Piggly Wiggly Red River Co., Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1973

207 N.L.R.B. 803 (N.L.R.B. 1973)

PIGGLY WIGGLY RED RIVER CO., INC.
Piggly Wiggly Red River Company, Inc. and Food
Handlers Local 425 of the Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO . Case 26-CA-3870
December 11, 1973
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On May 6, 1971, the National Labor Relations
Board issued a Decision and Order i in the above-
entitled proceeding in which it granted General
Counsel's Motion for Summary Judgment and found
Respondent, Piggly Wiggly Red River Company,
Inc., violated Section 8(a)(5) and (1) of the Act by
refusing to bargain collectively with the Charging
Party, the certified representative of certain of
Respondent's employees. The Board accordingly
ordered Respondent to cease and desist from such
activity and to bargain with the certified representa-
tive of the employees on request. On July 12, 1972,
the United States Court of Appeals for the Eighth
Circuit denied enforcement of the Board's Order2
because Respondent had not had the benefit of a
hearing on the objections it had filed to the election
which resulted in the Board's certification in the
underlying representation proceeding.3 The court
remanded the case to.the National Labor Relations
Board with instructions that the Board conduct a
hearing on the issues raised by Respondent's objec-
tions and that it reconsider its decision and order
herein accordingly. Thereafter, on August 22, 1972,
the Board remanded the case to the Regional
Director for Region 26 and ordered that a hearing be
held before a Trial Examiner4 for the purpose of
receiving additional evidence, consistent with the
court's Decision, "as to Supervisor Rackley's alleged
pro-union activities and the probable effect of that
activities on the employees."
On September 4, 1973, having conducted the
hearing ordered by the Board, Administrative Law
Judge Benjamin K. Blackburn issued the attached
Decision in this proceeding. Thereafter, the Respon-
dent filed exceptions to the Administrative Law
Judge's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reconsidered the 8(a)(5) and (1)
allegations of the complaint in light of the entire
record in the case, including the Administrative Law
Judge's Decision, the exceptions filed thereto, and
207 NLRB No. 130
803
the supporting brief, and has decided to affirm the
Administrative Law Judge's rulings, findings, and
conclusions and to reaffirm the Order previously
issued herein.
ORDER
The National Labor Relations Board hereby orders
that Respondent shall take the action set forth in its
Order as published in 190 NLRB 288.
1 190 NLRB 288
2 N.L.RB. v. Piggly Wiggly Red River Company, Inc., 464 F.2d 106 (C.A.
8, 1972).
3 The history of Case 26-RC-3726 is set forth at 190 NLRB 288, 289.
4 The title "Trial Examiner" was changed to "Adnumstrative Law
Judge" effective August 19, 1972.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
On May 6, 1971, the National Labor Relations Board
granted the General Counsel's Motion for Summary
Judgment and issued a Decision and Order (190 NLRB
288) in this proceeding in which it found that, by refusing
to bargain with the Charging Party following. a Board
certification in Case 26-RC-3726 on August 18, 1970,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended. On July 12, 1972, the United
States Court of Appeals for the Eighth Circuit remanded
the case to the Board (N L.R.B. v. Piggly Wiggly Red River
Company, Inc., 464 F.2d 106). On August 22, 1972, the
Board remanded the case to the Regional Director for
Region 26 for a hearing, consistent with the court's
decision, to receive "additional evidence" on the issues
raised by Respondent's objections in Case 26-RC-3726,
namely "Supervisor [Howard] Rackley'salleged pro-union
activity and the probable effect of that activity on the
employees." On September 19, 1972, the Regional Director
issued a notice of hearing couched in these terms. The
hearing was held in Hot Springs, Arkansas, on November
30 and December 1, 1972, and July 10, 1973. (An action in
the United States District Court for the Western District of
Arkansas to enforce a subpoena caused the hiatus.) The
issues litigated were the nature and extent of Rackley's
activities in support of the Charging Party's efforts to
organize Respondent's employees and the time at which
those activities came to the attention of Respondent. For
the reasons - set forth below, I recommend that the Board
reaffirm its Order of May 6, 1971, on the ground that,
while Rackley's activities tainted the authorization cards
which the Charging Party relied on for its showing of
interest in Case 26-RC-3726, the Acting, Regional Director
did not err when he ruled, on the basis of an administrative
investigation following the election, that Respondent knew
of Rackley's activities well before the election and failed to
act.
Upon the entire record, including the court's opinion,
and after due consideration of Respondent's brief, I make
the following:
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Supervisor Rackley's Union Activities
Respondent's employees received a pay raise in early
1969. At that time they were informed they could expect
another one around the first of January, 1970. When
January 1970 passed and no raise was forthcoming, they
began to get restless.
On February 18, 1970, Lee Williamson, an International
organizer for the Retail Clerks union, met with a couple of
Respondent's grocery department employees at the Sands
Motel in Hot Springs in connection with a Retail Clerks
campaign to organize the grocery portions of Respondent's
three stores in Hot Springs. Howard Rackley, market
manager (i.e., meat department manager) at Respondent's
store no. 31 in Hot Springs, went to the meeting. He told
Williamson he was interested in getting the Meat Cutters
union to organize meat department employees. Williamson
gave him approximately 20 blank Meat Cutters authoriza-
tion cards and, apparently, put him in touch with that
union.
On February 20, 1970, Rackley went to lunch with David
Harvey, market manager at store 15, James Parker,
meatcutter at store 15, and Donny Thomas, meatcutter at
store 31. He signed up all three for the Meat Cutters.
Harvey asked to hang on to his card for a while. Parker
and Thomas returned theirs to Rackley. Rackley turned
them over, along with his own executed card, to Art Allen,
the International organizer who ran the Piggy Wiggly
campaign for the Meat Cutters.
Thomas was off sick on February 23 and 24. He was
replaced at store 31 on February 23 by Jim McMillan and
on February 24 by Elvis Robins, both of whom regularly
worked as meatcutters at store 16. Rackley went to lunch
each day with the substitute and got each to sign an
authorization card for the Meat Cutters. Donny Parker, a
meatcutter at store 16, also went to lunch with Rackley and
McMillan on February 23 and took a blank card from
Rackley. He subsequently executed it and returned it to
Rackley. On February 24 Rackley accused Harvey of
squealing on him to Respondent. Harvey denied the
accusation and, to prove his good faith, gave Rackley the
authorization card he had executed on February 20. He
also took some blank cards which Rackley gave him back
to store 15. One of these was subsequently signed by Gene
Mullins and returned to Rackley. Rackley also turned in
McMillan's, Robins', Donny Parker's, Harvey's, and
Mullins' cards to Allen, thus bringing to a total of eight the
cards he acquired for the Union during the campaign.
On February 25 Allen and another Meat Cutters
organizer held a meeting at the Carpenters union hall in
Hot Springs which was attended by Rackley, Harvey, and
six of Respondent's employees. Rackley passed the word
that this meeting was to be held. He did the same thing
when Allen scheduled a meeting at the Holiday Inn for
April 8, 1970. This time only Rackley and Thomas showed
up. On May 14, 1970, when Allen was again at the Holiday
Inn, Rackley went to see him alone. Allen informed him
that the Board had ruled he and the other two market
managers , Harvey and Ford McJunkins, were supervisors
within the meaning of the Act and they would not,
therefore, be eligible to vote in the election scheduled for
May 26, 1970. Allen told Rackley the eligibility list
contained the name of a new employee, one L.C. Bates.
Rackley placed a call to Bates and introduced him to
Allen.
Allen held an election eve meeting at the Carpenters hall
on May 25, 1970. This time all employees except Bates
were notified by letter. Rackley invited Bates. Rackley and
several others attended this meeting. On this occasion as
well as prior occasions when employees got together, either
in store 31 or out, Rackley said he was in favor of the
Union. Copies of Meat Cutters contracts with Safeway and
Kroger in the Hot Springs area were utilized by Allen and
Rackley throughout the campaign. Rackley on various
occasions told employees the Meat Cutters would seek to
negotiate a contract with Respondents which would
incorporate the best features of each. He told employees at
various times that he was in favor of such a contract.
B. Respondent's Knowledge of Rackley's Activities
Respondent's supervisory hierarchy runs from market
manager through, first, store manager (who also has direct
charge of the grocery portion of his store) and, second,
market and grocery supervisors (who have authority over
several stores on a geographical basis) to the president of
the corporation. During the period involved in this case,
Maylon Spivey was manager of store 31, M. C. Johnston
was the grocery supervisor and Jiggs Cox the market
supervisor for the area which included store 31, and Lloyd
Smith was president of Respondent.
On February 19, 1970, Stanley Reed, a grocery depart-
ment employee at store 31, told Spivey that Rackley had
attended the Retail Clerks meeting the night before. On
February 20 Spivey telephoned Smith in order to tell Smith
he was planning to fire Helen Johnston, the wrapper in the
meat department. Mrs. Johnston is the ex-wife of M.C.
Johnston, and Spivey was, therefore, reluctant to take this
step on his own initiative. In the course of the conversa-
tion, Spivey told Smith there was unrest in the store
growing out of the employees' failure to get the raise they
expected and the trouble stemmed from the meat depart-
ment. Spivey also told Smith he had been informed of a
union meeting , although he did not tell Smith that Rackley
had been among those who attended. That same day
Harvey telephoned Cox about a routine meat department
problem at store 15 . In the course of the conversation,
Harvey told Cox certain employees were trying to organize
something detrimental to the Company. Harvey did not
mention Rackley's name. Cox relayed this information to
Smith. As a result of the information he had received from
Spivey, Smith ordered Cox to go to store 31 and straighten
out the trouble in the meat department.
On February 21 Cox spoke to the three persons in store
31's meat department, Howard Rackley, the manager,
Donny Thomas, the meatcutter, and Helen Johnston, the
meatwrapper. Spivey was also present. Cox told Rackley,
Thomas, and Mrs. Johnston that Smith had heard they
were making threats against the Company if the employees
did not get a raise. Racldey asked him what threats he was
talking about. Cox said he was not at liberty to say but
Rackley knew what he was talking about. Cox told the
PIGGLY WIGGLY RED RIVER CO., INC.
three to quit if they were dissatisfied but, in any event, to
stop making threats and not to talk to employees in other
stores. There was no mention of union or organization of
employees in this conversation.
As already indicated, Spivey learned of Rackley's
activities on behalf of the Meat Cutters union the day after
they began. Some 2 or 3 weeks later, i.e., in early or mid-
March, he told M. C. Johnston what he had learned from
Reed. Smith first learned of Rackley's activities on May 25,
the day before the election. Respondent brought them to
the attention of the Board agent at the preelection
conference on May 26. The election was held as scheduled,
but the ballots were impounded pending an investigation.
As part of Respondent's preelection campaign, Smith
visited store 31 at least once to talk to employees. He did
not talk to Rackley on this occasion. In addition,
Respondent held four or five meetings which were
attended by employees from all three of the stores in the
unit. Rackley attended these meetings. At no time did
Smith, Johnston, Cox, or Spivey tell Rackley to desist from
his union activities.
C. The Issues Presented
Procedurally, Case 26-RC-3726 ran its course after May
26, 1970, as follows: The Acting Regional Director
conducted an administrative investigation of Respondent's
allegation that the Charging Party''s organizational cam-
paign "was instigated and at all times sponsored and
prompted by a supervisory employee," namely, Howard
Rackley. He concluded that it was without merit, opened
the ballot box, counted the ballots, and issued a tally of
ballots which showed a 6-4 victory for the Charging Party.
Respondent thereupon filed objections to the election.
After further investigation, the Acting Regional Director
issued a supplemental decision in which he found, in
substance, that the election was not rendered invalid by
Rackley's union activities because Respondent had known
of those activities for more than 3 months and had, without
good cause,'failed to raise the matter until election day. His
conclusion was based on the- events which culminated in
Cox's reprimand of Rackley and the two meat department
employees of store 31 on February 21, 1970. Respondent
filed a request for review with the Board. It was denied on
the ground that it raised no substantial issues warranting
review. Certification, Respondent's pro forma refusal to
honor the certification, and the complaint in this case
followed. In'this case, the Board found against Respondent
summarily on the ground that the issues it sought to raise
had already been decided against it in Case 26-RC-3726.
Thus, this case ' arrived at the United States Court of
Appeals for the Eighth Circuit following Respondent's
refusal to comply with the Board's order to bargain with
the Charging Party in the posture of no hearing ever having
been held on the issues raised by Respondent's objections.
The court remanded to cure that defect.
Respondent contends that the only issue before me is
what Howard Rackley did and not what Respondent knew
about what he did or when Respondent knew it. It relies on
the wording of the Board's order, thus:
IT IS HEREBY ORDERED that a hearing be held
805
before a Trial Examiner for the purpose of receiving
additional evidence, consistent with the Court's deci-
sion, as to Supervisor Rackley's alleged pro-union
activity and the probable effect of that activity on the
employees.
After a detailed analysis of the record before it, including
a conflict in the evidence presented to the Acting Regional
Director in the course of his administrative investigations
as to whether persons in Respondent's hierarchy above the
store manager level knew of Rackley's union activities on
February 21, 1970, the court said:
We think it is clear from the record before us that
substantial and material factual issues exist which due
process of law requires be resolved by a hearing before
the objecting party's rights can be affected by an
enforcement order ... .
The cause is remanded to the Board for a hearing on
the issues.
When the Board's "consistent with the Court's decision"
is read in conjunction with the court's instruction that a
hearing be held on the issues after it has discussed the issue
of Respondent's knowledge at length, only one conclusion
is possible. The issues with which I must cope are not only
"Supervisor Rackley's alleged pro-union activity and the
probable effect of that activity on the employees" but also
when and at what managerial level Respondent learned of
that activity.
D. Analysis and Conclusions
1. Supervisor Rackley's union activities
Literally interpreted, the Board's remand order poses the
complementary issues of what Rackley did and its legal
consequences . My findings of fact as to what he did are set
forth in section A above. As to the legal consequences, the
Charging Party elicited from each of the three employees
who were called as witnesses-Donny Parker, James
Parker, and Elvis Robins-testimony that he was not
affected in any way by Rackley's activities in deciding to
vote for or against the Charging Party. (None was asked
how he voted.) In so doing, the Charging was relying on
"the probable effect of that activity on the employees" part
of the Board's remand order and, more importantly, on
footnote 6 of the court's opinion, which reads:
The Fifth Circuit recently stated that "The closeness of
the election is obviously relevant. Conduct which could
have affected only a few voters may not have any effect
on the outcome of the election in cases where the vote
disparity is large, but the same conduct in a close
election could be determinative." N.L.R.B. v. Gooch
Packing Co., 457 F.2d 361, 362 (C.A. 5, 1972).
Here, the Union won the election by a 6 to 4 vote.
Rackley's conduct, to be successful, need have influ-
enced only one employee.
I find Rackley's activities on behalf of the Charging
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Party legally sufficient to have tainted the union 's showing
of interest, thus invalidating the election in the absence of
any other considerations. The proper test of such activity is
not the subjective reactions of the employees involved but
the result reasonably to be expected to flow from the
conduct involved when measured against objective stand-
ards, as the court in this case recognized when it said:
It is clear that advocacy of the union by supervisors
or supervisory pressure upon employees, in a union
campaign undermines the laboratory conditions that
must prevail during an election and is cause for
annulment of the election . [Citations omitted] Indeed,
the Fourth Circuit has determined that where supervi-
sory pressure is placed upon employees in the repre-
sentation election process , it is not necessary that it be
proved that such pressure and coercion affected the
election results. Turner's Express, supra, 456 F.2d at
291.
Here, Rackley was clearly the sparkplug behind the Meat
Cutters organizing campaign. Without Rackley there
would have been no campaign and no election.
Even if the proper standard to be applied were the
subjective one for which the Charging Party argues, the
result would be the same. Only 3 of 10 voters testified. As
the court pointed out in footnote 6 of its opinion , only one
voter would actually have had to be coerced by Rackley
into supporting the Union to invalidate its 2-vote margin of
victory. Therefore, the testimony of only 3 voters is
insufficient to establish that Rackley's activities had no
effect on the outcome of the election.
My findings and conclusions on this issue are, I think, an
act of supererogation, for it is clear that the illegal nature
of Rackley's activities is as much the law of this case as the
proposition that no proof is required that the supervisor's
union activities affected the result of the voting . Both the
Acting Regional Director and the court proceeded on the
ground that Rackley had engaged in activities which,
absent the second set of issues discussed below, would have
invalidated the, election, as the following portion of the
court's opinion demonstrates:
The Acting Regional Director held in his Supple-
mental Decision that although Rackley had engaged in
pro-union conduct, Piggly Wiggly acquired knowledge
of Rackley's activities on February 21, 1970, failed to
disavow such conduct,' and then attempted to belatedly
rely upon that conduct as grounds for setting aside the
election. On February 21, 1970, the area market
manager was sent to the store where Rackley worked at
the direction of Piggly Wiggly's president in response to
information the president had received from the store
manager that some employees were making threats
unless a certain wage increase was granted . The area
market manager spoke to Rackley and another, employ-
ee, advising them that a new wage pattern was being
formulated and also to cease disturbing other employ-
ees. The president and the area market manager deny
having been informed that a supervisor was participat-
ing in union activity at that time. The store manager,
however, stated that he had heard employees talking to
each other about Rackley's pro-union involvement, but
also stated that he never informed higher management
of this.
The Acting Regional Director concluded that "the
above clearly shows the Employer's knowledge of the
supervisor's involvement in the union campaign more
than three months prior to the election." This conclu-
sion is not supported by substantial evidence and the
inferences needed to be drawn in order to reach such a
conclusion are not founded in fact.
2. Respondent's knowledge of Rackley 's activities
The real issues posed by the remand of this case are
implicit in the portion of the court's opinion just quoted
and the part which immediately follows, thus:
The record is barren of any affirmative evidence that
any higher echelon , Piggly personnel were aware of
Rackley's pro-union activities . What the record disclos-
es is that on one day over three months previous to the
election and prior to the filing of the petition for an
election , management discovered that Rackley and
another employee were sufficiently unhappy with their
wages to complain about their plight to other employ-
ees. We cannot agree that the events, as related in the
record before us, can form the basis for concluding that
respondent was aware of Rackley's pro-umon conduct.
They are whether Respondent acquired knowledge of
Rackley's union activities sufficiently far'in advance of
May 26, 1970, to permit it to counteract them and, if it did,
whether its failure to take any such action precludes its
now relying on those activities to overturn the election.
The Acting Regional Director resolved these comple-
mentary issues by relying on the evidence he had before
him with respect to February 21, 1970, to find knowledge
in Respondent's hierarchy above the store manager level.
As the quoted portions of the court's opinion make clear, it
is the court's disagreement with the Acting Regional
Director that -has led to the remand . I find, in disagreement
with the Acting Regional Director, that Jiggs Cox's
reprimand of Rackley, Thomas, and Mrs. Johnston on
February 21, 1970, does not establish Respondent's
knowledge as of that date. In so doing, I rely on the denial
of Lloyd Smith, Respondent's president, that he learned of
Rackley's union activities prior to May 25, 1970. There is
no credibility conflict as such in the record on this point.
However, as the Acting Regional Director's supplemental
decision demonstrates , the events leading up to and
occurring on February 21 give a strong basis for discredit-
ing Smith's testimony that neither Cox nor M. C. Johnston
ever told him that Rackley was engaging in union activities
and inferring company knowledge. The record made
before me will not support such an inferrence.
Cox did not testify. (Neither did Donny Thomas or
Helen Johnston.) Rackley testified at length about what
Cox said to him and the, others . on, February 21. The
following is all of his testimony on the point:
Q. All right. Tell us what was said and who said it
at that time.
PIGGLY WIGGLY RED RIVER CO., INC.
A. Mr. Cox came back and said he had been sent
by Mr. Smith, and Mr. Smith had heard threats against
the company if the employees didn't get a pay raise and
he would like those threats stopped. I asked Mr. Cox
what he was talking about and he said he wasn't at
liberty to say, he just told him that he wanted the
threats stopped and a general conversation.
Q. Well, can you think of what was said, what else
was said? -
A. Mr. Cox told me when I asked him what threats,
he said he knew I knew what he was talking about and
not to talk to the people in any other stores.
Q. What did you say to that when he said that to
you?
A. I said why. He just said that he wasn't at liberty
to say, that he had been instructed not to talk about it
other than just tell us to stop it.
Q. All right. Is that all of that conversation?
A. Yes.
Q. During that talk, did he ever tell you that you
knew what he was talking about?
A. Yes, he did.
Q. Would you please tell us how did that come up?
A. Well, I asked him what he was talking about by
making reference that there was threats being made
against the company.
Q. Right.
A. And he said that I knew what he was talking
about but he had been instructed by Mr. Smith not to
talk about it. He wouldn't give me any other answer
than that.
Q. Did he mention anything about employees at
the other stores?
A. Yes, he mentioned not to talk to the other
people in the other stores.
Q. Did you say anything to him about that?
A. I asked him about what.
Q. What did he say about that?
A. He said that I knew what he was talking about.
Q. Now, the meeting you had with Mr. Cox, not to
belabor the point, I believe he told you not to say
anything to any of the other employees of other stores.
A. Yes. He was referring to the meat department
employees I'm sure.
Q. And not the other working force.
A. No, sir.
Q. And you say you asked him what did he mean?
A. Yes.
Q. And what did he say?
A. He told me that he couldn't discuss it, he had
been instructed not to.
Q. Did he say who had contacted him?
A. No, he did not. He said he had been sent by Mr.
Smith, but he didn't say if anyone contacted him from
here.
807
Q. Now, I am asking specifically, in this meeting
with Mr. Cox, wherein he talked to you, you said not to
talk to other people at other stores.
A. Yes.
Q. Did he or did he not mention anything about
Mr. Smith, Mr. Lloyd Smith was working on the
formula for the new increase and that they would come
out pretty soon?
A. To be honest with you, I don't remember.
Q. You simply don't remember whether that was
said or not?
A. Yes.
Q. Now, you said something to the effect that in
that conversation he was making reference to the
market people.
A. My own personal view, yes.
Q. Your own personal opinion? But he did tell you
to quit talking to other people at their stores?
A. Yes, he did.
Q. Did he say in effect, "If you don't like your job,
here or if you are unsatisfied, you can go somewhere
else?"
A. Yes, he did.
Q. Did he or did he not make reference to the fact
or accuse you in that conversation of stirring up the
other employees by talking about the fact that no wage
increase had come through?
A. Accuse me?
Q. Yes.
A. No, he did not accuse me.
Q. He told you to quit talking to other people at
other stores?
A. Yes.
Q. Did he say anything about talking to them
about anything, wages?
A. He just said quit it, period.
Q. Did he mention wages at all in that conversa-
tion?
A. No.
* * * *
Q. (By Mr. Lavey) On February 21, 1970, during
this talk with Mr. Cox, did he ever tell you that you
were being disloyal to the company-when he told you
that if you didn't like it you could go some place else,
did he tell you that you were being disloyal?
A. He told me it would be my duty to call the
company if I had heard anything going on against the
company.
Q. At that time?
A. Yes.
Q. I see. What else did he say to you?
A. Well, other than what I have already testified
to-
Harvey testified at length about his telephone conversation
with Cox on February 20 which caused Rackley to accuse
Harvey of squealing on him. The following is all of
Harvey's testimony on that point:
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And I tried to explain to him [Rackley] that I did not
tell Mr. Cox of anything. The only thing I told Mr. Cox
was-really, I called Mr. Cox about some type of item
that we had in the ad that I hadn't received, some type
of smoked meat or picnic hams or something. Anyhow,
I was really going for the employees of the company. I
told Mr. Cox, I said, it seems like I asked him about a
raise.
Q. Is this in your conversation with Rackley?
A. Yes.
Q. All right. It seems like I asked him about a raise
or I asked him, I says, has anything come up about
more money. He said as far as he knows it hadn't. I
Q. But, let me show you Charging Party Exhibit 2
for identification, on page 2, the very two last sentences
there.
A. All right.
Q. Let me read that to you. "I called Mr. Jiggs Cox
and told him that certain people were trying to organize
something detrimental to the company." The rest of it
is, "I did not mention Rackley or any other name, and
I did not mention the word union."
A. Right.
Q. But you did tell Mr. Cox at that time that
certain people were trying to organize something
detrimental to the company?
said, well, Mr. Cox, there's other ways to get it and I A.
think we can get it. And he asked what. But, there was
no names or anything-
Q. Well, what did you say to him when he asked
you what? .
A. I said, well there is some type of confusion up A.
here, that we are-going to get some money.
Q.
was?
All right. Did he ask you what that confusion
A. Yes.
Q. Did you tell him?
A. No.
Q. What did you say to him?
A. I just told him.
Q. You told him what?
A. That there just was confusion, that I couldn't
say no more. In a way-let me express what I was just
telling you. In a way, I was going for the individual that
was trying to get more money at the time. It wasn't
against any organized group or any individual.
Q. All right. Now, in the conversation that you had
with Mr. Cox, where you telephoned him, did you
mention any names?
A. No, sir.
Q. Did you introduce the word union or the words
union activity?
A. No, sir.
Q. Was that mentioned in any way during that
telephone conversation?
A. No, sir.
Q. I take it you used the words confusion?
A. Yes, sir.
... at the time I felt an opportunity, and a duty to
the employees to try to help the other fellow employees
get more money. And I told Mr. Cox, I says there's
other ways of getting money and there's some type of
confusion.
Q. All right. Now, lets go back to the telephone
conversation with Jiggs Cox. Now, is it not a fact that
when you talked to Jiggs Cox at that time that you
called him and told him that certain people were trying
to organize something detrimental to the company?
A. I don't know why I said organize, I said certain
people and that could include myself.
to supply my market with sufficient merchandise for
the people to buy. At the time I was disturbed towards
the company not towards any organizing or any
individual, and I told Mr. Cox that if they didn't come
up with some type of agreement or settlement that
there are other ways to get more salary, to be
competitive with the other markets.
Q. Before that time , had you called Mr. Cox and
told him that certain people were trying to organize
something detrimental to the company?
A. I called Mr. Cox just like I stated before
Howard told me that someone squealed.
Q. You called Mr. Cox. And during that conversa-
tion to Mr . Cox, did you tell him that certain people
were trying to organize something detrimental to the
company?
A. Yes.
Q. Why did you call Cox and inform him of that?
A. Because I was disturbed against the company,
not Howard and not any organized labor.
Q. You just called Mr. Cox?
A. Yes, sir.
Q. And told him that?
A. Thats all.
Q. That all you told him?
A. Yes, sir.
Q. Now, in direct examination with Mr. Smith, you
said that when you talked to Mr. Cox you said they
were trying to organize something confusing.
A. Yes, sir.
Q. You didn't tell him that did you?
A. I told him there was some sense of disturbance.
Q. You never used the word confusion, did you?
A. I'm not sure about that sir.
Nowhere in this testimony is there any mention of union or
union activity or, in the case of Harvey's testimony, any
indication that he named Rackley as being involved in the
Yes, sir. No particular individual.
When did you call Mr. Cox?
The day I found out I didn't have merchandise
PIGGLY WIGGLY RED RIVER CO., INC.
"confusion" in Hot Springs. Therefore, I credit Respon-
dent's explanation that Cox's visit to Hot Springs on
February 21, 1970, grew out of Smith's knowledge of
unrest among employees over their failure to get a raise
and his belief that the unrest was being instigated by
market personnel, including Rackley, at store 31 and was
not predicated on knowledge that Rackley was already
working for the Meat Cutters union.
This finding, however, does not dispose of the matter, for
Maylon Spivey, the reluctant witness whose failure on
December 1, 1972, to comply voluntarily with a subpoena
served upon him by the Charging Party caused the hearing
to be interrupted until July 10, 1973, testified without
contradiction that he told his immediate superior M. C.
Johnston, about Rackley's union activities 2 or 3 weeks
after February 21, 1970. (Johnston, like Cox, was not
called as a witness.) Therefore, I find that Respondent, in
the person of Johnston, the area grocery supervisor who
stood between Store Manager Spivey and President Smith
in Respondent's managerial hierarchy, was aware of
Rackley's union activities by March 15, 1970, at the latest.
That Respondent took no action with respect to
Rackley's union activities until the day of the election,
May 26, 1970, is admitted. Therefore, while the Acting
Regional Director was wrong in his conclusion Respon-
dent knew of Rackley's "involvement in the union
campaign more than three months prior to the election,"
failed to disavow such conduct, and then attempted
belatedly to rely upon that conduct as grounds for setting
aside the election, it is correct to say that Respondent had
such knowledge for more than 2 months and acted in the
same way. Moreover, the finding that Respondent's
knowledge stems from a conversation between Spivey and
Johnston which took place in March 1970 and not from the
events of February 21 makes immaterial the court's further
criticism of the Acting Regional Director's rationale:
Even assuming these facts [i.e., those set forth in the
portion of the court's opinion last quoted above ]
constituted knowledge by Piggly Wiggly of Rackley's
i In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
809
pro-union conduct, the area market manager's instruc-
tions to Rackley to cease communicating his com-
plaints to other employees certainly militate against the
Acting Regional Director's finding that "The Employer
at no time admonished him to cease his activities on
behalf of the Union."
The ultimate issue which this case comes down to, then,
is whether Respondent's failure to act on its knowledge
between mid-March and late May precludes application of
the normal rule that Rackley's activities invalidate the
election . This issue also has two facets. One is whether
Respondent's failure to act, no matter what the level of its
knowledge of Rackley's activities, abrogates the normal
rule. The other is whether, given such a rule of law,
Respondent's knowledge at any level lower than the top
corporate officer, President Lloyd Smith, is sufficient to
invoke it.
Once again , I think that both facets must be decided
against Respondent on the law of the case. That there is
such a rule is implicit in both the Board's and the court's
handling of this case throughout. A conclusion that the
knowledge of the person one step below the top level in
Respondent's managerial hierarchy is sufficient to invoke
the rule against Respondent is required by this sentence
from the court's opinion : "The record is barren of any
affirmative evidence that any higher [than Spivey, the store
manager] echelon Piggly personnel were aware of Rack-
ley's pro-union activities." I find, therefore, that by failing
to disavow Rackley's union activities between March and
May 1970 Respondent has precluded itself from relying on
those activities as grounds for objecting to the election held
in Case 26-RC-3726 on May 26, 1970, or the certification
which flowed therefrom on August 18, 1970.
RECOMMENDATION I
I recommend that the Board reaffirm its order of May 6,
1971, in this case.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.