Winn-Dixie Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 227 (N.L.R.B. 1967)

WINN-DIXIE STORES, INC. 227
Winn-Dixie Stores , Inc., Tampa Division and
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, Local 282.
Case 12-CA-3542
June 29,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
of the Act. See James Hotel Company, 142 NLRB 761; Hy Plains
Dressed Beef, Inc., 146 NLRB 1253
2 The Trial Examiner recommended that the petition in Case
12-RC-2468 be dismissed Since the subject proceeding presented no
issue in the representation case for determination here by,the Trial Ex-
aminer , and since we have administrative knowledge that the petition in
the representation proceeding was dismissed by the Regional Director on
November 1, 1966, we find it unnecessary to adopt that portion of the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On April 12, 1967, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom, and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, and the General Counsel filed excep-
tions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 and
brief, and the entire record in this case, and hereby
adopts the findings,' conclusions, and recommenda-
tions2 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Winn-Dixie Stores,
Inc., Tampa Division, Tampa, Florida, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order,
i Member Brown agrees with the Trial Examiner 's findings that the 16
authorization cards are valid and establish the Union's majority status on
March 19, 1966 , but does so for the reasons set forth in his separate state-
ment in the case of Dan Howard Mfg. Co., and Dan Howard ,Sportswear,
Inc., 158 NLRB 805-
Chairman McCulloch dissents from so much of the Decision as finds
that ( 1) the posting of the March 21, 1966 , bulletin, and (2) Vice Pre-
sident Deriso's answer to an employee's query at the May 10, 1966, meet-
ing with employees , that he did not know what would happen to existing
benefits such as the profit-sharing plan if Winn-Dixie went union, "that
they had not been faced with that problem before , and that they could lose
or gain some depending on the outcome ," were violative of Section 8(a)(1)
Louis LIBBIN, Trial Examiner: Upon charges filed on
June 2 and 3, 1966, by Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local
282, herein called the Union, the General Counsel for the
National Labor Relations Board, by the Regional
Director for Region 12 (Tampa, Florida), issued a com-
plaint, dated October 8, 1966, against Winn-Dixie Stores,
Inc., Tampa Division, herein called the Respondent.
With respect to the unfair labor practices, the complaint
alleges, in substance, that Respondent violated Section
8(a)(1) and (5) of the Act by refusing, upon request, to
bargain with the Union which was designated by a majori-
ty of the employees in a specified appropriate unit and by
various other specified conduct. In its duly filed answer,
Respondent admits the appropriateness of the unit
specified in the complaint and denies, generally, all unfair
labor practice allegations.
Pursuant to due notice, a hearing was held before me at
Tampa, Florida, on December 7 and 8, 1966. All parties
appeared and were given full opportunity to participate in
the hearing, to introduce relevant evidence, to examine
and cross-examine witnesses, to argue orally on the
record, and to file briefs. After several extensions of time
for filing briefs were granted, the Union on March 14,
1967, and the Respondent on March 17, 1967, filed time-
ly briefs, which I have fully considered. On March 20,
1967, counsel for the General Counsel submitted a state-
ment, advising that he was "unable" to prepare a brief
"due to a prolonged serious illness ," but was submitting
"a brief statement concerning a portion of the General
Counsel's proposed remedy."
For the reasons hereinafter indicated, I find that
Respondent violated Section 8(a)(1) and (5) of the Act.
Upon the entire record in the case,' and from my obser-
vation of the demeanor of the witnesses while testifying
under oath, I make the following:
1 On March 17, 1967, 1 received from counsel for the General Counsel
a motion to correct the record in certain specific respects. On March 24,
1967 , 1 received from Respondent 's counsel an "Objection ," stating that
"Counsel for Respondent has only one objection to General Counsel's
Motion to Correct the Record, and that is the substitution of the words
`tick off for `take' at line 22, page 247" and that "Counsel for Respondent
has no strenuous objection to any of the other corrections moved for by
Counsel for General Counsel " Upon consideration of the foregoing and
the fact that the other proposed corrections are in accord with my own
recollection of the testimony and argument , I hereby grant the said motion
to correct the record except as to the above-stated item to which counsel
for Respondent objects, and have made the corrections herein granted. On
March 24, 1967, 1 also received from Respondent 's counsel a motion to
correct the record in certain specific requests . As I have 'received no ob-
jection to the granting of said motion and as the proposed corrections are
in accord with my own recollection of the testimony and argument, I
hereby grant said motion and have made the corrections herein granted
Both motions have been placed in the official exhibit folder as General
Counsel's Exh 9 and Resp. Exh. 12, respectively.
166 NLRB No. 42.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Florida corporation , operates a multi-
state retail grocery chain , including a warehouse at Tam-
pa, Florida , where it processes and packages food
products . During the 12 months preceding the issuance
of the instant complaint , Respondent 's gross volume of
business exceeded $500,000 ; during the same period
Respondent received at its Tampa , Florida, warehouse,
goods valued in excess of $50,000 directly from points
outside the State of Florida.
Upon the above-admitted facts, I find , as Respondent
admits in its answer , that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , the record
shows, and I find that Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local
282, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
Self-organization among Respondent's employees
began in early March 1966, when some employees from
Respondent's meat department met at one of their homes
with a union organizer. By letter dated March 18, 1966,
the Union informed Respondent's attorney that a majori-
ty of Respondent's employees in the admitted appropriate
unit designated the Union as their collective-bargaining
representative, and requested recognition as such bar-
gaining representative. At that time, the Union had signed
authorization cards from 16 of the 23 employees in said
unit. By reply letter dated March 24, Respondent's attor-
ney refused the Union's request for recognition on the as-
serted ground that "we entertain a good-faith doubt that
you represent a majority of our employees in an ap-
propriate unit." Upon the subsequent filing of a rep-
resentation petition by the Union about the middle of
April, the Board, pursuant to a consent-election agree-
ment executed on May 2, conducted an election on May
25 among Respondent's employees in the admitted ap-
propriate unit; of the 22 ballots cast among the 23 eligible
voters, the Union failed to obtain a majority by a tie vote
of 11 to 11, although it at that time had 17 authorization
cards signed by employees in said unit. Meanwhile, dur-
ing the period from March up to and including the day be-
fore the election, Respondent sought to induce the em-
ployees to reject the Union as their collective-bargaining
representative by its conduct in conversations by super-
visors with individual employees, in bulletins posted in
the meat department, in individual interviews with em-
ployees, in company meetings with the unit employees,
and in other respects.
2 The Board further stated that it "deem[ed] it unnecessary to pass
upon the propriety of the objection alleging discrimination in the granting
of a wage increase."
On June 2, 1966, the Union filed timely objections to
conduct affecting the results of the election. On July 15,
1966, the Regional Director issued his report on objec-
tions in which he recommended that certain of the
Union's objections be sustained and that the election be
set aside . Thereafter, Respondent filed timely exceptions
to the Regional Director's report. On October 4, 1966,
the Board issued a Decision in which it adopted the Re-
gional Director's findings and recommendations "insofar
as he directs a second election by reason of his finding
that the Employer conducted individual interviews of em-
ployees eligible to vote in the pending election, thus creat-
ing an element of fear amongst them and interfering with
the conditions necessary to a free choice by the employ-
ees." 2 The board ordered that the election be set aside
and that a second election be conducted "at such time as
the Regional Director for Region 12 deems appropriate."
No second election was conducted because of the sub-
sequent issuance of the instant complaint.
The principal issues in this case are (1) whether
Respondent's conduct prior to the election of May 25,
1966, constituted interference, restraint, and coercion
violative of Section 8(a)(1) of the Act; (2) whether the
authorization cards signed by the employees constituted
valid designation cards to be counted in determining the
Union's majority status; and (3) whether Respondent's
refusal to bargain with the Union was motivated by a
good-faith doubt as to the Union's claimed majority
status.
B. Interference, Restraint, or Coercion
1. The facts3
a. Conduct of supervisors
George Deriso is Respondent's vice president and
Tampa Division manager. He is the chief company of-
ficer in the Tampa Division and has complete supervision
over all phases of the operations of the Tampa Division.
George Uffner is the meat processing supervisor, with
immediate supervision over all the unit employees in the
meat department. Irvin Roberts is the produce warehouse
superintendent. Respondent admits that at all times
material herein, these three were agents of Respondent,
acting on its behalf, and were supervisors within the
meaning of the Act.
(1) Division Manager Deriso
Employee Billy Thompson signed a union authoriza-
tion card at a union meeting held on March 8. Thereafter,
he told his immediate supervisor, Uffner, that "some
busy bees were trying to get the union into the
warehouse." Some days later, Uffner asked Thompson if
he would like to talk to Deriso. Thompson answered in
the affirmative and went to Deriso's office. Deriso stated,
"I understand you told Mr. Uffner a union was coming
in." Thompson answered, "yes, sir, there was." Deriso
then asked how many were interested in the Union?
Thompson replied that "it was a good majority."4 Deriso
asked what did "the boys want," what were "they after
3 Unless otherwise indicated , the factual findings in this section are
based on evidence which is either admitted or undisputed.
4 Thompson testified that "I know I thought they were all for it in some
ways .
WINN-DIXIE STORES, INC. 229
through the union," and "how come they didn't come to
me?" Thompson replied that he really didn't know but
that "it must have been more money, and some of the
boys mentioned the longer vacation and sick pay."
Deriso then asked Thompson what he thought could be
done to change some of the boys "back for the com-
pany?" Thompson stated that they were new employees
who did not know the Company's benefits and suggested
that Deriso could talk to them, pointing out that there had
not been a meeting on company benefits "for at least two
years." Although Deriso had stated that he did not want
to know who had signed union cards, he nevertheless
asked Thompson which employees he should talk to.
Thompson mentioned two or three names. Either at this
meeting or in a subsequent conversation, Deriso stated
that "the company has never signed a contract," that the
principal thing the union wanted was to go on strike, and
that "that would hurt the employees more than anybody."
Thompson agreed with him.5
About a week or so before the May 25 election, Deriso
met Thompson on the produce dock as the latter was
leaving work. Deriso asked how things looked. Thomp-
son replied, "not too good." Deriso then asked if the
"boys were still for the union" and what else Deriso
could do to "make some of the boys come back." Thomp-
son replied that Deriso should "talk to them some more."
Deriso asked Thompson to suggest to whom Deriso
"should talk that he might change his mind and go for the
company," and wanted to know if Marvin Suggs would be
a good man to talk to. Thompson answered that he did not
think so.6
On one occasion before the election, employee Paul
Carter was in Deriso's office obtaining a $100 loan to
help him buy another car. At that time, Deriso stated that
if they had a union representing the employees, Carter
would have to go through the union rather than go
directly to him to ask for the loan .7
(2) Meat Processing Supervisor Uffner
For some period before the election, Billy Thompson
had many conversations about the Union with Uffner, the
immediate supervisor in overall charge of all the meat de-
partment employees in the unit. When Uffner asked
Thompson if it looked "bad for the company," Thompson
replied that "it looked like a majority for the union."
Uffner wanted to know "what the boys were trying to get,
what they were dissatisfied with." Thompson told him
that he thought they wanted more money, better sick pay,
and longer vacations.8
Employee Clarence Lovelace also had discussions with
Uffner about the Union. On one occasion, Lovelace
asked how the Union would affect Uffner. The latter
replied that he might lose his job if the Union were voted
in. On another occasion Uffner told Lovelace that he did
not think "we needed a union at this time," that he was
against the Union, and that he blamed the union for his
mother's death because his father was out on strike at a
time his mother was ill and did not have the money for
medicine and a doctor. On another occasion in the
shipping office, Uffner told Lovelace that "Winn Dixie
beat the unions once and they could do it again."9
(3) Produce Warehouse Superintendent Roberts
Employee Winford Richardson signed a union card at
a union meeting on March 8. From that time on, he had
frequent discussions about the Union with his cousin,
Produce Warehouse Superintendent Roberts, at the
latter's home. The two had always been very close, with
Roberts, the older one, taking a close interest in his
younger cousin. During these discussions about the
Union, Roberts told Richardson that "we know what's
going on and we know what you're doing."10 On another
occasion, Roberts stated that he wished Richardson
would not get mixed up in the Union and that "it will ruin
your future if you get mixed up with the Union."11
b. The company postings and distributions
The parties stipulated that during the period between
March 21 and May 24, 1966, Vice President and Tampa
Division Manager Deriso prepared, signed, and posted
the following documents on the bulletin board in the
Tampa warehouse meat department "and/or distributed
[them] to its employees" in that department.
5 The findings in this paragraph are based on the testimony of Billy
Thompson , an employee of approximately 3 years ' standing who testified
while Deriso was present in the hearing room and who impressed me as a
reliable and credible witness . Denso remembered the occasion when
Thompson came to his office and told him he felt the majority had signed
union cards He testified that he asked what their "grapes" were, and that
Thompson replied that they wanted more money , longer vacations, and
more sick pay. Deriso testified that he then showed Thompson a union
contract and compared the benefits listed therein with those of the Com-
pany. He did not specifically deny having made the other statements at-
tributed to him in the text.
6 The findings in this paragraph are based on the credited testimony of
Thompson Deriso testified to a different version of his conversation on
the produce dock. He admitted asking Thompson , "how are things go-
ing?" He testified that Thompson replied in reference to the Union that
"some days it looks good and some days it doesn't ," that Thompson com-
mented that "we have got better benefits . What more can you do for peo-
ple," and that Thompson then stated there was one man "in particular" he
thought Deriso should talk to . Deriso further testified that he speculated
out loud that the man was Clarence Lovelace , that Thompson would not
commit himself but added that Deriso "ought to discuss the benefits with
all the new employees ," and that Deriso replied that he intended to do so.
I do not credit Denso's version to the extent that it may conflict with the
testimony of Thompson set forth in the text.
' This finding is based on the credited and undisputed testimony of
Carter, who impressed me as a trustworthy witness Deriso merely denied
ever telling anyone that he could not receive financial assistance if the
Union was voted in
' The findings in this paragraph are based on the credited and un-
disputed testimony of Thompson . Uffner testified that he did not re-
member, but that he would not deny , that Thompson told him the Union
had a majority in the meat department He admitted talking to employees
about the Union, mostly "about the benefits," and that he "may have told
them that they did not need a union."
9 The findings in this paragraph are based on the credited and undemed
testimony of Clarence Lovelace. Uffner admitted telling Lovelace that if
the Union were successful in being recognized here , it could affect
Uffner's job.
10 Richardson reported to Union Representative Stevens that the Com-
pany "knew when we were going to give out literature the next day, they
knew what we were going to do."
11 The findings in this paragraph are based on the credited testimony of
Richardson who was still in the Company's employ at the time of his
testimony in the presence of Denso and who impressed me as a candid
and trustworthy witness Roberts admitted having these frequent discus-
sions about the Union. He admitted telling Richardson "the company
knew they were having a talk with the union and some of the fellows
wanted to join" but was "not too sure" as to what else was said. He denied
telling Richardson that the Company knew in advance what the Union
was going to do, or giving Richardson any advice as to what to do about it
I do not credit Roberts' testimony to the extent that it may conflict with
that of Richardson set forth in the text
308-926 0-70-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) On March 21
Deriso testified that he first learned of the Union's
claim to represent the employees in the Tampa
warehouse meat processing room in a telephone call from
Respondent ' s Attorney Bowden on Sunday , March 19,
1966. He admitted that the first action he thereafter took
was to prepare and post a one-page bulletin , dated March
21, 1966. This bulletin , entitled in underlined large type
"THINK BEFORE YOU SIGN A UNION CARD,"
informed the employees in substance as follows: When
you sign a union authorization card , you give away your
right to represent yourself and your right to talk to the
Company about your wages, the hours you work, and
anything else about your job . It only takes a few em-
ployees' signatures on these cards to start an investiga-
tion by Board agents "which may lead to an order of the
Board giving the union the sole right to represent all our
employees in an appropriate unit and which would
prohibit the Company from talking with you and would
force the Company to deal only with the Union ...."
You have a right to decide for yourself, without coercion
or pressure by the Company or the Union , whether you
wish to join or refuse to join a union . "We want you to
know that the Union cannot get you any benefits that you
cannot get for yourself without a union and without pay-
ing dues or going on strike." "We do not want to change
our ways of doing things ...." "We want to continue
dealing directly with you without having to deal with
strangers who do not know us and who have no interest
in our business ." If a union represents you, you will no
longer have the right to talk to any company official or ex-
ecutive "about your wages, promotions , and any other
problems connected with your job."
(2) On March 22 or 23
A day or two later, Deriso posted a two -page bulletin,
entitled "DID YOU KNOW THIS?" in which he in-
formed the employees about what had happened to the
employees in the meat processing room in the Company's
Jacksonville , Florida, warehouse after this same Meat
Cutters Union got a majority of signed authorization
cards on October 25, 1961 , and the Company was
directed to recognize this Union as the employees'
representative. The bulletin pointed out that during the
4-1/2 years that this Union represented the Jacksonville
employees , they went without a raise because "no
changes in wages or hours can be made by the Company
when a union claims to represent the employees "; and in
large bold type emphasized that "THESE JACKSON-
VILLE EMPLOYEES HAVE NOW FILED A PETI-
TION TO GET RID OF THE MEAT CUTTERS
UNION."
The bulletin goes on to stress that "Winn Dixie was the
only one who had the employees ' interest at heart" and
always "looks out after its own"; whereas, when the
Union calls a strike , "only the workers lose." It then
points out that since October 1965 , the Meat Cutters
Union has called out on strike the employees of a chain
in Jacksonville, Florida, and in Atlanta, Georgia.
(3) On May 2
A bulletin, entitled "NOTICE," was posted on May 2,
advising the unit employees of the scheduled Board elec-
tion for May 25, urging everyone to vote and to "VOTE
NO" even if they had signed a union card, and pointing
out that the employees can only depend on what "the
Company says" because "not a single promise of the
union about your wages, hours, or working conditions can
be carried out unless the Company agrees to it."
(4) On May 5
On May 5, Deriso posted a chart, 12 listing on one side
"WINN DIXIE BENEFITS and on the other side
"MEAT CUTTERS UNION." Eleven items are listed
on each side of the chart, purportedly comparing existing
company bestowed employee benefits with those of em-
ployees represented by the Union. Deriso testified that
the benefits listed under the heading of "MEAT CUT-
TERS UNION" were taken by him from the Union's
contract with Lykes Brothers , but the chart admittedly
makes no reference to that contract or company. Thus the
chart was reasonably calculated to convey the impression
that it applied to all employees wherever represented by
this Union.
Among the listed Winn-Dixie benefits which compare
more favorably than those listed for the Meat Cutters
Union are (1 ) 2 weeks' vacation after 2 years of service
as against 2 weeks' vacation for 3 years of service, (2)
tools furnished and sharpened by Company as against
employee furnishing tools and being allowed 25 cents per
month as reimbursement for the cost, (3) life insurance
coverage ranging from $2,000 to $10 ,000, depending on
seniority and earnings, as against no life insurance under
Meat Cutters Union, (4) 15-minute rest periods twice a
day, as against 10-minute rest periods twice a day, (5) de-
pendent insurance coverage at employee charge of 25
cents per week or $1 per month as against an employee
charge of $8.35 per month , (6) no union dues as against
a charge of $6 per month for union dues, and (7) no
strikes as against strikes under the Meat Cutters Union.
However, the record shows that the Union's dues are
only $5 per month, and Deriso admitted that the dues are
not listed in the Lykes Brothers contract which he al-
legedly used as the source for the benefits listed under
Meat Cutters Union . The record further shows that under
the Union's contract with Food Fair Stores, Inc., another
company in the area , effective from February 13, 1966,
to 1969, employees are also granted 2 weeks' vacation
after only 2 years of service, "proper tools in good condi-
tion" are furnished by the employer, 15-minute rest
periods are allowed during each 4 hours but not to exceed
two in I day, and all full- time employees are covered by
"life insurance benefits of $2,500 paid by the Employer"
and by a "hospital and surgical insurance program, with
dependent coverage , at no cost to the employee."
(5) On May 11
Deriso admitted that employees Tuttle and Richardson
advised him that some of the boys were concerned about
their jobs because they had signed union cards and en-
gaged in union activity , and they asked Deriso to post a
bulletin "assuring that whether or not a man had a card
would have no effect on his future employment with the
Company." Deriso admittedly told them that he would be
glad to post a bulletin to the effect, and that this was the
bulletin he posted on May 11.
1" Deriso's name did not appear in this chart
WINN-DIXIE STORES, INC. 231
This bulletin, addressed to "ALL MEAT ROOM EM-
PLOYEES," opens with the statement that "it has been
brought to my attention that our employees wish to aban-
don the Union, and are scared that they have caused the
Company to have some feelings against them per-
sonally." It then points out that "THIS IS NOT TRUE,"
and announces that "I am pleased" that our employees no
longer feet that "they needed a union to speak for them."
It then asserts that "WINN-DIXIE does not intend to
penalize , discriminate , or discharge any employee
because of his past union activity," that the "Company
intends to be fair and impartial in the future - as we have
tried to be in the past," and that "WINN-DIXIE always
looks out for its own- you can depend on this." The bul-
letin closed with an appeal for a unanimous "NO" vote in
the election "so that we will know that we have our team
together once again."
(6) On May 18
A week before the May 25 election Respondent dis-
tributed to each employee in the bargaining unit an en-
velope containing $6 and entitled "THIS $6.00 IS
YOURS." The following statement , double spaced, also
appeared thereon:
We understand the Meat Cutters Union charges
$6.00 per month for dues. You can see what one of
your weekly checks would look like after you deduct
$6.00 for union dues. Now the Meat Cutters Union
wants you to join and take $6.00 out of your earned
pay each month. To keep the Meat Cutters Union
from getting about $72.00 a year out of your money
for dues, VOTE NO in the election next week.
$72.00 minimum yearly dues is only a starter. There
are also initiation fees, possible assessments and
political contributions , and fines.
VOTE NO VOTE NO VOTE NO
The record shows, as Respondent concedes , that the
Union's dues were $ 5 per month.
c. Individual private interviews by Deriso
After receiving a copy of the Union 's representation
petition about the middle of April, Vice President and
Tampa Division Manager Deriso admittedly embarked
upon a systematic program of privately interviewing each
unit employee individually and on company time. These
interviews were held in the meat training schoolroom,
which is immediately above the meat cutting room where
unit employees worked . Meat Processing Supervisor
Uffner, the immediate superior of the unit employees,
called each employee away from his work station and
escorted him upstairs to the meat training schoolroom for
this purpose. Each interview admittedly lasted from 20 to
45 minutes, with only Deriso and the employee being in
the room. As Deriso finished his interview with one em-
ployee, Uffner would summon and escort another. Until
shortly before the election , Deriso in this manner admit-
tedly spoke at least once to all but I of the approximately
23 employees in the unit and more than once to some of
them. Deriso admitted that he had never before con-
ducted a series of private individual interviews with the
employees in the meat department.
There is no significant dispute concerning the subject
matter and nature of Deriso 's talks. In substance, he went
through a list of Winn-Dixie's existing benefits and wage
rates such as appear on the charts posted in the meat de-
partment, as previously detailed, and, just as in those
charts, compared them with the benefits appearing in a
contract which the Meat Cutters Union purportedly had
with a company in the area whose name was not disclosed
to the employees . Also, as previously noted ,,among the
Winn-Dixie benefits listed were the absence of dues and
strikes. Using a strike computer , he showed employees
how long it would take to make up wages lost while an
employee was on strike . Deriso admitted that he also told
some of the employees that "it was possible that if they
went on strike they would lose their job."
d. The company meetings
(1) Meeting of May 10
After the 10 a.m. break on May 10, some of the unit
employees disclosed their concern about the pending
election and about the effect of a union victory on their
jobs, wage increases , and their existing fringe benefits.
They told meat Processing Supervisor Uffner that they
had some questions to ask and would like to meet with
Deriso, who was Respondent 's vice president and Tampa
Division manager, and with Hollingsworth , who was
Respondent's regional vice president . Uffner thereupon
relayed this request to Deriso and Hollingsworth. As a
result, a meeting was held about 10:30 a.m . in the meat
training schoolroom , attended by all the approximately 23
unit employees and by Uffner, Deriso, and Holling-
sworth. The meeting was conducted by Deriso and lasted
until about 11:45 a.m.
About 13 employees (most of them being witnesses for
the General Counsel) and all 3 management representa-
tives testified about this meeting. While there is no signifi-
cant dispute as to much of what transpired at this meet-
ing, there is considerable conflict in the testimony of em-
ployee witnesses as to management 's response on certain
specific items. Upon full analysis of all the testimony, the
admissions of Respondent's representatives , and other
relevant factors bearing on credibility, I find that the pre-
ponderance of the credible testimony disclosed the fol-
lowing to have occurred:
In general, the employees asked questions concerning
job security , pay raises , wage setup and a progressive
wage scale, meat tonnage bonus, insurance , existing
profit-sharing plan, and other existing fringe benefits.
They wanted to know what the Company intended to do
about many of these items. Deriso made most of the
replies and , in general, stated that no promises could
be made until the union matter had been settled. Hol-
lingsworth made some comments and also read a short
statement.
More specifically , with respect to job security, Deriso
stated in substance that job security came from good
work performed every day and that no one would lose his
job whether or not the Union was voted in. In response
to the question as to why the employees could not have
some sort of meat tonnage bonus, Deriso stated they
could not promise anything but would look into it.
Hollingsworth admittedly asked if the employees would
be willing to work harder on a bonus plan and increase
production and pay accordingly. When one employee said
he would like to know more about it, it was discussed
further. Hollingsworth stated that they would look into it
but that they could not make any promises or changes
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while the election was pending . Some employees asked
if they would get a raise like the general raise they had
been receiving every year. Deriso replied that in ac-
cordance with the Company's past policy they would
make the annual review of wages for all employees at the
end of June or July, but that he could not make any
promises of a pay raise at this time because it would look
like a bribe and be against the law. An employee asked
what would happen to the existing benefits such as the
profit-sharing plan if Winn-Dixie went union. Deriso
replied that he did not know, that they had not been faced
with that problem before, and that they could lose or gain
some depending on the outcome. 13
During the course of the meeting, Hollingsworth admit-
tedly read the following statement:14
The union cannot guarantee a job, steady work and
wage increases or more benefits. The only thing it
can guarantee is trouble. The unions cannot exist
without money they collect from employees. If there
is no trouble, the outside troublemakers of the union
will come in and make trouble. There would be no
automatic wage increases or other benefits if the
union won the election, but just exactly the opposite
is true.
(2) Meeting of May 17
On Tuesday morning, May 177, Deriso called a meeting
of the meat department employees, which constituted all
of the unit employees. The meeting was held in the meat
training schoolroom. Deriso announced that as of the
preceding day, May 16, a general wage increase became
effective throughout the warehouse except for the unit
employees in the meat department15 and that the reason
they were not included in this general wage increase was
because no changes in wages or benefits could be made
until the matter of union representation was settled in the
pending election on Wednesday, May 25.16 Employees
asked about the amount of the wage increase. Deriso
replied that it was 15 to 16 cents an hour. The question
was then asked as to what the Company would do about
their wage rates if the Union was voted out. Deriso
thereupon admittedly read the following statement which
he had previously prepared in anticipation of such a
question:
You know I can't make promises. If I answered as
you would want me to I would be violating the law.
We have always tried in the past to keep our benefits
uniform for all groups. And we will continue this in
the future.
(3) Meeting of May 24
A final company meeting with the unit employees was
held in the meat training schoolroom on Tuesday, May
24, the day before the election . Present for Respondent
were Deriso , Hollingsworth , and Uffner. Also present
was an employee from Respondent 's warehouse in
Jacksonville, Florida, in response to questions asked of
Uffner by some of the employees as to whether it would
be, possible for someone from the Jacksonville warehouse
to come to Tampa to talk to them. The meeting was con-
ducted by Deriso, and had been arranged primarily to
have the Jacksonville warehouse employee address the
assembled unit employees.
Deriso admittedly told the assembled employees that
based on his private interviews with all the employees he
felt that the Company "would win the election by a good
majority." Uffner, their immediate superior, also spoke.
He admittedly mentioned his friendly relations with the
employees, that in the past he had always tried to be fair
with them, and that he had tried to keep them working
even when work was slack. Uffner then pointed out that
he was against the Union, that he had seen strikes and
what they had done to people, and that he felt a vote for
the Union would actually be a vote against him. He then
related a past incident in which his father, a miner in Ken-
tucky, was on strike most of the time while his mother
was ill and dying without adequate funds for proper medi-
cal attention.
Deriso introduced the Jacksonville warehouse em-
ployee who then also spoke and answered employee
questions. He stated that the employees in the Jackson-
ville warehouse unit were trying to get the Union out, that
over 20 employees had signed a petition to remove the
Union, and that he had with him the list containing the
names of these employees which they were still trying to
file. He told about the difficulties they had had with the
Union and the trouble they were having trying to get it
out, about the number of years they had been fighting in
the courts, and that nothing had taken place during the ap-
proximately 4-1/2 years in which the Union supposedly
represented them. When employee Lovelace asked why
Winn-Dixie would not sign a contract with the Union, he
replied that he "guessed it was because they just didn't
want a union." Deriso and other management representa-
tives were present during the entire period in which the
Jacksonville employee made the above statements and
observations.
2. Concluding findings
From the time when it was first informed in March that
a majority of its meat department employees had signed
union authorization cards until the day before the election
on May 25, Respondent, through its admitted supervisors
and agents, engaged in a deliberate and systematic cam-
paign to undermine the Union and to induce the unit em-
ployees to reject the Union as their collective-bargaining
representative. This campaign was led by Vice President
and Tampa Division Manager Deriso, the highest
management representative stationed at the Tampa Divi-
sion, and was conducted through the media of private
conversations with individual unit employees, bulletins
posted and/or distributed in the meat department, com-
pany meetings with unit employees assembled on com-
18 This finding is based on the testimony of Respondent 's witness Harry
McNeal , the employee who asked that question at the meeting . I do not
credit the testimony of employee witnesses for the General Counsel to the
effect that Deriso or Hollingsworth stated at the meeting that the profit-
sharing plan was a self-supporting deal and could be taken away or
dropped at any time, and that they would probably lose some of their
benefits.
14 Hollingsworth testified that this statement appeared in a consumer
report to which he subscribed and is based on an employer's preelection
speech appearing in the Board decision of Belknap Hardware & Mfg. Co.,
157 NLRB 1393. However, Hollingsworth did not inform the employees
as to the source of this statement.
15 The ice cream department was also excluded because Respondent
had recently granted a wage increase to the employees in that department
16 I do not credit the testimony of the General Counsel's employee wit-
ness Myron Baumhardt that the reason Deriso gave for excluding the
meat department was "about the Union coming in." This is contrary to the
preponderance of the credible testimony of witnesses for both the General
Counsel and the Respondent.
WINN-DIXIE STORES, INC. 233
pany time and premises, and private interviews with vir-
tually all unit employees , individually . In each medium,
Respondent engaged in conduct which interfered with,
restrained , or coerced the employees in the exercise of
their statutory rights in violation of Section 8(a)(1) of the
Act, as hereinafter more specifically found.17
a. In private conversations with unit employees
Respondent violated Section 8(a)(1) of the act by the
conduct of Vice President and Division Manager Deriso,
Supervisor Uffner, and Produce Warehouse Superin-
tendent Roberts in the following respects:
The conduct of Deriso
(1) Interrogating Billy Thompson in March in Deriso's
office concerning the number of employees who were in-
terested in the Union, what the ' employees wanted and
were after , why the employees did not come to Deriso in-
stead of to the Union , what Thompson thought could be
done to change some of the boys back "to the company,"
and the names of employees to whom Deriso should talk
about the Company's benefits; and interrogating Thomp-
son on the dock about a week or so before the May 25
election as to whether the "boys were still for the Union,"
what else Deriso could do to "make some of the boys
come back ," the names of employees to whom Deriso
should talk to get them to change their minds "and go for
the company ," and as to whether he should talk to certain
named employees.
The foregoing interrogation would require the disclo-
sure of the Union 's strength and the identity of employees
who were actual or potential union supporters or sym-
pathizers for the purpose of attempting to induce them to
reject the Union as their bargaining representative. Con-
sidered in its context and in the light of Respondent's
other unlawful conduct herein found, I find that it con-
stituted interference , restraint , or coercion within the
meaning of Section 8 (a)(1) of the Act . I also find that
Deriso's solicitations of advice and assistance in Re-
spondent 's effort to stop the employees from selecting the
Union as their bargaining representative "are clear viola-
tions of [Section 8(a)(1)] of the Act." 18
(2), Telling Thompson in one of the conversations that
"the Company has never signed a [Union] contract" and
that the principal thing the Union wanted was to go on
strike. These statements must be considered in the light
of one of Deriso 's posted bulletins stressing the fact that
this same Union had been unable to obtain a wage in-
crease for the meat department employees at Respond-
ent's Jacksonville warehouse for a number of years after
the Board forced the Company to recognize it as bargain-
ing representative and Deriso 's failure to disavow the
statement of the Jacksonville employee at the May 24
meeting that he believed that no union contract was
signed at the Jacksonville warehouse because
Winn-Dixie "just didn 't want a union ." So considered,
and in view of Respondent 's other unlawful conduct,
these statements reasonably tended to convey the belief
or create the impression that it would be futile to select
the Union as their bargaining representative because the
Company would not sign a contract this time either due
to its opposition to unions and the principle of collective
bargaining. They therefore interfered with, restrained, or
coerced employees in the exercise of a free choice in the
selection of a bargaining representative, conduct
proscribed by Section 8(a)(1) of the Act.
(3) Telling Paul Carter in beriso's office, on the occa-
sion when he was receiving a loan for the purchase of a
new car, that if they had a union representing the em-
ployees Carter would have to go through the Union
rather than go directly to Deriso to ask for a loan. This
obviously erroneous statement amounted to a threat or
warning that the employees would lose that existing
benefit or privilege if they selected the Union as their bar-
gaining agent, conduct clearly proscribed by Section
8(a)(1).
(4) Telling some of the employees in the private inter-
views conducted for several weeks before the election
that "it was possible that if they went on strike they
would lose their job." This statement, without any other
explanation as to the circumstances under which they
might lose their jobs and especially in the light of Deriso's
emphasis that the Union is primarily interested in strikes,
could reasonably be construed as a threat or warning that
if the employees selected the Union as their bargaining
representative, they may very likely be called out on
strike to support the Union's demands, in which event
Respondent might retaliate by terminating their employ-
ment. Such a threat or warning is a clear and obvious
violation of Section 8(a)(1).
The conduct of Uffner
(1) Telling Clarence Lovelace on one occasion that
Uffner might lose his job if the Union were voted in. This
statement carried an implied threat of warning that the
employees might also suffer loss of employment if they
selected the Union as their bargaining representative, an
obvious threat or warning of economic reprisals
proscribed by Section 8(a)(l).
(2) Telling Lovelace on another occasion in the
shipping office that "Winn-Dixie beat the unions once
and they could do it again." Considered in the light of
Respondent's other unfair labor practices herein found
and the history of several previous violations of the Act
by Winn-Dixie Stores,19 this statement may reasonably
be construed as a warning that, as in the past, Respondent
would not stop short of conduct violative of the Act to in-
duce the employees to reject the Union and would resist
bargaining with the Union if it did become the employees'
bargaining representative. As such, it was violative of
Section 8(a)(1) of the Act.
The conduct of Roberts
(1) Telling Winford Richardson, a known union ad-
herent, during frequent discussions about the Union that
"we know what's going on and we know what you're do-
ing." This statement created the impression that Re-
spondent was engaged in surveillance of the employees'
union activities and therefore is violative of Section
8(a)(1).zo
17 Cases cited in Respondent's brief are inapposite , as they turned on
their own facts.
11 N.L,R B v. McCormick Concrete Company, 371 F.Zd 149, 152
(C A. 4), enfg 153 NLRB 1507, 1513
19 See , e.g., Winn- Dixie Stores , Inc., 128 N LRB 574, 138 NLRB 1135,
enfd . 324 F.2d 502 (C.A. 5), on contempt 353 F.2d 76 (C A 5); 143
NLRB 848, enfd . 341 F.2d 750 (C A. 6), cert. denied 382 U.S. 830; 147
NLRB 708, enfd . 361 F.2d 512 (C A. 5), 153 NLRB 273
21 See , a g., Sanitary Bag & Burlap Company, Inc., 162 NLRB 1648.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Telling Richardson on another occasion that he
wished Richardson would not get mixed up in the Union
and "it will ruin your future if you get mixed up with the
Union." This was a clear threat or warning that his em-
ployment or advancement or promotion by the Company
would be affected because of his union activities and sup-
port , conduct obviously proscribed by Section 8(a)(1).
b. In posted bulletins and envelopes
As previously noted, during the period between March
21 and May 24, 1966, the day before the election, Deriso
prepared , signed , and posted in the meat department a
number of bulletins to induce the unit employees to reject
the Union as their collective-bargaining representative.
Respondent violated Section 8(a)(1) of the Act by state-
ments contained in these bulletins, as hereinafter detailed.
(1) March 21 bulletin
This bulletin stresses that by signing a union authoriza-
tion card or by selecting the Union as their bargaining
representative , the employees will give away and no
longer have the right to talk to any company official or ex-
ecutive, not only about their wages , promotions, and
hours of work , but also about "any other problem con-
nected with your job."
The inclusion of the quoted phrase constituted a threat
of loss of a protected benefit in violation of Section
8(a)(1) of the Act. Thus, the Board has so held in Graber
Manufacturing Company, Inc., 158 NLRB 244, 246,
where it adopted the following statement of Trial Ex-
aminer Boyle:
Section 9 (a) of the Act , which makes the representa-
tive chosen by a majority the exclusive bargaining
representative of all, expressly provides that "any in-
dividual employee or a group of employees shall
have the right at any time to present grievances to
their employer and to have such grievances adjusted,
without the intervention of the bargaining represent-
ative, as long as the adjustment is not inconsistent
with the terms of a collective -bargaining contract or
agreement then in effect: Provided further, That the
bargaining representative has been given opportunity
to be present at such adjustment." The employees,
accordingly , have a right to present their own
grievances to their employer and need not permit the
union to talk for them to their exclusion . The em-
ployees' statutorily protected right to present their
own grievances and thus speak for themselves is un-
doubtedly a right cherished by many employees and
Respondent 's statement that if the Union became
their representative it would talk to the employer
about their own job affairs to their exclusion
amounted to a threat that they would lose a substan-
tial benefit.
(2) March 22 or 23 bulletin
This bulletin stresses that during the 4-1/2 years in
which this same Union has represented Respondent's
meat department employees in its Jacksonville , Florida,
warehouse , the employees went without a raise because
"no changes in wages or hours can be made by the Com-
pany when a union claims to represent the employees,"
that the Jacksonville employees have now filed a petition
with the Board to get rid of this Union, and that this
Union has called out on strike the employees of certain
companies.
Nowhere, however , is any mention made of the fact
that the failure of the Jacksonville employees to receive
a raise for such a long time after the Union became their
bargaining representative and the subsequent filing of a
decertification petition, was in great measure due to the
Company's conduct in unlawfully refusing to recognize
and bargain with the Union, in unlawfully attempting to
destroy the Union's majority status, and to the further
fact that it was necessary to go through an unfair labor
practice proceeding and obtain a Board Order directing
the Company to bargain with the Union, a decree from
the Fifth Circuit Court of Appeals enforcing that Order,
and an adjudication in civil contempt as to part of that
Order.21
By deliberately and intentionally concealing the true
facts with respect to the representation of its Jacksonville
employees by this Union and by relating only those facts
which portrayed an entirely false picture of the effect of
their selection of this Union as their bargaining represen-
tative, Respondent took advantage of its own unlawful
conduct for the purpose of undermining the Union and
thereby interfered with, restrained, or coerced the em-
ployees in the exercise of a free choice in the selection of
a bargaining representative in violation of Section 8(a)(1)
of the Act.
(3) May 2 bulletin
The May 2 bulletin urged the employees to "VOTE
NO" in the scheduled election, stressing that they can
only depend on what the "Company says" because "not
a single promise of the union about your wages, hours, or
working conditions can be carried out unless the Com-
pany agrees to it."
Statements that employees can gain through union
representation only what Respondent chooses to give
them and that they will gain no additional benefits
through collective bargaining, considered in the light of
Respondent 's other unlawful conduct, are tantamount to
"flat statements of a predetermined position on bargaina-
ble issues" and "a rejection of the bargaining principle."22
Under all the circumstances, I find that such statements
constituted a threat to deprive the employees of the
benefits to be derived from the exercise of their right to
engage in collective bargaining through representatives of
their own choosing and a violation of Section 8(a)(1) of
the Act.
(4) May 5 chart
Although the chart was in error as to some of the
benefits or lack of benefits attributed to contracts ex-
ecuted by this Union and as to the amount of the Union's
monthly dues, I find , under all the circumstances, that
Respondent did not thereby violate Section 8(a)(l) of the
Act.
(5) May 11 bulletin
This bulletin opens with a completely false statement
that Deriso had been advised that "our employees wish
to abandon the Union and are scared that they have
21 138 NLRB 1355, enfd 324 F.2d 502 (C.A 5), on contempt 353 22 Raytheon Company, 160 NLRB 1603, 1608
F 2d 76
WINN-DIXIE STORES, INC. 235
caused the Company to have some feelings against them
personally"; points out that "THIS IS NOT TRUE"; an-
nounces Deriso's pleasure that the employees no longer
feel that "they needed a union to speak for them"; asserts
that the Company "does not intend to penalize, dis-
criminate, or discharge, any employee because of his past
union activities" (emphasis supplied); and assures the
employees that they can "depend" on the fact that
"Winn-Dixie always looks out for its own." This bulletin
is a complete and deliberate subversion of the purpose
and content of the posting requested by employees Tuttle
and Richardson and promised by Deriso. By the forego-
ing false statements in the bulletin, Respondent was
further undermining the Union and in effect was engaging
or assisting in the solicitation of union withdrawals. I find
that Deriso engaged in this subterfuge for the express
purpose of inducing the employees to reject the Union,
and that his conduct in this respect was reasonably calcu-
lated to impinge upon the employees' freedom of choice
in the selection of a bargaining representative. By such
conduct, Respondent interfered with, restrained, and
coerced the employees in the exercise of their statutory
rights in violation of Section 8(a)(1) of the Act. I further
find that the content of this bulletin, under all the circum-
stances, could reasonably lead the employees, and espe-
cially Tuttle and Richardson, to believe that the as-
surances against reprisals applied only to past union ac-
tivities and were conditioned upon the employees aban-
doning the Union, and hence violated Section 8(a)(1) on
that ground also.
(6) May 18 envelope
Counsel for the General Counsel contended at the oral
argument that the statements on this envelope convey the
false impression that selection of the Union as bargaining
representative would automatically subject the em-
ployees to the complusions of a "union shop" and the
requirements of dues deductions from their paychecks,
and therefore were violative of Section 8(a)(1) of the Act
because Florida is a "right-to-work" State in which a
union shop" and its compulsions are unlawful. I do not
agree.
I find that the message contained in the envelope does
not state and could not reasonably be construed as stating
that employees would be compelled to join the Union and
pay dues, initiation fees, assessments, and political con-
tributions, and fines contrary to Florida's "right-to-work"
law if the Union won the election.23 I therefore find that
neither these statements nor the fact that Respondent er-
roneously understood the Union's dues to be $6 rather
than $5 per month violated Section 8(a)(1) of the Act.
c. In individual private interviews
These interviews were systematically conducted
among the unit employees on company time and premises
for a period of several weeks before the May 25 election
by management's highest representative and officer sta-
tioned at the warehouse, under the circumstances previ-
ously detailed. In these interviews, Deriso compared the
companies existing benefits with those appearing in con-
tracts which this Union purportedly had been able to ob-
tain. The absence of strikes was listed as a Winn-Dixie
benefit and strikes were listed as a Meat Cutters Union
benefit. Deriso calculated on a strike computer how long
it would take an employee to make up wages lost while on
strike. He also told some employees that they might lose
their jobs if they went out on strike, a warning which I
have already found to constitute a violation of Section
8(a)(1).
In its Decision setting aside the May 25 election, the
Board found that these individual interviews, created "an
element of fear amongst them [employees eligible to
vote] and interfered with the conditions necessary to a
free choice by the employees." I find that in the setting
and under the circumstances previously detailed and con-
sidered in the light of Respondent's other unlawful con-
duct, these private individual interviews interfered with,
restrained, and coerced the employees in their statutory
right to exercise a free choice in the selection of a bargain-
ing representative and therefore violated Section 8(a)(1)
of the Act.
d. In company meetings
(1) May 10 meeting
As previously found, during the course of this meeting
an employee asked what would happen to the existing
benefits such as the profit-sharing plan if Winn-Dixie
went union, and Deriso replied that he did not know but
that they could lose or gain some depending on the out-
come. I find that Deriso's reply, without any explanation
as to how or under what circumstances they could lose
some of their existing benefits such as their profit-sharing
plan, constituted under all the circumstances a threat of
a possible loss of existing benefits if the employees
selected the Union as their bargaining representative in
the pending election. As such, it was obviously coercive
and violative of Section 8(a)(1) of the Act.24
(2) May 17 meeting
As previously found, at this meeting of the unit em-
ployees assembled at Deriso's request, Deriso an-
nounced that a general wage increase of 15 to 16 cents an
hour became effective throughout the entire warehouse
the preceding day and that the unit employees in the meat
department were not included because no changes in
wages or benefits could be made until the matter of union
representation was settled. In response to an employee's
question as to what the Company would do about their
wage rates if the employees did not select the Union as
their bargaining representative in the May 25 election,
Deriso replied, as previously found, that it would be
against the law to make any promises but assured the em-
ployees that the Company will continue its past policy of
"keep [ing] our benefits uniform for all groups."
As previously found, at the May 10 meeting, an em-
ployee asked whether they would get a raise like the
general raise they had been receiving every year, and
Deriso assured them that in accordance with its past pol-
icy the Company would make its annual review of wages
for all the employees at the end of June or July but could
not at that time make any promises of a wage increase
because it would look like a bribe and be against the law.
At the instant hearing, Deriso testified that "beginning
23 Caressa, Inc., 158 NLRB 1745, Cf Trane Company, 137 NLRB
1506
24 See, e.g., Motorola , Inc., 163 NLRB 385 (fn 2).
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each year toward the end of the fiscal year, usually in
March or April, we review our current wage setup, and
this we do each year," that in 1966 Respondent reviewed
the entire Tampa warehouse, including the meat depart-
ment.
The law as to the granting or withholding of benefits
during an organizational campaign or on the eve of an
election is basically no different from what it is at any
other time. Thus, the Board has held, 25 in adopting the
following statement of Trial Examiner Reel, that-
An employer's legal duty in deciding whether to
grant benefits while a representation case is pending
is to determine that question precisely as he would if
a union were not in the picture. If the employer
would have granted the benefits because of economic
circumstances unrelated to union organization, the
grant of those benefits will not violate the Act. On
the other hand, if the employer' s course is altered by
virtue of the union's presence, then the employer has
violated the Act, and this is true whether he confers
benefits because of the union or withholds them
because of the union.
In the instant case, the record is clear, as I find, that
Respondent on this occasion either accelerated for all but
the meat department employees the period when the an-
nual wage increase have in the past been reviewed and
granted, or followed its normal company policy in that
respect. In either event, it is also clear, as I further find,
that Respondent withheld this increase from the meat de-
partment employees admittedly because of the pending
matter involving union representation and so informed
the unit employees. In other words, I find that if Respond-
ent had followed its admittedly normal past practice and
policy of reviewing wages for the entire warehouse at that
time and of "keep[ing] its benefits uniform for all
groups," the meat department employees would have
received a general wage increase at that time also. I
further find that Respondent's conduct in withholding this
wage increase from the meat department employees
because of the pending representation matter and so in-
forming the meat department employees, was for the pur-
pose of inducing them to reject and vote against union
representation, and that Respondent's action in this
respect was reasonably calculated to impinge upon the
employees' freedom of choice in the selection of a bar-
gaining representative. By such conduct, Respondent has
violated Section 8(a)(1) of the Act. I further find that
Deriso's assurance to the meat department employees
that if the Union did not win the election Respondent
would continue its past policy of "keep [ing] our benefits
uniform for all groups," considered under all the circum-
stances including the frequent exhortations in the posted
bulletins urging the unit employees to vote against union
representation because they can only depend on the as-
surance that "Winn-Dixie always looks out for its own,"
constituted an implied promise that they would receive
their general wage increase if they rejected the union in
the pending election and therefore also violated Section
8(a)(1) of the Act.
(3) The May 24 meeting
At this meeting of the unit employees assembled on the
2'McCormick Longmeadow Stone Co., Inc , 158 NLRB 1237, 1242,
and cases cited therein To same effect are Agawam Food Mari, Inc,
d/b/a The Food Mart, 158 N LRB 1294, 1297, and cases cited therein;
day before the election, Deriso stated, as previously
found, that based on his private interviews with all the
employees, which were known to have been conducted
during the past several weeks, he felt that the Company
"would win the election by a good majority." However,
Deriso testified in the instant hearing that he never asked
any employee about his union sentiment or how the elec-
tion was going. Indeed, the record discloses that in these
private interviews only employee Crum stated how he felt
about the Union and that was that he was for the Union.
While it was not unlawful for Deriso to express his
opinion as to the outcome of the election, he exceeded the
permissable limits of Section 8(c) of the Act when he in-
formed the employees that this opinion was based on his
private interviews with the individual employees. For,
either this statement was true or false. If it was true, then
by making use of the private interviews for the purpose of
ascertaining whether the employees were probably for or
against the Union, Deriso engaged in unlawful interrog-
ation26 and then conveyed to the employees the results of
his unlawful conduct. If the statement was not true, then,
as in the case of the May 11 bulletin, supra, Deriso
deliberately used his prior unlawful interviews to mislead
the employees for the purpose of further undermining the
Union and inducing the employees to reject the Union in
the election scheduled for the following day. In either
event, Deriso's statement, under all the circumstances,
was reasonably calculated to impinge upon the em-
ployees' freedom of choice in the selection of a bargaining
representative and constituted interference, restraint, or
coercion violative of Section 8(a)(1) of the Act.
The statements made in the presence of Respondent's
representatives by the employee from Respondent's
Jacksonville, Florida, warehouse were essentially similar
to what appeared in the bulletin posted by Deriso in the
meat department on March 22 or 23, supra. As previ-
ously found in connection with that bulletin, by
deliberately failing to inform the employees of the true
facts in connection with the Union's representation of the
Jacksonville employees, Respondent was making use of
its own unlawful conduct for the purpose of further un-
dermining the Union and inducing the employees to reject
the Union in the election, in violation of Section 8(a)(1) of
the Act. Moreover, the failure to disavow the statement
that Winn-Dixie would not sign a contract with the Union
at its Jacksonville warehouse because "they just didn't
want a union," reasonably tended to create the impres-
sion or belief among the employees that it would be futile
to select the Union as their bargaining representative as
Winn-Dixie also would not sign a contract with it at the
Tampa warehouse because "they just didn't want a
union," conduct indicating a rejection of the collective-
bargaining principle and a patent violation of Section
8(a)(1) of the Act.
C The Refusal To Bargain
I. The appropriate unit and the Union's majority status
therein
The complaint alleges, the answer admits , and I find,
that all employees in the meat processing and packaging
department at Respondent's Tampa, Florida , warehouse,
and Dan Howard Mfg. Co, 158 N LRB 805, 813 , and cases cited therein
26 See, e.g , Bryant Chucking Grinder Company , 160 NLRB 1526,
1539-40 , 1543-44.
WINN-DIXIE STORES, INC. 237
excluding all other employees and supervisors within the
meaning of the Act located at the Respondent's Tampa,
Florida, warehouse, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
The parties stipulated to the names of 23 employees in
the appropriate unit as of March 19 and May 25, 1966. In
addition, Respondent contends that five employees on
military leave on March 19 should also be included in
determining whether the Union represented a majority of
the employees in the appropriate unit. None of these em-
ployees had appeared to cast a ballot in the May 25 elec-
tion. "It is the established practice of the Board not to
count employees on military leave as part of the unit
when computing the Union's majority," Aero Corpora-
tion, 149 NLRB 1283, 1291. The General Counsel in-
troduced into evidence, after properly identifying the
signatories, union authorization cards signed by 16 em-
ployees in the unit as of March 19, and by 17 employees
in the unit as of May 9. If these are found to be valid
authorization cards which may properly be counted in
determining the Union's majority status, then it is clear,
as Respondent's counsel concedes in his brief, that the
Union was designated by a substantial majority of the em-
ployees in the appropriate unit on March 19, 1966.
Respondent does not dispute the authenticity of the
employee signatures on these cards. It contends, how-
ever, that virtually all the cards are not valid and may not
be counted for the purpose of determining the Union's
majority status because they were obtained under the al-
leged misrepresentation that they would be used only for
the purpose of obtaining a Board election. If this indeed
were the fact, there would be merit to Respondent's con-
tention. However, whether or not any such alleged
representations were made raises a factual issue, the
determination of which depends wholly on the credibility
of witnesses.
The authorization card itself is admittedly unam-
biguous and, on its face, a clear and effective bargaining
authorization; Respondent makes no claim to the contra-
ry. Six of them were signed on March 3, 1966, at an or-
ganizational meeting at the home of employee Amos
Gunn and attended by Union Representative Stevens.27
Stevens and five employees testified concerning what
was said at that meeting.28 They were all in agreement
that' Stevens explained the procedures which had to be
followed in order to get a union in, that he passed out the
authorization cards, and that he read one aloud to the em-
ployees as they followed along on the one they were hold-
ing in their hand. With respect to the purpose of the card,
Stevens testified that he told them that they could de-
mand recognition of the Company and get the Union in
the plant on the basis of a majority of the employees
"authorizing us to be their representative" by "signing
these cards," and that he also told them that an election
"could be held" or that "there could be an election" on
the basis of over 30 percent of the employees signing
cards but that based on their past experience with Winn-
Dixie they "never approached it from the standpoint of
an election." He further testified that he also explained a
third procedure which could be followed, and that was
that "if you do go through an election and wind up the
loser and you have sufficient evidence to substantiate"
violations of the Act, we could take "the proper steps to
have the election set aside" and submit "enough evidence
to convince the government that we were a majority."
Only four of the employee witnesses were questioned
concerning what Stevens said about the purpose of the
cards. Baumhardt testified that Stevens "explained the
card to us, that there was two ways of going about getting
a union. One was to file for an election, or else have a
card count supporting us," and that "he didn't say at the
time" which method he was going to use. Melvin Suggs
testified that Stevens told them the card had two pur-
poses, that "one purpose was for our own protection and
it was to start legal proceedings for an election." He ad-
mitted that in a prior interview with Respondent's coun-
sel, when the latter stated he was preparing for this hear-
ing, he answered "yes" when counsel asked him if he was
told it was for the purpose of getting an election. He
further testified that Respondent's counsel then prepared
a written statement for Suggs to read and sign but that be-
fore signing the statement he directed counsel to delete
the word "solely" with reference to being told it was for
the purpose of getting an election. Clarence Lovelace
testified that Stevens said "they were authority cards and
we needed some of these cards to start legal action
against the Company for a union." He admitted on cross-
examination that he responded to leading questions by
Respondent's counsel in a prior interview and then signed
a statement prepared by counsel which states that
Stevens said "the sole purpose for signing the card was to
get legal action started to get an election." He was then
again asked if Stevens said the card was to give the Union
authority to start action for an election. In response, he
testified, "That was said, yes, [he] also said that was an
authorization card, and we read it." Tuttle testified that
a week before the union meeting at which he signed the
card, he was told by an employee that the sole purpose of
the card was to get an election and that he signed a state-
ment to that effect for Respondent's counsel. However,
he emphatically testified that at the union meeting
Stevens said that getting an election "was one of the pur-
poses" and that he did not say it was the "sole" purpose.
All of the aforenamed employees admitted reading the
card before signing it.
Upon consideration of all the foregoing, I am con-
vinced and find that Stevens' testimony is sufficiently
corroborated to warrant accepting it as credible. I am
convinced and find that Stevens told the employees in
substance, as he testified, that the cards could be used to
obtain recognition of the Union as their bargaining
representative if a majority signed or that they could be
used to hold an election if over 30 percent signed. I there-
fore find that the six cards signed at the union meeting on
March 8, 1966, are valid designations which should
properly be counted in determining the Union's majority
status.29
27 These are the cards signed by Myron Baumhardt, Clarence
Lovelace, Marlin Suggs, Melvin Suggs, Gary Tuttle, and Amos Gunn.
Contrary to the contention of Respondent's counsel in his brief, I find that
the record clearly disclosed that Melvin Suggs signed his card at this meet-
ing. Lovelace testified that he signed his name on the line marked "Name"
and that "I just overlooked" signing it on the line marked "signature." I
find, as the Board has held and contrary to the contention in Respondent's
brief, that this constitutes an effective designation of the Union. Shapiro
Packing Company, Inc, 155 NLRB 777, 785 , Indiana Rayon Corpora-
tion, 151 NLRB 1294, 1295
28 Amos Gunn, who had left Respondent 's employ long before the in-
stant hearing , did not appear as a witness
29 See, e.g , Cumberland Shoe Corporation, 144 NLRB 1268, 1269,
enfd 351 F 2d 917 (C A. 6), Aero Corporation, 149 NLRB 1283,
1289-90 ; and Winn-Dixie Stores, Inc, 143 NLRB 848, 851, enfd. 341
F.2d 750,754 (C.A. 6), cert. denied 382 U.S. 830
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eight cards were signed" at a union meeting held on
March 8, 1966, at the union hall, which was attended by
International Vice President Cohn and about 15 em-
ployees. Towards the end of the meeting, Cohn passed
out cards and read one aloud as the employees followed
by looking at the one in their hands. Cohn testified that he
explained that these cards could be used for a card count
and if they felt they had "a majority of over 50 percent"
they would make their "demand through Vice-President
Scheurich." He further testified that he also told them the
cards might be used for an election but that "we don't go
this route if we can help it ... our policy was to go the
avenue of a card count." He denied stating that the sole
purpose of signing the cards was to enable the Union to
start legal action for an election.
Only seven of the eight card signers testified as to what
Cohn told them about the purpose of the card.31 On
cross-examination, McLeod denied that Cohn said he
wanted them to sign the cards solely so legal action could
be started for an election. Respondent's counsel asked if
Cohn said they "might go to an election" if they got 30
percent of them. In response to this question, McLeod
testified that Cohn said, "if he can get a certain percent-
age, we could go by card count, we don't need an elec-
tion." He was then asked if he recalled whether Cohn
said if a certain percentage signed they could have an
election, and testified, "Yes, I do." In response to the
further question as to whether Cohn said they "could"
have an election or they "would" have an election,
McLeod testified, "they could have."
On direct examination, Thomas Haya testified that
Cohn told them the purpose of the card was to show that
we were "for the union to represent us" to the Company
and "to get an election." On cross-examination, Respond-
ent's counsel asked, "you said [he] stated it was just to
get an election?" In response to this question, Haya
testified, "I didn't say that. I said [he] said the reason for
us signing the card was for the union to represent us as a
whole to the Company, and for to get an election."
Howard Crum testified on direct examination that
"Mr. Cohn was explaining the Union to us, and he read
the card to us and asked if we wanted to sign so the union
could represent us, and see about having an election." On
cross-examination, Respondent's counsel asked if he had
testified that Cohn at that time "asked you to sign a card
to see if you wanted an election?" In response, Crum
testified, "to represent us for a year and to see about an
election." In response to the further question if it was
"both," Crum testified, "Yes sir."
In response to a question on direct examination as to
what was said about the purpose of the card, Manning
testified, "that it was to get legal action so we could get
represented by the Union-so that the union could
represent us." He repeated the same testimony on cross-
examination.
On cross-examination, Thompson was asked if he
could recall Cohn "saying anything about this going to
have an election?" In response, he testified, "Well, yes
sir. He said he had to have a majority, or not a majority
but a good percent, before he would have any -action
toward trying to get a union into the company, and that
they wanted to be assured in knowing the employees
desired to have an election." In response to further
questions, he at first testified, "I can't actually remember
that he said legal action started for an election," and later
testified that "it could have been said. I don't remember."
He admitted that on November 23, 1966, he was inter-
viewed by Respondent's counsel and then read and
signed a statement prepared by counsel which stated "I
can't remember his [Cohn's] exact words ... I seem to
remember words `to get legal action started to get an elec-
tion."'
On cross-examination, both Carter and Richardson ad-
mitted that on November 18, they were interviewed by
Respondent's counsel and then read and signed a state-
ment prepared by counsel which stated that Cohn told
them that the "sole" or "only" purpose in getting the
cards signed was to "start legal actions for an election."
However, in the presence of Division Manager Deriso,
both testified that the statement was incorrect and was
not what they meant. Thus, Carter testified that "some-
how, sir, that just didn't come out the way I meant."
Richardson testified that Respondent's counsel had asked
him if the real purpose was to get an election and that "I
said I believe that's one of them."32 When Carter was
again asked on the witness stand if Cohn stated at the
meeting that the only purpose of the card was to get an
election, he testified, "No, sir." Richardson also testified,
in response to further questions on this point, that Cohn
said "we had to have 30 percent to get an election, but
. . . he didn't say the only purpose of the union cards
was to get an election."
I am convinced and find Cohn to be a credible witness.
The preponderance of the credible evidence clearly war-
rants the finding, which I herein make, that Cohn told the
employees in substance, as he testified, that the cards
could be used for two purposes, one could be to get
representation by a card count if they got a majority of
over 50 percent, and the other could be for an election. I
therefore find that the eight cards signed at the union
meeting on March 8, 1966, are valid designations which
should properly be counted in determining the Union's
majority status.
After the union meeting on March 8, Tuttle brought a
union authorization card to the home of employee John
Little, who first read the card and then signed it. On
March 9, Clarence Lovelace gave a union authorization
card to employee Eddie Benton, who filled it out, signed
it, and returned it. Lovelace then stated that he was going
to turn the card in. Benton testified that he understood
that to mean that Lovelace was going to turn the card in
to the man in charge of the Union at that time. There is no
evidence of any misrepresentations having been made by
Tuttle or Lovelace. Contrary to the contention of
Respondent's counsel in his brief, I find that these two
cards were properly identified and are valid designations
which should properly be counted in determining the
Union's majority status.
30 The signers are Paul Carter, Howard Crum, Jim Davis, Tom Haya,
Stanley Manning , Warren McLeod, Winford Richardson, and Billy
Thompson Contrary to the contention of Respondent 's counsel in his
brief, I find that the record clearly discloses that McLeod and Haya
signed their cards at this meeting.
31 Jim Davis, the eighth employee , was no longer living in Florida at the
time of the instant hearing.
32 These statements were prepared in Respondent 's school training
room where the employee was summoned and individually interviewed by
Respondent 's counsel , with only Division Manager Deriso being present.
After informing the employee that counsel was investigating the charges
and that the employee was free to decline to answer any questions without
fear of Job reprisals , counsel framed the questions to which the employee
replied. Counsel then generally wrote the statement in his own language
and the employee read and signed it. Cf. Crawford Manufacturing Co.,
Inc , 161 NLRB 989, 1020 , fn. 31.
WINN-DIXIE STORES, INC. 239
On the basis of the foregoing 16 valid designation
cards, I find that the Union was designated by a majority
of the employees in the appropriate unit at all times
material herein.33 And this is so even if, contrary to my
previous finding, the five employees on military leave
were to be included in the unit. It thus appears that a clear
majority of the employees in an appropriate unit had
validly designated the Union as their bargaining represen-
tative when the Respondent received the Union's de-
mand on March 19, 1966, for recognition and bargaining.
While a Board election is normally the best method of
determining whether or not employees desire to be
represented by a bargaining agent, where, as here, an em-
ployer engages in unfair labor practices which make im-
possible the holding of a free election there is no alterna-
tive but to look to the signed authorization cards as the
only available proof of the choice employees would have
absent the employer's unfair labor practices.34 To the ex-
tent that the election revealed a loss of union support,
such loss must be found attributable to the Respondent's
unfair labor practices. I find that at all times on and after
March 19, 1966, the Union has represented a majority of
the employees within the appropriate unit and has been,
and still is, the exclusive representative of all the em-
ployees within said unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
had signed union cards, and that he had heard from "hear-
say" that "there were 16 signed union cards in the meet-
ing."
I find no merit in Respondent's contention that its
refusal to recognize and bargain with the Union was
based on any good-faith doubt of the Union's majority
representation claim . As previously found, after the
Union's bargaining request, Respondent engaged in a
campaign of unlawful conduct which covered a wide
spectrum of interference, restraint, and coercion, all
designed to induce the employees to abandon their sup-
port for and to reject the Union as their collective-bar-
gaining representative. Such conduct, which did in fact
dissipate the Union's majority status, gives rise to the in-
ference, which I here make, that Respondent's refusal to
recognize and bargain with the Union was not motivated
by any good-faith doubt as to the Union's majority status
in an appropriate unit but was instead motivated by a re-
jection of the collective-bargaining principle and a desire
to gain time to undermine the Union and to dissipate its
majority status. Accordingly, I find that at all times on
and after March 24, 1966, Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act.35
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
2. The request and refusal
By letter dated March 18, 1966, from Union Vice Pre-
ident Scheurich to Respondent 's Attorney Bowden, the
Union advised "that a majority of the employees in the
meat department of the Winn -Dixie Tampa , Florida,
warehouse , in an appropriate unit have requested" the
Union to "represent them in wages, hours and working
conditions ." The letter then specified the unit as "all em-
ployees in the meat processing and packaging department
at the Tampa , Florida warehouse of Winn -Dixie." The
letter continued with a request for recognition "as the
bargaining agent for the above mentioned group ," and an
offer to submit to "a card check by a neutral person if you
so desire ." The letter concluded with the statement that
"I would appreciate hearing from you within five (5)
days." Respondent stipulated that it received this letter
on or about March 19, 1966.
By reply letter dated March 24, 1966 , from Attorney
Bowden to Union Vice President Scheurich, he
acknowledged "your request for recognition as the bar-
gaining agent" for the requested unit ; stated that "we en-
tertain a good faith doubt that you represent a majority of
our employees in an appropriate unit and therefore
decline to recognize you as the representative of our em-
ployees"; and suggested that the Union file a representa-
tion petition with the Board.
3. Concluding findings
Deriso testified that on March 19, he was informed of
the Union's letter by Attorney Bowden and that he
stated, "I couldn't believe that they would have a majori-
ty." He further testified that other than his "personal
feelings," he had no foundation or fact upon which to
base that feeling. He did admit that employee Billy
Thompson had told him that a majority of the employees
33 I therefore find it unnecessary to determine the validity of the addi-
tional two cards signed on May 3 by Charles Alderman and on May 9 by
Fred Bell.
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations of
the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
CONCLUSIONS OF LAW
1. All employees in the meat processing and packaging
department at Respondent's Tampa, Florida, warehouse,
excluding all other employees and supervisors within the
meaning of the Act located at Respondent's Tampa,
Florida, warehouse, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the act.
2. At all times on and after March 19, 1966, the Union
has been, and still is, the exclusive representative of all
the employees within said appropriate unit for the pur-
poses of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of em-
ployment, within the meaning of Section 9(a) of the Act.
3. By refusing to recognize and bargain with Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local 282, as the exclusive
representative of the employees in the above-described
appropriate unit, the Respondent has engaged and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
4. By the foregoing conduct and by the conduct
detailed in section III, B , 2, supra, Respondent has inter-
fered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act and
thereby has engaged and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
34 Bryant Chucking Grinder Company, 160 NLRB 1526, 1529-30.
35 Joy Silk Mills, Inc. v N.L.R.B., 185 F.2d 732, 737, 741 (C.A.D C.),
cert. denied 341 U.S. 914.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, I will recommend that it cease and de-
sist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
Having found that Respondent refused to recognize
and bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act, I will recommend that, upon request,
Respondent recognize and bargain collectively with the
Union as the exclusive representative of all its employees
in the appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employment,
and if an understanding is reached, embody such un-
derstanding in a signed agreement. Moreover, I would
recommend the same bargaining order even if I were to
find that the General Counsel has failed to prove that
Respondent did not have a bona fide doubt of the Union's
majority in refusing to bargain with the Union. As previ-
ously found, the Union represented a clear majority of the
employees in the appropriate unit before Respondent
began its unlawful campaign directed at destroying that
majority and which made a free election impossible. To
the extent that the election revealed a loss of union sup-
port thereafter, such loss must be found attributable to
the Respondent's unfair labor practices. Therefore, under
the circumstances disclosed by this record, effectuation
of the policies of the Act would still require such a bar-
gaining order in order properly to remedy Respondent's
other unfair labor practices herein found.36
I have found that Respondent violated Section 8(a)(1)
of the Act by withholding from the unit employees the
general wage increase made effective throughout Re-
spondent's warehouse on May 16, 1967. Counsel for the
General Counsel urges that Respondent be ordered to
grant to the unit employees the wage increase they would
have received on or about May 16, 1967, and to make
them whole, with 6 percent interest therein, for the loss of
all benefits. Counsel for Respondent contends in his brief
that "any kind of backpay or make whole remedy would
not be proper" because "the withholding of the pay raise
was not alleged as a violation of Section 8(a)(3) of the Act
but only as a violation of Section 8(a)(1)." I fail to see the
logic in Respondent's argument and find no merit in it.
The Board has stated in Schill Steel Products, Inc., 161
NLRB 939, 941:
The Board has a particular duty under Section
10(c) [of the Act] to tailor its remedies to the unfair
labor practice which has occurred and thereby effec-
tuate the policies of the Act. Thus, depending on the
circumstances of each case, the Board must "take
measures designed to recreate the conditions and
relationships that would have been had there been no
unfair labor practice."
With this in mind, and upon consideration of all the cir-
cumstances in this case, I find that the policies of the Act
36 Bryant Chucking Grinder Company, 160 NLRB 1526, 1530;
Northwest Engineering Co, 158 NLRB 624, 630.
3' See, e.g , Agawam Food Mart, Inc., dlb/a The Food Mart, 158
NLRB 1294; McCormick Longmeadow Stone Co, Inc, 158 NLRB
1237
will best be effectuated by requiring Respondent to grant
to the unit employees the raise they would have gotten on
or about May 16, 1966, and to reimburse them, with 6
percent per annum therein, for the period of time that said
wage increase has been withheld and also for the loss of
any other benefits which in accordance with Respond-
ent's normal policy would have accrued to them in the
absence of the matter of union representation.37
Because of the character and scope of the unfair labor
practices found to have been engaged in by Respondent,
I will recommend that Respondent cease and desist from
in any other manner interfering with, restraining, and
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
As previously noted, on October 4, 1966, the Board is-
sued a Decision in Case 12-RC-2468, in which it
adopted the Regional Director's findings and recommen-
dations that Respondent engaged in conduct which inter-
fered with the employees' freedom of choice in the May
25 election, and ordered that the election be conducted
"at such time as the Regional Director for Region 12
deems appropriate." No second election was conducted
because of the subsequent issuance of the instant com-
plaint. In view of my holding that Respondent violated
Section 8(a)(5) and (1) of the Act and my Recommended
Order requiring Respondent to bargain with the Union,33
I find that no current question concerning representation
exists. I will therefore recommend that the petition in
Case 12-RC-2468 be dismissed.3°
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondent, Winn-Dixie Stores, Inc., Tampa Division,
Tampa, Florida, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local 282, as the exclusive
representative of its employees in the following ap-
propriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment:
All employees in the meat processing and packaging
department at Respondent's Tampa, Florida, warehouse,
excluding all other employees and supervisors within the
meaning of the Act located at Respondent's Tampa,
Florida, warehouse.
(b) Interrogating employees concerning the number
interested in the Union and the identity of actual or
potential union supporters, and conducting private inter-
views with individual employees, all in a manner con-
stituting interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act.
(c) Creating the impression that they are engaged in
surveillance of employees' union activities.
(d) Withholding, for the purpose of inducing the em-
ployees to reject the Union as their bargaining represen-
33 Bernel Foam Products Co, Inc, 146 NLRB 1277, Irving Air Chute,
149 NLRB 627 , enfd . 350 F.2d 176 (C.A. 2), and Bryant Chucking
Grinder Co ., supra
3' Great Atlantic & Pacific Tea Company , Inc., 162 NLRB 1182,
1186-87.
WINN-DIXIE STORES, INC. 241
tative, any wage increases or benefits which it otherwise
would have granted; and making promises, direct or im-
plied, of granting wage increases or any other benefits if
the employees were to reject the Union as such represen-
tative.
(e) Limiting any assurances against reprisals only for
past union activities and conditioning such assurances
upon abandoning the Union.
(f) Threatening employees with adverse economic
consequences in the event they selected the Union as
their bargaining representative, including loss or possible
loss of their existing benefits, privileges, employment, ad-
vancement, or promotion.
(g) Threatening employees with possible loss of their
jobs in retaliation for striking in support of the Union's
demands.
(h) Telling employees, or leading them to believe, that
in the event they selected the Union as their bargaining
representative, it would deprive them of their right to talk
directly with management about their grievances, would
resist the Union's efforts to bargain on their behalf, and
would be opposed to signing a contract with it.
(i) Engaging or assisting in the solicitation of
withdrawals of union support, soliciting employee advice
and assistance to obtain such withdrawals, and inten-
tionally making use of its past unfair labor practices to
mislead the employees with respect to union representa-
tion, all in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the Act.
(j) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form, join, or assist labor organiza-
tions, including the above-named labor organization, to
bargain collectively through representatives of their own
choosing, to engage in other concerted activities for the
purpose of collective bargaining or mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with the above-named labor organization as the exclusive
representative of the employees in the above-described
unit with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and
embody in a signed agreement any understanding
reached.
(b) Grant, if it has not already done so, to all em-
ployees in the appropriate unit the wage increase which
would have become effective on or about May 16, 1966,
and make them whole for losses incurred by the withhold-
ing of said increase and of any other benefits which, in ac-
cordance with its normal policy, would have accrued to
said employees in the absence of the matter of union
representation, in the manner set forth in that portion of
the Trial Examiner's Decision entitled "The Remedy."
(c) Post in the meat department at its Tampa, Florida,
warehouse copies of the attached notice marked "Appen-
dix."40 Copies of said notice to be furnished by the Re-
gional Director for Region 12, after being duly signed by
Respondent's representative, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing,
within 20 days from the date of -this Recommended
Order, what steps the Respondent has taken to comply
herewith.41
I FURTHER RECOMMEND that the petition in Case
12-RC-2468 be dismissed.
40 In the event that this Recommended Order is 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
41 In the event that this Recommended Order is 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 Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interrogate employees concerning
the number interested in the Union and the identity
of actual or potential union supporcers, and WE WILL
NOT conduct private interviews with individual em-
ployees, all in a manner constituting interference,
restraint, or coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT create the impression that we are
engaged in surveillance of employees ' union activi-
ties.
WE WILL NOT withhold, for the purpose of induc-
ing employees to reject the Union as their bargaining
representative, any wage increases or other benefits
which we would otherwise have granted; and WE
WILL NOT make any promises, direct or implied, of
granting wage increases or any other benefits if the
employees were to reject the Union as such
representative.
WE WILL NOT limit our assurance against reprisals
only to past union activities or condition such as-
surances upon abandoning the union.
WE WILL NOT threaten employees with adverse
economic consequences in the event they selected
the Union as their bargaining representative, includ-
ing loss or possible loss of their existing benefits,
privileges, employment, advancement, or promotion.
WE WILL NOT threaten employees with possible
loss of employment in retaliation for striking in sup-
port of the Union's demands.
WE WILL NOT tell employees, or lead them to be-
lieve, that in the event they selected the Union as
their bargaining representative we would deprive
them of their right to talk directly with management
about their grievances, would resist the Union's ef-
forts to bargain on their behalf, and would be op-
posed to signing a contract with it.
WE WILL NOT engage or assist in the solicitation of
withdrawals of union support, or solicit employee ad-
vice and assistance to obtain such withdrawals, or in-
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentionally rely on past unfair labor practices to
mislead the employees with respect to union
representation in a manner constituting interference,
restraint , or coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form any labor or-
ganization , to join or assist Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO, Local 282, or any other union , to bargain
through representatives of their own choice, to en-
gage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
WE WILL, upon request , recognize and bargain col-
lectively with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO,
Local 282, as the exclusive representative of the em-
ployees in the following appropriate unit with respect
to rates of pay, wages , hours of employment, and
other conditions of employment , and embody in a
signed agreement any understanding reached. The
bargaining unit is:
All employees in the meat processing and
packaging department at our Tampa , Florida,
warehouse , excluding all other employees and
supervisors within the meaning the Act , located
at our Tampa, Florida , warehouse.
WE WILL, to the extent we have not already done
so, grant to all employees in the above -stated unit the
wage increase which would have become effective
on or about May 16, 1966 , and will make them whole
for losses incurred by our withholding this wage in-
crease or by our withholding any other benefits
which in accordance with our normal policy would
have accrued to these employees in the absence of
the matter of union representation.
WINN-DIXIE STORES, INC.,
TAMPA DIVISION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 706 Federal
Office Building, 500 Zack Street , Tampa, Florida 33602,
Telephone 228-7711.