the
Blackburn letter and with what the Company was trying to do I find that Blackburn
expressed himself on this point more like Lott said he did than Blackburn testified,
and that, in any event, Lott and the other employees who testified on this point got
the message in the meetings that Blackburn intended they get; namely, that they
would lose existing benefits such as pensions, insurance, and the like if the Union were
selected by a majority of them Blackburn, therefore, orally threatened employees
with loss of present benefits if they selected the Union.
I also find, in accord with the testimony of the employees whose names are set
forth above, that Blackburn interrogated them about employees' union activities, as
alleged in the complaint.
I also find that Respondent, by John Blackburn, on or about March 15, 1964,
warned employees Donaldson and Thornton to stop engaging in union activity.
I also find that Respondent, by John Blackburn, told employee Turner, on or about
March 12, 1964, that he had made a mistake by becoming involved with the Union
and that Respondent would not have a union.
Respondent, by Blackburn, also warned a group of assembled employees not to
sign union cards, as testified to by Donald Allen, and said he did not want a "nigger
union in the warehouse," and it is so found.
Respondent, by Blackburn, also told employees Lott, Macon, and Sharp, in the
context of questions about their union activities and threats of loss of benefits, that
they would be replaced in the event of a strike.
Respondent also, by Blackburn, on or about March 15, 1964, admonished an
employee to refrain from signing a card and told another that he should not sign
because the Union was merely interested in his dues.
3. The posting of the enlarged photograph of employees and references to it
Robert Ackerman, official of the Union, made a photograph of a group of Respond-
ent's employees at a union meeting and it was published in the March 1964 issue of a
union publication. On or about March 9, 1964, Respondent posted enlargements of
the photograph at various locations in the warehouses Employee Chester Young saw
a copy of the posted enlargement of the union photogiaph near the timeclock and
bulletin board in front of Blackburn's office. He testified that Supervisor William
Koontz asked him if he were in the picture, and he admitted that he might be.
Koontz then asked him what the employees had gotten "mad" about that caused
them to sign union cards.
Employee Willie Upson remembered the posted photograph and testified that
Supervisor Koontz asked him if he were in the picture Willie was not in the photo-
graph, but his brother Clarence was. He told Koontz if he wanted information to
ask his brother. He said that Koontz asked him what he knew about the employees
signing union cards.
Employee Porter Turner testified that the enlargements of the photograph remained
posted for about 2 weeks in the warehouse and longer in the garage. He said that
Supervisor Wilson asked him why he had "his picture up there like Candid Camera."
Turner said he did not reply, and Wilson asked him why he "let them boys mess you
up ...." According to Turner, Supervisor Corley also mentioned the photograph to
him on the following day. He said Corley said he noticed Turner's picture on the
wall and wanted to know what it meant. Turner replied that it meant job security,
and Corley made some comment indicating that employees were taken care of with
light jobs as they got older.
Supervisor Koontz admitted that he referred to the enlarged photograph in a con-
versation with Young, but he denied that he asked Young why he signed a union
card. He said he did ask the employee what a union could do for him that the
Company had not already done and told Young, when Young answered that he could
get more money, that the Company was already paying a higher scale than other
employers. He said the picture was constantly being referred to by everyone in a
joking manner, and he agreed that he also mentioned it to Willie Upson He denied,
however, that he referred to Upson's brother or anyone else I credit Upson and
Young, and find that, in addition to asking them about their pictures, Koontz also
inquired about their signing union cards.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Wilson admitted that he made some reference to the picture in talking
with Turner, but he did not remember exactly what he said. He denied that he told
Turner that he had his picture on the wall like "Candid Camera" or asked him why
he had let the others "mess him up." He recalled that he did tell the employee that
he should not allow anyone to "talk him into anything, and that if he went out on
strike he could be replaced." I find that Turner's version is more reliable. Wilson
was not sure exactly what he did say to the employee.
Supervisor Corley flatly denied mentioning the picture to Turner, and said he had
no conversations with him about job security. I credit Turner.
4. Activities of Supervisor Joseph Foster
Dewitt Cooper, employee in the drug department under Foster, signed a union
card in January 1964. He testified that sometime in January, Foster asked him who
had signed union cards and told him he should let Foster know and get himself "off
the hook." Foster also asked him in February 1964, he said, whether he had gone to
a union meeting and how it was. He pretended not to know what Foster was talking
about, and Foster told him he knew that he and the others had been going to meetings
and signing union cards.
George Macon testified credibly that after the interview with Blackburn, in which
he denied signing a card or knowing anything about the Union, Foster approached
him and told him he knew that the employee had signed a card, because another
person had told him so.
Employee Marion Graham testified that his supervisor, Joseph Foster, talked to
him about the union activity several times beginning in December 1963. He said
that Foster asked him if he knew anything about it and said that after the activity
was over he would fire every man that belonged to the Union. Sometime after the
end of 1963, according to the employee, Foster asked him how things were at the
union meeting. At one time Graham asked Foster for a raise in pay, and he said
Foster told him if he got his union card back from the Union Foster might be able to
help him.
Foster denied that he asked Dewitt Cooper whether he knew who had signed
union cards or asked him to inform on otheis. He also controverted Graham's
testimony that Foster would fire union adherents when the activity was oNer, as well
as Graham's statement that he would get a raise when he got his card back from the
Union. Foster testified that he asked no employee about the Union and discussed the
Union with none of them. He said he had been instructed by Blackburn not to try
to find out about the Union, but if the employees came to him with questions, then
merely to explain the company benefits to them. He said no one came in to see him.
Foster, like other company supervisors, appeared to be concealing the whole truth
when his contacts with employees in reference to the Union was touched upon. I
credit Dewitt Cooper, Macon, and Graham, and I find that Foster interrogated them
all about the Union, implied that Cooper was in trouble by his reference to "get off
the hook," told Graham that he would engage in reprisals when the union activity was
over, and promised him a raise if he got his card back from the Union.8
5. The legal effect of Respondent's conduct
This is not the kind of a case, as suggested by Respondent in its brief, where an
employer, taken by surprise by a union's claim that it represents a majority of his
employees, merely questions employees about the union's claim in order to evaluate
its genuineness in good faith. Neither is it a case where the statements made to
employees during or surrounding their interrogation were just lawful economic
predictions .9 Interrogation about union activities or views is not unlawful per se.
Its coercive nature is determined by the circumstances surrounding it.'0 The fact
that Respondent spoke with employee Striglers almost a month before the Union
s Employee Graham was extremely hazy about the dates of Poster's Inquiries. It ap-
pears that they were actually after he signed his union card on January 11, 1963, and
I find that they did not occur before February. Dewitt Cooper signed his union card on
January 20, 1964, and the interrogation seems to have been after that He, like Graham,
had some difficulty with dates, putting the Blackburn interviews in February when they
were in March As in Graham's case, therefore, although I credit the substance of his
testimony, I find that Foster did not talk with him about the Union before February 1964
9 Texas Industries, Inc , at at v. N L R B , 336 F. 2d 128 (C.A. 5) ; N L.R B. v. Trans-
port Clearings, Inc., 311 F 2d 519 (C.A. 5) , C. L. Frank, Inc., 149 NLRB 350; Blue
Flash Express, Inc., 109 NLRB 591.
20 Blue Flash Express, Inc, supra.
WINN-DIXIE STORES, INC. 283
made its bargaining demand and asked him about his union activities is perhaps
enough to reveal the fatal defect in Respondent 's contention that it was testing the
Union's claim . In addition , in the Striglers case, as well as in the many interviews
with other employees, Respondent 's interrogation was not confined to inquiries about
majority status , but were accompanied by statements designed to pressure the
employee into interfering with the rights of others or abandoning his own. Striglers
was asked about "the trouble" that Bowen was involved in and questioned about the
union activities of the employees in his department . Keeling and Blackburn accused
Striglers of lying when he resisted their probings , and Blackburn asked him to inform.
Union dues and personal sufferings during strikes were suggested to Lott, Sharp, and
Macon; Thornton was asked what the Union could do for him; Rutledge was told he
was in a "mess" and told to talk it over with his wife ; and Turner was warned that
there would be no union at the Company . These and other examples make it evi-
dent that Respondent was doing more than assaying the Union 's claim to be the
majority representative.11
The interrogation was sometimes accompanied by threats . Blackburn said the
employees would lose benefits , and that was the clear and intended implication of his
remark about "starting from scratch" in bargaining , and was consonant with his
letter to all employees of February 17, 1964, in which he expressed the same thought
This was not a prediction of the possible economic consequences of unionism and
bargaining , but an implied threat of what the Employer would do about existing
employee benefits . Respondent 's continual reference to permanent replacement of
employees during a strike not only weakens its position that its interrogation of them
was only designed to check the Union's claim , but uttered in the context of its other
statements during the interviews , and at a time when it had not even recognized the
Union and no strike threat existed so far as this record is concerned , was coercive.
Finally, Respondent , by Supervisor Foster, threatened employees with discharge
because of their activities and promised one a raise if he left the Union, and other
supervisors ridiculed and interrogated employees about their appearances in the
enlarged photograph of their union meeting, which Respondent had prominently
displayed on its walls 12 Respondent 's threats and promises were clearly unlawful
and, considered in the totality of its actions , its interrogations of employees were also
improper.
I also find that Blackburn 's letter to Winn -Dixie employees of February 17, 1964,
in which he stated that if the Union came in, the employees would "start from scratch"
in negotiations , was, in the context of the other acts of coercion , a threat of reprisal
in violation of the Act.13
I find and conclude that Respondent , by interrogating employees about employees'
union activities ; by threatening employees with discharge because of their union
activities ; by promising an employee economic benefits if he withdrew from the
Union; by asking an employee to secure information about the Union and report it to
Respondent ; by threatening employees with loss of benefits if the Union were success-
ful in organizing Respondent ; by warning employees not to solicit other employees
for membership in the Union ; and by otherwise admonishing employees against join-
ing the Union , interfered with, restrained , and coerced employees in violation of
Section 8 ( a) (1) of the Act.
B. Alleged discrimination in violation of Section 8(a)(3)
1. Ernest Bennett , Carl Elliott , and Joe Kirkland
Bennett was a selector in the produce department under Keeling on the night shift
and worked in the same crew as Kirkland and Elliott, who are also alleged to have
been discriminated against. Bennett had been employed by Respondent for about 20
years when he was discharged on December 7, 1963, and he said he had never been
discharged or laid off prior to that time.
"Inconsistent with Respondent 's suggestion that its inquiries about the Union were
merely designed to test the Union's claim of majority is Blackburn 's and all other super-
visors ' denials that they asked any employee about his or anyone else's union activities.
to Not only is Respondent ' s history of union hostility a factor which may be considered
in assessing the nature of its interrogation , but the posting of the photograph and re-
ferring employees to it is very similar to the posting of the Union 's letter to the Com-
pany, which contained a list of employees who had signed cards , and supervision's
references to particular names, in the earlier case. See Winn -Dixie Stores , Inc, 138
NLRB 1355 , 1368. With respect to prior hostility as a relevant factor in assessing the
effect of interrogation , see NL.R .B. v. Cameo, Inc . 340 F. 2d 803 ( CA. 5).
12 Marsh Supermarkets, Inc., 140 NLRB 899.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bennett attended one of the first meetings of the Union, signed a union card on
November 24, 1963, and attended another meeting on December 1, 1963. He testified
that on November 27, 1963, Supervisor Keeling told him that "he was not doing
enough work" and would have to improve. He said Keeling gave him a "couple of
weeks to decide to do better." He added that Keeling said he would have to do
better or Keeling would fire him, and that he told Keeling that he was the boss and
it you want to fire me, you know just what steps to take." Bennett said he explained
to Keeling that his production was down because he was often taken off one job and
put on another, and, in addition, was assigned to the far end of the warehouse which
made him consume more time in pushing the load to its destination. Since the
employees were judged on a tonnage basis, this resulted in Bennett's tonnage being
down as compared to those at the other end of the building, he explained.
Bennett stated that he was moved to the nearer end of the building a few days
before he was discharged in order that his tonnage would improve, but that he was
discharged on Friday night, December 6, after a few hours' work. He said Keeling
told him when he paid him off that he had been low producer in 11 of the past 12
weeks, and that was why he was being discharged. Bennett said he "never was the
lowest man" in the crew, but perhaps was "two or three from the bottom " He added
that Keeling "had it fixed up" for him to get laid off Bennett admitted getting a
warning slip dated November 28, 1963, which states that he was below crew average
11 out of 12 weeks. The warning also states that the employee had 1 week to get
above the average or be terminated. The reprimand is signed by Bennett. He also
admitted to having received many warnings in the past.
The record shows that Bennett received a warning in writing from Supervisor
Strickland on October 10, 1962, telling him that he would have to do better to keep
his job. On August 11, 1962, he had received a similar warning from Strickland.
Bennett admitted to a warning from Supervisor Courson on April 16, 1963, which says
that he will be replaced in a week if his performance does not improve, and which
contains the notation "Last Warned." On October 25, 1963, Keeling gave Bennett a
written warning for "Poor performance, for the night and several preceding weeks.
Produce selecting set at minimum of 6800 per hour-if performance does not come
up to this standard immediately-and stay up he will be terminated." When Bennett
was terminated, Keeling prepared a notice of "personnel change." It recited that
Bennett was terminated because of continuous low performance at selecting and other
duties, and that "attitude toward job not satisfactory."
Under cross-examination Bennett agreed that employee performance records had
been posted publicly for the past few years, but when shown the performance sheets
for the weeks ending November 30 and December 7, 1963, which show him to be
lowest in production, he said he was not loading in the week of November 30, 1963,
and did not recall the December 7 performance sheet He insisted that he was not
the lowest man and stated that, in his opinion, the figures were wrong. He conceded,
however, that Keeling had spoken with him a number of times about his production.
Carl Elliott had worked in the warehouse for about 14 years when discharged
on January 9, 1964, from his job as selector in the produce department. Elliott
signed a union card early in the campaign on November 24, 1963, and attended
union meetings He testified that he had a conversation with Supervisor Keeling on
November 22, 1963, in which Keeling asked him what was going on in the ware-
house. He said Keeling said, "If you scratch my back, I will scratch yours," but
that he replied that his back was not itching. Keeling then stated, "We know that you
know something and sooner or later you are going to tell us about it." Elliott said
he did not know what the supervisor was talking about. He added that Keeling
mentioned the Union to him, stating that it was no good, could not get jobs for the
men, and that Elliott should be a "company man," because he had been employed so
long. According to Elliott, Keeling asked him to try and find out what the employees
were up to, but he refused, telling Keeling to ask the men himself. Elliott said that
a few hours later Keeling sent him home from work.
According to Elliott, when he arrived at work on his last day he was told that
Keeling wanted to see him. Keeling appeared and escorted him to Blackburn's
office. Blackburn told him that he had received several reprimands in the last 6
weeks, his work was not up to par and that he was discharged. He said Blackburn
said that Elliott knew something, but was "not talking," and that Keeling should,
therefore, "take him out the gate." Elliott said Keeling escorted him off the premises
and on the way out said to him, "You have a family, I am sorry, but it is either your
job or mine " Keeling also said, as they rode out the gate in Keeling's car, "... you
know something ... we would like to know, but you are not cooperating."
Under cross-examination, Elliott denied that he had ever torn employee production
sheets off the wall where they were posted or knowing anything about it. He also
denied having received certain warning slips and, in particular, denied that a warning
WINN-DIXIE STORES, INC. 285
slip of November 19, 1963, from Keeling was signed by him. He said he had received
only one warning slip. Elliott at first denied that he recalled being the lowest pro-
ducer in the crew in certain weeks to which he was referred, but he later stated that
he was low in some weeks He admitted that his supervisor had warned him about
it. but he insisted that the warnings were not in writing. The sole written warning
slip that he could remember was a warning given him by Courson for being late for
work.
Joe Kirkland was the third selector fired by Respondent and he had worked for
Respondent for about 10 years when he was discharged on January 10, 1964. Kirk-
land was active in a social club which existed among employees of Respondent before
the Union was organized. It appears that the club was actually an instrument for
considering employee work problems and that out of it grew the union idea and
organization. When the Union started, Kirkland signed a card on December 1, 1963,
and attended all the union meetings.
Kirkland testified that Supervisor Keeling, on December 22, 1963, accused him of
talking too much on the job and said if it continued the employee would be dis-
charged. Kirkland said there never had been a rule about talking at work, that all
employees talked, and that he was able to do his work well and still talk with the
other men. Kirkland said that about a month before he was discharged, Blackburn
asked him "what was going wrong with the colored fellows," that they were "acting
funny." Blackburn, according to Kirkland, said he knew that Kirkland knew what
was "wrong" because Kirkland was in constant contact with the men.
On the day Kirkland was discharged he was taken to Blackburn's office by Keeling,
his supervisor. He said Blackburn told him he was being discharged because he had
been talking too much with other employees, but he also stated that Blackburn showed
and read to him some prior warnings which Blackburn had in his possession. The
warnings were from Strickland, Courson, and Keeling. Kirkland identified a warning
from Keeling dated December 29, 1963, which notes that the incident was "Con-
tinuous talking to other selectors and low performance-This will not be tolerated
under any conditions." He also said that when Strickland gave him the reprimand
for low performance he said that Blackburn had told him to do it, but that he thought
Kirkland's work was satisfactory and that all the employees were doing the best they
could
Kirkland testified that performance sheets showing employee tonnage had been
posted in the warehouse since 1961, after Blackburn was put in charge, and that
Kirkland was familiar with the sheets. He said, however, that it was not "easy" to
determine whether he was on the top or bottom as far as performance was concerned,
but he had never been low man, except once, and always made the crew average.
He said he inspected the posted tonnage sheets regularly and would have noticed if he
was at the bottom or running below average. Kirkland denied receiving a warning
slip from Courson, dated April 18, 1963, informing him that his performance was
below average. Shown certain production sheets indicating that he was low man in
the crew for certain weeks in 1963, he said he could not recall the occasions. He
also said he could not recall being low, or next to low, in the entire period from
November 23, 1963, to January 11, 1964, and he indicated that the production records
which counsel was using in his examination were different from those which he had
seen posted in the warehouse. Kirkland gave a sworn statement to an agent of the
Board on April 16, 1964, in which he stated that he was the "top selector" in his
group. He testified that such was correct, because he had been top for 3 weeks, but
he could not recall when that was.
Respondent's defense is essentially the same in the Bennett, Elliott, and Kirkland
cases. It says they were fired because of continuous low performance, and that
Respondent had no knowledge of their union activities at the time of their discharges.
Bennett's supervisor, Keeling, testified that he gave Bennett the October 25, 1963,
warning slip after checking Bennett's performance for the 12 weeks that Keeling had
been perishable warehouse supervisor and discovering that the employee, for most of
those 12 weeks, was below the other employees in performance. Keeling said he
made the decision to discharge Bennett and made out the termination paper on
December 7, 1963. As already noted, the termination sheet refers to Bennett's con-
tinuous low performance and "attitude toward job." Keeling conceded that there
was no set tonnage requirement, because the work is more difficult at times, but he
said that an employee should not be the low producer all of the time, and Bennett,
Kirkland, and Elliott were coming in last in one, two, three order, night after night.
Regarding Elliott, Keeling denied that he ever discussed the Union with him and
said he could not recall asking him if he knew "what was going on" in the warehouse.
He said that he did discuss something akin to "loyalty" with Elliott in connection
with an incident involving the employee and some pecans, which occurred a week
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before his discharge . Keeling testified that he discovered Elliott with an open 2-
pound sack of company pecans in a locker used by Elliott and other employees,
chided the employee for eating them , mentioning at the time Elliott's many years
with Respondent . Later he found Elliott with the pecans again, and he sent him
home before the shift ended with loss of pay.
The decision to discharge Elliott was made by him, Keeling said , about a week
after the above incident . He said Elliott had had a number of prior reprimands, his
attitude toward his job was poor , his performance was low, and so he was discharged.
Keeling identified a warning slip that he had given Elliott on November 19, 1963,
because Elliott had padded his work performance by 7,000 pounds , which Keeling
said would amount to about an hour 's work. He said that Elliott 's signature was on
the slip, although Elliott had denied it in his testimony . Keeling also gave Elliott a
warning slip a day or so before he was discharged . The reprimand states that the
employee had been warned several times about continuous low performance and
had torn performance sheets down . Keeling also said he was aware of other repri-
mands given Elliott by other supervisors because of low performance , which are
dated as early as January 1962, and some of which warn the employee that the warn-
ing is his last. He said these were in the employee 's file when he recommended his
discharge to Blackburn . He denied that he knew anything about Elliott 's union activi-
ties or that they entered into the discharge.
Keeling testified that he gave Kirkland, the other selector involved in this phase of
the case, a written warning about talking on December 29, 1963, and spoke to him
several other times about excessive talking. He said he told Kirkland that normal
conversation was permissible but that his excessive talking interfered with employee
performance . He added that Kirkland's performance was poor. He talked with
Blackburn about Kirkland and recommended that Kirkland be let go because he was
not improving ; union considerations had nothing to do with his decision , he said.
Ellis Courson , who was Kirkland 's supervisor in 1963 , identified a warning slip
which he said he gave Kirkland on April 18 , 1963, for low performance . He also
identified warning slips given Elliott and Bennett on April 16, 1963, for low per-
formance and warning them that if they did not improve they would be replaced.
Superintendent Blackburn identified the personnel change report he made out when
he terminated Kirkland. He said that he discharged Kirkland after Keeling and he
reviewed the employee 's file. The employee 's weekly production was low; Keeling
recommended the discharge and Blackburn agreed.
Blackburn had prepared from the original company records , pursuant to a Board
subpoena duces tecum, a summary of all grocery warehouse selectors performances
from June 1, 1963 , through September 1964. Blackburn personally examined the
Company's records, and the summary is in his handwriting . The document is in
evidence as Respondent's Exhibit No. 13.
With respect to Bennett , the summary indicates that Bennett had the lowest per-
formance record of all the men in his crew. According to the document , Bennett
was low man , excluding the performance records of two new men , King and Jones,
12 out of the 28 weeks from June 1, 1963, through December 7, 1963 Bennett was
also next to low man a substantial number of times, and third from the bottom on
some occasions . He was in the bottom three producers in every week but 1 of his
last 28 weeks . The document contains figures showing crew averages , and it appears
that in the period under study he made the crew average only once.
Regarding Elliott , the summary of performances indicates that he was low man
about a third of the time , next to low on a few occasions , and third from the bottom
about one-third of the time . Overall, he was in the bottom three about 85 percent
of the time.
Kirkland, according to the summary , never equalled the crew average during the
entire period , and was in the last three over 85 percent of the time.
The charts also indicate that from June 1, 1963, to December 7, 1963, when
Bennett was discharged , Bennett, Elliott, or Kirkland was low man in every week
except one , if new employees are excluded . In addition , an addition of the three
employees ' weekly averages from June 1, 1963, to December 7, 1963, inclusive,
divided by the number of weeks therein , indicates that Bennett was the lowest
producer , Kirkland second lowest, and Elliott third.
General Counsel contends , in brief, that low production was only a pretext for the
elimination of Bennett , Elliott, and Kirkland. In more detail , he points to the Com-
pany's demonstrated union animus , its attempts to discover the identity of the union
adherents , the fact that Bennett and Elliott had been warned in the past about produc-
tion, but not discharged , and the coincidence in time of the union activity and the
weeding out of early, active union men , who he claims were known as such to
Respondent . General Counsel also suggests that the prior warnings were fabricated
WINN-DIXIE STORES, INC. 287
and planted in the files as documentation for later need; that, in any event, the men's
production was not substantially less than that of others in the crew, and that, where
averages are used, someone must always be below the average.
First, a word about the employees' production. I find that their production was
consistently below average, that Respondent was concerned about it, and that the
employees knew it was low and concealed this knowledge in their testimony. That
production was low is demonstrated by the summary in evidence prepared by Black-
burn, which I find to be accurate, and I adopt as findings of fact the indications of the
relative standings of the three men in production, which I pointed out above, the
summary appeared to show.
The Company was concerned about the employees' low production. The very fact
that warnings were given, sometimes before any union activity was occurring or
known, and which coincided with an individual's low production or other dereliction,
establishes this and strongly indicates the authenticity of the written reprimands.
Bennett got a warning from Courson about his production in April 1963, before the
union activity started, and he was warned again by Keeling on October 25, 1963,
before he had attended a meeting or signed a card, and the warning is supported by
the summary of production which shows that Bennett was low man that week.
Bennett was also warned on November 27, 1963, about production and given a week
to improve. Bennett's production was low in the weeks preceding this reprimand,
and although he received it 3 days after he signed a union card, there is no credible
evidence in the record that Respondent knew that card signing and a meeting had
occurred as early as November 24, 1963. Kirkland also received a warning about
low performance in April 1963, long before the union activity in this unit began,
and, in addition, when, on December 29, 1963, he was warned about his talking
interfering with production, his production had dropped from the previous week,
which is some indication that the warning was not part of an elaborate frameup.
Similarly, Elliott was given a warning slip by Keeling on November 19, 1963, for
padding his production, and was told to improve his performance. This occurred
before he joined the Union and at a time when his production was low.
As indicated, the employees were aware of the importance the Company attributed
to individual production and knew that their own production was low. This is evi-
denced by the fact that Elliott tore production sheets off the office window and lied
about it on the stand. Employee James Martin, another selector, testified credibly
that he saw Elliott tear production sheets down twice in January 1964 and throw them
in the trash can. He admonished Elliott, telling him that the men liked to see their
performances, but Elliott replied that the reports were some more of Keeling's crap.
Martin told Keeling about the incident, and Keeling gave Elliott a written reprimand
for it on January 4, 1964. Elliott also denied that he had received the November 19,
1963, warning about falsifying his production and said the signature on the exhibit
was not his. I discredit him, and find that he did, and that he signed it, and this is
additional evidence of his awareness of the significance of adequate production.
Bennett attempted to rationalize his place on the production chart by suggesting that
his assignment to the long end of the building cut him down, but the footage involved
was insignificant, and Bennett is uncorroborated otherwise. Bennett also suggested
that his production was down because he was taken off selecting and assigned to
other tasks, but the record shows that the employees ar' rated on a pounds-per-hour
basis only when they are selecting and not when they are doing other work. Bennett
also testified that he was never the lowest man in the crew, but, as the summary
shows, he had the lowest performance record of all the men in the crew. Kirkland
gave the Board a statement in which he said he was "top selector," but on the witness
stand he could not remember when, and the rest of his testimony concerning the
production sheets, in which he indicated that it was not easy to determine one's stand-
ing from them and that the records were in error, demonstrated a conscious embar-
rassment about his production.
There is also no credible evidence that Respondent was aiming a reprisal specifically
at Bennett, Elliott, or Kirkland. Bennett said Keeling never asked him anything
about the Union or spoke with him privately. No one in the Company spoke to
Kirkland about the Union, and his account of Blackburn's inquiry to him, a month
before his 'scharge, about what was "wrong" with the men, and his comment that
Kirkland must know, is too vague to indicate animus toward Kirkland, even if true.
Finally, on this point, I do not believe Elliott's version of his conversations with
{eeling and Blackburn in which they supposedly told him that he "knew something,"
but was "not talking," and was being discharged because of his silence . The first
union meeting took place on November 24, 1963, and Elliott fixed the first Keeling
conversation as November 22, 1963, thereby revealing a better memory than he
showed in the rest of his testimony. I do not believe Respondent was inquiring about
the Union as early as November 22, 1963, and I credit Keeling's version that he sent
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elliott home from work, at or about that time, because of the incident with the
pecans. The rest of the testimony about his last talks with Blackburn and Keeling is
implausible. He had refused to inform about the Union for over a month, according
to him, and he was then fired for it. Not only does Blackburn tell him why, but
Keeling apologetically repeats it on the way out of the plant, defending his action on
the basis of personal need. Yet this is the Keeling who is asserted to have cold-
bloodedly framed Bennett and Kirkland. I credit Keeling's and Blackburn's versions
in this instance.
What is left, therefore, is a case where an employer, with a demonstrated union
animus and a history of unfair labor practices, discharges, at a crucial stage in the
Union's campaign, three employees with long service who were active in the Union
in its first stages. The employer subsequently engages in other unfair labor practices
while the Union is organizing, such as, interrogation, threats, and promises of benefit.
If the Respondent knew or suspected that the dischargees were union activists or
sympathizers, the burden of going forward to explain the discharges would clearly
have shifted to Respondent. Respondent assumed the burden and introduced evi-
dence purporting to show that the employees had been discharged for poor produc-
tion after repeated warnings, and I have credited this evidence. This is not a case
where the absence of any cause for discharge or the offer of a reason for which
employees are not ordinarily fired is evidence detracting from the weight of the evi-
dence offered by an employer to offset an inference of discriminatory motivation,
but it is rather, for the reasons I have given above, a case where the reasons were valid
and the employees sensed it. I do not think that because the employer waited as long
as he did to discharge these employees whose production was consistently low by his
standards, particularly where there was a relatively recent change in supervision in
their department before the discharges, about 4 months to be more exact, can supply
a preponderance where it does not exist, particularly where the common thread of
early union activity in the three cases is matched by the common thread of uniform
and related low production, and where it is extremely doubtful that the evidence
would support a finding that Respondent knew or believed that they were the union
instigators. I find, therefore, that General Counsel has not established by a pre-
ponderance of the evidence that Respondent discharged Ernest Bennett, Carl Elliott,
and Joe Kirkland in violation of Section 8(a) (1) and (3) of the Act.
2. John Epps
Epps was discharged on January 23, 1964, under the following circumstances-
Epps was a merchandise pricer in the drug department under Supervisor Foster, and
he had been employed by the Company for 14 years. On the morning of the day he
was fired, Epps was called into Foster's office and reprimanded because his "piece
count," that is the number of pieces of merchandise he had stamped a price on, was
low for the previous day. Epps testified that Foster warned him that he had a week
to improve. He left Foster's office to return to work and admittedly became angry
with employee J. D. Rentz, who he thought had informed on him to Foster. A word
about Rentz' job is essential here. Rentz drives a tractor, bringing merchandise to
the pricers for pricing and taking it away when they have finished their tasks. The
pricers tell him how many pieces they have priced, and he writes it on a piece of
paper, which he turns in to Foster. He does not verify the pricers' count, and
Foster testified credibly that Rentz does not report on the efficiency of the pricers.
General Counsel claims Rentz is a supervisor, which incidentally would materially
weaken Epps' case, but I find that Rentz, who is on the same payroll as the other
employees in the department, is not.
Angered by the thought that Rentz had complained about him to Foster, Epps
approached Rentz on his return to his work station and said, "Goddam your soul.
You don't do a damn thing but keep up the disturbance around us people when we are
doing our work." He also accused Rentz of lying to Foster, calling him a "damn
liar." At that point Rentz dismounted from the tractor, Epps said, and put his hand
in his pocket, and Epps told him, "If you bring it out, I will bust your brains out. I
mean you." He said he was in fear because he knew that Rentz carried a switchblade
knife, and so he had a board from one of the pallets in his hand when Rentz
approached him.
Epps said Rentz left the scene to go to Foster's office, and Foster then called Epps
to his office on the public address system. Epps went and took the board with him.
In the office, Foster asked him what was wrong between him and Rentz, and he
replied, "Well, Mr. Joe, I am tired of your pimps around here causing a disturbance,
telling lies on us, saying we can do no piece count." He said Foster then told him to
go get his timecard, and he retorted, "You fired me, you get it." Foster then told
W1NN-DIXIE STORES, INC. 289
Epps to sit outside the office, which he did for about 2 hours. Meanwhile, Foster
went to see Blackburn, according to Epps, but he admitted he did not know whether
he actually saw him. Foster returned and paid Epps off. Epps had signed a union
card about 2 weeks befoi4 his discharge.
Under cross-examination, Epps also conceded that he had called Rentz a "lying
fat son of a bitch," but he denied that he made threats about getting "things
straightened out" when he was in Foster's office with the stick in his hand.
Foster's version is not much different from Epps', but a little more elaborate. He
said that each morning he checks each employee's piece count for the previous day,
and, on the day in question, he discovered that Epps' was low. He called him in to
discuss it, told him that there were 2 more days left in the workweek, and to try and
bring up his count during that time. Epps left the office, and after a while Rentz
appeared and told Foster that ". . . him or Epps had to go." Foster asked him why,
and Rentz told Foster about Epps' accusation and the language used. Foster said
he would straighten it out, and summoned Epps who appeared with a stick about 21/2
feet long. Foster asked the employee if he had called Rentz names, and Epps admit-
ted it. Foster asked him why, and Epps said he was going to get "things straight-
ened out," because Rentz had been talking to Foster about him. Foster and he
assured Epps that Rentz had not been in to see him, but Epps continued "cussing,"
swinging the stick around" while Rentz was present. Fester warned Epps that per-
sonal arguments would not be tolerated on the job, and he sent Rentz back to work.
He talked some more with Epps and then had him sit outside his office, thinking
that "if he would cool off I could talk to him."
Foster testified that he called Epps back in again, but Epps was still "hot," so
Foster told him they would see Blackburn. Foster said that what he had in mind
was the transfer of Epps to another department, for he felt he could not keep him
and Rentz in the same department because he feared that physical injury might
result. He said he also was not inconsiderate of Epps' long service, but that when
he suggested that they see Blackburn, Epps responded that if "Blackburn wanted to
see him, let him come down . . ." here. That is when he told Epps to get his time-
card and punch out and when Epps said that if Foster wanted "his goddam time
card, get it [yourself]." According to Foster, Epps continued to use profanity in
demanding his pay, retirement, and vacation money.
General Counsel argues that Epps was discharged at the moment Respondent
gained knowledge of the union organizational campaign through employee Clarence
Bowen's visit to Courson's home, and that Bowen must have reported that Epps was
one of the men who signed a card and attended meetings. He contends further that
the reason given for the discharge was a pretext because Foster favored Rentz, an
employee with less than a year's service, over Epps with 15, and that it would have
been more reasonable to have separated the two employees departmentally than dis-
charging Epps.
The record does not show exactly when Clarence Bowen tried to get his card
back from the Union or when he visited Courson, although Respondent's witnesses
admit they learned about the Union in late January. Bowen signed a union card
and attended meetings in December 1963, but there is no evidence that he attended
meetings in January 1964 when Epps signed his card. In other words, there is no
evidence that Bowen knew that Epps had signed at all, and, in addition, there is not
enough evidence in the record to support a finding that he reported anything to
Courson other than the fact that he had signed a card at a union meeting and wanted
to get out of the Union.
Although Foster, as I have found, despite his denials, interrogated employees about
the Union and threatened one of them, there is no reliable evidence that these acts
occurred before February 1964, and I do not believe, therefore, that it may be
inferred that Foster knew that Epps had become a union adherent prior to his dis-
charge. In any case, I credit Foster's more detailed version of Epps' last day at
work, which, as a matter of fact, is substantially like Epps', and I find that the rea-
son asserted for discharge-insubordination-is not pretextual. Foster testified cred-
ibly that he wanted to reason with Epps and that he considered transferring him,
but that Epns' refusal to go to Blackburn's office with him precipitated his discharge.
Finally, contrary to General Counsel's suggestion, Epps was the aggressor, in a sense,
because he started the affair by his verbal attack on Rentz.
I conclude that General Counsel has not established by a preponderance of the
evidence that Respondent discharged John Epps in violation of Section 8(a) (1) and
(3) of the Act.
7 9 6-0 2 7-6 6-v o1 15 3-2 0
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Donald Dixon
The complaint alleges that Dixon was discriminatorily demoted to less desirable
work on January 8 and discriminatorily discharged on January 15, 1964. Dixon's
case is unfortunately complicated by a series of events or incidents in which he was
involved in some degree in the period just before his transfer and discharge, which
all parties claim are significant for different reasons, and which must, therefore, be
set forth in some detail.
Prior to his transfer to the transportation department where he was put to wash-
ing out the inside of trailers, Dixon had been assigned to the lighter duty of pricing
groceries, because he had injured his back. There is a dispute about whether any
physical lifting is involved in pricing, but in any event, it seems to be agreed that
Dixon was assigned the pricing job after his injury because it was lighter than his
previous job of selecting.
Dixon signed a union card on December 1, 1963, and went to some meetings.
There is a dispute about whether the Respondent knew of his union activities.
Dixon testified that he talked with employee Edward Cooper about the Union on
the morning of January 8, 1964, and asked him to meet him later, but Cooper did
not appear at the designated spot. Dixon was transferred on January 8 in the mid-
dle of the day. Blackburn notified him to come to his office, told him that he was
going to transfer him, and sent him to Wilson, supervisor of transportation. Dixon
said Blackburn told him the reason he was being transferred was because "he would
like to have someone more presentable that could be more of an assistant to the
receiving clerk than I was."
Dixon went to the transportation department and saw Wilson who told him,
according to Dixon, that ". . . you are going to be out here with me and we don't
tolerate any talking ... you like to talk, five or ten minutes with some of your
friends, you are not permitted to talk out here ... if you want to speak to some of
your friends, just wave your hand, keep going, you don't talk out here." Wilson
assigned him to washing the inside of trailers which included moving them to the
wash site. Dixon told Wilson he could not drive a truck, but he said Wilson told
him to go out and try. Dixon said the job was assigned to require him to work in
the rain, cold, and wet without boots, jumping in and out of trucks trying to learn
how to drive them. He said he asked some men to show him how to drive.
Dixon did not work the full afternoon for Wilson, but went to visit his doctor.
He left about 5 p.m., he said, and admitted that Wilson told him to return to work
that afternoon. Dixon did not return to the warehouse, but he explained that he
did not feel well and telephoned Wilson. When he could not reach Wilson, he talked
with the dispatcher and told him that he would not be back.
On the next day, January 9, 1964, Dixon reported for work and Wilson gave him
a written reprimand for failing to carrying out his instruction to return to work the
day before. This document contains the notation, in addition to the substance of
the offense, "Last warning."
Dixon testified that he worked washing trailers from Wednesday, January 8,
through Sunday, January 12, 1964, but he did not work Monday, January 13,
because he telephoned Wilson, as was the practice, and was told to take the day off.
He did not work on Tuesday, January 14, he said, because he went to Tallahassee
to see his brother. He said he called Wilson Monday night before he left and could
not reach him, but he talked with the dispatcher, explained that he was leaving
because of an emergency, and would telephone when he got back. He also said
that he told his wife to telephone Wilson just to be sure he got the message, which
she did, and that Wilson told her to have Dixon telephone Wilson when he returned.
Dixon stated that he returned from Tallahassee about 10 p.m., Tuesday, and tele-
phoned Wilson the next morning at 9 a.m. Wilson told him to come out to the
warehouse "a little later on ," but did not specify the exact hour. Dixon reported to
Wilson just before noon , he said, and went into Wilson's office. According to him,
Wilson got a telephone call from Blackburn, and Dixon was told to wait outside,
which he did for "a couple of hours." Wilson then called him in the office, gave
him his final check, and said , "Sorry Dixon, things didn't work out for you."
The only written reprimand Dixon received from Wilson during the time he
worked for him was the one he got for not returning to work after his visit to his
doctor, he said, but he admitted that he backed a piece of equipment into a truck
once and broke the headlight on it. He said he immediately reported this to Wilson
who told him to be careful and not "tear up company property." He added that he
had had compliments about his work from supervision in his prior employment, but
he had never been criticized or given a written reprimand until after he signed a
union card . He also recounted how he attempted to borrow money from the Com-
WINN-DIXIE STORES, INC. 291
pany through Blackburn in December 1963, as he had in the past, but Blackburn
refused the loan, saying "it had gotten out of hand." This was also after he had
signed the union card.
Respondent's position is that it had no knowledge of Dixon's union activities prior
to his transfer or discharge, that he was transferred from pricing groceries because
he was unable to do the work, and that he was discharged from transportation
because he was unreliable and had no interest in the work.
Supervisor Courson testified that he had been transferred to the department in
which Dixon worked' just about a week before Dixon was transferred, and that he
observed his work during that period. He said that Dixon was unable to do the
work and told him so. Dixon was required to cut open cases of merchandise in
order to price the items, and had to lift cases in the process. Dixon admitted that
lifting cases was part of the job, and Courson stated that Dixon said he could not
do it because he had back trouble. Because of Dixon's inability to do the work,
Courson went to Blackburn and asked for a replacement for him. He said he knew
little of Dixon's earlier injury except what Dixon told him when he said he could not
lift the cases, and, although he did not recommend his transfer, he did ask for some-
one who could give more assistance to the shipping clerk.
Blackburn testified that Courson asked for a replacement for Dixon and he knew
at the time about Dixon's physical disability because Dixon had been a grocery
selector and was injured on the job. After some period of inactivity, Dixon was put
on the pricing job as light duty, at his request. Dixon seemed to work out satisfac-
torily for a while, but then Blackburn began to get reports that Dixon could not
lift cases and assist the receiving clerks. The first report was from Supervisor Duke,
and a second from Courson. Blackburn then made the transfer. He admitted that
he knew that Dixon was a college graduate and a star semiprofessional football
player. He said Dixon's transfer to trailer washing as a transfer to lighter duties in
order to keep him on the payroll until he could be put back in another department.
Grocery Department Supervisor William Koontz testified that he was relieving an
employee by unloading merchandise from trucks at a time when Dixon was employed
as a pricer. He said he asked Dixon to help him move a gang board, but Dixon
said he was unable to because he might hurt his back. A little later, Koontz asked
Dixon to place fallen merchandise on a pallet, but Dixon said he could not lift any-
thing. Koontz said he went to one of the supervisors, complained about Dixon, and
asked what the problem was. He said he was told that Dixon had hurt his back.
Monroe Willis who became supervisor in the transportation department under
Wilson on January 1, 1964, was formerly Dixon's supervisor in the warehouse. He
testified that Dixon's work was regarded as light duty and that Dixon did no lifting
of any kind, although lifting was included in the job. He explained that cases had to
be cut open, the merchandise priced, and that these operations entailed lifting before
and after the pricing. He repeated that Dixon did no lifting at all and, when Willis
asked him to, said he could not because of his back. Willis reported the condition
to his supervisor, one Duke, but he did not know what action Duke took if any.
Transportation Department Superintendent Ernest Wilson testified that on the
day Dixon was transferred to his department, Blackburn telephoned him, advised
him of the transfer, and told him that Dixon had complained that he was unable to
lift cases because of an injured back. Blackburn said Dixon should be assigned to a
lighter job, and Wilson put him to washing out the inside of trailers with an ordinary
garden hose. The job also included positioning the trailer for washing and then
reparking it.
Wilson said that Dixon not only was issued rubber boots and a rain suit at no
cost to him, but that shortly after commencing work Dixon snagged and cut a boot
on some object and was issued another pair. Also, contrary to Dixon's account,
before he sent Dixon out on the job he called in employee Artis Seymour, intro-
duced him to Dixon, and told him to teach Dixon how to handle the equipment,
because Dixon could not drive. Wilson told Dixon not to be afraid of the equip-
ment, but if he ran into any problem he could not handle to come to Wilson for
assistance . He said Dixon did come in but only to complain about getting wet.
Dixon w. -q checked in for work at 2 p.m. and checked out at 3 p.m. to visit a
doctor. Wilson told him to come back as soon as he could and to telephone the
dispatcher if he could not return that evening. Dixon did not return and did not
telephone Wilson or the dispatcher, according to Wilson. When Dixon reported for
work the next day Wilson asked him why he had not returned to work or telephoned.
Dixon said it was too late and that he tried to telephone , but could not get through.
Wilson said he also talked to Dixon on January 9, 1964, about the importance of
being prompt in order to keep ahead of the shipping crew. He wrote a note to the
file that day for his own information indicating that Dixon was "unconcerned" and
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had no " interest." He testified that Dixon told him more than once that he did
not like the job, and that he told Dixon that he had been transferred from the ware-
house because of his back and should try to learn his new job. He said the employee
replied, "I can't win. I don't like this job."
Sometime during the next few days, Dixon damaged two pieces of equipment,
according to Wilson. Wilson did not see Dixon damage one trailer, but he said he
believed he did, because Dixon had been driving it shortly before. With respect to
the second piece of equipment, Wilson said another employee told him Dixon was
responsible for the damage and Dixon admitted it about 2 hours later, which was
contrary to his instructions to report such incidents immediately.
Contrary to Dixon's testimony that he did not work Monday, January 13, because
Wilson told him to take the day off, Wilson said Dixon did not telephone Monday
and that it would not normally have been his day off. The first he heard about
Dixon was a telephone call from Dixon's wife on Tuesday morning about 9 or 10
o'clock. He asked her where Dixon was Monday, and she replied that Dixon had
to go out of town Monday to Tallahassee because his brother had been in an acci-
dent. Mrs. Dixon was supposed to telephone Wilson, she said, but she forgot to.
Wilson asked her when she expected her husband, and when Mrs. Dixon said she
did not know, he told her to have Dixon telephone him immediately upon his return.
Mrs. Dixon telephoned Wilson again on Wednesday morning, January 15, 1964, at
9 or 10 o'clock, and told Wilson she was calling for her husband. Wilson asked her
if Dixon had returned and she said he had, late the night before. Wilson told Mrs.
Dixon to tell her husband to come to his office immediately because he wanted to
speak with him. Dixon appeared at 5 p.m., but when he had not arrived by 1 p in.,
Wilson decided to discharge him. When Dixon arrived he told him that he was
undependable, he had been damaging equipment, did not like his job, and "appar-
ently wasn't going to try to do the job." Dixon was discharged on January 15,
1964, and Wilson said he had no knowledge of his union activity at the time. He
admitted mentioning "talking" to Dixon when he first spoke with him on the day
he was transferred. He said, however, he was merely explaining how they worked
in his department, and that he told the employee that he was more or less on his
own, that they did not and could not watch him because he was moving in and out,
and that, therefore, he must do his work and "... can't be talking, wasting time
talking to other employees."
Monroe Willis, Wilson's assistant, mentioned earlier in connection with Dixon's
earlier employment as a pricer, testified that he was present when Wilson spoke with
Dixon at the time he was transferred. He said Wilson assigned Seymour to show
Dixon how to drive. He also stated that Dixon's failure to return to work after his
visit to the doctor inconvenienced the department for they were busy and had to
take an employee off the dock to wash trailers. He stated that he was present when
Wilson reprimanded Dixon about his attitude toward the job.
Willis also corroborated Wilson's testimony that it was likely that Dixon damaged
one piece of equipment and admitted damaging another. He said Dixon reported
the second accident only after he asked him about the incident. Willis said Dixon
told Wilson that he did not know that he was supposed to report damage to the
trucks or trailers and also said that he thought he would never learn to handle a
truck.
Willis also testified, in corroboration of Wilson, that Dixon did not telephone on
Monday, January 13, 1964, as he should have, to find out whether he should report
for work. Willis also heard Wilson's end of the conversation with Mrs. Dixon on
Tuesday, January 14, and heard Wilson tell the person on the other end to tell
Dixon he wanted to see him as soon as he got back. In addition, he heard Wilson
tell Mrs. Dixon on Wednesday morning that he wanted to see Dixon. His testimony
about what Wilson said in discharging Dixon at 5 p.m. that day was basically like
Wilson's.
Dixon's case, in my opinion, rises or falls on Respondent's motivation in effecting
his transfer. This is not to say that evidence of unreasonable treatment of him after
his transfer may not bear on Respondent's reason for the transfer in the first place.
It is to say that the evidence set out in detail above about the unhappy week in the
garage is as consistent with employee disinterest in his job as it is with employer
intention to eliminate him. If the transfer were proper, all that can be said about
the actions of each party after the transfer, it seems to me, is that they were glad to
be finally clear of each other. Be that as it may, however, the reasons put forth for
discharge which arose during the transfer period cannot be said to be pretexual.
On the other hand, the transfer obviously was not a promotion, and if the transfer
was illegally motivated, Dixon would be saved regardless of how poorly he per-
formed his new work or whose fault it was. So to the transfer.
WINN-DIXIE STORES, INC. 293
There are certain uefects in General Counsel's arguments concerning the trans-
fer. He contends that Respondent's argument that Dixon was transferred because
of his physical condition and in order to give him lighter work is suspect, because
Dixon was doing light work at the time, had completely recovered from his injuries,
and was playing semiprofessional football. In the first place, although all agree
that pricing is relatively light work in a warehouse, it is clear from Dixon's own
testimony that lifting cases was part of the job, and so the job was heavy in that
sense 14 In addition, I credit the testimony of Courson that Dixon said he was
unable to lift cases, as well as Koontz' statement that Dixon refused to move mate-
rial. The testimony of both these supervisors was corroborated by Willis who said
that although Dixon was supposed to lift cases as part of the job, he did not. This
evidence was developed during Willis' cross-examination and appeared to be volun-
teered truthfully. Dixon, therefore, was unable, or pretended to be unable, to do
all that the job required. In addition, contrary to General Counsel's suggestion,
Dixon did not appear to be completely recovered from his injury and playing foot-
ball. The first thing he did on the first day of his new job was to take time off to
see his doctor about his injury, and he testified that he was unable to play football
until July 1964 because of the injury. These facts corroborate the testimony of
Respondent's witnesses who said that Dixon said he could not lift because he was
hurt. I also find that Courson asked Blackburn for someone who could give the
receiving clerk more assistance and that Blackburn told Dixon that he was being
transferred for that reason. Dixon used the word "assistant" in reciting what Black-
burn said to him at the time of transfer. In the light of these findings concerning
Dixon's difficulties with the pricing job and supervision's complaints about him, it
cannot be said that the reason assigned by Respondent for his transfer is so unrea-
sonable as to be pretextual on its face.
There is also no direct evidence that Respondent was aware of Dixon's union
activities, and, on this record, knowledge cannot be reasonably inferred. General
Counsel contends that it may be inferred that employee Edward Cooper informed
on Dixon on the theory that Cooper was a paid company informer, but I do not
think that the evidence will fairly support the theory. Employee Graham testified
that Supervisor Foster, sometime in February 1964, distributed some checks to
employees, which were apparently a refund of social-security overpayments, and
when Foster handed Cooper his check, he said, ". . . this is what you get for pimping."
Graham was corroborated by employees Macon and Lott. Lott also said Cooper
was seen in the office more than other employees. Foster denied that he made the
statement about "pimping" to Cooper. Cooper did not testify, but the record shows
that he joined the Union on January 25, 1964. The alleged connection of Cooper
with Dixon is in Dixon's testimony that, on the morning of his transfer, Edward
Cooper asked him if lie wanted to see him. Dixon said he did, and Cooper asked
Dixon "whether the union is going to begin." Dixon said he told Cooper he knew
nothing about it, but made an appointment to meet Cooper later that day at a bar,
at which time he promised to tell Cooper something. Cooper did not show up, and,
in the meantime, Dixon was transferred.
As I have indicated, the above evidence is insufficient to support a finding that
Cooper informed on Dixon. In the first place, the very foundation of the theory is
unbelievable to me. That Foster would have a "pimp"-an informer-and then
publicly uncover him during the union campaign and after he had been-theoret-
ically-planted in the Union, is senseless. I find that it did not happen. Dixon did
not tell Cooper anything in any case, and if Cooper was a spy, he and Respondent
moved against Dixon not only recklessly but also stupidly, because if Cooper had
met Dixon as planned he would have discovered what Dixon was involved in or meant
to tell Cooper. This is no way for a spy to act.
Although Wilson appeared to have been in hurry to get rid of Dixon after his
transfer and might very well have been more reasonable, tolerant, and understand-
ing about Dixon's attitude about his new job, Respondent's treatment of Dixon,
considered in the light of Dixon's apparent dissatisfaction with the assignment, can-
not be considered so unreasonable as to be found pretextual and support an infer-
ence that Respondent must have known of and reacted against the employee because
of his activities in the Union.
A detad recapitulation of the period in Wilson's department is unnecessary.
Dixon did not like the job, and Respondent could have reasonably believed that he
did not intend to like it or learn it. I credit Wilson's version that Dixon left early
on his first day, failed to telephone in on the following Monday, took Tuesday off
14 Blackburn's comment that there are few light jobs in the warehouse rang true.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for personal reasons, and reported late on Wednesday, January 15, 1964, and that
he concluded, based on these and other incidents, that Dixon was uninterested in the
job.
I find that General Counsel has not established by a preponderance of the evi-
dence that Respondent discriminated against Dixon in violation of Section 8(a)(1)
and (3 ) of the Act.
4. Porter Turner
The complaint alleged that on or about July 13, 1964, Respondent discriminatorily
demoted employee Porter Turner and transferred him to less desirable work as a
laborer. Turner signed a union card on January 18, 1964. As set forth earlier, Tur-
ner testified credibly that Supervisors Wilson and Corley commented on the union
photograph, which Respondent had enlarged and posted in the warehouse in early
March, and in which Turner appeared. Wilson made a disapproving remark about
Turner letting others "mess" him up, and Corley asked him what the picture was
all about. Subsequently, Blackburn spoke to him about the Union, inquiring if it
had a majority and asking about Turner's intentions in the event of a strike, as set
forth in more detail earlier. At the end of Blackburn's comments about the Union,
Turner asked him how he could get his union card back. He said Blackburn told
him that he got himself in the Union and he could get himself out. Turner's picture
is plainly visible in the photograph and there is no doubt that Respondent knew he
was in the Union. He also testified that about April 13, 1964, Blackburn passed
him while at work, stopped and inquired, "How are you and Bob Ackerman (union
official) ?"
Turner testified that Supervisor Corley transferred him from his regular job of
driving a tractor to Supervisor Koontz as a laborer unloading boxcars on July 13,
1964. He said he had never worked as a boxcar unloader before, but it appeared
later that he had for about 2 weeks when first hired years before.
Turner reported to Koontz on January 13 and was assigned to unloading a box-
car. He said he suffered an injury within a few hours and was off work for 7 weeks.
During Turner's absence he was paid sick benefits under the Company's group health
and accident insurance plan.
When Turner returned to work he was again assigned to unloading boxcars at
which job he remained until about 3 weeks before the hearing in this case, when he
was again put driving power equipment. He said that the work he did in the box-
cars was manual and strenuous as compared to operating a lifting machine, but he
suffered no cut in pay during that period. According to Turner, in all the years
of his employment he actually was handed or saw only one warning slip, and that
was dated September 26, 1964.
Supervisor Courson testified that he gave Turner a warning slip on June 18, 1964,
because he was in another aisle talking to an employee and not working. On July 10,
1964, Courson said he handed Turner a warning notice because he had moved
merchandise from one aisle to another without permission.
Supervisor Corley testified that he talked to Turner and also gave him a written
reprimand on July 7, 1964, because Turner was behind in his work. He said
Turner told him he was doing the best he could. On July 13, 1964, he gave Turner
another warning slip because he was not keeping up with the work and not per-
forming the duties of the job correctly. Because of this, he said, he transferred him
to the laborer's job, but he considered the transfer to be temporary. He needed
Turner in the boxcars at the time, he said, because they had an excess amount of
work there. Recently, shortly before the hearing, Turner was retransferred to a
forklift.
In my opinion, and I find, Turner had more criticisms about his work from super-
vision than he admitted to as a witness and that, in addition, he was aware of his
derelictions. I find nothing substantial enough in the circumstances surrounding his
temporary transfer to sustain a finding that Respondent was discriminatorily moti-
vated in effecting it. I conclude that Respondent did not violate Section 8(a)(1)
and (3) of the Act as alleged in Turner's case.
5. Marshall Ethridge
Ethridge had been employed as a selector in the grocery warehouse for about 2
years at the time of his discharge on January 27, 1964. He and Leo Donaldson,
whose case will be discussed next, and one other employee were the first employees
to get in touch with the Union for organizational purposes, and he signed a union
card on December 8, 1963.
WINN-DIXIE STORES, INC. 295
Ethridge testified that ho was called to Supervisor Duke's office in December 1963
where Duke spoke with him. According to Ethridge, Duke asked him how the men
were "feeling," and why their performances on the job had fallen down. Duke also
wanted to know if there were any supervisors the men did not like. Ethridge told
Duke that the men were "disgusted" because supervisors frequently threatened them
with discharge which made them feel they had no security in their jobs. He added
that if supervision treated employees like men instead of something to "jump on,"
the Company would get more work done. Ethridge mentioned the case of a super-
visor who had said something to an employee which displeased all employees, but
he did not name the employee or the supervisor. Duke wanted the name of the
supervisor and the employee , but Ethridge, fearing that the employee, not the
supervisor, would be discharged, refused to divulge that information.
The day after the above talk, Duke sent Ethridge to Blackburn's office where
Blackburn asked him about the same things Duke was interested in the previous day,
but Ethridge would give Blackburn no names. Blackburn reminded the employee
of past favors and suggested that he might want others in the future. Ethridge
acknowledged Blackburn's past kindnesses but said he "didn't want to get involved
in it."
Ethridge, who worked in the grocery department, went into the adjacent drug
department shortly before his discharge to get a drink of water, as he had many
times before. He said his own supervisor, Courson, and the drug department super-
visor, Foster, were standing near the door of the drug department when he entered.
He got his drink of water and immediately left the department. Although Foster
had given him permission to use the water fountain, Courson told Ethridge on his
way out of the drug department that he should not be in there. Ethridge told him
that he went for a drink, and Courson told him not to do it again. Ethridge agreed
that he would not. Courson gave him a written reprimand over the incident which
reads: "Loafing around in drug warehouse and for being late for work on Satur-
day morning, January 25, 1964." Asked about the reference to being late for work,
Ethridge explained that he had been about 5 minutes late that Saturday. On the
following Monday, January 27, 1964, when Ethridge reported for work, he was met
by Supervisor Corley who sent him to Blackburn's office. Courson and Corley
were present in Blackburn's office when Blackburn discharged Ethridge. According
to the employee, Blackburn said there were too many "statements" (reprimands)
against him and that he "couldn't use" him any more. Blackburn gave Ethridge
his final check, and Ethridge started back into the warehouse toward his locker.
Blackburn told Corley to accompany the employee, see that he spoke to no one,
and to take him to the gate. Corley did so. Ethridge said that no supervisor ever
mentioned the Union to him.
Respondent claims that Ethridge was discharged for being continuously late for
work and because he went into another department to talk. His termination papers,
prepared by Blackburn, so read and also stated: "This man has 8 reprimands on
things of this nature."
Blackburn testified and identified, without elaboration, Ethridge's termination
paper. He also said he gave Ethridge a reprimand on April 9, 1963, for smoking
in the warehouse, which Ethridge admitted. The reprimand states that: "Any
future violations will be cause for dismissal." Blackburn conceded that Ethridge
was not involved in smoking incidents after that.
Respondent also introduced a reprimand which Supervisor Duke gave Ethridge
on July 1, 1963, for low performance, and Ethridge admitted that he got it.
Ethridge also got a reprimand on December 11, 1963, from Supervisor Strickland,
stating that his performance was too low and warning him, "... you can do better
or else." Strickland did not testify.
Courson testified and said he gave Ethridge the warning slip for "loafing around
in the drug department .... " Ethridge told Courson he was getting a drink of
water, but, according to Courson, Ethridge was a long distance from the fountain
when he saw him talking to another employee in the drug department.
Supervisor Foster testified that there is a rule that grocery department employees
not enter the drug department without permission, but because Ethridge was work-
ing near the end of his department, which is close to the restroom in the drug depart-
ment, he ga:c-him permission to enter for a drink of water, as he had done in the
past. He saw the employee head for the water fountain. In a "minute or two"
Courson asked him what Ethridge was doing, and Foster told him.
All of the circumstances surrounding Ethridge's discharge convince me that the
truth about his severance is the opposite of what Respondent says it is and that
actually Respondent discharged him because it knew or believed that he had joined
the Union. Respondent concedes that it learned in late January 1964 from employee
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bowen that the Union was organizing. Supervisors Duke and Blackburn questioned
Ethridge about employee discontent in December 1963, and although Ethridge was
candid about employee dissatisfaction and supervision's role in it, he would not
cooperate with Duke or Blackburn by revealing names. Blackburn thought the
incident and Ethridge's refusal was so significant that he warned Ethridge that he
would need a favor someday. Duke did not testify, and I do not credit Blackburn's
vague account of his talk with Ethridge, but, on the other hand, find in it and
Blackburn's demeanor while giving it, an attempt to conceal the real facts. I believe,
and I find, that when Blackburn learned about the union activity he also remem-
bered Ethridge's knowledge of some employee problem, his candor about its roots,
and his refusal to cooperate with Blackburn. All this would make Ethridge a likely
union sympathizer in Blackburn's mind.
Blackburn's very participation in Ethridge's discharge is more than suspicious.
Here is an employee found out of his department once, yet the head of the ware-
house handled his discharge personally with both Courson and Corley present.
This compares oddly with Foster's discharge of Epps, an employee of about 15
years' service, without Blackburn's intervention. Blackburn's simple identification
of Ethridge's termination paper, which he prepared, and failure to give any detail
about how he came to decide to fire the employee, who recommended it, or how he
came to discover the offense, is additional reason to believe that the reason given
on the termination slip is not a fact. Of a piece with Blackburn's apparent reluctance
to shed a little more light on the sudden severance of Ethridge (he was out of the
department on Saturday and fired on Monday) is Courson's sketchy account of
Ethridge's last days. Actually, all he said was that he gave Ethridge a reprimand
for loafing in another department, but whether he decided then to discharge him
and when and how he recommended it, if he did, is unclear, and neither he, Black-
burn, or Corley explained the elaborate exit interview of Ethridge during which
Blackburn told Corley to take Ethridge out of the plant and see that he spoke with
no one. I also credit Ethridge's testimony that when he told Courson that he went
for a drink of water Courson merely told him not to do it again, because this mild
reprimand fits logically with the employee's explanation that he had permission.
The imposition of the discharge penalty so soon thereafter, however, and Blackburn's
and Courson's skeletal versions of its basis, is a strong indication that the reason is
other than offered.
The very reasons which are supposed to have precipitated the discharge appear
factitious on their face. Foster gave Ethridge permission to come into his depart-
ment and conceded that such was not unusual. Respondent argues that Foster was
not Ethridge's supervisor and so the permission, therefore, is immaterial. This is
unreal and also inaccurate, factually. It is unreal because Foster clearly indicated
that the practice was not novel, because Foster is an important supervisor of over
30 years' service, with the power to fire employees, and because Courson would not
have lightly rejected as inconsequential a senior supervisor's actions in such a setting
any more than an ordinary employee like Ethridge would have examined Foster's
power to bind Respondent. It is inaccurate factually, because Foster volunteered
without contradiction that the rule is only that one cannot enter the department
without permission, but that he granted it.
Another indication that the asserted ground for discharge is a sham is the reli-
ance in the termination paper prepared by Blackburn on Ethridge being "continu-
ously late for work," because there is absolutely no evidence in the record that he
had been late more than once, and he credibly testified that he was late only about
5 minutes on the last working day before his discharge. In addition, the document
states that "this man has 8 reprimands on things of this nature," which is false,
for the record contains no other reprimands on "things" of that "nature," and con-
tains but four reprimands for any reason.
Even the reprimands which were actually given seem too trivial on their face to
support the discharge and are not, in some instances, explained by testimony. Black-
burn gave Ethridge a reprimand for smoking over 8 months before his discharge, and
the employee was never reprimanded again for that. In addition, his explanation
that smoking was a common practice, even though the warehouse was posted against
it, was uncontradicted. The reprimand of December 11, 1963, which oddly states
that it was for the week of December 14, 1963, even though the week had not ended,
states that Ethridge's performance is "too low." Strickland did not testify, and we
do not know what "too low" is, but, to the contrary, an employer chart in evidence
showing selector production indicates that, in the week ending December 14, and in
the week just prior, Ethridge came in fourth in a group of 16. The reprimand of
June 26, 1963, given by Duke, is not only stale, it is also unelaborated because Duke
did not testify. In addition, although it refers to an incident "that happened in the
WINN-DIXIE STORES, INC. 297
past 2 or three weeks," an examination of Respondent's production chart indicates
that Ethridge was a good producer in those weeks. I have found in the cases of the
other selectors discharged, namely, Bennett, Elliott, and Kirkland, that Respondent
was seriously concerned with good selector performance, yet Respondent discharged
Ethridge, a good selector. This inconsistency cannot be easily explained away.
Finally, Ethridge impressed me by his demeanor and version as especially candid,
but Blackburn and Courson did not. Ethridge recounted the Duke and Blackburn
interviews about the problem of employee unrest in the warehouse simply and with
no attempt to inject the word or idea "union" into his testimony or to otherwise
exaggerate its significance. Respondent's witnesses, on the other hand, appeared to
conceal, obfuscate, or exaggerate in Ethridge's case.
I find that Respondent discharged Ethridge because he was or believed to be a
member of the Union who Respondent thought was talking union to other employees,
and that the reasons put forward by Respondent as the basis for his discharge are
pretextual. By such conduct Respondent violated Section 8(a)(1) and (3) of the
Act.
6. Leo Donaldson
Donaldson was a forklift operator in the receiving crew of the grocery department
when he was discharged on June 2, 1964. The original contact with the Union was
made by Donaldson in November 1963, and he, Ethridge, and one Wilson were the
first to meet with Ackerman of the Union. Donaldson continued active in the Union
up to and after his discharge.
Donaldson testified that near the end of March 1964 he was called to Blackburn's
office where Blackburn told him that the Union claimed a majority, but that the
Company disputed it, and then said, "You signed a card didn't you." Donaldson
admitted that he had, and Blackburn commented that the Union could do nothing
for him. Donaldson replied that he would take his "chances with the union." Black-
burn told the employee that he reason he was called in was because Blackburn wanted
to warn him about his activities. He said that Donaldson had been going to employ-
ees' homes and trying to get them to sign cards. Donaldson asked for the names of
the employees, but Blackburn refused to name them, stating, "I don't have to tell
you anything, but I am going to warn you, I want you to stop going to these fellows'
houses and harassing them about signing union cards." Donaldson asked Blackburn
what would happen if he did not comply. Blackburn asked him if he were going to
continue, and Donaldson again asked what would happen if he did, but Blackburn
made no reply.
On April 16, 1964, Donaldson received a reprimand from Supervisor Corley which
stated that the employee had put merchandise in three slots with "do not use tags on
them " "Slots" are where merchandise is stored, and when the slot carries a "do not
use" tag it means that the slot is reserved for particular merchandise and that such
information has been recorded in the Company's IBM system. Donaldson admitted
that he had stored merchandise in "do not use" slots, but he said that, on the day
before the reprimand, Corley told all the drivers to use the restricted slots because
the warehouse was crowded with goods and there was no place to put them. The
day after he used the slots Donaldson was called into Corley's office and asked for
an explanation. Donaldson told Corley that he had instructed him to use the slots,
but Corley gave him the reprimand anyway, he said.
On April 30, 1964, about 2 weeks after the above reprimand for using slots marked
"do not use," Donaldson got another reprimand for the same offense. Donaldson
testified that he was hauling merchandise and needed storage space. He saw Cour-
son, Corley's assistant, asked him if he could use "do not use" slots, and Courson
gave him permission. The next day Courley asked Donaldson why he had used the
slots and he told Corley that Courson had instructed him to. Corley asked the
employee what Corley had instructed him to do, and Donaldson conceded that Corley
had said not to use the space. Donaldson insisted that Courson had given him per-
mission, but he said Corley reprimanded him and laid him off for I week anyway.
Donaldson also got a written reprimand from Corley about a week before he was
fired. The reprimand in question relates to so-called "reserve cards," which are
important in preparing for inventory. He said that, just before inventory, Corley
assembled the men who would prepare the warehouse for inventory and told them
to put a red checkmark on the "reserve card" to show that the merchandise had been
counted and was there, and also to make a new card if it was mutilated or soiled or
if the writing was otherwise illegible. Donaldson testified that Corley spoke to him
the next day and complained that Donaldson was not making new reserve cards when
required. Donaldson denied it, but Corley said he had been examining the cards and
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showed Donaldson some which he claimed were bad. Donaldson conceded that the
cards that Corley had in his possession were his. He said Corley took him down an
aisle of merchandise and showed him various cards as examples of good work.
Donaldson agreed that the cards were new and clean, but he claimed he had just put
them up that morning. Sometime during the discussion about slot cards, Donaldson
told Corley that he thought as much of his job as Corley did of his. He also
informed the supervisor that it seemed that he could not release him and asked him
for a transfer back to unloading boxcars where he used to work. He said that
Corley replied negatively, stating that he needed drivers.
Donaldson had some difficulties at work on the day before his discharge. He said
he noticed that the actual items unloaded by him were not balancing with the pur-
chase order so he brought it to Supervisor Koontz' attention. He also mentioned
something to Koontz about the amount of cases in a "tie," but his testimony is
unclear. The amount of cases in a certain aisle, however, does become significant
on the day Donaldson was discharged.
On the day Donaldson was fired he was working in a boxcar because his forklift
was being repaired. He testified that Corley and Koontz came for him and accused
him of having slotted an extra rack of cases and of having "made 15 mistakes." He
said he asked to be shown the mistakes, but his request was refused. The work in
question was the work that Donaldson had done the day before.
Donaldson said that Corley, Koontz, and he went into the office where he was
discharged because he was "making too many mistakes." According to him, Corley
told Koontz to escort him to his locker for his personal effects and then out the gate.
He said that, on the way out, Koontz said, "Take it easy, Donaldson, you'll find
another job."
Donaldson testified that he received no written reprimands before he commenced
his union activity. He identified the reprimand he got when he was fired, and it
reads, in part, "maliciously bad slotting merchandise" and "not counting merchan-
dise when slotting." He denied that he had done so. He also admitted to another
reprimand from Koontz on January 27, 1964, for "failure to price merchandise prop-
erly" and setting "merchandise on dock" improperly, but he denied that he had com-
mitted the offenses.
Under cross-examination Donaldson said that, although he slotted only 252 cases
in a certain slot on the day before he was fired, there actually were 288 cases in that
slot the next morning, but he did not know how the extra cases got there. He also
denied getting, or remembering having been given, certain reprimands during his
employment. He said he knew nothing about a warning slip given by Koontz on
November 29, 1963, for refusal to work with a new man in a boxcar, and another by
Koontz on January 7, 1964, for improperly loading merchandise on pallets. He also
did not remember a February 13, 1964, reprimand from Koontz for refusing to bring
pallets to laborers; one from Koontz on February 28, 1964, for turning in purchase
orders with slots left off; another by Koontz on March 6, 1944, for using stock lanes
that other drivers were hauling, thereby deliberately slowing the work down; and a
reprimand by Koontz on April 8, 1964, for using a slot that was tagged "stay out of."
The last reprimand stated that the offense was the second in a week's time. He also
denied ever telling Corley that he had just used two or three "do not use" slots, and
that Corley was going to "eat him out" about it. He repeated that if any of the inci-
dents suggested in the above reprimands which he said he could not remember, or
did not occur, actually happened, no supervisor ever spoke to him about it.
As set forth earlier, employee Chester Young testified that when Blackburn spoke
with him about the union activity in March 1964, he asked him if Donaldson had
taken him to the Union to sign a union card.
Corley became grocery warehouse superintendent in January 1964. He testified
that he decided to fire Donaldson on June 2, 1964, and he recounted the events lead-
ing up to Donaldson's discharge. He said he gave Donaldson a warning slip on
April 16, 1964, for using "do not use" slots, and that he was aware that the employee
had done it before. According to Corley, Donaldson did not deny that he had used
the slots, and Corley explained to him that the slots were committed to IBM and
should not be used. He said he recalled no explanation that Donaldson offered for
using the marked slots. On April 30, 1964, he warned Donaldson again for the same
offense and laid him off for a week. He said the matter was brought to his attention
by Donaldson himself who rode by Courson on his forklift and said, "I have used
some more of your slots with `don't use' signs. You might as well get on my ass now
and get it over with " Corley, who was standing nearby, heard the remark, and later
Courson brought it to his attention officially. As a consequence, he laid the employee
off. Corley explained that "do not use" slots are not used even in an emergency,
WINN-DIXIE STORES, INC. 299
because the slot number has been put in the IBM and new merchandise will be billed
out of that slot. The merchandise is tied to slot by number, and slot numbers are
not changed unless there is a major change in the warehouse . He reiterated that
merchandise is not put in committed slots, even on a temporary basis. Donaldson
was the only one who used "do not use" slots, so far as he knew.
Corley described employee participation in preparing for inventory. He said that
tags showing the amount of merchandise in reserve are verified by an actual count,
and new tags are made by the employee where they are mutilated or illegible . Corley
spoke with the employees participating in the inventory preparation in a group,
explained the procedure, and emphasized the need for new cards if they were muti-
lated or unreadable. According to Corley, he was making a routine check of the
groups who were checking the merchandise when he came upon some tags, which
had already been checked but which were mutilated or illegible . He said they were
Donaldson's work. Corley said he pulled the cards off and kept some samples. The
samples are in evidence . Corley called the tags to Donaldson 's attention, wrote him
a reprimand and told him it was his final warning.
Corley testified that Supervisor Koontz called his attention to certain misslotting
and inaccurate counting that Donaldson was responsible for on the day before he
was discharged. He checked some of the work with Koontz and observed the errors.
Later he called Donaldson to his office and terminated him. He said if the number
of mistakes Donaldson had made on the three purchase orders involved on the day
in question kept recurring , it would be impossible to operate the warehouse within
30 to 60 days.
Supervisor Courson denied that he had ever given Donaldson permission to use
a "do not use" slot. He recalled Donaldson telling him one day that he had used a
"do not use" slot and that Courson might as well "give him hell " now. Courson said
he reported the incident to Corley who gave Donaldson a reprimand. Courson was
in the office at the time of the reprimand and heard Donaldson tell Corley that
Courson had instructed him to use the restricted slots. He said he told Corley that
such was not a fact. He also denied that he had ever called all the drivers together
and told them to use the "do not use" slots, and added that he had never heard Corley
give such advice to employees either.
Supervisor Koontz, for whom Donaldson used to work as a boxcar unloader, testi-
fied about certain reprimands which he said he gave Donaldson, but which Donald-
son could not remember, or denied receiving, when he testified. Koontz said he gave
Donaldson a reprimand for not helping a new man in the boxcar, and that Donaldson
had done this before, giving as his reason the fact that helping break in the new
employee slowed him down. Koontz also was able to identify and recall the circum-
stances surrounding reprimands he gave Donaldson on various other occasions such
as the following- Refusing to bring pallets, February 13, 1964; turning in purchase
order with slot numbers missing, February 28, 1964; using stock lanes, March 6,
1964; and the first reprimand for using a slot marked "stay out of," April 8, 1964.
He said on the latter occasion Dixon said he could not find an open slot, so he used
the restricted one.
Corley had testified that Koontz had brought to his attention certain errors Donald-
son had made in counting and slotting just before his discharge, and Koontz gave
more detail about this. He said that his check of receivings did not agree with the
amount Donaldson had reported slotting. He then checked all the purchase orders
covering Donaldson's unloading and slotting and discovered 14 errors in item record-
ing or slotting in 1 day's work. He said that he had never heard of that much mis-
slotting in his 17 years in the warehouse. He informed Corley, who checked the
work with him, and, as a consequence, Donaldson was reprimanded and discharged.
Koontz denied that he said anything to Donaldson as they walked out of the ware-
house on the day Donaldson was fired.
Blackburn testified that he had spoken to Donaldson about the Union in March
1964, but that his talk was in the same "format" as used with the other employees. He
said he told Donaldson that he could be replaced during a strike. He also said that he
warned Donaldson against soliciting employees for union membership on the job.
According to him, employee LeRoy Williams complained to Koontz and employee
Kendrick complained to Blackburn about Donaldson's actions. Donaldson denied
that he had harassed either employee in the warehouse, and the employees did not
testify.
General Counsel argues that Respondent knew about Donaldson's union activities
and opposed them, and I agree. Blackburn questioned Donaldson about the Union
in March 1964, spoke disparagingly about it, and warned Donaldson against solicit-
ing others . Donaldson , however, made it clear to Blackburn that he was remaining
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loyal to the Union. Blackburn was more than casually interested in Donaldson's
activity, or interested in it only as part of a "format" in which he was testing the
Union's majority claim, because he asked employee Young if Donaldson was respon-
sible for securing Young's signature to a union card
On the basis of Respondent's opposition to the Union and Donaldson's role in it,
General Counsel concludes that Donaldson must have been "framed," because the
employee was a good worker for many years with never a reprimand until he joined
the Union, and because Respondent's asserted reasons for discharging Donaldson are
irrational. A key piece in the "frame up" argument and the Donaldson puzzle, how-
ever, is the use of the "do not use" slots by him on a number of occasions before he
was fired. Bluntly stated, a substantial part of the hypothesis is that Respondent's
supervisors entrapped Donaldson by conspiring to give him permission to use the
"do not use" slots and to lie about it later. I resolve this issue adversely to General
Counsel because I do not believe that the logic of the evidence will sustain it.
In the first place, Donaldson testified that he used the "do not use" slots on one
occasion because Corley publicly told him and all the forklift drivers to do so, and,
on another, because Courson quickly granted him permission when he asked for it.
In view of Corley's and Courson's denials that such permission was granted, the
"frame up" would be clear if they were discredited out of hand and Donaldson fully
believed. Resolution is not so simple, however, for the credibility of the witnesses
is dependent, as it is in most cases, not only on demeanor but on many other factors.
One factor is the reasonableness of the theory in the light of all the evidence. I do
not think it reasonable that Corley and Courson would plan to entrap the most active
union employee in the warehouse by reprimanding him and laying him off for some-
thing which they are supposed to have announced publicly was permissible. The
danger of other employee support for Donaldson's version would have been obvious
even if no other considerations entered into the decision. No other employee testi-
fied that Corley or any other supervisor gave them permission to use "do not use"
slots, as Donaldson testified. The fact that no one was able to corroborate the
employee and the unlikelihood that the supervisors would risk making their con-
spiracy vulnerable to public impeachment by employees who were present when the
alleged permission was granted are strong indications that it did not happen.
Another factor which works against the pretext theory is that the practice of honor-
ing "do not use" slots is supported by the evidence. Corley, Courson, and Koontz
all testified that when a slot is so marked it is thereby committed to the IBM pro-
graming and may not be used for other merchandise. Although I did discredit
Courson in some respects in Ethridge's case, I find no reason to discredit Corley's
version of the practice regarding "do not use" slots, and he is corroborated by Koontz
and Courson. In addition, there is no evidence in the record that any other employee
ever used a "do not use" slot, with or without permission. General Counsel is in
error in his interpretation of Courson's testimony as meaning that merchandise may
be slotted in any location number so long as it is recorded correctly on the purchase
order and cleared through the IBM tabulating department. Courson disagreed with
that suggestion under cross-examination and said that such was not the case after
the slot number had been sent "over to IBM." The existence of the practice without
exception indicates, therefore, that reliance on its violation is not pretextual I find,
therefore, that Courson and Corley did not give Donaldson permission to use "do not
use" slots.
I also find on the basis of Corley's testimony that Donaldson did not replace
"reserve cards" in the preinventory preparation to Corley's satisfaction. In addition,
without detailing the evidence, I credit Koontz' and Corley's testimony to the effect
that Donaldson made a number of errors in counting and slotting on three purchase
orders on the day before his discharge. I discredit his testimony that he asked Koontz
to show him the errors and that Koontz refused. Koontz' detailed account of the
errors, which he recited from the purchase orders in his possession, did not appear
contrived or embellished.
Another defect in the conspiracy theory is that the record does not establish that
Donaldson had an unblemished record until he joined the Union and that every
reprimand he got thereafter was fabricated. It is true that the written reprimands
in evidence seem to start in November 1963, but laying aside the question of whether
Respondent knew that Donaldson had interested himself in the Union as early as
November 1963, the reprimands themselves cannot all be said to be fictitious. Koontz
testified about all of them, and in some detail in most cases, naming employees
involved in the incidents. I have examined all the reprimands, and the testimony of
the witnesses about them and they appear to be authentic. For this reason, I find
that Donaldson's record was not as unblemished as he recalled it when testifying.
WINN-DIXIE STORES, INC. 301
Although Respondent opposed the Union and Donaldson's activities in it, Donald-
son used "do not use" slots three times in April 1964. He was reprimanded for it
in all cases and laid off for 1 week after the third offense. Shortly before his dis-
charge, Donaldson failed to follow Corley's instructions about replacing "reserve
cards," and the day before his discharge misslotted and miscounted merchandise. If
Donaldson was set up for discharge by a series of fictitious reprimands and finally
flamed by the misslotting incidents, the record in the case does not establish it. I find
and conclude that General Counsel has not established by a preponderance of the
evidence that Leo Donaldson was discriminated against in layoff or discharge in
violation of Section 8(a) (1) and (3) of the Act.
C. The refusal to ha,gain collectively with the Union
1. The appropriate unit
By letter dated February 6, 1964, the Union requested recognition in the following
unit:
All employees who are engaged in the receiving, shipping, and processing of all
food and sundry products; excluding all meat and cheese processing and pack-
aging department employees; all garage and mechanical maintenance, carpenters,
regular maintenance personnel, truckdrivers and helpers, guards and/or watch-
men, office clerical, and supervisory employees, as defined in the Act.
The complaint also alleges that said unit is a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of the Act. Respondent
answered the Union's demand on February 17, 1964, and stated, among other things,
that ". . . the unit is indefinite and ambiguous, to say the least." Respondent's answer
also denies the appropriateness of the unit alleged. General Counsel contends that
certain categories of employees are properly excluded from the appropriate unit, but
Respondent takes the position that all production and maintenance employees at the
warehouse, including three garage mechanics, should be included. The categories in
dispute are:
a. Warehouse clerical employees
These six female employees 15 work in offices in the warehouse performing clerical
functions. General Counsel contends they are "office clericals," customarily excluded
from production units, but Respondent says they are "factory clericals," customarily
included. It appears that the clericals in question work in glass-enclosed offices in
the warehouse, also occupied by supervisors, and that they seldom have any occasion
to go out into the warehouse. According to Blackburn, the clerks, who are on salary,
work a 5-day week from 8 a.m. to 5 p.m., normally. He said they did an insignifi-
cant amount of secretarial work, but that their duties primarily consist of handling
and processing receiving and shipping records of the warehouse. They also compute
the time of the men in the warehouse, and compute their bonuses from production
records. Employee files are kept in the warehouse offices, but Blackburn said that
the clericals had very little reason to look at them. The clericals in question do not
help out in the main office, which is across the street from the warehouse, but they
do eat in the cafeteria in that building (which is open to all employees, however),
visit the main office to use the copying machine, and send data to the main office
through pneumatic tubes for use in the IBM machine. Blackburn said that the girl
in his office answers the telephone and takes messages for him. When he is away
from the warehouse on occasion, she gives messages to the supervisory staff for him.
Although the clericals were hired by the office manager in the main office and get
the same benefits as the office employees,is they work under the supervision of the
respective departmental warehouse supervision.17 Blackburn described particularly
the work of the grocery warehouse clericals, but it appears that all the warehouse
clericals do essentially the same work.
My reading of the record and evaluation of the testimony make it clear to me that
the working conditions, the work, and the interests of these clericals are radically
15As tney appear on Respondent's payroll in evidence: L. Gibbs and H. Touchton
(grocery warehouse office) ; M. Lord and C. Fight (meat warehouse office) ; and B.
Douglas and M. Stillwell (produce warehouse office).
19 Blackburn, on the other hand, hires all other warehouse personnel.
17 Gibbs and Touchton are supervised by Corley ; the women in the produce office, by
the produce buyer, and those in the meat warehouse office, by the meat buyer.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different from those of the men in the warehouse. The warehouse unit is essentially
a shipping and receiving department, characterized by physical labor and movement.
Obviously, there is no interchange of personnel among clerical and warehouse proper,
and, as indicated, wages and hours are different. The clericals are salaried, but the
men who receive, store, and select the merchandise are hourly rated and receive a
bonus based on production. Their hours are also long and irregular. Unlike
so-called "factory clericals" who work alongside production workers and whose work
is closely connected or integrated with theirs, these clericals are physically isolated
and their work is integrated with that of the supervisors with whom they associate.
The clericals' interests, it would seem to me, would more likely be closer to that of
the employees in the main office or with lower ranked supervision, like shipping and
receiving clerks, but in any event, their physical separation from the workers in the
warehouse is so apparent, and their work, working conditions, and functions so
clearly different that they may be properly excluded from the principal unit at the
request of the Union. I find that the classification of clericals in question is not part
of the appropriate unit.is
b. Warehouse and refrigeration maintenance men
There are seven employees in this category who the Union excluded from the unit
in its demand for bargaining. According to Blackburn, these employees are assigned
to a separate department located at the end of the warehouse and separately super-
vised by T. R. Chandler. He stated that they perform general maintenance and
repair refrigeration equipment, doors, steel racks, and damaged pallets. It also
appears, however, that the men do some plumbing, carpentry, electrical work, and
welding and burning as needed, although they are not classfied as electricians, car-
penters, plumbers, pipefitters, or welders. Occasionally, the maintenance employees
work outside of the warehouse proper, Blackburn said, such as in the cafeteria, the
garage, and gatehouse or in maintaining the fence around the warehouse. The record
also shows, however, that the maintenance employees have done work at the Com-
pany's coffee plant and in the main office. Employee Chester Young so testified,
and I credit him.
Maintenance men use some of the tools of the various trades, but they were
trained on the job by Respondent, according to Blackburn. They work a 5-day,
40-hour week and are paid on an hourly rate. They do not punch a timeclock in the
warehouse, but their supervisor, Chandler, keeps their time.
Although the record does not establish that the maintenance employees are true
craftsmen, it is clear that they are specialized employees, exercising many of the
skills of well-known crafts, working in a separate department under separate super-
vision from the other employees. Their hours and working conditions are different
from the warehouse employees and there is no evidence that there is any interchange
of employees between the departments as there is in the warehouse proper. Funda-
mentally and realistically, an important factor is the distinct difference in the work
involved-maintenance, as contrasted with hard labor in a shipping and receiving
unit. Although production and maintenance units are presumed appropriate, this
is not a factory or a typical production facility with which we are concerned, but
basically a shipping and receiving operation. In any event, maintenance employees
such as those involved here could constitute a homogeneous departmental group
which might be appropriate by itself, and, under such circumstances, their inclusion
with the so-called production employees is not compelled 19
c. Janitors, maids, and sanitarian
W. H. Seabrook, a janitor, is supervised by Supervisor of Transportation E. C.
Wilson and punches the cloak at the garage like all truckdrivers. Blackburn said
this was merely for accounting purposes, because Seabrook's time was charged to
operations, not transportation. Seabrook works from 7 a.m. to 4 or 4:30 p.m. and
one-half day on Saturday. Seabrook is primarily engaged in sweeping and keeping
clean the loading area in front of the warehouse doors and in emptying the ware-
house garbage cans into a 3-ton dump truck which he drives around for that purpose.
He also picks up outside the office and cafeteria. In the course of his work, he goes
into the meat department at the warehouse to pick up bones and wrappings discarded
by employees in the meat and cheese processing department.
18 Victory Grocery Company , a Division of E. J. Keefe Company , 129 NLRB 1415, 1417
- American Cyanamid Company, 131 NLRB 909; United Butchers Abattoir , Inc,
123
NLRB 946, 954-955.
WINN-DIXIE STORES, INC. 303
O. M. Brantley and L. Kendrick are maids who are also supervised by Wilson in
transportation and punch the clock in his department. They are hourly rated on a
40-hour week. The employees clean restrooms , lounges, and . offices in the ware-
house, including similar facilities in the' meat and cheese department, and they also
work in the refrigeration maintenance department for retail stores, as well as the
lounge and offices in the garage. Brantley spends about 90 percent of her time in
the warehouse proper, but Kendricks spends about 65 or 70 percent of hers in the
garage office, drivers' lounge , and carpenter shop office, according to Blackburn.
R. F. Wheeler is the warehouse sanitarian and his job is the control of insects,
roaches, and rodents and recouping damaged merchandise. He inspects food and
groceries for contamination, and is supervised directly by General Warehouse Super-
intendent Blackburn. He is paid on an hourly basis at approximately $1.36 an hour,
and works from 7:30 a.m. to 5 p.m. Wheeler occasionally works in the dock area
just outside the. warehouse if that area becomes infected, and also may be called to
the office or cafeteria area on occasion for like reasons.
Bryant, Miller, Fleming, and Cox also appear on Respondent's payroll as janitors
assigned to certain departments in the warehouse. Their work appears to be the
ordinary cleaning and maintenance work which janitors do.
The nature of the work that the janitors, maids, and the sanitarian perform leads
me to conclude that they are more properly a part of a warehouse maintenance unit.
Their work is essentially maintenance and would seem to fall within the exclusion
in the Union's demand of "regular maintenance personnel ." It is true, as Respond-
ent urges, that the Board frequently places janitors in production and maintenance
units, but it is also true that just as the regular maintenance men with some skills
may constitute an appropriate unit, employees, such as janitor, cleanup men, or yard-
men, may be included in the maintenance unit . In view of the fact that the shipping
and receiving employees constitute a distinct group with common interests and work-
ing conditions different from all other employees, the inclusions of the janitors, maids,
and sanitarian in the maintenance grouping would appear proper. I find that in the
circumstances, a unit excluding these employees may constitute an appropriate unit 20
d. Warehouse equipment repairmen or mechanics
The employees in question are Gamble , Jacobs, and McHugh , and even the correct
nomenclature to apply to them is in dispute . The General Counsel contends they
are garage mechanics like 16 or 17 other garage mechanics who all agree are excluded,
but Respondent contends they are warehouse equipment repairmen who spend most
of their time in the warehouse . It appears that the men spend a great deal of their
time in the warehouse , but the equipment they repair is of a mobile nature like tow
motors, tractors , and forklifts . The men also spend a substantial amount of time in
a shed attached to the garage , where the trucks are serviced , working on mobile
equipment towed in from the warehouse , and they are attached to the garage payroll,
punch the timeclock there , and are under Garage Supervisor Abbott. One of the
mechanics in question services the machinery and equipment at the Company 's coffee
plant . The men work a 42-hour week, just like other garage employees . In my view,
the employees in question are more like the admitted garage mechanics all parties
would exclude and who would belong in a transportation unit. In any event, their
work is more like the work of other maintenance employees found to have been
properly excluded and they could properly be included in a unit with them. I find
that the category in question , be it garage mechanic or warehouse equipment repair-
man, may be properly excluded from the warehouse unit requested by the Union.21
It is well established that there may be more than one appropriate unit . The Board
has said that assuming one unit may be the most appropriate , this does not establish
it to be the only appropriate one. The Board does not compel labor organizations
to seek representation in the most comprehensive grouping , unless an appropriate unit
compatible with that requested does not exist . The Board's decisions accord with the
statutory purpose of establishing units which "assure to employees the fullest freedom
20 Allied Chemical i Dye Corporation, Nitrogen Division, 120 NLRB 63, 66-67 ; Oroply
Corporation, 121 NLRB 1067 , 1070; General Electric Company, 122 NLRB 165, 166-167.
21 In Witiaer Grocery Company , ( Cedar Rapids Warehouse and I . O.A. Foods Division),
Ill NLRB 936 , cited by Respondent , the two garage mechanics were included in a pro-
duction and maintenance unit, but that unit also included truckdrivers who no one con-
tends should be included here. The other cases cited, Ethyl Corporation (Sodium and
Tetraethyl Lead Areas ), 80 NLRB 9 , for example, involve craft severance from a 'pro
duction and maintenance unit and garage mechanics were held not to constitute a true
craft.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in exercising the rights guaranteed by this Act." 22 The Union's desires as to unit
is a relevant consideration. Extent of organization may not be the controlling factor,
but it may be considered, and if the unit is not inherently inappropriate, the Board
may find it.
There is nothing inherently inappropriate about a unit restricted to the employees
who actually receive, store, and ship Respondent's merchandise in Respondent's
warehouse. Although the emphasis to this point might appear to have been on why
certain groups of employees, such as maintenance and clericals, could and should be
grouped somewhere else, as the cases cited show they may, a unit of shipping and
receiving employees considered on its own merits seems logical and reasonable in
the light of their common experiences, duties, skills, wages, hours, and working con-
ditions. The unit sought does not contravene any provision of the statute, and, in
addition, although there has been apparently no meaningful history of bargaining,
the little there has been indicates that less than an overall production and mainte-
nance unit is appropriate. In the prior case, the Board and court found the meat
and cheese processing and packaging department to be appropriate. The record also
shows that there is a printing department in the warehouse, and reference has already
been made to garage mechanics and drivers, all of which can be organized on a
departmental or craft basis, and which no one suggests be included in this unit.
I find, and conclude, on the basis of the whole record that the unit sought by the
Union in its demand and alleged as appropriate in the complaint (which excludes the
categories just found to be appropriately excluded) constitutes an appropriate unit
within the meaning of Section 9(b) of the Act.
2. The Union's majority status
a. Number of employees on payroll at critical dates
Respondent received the two demands for bargaining which the Union made in
this case on February 7 and 25, 1964, respectively, and these are the critical dates
upon which it must be shown that the Union had majority status.23 There are two
lists of employees in evidence, one listing them as of February 6, and the other as
of February 24, which are the dates upon which the demands were forwarded, but
the record also shows that the two lists are the same for the days when the demands
were received and may be relied upon in computing majority.
The February 6, 1964, list contains the names of 133 employees.24 By excluding
21 names of persons who fall in categories found not to be part of the unit,25 a total
of 112 names remain. In addition, General Counsel and Respondent contend that
other names should be added to or deducted from the list
Byron Eugene Ammons became employed by Respondent as a laborer on Febru-
ary 3, 1964, according to an exhibit in evidence which shows hires. I see no reason
to doubt Respondent's statement that he was inadvertently omitted from the
February 6 list, and he may be added, making a total of 113.
C. Mangrum quit on February 6, 1964, and in view of the finding that February 7,
1964, is the critical date for majority, he should be removed. Similarly, W. A. Smith
quit on Thursday, February 6, and that was his last day of work, although he was
not severed until February 9.26 He also should be removed from the list of
February 6, 1964, leaving a figure of 111.27
22 Section 9(b) of the Act ; Metropolitan Life Insurance Co v N.L.R $ ,
328 F 2d 820
(C A. 3) ; N.L.R B v Sehill Steel Products, Inc, 340 F. 2d 568 (C A. 5) ; Dixie Bell Mills,
Inc, a Wholly-Owned Subsidiary of Bell Industries, Inc., 139 NLRB 629, 631.
za Rea Construction Company, 137 NLRB 1769
24 Respondent did not Include Gamble, Jacobs, and McHugh, the so-called garage or
warehouse equipment repairmen, who I have excluded from the unit, on the list
n Warehouse and refrigeration maintenance: E Barrineau, R Coates, C Henderson,
A L Jordan, J. Al. Keene, C Lewis, and B. C. Painter. Maids: 0 M. Brantley, L
Kendrick, W. H Seabrook (yardman), R. F. Wheeler (sanitarian), Bryant, Miller, Flem-
ing, and Cox (janitors), Al. Lord, C. Kight, B. Douglas, Al. Stillwell, L. Gibbs, and H.
Touchton (office clericals)
2e There is no evidence that Smith worked on Friday, February 7, as Respondent in Its
brief suggests he might Blackburn testified that he did not know when he left the plant
Thursday night.
27 I do not agree with General Counsel that J D. Rentz is a supervisor in drugs and
should be eliminated Even the employees who testified about him gave him no meaning-
ful supervisory indicia, and Foster testified credibly that he has none.
WINN-DIXIE STORES, INC. 305
The February 24, 1964, list contains the names of 136 employees, but it also needs
altering. Excluding the names of the 21 persons in categories not in the unit, a figure
of 115 remains General Counsel and Respondent, however, would change this
further by addition or subtraction of other names
M. C. Chambers was an employee who retired in 1963. He was rehired on Febru-
ary 23, 1964, to work covering bananas during the cold months, and was terminated
at the end of the winter. General Counsel would exclude him as a temporary
employee not hired for an indefinite period, and I agree."-8 Donald Gilbert was dis-
charged for cause on February 24, 1964. Since the critical date here is February 25,
1964, he also should be excluded, and the count is now 113. James Johnson, how-
ever, should be added for he was inadvertently left off the list. As Respondent notes,
he appears on the earlier list and was not terminated until March 6, 1964. The total
number of employees on the February 24, 1964, list for the purpose of deciding the
Union's majority is, therefore, 114.
b. Number of valid union designations
There are 70 signed union authorization cards in evidence, but Respondent disputes
the evidentiary validity of most of them. Some of the cards are easily disposed of.
Willie Wells, whose card is General Counsel's Exhibit No. 83, quit in January 1964.
Don Allen, on the other hand, did not sign a card (General Counsel's Exhibit No. 93)
until May 3, 1964. Both these cards may be deducted, which reduced the total to 68.
The number is further reduced to 67 by the elimination of X. Hixon's card (General
Counsel's Exhibit No. 105), for he is not on the list, having quit on February 4, 1964.
Bennett, Elliott, Joe Kirkland, Donald Dixon, and John Epps have been found not
to have been discriminatorily discharged, and their cards 2'3 may not be included,
making the total 62.
Woodrow Hilton did not sign a card until February 15, 1964, and Raymond Hen-
derson until February 23, 1964 (General Counsel's Exhibits Nos. 95 and 104), and
their cards may not be counted in assessing the effect of the first demand on Febru-
ary 6, 1964. The remainder is now 60. Sylvester Kirkland's termination on Decem-
ber 23, 1963, long before the demand, eliminates his card (General Counsel's
Exhibit No. 66), which makes the total 59.
1. Cox, E. Bryant, and Robert Fleming are janitors, a category which has been
excluded from the unit, which eliminates the cards 30 which they signed, leaving a
remainder of 56.
W. C. Goethe's card (General Counsel's Exhibit No. 94) is dated "23/2/64."
Since there is no 23d month, apparently Goethe signed the card on February 23,
using the military type date, but this is not too clear because Goethe did not testify.
Elliott, who identified the card has having been signed by Goethe, was not certain
about when he obtained it. In any case, if the card was signed on February 23, 1964,
it cannot be counted in computing the February 7, 1964, majority. As a result,
there are a maximum of 55 valid cards on the crucial date, which is less than a
majority of 111.
In addition, I also find that the testimony does not reliably establish that Lawrence
Foracker signed his card (General Counsel's Exhibit No. 18) on December 31, 1963.
Foracker first testified that he signed and dated the card, later he admitted that some
employee, whom he did not name, inserted the date, but he could not remember when
that was. He also testified that he could not recall when he signed the card, but
thought it was 3 or 4 months prior to the hearing, which would have made it July or
August. Foracker also said he signed it at an employee's home where he and the
unnamed employee went after work that day, but he later indicated that he did not
work on December 31, 1963, because it was New Year's Eve Foracker's card con-
tains the initials "W J.M." and "T.T.J.," as witnesses. These initials may very well
stand for W. J. Mobley and Thomas Jackson, who also signed cards. Mobley did not
testify, and Jackson did not mention Foracker when he did. Finally, a union docu-
ment in evidence (General Counsel's Exhibit No. 77) states that certain persons
signed union cards "today," and the document is dated January 11, 1964. Among
the names listed is Foracker's. The exhibits contradict each other, therefore, and
without coiioboration or a reasonable explanation, the card is unreliable. Without
Foracker's card the sum of the valid cards is 54, and the lack of majority on the date
of the first demand is clear.
28 Owens - Corning Fiberglass Corporation , 140 NLRB 1323 , 1325-1320.
21 General Counsel's Exhibits Nos 35, 37, 44, 48, and 49
30 General Counsel ' s Exhibits Nos. 52 , 86, and 97.
79 6-027-66-vol 153-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union made a second demand for bargaining by letter dated February 24,
1964, which was received on February 25, 1964, and refused by Respondent. As
found above, the total number of employees properly on the second list is 114.
I have found that only 54 cards could be considered valid as of the first demand
date, but certain cards which were eliminated in the computation may be added in
determining the question of majority as of the second demand date. Woodrow
Hilton and Raymond Henderson, who signed on February 15 and 23, 1964, respec-
tively, may be added, which makes a total of 56. W. C. Goethe's card is not so clear
because of the "23/2/64" dating (assumed military style), and Elliott's poor memory
about the date, but I think a finding that Goethe signed on February 23, 1964, is
justified. But giving the Union and General Counsel the benefit of the doubt in
Goethe's case, there still are only 57 valid cards, which is less than a majority of 114.
I also find that the evidence is not sufficiently reliable to establish the authenticity
of the card of L.T. Mobley (General Counsel's Exhibit No 84). Mobley did not
testify, but employee Henry Johnson gave evidence about the card. He began by
stating that he witnessed Willie Moiman's signature and either Mobley's or Ford's,
but he could not remember which He and John Ethridge witnessed Morman's sig-
nature, he said, and he thought he turned the card into the union office. He then
testified that he also saw Mobley sign, but he would not say he signed the card on the
date written on the card-January 18, 1964. Be did not witness the card like he did
Morman's by initialing it, but it appears that the card bears the initials "W.T.M."
(probably Morman) and "C.Y" The witness thought that the initials "L.T.B." on
Mobley's card were Mobley's initials, but General Counsel stipulated that they were
not, but were Leon Brickle's, union official's. Johnson was unable to say what hap-
pened to Mobley's card after he signed it. It also appeared that Johnson, Morman,
and Ethridge were together when Morman's card was signed and witnessed, and that
the three then drove to Mobley's home to get his signature Johnson said Mobley
signed at "his house, I think." He indicated that there were only three persons who
went to Mobley's home, but he also said he would not say whether Chester Young was
there or not. Johnson later indicated that all four employees were in his car when
the Morman-Mobley cards were signed, and that they then drove to the union hall
for a meeting. Leon Brickle then testified that Mobley's card was turned over to him
at the hall and he initialed it, but he had no recollection of who gave him the card
or under what circumstances In my opinion, and I find, Johnson did not know when
the Mobley card was signed and did not see it executed. The card is witnessed by
"C. Y." (probably Young), and Morman In the absence of testimony from the
signer or witnesses, the card may not be relied upon, and the total number of valid
cards remaining is a maximum of 56 si
Since the Union was not designated by a majority of employees in the unit which I
have found appropriate on either of the critical dates, Respondent was under no
statutory duty to honor its bargaining requests. I conclude, therefore, that Respond-
ent did not violate Section 8(a)(1) and (5) of the Act, as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Company set forth in section III, A and B, above,
occurring in connection with the operations of Respondent as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and, such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
31 Respondent also contends that the cards identified by Leon Brickle and Thomas
Scarborough , union officials , are not valid because the witnesses could not positively say
that the person signing the card was a Winn-Dixie employee Although it is unnecessary
to meet this contention in view of my findings of no majority , I indicate here my dis-
agreement for whatever aid it may be in the case of review of this Decision The two
officials testified credibly that they witnessed the signatures at union meetings, the
meetings were for Winn -Dixie employees , names such as those on the cards appeared on
the payrolls of the Company , and some of the signers actually appeared and testified.
This is evidence reliable enough , in my view , to shift the attack to Respondent which has
records and other means available to refute the evidence if it is fabricated
WINN-DIXIE STORES, INC. 307
It will be recommended that Respondent offer employee Marshall Ethridge imme-
diate and full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him to the date of offer of rein-
statement, and in a manner consistent with Board policy set forth in F. W. Wool-
worth Company, 90 NLRB 289. Interest on backpay shall be computed in the
manner set forth in Isis Plumbing & Healing Co., 138 NLRB 716.
It will also be recommended that the Respondent preserve and, upon request, make
available to the Board, payroll and other records to facilitate the computation of
backpay.
It will also be recommended, in view of the nature of the unfair labor practices the
Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Meat Cutters, Packinghouse and Allied Food Workers Union, Local 433,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Marshall
Ethridge, thereby discouraging membership in the Union, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By engaging in the conduct set forth under section III, A, above, Respondent
interfered with, restrained, and coerced its employees and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. Respondent did not discriminate against Ernest Bennett, Carl Elliott, Joe Kirk-
land, Donald Dixon, John Epps, Porter Turner, and Leo Donaldson in violation of •
the Act, and did not refuse to bargain with the Union in violation of law as alleged in
the complaint.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondent, Winn-Dixie Stores, Inc.,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization, by
discharging, laying off, or otherwise discriminating in regard to the hire or tenure of
employment of employees, or any term or condition of employment.
(b) Interrogating its employees as to their membership in, or activities on behalf
of, the Union, or any other labor organization, in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(c) Threatening employees with discharge, or other reprisals, and promising
employees benefits in order to discourage union membership or activities.
(d) Asking employees to report on the union activities of other employees.
(e) In any other manner interfering with, restraining, or'coercing its employees in
the exercise of the right to self-organization , to form, join; or assist labor organiza-
tions, 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 or all such activities.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Offer to Marshall Ethridge immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of earnings he may have suffered by
reason or Respondent's discrimination against him, as set forth in that section of the
Trial Examiner 's Decision entitled "The Remedy."
(b) Notify the above-named employee if presently serving in the Armed Forces
of the United States of America of his right to full reinstatement upon application in
accordance with the Selective Service Act and Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay as set forth in the section of this Decision entitled "The Remedy."
(d) Post at its warehouse in Jacksonville, Florida, copies of the attached notice
marked "Appendix." 32 Copies of said notice, to be furnished by the Regional
Director for Region 12, shall, after being signed by Respondent's representative, be
posted by the Respondent immediately upon receipt, 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 to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of the receipt of this Decision, what steps have been taken to comply with
the Recommended Order herein made 33
as In the event that this Recommended Order 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. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
=In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Meat Cutters, Packinghouse and
Allied Food Workers Union, Local 433, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other labor organiza-
tion , by discharging or refusing to reinstate any of our employees, or in any
manner discriminating in regard to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT interrogate employees concerning activities on behalf of the
above-named or any other labor organization, in a manner constituting inter-
ference, restraint, or coercion violative of Section 8(a)(1) of the Act.
WE WILL NOT threaten employees with discharge or other reprisals, or promise
employees benefits in order to discourage union membership or activities.
WE WILL NOT ask employees to report on the union activities of other
employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form organizations,
to loin or assist the above-named or any other 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 her mutual aid
or protection, or to refrain from any or all such activities.
WE WILL offer to Marshall Ethridge immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to seniority and
other rights and privileges, and make him whole for any loss of pay suffered as
a result of the discrimination against him.
All our employees are free to become or, remain, or refrain from becoming or
remaining , members of Meat Cutters, Packinghouse and Allied Food Workers Union,
Local 433, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, or any other labor organization.
WINN-DIXIE STORES, INC.,
Employer.
Dated------- ----------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
.Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Training and Service
.Act of 1948, as amended, after discharge from the Armed Forces.
SPRUCE PINE MANUFACTURING COMPANY 309
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, Room
706, Federal Office Builr'.mg, 500 Zack Street, Tampa, Florida, Telephone No. 228-
7711, if they have any question concerning this notice or compliance with its
provisions.
Sagamore Shirt., Company d/b/a Spruce Pine Manufacturing
Company and Amalgamated Clothing Workers of America,
AFL-CIO. Case No. 11-CA-p2319. June 4 1965
DECISION AND ORDER
On December 23,1964, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect to the
latter allegations. Thereafter, the Respondent and the Intervenors 1
filed exceptions to the Trial Examiner's Decision and briefs in support,
thereof. The General Counsel filed exceptions to the Trial Examiner's
Decision and the Charging Party filed cross-exceptions with support-
ing briefs thereto.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the findings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and cross-exceptions, the briefs,
and the entire record in this case, and hereby adopts the findings,2 con-
1 Sixty-four of the Respondent's employees, represented by counsel, moved to intervene
in this proceeding The Trial Examiner granted the motion as a valid exercise of his
discretion under the National Labor Relations Board's Rules and Regulations, Section
102.29, Series 8, as amended, and on the basis of the Board's holding in Gary Steel Prod-
ucts Corporation, 144 NLRB 1160, footnote 1.
2 Both the General Counsel and the Charging Party except to the Trial Examiner's
finding that the authorization cards of Jarvis Lee Harris and Marcella Boone were not
properly authenticated and should not be included in establishing the Union's majority.
Since we find, in agreement with the Trial Examiner, that the Union represented a ma-
jority of the employees at the time of its demand for recognition, we do not deem it
necessary to v.ss on the validity of the Harris and Boone cards.
No exception having been filed regarding the Trial Examiner's rejection of the authoriza-
tion card of Katherine V. Erwin, the Board adopts, pro forma, the Trial Examiner's
finning that her card was not adequately authenticated.
With respect to the authorization cards relied upon to establish the Union's majority
status, Member Brown refers to his stated position in Cumberland Shoe Corporation, 144
NLRB 1268, 1269
153 NLRB No. 27.