Warehouse Groceries Management, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 252 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD252
Warehouse Groceries Management, Inc. and United
Food and Commercial Workers International
Union, AFL-CIO, Local 4422 and Retail
Clerks Local 1657, United Food and Commer-
cial Workers International Union, AFL-CIO. 3
Cases 10-CA-14572, 10-CA-14573, and 10-
CA-14854.
January 14, 1981
DECISION, ORDER, AND REMAND
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On August 12, 1980, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in support of its limited cross-
exceptions and answering brief to the General
Counsel's exceptions.
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,4 and conclusions of the Administrative Law
Judge only to the extent consistent herewith, and
to adopt his recommended Order as modified
herein.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act
by threatening to discharge employees for their
union activities, creating the impression of surveil-
lance of employees' union activities, interrogating
employees concerning union activities, threatening
closure of the facility if the Union were voted in,
and directing employees to avoid a prounion em-
ployee. We also agree that Respondent violated
Section 8(a)(3) of the Act by denying a wage in-
crease to the principal employee organizer. How-
ever, we agree with the General Counsel that the
Administrative Law Judge was incorrect in dis-
The name of Respondent appears as amended at the hearing.
2 The name of this Charging Party, formerly Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL-CIO, Local 442, has
been changed in recognition of the June 7, 1979, merger between the
Retail Clerks International Union and the Amalgamated Meatcutters and
Butcher Workmen of North America.
3 The name of this Charging Party, formerly Retail Clerks, Local
1657, was amended at the hearing in recognition of the merger described
in fn. 2.
4 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.
254 NLRB No. 21
missing three allegations of the complaint, which
concerned additional violations of Section 8(a)(1). 5
1. The complaint alleges that Respondent violat-
ed Section 8(a)(1) of the Act when Vice President
of Human Resources Mark Gregerson solicited
grievances from employees. The Administrative
Law Judge found that one of Gregerson's responsi-
bilities was to travel to Respondent's stores and
meet with employees in an attempt to resolve any
problems, and that his participation in thislactivity
was a continuation of an earlier practice and there-
fore not unlawful. The Administrative Law Judge
thus dismissed that allegation of the complaint.
The record reveals that in mid-February 1979,6
after the union campaign began, Manager Stuart
Pody called employee Carol Abdoo into his office,
where Gregerson was seated. Gregerson told
Abdoo he had heard that some employees felt they
were being treated unfairly and asked Abdoo to
elaborate on any unfairness that was going on in
the store.
We disagree with the Administrative Law
Judge's characterization of this interview as a
"continuation" of Gregerson's normal activities.
Gregerson testified that his usual practice was to
walk down the aisles of Respondent's stores, and
chat with employees who were on the job. There
was no evidence that he had ever called employees
into an office on an individual basis, and he had
never spoken to Abdoo before. It is also significant
that it was Manager Pody who summoned Abdoo
into the office. Shortly before this conversation,
Pody had unlawfully interrogated Abdoo, who at
that time admitted that she had signed an authori-
zation card. It is clear that this interview was a de-
viation from Gregerson's past practice of talking
with employees on a casual basis and that Greger-
son's solicitation of grievances from an admittedly
prounion employee was calculated to undermine
employee support for the Union. 7 Respondent
thereby interfered with and restrained employees in
the exercise of their statutory rights of self-organi-
zation in violation of Section 8(a)(1) of the Act.
2. The complaint also alleges that Vice President
Roger Dreyer threatened employees that Respon-
dent would close the store if the employees desig-
nated the Union as their collective-bargaining rep-
resentative. The Administrative Law Judge found
that Dreyer read a speech to a meeting of employ-
B In the absence of exceptions thereto, we adopt proforma the Admin-
istrative Law Judge's finding that Respondent did not violate Sec. 8(a)(1)
by threatening that jobs for female employees would be eliminated if the
employees selected the Union as their bargaining representative.
a All dates herein are in 1979 unless otherwise indicated.
7 Flight Safety, Inc., 197 NLRB 223, 227-229 (1972).
WAREHOUSE GROCERIES MANAGEMENT. INC.
ees on March 16. A copy of the speech was ad-
mitted into evidence, and it read, in pertinent part:
After all, if the union does call a strike, we'll
only be left with two choices. We can either
close the store down, in which case everyone
loses their job . . . or we can replace the strik-
ers and try to operate the store.
The Administrative Law Judge found that the
speech did not threaten the closure of the store if
the employees .selected the Union, and therefore
dismissed the allegation of the complaint. We dis-
agree with his dismissal.
Although Dreyer did not actually threaten to
close the store if the Union were selected as the
employees' collective-bargaining representative, he
clearly threatened plant closure in retaliation for
another form of protected concerted activity, that
of engaging in a strike. We find that Dreyer's de-
scription of his "first alternative" in response to a
strike, that of closing the store and thus causing all
the employees to lose their jobs, was clearly coer-
cive. Dreyer did not refer to any objective facts,
such as economic necessity, which would cause the
store to close,8 and thus the statement constitutes a
threat of retaliation for engaging in a strike.9 We
therefore find that the speech violated Section
8(a)(l) of the Act.
3. The General Counsel also alleges that Man-
ager Randolph Kelley promised a wage increase if
employees refrained from joining or engaging in
activities on behalf of the Union. The Administra-
tive Law Judge found that, immediately following
the meeting in which Dreyer read the coercive
speech discussed above, cashier LaTonia Jackson
spoke to Kelley in an aisle of the store, complained
to him about not being able to ask questions at the
meeting, and commented, "I think we should be
making more money." Kelley's response was,
"Maybe when all this is over, everyone will get a
raise." The Administrative Law Judge found that
Kelley's remark was ambiguous and made in re-
sponse to Jackson's unsolicited statements, and
therefore did not constitute a promise of a wage in-
crease in violation of Section 8(a)(1). We disagree.
Kelley's remark could hardly be termed "am-
biguous" under the circumstances. Only minutes
before, Dreyer had made a coercive speech in an
antiunion meeting of employees called by Respon-
dent. The conversation was initiated by an employ-
ee complaint that employees had not been able to
discuss Dreyer's remarks in the meeting and ask
questions about them, and a further complaint that
employees were not making enough money. Kel-
a See N.L.R.B. v. Gissel Packing Co., Inc.. 395 U.S. 575, 618 (1969).
9 Stumpf Motor Company. Inc., 208 NLRB 431, 432, 433 (1974).
ley's reference to "when all this is over" clearly re-
ferred to the union campaign. In this context, we
find that Kelley's statement constituted an unlawful
promise of a wage increase which would tend to
interfere with employee exercise of Section 7
rights, and that it violated Section 8(a)(l) of the
Act.'
4. The General Counsel contends that the Union
obtained majority support in the bargaining unit as
of March 13.1' In support of this contention, the
General Counsel introduced 38 authorization cards
for the unit of 72 employees. The Administrative
Law Judge found that two of the cards, those
signed by Linda Vincent and Mike Merchant,
could not be counted, and therefore concluded that
the Union did not achieve majority status.
The Administrative Law Judge rejected the card
purportedly signed by Mike Merchant on the
ground that it was not properly identified, and no
party has excepted to this finding. We conclude
that the remaining 37 cards were properly authenti-
cated and introduced into evidence. 2
With regard to the validity of the card of cashier
Linda Vincent, the Administrative Law Judge
found that she signed it on February 15 and gave it
to Melinda Ziegler, the principal employee orga-
nizer. At the time, Vincent said, "Melinda, swear
to me that nobody will ever find out because I'm
scared I'll lose my job." On February 16, Vincent
said to Ziegler, "Melinda, I'm scared. Tear my
card up." Zeigler told her that the card had al-
ready been given to the Union. The Administrative
Law Judge found that Vincent effectively revoked
her authorization on February 16 by taking reason-
able steps to retrieve her card, and that therefore
her card could not be counted. We disagree.
In TMT Trailer Ferry, Inc.,13 the case upon
which the Administrative Law Judge relied, the
'o Sunset Coffee and Macadamia Nut Co-op of Kona, 225 NLRB 1021
(1976); Central Diagnostic Laboratory. 206 NLRB 754, 764 (1973).
" The parties stipulated, and we find, that the following is an appro-
priate bargaining unit:
All full-time and regular part-time employees employed by the Re-
spondent at its Birmingham, Alabama facility, including all cashiers.
courtesy clerks, security receivers, night and day stock clerks, pro-
duce clerks, floormen, non-food clerks, dairy and frozen food clerks,
and head cashier, and the head stocker, but excluding the store man-
ager. assistant store manager, the shift supervisors, the produce man-
ager, the front end manager, the bookkeeper, all office clericals,
guards and supervisors as defined in the Act, and all other employ-
ees.
12 Respondent does not except to the authorization cards which were
authenticated by their own signers. We find no merit in Respondent's
contention that the testimony of the solicitors of other cards was insuffi-
cient to effectively authenticate them. The Board has uniformly held,
with court approval, that witnesses to the signing of authorization cards
are competent to testify on the authenticity of such cards. See. e.g.
.NL.R.B. v. Economy Food Center, 333 F.2d 468, 471 (7th Cir 1964), Ship
Shape Maintenance Co., Inc., 189 NLRB 395 (1971); Don The Beachcomb-
er, 163 NLRB 275 (1967).
1: 152 NLRB 1495. 1496 (1965).
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board found that two employees effectively re-
voked their cards by seeking out the person who
solicited their signatures and asking that their cards
be returned. The Board noted specifically that
there was no prompting or interference by the em-
ployer in that case, and distinguished the situation
from one in which the employees' revocations
were induced by their employer's acts of threats
and interrogation.' 4
We agree with the General Counsel that the Ad-
ministrative Law Judge's reliance on TMT was
misplaced. Where, as here, the employer has en-
gaged in coercive conduct designed to undermine
union support, the Board presumes that revocation
is a result of the employer's unlawful conduct, and
such revocation is therefore ineffective. 15 In this
case, Respondent embarked on its campaign of in-
terrogation and threats in the first week of Febru-
ary. Vincent signed the card on February 15, and
attempted to retrieve it on February 16; moreover,
in both of her conversations with Ziegler, Vincent
spoke of being afraid. It is clear that Respondent's
course of coercive conduct was well underway
when Vincent asked Ziegler to tear up her card.' 6
Thus we find that Vincent did not effectively
revoke her authorization, and her card will be
counted.
Because the Administrative Law Judge found
that 2 of the 38 cards could not be counted, he
found it unnecessary to rule on Respondent's con-
tentions that other authorization cards should be
rejected. Because we find that Vincent's card
should be counted, we must examine the remaining
cards.
Respondent questions the validity of the authori-
zation card of Vicki Smitherman because Smither-
man was allegedly told by Ziegler that the purpose
of the card was to have the Union investigate and
look around the store. Respondent correctly states
the Board's standard for evaluating authorization
cards when it is alleged that they were soliticted
by misrepresentation:
[E]mployees should be bound by the clear lan-
guage of what they sign unless that language is
deliberately cancelled by a union adherent
with words calculated to direct the signer to
disregard and forget the language above his
signature. [N.L.R.B. v. Gissel Packing Co., Inc.,
395 U.S. 575, 606 (1969).]
'4 Id. at fn. 2. See Abrasive Salvage Company, Inc., 127 NLRB 381, 392
(1960).
1S Quality Markets, Inc., 160 NLRB 44, 45-46 (1966), enfd. 387 F.2d 20
(3d Cir. 1967).
16 This case is thus distinguishable from Production Plating Company,
233 NLRB 116 (1977), cited by Respondent, where we did not count the
card of an employee who revoked her authorization before the employer
committed any unfair labor practices.
However, we find that under this standard, Smith-
erman's card constitutes a valid designation of the
Union as her bargaining representative.
Smitherman testified that Ziegler told her that, if
a certain number of people signed the cards, the
Union "would come in and investigate and . . .
look around." Smitherman testified that Ziegler
said nothing else about the card, and Smitherman
immediately filled out the card and returned it to
Ziegler.
Ziegler denied that she told Smitherman that the
purpose of the card was to have the Union investi-
gate; she testified that she told Smitherman that, if
51 percent of the employees signed cards, the
Union would come in and represent them.
Examining the evidence in the light most favor-
able to Respondent, there was no testimony that
Ziegler "cancelled" the language on the card. The
card's language is unambiguous in designating the
Union as the signer's collective-bargaining repre-
sentative, and Ziegler did not state that it was
"solely" for another purpose or deny the clear lan-
guage on the card. t 7 Therefore, we find that
Smitherman's card constituted a valid designation
of the Union, and it should be counted.
Respondent also contends that the authorization
cards of Karl Jones and Leta Dozier should not be
counted because both employees revoked their au-
thorizations. Karl Jones signed an authorization
card on February 14. Jones testified that on or
about February 29 he approached Melinda Ziegler,
the principal employee organizer, and requested his
card back. Jones' attempt to revoke his authoriza-
tion occurred several weeks after Respondent's un-
lawful activity began; therefore, we find that his at-
tempted revocation was ineffective,' s and his au-
thorization card should be counted.
Leta Dozier executed an authorization card on
February 5 in the presence of Melinda Ziegler.
Dozier testified that she attempted to revoke her
card a day or two later' 9 by telephoning Ziegler
and asking for her card back. Ziegler denied that
she and Dozier discussed the card at all after
Dozier signed it. As mentioned above, the Admin-
istrative Law Judge made no findings as to any
cards other than those of Linda Vincent and Mike
17 See Tipton Electric Company v. N.L.R.B., 621 F2d 890, 895-896
(8th Cir. 1980). Respondent points out that Smitherman testified that she
did not read the authorization card before she signed; this testimony was
contradicted by a questionnaire she filled out for the Board in which she
indicated that she did read the card. We find it unnecessary to reach the
issue. As noted above, Smitherman's testimony did not indicate that
Ziegler's statements about an investigation would direct her to forget the
language on the card. Id.
IR Quality Markets, Inc.. supra. See our discussion of Linda Vincent's
attempted revocation, supra.
19 Dozier's testimony is unclear as to how much time elapsed between
her signing of the card and her attempt to revoke.
254
WAREHOUSE GROCERIES MANAGEMENT. INC.
Merchant; thus, the issue of credibility involved
here was not resolved.
Furthermore, the Administrative Law Judge did
not make a specific finding as to when the unfair
labor practices began.2 0 Thus we cannot determine
whether Dozier's attempted revocation, if it indeed
occurred, took place before Respondent began its
coercive conduct, or was a product of that unlaw-
ful activity.
As Dozier's card is determinative of the issue of
the Union's majority status,2 ' we shall remand the
case to the Administrative Law Judge to make spe-
cific findings as to () whether or not Dozier at-
tempted to revoke her authorization card by call-
ing Ziegler, and (2) whether this attempted revoca-
tion, if it occurred, was subsequent to, and thus a
result of, Respondent's unfair labor practices. If the
Administrative Law Judge finds that Dozier's re-
vocation was not effective, we conclude that the
Union attained majority status on March 13.
5. The complaint alleges that on or about Febru-
ary 20, the Union requested Respondent to bargain
collectively with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, and that Respondent has re-
fused and continues to refuse to bargain collective-
ly with the Union. Respondent admitted in its
answer that a request was made on February 20,
but denies that it refused to bargain in violation of
Section 8(a)(5). The Administrative Law Judge
found that Respondent did not violate Section
8(a)(5) because the Union never attained majority
support. He therefore dismissed that allegation of
the complaint.
We agree with the Administrative Law Judge
that Respondent did not violate Section 8(a)(5)
when Respondent failed to respond to the Union's
February 20 bargaining request. However, we do
not base this conclusion on the finding that the
Union never obtained majority support. 2 2 Rather,
we find that the February 20 request was not valid
because the Union did not have a majority at that
time, and there is no basis in the record for charac-
terizing the demand as "continuing" until March 13
when, as discussed above, the Union may have ac-
quired majority support.2 3 We therefore find that
the General Counsel's allegation that Respondent
20 The Administrative Law Judge's reference to the earliest unfair
labor practice is "about the first week in February.
21 If Dozier's revocation was valid, there are only 36 alid authoriza-
tion cards for the 72-employee unit.
22 Thus we would not find a violation of Sec. 8(aHS) even if the Ad-
ministrative Law Judge. on remand, finds that Leta Dozier's authoriza-
tion card was valid and thus that the Union did attain majority status on
March 13.
23 The facts surrounding the request and refusal were not brought out
at the hearing
unlawfully refused to bargain with the Union in
violation of Section 8(a)(5) should be dismissed.
6. The General Counsel argues that Respondent's
numerous unfair labor practices and the lingering
effects of its past practices make the holding of a
fair election unlikely, and that Respondent's con-
duct may be remedied only by the imposition of a
bargaining order. Respondent contends that we
cannot issue a bargaining order in favor of the
Retail Clerks Local 1657, United Food and Com-
mercial Workers International Union, AFL-CIO, 24
because this Union was not designated as bargain-
ing representative by the employees in the unit.
The authorization cards read that the "under-
signed hereby authorize(s) Retail Clerks Interna-
tional Association, AFL-CIO,2 5 or its chartered
local organization to represent me .... " Respon-
dent contends that the cards do not authorize rep-
resentation by the United Food and Commercial
Workers International Union, AFL-CIO, and thus
a bargaining order cannot issue in favor of that
Union, or its Local 1657. Respondent also urges
that the Union authorized by the cards, Retail
Clerks International Association, ceased to exist on
June 6, 1979. We find no merit in Respondent's
contention.
On June 6, 1979, the Retail Clerks International
Association and the Amalgamated Meat Cutters
and Butcher Workmen of North America 2 6
merged to become the United Food and Commer-
cial Workers International Union, AFL-CIO.2 7
Under the terms of the merger agreement, neither
the Retail Clerks nor the Meat Cutters has been
dissolved, terminated, or discontinued, but both are
continued as a single organization, the Food and
Commercial Workers. The Food and Commercial
Workers draws its International officers from both
of the old Unions: the former International presi-
dent of the Retail Clerks is now the International
president of the new organization; the International
secretary-treasurer of the Meat Cutters became the
secretary-treasurer of the Food and Commercial
Workers; and the International president of the
Meat Cutters and the International secretary-trea-
surer of the Retail Clerks are now executive vice
presidents of the Food and Commercial Workers.
The agreement also provides that International vice
presidents of both organizations, 25 from the Retail
Clerks and 23 from the Meat Cutters, shall be In-
ternational vice presidents of the merged Union.
All members of the Meat Cutters and the Retail
24 This name was changed at the hearing. over Respondent's objec-
tion, from Retail Clerks. Local 1657.
2S Hereinafter referred to as the Retail Clerks.
z2 Hereinafter referred to as the Meat Cutters.
27 Hereinafter referred to as the Food and Commercial Workers.
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerks became members of the Food and Commer-
cial Workers as of the date of their original mem-
bership in the constituent Unions, by virtue of the
merger agreement, and all employees of both
groups remain employed by the merged Union.
The agreement provides that all locals retain
their charters and become chartered bodies of the
Food and Commercial Workers. In recognition of
the autonomy of the chartered bodies, the Food
and Commercial Workers allows some discrepan-
cies between the constitutions and bylaws of the
locals and those of the merged organization. All
property and all rights and obligations are trans-
ferred to the Food and Commercial Workers as of
the effective date of the merger. The agreement
specifically provides that the merged organization
assumes and is responsible for all debts, liabilities,
contract obligations, and other obligations of the
Retail Clerks and the Meat Cutters.
We find that the Food and Commercial Workers
succeeded to the representational rights of the
Retail Clerks. In American Enka Company, a Divi-
sion of Akzona Incorporated, 231 NLRB 1335, 1336-
37 (1977), the Board considered several factors of
the merger agreement between the Textile Workers
Union of America and the Amalgamated Clothing
Workers of America, and concluded that the
merged organization, the Amalgamated Clothing
and Textile Workers Union, succeeded to the rep-
resentational rights of the Textile Workers Union
of America. All of these factors are present in the
merger agreement forming the Food and Commer-
cial Workers.
It is clear that the merged organization has as-
sumed all assets and liabilities, including contract
obligations, of the two Unions. Furthermore, all ex-
isting locals retain their personnel; thus, the local
bargaining representatives of the Retail Clerks con-
tinue to perform as local representatives of the
Food and Commercial Workers, and day-to-day
operations have remained as they were before the
merger. We therefore find that the United Food
and Commercial Workers International Union,
AFL-CIO, is a continuation of the Retail Clerks
International Association and the Amalgamated
Meat Cutters and Butcher Workmen of North
America and has succeeded to the representational
rights of both Unions. 28 Having so found, we con-
clude that, should the Administrative Law Judge
find that a card majority exists herein, a bargaining
order may issue in favor of Retail Clerks Local
1657, United Food and Commercial Workers Inter-
national Union, AFL-CIO.
28 See also Pearl Bookbinding Company, Inc., 206 NLRB 834 (1973);
Lloyd A. Fry Roofing Co., 118 NLRB 587 (1957); National Carbon Compa-
ny, a Division of Union Carbide and Carbon Corporation (Edgewater
Works), 116 NLRB 488 (1956).
Should the Administrative Law Judge find that
the Union attained majority status, we will agree
with the General Counsel that a bargaining order is
the appropriate remedy. The record reveals that
Respondent confronted the employees' interest in
organization soon after it started in early February
with several instances of interrogation accompa-
nied by threats of discharge and plant closure to in-
dividual employees. These threats came from three
management officials including Vice President of
Human Resources Mark Gregerson, who told em-
ployee Frances Wilson that the Company "had had
the problem before and they had closed stores be-
cause of this problem." Meat Market Manager
Gene Taylor told employee Carol Abdoo that he
had been involved in another organizational cam-
paign where "things got rough," and the employ-
ees "didn't last six weeks after we got it squashed."
Management officials gave an employee the im-
pression of surveillance of her union activity, and
one instance of interrogation was followed by the
solicitation of grievances.
In March, Respondent stepped up its campaign.
On March 16, General Manager Roger Dreyer
read a speech to two separate groups of employees
in which he threatened to close the plant. After
one of the meetings, cashier LaTonia Jackson was
told, "Maybe when all this is over, we'll all get a
raise." On March 26, Melinda Ziegler, the principal
employee organizer, was told, "[Y]ou would have
been the highest paid cashier in the store, if it
wasn't for this union business." An employee was
instructed by management to avoid a prounion em-
ployee. The coercive conduct culminated in an
unfair labor practice strike on May 4. At least one
employee, Melinda Ziegler, was still on strike at
the time of the hearing.
This coercive activity on the part of Respondent
was intended to dissipate union support, and we
find that it made the holding of a fair election an
unlikely possibility. Respondent's constant refer-
ence to its intention to close the store if the Union
were selected was particularly destructive. The
Board has long held that the threat of job loss
through plant closure seriously interferes with the
employees' ability to freely make choices in the
election of a collective-bargaining representative. 29
Here, Respondent implied that it had closed stores
before, and coupled these threats with the denial of
a wage increase to the principal employee organiz-
er because of her union activity.
Respondent has thus demonstrated its willingness
to penalize employees for their union support. This
29 See STE-MEL Signs. Inc., 246 NLRB 1110 (1979); General Stencils.
Inc., 195 NLRB 1109 (1972)
256
WAREHOUSE GROCERIES MANAGEMENT, INC.
kind of conduct renders slight the possibility of
erasing its effects and ensuring a fair election
through traditional remedies. We therefore con-
clude that, should the Administrative Law Judge
determine that the Union obtained majority status,
employee sentiment once expressed through au-
thorization cards can be best protected by a bar-
gaining order.
Having found that Respondent engaged in unfair
labor practices, the Administrative Law Judge rec-
ommended that it be ordered to cease and desist
therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. Al-
though we must await the Administrative Law
Judge's Supplemental Decision to determine
whether a bargaining order can issue in this case,
we shall now issue an Order specifically remedying
those violations found herein and by the Adminis-
trative Law Judge. In view of the serious and egre-
gious nature of the violations in this case, we shall
issue a broad order to remedy the effects thereof.3 0
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as it Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Warehouse Groceries Management, Inc., Birming-
ham, Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Delete paragraph l(g) and insert the following
as paragraphs l(g), (h), (i), and (j):
"(g) Soliciting employee grievances in order to
undermine support for a union.
"(h) Threatening to close the store if employees
engage in a strike.
"(i) Promising employees economic benefits in
order to undermine support for a union.
"(j) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to Administrative Law
Judge Marion C. Ladwig to reevaluate the record
evidence in order to make credibility resolutions
concerning the alleged revocation of an authoriza-
tion card by Leta Dozier, and to make a finding
whether that revocation, if it took place, occurred
before Respondent began its campaign of unfair
labor practices.
30 Cf. Hickmott Foods. Inc., 242 NLRB 1357 (1979).
IT IS ALSO FURTHER ORDERED that the Adminis-
trative Law Judge shall prepare and serve on the
parties a Supplemental Decision containing credi-
bility resolutions, findings of fact upon the entire
record, conclusions of law, and recommendations;
and that, following service of the Supplemental
Decision on the parties, the provisions of Section
102.46 of the Board's Rules and Regulations, Series
8, as amended, shall be applicable.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives 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.
WE WILL NOT deny you a wage increase or
otherwise discriminate against any of you for
supporting Retail Clerks Local 1657, United
Food and Commercial Workers International
Union, AFL-CIO, or any other union.
WE WILL NOT coercively question you
about union activities, union support, or union
sympathies.
WE WILL NOT threaten to discharge you if
you support a union.
WE WILL NOT threaten to close the store if
you select a union.
WE WILL NOT create the impression that we
are keeping your union activities under surveil-
lance.
WE WILL NOT direct any of you to avoid
any employee for organizing or supporting a
union.
WE WILL NOT solicit your grievances in an
attempt to undermine your support for a
union.
WE WI.L NOT threaten to close the store if
you engage in a strike.
WE WILL NOT promise you economic bene-
fits in order to undermine your support for a
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights mentioned above.
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL give Melinda Ziegler a wage in-
crease, effective March 26, 1979, and pay her
for the withheld increase, plus interest.
WE WILL, upon application, reinstate strik-
ing employees to their former or substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges, dis-
missing persons hired on or after May 4, 1979,
if necessary, to make room for them, and give
them backpay and interest if they are not
timely reinstated.
WAREHOUSE GROCERIES MANAGE-
MENT, INC.
DECISION
ST ATIMENT or THE CASI
MARION C. LADWIG, Administrative Law Judge:
These consolidated cases were heard at Birmingham, Al-
abama, on January 14-16 and February 4-6, 1980. The
charges were filed by Meatcutter Local 4421 on April
17, 1979,2 and by Retail Clerks Local 16573 (herein also
called the Union) on April 17 and July 25, and consoli-
dated complaints were issued on July 12 and September
14. The primary issues are whether Warehouse Groceries
Management, 4 the Respondent, after the Union began an
organizational drive at the Birmingham store: (a) coer-
cively interrogated employees, (b) threatened to dis-
charge employees, (c) threatened to close the store, (d)
created the impression of surveillance, (e) threatened to
eliminate female employees, (f) directed employees to
avoid employee organizers, (g) discriminatorily denied a
wage increase to the principal employee organizer, (h)
discriminatorily denied a day off to another union sup-
porter, (i) unlawfully solicited grievances, and (j) prom-
ised employees a wage increase; whether the May 4
strike was an unfair labor practice strike; and whether a
bargaining order is appropriate to remedy the alleged
violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act.
Upon the entire record,5 including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Company, I make the following:
I The name of this Meatcutters local is changed to reflect the new
name resulting from the June 7, 1979, merger of Retail Clerks Interna-
tional Union and Amalgamated Meatcutters and Butcher Workmen of
North America.
All dates are in 1979 unless otherwise indicated.
: The name of this Retail Clerks local was amended at the hearing to
reflect the new name.
4 The name of the Company appears as amended at the hearing.
" The following documents from the International's office are received
as Respondent exhibits: Resp. Exh. 13-1, cover and president's page from
February 1979 "Butcher Workman"; Resp. Exh. 13 2. cover and presi-
dent's comments from March 1979 "Advocate"; and Resp. Exh. 13-3,
UFCW authorization card.
FININCiS of FACT
I. JURISI)ICIION
The Company, an Alabama corporation, is engaged in
the retail grocery business in Birmingham, Alabama, and
other cities where it annually purchases goods valued in
excess of $50,000 directly from outside the State and has
a gross volume of business in excess of $500,000. The
Company admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. AI.I.GI) UNIAIR ABOR PRACTICES
A. Interrogation, Threats, and Other Coercion
1. By Gene Taylor
Threats and impression of surveillance: Around the first
of February, union organizing began at the Birmingham
store on behalf of the Meatcutters local in the meat
market and on behalf of the Union in other areas of the
store. (The store had opened on August 27, 1978. The
Company had 10 other nonunion stores; a 12th store, in
La Grange, Georgia, had previously been closed.) About
the first week in February, as meat merchandiser Carol
Abdoo credibly testified, Meat Market Manager Gene
Taylor called her into the market office. He told her, "I
know there's been some union activity going on in this
store. I know you and [meat market employees] Delores
and Bo and Jimmy have already signed cards." Abdoo
responded, "Yes, sir, that is right." Then Taylor said, "It
won't work. I've seen it happen too many times. I was in
La Grange, Georgia, when they tried to organize, and I
can tell you that things do get rough, and I will tell you
something else, the people that were working for me
didn't last six weeks after we got it squashed." He added,
"I can be a nice guy, but I can be nasty." (Taylor testi-
fied that he had worked in the La Grange store, but he
denied having the conversation with Abdoo. He did not
impress me as being a candid witness, and I discredit his
denial. Abdoo, on the other hand, impressed me as being
an honest witness. She readily admitted on the stand-as
well as at the time-that she had signed the name of
meat market employee Gene Atkins to a Meatcutters au-
thorization card, thinking that he had given her his
verbal permission. I noted that she was reluctant at first
to implicate another employee when asked who forged
John McGraw's card and who forged Larry Bishop's
card for the Meatcutters-testifying, "I don't know . . .
I don't know whether I would like to be the person to
tell." However, at my request, she did identify the em-
ployee, Delores Hardisty.) Whether or not it was true
that there had been a union campaign at the La Grange
store, I find that Taylor's statements to Abdoo about
things getting "rough," his being able to be "nasty," and
employees not lasting 6 weeks after the union campaign
was "squashed" constituted at least an implied threat of
discharge if the employees supported a union and violat-
ed Section 8(a)(1) of the Act. Particularly in this context,
I find that his statements to Abdoo that he knew that
258
WAREHOUSE GROCERIES MANAGEMENT. INC.
there was union activity in the store and that three of the
meat market employees had signed authorization cards-
giving the impression of surveillance of union activities-
were coercive and tended to interfere with employee
Section 7 rights, in violation of Section 8(a)(l) of the
Act.
Threat: According to meat wrapper Delores Hardisty,
Market Manager Taylor talked to her in the office about
the middle of February and told her that the Company
would close the store before they let a union in. Howev-
er, she did not impress me as being a trustworthy witness
and I do not rely on the accuracy of her testimony. I
therefore find that the allegation of this threat of closure
must be dismissed.
I note that, after the wrongful signing of one Meatcut-
ters authorization card by Abdoo and three by Hardisty
were revealed, the Meatcutters local abandoned the or-
ganizing effort among the meat market employees.
2. By Stuart Pody
Threat and interrogation. Also in early February, Di-
rector of Perishables Stuart Pody spoke to employee
Abdoo in the meat market office. As Abdoo credibly tes-
tified, "Mr. Pody asked me if I knew anything about any
of the union activity going on in the store." She admitted
that she did and that she had signed one and passed out
other authorization cards. "He asked me why did we
want a union." After a long discussion, he finally stated,
"Well, it really doesn't matter anyway. This company
will never let a union in the store. They'll close it up
first and they'll just take all the stock and the fixtures
and move it to another location." (Pody testified that
nobody gave him any guidelines for discussing the union
with employees, and claimed that he was "not really"
concerned about the union organizing, that it was Abdoo
who raised the subject of unions, that she told him that
she had signed a card, and that he responded that "that
was up to her." He impressed me as being less than
candid, and I discredit his denials of Abdoo's testimony.)
Accordingly, I find that Pody threatened closure of the
store if the employees supported a union, and further
find, in this context, that his interrogation of Abdoo
about the union activity and the reasons for wanting a
union tended to be coercive, violating Section 8(a)(l) of
the Act.
Threats and interrogation: Pody also talked to employee
Francis Wilson alone in the meat office. After telling her
that she had been a good employee, Pody asked her
"who was passing the union cards around through the
store." When she refused to discuss it, as she credibly
testified, Pody told her that "we've got a young . . .
growing company here," and "because it creates prob-
lems for the management . . . we're not going to have a
union coming in here and telling us how to run our busi-
ness." He then said, "I know that Mr. Pete Gregerson
owns the company . .. I know him very well . . . he
will close this store up first, and that's putting the guilty
and the innocent out of a job." (I discredit Pody's den-
ials, and specifically discredit his claim that he told
Wilson, "We have no intentions of closing any store.") I
find that Pody's statements to Wilson that "we're not
going to have a union coming in here," that the owner
would "close the store up first," and that that would be
"putting the guilty and the innocent out of a job." consti-
tuted both a threat to close the store if the employees se-
lected a union and a threat to discharge employees for
supporting a union, in violation of Section 8(a)(1) of the
Act. I also find that in the context of these threats, the
interrogation of Wilson about "who was passing the
Union cards around through the store" tended also to be
coercive and violated Section 8(a)(1) of the Act.
Interrogation: In still another conversation about the
union organizing with a meat market employee alone in
the meat office in February, Pody spoke with meatwrap-
per Betty Dunn. As she credibly testified, Pody "asked
me if I thought I needed someone to represent me." She
did not answer and they proceeded to talk about her se-
niority, her rate of pay, and her shift. He told her she
was a good worker, said he thought she should get top
pay and a choice of shift, and promised that "when all
the union stuff is over" she would get them. (I discredit,
as fabrications, Pody's testimony that he did not know
about the organizing campaign when he spoke to Dunn
in February, and that when he asked her if there were
anything that he could help her with "She asked me if I
knew that there were some cards being signed." Dunn
appeared to be an honest, forthright witness, and I dis-
credit Pody's denials of her testimony.) Particularly in
view of Pody's comment about what would happen
"when all the union stuff is over," I find that he coer-
cively interrogated Dunn about whether she "needed
someone to represent" her, further violating Section
8(a)(l) of the Act.
3. By Randolph Kelley
Interrogation: A few days after Perishables Director
Pody coercively interrogated meatwrapper Dunn in the
meat market office, Shift Manager Randolph Kelley in-
terrogated her in the breakroom about the union organiz-
ing in the market. As she credibly testified, Kelley
"asked me what was all that union talk about in the
market." When she answered that she did not know, he
said, "Well, you know, I was going to try to talk you
out of it." (From his demeanor on the stand, Kelley did
not impress me favorably as a witness. I discredit his
denials of this interrogation.) I find that this additional
interrogation, in the absence of any justification, without
assurances of nonreprisals, and in the context of the
threats and other coercive conduct in the Company's an-
tiunion campaign, was also coercive and violated Section
8(a)(1) of the Act.
Interrogation: About the middle of February, Kelley
also interrogated stocker Kelvin Perry. Kelley ap-
proached Perry in the aisle and, as Perry credibly
testified,"he asked me, did I know anything about the
Union being formed in the store." Although Perry had
signed an authorication card a few days earlier, he an-
swered no. Then Kelley "asked me did I know anyone
passing out union cards." Perry again said no, and
Kelley said, "Some lady gave me your name." Perry
denied knowing anything about it and Kelley, after a
pause, said, "You're okay," and walked off. (Kelley
claimed that he told Perry "that I had information that
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had signed a union card," and testified that he did so
because he wanted to "find out was it true." Perry im-
pressed me as being the more trustworthy witness, and I
credit his version of the conversation.) In view of the at-
mosphere of coercion created by the Company's threats
and other unlawful conduct, I find that Kelley's interro-
gation of Perry without justification or assurances of
nonreprisals tended to be coercive and violated Section
8(a)(1) of the Act.
Interrogation: Later in February, Kelley not only inter-
rogated one of the employees, but attempted to force
him-through intimidation-to reveal the identity of the
union organizers.
The employee was Charles "Eddie" White, who was
assisting employee organizer Melinda Zeigler in getting
authorization cards signed. Before White joined in the
organizing, Kelley had talked about getting him promot-
ed to management.
In the latter part of February, as credibly testified by
White (who impressed me by his demeanor on the stand
as being a very sincere, forthright witness), Kelley called
him into the store manager's office and asked, "Why are
you all in this union mess?" White said he did not know
much about it, and Kelley stated, "Well, what if I told
you I could bring somebody in this room right now that
would say that they gave you a card and you signed it?"
When White said he thought Kelley was bluffing, Kelley
said he knew that White and Operations Vice President
Len Kulas were "real good friends" because of White's
friendship with Kulas' son, and "that he would hate to
have to tell them that I was fixed up in all this union
stuff, when he didn't want me . . . to lose friends with
him." (A short time before, White had stayed overnight
in the Kulas' home.) Kelley mentioned how well he and
White had "got along" together; said, "You are such a
good kid . . . I don't see why you want to go and get
into this," and kept talking about how White "could
move up" because he was smart and "didn't need people
to get" him "in this mess." Kelley asked if White had
been offered a union authorization card, and White ad-
mitted it but falsely denied signing the card (explaining
on the stand, "I lied to him then because I didn't want to
lose my job"). Kelley stated that, if White would tell
who was passing out union cards, "he wouldn't say any-
thing," but White responded, "I promised I wouldn't
tell." Kelley then made the threat that he would call
Human Resources Vice President Mark Gregerson "and
Mr. Kulas and my manager, and several others, in there
and they would all question me if I wouldn't tell who
was passing out union cards; and I told him I was going
to call his bluff. I still wouldn't tell him." (When called
as a defense witness, Kelley denied knowing that White
supported the Union. He admitted having a conversation
with him in the manager's office, but claimed that he did
so because White "was lacking in production." Concern-
ing whether he asked White if he were involved with the
Union, Kelley claimed, "No, I didn't directly ask him
was he involved with the union. At that time, he told me
that he wanted me to know that he wasn't a union orga-
nizer, that he had nothing to do with organizing," and "I
told him, "That's fine." Kelley further claimed, "I didn't
ask Eddie White was he involved with the union," but "I
told him that I had information that he signed a union
card," and nothing else. The Company argues in its brief
that "Mr. Kelley's testimony to his conversation is more
credible that Mr. White's version." I disagree.) I find
that Kelley's interrogation of White was clearly coer-
cive, and violated Section 8(a)(l) of the Act.
Promise. In March, after one of the Company's antiun-
ion meetings, cashier La Tonia Jackson (as she credibly
testified) spoke to Kelley in the aisle, complained about
not being able to ask questions at the meeting, and com-
mented, "I do think we should be making more money."
Kelley responded, "Maybe when all this is over, every-
one will get a raise." (Kelley did not concede making
this statement to her.) In agreement with the Company, I
find that this "ambiguous remark," made in response to
the unsolicited statements of the employee, did not con-
stitute the alleged promise to give a wage increase if the
employees refrained from union activity. I therefore find
that the allegation must be dismissed.
4. By Ed Swyner
Direction to Avoid. Stocker Kelvin Perry credibly testi-
fied that about the third week in March, Shift Manager
Ed Swyner approached him at the front of the store and
"told me that he didn't want me to hang around Eddie
White" (the employee who was assisting cashier Zeigler
in getting authorization cards signed), and "told me that
Eddie just wanted to influence me to join the Union."
Perry responded that he was not going to stop being
White's friend just because of union activities. (Although
admitting knowledge that White was an active union
supporter, Swyner denied saying anything to Perry
about a union. Swyner claimed that White had asked
Perry to go with White to a party, and that he told
Perry, "You don't want to go out with Eddie; he's bad
news." From their demeanor on the stand, Perry im-
pressed me as being the more trustworthy witness and I
credit his version of the conversation.) Despite Perry's
response, I find that Swyner's direction to Perry-that
he did not want Perry "to hang around Eddie White"
because "Eddie just wanted to influence" Perry to join
the Union-tended to interfere with employee Section 7
rights and violated Section 8(a)(1) of the Act.
5. By Mark Gregerson
Soliciting Grievances. The complaint alleges that Vice
President of Human Resources Mark Gregerson unlaw-
fully, about February 10 and 15, "solicited its employees
concerning grievances" they had. However I agree with
the Company that part of Gregerson's job, both before
and after the beginning of the union organizing, was to
travel to the Company's various stores, to meet with in-
dividual employees, and to attempt to resolve their prob-
lems. I find that his continuation of this practice was not
unlawful, and therefore find that this allegation must be
dismissed.
Threat. About the middle of February, as employee
Frances Wilson credibly testified, Gregerson met her in
the office, said "he understood that there were union
cards being passed around the store," said that "some
companies needed a union" but that "this company did
260
WAREHOUSE GROCERIES MANAGEMENT. INC.
not need a union and didn't intend to have one, and that
they would be talking with me later on." Gregerson also
told her "that they had had the problem before and they
had closed stores because of this problem." (I discredit
Gregerson's denial that he ever had a conversation with
Wilson about the Union.) Whether or not it was true that
the Company had closed stores because of the union
problem. I find that Gregerson's statement that the Com-
pany "didn't intend to have" a union and "they had
closed stores because of this problem" constituted at
least an implied threat to close the store if the employees
designated a union and violated Section 8(a)(1) of the
Act.
Threat. According to cashier Linda Elrod, she talked
to Gregerson in the breakroom about the middle of
March, asked about borrowing money from the credit
union to buy a car, asked him what would happen if the
union came in, and "he said that it wouldn't, that the
store would close and be opened under a different
name." However, as credibly testified by cashier Melinda
Zeigler (who impressed me most favorably as a witness),
she was present when Elrod talked over the telephone to
Gregerson about the car loan and about whether the
store would be closed, and Gregerson assured her that
the store was not going to close. I discredit, as a fabrica-
tion, Elrod's testimony about the threat and find that the
allegation of this closure threat must be dismissed.
Having found that Elrod gave fabricated testimony, I
do not rely on the accuracy of her disputed testimony in
support of the allegation that Front End Manager Tim
Franklin unlawfully interrogated her on April 3.
Threat. According to cashier Beverly Willoughby, in
the middle of March she attended a cashiers meeting in
the breakroom in which Mark Gregerson told the cash-
iers that if the Union went through, they would close the
store and open it with new employees under the name
"Super Value." She testified that La Tonia Jackson was
one of the cashiers present. However, Jackson testified
that, at the meeting she attended with various cashiers in
March, Board Chairman Peter Gregerson said that they
would not close the store. (Jackson appeared to be a
credible witness.) I discredit Willoughby's claim that
Mark Gregerson made the closure threat at the meeting,
and also her claim that she later overheard him tell Store
Manager Ray Kugler "that he would close the doors." I
therefore find that the allegation that Mark Gregerson
threatened store closure must be dismissed. Finding this
testimony not to be credible, I do not rely on the accura-
cy of her testimony that Store Manager Ray Kugler
twice, in March and April, directed her to stay away
from employee organizer Melinda Zeigler.
Threat. Employee Wilson credibly testified that in a
meeting of meat market employees in April, some of the
men "brought it up that they had been down to some of
the union stores here in town, and they didn't have many
women working in the market." Mark Gregerson re-
sponded that "they paid such high wages that they could
use the men to run the machines and unload the truck
and everything, so that was a good idea." The complaint
alleges that Gregerson thereby "threatened its employees
that jobs for female employees would be eliminated if
they designated the Union as their bargaining representa-
tive." However, in agreement with the Company, I find
that Gregerson's statement is too ambiguous to support
the allegation of such a threat. I therefore find that the
allegation must be dismissed.
6. By Roger Dreyer
Threat. On March 16, General Manager Roger Dreyer
read a speech to two separate groups of employees.
Cashier Zeigler, who attended one of these meetings,
gave testimony in support of an allegation that Dreyer,
in the speech, threatened employees with store closure if
they selected the Union. Although Zeigler was able to
recall much of the speech, I find that she was mistaken
in recalling two parts of it. She recalled that when
Dreyer referred to the February closing of the Foodway
store in Sumiton, Alabama, after the union called a
strike, Dreyer said that "The employees were fired and
the store closed." The written speech instead read, "the
store had closed-and all the employees had lost their
jobs." She also recalled that later in the speech, Dreyer
said that if the employees did strike, the Company would
have two choices: "No. 1, close the store; No. 2, fire the
employees and hire new workers." The speech, however,
read: "if the union does call a strike, we'll only be left
with two choices. We can either close the store down, in
which case everyone loses their jobs like that happened
up in Foodway in Sumiton, or we can replace the strik-
ers and try to operate the store." I find that the speech,
as read by Dreyer, does not threaten the closure of the
store if the employees selected the Union. I therefore
find that this allegation must be dismissed.
B. Alleged Discrimination
1. Denial of wage increase
Cashier Melinda Zeigler was the principal employee
organizer in the store. Around March 26, as she credibly
testified, she approached Shift Manager Kelley at the
front office and asked to talk with him. At his sugges-
tion, they went to the back office where she asked,
"Randolph, why is there so much tension around? What
is wrong?" Kelley answered, "It's because of all this
union business," and asked, "Why can't we call this
whole thing off? Why can't we go back and be like we
were before?" Zeigler said it was too late, that she was
determined to see the store become union, and that she
was going to work hard at it. He asked why and she said
they had been treated unfairly. "I was promised a raise. I
worked hard for it. I did a lot of extra things that you
asked me to do. And the promises weren't kept." Kelley
then revealed: "There's been several managers' meetings
held lately and your name was brought up in these meet-
ings." He continued, "By now, you would have been the
highest paid cashier in the store, if it wasn't for this union
business." (Emphasis supplied.) She responded that if that
was the way it was, then she would have to see it
through and left the office. (Kelley denied telling Zeigler
about the meetings and denied telling how she would
have been the highest paid cashier if it had not been for
her union activities. However, he impressed me unfavor-
ably as a witness, appearing to be willing to give what-
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever testimony might help the Company's cause; whereas
Zeigler impressed me as being a most sincere witness,
doing her best to give an accurate account of what hap-
pened. I credit her testimony and discredit his denials.)
By his admission to her, Kelley revealed that by March
26, the Company had denied Zeigler a wage increase to
that of the highest paid cashier because of her union ac-
tivity. I therefore find, as alleged, that the Company un-
lawfully discriminated against her in violation of Section
8(a)(3) and (1) of the Act.
2. Denial of day off
According to cashier Linda Elrod (who, as found
above, gave fabricated testimony about a closure threat
by Vice President Gregerson), Shift Manager Swyner re-
fused to permit her to leave work one evening in April
when she said she was not feeling well. She claimed that
Swyner said, "You ask Melinda or your other union bud-
dies if you can have off. Ask them for any favors you
want because I'm not doing you any favors." Swyner, on
the other hand, testified that he had been having trouble
with her giving false reasons for missing work, and that
on this occasion he told her, "You are scheduled to
work, and I need you, and I can't get anyone else at this
time"-saying nothing about Melinda Zeigler or the
Union.
In view of the fabricated testimony she gave, I do not
rely on the accuracy of Elrod's version of what occurred
on this occasion. I therefore find that the allegation that
she was discriminatorily denied a day off must be dis-
missed.
C. Unfair Labor Practice Strike
As the leading union organizer in the store, cashier
Zeigler was receiving complaints from employees in both
the meat market and other areas of the store about the
way they were being treated-particularly the repeated
interrogation. Stocker Perry told her about Shift Man-
ager Kelley interrogating him about his knowledge of
union organizing in the store and of "anyone passing out
union cards." Meat wrapper Dunn told her and other
employees about Perishables Director Pody's interrogat-
ing Dunn and making Dunn promises "when all the
union stuff is over."
Zeigler discussed with other employees the harass-
ment, the questioning by management personnel about
who signed cards and who were handing out cards, and
the talk about the store closing. Finally on Wednesday
evening, May 2, one of the employees she had been dis-
cussing this with, cashier Shyrln Drawhorn, telephoned
her from work and she told Drawborn, "If enough
people are ready to go on strike, then I'll come into the
store, and we'll all leave at the same time," Zeigler did
on Friday morning, May 4, and she and six other em-
ployees on duty (including four meat department em-
ployees) immediately went on strike. That afternoon they
began passing out handbills which asked customers not
to patronize the store "DUE TO THE UNFAIR
TREATMENT WE HAVE RECEIVED SINCE
TRYING TO ORGANIZE A UNION," (At least
Zeigler still remained on strike at the time of the hear-
ing.)
Apparently in reference to the evidence, discussed
above, of repeated threats (by Meat Market Manager
Taylor, Perishables Director Pody, and Vice President
Gregerson) that the store would close and/or employees
discharged, the Company argues in its brief that "any
threat of store closure would have been de minimis in
light of the Respondent's Chairman of Board, Mr. Peter
Gregerson, telling all employees that the store would not
close. This is not persuasive. Peter Gregerson's statement
was not made at a storewide meeting. Although he did
make such a statement at one of many group meetings
held, and Vice President Mark Gregerson once made a
similar statement to employee Elrod, the Company was
not eliminating the fear of store closing from its antiun-
ion campaign. The Company distributed to all employees
a pamphlet which showed the picture of two closed
A&P stores, stated that "The Retail Clerks Union was in
both these stores . . . Nobody works at either of these
stores anymore-They Closed!" and urging employees to
vote no for "real job security." Mark Gregerson testified
that he was probably averaging a couple of meetings
with employees a week, and that when discussing the
pamphlet with the employees, "It could have been tied
in indirectly for union activity for their store closing."
He also admitted discussing in group meetings the clos-
ing of the unionized store in Sumiton (also discussed at
length in General Manager Dreyer's prepared speech on
March 16), and pointing out, "And the same thing could
happen here."
D. Refusal To Bargain
I. Appropriate bargaining unit
The parties agree that the following is an appropriate
bargaining unit:
All full-time and regular part-time employees em-
ployed by the Respondent at its Birmingham, Ala-
bama facility, including all cashiers, courtesy clerks,
security receivers, night and day stock clerks, pro-
duce clerks, floormen, non-food clerks, dairy and
frozen food clerks, and head cashier, and the head
stocker, but excluding the store manager, assistant
store manager, the shift supervisors, the produce
manager, the front end manager, the bookkeeper, all
office clericals, guards and supervisors as defined in
the Act, and all other employees.
The parties stipulated that on March 13, the date the
General Counsel contends the Union was able to estab-
lish itself as the majority representative, the bargaining
unit included 71 of the 72 persons on the March 9 voter
eligibility list, General Counsel Exhibit 4. (Union Orga-
nizer James Richardson recalled that the Union's election
petition was "pulled" on March 14). They are in dispute
over whether the 72d person on the list, Burt Russell,
should be excluded as a supervisory employee.
Until March 10, Russell was one of four or five pro-
duce clerks working under Produce Manager Joe
Lemons. Russell's employment application shows that he
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WAREHOUSE GROCERIES MANAGEMENT, INC.
had had 8 years of previous experience as a produce
manager when he was hired in August 1979 at $4.75 an
hour, about $1 more than any of the other produce
clerks. His rate of pay was increased to $5 an hour on
October 12, 1978, and to $325 a month on May 14, when
he was promoted to produce manager, placed on salary,
and covered by the supervisors' benefit plan. When
Lemons left on March 10, according to Perishables Di-
rector Stuart Pody, Produce Merchandiser Ted Crouch
was temporarily placed in charge of produce at the Bir-
mingham store, and Russell was not given any supervi-
sory authority until his promotion over 2 months later.
Neither Russell nor any of the produce clerks was called
to testify about Russell's duties after Lemons' departure,
and the General Counsel offered no evidence that Rus-
sell was in fact supervising the other produce clerks in
the meantime. I therefore find that the General Counsel
has failed to prove that Russell either possessed or was
exercising any supervisory authority on March 13. Ac-
cordingly I find that Russell must be included in the bar-
gaining unit, making a total of 72 employees in the unit
on March 13.
2. Majority status not shown
To prove that the Union on March 13 represented a
majority of the employees in the appropriate bargaining
unit, the General Counsel introduced into evidence 38
authorization cards (G.C. Exhs. 5-1 through 5-38)-I
more than the 37 cards needed for a majority of the 72
employees.
The cards are on the reverse sides of postage-paid
postcards, addressed to "Retail Clerk's Union Local
1657, AFL-CIO." The cards contain clear and unambi-
guous language, authorizing "Retail Clerks International
Association, AFL-CIO, or its chartered Local Union" to
represent the signers for the purpose of collective bar-
gaining. A total of 12 of the cards were authenticated by
the persons signing the cards (Elrod, Jackson, Latta, Mi-
lazzo, Moore, Perry, Potts, Spann, White, Williams, Wil-
loughby, and Zeigler). Cashier Zeigler authenticated 16
other cards (Anderson, Christine Carter, Robert Carter,
Dozier, Drawhorn, Fitzgerald, Hallmark, Henry, Jen-
kins, Merchant, Parker, Smitherman, Tarver, Thompson,
Vincent, and Whitley). Employee White authenticated an
additional four cards (Champion, Gilliland, Slater, and
Mickey Smith). The remaining six cards were authenti-
cated by Union Organizer Richardson (Crockrom, Cum-
mings, Ellis, Jones, Mangina, and Sullivan).
After reviewing the evidence and considering the posi-
tions of the parties, I find it clear that two of the authori-
zation cards were not shown to be valid designations of
the Union on March 13.
Cashier Linda Vincent, who signed a card on Febru-
ary 15 (G.C. Exh. 5-38), had taken reasonable steps on
February 16 to revoke her card. At the time Vincent
signed the card on the job, as cashier Zeigler credibly
testified, she told Zeigler, "Melinda, swear to me that
nobody will ever find out because I'm scared I'll lose my
job." The following evening, she told Zeigler, "Melinda,
I'm scared. Tear my card up." Zeigler told her, "I don't
have it any more. I've already turned it into Retail
Clerks. You'll have to call them to get it back." (Vincent
did not appear to have as good a recollection of what
happened. The postal side of the card shows that Zeigler
had turned in the card on February 16 to Organizer
Richardson.) There is no evidence that anyone ever said
anything to Vincent about cardsigners being discharged
for signing cards. (Vincent testified, "I just changed my
mind," and was not frightened.) In TMT Trailer Ferry,
Inc., 152 NLRB 1495, 1496 (1965), where two employees
attempted to revoke their authorization cards "on their
own initiative without any prompting or interference" by
the employer, the Board held that they effectively re-
voked the authorization "by seeking to retrieve their
cards from the employee who had solicited their signa-
tures." Here, on the day after she signed the card, Vin-
cent on her own initiative requested Zeigler, who had
solicited her signature, to tear up the card. I find this re-
quest was an effective revocation of her authorization of
the Union to represent her, and therefore find that the
card was not a valid designation of the Union on March
13.
The other card, purportedly signed by Mike Merchant
(G. C. Exh. 5-27), was not properly identified. Employ-
ee organizer Zeigler recalled that she solicited Merchant
to sign the card, that he brought the card back to her
signed, and "I turned it over to Mr. Richardson the next
time I saw him." She gave extensive testimony, and she
impressed me most favorably as a sincere witness, with
generally a good memory for details. However, I find
that this was one of the instances in which her memory
failed her and that she was mistaken in recalling that she
received and turned in Merchant's card. The card on its
face shows that the store address and store number were
filled in with a different pen from the one used by the
cardsigner, and in the same handwriting as the store ad-
dress and number on an authorization card which em-
ployee White solicited from employee Shayne Gilliland
(G.C. Exh. 5-18)-not the handwriting for the store ad-
dress and number which Zeigler filled in on such cards
as those signed by cashier Lynn Anderson (G.C. Exhibit
5-37) and stocker Charles Moore (G.C. Exh. 5-3). More-
over, the postal side of the card shows that "Eddie
White" turned in the card to Organizer Richardson, not
Zeigler. (The General Counsel failed to question White
about this card when White was authenticating Gilli-
land's and three other cards.) Thus there is no proof that
Merchant placed the signature on the card. I therefore
find that the card cannot be counted.
Having found that two of the authorization cards
cannot be counted as valid designations of the Union on
March 13, leaving only 36 cards in a bargaining unit of
72 employees, I find that the General Counsel has failed
to prove that the Union represented a majority of the
employees on that date.
3. Bargaining order not appropriate
In the absence of proof that the Union had achieved
majority status, I find that the Company did not unlaw-
fully refuse to bargain with the Union in violation of
Section 8(a)(5) of the Act when the Company failed to
respond to the Union's February 20 bargaining request. I
also find that in these circumstances, the remedial bar-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining order sought by the General Counsel is inappro-
priate. United Dairy Farmers Cooperative Association, 242
NLRB 1026 (1979).
In view of these findings, I find it unnecessary to rule
on the Company's contentions that other authorizations
should also not be counted; that the Company was enti-
tled to see the affidavits given by cardsigners who did
not testify; and that the alleged unfair labor practices,
even if proved, were not so pervasive or outrageous as
to preclude the holding of a fair and reliable election.
CONCLUSIONS OF LAW
1. By coercively interrogating employees, by threaten-
ing to discharge employees and to close the store if they
supported or designated a union, by creating the impres-
sion of surveillance of union activities, and by directing
an employee to avoid an employee organizer, the Com-
pany engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By discriminatorily denying on or about March 26,
1979, cashier Zeigler a wage increase to the rate of the
highest paid cashier, to discourage membership in the
Union, the Company violated Section 8(a)(3) and (1) of
the Act.
3. The May 4, 1979 strike, caused and prolonged by
company unfair labor practices, was an unfair labor prac-
tice strike.
4. The General Counsel has failed to prove that the
Company unlawfully threatened to eliminate female em-
ployees if they designated a union, discriminatorily
denied a day off to an employee for supporting a union,
solicited employee grievances in order to undercut the
union organizing, or promised employees a wage in-
crease if they refrained from union activities.
5. The General Counsel has failed to prove that the
Union achieved majority status in the appropriate bar-
gaining unit, or that the Company unlawfully refused to
honor the Union's bargaining request.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily denied one of the
cashiers a wage increase on or about March 26, 1979, 1
find it necessary to order Respondent to grant her the in-
crease retroactive to that date and to compensate her for
the amount of the increase withheld, with interest com-
puted in the manner set forth in Florida Steel Corporation,
231 NLRB 651 (1977).
As found, the strike which began on May 4, 1979, was
an unfair labor practice strike from its inception. The
strikers therefore became unfair labor practice strikers as
of that date. Accordingly, I find it necessary to order
Respondent to offer the strikers, upon their uncondition-
al applications to return to work, immediate and full re-
instatement to their former jobs or, if these jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges, dismissing, if necessary, persons hired on or after
May 4, 1979, and make the strikers whole for any loss of
earnings they may suffer as a result of Respondent's re-
fusal, if any, to reinstate them in a timely fashion, by
paying to each of them a sum of money equal to that
which each would have earned as wages during the
period commencing 5 days after the date on which each
unconditionally offers to return to work to the date of
Respondent's proper offer of reinstatement, less any net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). (See, gener-
ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).)
However, if the Respondent has already rejected, or
hereafter rejects, unduly delays, or ignores any uncondi-
tional offer to return to work, or attaches unlawful con-
ditions to its offer of reinstatement, the backpay will
commence on the date of the unconditional offer to
return to work. Newport News Shipbuilding and Dry Dock
Company, 236 NLRB 1637 (1978).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER6
The Respondent, Warehouse Groceries Management,
Inc., Birmingham, Alabama, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Denying a wage increase to or otherwise discrimin-
ating against any employee for supporting Retail Clerks
Local 1657, United Food and Commercial Workers In-
ternational Union, AFL-CIO, or any other union.
(b) Coercively interrogating any employee about union
activity, union support, or union sympathies.
(c) Threatening to discharge employees for supporting
a union.
(d) Threatening to close the store if the employees se-
lected a union.
(e) Creating the impression of surveillance of union ac-
tivities.
(f) Directing any employee to avoid any employee or-
ganizing for a union.
(g) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Grant Melinda Zeigler, retroactive to March 26,
1979, the wage increase discriminatorily denied her and
make her whole for the amount of the increase withheld
since that date in the manner set forth in the Remedy
section.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
264
WAREHOUSE GROCERIES MANAGEMENT, INC.
(b) Upon application, immediately reinstate the unfair
labor practice strikers and make them whole for any loss
of earnings that they may have incurred as a result of
any refusal of timely reinstatement, in the manner set
forth in the Remedy section.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its store in Birmingham, Alabama, copies of
the attached notice marked "Appendix." ? Copies of the
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall read "Posted Pursu-
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from tne date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
265