Piggly Wiggly, Tuscaloosa Division

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1081 (N.L.R.B. 1981)

PIGGLY WIGGLY, TUSCALOOSA DIVISION
Piggly Wiggly, Tuscaloosa Division Commodores
Point Terminal Corporation and Retail Clerks
Local 1657, affiliated with United Food and
Commercial Workers, AFL-CIO. Cases 10-
CA-14283 and 10-RC-11556
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 27, 1981, Administrative Law
Judge Robert C. Batson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the General Counsel each filed exceptions and a
supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommened Order, as
modified herein.
We agree with the Administrative Law Judge's
finding that Respondent on September 30, 1978,
immediately upon learning of its employees' union
activities, coercively interrogated several employ-
ees concerning their knowledge of union activities,
impliedly promised one employee a wage increase,
and created the impression of surveillance, all in
violation of Section 8(a)(l) of the Act. We also
agree with the Administrative Law Judge's finding
that Respondent additionally violated Section
8(a)(l) of the Act on October 1, when 3 of its store
managers, 2 assistant store managers, and Vice
President Harmon Looney interrupted and inter-
fered with a union meeting attended by more than
half of the employees in the 180-person unit, by re-
cording employee attendance on computer printout
payroll sheets, interrogating employees concerning
their reason for attending the meeting, threatening
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 Contrary to the Administrative Law Judge, we find, consistent with
well-settled Board law, that the Union's Petition for Certification of Rep-
resentative filed on September 29. 1979. does not constitute a demand for
recognition. Production Plating Company, 233 NLRB 116 (1977) Howe'v-
er, the Union's certified letter, mailed on September 29. 1979, and for
some unexplained reason not received by Respondent until October 19,
1979, constitutes a valid demand for recognition.
I All dates herein are in 1978, unless otherwise indicated.
258 NLRB No. 142
employees with loss of jobs if the Union were se-
lected, promising across-the-board wage increases
if the Union were not selected, and threatening em-
ployees with store closure if they continued to take
the route leading to union representation. Finally,
we agree with the Administrative Law Judge's
finding that, on October 2, Respondent discharged
employee Max Elliot Shaw in violation of Section
8(a)(3) and (1) of the Act.4 However, for the rea-
sons set forth below, we cannot agree with the Ad-
ministrative Law Judge's finding that, since Re-
spondent committed no unfair labor practices from
October 2 until the date of the election on Decem-
ber 20, the effects of its earlier unlawful conduct
can be remedied and eradicated by more conven-
tional remedies than a bargaining order.
In N.L.R.B. v. Gissel Packing Co., Inc.,S the Su-
preme Court approved the use of authorization
cards as an indication of employee sentiment, and
further approved reliance on such cards as a basis
for issuing a bargaining order where there is "a
showing that at one point the union had a major-
ity" and the employer has engaged in unfair labor
practices which "have the tendency to undermine
majority strength and impede the election process-
es." 6 On September 29, 2 days after the union cam-
paign began, the Union possessed valid authoriza-
tion cards signed by 101 of the 183 unit employees
at Respondent's 5 retail grocery stores.7 Respond-
ent learned of the Union's support among its em-
ployees on September 30, and immediately em-
barked on an intensive campaign of unlawful con-
duct. Thus, within 2 days, Respondent's vice presi-
dent, three store managers, and two assistant store
On September 25, Shaw had informed Respondent that he was quit-
ting at the end of the week, but on September 29 he notified Respondent
that he had changed his mind and he asked if he could continue to work.
At that time he was assured that he would be allowed to continue em-
ployment with Respondent. After the October I union meeting, however,
at which his presence was noted by at least two management officials, he
was informed that, contrary to Respondent's earlier commitment, he was
being terminated. The Administrative Law Judge found that in the con-
text of Respondent's massive surveillance of the employees' union activi-
ties, and other coercive conduct, Respondent's unexplained discharge of
Shaw was "sufficient to support an inference that the protected conduct
and Shaw's union activities were motivating factors in the Employer's
decision to rescind its agreement to permit Shaw to continue to work"
In affirming those findings, we find that such conduct and Shaw's sup-
port of the Union were the only reasons prompting Respondent's sudden
change in attitude toward Shaw. Respondent has offered no evidence to
demonstrate that it would have discharged Shaw even absent his union
activities. Consequently, we find that Respondent seized upon his re-
nounced intention to quit as a pretext to discharge him. See Limestone
Apparel Corp., 255 NLRB 722 (1981). Wright Line. a Division of Wright
Line, Inc., 251 NLRB 1083 (1980).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
'395 U.S. 575 (1969).
I
6 d. at 614.
On October 19, when Respondent received the Union's letter de-
manding recognition, the Union held 103 valid authorization cards.
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
managers had engaged in: Coercive interrogation;
giving the impression of, and engaging in, surveil-
lance of employees' union activities; threats of re-
duced working hours, layoffs, and discharges if em-
ployees selected the Union as their bargaining rep-
resentative; threats of more onerous working con-
ditions if the employees continued to take steps
toward union representation; threats of store clo-
sure if the Union were selected as the employees'
bargaining representative; and promises of im-
proved benefits and wage increases to induce em-
ployees to abandon their organizing effort. Indeed,
well over half of the employees in the bargaining
unit were subjected to one or more incidents of
such unlawful conduct during Respondent's brief,
but concentrated, campaign against the Union.
And, lest the employees might not have received
the message that Respondent was displeased with
their union activity, on October 2, employee Shaw
was unlawfully discharged. '
On these facts we cannot find that the absence of
unfair labor practices for a month and a half prior
to the election eliminates the need for a bargaining
order. Upon learning of the organizational activi-
ties of its employees Respondent wasted no time
before embarking upon an all-out campaign to
defeat the Union. In the course of only 3 days Re-
spondent directly involved a major percentage of
unit employees in one or more of the serious and
egregious unfair labor practices specifically enu-
merated by the Supreme Court in Gissel (at 616-
617) as having the tendency to undermine majority
strength and impede the election process, such as
discharge, coercive interrogation, and surveillance,
as well as threats of loss of employment and plant
closure if the Union were selected as a bargaining
s The Administrative Law Judge, while finding that Shaw's discharge
violated Sec. 8(a)(3) and (I), concluded that since Shaw's October 2 dis-
charge was not alleged as a discriminatory discharge in the Union's elec-
tion objections filed on December 28, but was first alleged as unlawful in
the amended charge filed on January 26, 1979, it would be improper to
infer that Shaw's termination was viewed by other employees as being in
retaliation for his having attended the October I union meeting or for
any other union activity. We disagree. We see no connection between the
time when the Union filed a charge alleging Shaw's termination and the
employees' perception of Shaw's discharge in relationship to his union ac-
tivity or the advent of the Union on the scene. The burden is on the em-
ployer to show that its unfair labor practices were not widely known to
the employees Richard Tischler. Martin Bader and Donald Connelly. Sr.. a
limited partnership d/b/a Devon Gables Nursing Home., Richard Tischler.,
Martin Bader and Donald Connelly. Sr.. a limited partnership d/b/a Devon
Gables Lodge d Apartments, 237 NLRB 775, 776-777 (1978), Here, Re-
spondent presented no evidence to indicate that Shaw's termination, I
day after the intensively surveilled union meeting, was not a widely
known fact of significance to unit employees. Thus, unlike the Adminis-
trative Law Judge. we will not assume from the Union's failure to list
Shaw among the other alleged discriminatory discharges ill its election
objections or in the original charge that Shaw's dicharge did not play a
role in the undermining or dissipation of the Union's majority status and
its subsequent loss of the election,
representative.9 In particular, threats of this nature,
which are directed at the employees' livelihood,
are matters of the utmost importance to employees
and are likely to have the most substantial and last-
ing impact on them with respect to their support
for the Union.' Similarly, Respondent's promises
of wage increases as an inducement to abandoning
the Union is conduct which, because of its offer of
an economic reward, has a lingering effect on em-
ployees and makes slight the possibility of conduct-
ing a fair election." Finally, in the event the em-
ployees still were unconvinced that unionization
would be detrimental to their welfare as Respond-
ent's employees, Respondent demonstrated the ad-
verse consequences that could flow from support-
ing the Union by discharging Shaw-conduct
which long has been recognized as striking at the
very heart of employee union or protected concert-
ed activity.' 2 In these circumstances we find that
Respondent's conduct was calculated and had a
tendency to undermine the Union's majority status
and to make a free choice by employees unlikely.
Indeed, the election results attest to the fact that
the Union's majority was substantially dissipated
following Respondent's unlawful conduct, notwith-
standing that Respondent engaged in no unfair
labor practices for an extended period before the
election. Consequently, it is apparent that Respond-
ent's blitz-like attack on the employees' exercise of
their Section 7 rights left its mark and that the ab-
sence of further unfair labor practices did not
lessen the negative imprint of Respondent's unlaw-
ful conduct on the free choice of the employees. 3
We therefore conclude that the possibility of eras-
ing the effect of Respondent's unfair labor practices
and ensuring a fair election by use of traditional
remedies is slight and that the employee sentiment
expressed through the authorization cards would
be better protected by a bargaining order. To
hold otherwise in this case would allow Respond-
ent to benefit from its short-lived, but concentrated
' See International Manufacturing Company. Inc., 238 NLRB 1361, 1362
(1978); Electrical Products Division of Midland Ross Corporation v.
NL. R.B., 617 F.2d 977 (3d Cir. 1980).
"' Devon Gables Nursing Home, supra at 776-777, Shop-Rite Supermar-
ket. Inc., 231 NLRB 500, 507-508 (1977).
" Shop-Rite Supermarket. Inc.. supra at 507-508.
12 E.g., A'L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 523, 536 (4th
Cir. 1941).
" Steven Davis and Michael Provenzano d/b/a Carlton's Market, 243
NLRB 837, 845 (1979).
'' As the Supreme Court recognized in Gissel at 612:
. a bargaining order is designed as much to remedy past election
damage as it is to deter future misconduct. If an employer has suc-
ceeded in undermining a union's strength and destroying the labora-
tory conditions necessary for a fair election. he may see no need to
violate a cease-and-desist order by further unlawful activity. The
damage will have been done, and perhaps the only fair way to effec-
tuate employee rights is to reestablish the conditions as they existed
before the employer's unlawful campaign
1082
PIGGLY WIGGLY. TUSCALOOSA DIVISION
and effective, campaign to undermine the Union's
majority. 15
We therefore find, contrary to the Administra-
tive Law Judge, that Respondent's refusal to bar-
gain with the Union after its October 19 demand
for recognition based on a card majority violated
Section 8(a)(5) and (1) of the Act and that a bar-
gaining order is re'uired to remedy its unfair labor
practices. Accordingly, we find that Respondent
had a duty to bargain as of October 19, 1978, the
date on which Respondent received the Union's
demand for recognition preceding which Respond-
ent had embarked on a clear course of unlawful
conduct designed to undermine the Union's major-
ity status and to make the holding of a fair election
impossible. 16
THE REMEDY
Having found that Respondent engaged in cer-
tain unfair labor practices in violation of Section
8(a)(5) and (1) of the Act, we shall order that Re-
spondent cease and desist therefrom and take cer-
tain affirmative actions designed to effectuate the
policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Piggly Wiggly, Tuscaloosa Division Commodores
Point Terminal Corporation, Tuscaloosa, Alabama,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph l(i) and re-
letter the subsequent paragraph accordingly:
"(i) Refusing to recognize and bargain collective-
ly in good faith with Retail Clerks Local 1657, af-
filiated with United Food and Commercial Work-
ers, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate bargaining unit:
"All full-time and regular part-time employ-
ees employed by the Respondent at its five
Tuscaloosa County, Alabama locations, in-
cluding cashier-secretaries, but excluding
subminimal wage bag boys, Divisional
Office clerical employees, guards and super-
visors as defined in the Act."
'1 Internaiional anufacruring Companty, Inc. 238 NL.RR a 1362
1 Trading Pr. Inc.. 219 NLRB 298 (1975).
2. Delete paragraphs 2(c) and (e) and that provi-
sion of present paragraph 2(b) for mailing copies of
the notice to employees.
3. Insert the following as paragraphs 2(b) and
(c), relettering remaining paragraphs accordingly:
"(b) Upon request, recognize and bargain collec-
tively in good faith with Retail Clerks Local 1657,
affiliated with United Food and Commercial Work-
ers, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the above-described
bargaining unit.
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order.
4. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held
on December 20, 1978, in Case 10-RC-11556 be
set aside, and the petition therein be, and it hereby
is, dismissed.
APPENDIX
NOTICE To EMPLOYEES
Pos-rED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
In order to insure our employees that we will
not interfere with, restrain, or coerce them in
the exercise of their Section 7 rights, we
hereby promise you that:
WE wil.. NOT interrogate our employees
concerning their union membership, activities,
and desires or the union membership, activi-
ties, and desires of other employees.
-
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with
loss of jobs if they designate the Union as their
collective-bargaining representative.
WE WILL NOT threaten our employees that
we will close some, or all, of our stores in
Tuscaloosa, Alabama, if they designate the
Union as their collective-bargaining repre-
sentative.
WE WILL NOT promise our employees a
wage increase or other improvements in bene-
fits if they refrain from joining, or engaging in
activities on behalf of, the Union.
WE WILL NOT create the impression among
our employees that we have their union activi-
ties under surveillance and that we are causing
their activities to be spied upon.
WE WILL NOT engage in any manner of sur-
veillance or spying upon our employees' union
activities or maintain lists of employees engag-
ing in such activities including attendance at
union meetings.
WE WILL NOT discourage membership in
Retail Clerks Local 1657, affiliated with the
United Food and Commercial Workers, AFL-
CIO, or any other labor organization, by dis-
charging, and thereafter failing and refusing in
timely fashion to reinstate and make whole
any employee.
WE WILL NOT refuse to recognize and bar-
gain collectively in good faith with Retail
Clerks Local 1657, affiliated with United Food
and Commercial Workers, AFL-CIO, as the
exclusive bargaining representative of its em-
ployees in the following appropriate bargain-
ing unit:
All full-time and regular part-time employ-
ees employed by us at our five Tuscaloosa
County, Alabama locations, including cash-
ier-secretaries, but excluding subminimal
wage bag boys, Divisional Office clerical
employees, guards and supervisors as de-
fined in the Act.
WE WIl.L NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them under Section 7
of the Act.
WE WILL offer our employee Max Elliot
Shaw immediate and full reinstatement to his
former position or, if that position no longer
exists, to a substantially equivalent position,
without loss of seniority or other rights and
privileges previously enjoyed by him.
WE WILL make whole our employee Max
Elliot Shaw for any loss of pay or other bene-
fits he may have sustained by reason of our
discrimination against him with interest there-
on upon any moneys due him.
WE WIl.l, upon request, recognize and bar-
gain collectively in good faith with Retail
Clerks Local 1657, affiliated with United Food
and Commerical Workers, AFL-CIO, as the
exclusive bargaining representative of our em-
ployees in the above-described appropriate
bargaining unit.
Our employees have the right to join Retail
Clerks Local 1657, affiliated with United Food and
Commercial Workers, AFL-CIO, or any other
labor organization, or to refrain from doing so.
PIGGLY WIGGI.Y, TUSCAI.OOSA DIVI-
SION COMMODORES POINT TERMINAL
CORPORATION
DECISION
STATEMENT OF FTHE CASE
ROBERTI C. BATSON, Administrative Law Judge: This
consolidated proceeding under the National Labor Rela-
tions Act, as amended, 29 U.S.C. 151, et seq. (herein the
Act), was heard before me on various dates in July 1979
at Tuscaloosa, Alabama, based on an amended complaint
and notice of hearing in Case 10-CA-14283 issued by the
Regional Director for Region 10 (Atlanta, Georgia), on
July 2, 1979, and an order directing hearing, consolidat-
ing cases, and notice of hearing issued on April 12, 1979,
wherein the objections to the election in Case 10-RC-
11556 were consolidated for hearing. The charge in Case
10-CA-14283 was filed on January 5, 1979, and amended
on January 26, 1979, by Retail Clerks Union, Local 1657,
affiliated with the United Food & Commercial Workers,
AFL-CIO' (herein the Union or the Petitioner), alleging
that Piggly Wiggly, Tuscaloosa Division Commodores
Point Terminal Corporation2 (herein Respondent or the
Employer), had violated Section 8(a)(1)(3) and (5) of the
Act in various particulars. To the extent the alleged
unfair labor practices occurred between the filing of the
petition in the representation case and the December 20,
1978,3 Board-conducted election they are, in part, coex-
tensive with the objections to the election.
The amended complaint, as further amended at the
hearing, alleges three instances of coercive interrogation:
Massive surveillance of employees' union activities; a
threat to discharge employees because of their union ac-
tivities; two instances of threats of loss of jobs if the em-
ployees selected the Union as their bargaining repre-
sentative; one instance of a threat of more onerous work-
ing conditions if the Union were selected as their collec-
tive-bargaining representative; three instances of threats
to reduce working hours if the Union were selected; two
instances of threats of layoffs if the Union were selected;
two instances of threats to close some stores if the Union
'lhe Union-Petiioner's namet appears a, armended at the hearing.
Rcspondenl's name appear a amended ait the hea;ring
'All dates herealfler arc 197 unless ther ise indicated
1084
PIGGLY WIGGLY. TUSCALOOSA DIVISION
were selected; and two instances of promises of wage in-
creases to refrain from joining or engaging in activities
on behalf of the Union, all in violation of Section 8(a)(l)
of the Act. The complaint also alleges that, on or about
October 2, Respondent discharged its employee, Max
Elliot Shaw, in violation of Section 8(a)(3). It is further
alleged that, since on or about September 29, the Union
represented a majority of the employees in a unit found
appropriate by the Regional Director in his Decision and
Direction of Election dated November 22, and that the
Union's loss of the December 20 election by a margin of
99 to 60 was the result of the Employer's unfair labor
practices as alleged in the complaint, and the General
Counsel and the Charging Party seek a bargaining order
under the rationale of N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969), contending that these pervasive
unfair labor practices make a free and fair rerun election
impossible. With the exception of two complaint allega-
tions, a threat to reduce working hours on October 5 and
November 15, and a threat to lay off employees for se-
lecting the Union on October 5, all of the unfair labor
practices alleged occurred on September 30 and October
1 and 2. Respondent's duly filed answer to the amended
complaint denies the commission of any unfair labor
practices.
Both at the hearing and in its brief Respondent, in
good faith, urges two threshold issues which must be re-
solved; (1) the date upon which the petition in Case 10-
RC-11556 was filed, and (2) whether or not the objec-
tions to the election were timely filed. The importance of
these issues to Respondent is obvious, for if the petition
were not filed until October 2, as indicated thereon by
the Regional Office for Region 10, then the bulk of the
alleged unfair labor practices would be outside the "criti-
cal period" and, accordingly, could not be used for pur-
poses of setting aside the election.4 Indeed, the minimal
unfair labor practices alleged after October 2, if found to
have occurred, may not warrant setting aside the elec-
tion. However, these issues will be dealt with as prelimi-
nary issues under the section of this Decision entitled
"Findings of Fact."
All issues were fully litigated at the hearing. All par-
ties participated throughout by counsel, were afforded
full opportunity to present evidence and arguments, to
make oral arguments, and to file post-hearing briefs.
Briefs have been received from the General Counsel and
Respondent.
Upon the entire record in this case, ' including consid-
erations of briefs and oral arguments, and my observa-
See Goodyear Tire and Rubber Company. 138 NLRB 453 (1962), and
Jerome J Jacomel. d/b/a Red', ovelty Co. and R-' .4musenrnt Corpora-
tion, 222 NLRB 899 (1976).
' While I am aware that the Board discourages, and tends to frown
upon. gratuitous comments by an administrative law judge, I nonetheless
feel constrained to comment upon the professional manner in sshich all
attorneys of record conducted themselves in the presentation of their ei-
dcnce, the examination and cross-examination of witnesses, and the prepa-
ration of excellent post-hearing briefs. As a result of the expertise of the
attorneys in examining and cross-examining witnesses, although some of
the attorneys were obviously young and relatively inexperienced. there
are few irreconcilable credibility issues to be resolved The candor and
professionalism displayed by all attorneys here was refreshing That cer-
tainly is nol to say that n) party made concessions adverse to their re-
spectise client's inlcrest or "rolled over and plaled dead " Indeed i the
tion of the testimonial demeanor of the numerous wit-
nesses testifying under oath, and upon substantial reliable
evidence, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a Delaware corporation with an office and place
of business located at Tuscaloosa, Alabama, where it is
engaged in the operation of five retail grocery stores.
During the 12-month period immediately preceding the
issuance of the complaint herein, which period is repre-
sentative of all times material herein, Respondent re-
ceived gross revenues in excess of $500,000 and during
the same period purchased and received goods valued in
excess of $50,000 directly from some suppliers from
within the State of Alabama who, in turn, purchased and
received these goods directly from suppliers located out-
side the State of Alabama.
Accordingly, as alleged in the complaint, and admitted
in the answer, I find that Respondent was, and is, an em-
ployer as defined in Section 2(2) of the Act, and engaged
in commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Retail Clerks Local 1657, affiliated with the United
Food & Commercial Workers, AFL-CIO, is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
Il. FINDINGS 01 FACT
A. The Date the Petition in Case 10-RC-1156 Was
Filed
It appears that this case was plagued from the outset
by delayed transmission of vital documents and commu-
nications.6
The facts here are not in dispute. The petition for cer-
tification of representative, subsequently assigned the
number 10-RC-11556, was hand delivered by a union
representative to the Resident Office of Region 10, locat-
ed at Birmingham, Alabama, accompanied by the re-
quired adequate showing of interest, the time stamped
thereon appears to indicate that it was received in the
afternoon on September 29. The petition was duly for-
warded by mail to the Regional Office in Atlanta where
tradition of our ad.ersar judicial system, each fought like the "pros erhi-
al tiger" in the interest of their respective client
"The petition receicsed at he Birmingham Resident Office for Region
10 on September 29 teas niot receised by the Regional Office in Allanta
until Monday, Oclober 2. at which time it Wuas assigned a sequential rp-
resentation case number and indicated as having been filed October 2
Also on September 29, the Union mailed a demand for recognition letter
to Respondent. by certified mail. which as not received by Respondent
until October 19 The objectolion to e election were. likewise. hand de-
liered o tIhe tirminghaml Resident Office on December 28, the last date
for filing objections, hut for some inexplicahle reason this docunlerl il as
not recived in the Atlanta Regional Office until January 8. 197' 11 is
suggested by siome that the US Poslal Sersice maN have plaed . role in
thlese dcla. ed rallsnmisolln
o1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was received on October 2, and the date October 2,
1978, was inserted as the "date filed." Respondent con-
tends that "the sole question is whether the petition was
'filed' on September 29, 1978, when it was delivered to
the Resident Office on October 2, 1978, or when it was
received, 'filed' and docketed in the NLRB Regional
Office for Region 10 [in Atlanta] as required by the
Board's Rules and Regulations." Respondent argues in
substance that the petition was not filed until it was re-
ceived in the Regional Office of Region 10 in Atlanta on
October 2 and assigned a case number.
The Board's Rules and Regulations, Series 8, as
amended, Subpart C, Section 102.69(a), which deals with
where to file a petition for certification states in pertinent
part:
An original and four copies of the petition shall be
filed. Except as provided in Section 102.72 such pe-
tition shall be filed with the Regional Director for
the Region wherein the bargaining unit exists ....
The Board's Statements of Standard Procedure, Series
8, as amended, Section 101.7, provides in pertinent part
that the investigation of the question concerning repre-
sentation is initiated by the filing of a petition with the
regional director for the region in which the purposed or
actual bargaining unit exists.
The filing of a motion, brief, exception, or other
paper means that the document must have been re-
ceived by the Board or the office or agent designat-
ed to receive such matter before the close of busi-
ness on the last day of the allowed period.
Respondent further contends that nothing in the
Board's Organizations and Functions, 29 CFR Section
201, et seq., authorizes the Resident Office or the resident
officer to accept for filing any paper required to be filed
with the regional director, but contends that the regional
director is not authorized to delegate to the resident offi-
cer any functions required by statute or regulation to be
performed by the regional director. Respondent correct-
ly argues that the Board is bound by its own rules and
regulations and cannot act in disregard of them, and that
the Board's Casehandling Manual, Part 2, Section
11002.3, which purports to authorize the filing of a peti-
tion by handing it to a Board agent away from the office
is neither a Board ruling or a directive had not been pro-
mulgated pursuant to the Administrative Procedure Act,
5 U.S.C. §551, et seq., and accordingly, to the extent that
it is inconsistent with the Board's Rules and Regulations
or established decisional laws it is of no force or effect.
Section 11002.3 of the NLRB Casehandling Manual, Part
2, provides in pertinent part:
A petition is normally filed, in person or by mail, at
the Regional Office in the Region in which the bar-
gaining unit exists. If the unit exists in two or more
Regions, the petition may be filed in any of such
Regions.
A petition may be filed by handing it to a Board
agent away from the Regional Office, in which case
the date of receipt should be inserted and the Re-
gional Office notified for the assignment of a case
number and Board agent.
The General Counsel, in brief, does not address the
issue as to the correct filing date of the petition, but
merely assumes that the so-called critical period, i.e., the
period during which employer misconduct may be used
for purposes of setting aside the election, commenced to
run on September 29, when the petition was stamped
with the official Board stamp as being received in the
Birmingham Resident Office.
Respondent's arguments here are appealing, and per-
haps highlight some possible ambiguity between the
Board's Rules and Regulations and Statement of Stand-
ard Procedure which are established in accordance with
the Administrative Procedure Act, 5 U.S.C. §151, et seq.,
and the Board's Casehandling Manual, which does not
rise to the level of such rule or regulation, but consti-
tutes merely an internal guideline for Board employees.
However, in my view, Respondent's interpretation of
Section 102.69(a) of the Board's Rules and Regulations is
entirely too literal. That section, as indicated above, pro-
vides in substance that such petition shall be filed with
the regional director for the region wherein the bargain-
ing unit exists. Certainly, Respondent does not contend
that such petition must be filed personally with the
person who has been designated regional director for
any given region. And, I think a clear interpretation of
the rules in this respect is that such petition must be filed
with some officer or agent over which the regional di-
rector has jurisdiction. Clearly, once the official Board
stamp had been placed on the petition filed at the Bir-
mingham Resident Office indicating receipt thereof on
September 29, 1979, the petition came under the jurisdic-
tion of the appropriate regional director. It is noted that
Section 102.69(a) does not provide that the petition must
be filed in the regional office, but merely with the re-
gional director.
Once the official Board stamp was placed upon the pe-
tition, the petition was under the control and direction of
the proper regional director and no action could be
taken upon it without his permission or consent. For in-
stance, the Petitioner could not at that moment have uni-
laterally withdrawn the petition. To do so, he would
have needed the consent of the regional director. While
a more efficient procedure might be devised for docket-
ing and assigning sequential case numbers to petitions,
charges, and other documents filed with the regional di-
rector in satellite offices, or with agents in the field,
which might avoid issues such as this, I am constrained
to find that the 3-day delay in performing the ministerial
function of assigning a sequential case number and date
filed does not delay the date upon which the petition
was actually placed in the jurisdiction of the regional di-
rector.
Accordingly, I find and conclude that the petition was
filed as of the time it was received and stamped with the
official stamp at the Birmingham Resident Office, at
which time it came under the exclusive jurisdiction of
the Regional Director within the meaning of Section
102.69(a) of the Board's Rules and Regulations, Series 8,
as amended.
10(6
PIGGLY WIGGLY, TUSCALOOSA DIVISION
B. The Timeliness of the Objections to the Election
This issue presents essentially the same question as that
of the filing of the petition: Whether or not the filing of
objections at the Birmingham Resident Office constituted
filing objections "with the Regional Director" as pro-
vided in Section 102.69(a) of the Board's Rules and Reg-
ulations, Series 8, as amended. Again, the facts are not in
dispute. The election in Case 10-RC-11556 was conduct-
ed on December 20, 1978, and the tally of ballots dis-
closed 60 valid votes cast for the labor organization, and
99 valid votes cast against the labor organization, with 2
challenged and I void ballot. The challenges are insuffi-
cient to affect the results of the election. With the inter-
vening Christmas holiday, December 28 was the last date
upon which objections to that election could be filed in
accordance with Section 102.69(a) of the Board's Rules
and Regulations. On that date, a Petitioner's representa-
tive hand delivered to the Birmingham Resident Office
an original and three copies of objections to conduct af-
fecting the results of the election and the official Board
stamp placed thereon indicates that they were delivered
about 3:30 p.m. on December 28, 1978.
Irony: On December 29, the Regional Director for
Region 10 issued a Certification of Results of Election
wherein he stated that no objections had been filed
within the time provided. This certification was properly
served upon all parties. On January 8, 1979, the Petition-
er's objections, which had been deposited with the Bir-
mingham Resident Office on December 28, were finally
received by the Regional Office for Region 10 in Atlan-
ta. On January 9, 1979, the Acting Regional Director
issued an order revoking the December 29 certification.
On January 24, 1979, Respondent filed a "Motion of Em-
ployer to Withdraw or Revoke 'Order Revoking Certifi-
cation."' Respondent's motion to withdraw or revoke
was predicated upon much the same basis as argued
before me, to wit: That the filing of the objections in the
Resident Office on the last day of which objections
could be timely filed did not constitute filing with the
Regional Director within the meaning of Section
102.69(a). On April 12, 1979, the Regional Director for
Region 10 issued an order directing hearing and consoli-
dating cases and notice of hearing wherein he ruled upon
the Respondent's motion to revoke or withdraw his
order revoking certification. In denying Respondent's
motion, the Regional Director stated, inter alia:
Section 203 and 203.1 of the Board's Organizations
and Functions, 32 FR 9588 as amended by 37 FR
15956 thereof, provides for the establishment of
Resident Offices of the NLRB and provides that the
Regional Director of each Regional Office is re-
sponsible for the administration of any residence of-
fices in his region. Section 203.5 provides that the
Resident Officer of a Resident Office is directly re-
sponsible to the Regional Director and supervises
the processing of cases within the geographical area
of the Resident Office.
According to the Regional Director, "this establishes the
authority under which any documents may be filed with
the Resident Office of the NLRB." He went on to note
that the official Board stamp indicating that the objec-
fions had been received by the NLRB. Region 10, Bir-
mingham, Alabama, Office were timely filed as of De-
cember 28, 1978.
Both at the hearing and in brief, the counsel for the
General Counsel contends that Respondent's failure to
appeal the Regional Director's Order denying his motion
to revoke his order revoking certification, pursuant to
Section 102.26 and 102.67(c) of the Board's Rules and
Regulations, Series 8, as amended, precludes litigation of
the issue before me, since Respondent had waived the
right to request review and such was a matter which was
or could have been raised in the representation proceed-
ing.
I disagree. The order denying Respondent's motion to
withdraw or revoke the revocation of the Certification
of Results of Election was ruled upon in the same docu-
ment which consolidated for hearing the objections with
the unfair labor practices, and thus is governed by Sec-
tion 102.69(f) of the Board's Rules and Regulations,
which provides that, in any proceeding wherein a repre-
sentation case has been consolidated with an unfair labor
practice case for the purpose of hearing, the provisions
of Section 102.46 of the rules shall govern with respect
to the filing of exceptions. Section 102.46 of said rules
provides for the filing of exceptions to the decision of
the administrative law judge and the procedures to be
used in filing said exceptions.
Accordingly, I conclude that the timeliness of the
filing of the objections was an issue ripe for litigation at
the hearing in this matter.
Section 102.69(a) of the Board's Rules and Regula-
tions, Series 8, as amended, provides for the filing of ob-
jections to election, and in pertinent part states:
Within 5 days after the tally of ballots has been fur-
nished, any party may file with the regional direc-
tor an original and three copies of objections to the
conduct of the election or conduct affecting the re-
sults of the election, which shall contain a short
statement of the reasons therefor. Such filing must
be timely whether or not the challenged ballots are
sufficient in number to affect the results of the elec-
tion. Copies of such objections shall immediately be
served on the other parties by the party filing them,
and a statement of service shall be made. The party
filing objections shall, upon request, promptly fur-
nish to the regional director the evidence available
to it to support the objections.
I have no problem with the authority of the Regional
Director to revoke the Certification of Results of the
Election issued by him, based on the erroneous belief
that timely objections had not been filed to the election.
As contended by the General Counsel:
Every tribunal, judicial or administrative, has some
power to correct its own errors or otherwise to ap-
propriately modify its own judgment, decree or
order citing Swifr Service Store. Inc. .4K.I Swiri
Cleaning & Laundry Company, 169 NLRB 359, 361
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1968), and Davis, Administrative Law Treaties,
page 606.
As heretofore noted Respondent's argument in this
connection is identical with its argument with respect to
the petition; i.e., that the filing of the objections in the
Resident Office did not constitute filing objections "with
the Regional Director" within the meaning of Section
102.69(a).
Section 102.114(b) of the Board's Rules and Regula-
tions, as amended, reads in applicable parts:
(b) When the act or any of these rules require the
filing of a motion, brief, exception, or other paper in
any proceeding, such document must be received
by the Board or the officer or agent designated to
receive such matter before the close of business of
the last day of the time limit, if any, for such filing
or extension of time that may have been granted.
Respondent cites a number of cases wherein the Board
has rejected objections that were not received in the Re-
gional Office within the 5-day period as provided by
Section 102.69(a). However, none of them touch upon
the issue presented here. In William J. Dunn, d/b/a
Dunn Motor Company, 100 NLRB 822 (1952), the Board
held that objections which were mailed on the last day
upon which they could be filed within the 5-day period
provided by Section 102.69 were not properly filed,
since they were not timely received by the regional di-
rector at his office within the time prescribed, nor did
the petitioner have any reasonable expectation that the
objections so mailed would be received that day as pro-
vided for in Section 102.83. In Hughes Tool Company
d/b/a KLAS-TV, 197 NLRB 1160 (1972), the Board re-
versed the regional director, and rejected the petitioner's
objections which it had chosen to file via a telegram de-
livered to the Las Vegas, Neveda, office of Western
Union at 3:32 p.m. on the last day on which its objec-
tions could be filed, approximately hour and 28 min-
utes prior to the official closing of the Board's Regional
Office in Los Angeles. The Board stated, "Petitioner's
action did not result in the timely filing of its objections,
nor indeed, could it reasonably have been expected to do
so, and we are constrained to dismiss them."
However, in Rio de Oro Uranium Mines. Inc., 119
NLRB 153 (1957), the Board accepted the petitioner's
objections which had been sent by air mail registered
special delivery from Albuqucrque, New Mexico, to Fort
Worth, Texas, about 1-1/2 days before the due date, and
concluded that the fact that the objections had not ar-
rived at the Fort Worth Regional Office by the due date
was unattributable to the objecting parties since it would
be reasonably assumed that its actions would have affect-
ed timely delivery.
It is well settled that the Board has traditionally rigid-
ly enforced its 5-day rule for the filing of objections to
an election and, as stated in Tung Sol Electric, Inc. and
Triangle Radio Tubes, Inc., 114 NLRB 104 (1955), "The
infrequent hardship's occasioned by a strict adherence to
the Board's Rules and Regulations are more than coun-
terbalanced by the benefits that result when a certainty
in procedural matters is established." Also, in Sig Wold
Storage & Transfer. Inc., 205 NLRB 378 (1973), the
Board rejected the petitioner's objections which were
sent by Western Union telegram at 3:16 p.m. from Fair-
banks, Alaska, to the Seattle, Washington, Regional
Office. The Board noted that the Seattle Regional Office
would close 9 minutes after the receipt of the telegram
and the telegram was not delivered until January 3 at
1:49 p.m. The Board stated that the objections did not
result in timely filing in that it was not received in the
Regional Office on January 2, nor could it reasonably
have been expected to be delivered on that date.
As heretofore indicated, the cases cited by Respondent
do not reach the issue presented here. In those cases, the
objecting party filed objections in a manner which it
knew would not achieve receipt by the regional director
or any office over which he/she had jurisdiction within
the time prescribed. Clearly, Respondent is not arguing,
nor would such argument be tenable, that objections
must be personally delivered to the regional director
within the time prescribed. It should be noted that Sec-
tion 102.69(a) does not provide that the objections must
be filed in the regional office but merely must be filed
"with the Regional Director." I agree with Respondent
that the internally prepared job description of the resi-
dent officer which describes his duties as being, inter
alia, to receive charges, petitions, and other documents
does not have the force and effect of the Board's Rules
and Regulations which are enacted in accordance with
the Administrative Procedure Act.
In my view, the only reasonable, cogent, and proper
interpretation of Section 102.69(a) with respect to the
filing of objections "with the regional director," is that
such objections are timely filed if deposited in any Board
office, whether it be the designated regional office, a
subregional office, or a resident office and received by an
agent with the official Board stamp, or even deposited
with an authorized agent of the regional director, and so
marked as received within the period prescribed by Sec-
tion 102.69(a). Once such objections are so filed, they are
irretrievably out of the hands of the petitioner and any
disposition thereof must be with the approval of the re-
gional director. The distinction between this case and
those cited by Respondent is that in Respondent's cited
cases the objections were filed in such a manner that the
objecting party had no reasonable expectation that deliv-
ery of the objections would be achieved within the pre-
scribed time at any regional office or by any agent of the
regional director.
Again, it appears that there may be some ambiguity
with respect to the functions of the resident offices of the
Board, particularly in the appendix of Part 203, Title 29
CFR, which provides that "the resident office" is a place
where "people may obtain service." In my opinion, the
Petitioner here had every reason to believe that the Bir-
mingham Resident Office was an appropriate place for it
to file its objections timely, particularly inasmuch as that
office had apparently handled the entire representation
matter up to that point. By accepting the objections from
the Petitioner at the Birmingham Resident Office, the
agent there who stamped them as having been received
at approximately 3:30 p.m. on September 28 impliedly as-
108
PIGGLY WIGGLY. TUSCALOOSA DIVISION
sured the Petitioner that such objections had been timely
filed. In Manhattan Coil Corporation, 79 NLRB 187
(1948), the Board held that a decertification petition was
timely filed notwithstanding the fact that the contract
had automatically renewed itself at the time the decertifi-
cation petition was actually filed because the late filing
was based upon the erroneous advice of an NLRB em-
ployee. In Manhattan Coil the filing was held timely be-
cause of the union's reliance on the employee's state-
ment.
In the instant case, it appears that Respondent could in
no way be prejudiced by the filing of the objections in
the Resident Office or by the delay in the receipt of
them in Atlanta. It was Respondent who engaged in the
interim misconduct which is not negated even for pur-
poses of setting aside the election by the fact that it did
not know such objections had been filed.
C. The Background and Chronology of Events
As Respondent notes in its brief: "Most of the facts
necessary to resolve the issues raised in this consolidated
case are not seriously in dispute." Most of the few appar-
ent credibility conflicts can be reconciled, which it is my
duty to endeavor to do prior to finding that any witness
has committed perjury.
Respondent operates five retail grocery stores in Tus-
caloosa County, Alabama, and, at the time the petition
herein was filed, employed approximately 220 persons of
which approximately 160-180 were determined to be in-
cluded in the unit found appropriate by the Regional Di-
rector for Region 10 pursuant to a unit determination
hearing.
The union activities among Respondent's employees
apparently came as something of a surprise to the Em-
ployer, and the activity progressed rapidly. About Sep-
tember 27, William Wesson, a meat market employee at
Respondent's Store 2, discussed the desirability of union
representation with other employees and attempted to
contact J. W. Kirven, president and executive officer of
the Retail Clerks Union Local 1657, by telephoning Bir-
mingham, Alabama. Wesson was subsequently directed
to Huey King, a Retail Clerks organizer. Later that day,
Wesson met King at the Ramada Inn in Tuscaloosa, Ala-
bama, where King gave Wesson a number of blank
Retail Clerks authorization cards and a copy of the col-
lective-bargaining agreement between Bruno's' and the
Retail Clerks Union, Local 1657, and instructed Wesson
that he needed 51 percent of the employees to fill out the
cards before the Union would be in any position to take
action.
7The appropriate unit as found is:
All full-time and part-time employees employed by the employer at
its five Tuscaloosa County. Alabama. locations. including cashiers-
secretaries, but excluding sub-minimum wage bag boys, divisional
office clerical employees. guards and supervisors as defined in the
Act.
"Bruno's" was the name of a former chain of five retail food stores in
Tuscaloosa. Based on the record herein. it appears that after the Union
herein became the collective-bargaining representative of the employees
at Bruno's, the company closed its five smaller stores and opened two
larger stores under the name of "Food World," where the Union contin-
ues to represent the employees
As Respondent concedes, the record, together with
reasonable inferences drawn therefrom, shows that, on
September 27, Wesson, with the help of employees Ron
Graham and Pete Jenerette, distributed the cards ob-
tained from King to other employees at Respondent's
five stores here involved.
D. The Union's Majority Status
By September 29, 112 of Respondent's employees,
which were subsequently found to be included in the
unit by the Decision and Direction of Election which
issued on November 22, had signed authorization cards
which are clear and unambiguous on their face, designa-
ting the Union to be their bargaining representative.
With the exception of 11 such cards, which were solic-
ited by Stock Manager James Kelly, who was subse-
quently found to be a supervisor, Respondent does not
seriously attack the authenticity or validity of the cards
introduced into evidence.
Most of such cards were identified and authenticated
by the solicitor of the cards; William Wesson identified
and authenticated 15 cards, all of which were solicited
by him and returned to him filled out and signed on Sep-
tember 27 and 28; Sandra Elaine Lake identified and
authenticated 15 cards, all of which were solicited by her
and returned to her filled out and signed on September
27 and 28; Delores Sullivan identified and authenticated
15 cards, all of which were solicited by her; and Carl
Beville identified and authenticated 19 cards, all of
which were solicited by him and returned to him filled
out and signed on September 28 and 29. The following
employees identified and authenticated their own cards:
Robert White, Jr., September 28; Russel Kirk, September
29; Billie Bates, October 7; Freida Fulford, September
28; Brian Bruner, September 29; Mike Hollyhand, Sep-
tember 29; Cathy Clifton, October 4; Terry Wayne
Braughton, September 28; James Helm Bigham, Septem-
ber 28; Robert Howell Bigham, September 28; James
Gregory Jordan, September 29; Mary Martin, September
28; Max Elliot Shaw, September 28; Aubrey Lee Rice,
September 27; Joel George Robertson, September 27;
Chris Beckham, September 28; Nelda Lamley, Septem-
ber 28; Wayne Taylor Davis, September 28; Marlon
Boblitt, September 28; Richard Greg Murphy, Septem-
ber 27; Ron Bolton, September 27; Dennis Quinn, Sep-
tember 28; and Lonnie Hinton, September 28. In addition
thereto, employee David Fuller testified that he author-
ized employee Chris Beckham to sign an authorization
card for him, and employee Peggy Tregwick authorized
employee Nancy Beckham to sign a card for her. As
heretofore stated said cards, which are in no way tainted
by any comments made by the solicitors or others, clear-
ly demonstrate that, by September 29, the Union had
signed authorization cards from a minimum of 101 of the
possible 180 unit employees, excluding the II cards
which had been solicited by Stock Manager James Kelly.
Accordingly, it is clear that, as of September 29 when
the Union's petition was filed, it had a valid majority of
representation cards from the employees in the unit at
that time.
189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Demand For Recognition9
On Friday, September 29, the Union's president, J. W.
Kervin, dispatched a letter by certified mail to C. R.
Looney, alleged in the complaint to be a consultant and
agent of Respondent and who apparently was one of the
former owners of the stores, at 2305 Sixth Street, Tusca-
loosa, Alabama 35401, demanding recognition, and
claiming representative majority of Respondent's em-
ployees. For some inexplicable reason this letter was not
received by Respondent until October 19. Without con-
sideration of reaching the issue of the cards signed and
solicited by Stock Manager James Kelly, it is evident
that, as of September 29, the Union had valid designa-
tions of 101 employees out of Respondent's unit of 183,
which is a clear majority. Likewise, as of October 19,
the date on which Respondent received its demand for
recognition, Respondent had 103 such cards out of ap-
proximately 180 employees, or a clear majority. Similar-
ly, as of the time of the election, when approximately
160 employees were in the unit based on the so-called
Excelsior list, it is clear that the Union continued to
enjoy majority status based on its signed authorization
cards.
Thus, the question presented here is not whether or
not the Union ever represented a majority of the em-
ployees in an appropriate unit, but whether the unfair
labor practices committed by Respondent, commencing
September 30, 1978, undermined and dissipated the
Union's majority so that it lost the December 20 election,
and whether such unfair labor practices were so outra-
geous, pervasive, and egregious as to warrant a bargain-
ing order in lieu of a new election which the General
Counsel contends could not be held because of the per-
vasive and outrageous nature of Respondent's unfair
labor practices and their lingering effects upon the em-
ployees.
F. The Alleged Unfair Labor Practices of September
30 and October I
As heretofore indicated, the amended complaint al-
leges some 17 separate instances of alleged 8(a)(1) viola-
tions, as well as several others which the counsel for the
General Counsel urges that I find based on the fact that
they were fully litigated without objection at the hear-
ing, and the discharge of Max Elliot Shaw on October 2
as a violation of Section 8(a)(3) and (1) of the Act. It
should be noted that all the unfair labor practices in-
volved only seven separate instances of conversations or
activities by management, and it is alleged in some single
conversations that employees were interrogated, threat-
ened with layoff or discharge, promised benefits, and
threatened with more onerous working conditions.
Respondent apparently learned for the first time, on
September 30, that its employees were in the process of
seeking union representation. On that date, Harmon
Looney, as heretofore noted, a former owner of the
stores, and at the time relevant herein alleged and ad-
mitted to be a consultant, agent, and vice president of
9 The Board has held that the filing of a petition for certification of
representative also constitutes a request or demand for recognition to
which the employer must respond.
Respondent, telephoned Jimmy Welborn, store manager
of Store 5, and inquired of him if he had heard anything
about union activities among the employees. Welborn
told Looney that he had not heard anything about the
union activity but would see what he could find out. t In
an effort to do so, Welborn approached employee Terry
Braughton and asked him if he knew anything about the
employees trying to organize a union. Braughton testified
that Welborn told him that if he ever wanted to talk
with Welborn about the Union and the effects it could
have to come back and talk to him about it and he
would explain it to Braughton." The above is admitted
by Welborn, who also admitted that he questioned other
employees on that day concerning their knowledge of
the union organizating.
Also on the afternoon of September 30, Looney tele-
phoned employee Joel Robertson at his home and told
him that he had heard they were going to have a union
meeting. It appears that Robertson had talked with
Looney about a week earlier concerning obtaining better
benefits and that Looney had told him at that time that
"to his knowledge they were working on something." In
the September 30 conversation, Looney reminded Rob-
ertson of this prior conversation regarding better benefits
and told him, "I don't know why you got this started."
Robertson replied, "I told him I didn't know anything
about it. I didn't know anything about it until it came up,
until they passed the cards out."'t2
The interrogation of Braughton by Welborn, and ap-
parently of other employees also, and that of employee
Robertson by Harmon Looney concerning their knowl-
edge of union activity among Respondent's employees
are coercive and tend to interfere with their Section 7
rights.' a The General Counsel also alleges that Looney
promised Robertson improved benefits in the September
30 conversation by reminding him of the earlier conver-
sation when he had told him that to his knowledge they
were working on something. While not alleged in the
complaint, the General Counsel alleges that the conver-
sation also constituted an impression of surveillance
when Looney told Robertson that he knew that Robert-
son had gotten the Union started.
Because of the failure of Welborn to deny or other-
wise to explain, and the failure of Looney to testify con-
cerning the comments made by them on September 30, I
am constrained to find, as urged by the General Counsel,
that Looney impliedly promised to improve benefits if
Robertson would reject the Union, and created the im-
pression of surveillance by telling him that he knew who
had gotten the Union started.
Later on Saturday afternoon, Looney telephoned Wel-
born and apparently some other store managers and ad-
vised them that he had learned that the Union was
'° Based on Welborn's testimony. Looney did not testify.
" Based on Braughton's testimony and not denied by Welborn.
12 Based on Robertson's unrebutted testimony.
'3 See PPG Industries. Inc.. Lexington Plant. Fiber Glass Division, 251
NLRB 1146 (1980): Anaconda Co.-Wire and Cable Div., 241 NLRB 1091
(1979), and Paceco, a Division of Freahauf Corporation, 237 NLRB 399
(1978), wherein the Board held such interrogation is inherently coercive
even in the absence of threats of reprisals or promises of benefits and
even when addressed to known union adherents.
1090
PIGGLY WIGGLY, TUSCALOOSA DIVISION
having a meeting with the employees on Sunday after-
noon at the Ramada Inn. Looney suggested, or instruct-
ed, the managers to attend the meeting and see what
they could find out. 4
Several of the complaint allegations arise out of events
occurring at this October I meeting at the Ramada Inn
in Tuscaloosa, many of which are not in dispute. It is un-
disputed that, in accordance with Looney's instructions,
Respondent Store Managers Jimmy Welborn, Paul
Smith, and B. Parr, Assistant Store Manager Carl Bisant,
and Respondent's agent and vice president, Harmon
Looney, were present at the Ramada Inn at or about the
time the meeting was scheduled to start.'5 With the ex-
ception of Looney, who was parked in his automobile
near the entrance to the meeting room, the other manag-
ers were in the corridor leading to the meeting room,
and it appears that some entered the meeting room from
time to time. It is also undisputed that Assistant Store
Manager Richard Kraalman was also present, apparently
at the invitation of the Union and the employees, and
was present in the meeting room. Some, if not all, of the
management personnel there, with the exception of
Kraalman, had computer payroll printout lists of the em-
ployees and appeared to be "checking off' the employ-
ees as they arrived at the meeting. As noted, the forego-
ing is undisputed and testified to by employees Rice,
Jordan, Bigham, White, and Union Representative
Lance. 16
The foregoing clearly constitutes coercive surveillance
of the employees' union activities, and the fact that the
managers and assistant managers there may have been ig-
norant to the fact that they had no right to be there does
not militate against the coercive impact of their presence
there on their employees' union activities. "
As also noted, a number of additional 8(a)(l) allega-
tions arise out of events occurring at the meeting. Em-
ployee James Brown testified that, as he was going to
the meeting, Looney, who was sitting in his car by the
entrance to the meeting hall, called him over and asked
him what he was doing there. Employee Rice testified
that Store Manager Parr asked him why he was there,
and Parr admits that he asked a number of employees
why they were at the meeting. The foregoing admitted
conduct clearly constitutes coercive interrogation under
the rationale of Anaconda Co. and Paceco, supra.
Union Representative Jerrell Lance and Huey King ar-
rived shortly before the meeting was scheduled to begin
and were informed by some employees that Welborn,
Parr, and Bisant were present there. Lance and King
then asked all the management personnel present, with
the exception of Kraalman who had been invited by the
Union, to leave. It appears that with the exception of
' Based on Welborn's testimony.
s The record is unclear as to whether the meeting was scheduled for I
or for 3 p.m. Howeser. that ambiguity is not particularly relevant to the
findings of fact here.
" Additionally, these findings are not directly disputed or denied by
any management official
" In addition, although not alleged in the complaint, the maintenance
of lists of the names of employees in attendance at the meeting violated
Sec. 8(a)(1) of the Act. This matter was fully litigated and a finding
thereon may be made. Cf. Elder-Beerman Stores Corp.. 173 NLRB 566
(1968) and GTE .4utonmatn Electric. Inc.. 204 NLRB 716 (1973).
Parr, who was in the meeting room, the others were in
the corridors checking off the names of employees who
were present. There ensued an apparent dispute or argu-
ment over the right of management personnel to be pres-
ent which resulted in Lance summoning the police who
arrived some 20 minutes later at which time all manage-
ment personnel with the exception of Kraalman were
gone.
The testimony of employee witnesses, management
personnel, and the union representatives concerning this
meeting makes clear that some confusion reigned during
the period of time employees were talking with some of
the management personnel in the corridors outside the
meeting room and others were talking with management
personnel in the meeting room.
Employee Robert White testified that, when he ar-
rived at the meeting, Welborn, Smith, Parr, and Bisant
were in the hall and Welborn made a statement to the
effect that if the Union came in they would close some
of the smaller stores which would result in the layoff or
discharge of some employees. Welborn, in effect. denies
talking to the employees at the Ramada Inn concerning
what would happen if the union came in, and testified
that his conversation was primarily with Lance and King
concerning whether or not he had a right to be there.
While Welborn displayed a degree of candor in admit-
ting to certain other violations of the Act, I find his
denial of the comments attributed to him by White to be
less than credible under all the circumstances here.
White impressed me as a conscientious witness who
would not have conjured up the statement attributed to
Welborn on that occasion. It is noted that other testimo-
ny relating to conduct of other supervisors given by
White is admitted by the supervisors. Accordingly, I
credit White in this regard.
Jerrell Lance testified that, when he went into the hall
to ask Parr and Bisant to leave, he heard Parr promise
employee Denise Phillips a 25-cent-an-hour pay raise and
that Bisant made the statement, "Well at least they got a
job." According to Lance, Bisant also said that they
would have to close down some of the stores to cut
hours.
Robert White, Jerrell Lance, James Bigham, and Greg
Jordan testified that, at the October I meeting, Store
Manager Parr told several employees that there would
be an across-the-board pay increase. Parr admits that he
told employees whom he recognized that there would
probably be such a pay increase and that he told two or
three employees that same thing: "You're going to have
some raises coming probably in the future, I don't know,
but I don't think you need to take this route." As indicat-
ed, Parr freely admitted having made the comments con-
cerning the probability of a pay increase and the fact
that the employees did not need to take the route of the
Union. This admission tends to corroborate White's testi-
mony and other testimony relating to this matter, and
lends some veracity to the credibility conflict with re-
spect to Welborn's conduct. Accordingly, I find that
Parr promised employees an across the board pay in-
crease and impliedly threatened that there would be a
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of jobs if the employees continued to take the route
leading to union representation.
G. Alleged Unfair Labor Practices After October I
The General Counsel alleges that, arising out of a
single conversation with employee Braughton on Octo-
ber 2, 1978, Assistant Store Manager Carl Bisant threat-
ened discharge if employees joined or engaged in union
activities; threatened employees with more onerous
working conditions if they selected the Union; threat-
ened employees with a reduction in working hours if
they selected the Union; threatened employees with
layoff if they selected the Union; and threatened employ-
ees that it would close its stores if they designated the
Union.
Employee Terry Braughton testified that a day or so
after the October I meeting at the Ramada Inn, alleged
in the complaint to be October 2, 1978, apparently in re-
sponse to Welborn's invitation to him to come to Wel-
born if he had any questions about the Union, he ap-
proached Welborn and asked him to explain what the
Union was about and what it could mean in their situa-
tion. Welborn told Braughton that he had been advised
by the Company's lawyers not to give any advice one
way or the other. Braughton testified that Carl Bisant,
who was present, stated that he was not a store manager
and could talk to him if he wanted to. Braughton told
him, "I wanted to talk to him about it."18 Braughton tes-
tified that the conversation lasted about an hour during
which time Bisant compared the operations of the Piggly
Wiggly stores in Tuscaloosa with the Food World
stores' 9 whose employees were under contract with the
same union. Braughton's testimony as relevant here is:
A. He said that if we were under a contract simi-
lar to the one Food World had here in town that
we would probably have to have our hours cut, and
some layoffs. And that if they paid that much more
money in comparison with what Food World has,
that we would have to work harder for the money,
and that it would only be right, that if they were
paying us more we should work more.
Q. He talked specifically about the Food World
situation?
A. That is the stores he referred to, Food World,
they are under the same union with the same repre-
sentatives, so he figured that would be the closest
thing to base it on. That was my understanding.
Bisant's testimony concerning this conversation is not
substantially at odds with that of Braughton's. Bisant tes-
tified that his only knowledge of union store operations
was that of the Bruno's stores in Tuscaloosa, and that he
told Braughton that until about 5 years before that time
Bruno's had five smaller stores, but after the union con-
tract they had to close and open two larger Food World
stores, where they used more part-time than full-time
help. He also testified that he told Braughton that if
Piggly Wiggly were under the same contract they too
would probably have a higher ratio of part-time to full-
" Welborn left the office and was not present during this convtersation.
1 Formerly Bruno's Food Stores.
time than they presently had. He also said that Bruno's
had had some layoffs and that generally under a union
contract seniority takes precedence in any reduction in
force. It is also alleged that Bisant told Braughton that
under a union contract a certain number of grievances
by Respondent against an employee would result in dis-
charge and the Union would not be able to assist an em-
ployee once discharged.
This conversation, about which there is little factual
dispute, but which is alleged by the General Counsel to
contain no less than five blatantly coercive threats and
statements, presents a close question involving the rights
guaranteed to the employer by Section 8(c) of the Act,
and the first amendment to the constitution, which per-
mits it to advise its employees of potentially adverse con-
sequences flowing from the selection of collective repre-
sentation, so long as such statements do not contain
threats of reprisals or promises of benefits. Here, it is
clear that the entire conversation between Bisant and
Braughton involved a comparison of the operation of the
Piggly Wiggly stores in Tuscaloosa and those of the
Food World stores, formerly Bruno's, in which the em-
ployees were represented by this Union.
First, the General Counsel does not contend that any
statement made by Bisant to Braughton concerning what
had occurred at the Food World stores after their orga-
nization by Respondent was untrue. Nor is there any evi-
dence that Bisant suggested that the operational changes
at Bruno's, to which he alluded to Braughton, were mo-
tivated by retaliation by Bruno's for its employees
having selected the Union to represent them. It is clear
that from the inception of the Union's campaign at this
Respondent it had held out its collective-bargaining
agreement between itself and Food World to the em-
ployees of Respondent, obviously, with the idea that cer-
tain portions, at least, of the agreement would appear ad-
vantageous to the Piggly Wiggly employees and induce
them to select it as their collective-bargaining representa-
tive. It will be remembered that, when King first gave
employee William Wesson the cards on September 27, he
also gave him a copy of the contract. It is also not in
dispute that comparisons between Piggly Wiggly and
Food World were a common subject of discussion
among the employees, and it appears that each side en-
deavored to utilize this collective-bargaining agreement
in the manner most favorable to it. However, when an
employer advises its employees of adverse consequences
befalling employees following their selection of a collec-
tive-bargaining agent, there is always a fine line to distin-
guish between the inference that it is merely advising
employees of potential adverse consequences which
could flow from such selection, or whether it is implied-
ly threatening the inevitable likelihood that such conse-
quences will flow to its employees in retaliation for their
having selected the union as their collective-bargaining
representative. This distincition must be drawn based on
an analysis of the entire context of the conversation-
indeed, the entire campaign.
Here, the General Counsel apparently relies on Bi-
sant's admitted statement to Braughton that at the time
Bruno's employees selected the Union it had five stores,
1092
PIGGLY WIGGLY, TUSCALOOSA DIVISION
but subsequently closed them and opened two larger
stores. From this statement, the General Counsel appar-
ently alleges a threat to discharge and a threat to close
its stores. It should be noted that Bisant prefaced his
entire comment concerning Food World with the state-
ment "that if we were under contract similar to the one
that Food World has-" thus Bisant's remarks could not
reasonably be construed to suggest that a similar contract
was envitable and that the same thing would happen at
Piggly Wiggly as occurred at Bruno's. Similarly, the al-
legations of a threat of more onerous working condi-
tions, reduction in working hours, and layoffs are appar-
ently predicated on the same statement which suggests
that if Piggly Wiggly negotiated a similar contract the
hours would probably have to be cut and there may be
some layoffs and if, in the event they had to pay higher
wages, they may be required to work harder for those
wages.
In my view the General Counsel failed to sustain the
allegations of the complaint arising out of this October 2
conversation; a preponderance of the undisputed evi-
dence convinces me that the employer was merely ex-
pressing his views about unionism without any threat of
reprisals or promise of benefits. See N.L.R.B. v. Gissel
Packing Co., supra. When viewed in context, the evi-
dence establishes that the Company's representative did
no more than present to the employee his understanding
that a labor organization would prefer a contract similar
to the one it negotiated with Bruno's. Cf. Missouri Heel
Company, a Division of Ripley Industries, Inc., 209 NLRB
481 (1974). Accordingly, I shall recommend that these
allegations be dismissed.
It is alleged that Market Manager Lane Hubbard
threatened employees with a reduction in working hours
and with layoffs if they designated the Union as their
collective-bargaining representative. This allegation is
based on the testimony of Winston Noland, who testified
that, around October 5, Hubbard approached him in the
back of the store and told him that he was going to have
to get rid of an employee named Lola, and the hours
would be cut because of the Union. Hubbard testified
that Noland gave no reason for having to get rid of
Lola.
Hubbard credibly testified that he never had a conver-
sation with Noland about the Union, or about terminat-
ing an employee named Lola, or about cutting hours if
the Union came in. I credit Hubbard's denial of the alle-
gation here. He impressed me as a forthright, honest wit-
ness; he testified that he was out of the store at "the
West Alabama State Fair" at the inception of the union
campaign and did not talk with any employees about
what was going on with the Union during this time.
Hubbard further testified that the employee referred to
as Lola is still employed in the deli at Store 5, and is
presently a full-time employee whereas in October 1978
she was part time. I recommend that these allegations be
dismissed.
The complaint alleges that Store Manager B. Parr on
or about November 15 threatened employees with loss of
jobs if they designated the Union to represent them and
also with a reduction of working hours for such designa-
tion. These allegations are based on the testimony of em-
ployee Greg Jordan, who testified that on or about No-
vember 22, alleged in the complaint as November 15.
Store Manager B. Parr stopped him in the parking lot
and told him that, if the Union was designated as the em-
ployees' bargaining representative, Respondent would
not need as many baggers (Jordan's position), and that
the hours of employment would have to be reduced. On
further elaboration, Jordan testified that Parr stated that
a store that size, i.e., Piggly Wiggly 3, could not handle
as many bagboys if they went union and Respondent
would have to cut back hours. On cross-examination,
Jordan testified that he brought up the subject of Food
World stores by stating that Food World had bagboys
and they were union. Jordan testified that Parr did not
refer to Food World stores, or compare Food World
stores of the same size, or discuss how many part-time
employees Food World had. However, Jordan later
stated that he was not sure if he brought up the subject
of Food World, but that during the discussion of union
stores like Food World Parr brought up the subject of
the number of hours worked. Parr's version of this con-
versation is not substantially different. He testified that
he asked Jordan to compare the utilization of bagboys at
Food World with the way bagboys were utilized at
Piggly Wiggly Store 3, and pointed out to Jordan that
Food World was a larger store than Piggly Wiggly
Store 3, but used less bagboys and worked less hours.
On balance, I credit Parr's more detailed and cogent
version of this conversation over that of Jordan, and I
find, and conclude, that his asking Jordan to compare the
number of hours bagboys worked and the number of
bagboys employed at the respective stores falls short of
threatening Jordan with loss of jobs or with a reduction
in working hours for designating the Union as their col-
lective-bargaining representative. I find, and conclude,
that these allegations should be dismissed.
H. Termination of Max Elliot Shaw
As with most of the factual situations in this case,
there is no material dispute as to the pertinent facts sur-
rounding Shaw's termination by the Employer. Shaw
had been employed as a bagger-cashier at Store 2, under
the supervision of Store Manager Paul Smith, for ap-
proximately 1 year. Shaw attended the October I meet-
ing at the Ramada Inn and saw Smith, as well as Re-
spondent Vice President Looney, there, observing em-
ployees as they entered the union meeting.
To place the ensuing events here in perspective, how-
ever, on September 25, Shaw expressed to Smith his in-
tention to quit at the end of the week. The record is not
clear why Shaw was giving his notice to quit. On Sep-
tember 29, Smith asked Shaw if he would work another
week to take over the schedule of a cashier who had quit
without notice. At this time Shaw told Smith that he had
changed his mind about quitting and asked Smith if he
could continue to work. According to Shaw, Smith
stated that he could.20 Be that as it may, Shaw attended
the October I meeting at the Ramada Inn. On October 2,
Shaw was working at Store 2, where consultant Looney
-) Smith did not testify at this proceeding
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
had his offices. Looney approached Shaw during coffee-
break and told him that he had heard that he, Shaw, had
quit. Shaw told Looney that he had asked Smith if he
could continue working. Looney told Shaw that he did
not think that he could. Shaw testified that he then asked
Smith if he had talked with Looney and Smith said that
he had, at which time Shaw clocked out and left.
A couple of weeks later Shaw returned to the store
and was told by Smith that if he ever needed a job rec-
ommendation he could have one.
I am constrained to, and I find, that the General Coun-
sel has sustained the burden of establishing that Shaw
was discharged in violation of Section 8(a)(3) and (1) of
the Act for his union and protected concerted activities.
In Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), the Board adopted the test of causa-
tion in cases alleging violations of Section 8(a)(3) of the
Act, as enunciated by the United States Supreme Court
in Mt. Healthy City School District, Board of Education v.
Doyle, 429 U.S. 274 (1977), and Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429
U.S. 252 (1977), wherein the Board stated that:
. . we shall henceforth employ the following cau-
sation test in all cases alleging violations of Section
8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation. First, we shall require that
the General Counsel make a prima facie showing
sufficient to support the inference that the protected
conduct was a "motivating factor" in the employ-
er's decision. Once this is established, the burden
will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct. [251 NLRB at
1089.1
As heretofore noted, the General Counsel, by establish-
ing the Employer's propensity to violate the Act by the
massive surveillance of its employees' union activities on
October 1, and other coercive conduct, and the subse-
quent unexplained discharge of Shaw on October 2 is
sufficient to support an inference that the protected con-
duct and Shaw's union activities were motivating factors
in the Employer's decision to rescind its agreement to
permit Shaw to continue to work. Accordingly, I find
that Shaw's discharge violates Section 8(a)(3) and (1) of
the Act.
I. The Representation Proceeding
As heretofore noted, pursuant to the November 22
Decision and Direction of Election, an election was duly
conducted among an appropriate unit of Respondent's
employees on December 20, which resulted in a tally of
ballots reflecting that, of approximately 160 eligible
voters, 60 cast valid ballots for, 99 cast valid ballots
against, the labor organization. Two cast challenged bal-
lots and one void ballot was cast. The challenged ballots
were insufficient in number to affect the results of the
election. On December 28, the Union duly filed its objec-
tions to the election, and on April 12, 1979, the Regional
Director for Region 10 issued an order directing hearing,
consolidating cases and notice of hearing, wherein the
issues raised by Petitioner's objections were joined with
the issues raised by the complaint theretofore issued and
the amended complaint subsequently issued on July 16.
The Petitioner's objections are numbered I through 8
and contain the so-called catchall phrase with respect "to
these and other acts." Petitioner's Objections 1, 2, 3, and
4 are totally, or in part, coextensive with the allegations
of the complaint relating to events occurring on the
dates of September 30 and October I in paragraphs 7, 8,
10, 14, and 16. Under the "other acts and conduct," the
discharge of Max Elliot Shaw in paragraph 18 of the
complaint also constitutes objectionable conduct. Having
heretofore found that Respondent was guilty of the
unfair labor practices alleged on September 30 and Octo-
ber 1, which allegations are coextensive with Objections
1, 2, 3, and 4 of Petitioner's objections, I find that said
objections have been sustained.
No evidence was presented in support of Petitioner's
Objection 5, alleging that the Employer threatened to
reduce the working hours of two employees; Objection
6, that company representatives terminated Albert Elliot
and Winston Noland;:2 Objection 7, that supervisors,
throughout the campaign, orally interrogated voters as to
how they would vote; and Objection 8, that supervisors
and/or company representatives were in and around the
voting area during the election. Accordingly, Petitioner's
Objections 5, 6, 7, and 8 are hereby overruled and dis-
missed.
It is well settled that all unfair labor practices occur-
ring during the "critical period" do not warrant the set-
ting aside of an election. In order to warrant that remedy
it must be demonstrated that such conduct had a tend-
ency to have an impact on the results of the election. All
the unfair labor practices found above occurred during
the critical period, on September 30 and October I and
2. To restate briefly the unlawful conduct found here: I
have found, on the admitted testimony of Store Manager
Jimmy Welborn, that on September 30 he interrogated
several employees concerning their knowledge of the
union activities among Respondent's employees, and,
based on the undenied testimony relating to the conduct
of Respondent's consultant, agent, and vice president.
Harmon Looney, I have found that on September 30 he
also interrogated an employee concerning his knowledge
of the union activities among Respondent's employees;
promised the employee a wage increase to refrain from
selecting the Union, and created the impression of sur-
veillance of the employees union activities. 22
I have found that on October 1, based on the admitted
and undenied testimony in support thereof, at least five
of Respondent's supervisors and agents blatantly and
openly engaged in surveillance of their employees' union
activities at the Ramada Inn, in the course of which it
openly demonstrated to the employees that it was main-
" It is nroted hat Elliot and Noland were alleged as haing been dis-
charged because of their union and or protected concerted aclivities in
violation of Sec. 8(a)(3) and (I) of the Act in the initial charge filed on
January 5. 1979. and in he amended charge iled on January 26, 1979.
However complaint did not issue Mith respect to them.
"' While the impression ofr surveillance as nlot alleged in hle original
complaint or at the hearing, it was litigated without objections and, ac-
cordirigl I find the violation.
1094
PIGGL.Y WIGGLY, TUSCALOOSA DIVISION
taining lists of the employees present there. In conjunc-
tion therewith on October 1, I have found, based upon
the admitted testimony of Store Manager B. Parr, that he
interrogated several employees by asking them why they
were present there for the union meeting. Also based on
inferences drawn from Parr's own testimony I have
found that, at the employees' union meeting at the
Ramada Inn in Tuscaloosa, Alabama, on October 1, he
promised the employees a pay raise and impliedly threat-
ened employees with loss of jobs if they selected the
Union to represent them. Also, based on the credited tes-
timony of employee White over the denial of Store Man-
ager Jimmy Welborn, I have found that on October I
Welborn threatened some employees at that meeting that
it would close some, or all, of its stores if they designat-
ed the Union to represent them. Finally, I have found
that, on October 2, based on the prina facie case present-
ed by the General Counsel and unrefuted by Respond-
ent, Respondent unlawfully discharged its employee Max
Elliot Shaw.
I have further found that other allegations of the
amended complaint alleged to have occurred on October
2 and 5 and November 15, 1978, have not been sustained
by the General Counsel, and accordingly they are dis-
missed.
Respondent contends that, even if all allegations of the
complaint were sustained, such conduct was so remote to
the time of the election, isolated and innocuous, that it
could not be reasonably said that it tended to impede the
election process or to affect the results of the election.
On the other hand, the General Counsel and the Charg-
ing Party contend that such unfair labor practices are so
"outrageous" and "pervasive" as to warrant the issuance
of a bargaining order, in that their effect absolutely pre-
cludes the holding of a fair and reliable election or, in
the alternative, since the Union at all relevant times here
represented a majority of the employees in the unit based
on its possession of valid authorization cards, that Re-
spondent's conduct was so serious and extreme that there
is little or no possibility of remedying the violations
through the use of traditional Board remedies and the
only meaningful remedy would be the issuance of a bar-
gaining order under the doctrine enunciated by the Su-
preme Court in NI.L.R.B. v. Gissel Packing Co., supra.
While it is true that the unfair labor practices found
above occurred more than 2-1/2 months prior to the
Board-conducted election, it cannot be said that such
unfair labor practices were isolated or innocuous. Ac-
cording to the undisputed testimony of Union Repre-
sentative Jerrell Lance, there were 99 employees at the
October I meeting at the Ramada Inn. The record war-
rants the inference that a vast majority, if not all such
employees, observed their store managers and assistant
managers present there and also observed them maintain-
ing a list of what certainly appeared to be the employees
who were present. In addition thereto, the record estab-
lishes that more than one employee heard the promises
of across-the-board wage increases and the threat that
the stores may close with the accompanying loss of jobs
because of the selection of the Union to represent them.
This inference is warranted by the fact that the record
establishes that the managers and assistant managers, as
well as Harmon Looney, who was parked outside in his
automobile, were present both in the corridor leading to
the meeting room and the room wherein the meeting
was held.
In my opinion, the mere presence of these supervisory
personnel at the employees' union meeting had an inher-
ent tendency to interfere with, restrain, and coerce them
in the exercise of their Section 7 rights. Additionally, the
open and blatant maintenance of lists of employees in at-
tendance there could not but create the impression, or
fear, that the Employer would take retaliatory action
against employees for their attendance at the meeting.2 3
In large part, due to Respondent's conduct on October
1, but also considering the interrogations, promises of
benefits, and impression of surveillance of September 30,
I find that Respondent's conduct interfered with, re-
strained, and coerced its employees in the exercise of
their right to cast a fair and free ballot in the December
20 election. 24
In view of the lingering effects25 which it is reason-
able, if not compulsory, to conclude that such conduct
had upon the employees, I must conclude that their free-
dom of choice to cast a free and fair ballot in the De-
cember 20 election was so impaired that the results of
the election do not reflect the employees true unfettered
choice with respect to union representation.
Accordingly, it shall be recommended that the election
conducted on December 20, 1978, be set aside, and the
same be remanded to the Regional Director for Region
10, for the conduct of a second (or rerun) election at a
time when he deems that the unfair labor practices, and
the effects thereof, have been eradicated by Respondent's
compliance with the Order issued herein.
J. The General Counsels Request for a Bargaining
Order
The General Counsel contends, based on the com-
plaint allegations arising out of the charges filed by the
Charging Party, that the only remedy meaningful in this
case is to order Respondent to recognize the Union and
to bargain with it. It is contended that the lingering ef-
fects of the coercive conduct of Respondent as demon-
strated by the "numerous," "pervasive," and "serious"
unfair labor practices set forth in the complaint precludes
the holding of a fair rerun election and renders uncertain
the possibility that traditional remedies could ensure a
fair election. All of the numerous cases brought by the
General Counsel under the principles enunciated in
N.L.R.B. v. Gissel Packing Co., supra, since 1969 have
posed difficult factual and legal issues. The Supreme
Court approved the Board's authority to order a Re-
spondent to recognize and bargain with the union not-
withstanding the loss of a Board-conducted election, ap-
: This is true even though he record does not support the fact that
the Emploser subsequently retaliated against any employee observed at
the meeting
t Foir he reasons set frth in the subsequent section of this Decision. I
do not iew the discharge of Shay., although fiound herein It he unlau-
ful, Io ha ve been a factor in the clection results.
' In vies of nmi findings in the subsequent section of this Decision
dealing wsith the General Counsel's rquiest fr a bargaining order. I use
thle term "lingering effccts wkilh a greal deal of Irepidatiotn
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parently even in cases where the union at no point evi-
denced that it represented a majority of the employees in
the unit (see United Dairy Farmers Cooperative Associ-
ation, 242 NLRB 1026 (1979)), but certainly in cases
where the union, at some relevant point demonstrated its
majority status by valid authorization cards. The difficul-
ty posed by these cases is demonstrated by the number
of cases in which the Board has differed with its adminis-
trative law judges, and, the United States courts of ap-
peals have differed with the Board in their interpretation
of Gissel. This case is no less, and perhaps more difficult
than most. This is perhaps due to the fact that the terms
used by the Supreme Court in Gissel to describe the
unfair labor practices warranting a bargaining order;
"outrageous" and "pervasive"; and those adopted by the
Board in other cases, such as "numerous," "serious," and
"egregious" are all adjectives used to qualify, describe,
or limit the conduct committed and, thus, must be inter-
preted. As Respondent contends, if there is one truism to
be found in Gissel and its progeny it is that the Gissel for-
mula cannot be applied in a mechanical fashion and that
each case turns upon its own facts. See Jasta Manufactur-
ing Company, Inc., 246 NLRB 48 (1979); N.L.R.B. v.
Armcor Industries, Inc., 535 F.2d 239 (3d Cir. 1976);
Armcor Industries, 227 NLRB 1543 (1977); N.L.R.B. v.
Armcor Industries, Inc., 588 F.2d 821 (3d Cir. 1978).
As heretofore noted, the propriety of ordering a re-
spondent to bargain with a labor organization without
having been duly designated by a majority of the em-
ployees in the unit in a Board-conducted election relies
exclusively upon a reasonable analysis of the principles
enunciated in Gissel, supra. The pertinent portions of
Gissel, at 395 U.S. 613-614, appear to create three cate-
gories of unfair labor practices and the remedies appro-
priate for each. The first alludes to "exceptional" cases
marked by "outrageous" and "pervasive" unfair labor
practices and provides that a bargaining order is appro-
priate if the practices are so "pervasive" that their affects
absolutely precludes the holding of a fair and reliable
election or (rerun election). Apparently, such relief is
permissible even in the absence of a card majority. Cf.
United Dairy Farmers Cooperative Association, 242 NLRB
1026 (1979), now on remand to the Board by the United
States Court of Appeals for the Third Circuit No. 70-
1807 and 79-1883. However, it need not be found here
that Respondent's unfair labor practices were "outra-
geous" and "pervasive" as those terms were utilized by
the Court in the Gissel case in this category of unfair
labor practices. Here, it is clear that as of September 29,
and thereafter, including specifically October 19 and De-
cember 20, the Union enjoyed a comfortable majority
status as demonstrated by the valid authorization cards in
its possession, as admitted into evidence at the hearing.
Thus, the unfair labor practices in this case must be ana-
lyzed as set forth in the second and third categories of
Gissel. The second category provides that a bargaining
order may issue if the union at some point had a card
majority and Respondent's unfair labor practices were so
"serious and/or egregious" that the possibility of erasing
the effects of the past unfair labor practices, thus assur-
ing a fair election (or fair rerun election) by the use of
traditional remedies is slight; or, in other words, the
unfair labor practices render uncertain the possibility that
the traditional remedies could ensure a fair rerun election
and a more reliable test would be the validly authenticat-
ed authorization cards wherein the employees had desig-
nated the union to represent them. The third category
appears to provide that no bargaining order may issue
where the unfair labor practices, though present, are
"minor" or "less extensive" and the impact upon the
election machinery is minimal.
I found that the Union made a demand for recognition
on Respondent in two ways. First, by filing the petition
for certification of representative on September 29, a
copy of which was received by Respondent on October
4, and by writing a letter to Respondent, sent by certi-
fied mail and return receipt requested, on September 29,
but which was not received by Respondent until October
19. On both these dates, and at all intervening times, the
Union possessed a valid majority of authorization cards
from the employees in the unit and Respondent, by its
silence, declined to recognize and bargain with the
Union based on its claim of majority status.
As heretofore indicated, the union activities among
Respondent's employees commenced on September 27,
and 3 days later, by September 29, the Union had ob-
tained approximately 111 valid authorization cards from
unit employees, filed its petition for certification of rep-
resentative, and made a demand for recognition on the
Employer. It is also apparent from this record that until
Saturday, September 30, Respondent had been totally
unaware of any union activity among its employees.
Upon Respondent's learning of this activity, it immedi-
ately commenced engaging in unlawful activity to ascer-
tain further information about it. Store Manager Welborn
(store no. 5) admittedly interrogated several employees
concerning their knowledge of the union activity on that
date and Respondent's vice president and consultant,
Harmon Looney, in a telephone conversation with an
employee, interrogated that employee concerning the
same matter and impliedly promised him a wage increase
and created an impression of surveillance of his union ac-
tivities. While these acts of coercive interrogation, prom-
ise of better benefits, and impression of surveillance, of
September 30, are unlawful, limited as they were to the
number of employees involved, they would not warrant
the issuance of a bargaining order in this case.
Respondent's most "serious" and by far "egregious"
conduct occurred on October 1, and such conduct is not
in material dispute. As I have found on that date, no less
than five of Respondent's well-known supervisors and
agents purposely went to the Ramada Inn where they
knew their employees were having a meeting with union
representatives with a deliberate intent to interrupt and
interfere with the meeting during the course of which
some supervisors overtly maintained lists of employees
who were present there. They also interrogated employ-
ees concerning their reason for being there; threatened
employees with loss of jobs if the Union were selected;
impliedly promised across-the-board wage increases if
the Union was not selected; and threatened employees
with store closures and consequent loss of jobs if they se-
lected the Union as their collective-bargaining repre-
1096
PIGGLY WIGGLY, TUSCALOOSA DIVISION
sentative. All of the October I conduct occurred in a
period of less than I hour.
Clearly, the mere presence of these well-known super-
visors at this union meeting, attended by some 99 unit
employees, was inherently coercive and tended to inter-
fere with, restrain, and coerce the employees in the exer-
cise of their Section 7 rights, and to dissipate and under-
mine the Union's then already acquired majority status.
Certainly, the various threats, promises, and interroga-
tions also committed there, in conjunction with the bla-
tant maintenance of lists of employees in attendance,
tended to have a lingering effect on the employees, for
such action could not but affect, or create, a fear in the
minds of the employees that Respondent was maintaining
such a list for purposes of retaliating against employees
for engaging in this union activity.
It is the above conduct that must be analyzed and as-
sessed under the principles enunciated in Gissel and sub-
sequent cases in order to determine the appropriateness
of a bargaining order in this case or whether these unfair
labor practices and the effects can be erased by more
conventional Board remedies.
While I have, herein, found that on October 2, Re-
spondent discharged Max Elliot Shaw for discriminatory
reasons and in violation of Section 8(a)(3) and (1) of the
Act, I am convinced, as rationalized below, that Shaw's
discharge did not play a role in the undermining or dissi-
pation of the Union's majority status and its subsequent
loss of the election. First, it is noted that while Shaw
was discharged on October 2, the Union, in its objections
to the election filed on December 28, while alleging two
other employees to have been discriminatorily dis-
charged, did not name Shaw. Similarly, the initial charge
filed by the Union on January 5, 1979, alleged the dis-
criminatory discharge of two employees, but not that of
Shaw. It was not until the amended charge was filed on
January 26, 1979, that Shaw was alleged as being discri-
minatorily discharged. It is noted that the complaint did
not issue on the other two employees alleged in the
charge. Also, the initial complaint issued in this matter
on April 4, 1979, failed to allege Shaw as a discriminatee;
it was not until the issuance of the amended complaint of
July 2, 1979, that Shaw was first alleged to be discrimi-
nated against by the employer, although the affidavit of
Shaw upon which the allegation of discriminatory dis-
charge was ultimately made was taken on January 16,
1979.
Accordingly, it does not appear that any evidence of
record would warrant an inference that either Shaw, the
Union, the General Counsel, or any employee viewed his
termination of employment on October 2, as being in re-
taliation for his having attended the October I union
meeting, or for any other union activity. In assessing the
impact of Respondent's unfair labor practices upon the
dissipation of the Union's majority status, it is only rea-
sonable to conclude that only those unfair labor practices
which were known to or at least suspected by the em-
ployees to have existed could have caused their defection
from the Union, and an unfair labor practice not suspect-
ed, alleged, or contended could hardly be said to have a
bearing upon such matter.
As heretofore found, while the General Counsel has
alleged three conversations between individual employ-
ees and supervisors out of which nine independent unfair
labor practices was alleged to have occurred, I have
found, either that the conduct that occurred as alleged
by the General Counsel did not constitute a violation of
the Act, or based on credibility, did not occur as con-
tended by the General Counsel.
After the unfair labor practices of October I, during
the ensuing 2-1/2 months prior to the Board conducted
election on December 20, it appears that the Employer's
campaign was within lawful bounds and in no way
tended to interfere with, restrain, or coerce its employees
in the exercise of their Section 7 rights, or their right to
cast a free and fair ballot. While the evidence of record
is scant as to how Respondent conducted its campaign
thereafter, the record does indicate that General Man-
ager Farrell Hudgins sent letters to its employees on Oc-
tober 19 and December 12 and 15; wherein he, inter alia,
assured the employees of the secrecy of their ballot, and
while urging them to reject the Union and to compare
their status with the status of certain union represented
employees in the Tuscaloosa area, there is nothing in this
correspondence alleged to have violated the Act, nor
does an analysis of the correspondence indicate that such
was the case.
As heretofore indicated, these unfair labor practices
raise serious questions, since the surveillance and con-
duct of October I is the type of conduct that tends to
have a "lingering effect" on employees, and thus render
uncertain the possibility of a fair and free rerun election.
However, in my view, the effects of the unfair labor
practices found herein can be remedied and eradicated
by more conventional Board remedies and make possible
the holding of the preferred and more reliable Board-
conducted election to determine whether or not Re-
spondent's employees desire the Union to represent
them.
It is well settled that the Board and all courts have ex-
pressed the view that a free and fair Board-conducted
election under Section 9(c) of the Act is the preferred
and more reliable method for employees to express their
free choice on the question of representation. It is only
those cases where the employer's misconduct has made
the holding of such free and fair election uncertain or
unlikely that a bargaining order issues based on the
Union's possession of, less reliable, authorization cards
from a majority of the unit employees.
While the unfair labor practices found herein are seri-
ous and of the nature and volume which the Board and
courts have found in some cases to warrant a bargaining
order in that it would be unlikely the Board's conven-
tional remedies would erase their effects on the employ-
ees and permit the conduct of a fair election, I am per-
suaded on the facts of this case that the effects of these
unfair labor practices can be erased and a fair rerun elec-
tion be held.
First, all of the 8(a)(1) violations occurred during a 2-
day period, the most serious of which occurred in less
than I hour on October 1, 2-2/3 months before the elec-
tion and before the Employer was aware that a petition
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for certification of representative had been filed. The fact
that Respondent's agents who engaged in this conduct
may have been unaware that their conduct was unlawful,
as suggested by Respondent, is immaterial to the coer-
cive effect their conduct had on the employees so affect-
ed. However, the fact that no further unfair labor prac-
tices were committed during the 2-1/2-month campaign,
except for the discharge of Shaw, and for reasons stated
above, I conclude his discharge had no chilling effect on
the union activity or the dissipation of the Union's ma-
jority status, is persuasive of the fact that to some extent
Respondent had already erased some of the effects of its
initial misconduct and impliedly assured the employees
that it would not retaliate against them for engaging in
union activities or for selecting the Union to represent
them. This is true, although it appears from the record
that both parties engaged in a spirited campaign.
The logical argument against this view, of course, is
that once the Employer has achieved its goal of destroy-
ing the Union's majority status by its threats, promises,
and other misconduct, it is unnecessary to continue to
violate the law.
Also persuasive to me is the fact that although the
massive surveillance and maintenance of lists of employ-
ees at the October 1 union meeting, reasonably tended to
make the employees there fear retaliation for engaging in
union activity, no retaliation was taken, at least any that
was known or suspected by the employees. I think a rea-
sonable inference is that, in the employees' view, that if
effective retaliatory action was going to be taken by the
Employer, such action would have been taken prior to
the Board-conducted election, in which the Employer
had assured the employees that their vote would be cast
in absolute secrecy.
While the unfair labor practices committed by this Re-
spondent early in the campaign are extremely serious and
are not to be condoned, I believe that its ensuing con-
duct, free from unlawful activity, makes it possible to
remedy the effects of its earlier misconduct and permit
the holding of a free and fair rerun election wherein the
employees can make a free, fair, and reasonable choice
on the question of union representation.
However, the "usual remedy" recommended herein
shall be broadened to include a reading of the notice to
employees, attached hereto, to all employees in the unit
at the time, and the mailing of said notice to all unit em-
ployees employed since September 29, 1978, addressed to
the best, or last known address, in the possession of Re-
spondent. And, also the "solemn reading of this notice to
all employees employed at the time Respondent complies
therewith." This "unusual remedy" is imposed because of
the remote potential that the "suggestion" of the poten-
tial for retaliation created by the massive surveillance
and maintenance of lists of employees in attendance at
the October I union meeting might possibly continue to
exist in the minds of some employees in attendance there.
Accordingly, by compliance with the order set forth
herein as indicated in the section of this Decision entitled
"The Remedy." Respondent may erase the affects of its
unfair labor practices. See Montogmery Ward and Co.,
198 NLRB 52 (1972); California Pellet VMill Company, a
subsidiary of Inger-soil-Rand Company, 219 NLRB 435
(1975); and Central Diagnostic Laboratory, 206 NLRB 754
(1973).
IV. THE REMEDY
Having found that Respondent has committed acts in
violation of Section 8(a)(3) and (1) of the Act, it shall be
ordered to cease and desist therefrom, and from any
other unlawful activity and take certain affirmative ac-
tions designed to effectuate the purposes of the Act.
Such affirmative actions shall include the posting of the
usual informational notice to employees in places where
notices to employees are usually posted in all five of its
Tuscaloosa, Alabama, stores and shall offer immediate
and full reinstatement to its employee Max Elliot Shaw,
to his former position, or if that position no longer exists,
to a substantially equivalent one without loss of seniority
or other employee benefits and make him whole for any
losses he may have sustained as a result of the unfair
labor practices against him with interest thereon to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).26
I have found on the facts of this case that compliance
with the order herein will have the effect of eradicating
the lingering effects of the unfair labor practices commit-
ted by this Employer so that a second election may be
conducted which will provide a more reliable indicia of
whether or not Respondent's employees want the Union
to represent them. However, in order to insure that this
remedy is sufficient to eradicate the effects of such unfair
labor practices, I shall further order that Respondent
mail copies of the attached notice to employees, to the
home addresses of all employees that it has employed
since September 29, 1978, to the date of compliance
herewith. In addition thereto, I shall order that upon the
posting of the attached notice that Respondent, by its
president and general manager, Farrell Hudgins, cause to
have its presently employed employees assembled either
on a storewide basis, or a unitwide basis, and Farrell
shall read this notice to such assembled employees. The
Regional Director for Region 10 shall be notified of the
date on which this shall be done and if he so desires shall
have a representative present at such reading. Respond-
ent shall not during such reading make any statement or
take any other action which shall detract from the prom-
ises it makes to its employees thereby. See United Dairy
Farmers Cooperative Association. supra.
V. THE EFtICTS OF THE UNFAIR lABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, in con-
nection with its business as set forth in section 1. above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and
tends to lead to labor disputes obstructing the free flow
of commerce.
-' Sec. gcerilrll . l s Pluthimg , Ilratingl Co., 138 NL R 716 (1962).
1098
PIGGLY WIGGLY, TUSCALOOSA DIVISION
CONCI.USIONS OF LAW
I. Jurisdiction by the Board is properly asserted in this
proceeding.
2. All full time and regular part-time employees em-
ployed by Respondent at its five Tuscaloosa County, Al-
abama, locations including cashier-secretaries, but ex-
cluding subminimal wage bagboys, divisional office cleri-
cal employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
3. By interrogating its employees concerning their
union membership, activities, and desires, and the union
membership, activities, and desires of other employees;
threatening its employees with loss of jobs if they desig-
nate the union as their bargaining representative: threat-
ening its employees that it would close its stores if they
designate the Union as their collective-bargaining repre-
sentative; promising its employees wage increases or im-
proved benefits if they would refrain from joining or en-
gaging in union activities; by creating the impression that
it had its employees union activities under surveillance
and by engaging in surveillance of its employees union
activities and maintaining lists of employees in attend-
ance at union meetings, Respondent has violated Section
8(a)(1) of the Act.
4. By discharging its employee Max Elliot Shaw on
October 2. and thereafter failing and refusing to reinstate
him to his former position or, to a substantially equiva-
lent one if that position no longer exists, and to make
him whole for any losses he may have sustained by
reason of said discharge, Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
5. Respondent's conduct indicated above had a tend-
ency to interfere with, restrain, and coerce its employees
in the exercise of their Section 7 rights to cast a free and
fair ballot in the election conducted in Case 10-RC-
11556 on December 20, 1978. Accordingly, that election
is hereby set aside and I recommend that it be severed
from Case 10-CA-14283 and remanded to the Regional
Director for the purpose of conducting a second election
among the employees in the unit set forth above, at a
time when he deems that the order herein has been com-
plied with and the effects of Respondent's unfair labor
practices upon its employees has been eradicated so that
they may cast a free and fair ballot.
6. Respondent has not been shown to have violated
the Act in certain particulars set forth in this Decision.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I issue the following:
ORDER 27
The Respondent, Piggly Wiggly, Tuscaloosa Division
Commodores Point Terminal Corporation, Tuscaloosa,
2 In the event no exceptions are filed as provided by Sec I1024h f
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall. as pros ided
in Sec. 102.48 of the Rules and Regulaions,. be adopted by the Board and
become its findings, conclusions, and Order, aind all ohbjecllons thercto
shall hbe deemed waived for all purposes
Alabama, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union membership, activities, and desires and the
union membership, activities, and desires of other em-
ployees.
(b) Threatening its employees with loss of jobs or
other benefits if they designate the Union as their collec-
tive-bargaining representative.
(c) Threatening its employees that it would close some
or all of its stores if they designated the Union as their
collective-bargaining representative with the accompany-
ing loss of jobs.
(d) Promising employees better wages or other benefits
if they refrain from joining or engaging in union activi-
ties.
(e) Creating the impression among its employees that it
had its employees union activities under surveillance and
knew who was participating in such activities.
(f) Surveilling its employees union activities, especially
their union meetings.
(g) Maintaining lists of its employees who were in at-
tendance at union meetings or who otherwise participat-
ed in union activities.
(h) Discouraging membership in Retail Clerks Local
1657, or any other labor organization by discharging any
employee and thereafter failing and refusing to timely re-
instate said employee and make him whole in all other
manners for the discrimination against him with respect
to hire and tenure.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer Max Elliot Shaw immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed, and to make him whole for
any losses he may have sustained by reason of the dis-
crimination against him, with interest thereon as pro-
vided in the section of this Decision entitled "The
Remedy."
(b) Mail a copy of the attached notice marked "Ap-
pendix"2 " to each and every employee employed by Re-
spondent since September 29, 1978, at the last home ad-
dress on file with the employer; post copies thereof at all
of its retail grocery stores in Tuscaloosa, Alabama.
Copies of said notice shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
" IIn the event that his Order is enforced by a Judgmentl f a United
States Court f Appeal,,. the words in Ihis notice rea;ding "P','Icd
Order of the Natlional .;lhbor Relations toa ird shall read "loslcd Puru-
ant to a Judgmell of the niled State C('ourt of Appeals nfolrcing al
Order f the Nona I bor Relations loird
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Convene, during working time, all employees em-
ployed at its five Tuscaloosa, Alabama, stores working in
the appropriate unit, either in individual stores, or as a
group, and have Respondent's General Manager, Farrell
Hudgins, read the assembled employees the contents of
the notice marked "Appendix." As heretofore indicated,
no action of Respondent, by word or otherwise, shall be
done to detract from the promise Respondent makes it
employees by reading said notice to them. The Regional
Office of the Board shall be afforded a reasonable oppor-
tunity to provide for the attendance of a Board agent at
any assembly of employees called for purpose of reading
such notice.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election conducted
on December 20, 1978, in Case 10-RC-11556 be set aside
and that case be remanded to the Regional Director for
the conduct of a second election at a time to be deter-
mined by him when Respondent has complied with this
Order thereby eradicating the effects of its unfair labor
practices upon its employees freedom of choice in the se-
lection of a collective-bargaining representative.
The complaint, insofar as it alleges violations not
found above to have occurred, is hereby dismissed.
1100