BI-LO

National Labor Relations Board - Board Decisions

Jul 19, 1991

303 N.L.R.B. 749 (N.L.R.B. 1991)

749
303 NLRB No. 116
BI-LO
1 On July 20, 1990, Administrative Law Judge Bernard Ries issued the at-
tached decision. The Respondent filed exceptions and a supporting brief. The
General Counsel filed limited cross-exceptions, a supporting brief, and an an-
swering brief. The Charging Party filed limited cross-exceptions, a supporting
brief, and an answering brief. The Respondent filed a brief in response to the
cross-exceptions.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
2 Other issues, warranting a less-detailed discussion, are set forth in fns. 4
and 5 below.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
4 In affirming the judge’s finding that the Respondent’s president, Denrich,
violated Sec. 8(a)(1) by promising a wage schedule revision, with consequent
wage increases, we rely only on his separate conversations with employees
John Day and Carol Corron. In each of these conversations, Denrich was not
responding to a question from the employee involved. Instead, he first raised
the subject of a previously unannounced, unexpected, and still undefined re-
vised pay scale.
5 We agree with the judge that the Respondent’s unlawful conduct at its
Havre de Grace store warrants issuance of a remedial bargaining order in ac-
cord with the principles set forth in NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). We need not pass, however, on the judge’s finding that the Re-
spondent’s ‘‘hallmark’’ 8(a)(1) threats of plant closure, standing alone, justify
a bargaining order in this case. These threats occurred in conjunction with nu-
merous other 8(a)(1) violations committed by the Respondent’s senior officials
in a relatively brief 3-month period between the filing of a representation peti-
tion and the holding of a Board election. These unfair labor practices affected
the entire bargaining unit of approximately 51 employees, and many of them
targeted Bonnie Arnold, whom the Respondent knew to be the principal em-
ployee proponent of the Union. Based on the totality of the Respondent’s un-
lawful conduct, we conclude that the lingering effects of the Respondent’s un-
fair labor practices make the likelihood of conducting a fair second election
in the foreseeable future so slight that, on balance, it is preferable to rely on
the majority employee preference expressed through valid authorization cards.
Gissel, supra at 614.
6 See, e.g., Clark Equipment Co., 278 NLRB 498, 499–500 (1986). We dis-
avow reliance on the judge’s personal observation that an employer should not
be permitted to discuss with employees the possibility of losing benefits in an
initial bargaining context.
So-Lo Foods, Inc., t/a BI-LO; So-Lo Foods, Inc., t/a
Valu Food and United Food and Commercial
Workers Union, Local 27, AFL–CIO–CLC.
Cases 5–CA–19473, 5–CA–19673, 5–CA–19481,
and 5–RC–13005
July 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues discussed below in detail are whether the
Respondent’s president, Louis Denrich, violated Sec-
tion 8(a)(1) of the Act in describing to employees the
collective-bargaining process and whether one of the
Respondent’s mass mailings in the election campaign
included plant closure threats in violation of Section
8(a)(1).1 The judge found violations on both counts,
concluding that Denrich’s explanation of the bar-
gaining process constituted an unlawful threat to re-
duce existing benefits if employees chose to be rep-
resented by the Union and that the mass mailings in-
cluded unlawful threats as alleged. The Respondent ex-
cepted to both findings.2
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings,3 and conclusions, as modified here,4 and to
adopt the recommended Order,5 as modified.
1. A Board representation election was held on Feb-
ruary 18, 1988, among unit employees at the Respond-
ent’s Havre de Grace retail food store. In furtherance
of the Respondent’s preelection campaign against the
Union, President Denrich visited the store almost daily
to talk with individual employees. His discussions cov-
ered a range of subjects related to union representation
and collective bargaining, including the bargaining
process itself.
According to Denrich’s testimony, which was cor-
roborated by employee witnesses, he generally de-
scribed this process as being ‘‘like horse trading back
and forth. You could win, you could lose, you know,
you could be the same.’’ Denrich further testified that
he also said to employee Bonnie Arnold, ‘‘It’s a bar-
gaining process, and we’re going to start, you know,
from a clean slate. Meaning, we don’t have a contract
right now, so what are we starting with? You know,
yes, you have these benefits, but there is no contract
that we have right now to bargain from.’’ Denrich
similarly explained to employee John Day that, unlike
in an established unionized setting, the parties did not
‘‘have the old contract and then you’re bargaining for
the new contract.’’ Instead, ‘‘you’re going to be bar-
gaining basically from nothing. You’re going to be
bargaining from scratch.’’ Day also testified that
Denrich explained that the Union could not guarantee
to improve on existing conditions, that no one could
tell what the outcome of negotiations would be, and
that wages could go up or down, or stay the same, as
the result of negotiations.
The judge acknowledged Board precedent holding
that an employer may in certain circumstances lawfully
describe the bargaining process as ‘‘bargaining from
scratch’’ and refer to the possible negotiated loss of
existing benefits.6 He found, however, that Denrich
‘‘crossed over to the forbidden side’’ and unlawfully
threatened to reduce employees’ benefits prior to nego-
tiations when he referred to ‘‘bargaining basically from
nothing.’’ We disagree.
The judge’s analysis artificially isolates the single
comment to employee Day from the overall context of
remarks repeatedly made by Denrich to him and to
other employees. In this context, Denrich expressed his
opinion that (1) the contract negotiation process was
like horse trading; (2) employees could gain new bene-
fits or lose existing benefits; and (3) in bargaining for
a first contract, there is a greater degree of uncertainty
because the parties have no track record of past nego-
tiations and contracts on which to rely in forecasting
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 E.g., Histacount Corp., 278 NLRB 681, 689 (1986); Plastronics, Inc., 233
NLRB 155, 156 (1977).
8 The judge failed to include general cease-and-desist language in each of
his three recommended notices. We shall include such language in substitute
notices.
what particular benefits may be gained or lost in the
negotiations at hand.
In evaluating comments concerning ‘‘bargaining
from scratch,’’ the Board cases draw a distinction be-
tween (1) a lawful statement that benefits could be lost
through the bargaining process and (2) an unlawful
threat that benefits will be taken away and the union
will have to bargain to get them back.7 Contrary to the
judge, we find it more reasonable to infer that the con-
trast drawn by Denrich between an established union-
ized setting and ‘‘bargaining basically from nothing’’
in first contract talks at Havre de Grace related to
Denrich’s third point. In context, it did not reasonably
tend to indicate that the Respondent intended to strip
away benefits prior to bargaining and force the Union
to negotiate restoration of those benefits. Accordingly,
notwithstanding the commission of numerous unfair
labor practices by the Respondent, we find that
Denrich did not violate Section 8(a)(1) of the Act in
his remarks to employees about the bargaining process.
2. We affirm the judge’s finding that the Respond-
ent’s February 1, 1988 mass mailing to employees and
its subsequent use in election campaign discussions
with employees violated Section 8(a)(1) by implicitly
threatening to close the Havre de Grace store if em-
ployees voted for union representation. The document
in question consisted of a cover letter and reprints of
18 newspaper articles about store closings and/or em-
ployee job losses. Collectively, this literature was not
restricted to conveying the legitimate message that a
union could not guarantee job security against general
economic adversity. Instead, it strongly suggested that
Havre de Grace employees now had job security and
that they would jeopardize this security if they chose
to be represented by the Union. Indeed, the cover letter
stated, ‘‘Our constant effort to see that you have a
steady job is one of the many reasons you should vote
NO UNION on election day.’’ It thereby implied that
the Respondent’s ‘‘contant effort’’ to provide job secu-
rity might be abandoned if the employees voted for
union representation.
Concededly, some of the attached newspaper articles
indicate that the Union’s economic actions had been a
factor leading to the closing of other employers’ stores.
The majority of the articles, however, fail to identify
union activity as a cause of store closings. In sum,
these articles fail to provide the necessary objective
basis for the Respondent’s implicit claim that unioniza-
tion would imperil employee job security for reasons
beyond its control. Absent such a basis, the February
1 mass mailing and the followup usage of it reasonably
tended to threaten employees with the Respondent’s
willingness to close the Havre de Grace store if em-
ployees voted for the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent So-Lo
Foods, Inc., t/a BI-LO and So-Lo Foods, Inc., t/a Valu
Food, Havre de Grace, Stemmers Run, and Elkton,
Maryland, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.8
1. Substitute the following for paragraph 1(b)
‘‘(b) Impliedly threatening to close its stores; asking
employees to maintain surveillance of the other em-
ployees and to report on their union activities;
impliedly threatening to discharge the spouse of a
prounion employee; coercively interrogating employees
about union activities; impliedly promising to improve
working conditions and to give a wage increase; un-
lawfully giving wage increases to employees; request-
ing an employee to take a position on asking other em-
ployees to abandon union support; threatening an em-
ployee with loss of friendship; unlawfully requiring an
employee to remain in her department; unlawfully for-
bidding an employee to talk about a union; and engag-
ing in and giving the impression of surveillance of the
union activities of its employees.’’
2. Substitute the attached notices for those of the ad-
ministrative law judge.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice at our Havre
de Grace store.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with store closure,
promise or grant benefits to employees, engage in sur-
veillance or the impression of surveillance of union ac-
tivities or request employees to maintain such surveil-
751BI-LO
1 The charge in Case 5–CA–19473 was filed on March 1, 1988, and the
complaint was issued in that case on April 13, 1988. The charge in Case 5–
CA–19673 was filed on May 9, 1988, and amended on May 18, 1988, and
Continued
lance and to report on such activities, impliedly threat-
en to discharge the spouse of a prounion employee, co-
ercively interrogate employees, request an employee to
take a position on asking other employees to abandon
union support, threaten an employee with loss of
friendship, or unlawfully forbid an employee to talk
about a union, in order to affect employees’ support
for United Food and Commercial Workers Inter-
national Union, Local 27, AFL–CIO–CLC, or any
other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL , on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time employees at
our Havre de Grace store, but excluding guards
and supervisors as defined in the Act.
SO-LO FOODS, INC., T/A BI-LO
SO-LO FOODS, INC., T/A VALU FOOD
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice at our
Stemmers Run Road, Baltimore store.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT impliedly threaten employees with
store closure, promise or grant benefits to employees,
keep employees under surveillance, or interrogate em-
ployees, in order to affect their support for United
Food and Commercial Workers International Union,
Local 27, AFL–CIO–CLC, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
SO-LO FOODS, INC., T/A BI-LO
SO-LO FOODS, INC., T/A VALU FOOD
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice at our Elkton
store.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT impliedly promise benefits to or coer-
cively interrogate employees, in order to affect their
support for United Food and Commercial Workers
International Union, Local 27, AFL–CIO–CLC, or any
other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
SO-LO FOODS, INC., T/A BI-LO
SO-LO FOODS, INC., T/A VALU FOOD
James P. Lewis. Esq. and Eileen Conway, Esq., for the Gen-
eral Counsel.
Larry M. Wolf, Esq., Joseph K. Pokempner, Esq., and Peter
D. Guattery, Esq. (Whiteford, Taylor & Preston), of Balti-
more, Maryland, for the Respondent.
Joel A. Smith. Esq. (Abato, Rubenstein and Abato, P.A.), of
Lutherville, Maryland, for the Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge. These consoli-
dated matters were tried in Baltimore, Maryland, on 13 days
in June, July, and August 1989.1 At the unopposed requests
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the complaint therein was issued on June 22, 1988. The charge in Case 5–
CA–19481 was filed on March 3, 1988, and amended on April 14, 1988, and
the complaint was issued on October 27, 1988. In Case 5–RC–13005, relating
to a representation election held on February 18, 1988, the Regional Director
originally found that in support of its objections, the Petitioner ‘‘relies on the
same evidence submitted and adduced’’ during the investigation of Case 5–
CA–19481. In view of such identity, the Regional Director, by orders dated
November 21, 1988, and April 19, 1989, consolidated the four cases for hear-
ing.
2 Errors in transcript have been noted and corrected.
3 As clarified at the hearing.
4 As clarified at the hearing.
5 Although there appear to be different corporate entities involved, at the
hearing counsel for Respondent were more than willing to concede that all the
stores constitute a single employer, as discussed hereafter. Accordingly, I shall
generally make reference to ‘‘Respondent’’ to signify the corporate mass
(which itself, as a practical matter, boils down to the energetic, ubiquitous
Louis Denrich). 6 E.g., Stride Rite Corp., 228 NLRB 224, 225 (1977); Color Tech Corp.,
286 NLRB 476 (1987).
of the Respondent, the time for filing first briefs was ex-
tended to January 12, 1990, and reply briefs to March 1. All
parties have timely filed both initial and reply briefs.
Having reviewed the transcript, the exhibits, and the briefs,
and taking into account my recollection of the manner in
which witnesses deported themselves while testifying, I make
the following
FINDINGS OF FACT2
I. BACKGROUND AND OVERVIEW
In 1987, the Denrich family owned 13 supermarkets in
Maryland and one in Pennsylvania. [So-Lo Foods, Inc., t/a
BI-LO;3 So-Lo Foods, Inc., t/a Valu Food.4] Louis Denrich
is the young, aggressive scion who spearheaded the growth
of the organization, from the corner grocery opened by
Steve, his father, to the chain in which Louis Denrich now,
as president, employs about 1000 ‘‘associates’’ (as Respond-
ent’s employees are designated).5
For several years, the Union has been trying, without suc-
cess, to organize Respondent’s stores on a single-store basis.
In this proceeding, we are interested, inter alia, in the cir-
cumstances surrounding a union election loss at its Havre de
Grace store (Case 5–CA–19481) (Havre), on February 18,
1988, by a 28–21 margin (with two challenged ballots). It is
the General Counsel’s contention that the election was so
pervasively infected by the Respondent’s unfair labor prac-
tices that no mere rerun of the election could undo the dam-
age, and that entry of a bargaining order, based on authoriza-
tion cards as permitted by NLRB v. Gissel Packing Co., 395
U.S. 575, is warranted here.
Case 5–CA–19673 (the ‘‘Elkton’’ complaint) is composed
of two distinct parts. One is a purely legal issue concerning
the lawfulness of a questionnaire passed out by Respondent
to employees at its Elkton, Maryland, location (and allegedly
elsewhere) in April 1988; the second is a claim that Re-
spondent, from January to March 1988, delayed the imple-
mentation of a pay increase for employees at all 14 stores
for reasons proscribed by the Act. While the latter allegation
is contained in the ‘‘Elkton’’ complaint, and extends to all
employees, it in fact is most closely related, in time, spirit,
and argument, to the Havre store and its February election.
The third complaint consolidated here (Case 5–CA–19473)
arises out of conduct alleged to have occurred at Respond-
ent’s Store No. 9, located at Stemmers Run Road in Balti-
more. The complaint here, like the one in the Havre case,
contains a miscellany of 8(a)(1) allegations, occurring in the
early part of 1988. Although all three complaints allege that
Respondent, by various conduct, violated Section 8(a)(3) in
addition to Section 8(a)(1), the only true 8(a)(3) violation is
asserted in the Elkton case—the claim that Respondent with-
held wage increases at all stores for 2-1/2 months because
of the union activity of its employees at Havre de Grace. In
the other cases, General Counsel has labeled certain behav-
ior—the grant of favors and benefits—as being violative of
‘‘Section 8(a)(3),’’ and although there may be some authority
for this treatment which is unknown to me, I believe that the
great weight of precedent has considered such conduct as
being violative only of Section 8(a)(1),6 and I personally find
it difficult to conceive of a grant of benefit as being encom-
passed by Section 8(a)(3)’s key word ‘‘discrimination.’’
These cases have gotten somewhat long in the tooth. By
the time I began hearing them in June 1989, most of the per-
tinent events were almost 1-1/2 years old. By the time reply
briefs were received on March 1, 1990, more than 2 years
had passed, and memories had dimmed proportionately. Gen-
eral Counsel has persisted in seeking a Gissel bargaining
order for the one 50-employee store in which an election has
been held and lost; this has entailed, among other things, the
prolonged and torturous examination of the signatories and
collectors of authorization cards and the extended presen-
tation (or attempt to present) various novel defenses by Re-
spondent. The transcript consists of more than 2200 pages
and there are numerous exhibits; three lawyers represented
Respondent throughout the hearing, General Counsel had two
trial counsel, and the Charging Party was represented by one
attorney. Briefs containing some 315 pages have been filed.
One wonders if some simpler, more expeditious system—
which the administrative law process was projected to be—
could not be devised. Most of the violative actions charged
are not on their face insubstantial, but the effort, expense,
time, and resources necessary to litigate them should also be
taken into consideration in deciding whether to launch such
an undertaking.
By the time the taking of evidence had been completed,
it was clear that (1) General Counsel had failed or been un-
able to present evidence in support of many of the (often
unspecific and amorphous) 8(a)(1) allegations in the com-
plaints, and (2) there was real uncertainty about what evi-
dence was intended to prove which 8(a)(1) allegations. The
former failure may be derived from careless precomplaint in-
vestigation, ineptitude in analyzing the evidence and the law,
the passage of time, and/or a reluctance on the part of em-
ployees to further lend a hand to the proceedings. The latter
failure probably should be laid at my doorstep. At one early
point, when I asked counsel for General Counsel to identify
the allegation to which certain testimony was addressed, I
was told, after an extended period of thumbing through the
complaint, that ‘‘I think I would have to bring this within
probably 10(c) or (d), your honor, of the complaint.’’ After
this experience, not wanting to replicate the undue consump-
tion of time with each witness, recognizing that the connec-
tion between certain testimony and certain allegations was
evident, and hearing few complaints from the counsel for Re-
spondent about a lack of specificity, I stopped asking such
questions. Nonetheless, with such broad-spectrum, general,
753BI-LO
7 The proceeding had a fatal air about it early on. For the benefit of the
reader of the transcript, who could easily become confused, the court reporter
somehow failed to record perhaps 20–25 minutes of the testimony of witness
Bonnie Arnold during her appearance on June 29, 1989. Arnold was recalled
to repeat the lost testimony on July 17. The tapes containing Arnold’s recon-
structed testimony, together with the evidence given by the other witnesses
who testified on that day, were then lost in an airplane crash. Arnold, for the
third time, and the other July 17 witnesses for the second, were required there-
after to repeat their demolished testimony.
8 Subsequent dates refer to the year 1987 if the month is November or De-
cember, and to 1988 if January or February, except as otherwise indicated.
and indefinite allegations as the one set out below, it is not
always easy to know what testimony was thought to fall into
the category shown:
Respondent, acting through Louis Denrich at its Havre
de Grace, Maryland facility, on or about January 27,
1988, February 9, 1988, February 14, 1988, February
15, 1988, February 17, 1988, February 18, 1988 and on
numerous other dates from on or about November 25,
1987, through on or about February 18, 1988, threat-
ened to close its store if employees engaged in activi-
ties on behalf of the Union, or if the Union got in.
In other areas, the problem presented was that the allega-
tion, meant to encompass several transactions, was reason-
ably specific about dates, but the dates, if any, mentioned by
the witnesses did not approximate those referred to in the al-
legation.
It was for these reasons that I authorized the filing of reply
briefs, principally in the hope that Respondent would be able
to answer or argue against in its second brief any allegations
it had failed to address in its initial brief, and General Coun-
sel could respond to any claim made in Respondent’s first
brief that particular matters were not properly before me. Cu-
riously, General Counsel’s 61-page opening brief was, with
respect to the 8(a)(1) allegations, more of a summary of
highlights (complete with such useful tips as ‘‘Handley’s flat
denial at transcript 1789–1790 is one of a number of places
in the record calling for a credibility determination.’’) than
an analysis of the evidence, while Respondent’s 157-page
initial brief at least touched on virtually every item of dia-
logue which could be conceivably argued to furnish some
support for a finding of violation. I shall attempt to distill
from these two approaches a discussion of what General
Counsel apparently thinks is in contention, in the light of the
rather liberal (or prudent) approach adopted by the Respond-
ent in its two briefs.
I should note that credibility resolutions have been quite
difficult in this case. While most of the witnesses seemed
credible, internal contradictions and inconsistencies plagued
both sides of the proceeding, and that may well be due to
the length of time which elapsed between the events and the
trial. I have my doubts as to whether the average individual
is capable of recalling (even weeks, rather than years, later)
whether a company official said to him on the day of the
election ‘‘Do I have your vote?’’ as opposed to ‘‘I’m count-
ing on you.’’ A further dynamic at play here is that a num-
ber of General Counsel witnesses at first attempted to avoid
compliance with their subpoenas, for reasons not clarified by
the record; what was clear was General Counsel’s extra bur-
den in extracting testimony about events of relatively ancient
vintage from reluctant and unprepared witnesses.7
I should note that although I will be unable to refer to all
the evidence taken, I have tried, to the best of my ability,
to take it into account in making my determinations of fact
and law.
This seems an appropriate time to acquaint the reader with
Respondent’s leading supervisors and managers. Aside from
President Louis Denrich and his father Steve (who still plays
some sort of figurehead role in managing the operation),
there are a number of supervisory personnel who have var-
ious chainwide responsibilities. Charles Yingling was vice
president of operations until February 1988, when he was (as
later discussed) transferred to the newly created post of vice
president of human resources, whose functions seem to over-
lap his prior job. Robert Morrison became vice president of
operations at that time. Also in February, Patricia Miller,
theretofore the personnel director, became the personnel ad-
ministrator. George Handley was produce buyer and super-
visor for all the stores, Jenelee Rolfe was in charge of all
the bakery and deli departments, and Jackie White and
Debbie Reis, were, respectively, supervisor and assistant su-
pervisor of the ‘‘front end,’’ where the cashiers worked at
the stores. William Tolson was the director of security at the
stores, supervising an uncertain number of guards whose
principal routine occupation was to prevent or detect shop-
lifting. All these chainwide managers (and others) spent
varying percentages of their time at the stores themselves and
Louis Denrich was particularly active in getting around to
the stores, both to oversee his domain and apparently to hu-
manize management to the ‘‘associates.’’
Prior to the Havre campaign, to which we are about to
turn, Local 27 had made at least two official efforts to seek
to represent employees at the Elkton store, once in 1981 and
again in 1987, but had withdrawn prior to election. It ap-
pears, however, that over the years, Local 27 had made other
failed sorties at the stores, accomplishing nothing of any
great consequence. Local 27, one gathers, is the leading
union representative of employees of grocery store chains in
Baltimore and vicinity.
II. THE HAVRE DE GRACE CAMPAIGN
A. Allegations of Section 8(a)(1)
On November 25, 1987,8 the Union filed a petition seek-
ing to represent the employees at the Havre store. The com-
plaint alleges that from that date and up to the election held
on February 18, the Respondent, in the person of six of its
officials, violated the act in various ways.
B. The February 1 Mailings and Their Subsequent Use
At Havre, Louis Denrich and his attorneys mapped out a
campaign, apparently not dissimilar from that employed in
election efforts at the Elton store which Respondent had pre-
viously survived. The campaign was kicked off with a mail-
ing on February 1 to all Havre employees, containing a cover
letter signed by Denrich and Store Manager Warren Hein and
copies of 18 newspaper articles and advertisements going
back to 1981. Denrich testified (but not always: compare Tr.
2536–2537 with Tr. 2655–2667) that these articles, (which,
as discussed below, he later referred to extensively in indi-
vidual interviews and group lunches with most of the Havre
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 At one point, Denrich conceded that the February 1 mailing and its subse-
quent use was in anticipation of an assumption about the Union’s ‘‘normal
mode of operation’’—‘‘painting a very rosy picture’’—but he ‘‘hadn’t seen
any of that’’ as of February 2.
10 EDP Medical Computer Systems, 284 NLRB 1232, 1255, 1264 (1987),
cited by Respondent, is not only mild by comparison, but is sharply distin-
guishable on its facts.
employees) were selected by him from a collection which he
maintained and from another collection kept by his attorneys.
With only a few exceptions, the articles refer to the clos-
ing of stores in the proximate area, many (but not all) of the
stores said to be unionized. So that the employees would
catch the drift of the newspaper stories, the cover letter listed
the headlines of the enclosed articles (e.g., ‘‘Safeway Stores
Close After Vote’’; ‘‘Fisher Foods, Inc. To Close Its
Stores’’; ‘‘Workers Due Severance’’ (to which Denrich ap-
pended the following quote from the story: ‘‘About 180
workers will lose their jobs when Brager-Gutman closes its
stores’’); ‘‘Pantry Pride will Lay Off 4,300’’).
The cover letter focuses, as Denrich testified his frequent
individual campaign conversations did, on the subject of
‘‘job security,’’ making the point repeatedly that such secu-
rity ‘‘means steady work and steady pay,’’ whereas orga-
nized firms occupied much more uncertain footing. While
Denrich testified that he was merely responding to union
propaganda, at the hearing Respondent proffered no cam-
paign literature originating prior to February 1 (or thereafter)
in which the Union emphasized ‘‘job security’’; and, in fact,
in his February 1 letter, Denrich stated that while ‘‘this
union’’ talked about wages and benefits, ‘‘They do very little
talking about jobs and steady work.’’ (Emphasis added.)9
It is pertinent to note that a number of the articles have
nothing to do with the kinds of closings which might legiti-
mately result from labor disputes. A story regarding the sale
of a Mash’s Inc., meat plant attributed to former employees
the belief that the ‘‘abrupt sale was the ultimate revenge by
the owner on the labor union with which he had struggled
for more than two decades.’’ A 1983 article about the clos-
ing of a Hochschild Kohn department store, on which some-
one has underscored the fact that the present Charging Party
represented the employees, neglects to also underline the
statement by a company spokesman that the store had not
been profitable for years and that ‘‘the multi-level store was
not efficient for retail sales.’’ Similarly, the article on the
closing of Cook’s 4 area department stores quotes a spokes-
man as saying that the chain planned to close, as well, 12
other stores in 5 other States, and also that the decision was
‘‘a financial one,’’ the company having ‘‘not performed
well’’ (to the tune of a $6.4 million loss in the last fiscal
year); there is no reference in the story to the closed stores
being unionized, but, regardless, someone has underlined the
words, ‘‘About 220 Cook’s employees will lose their jobs
when the stores close.’’ An article about the 1983 closing of
A&P’s remaining 25 ‘‘Plus discount food stores’’ is ex-
plained by an industry observer as related to the lack of a
clear consumer image and similar marketing problems, and
there is no reference to a union, but a line is drawn only
under the sentence stating that A&P ‘‘will close’’ the stores.
The story about the closing of the Pantry Pride stores, which
had been in bankruptcy for over 2 years, fails to underline
the statement attributed to the company president that ‘‘in-
tense supermarket competition and several million dollars in
lost revenues during the past years prompted the closings’’;
what is underlined is the name and title of the president of
the UFCW local.
The cover letter closes:
Ask yourself what good are union promises if you
worked at Pantry Pride, Acme’s Baltimore, Anne Arun-
del, Howard, Edgewood and Bel Air locations; Cook’s;
Memco; and Safeway’s Eastern Shore and Delaware lo-
cations and the other companies listed in the attached
clippings.
Our constant effort to see that you have a steady job
is one of the many reasons you should vote NO
UNION on election day.
This letter was the only mass mailing made by Respondent
to its Havre employees. Its theme is the closing of stores in
the area, some of which are not even characterized as union-
ized stores, and some of which are explained as either ‘‘re-
venge’’ or as related to nonunion considerations. I read this
letter (and I think any reasonable reader might) as the at-
tempted communication of the idea that if the Havre store
should elect to be represented, the store stood a good chance
of being arbitrarily closed.
It must be remembered that we are here dealing not with
a sole location, which an employer might normally be reluc-
tant to shut down, but rather with only 1 of 14 locations, the
closing of which might well seem to the Havre employees
to be worthwhile to the employer in terms of its effect on
the employees at other locations. It is my opinion that
Denrich’s February 1 letter and scattershot enclosures were
designed to inspire in the Havre employees a fear of closure
of their store in the event of unionization, and that this com-
munication reasonably tended to achieve that result.
Denrich was not content to mail this material and let it go
at that. He told us that he carried a copy of it (as one of
his ‘‘props’’) to individual breakroom meetings with ex-em-
ployees and frequently made reference to it. As indicated
earlier, he testified in general that he was merely responding
to union guarantees of ‘‘job security,’’ but, for the reasons
given, I do not believe that to have been the case (although
it may be that an employee occasionally brought up the sub-
ject). As noted, there is no evidence that at the time the Feb-
ruary 1 mailing was prepared (or thereafter), the Union had
made an open issue of job security. It is clear, rather, that
Denrich wanted to talk about closings in order to suggest to
employees that he was well-positioned to take such an action
if he chose to. I do not find that Denrich intended to convey
the message that he would inexorably close the store if the
employees voted for the Union; his frequent references to
‘‘bargaining from scratch,’’ as discussed hereafter, would in-
dicate to employees a potential willingness to engage in ne-
gotiation. I do believe, however, that the store-closing mes-
sages, by the mailings and the subsequent references thereto,
were motivated by an intent to notify the employees that clo-
sure was an option which Denrich deemed available to him
at Havre. When dealing with such a significant and sensitive
subject, there is no need, in my view, that the message be
one of inevitability.
I conclude that, by such conduct, Denrich engaged in the
kind of threatening behavior prohibited by Section 8(a)(1).
Mohawk Bedding Co., 216 NLRB 126 (1975).10
755BI-LO
11 General Counsel’s first brief appears to argue that the breakroom meet-
ings were Per se violative. The complaint, however, does not so allege, and
when, at one point in the proceeding, I stated that there was ‘‘no allegation
that Mr. Denrich violated the Act by talking to these employees in the
breakroom, as a general matter’’ (Tr. 2436), counsel for General Counsel did
not demur.
12 On brief, General Counsel refers to Arnold being asked by Denrich ‘‘why
she wanted a union’’ as a separate violation. The testimony, although
unspecific, makes it clear that Denrich and Arnold had many conversations
about the campaign, and Arnold was no shrinking violet in displaying her par-
tisanship. This sort of question to Arnold, I believe, did not violate the Act.
13 Chuck Arnold did not give testimony at this hearing.
C. The Other Allegations Arising from the Campaign
1. The Bonnie Arnold incidents
Bonnie Arnold, the Havre bakery manager, testified that
soon after the union campaign commenced, Store Manager
Hein came up to her, her husband, Produce Manager Tim
Ford, and Seafood Manager Carol Shaffer at breaktime in the
bakery and stated that he had received a call from Denrich,
who wanted ‘‘a couple of department heads to be like his
eyes and ears for the store, to find out what was going on
and why.’’ The employees (all nonsupervisory except, as
later ascertained, Chuck Arnold) talked it over and told Hein
that they declined.
Denrich testified that he did call Hein on November 26,
after receiving the petition, and told him to have a depart-
ment managers’ meeting soon at which they should be in-
formed that if they or other Associates’’ had any questions
they should direct them to Hein (and from Hein to him). He
denied giving Hein any charge to seek out ‘‘eyes and ears.’’
Hein did not testify, and his absence was not explained.
Whether or not with Denrich’s authority, Hein did, as a stat-
utory supervisor, make a request to three statutory employees
to engage in secret surveillance and reporting of the union
activities of other employees. Such a supervisory request rea-
sonably tends to restrain employees in the exercise of their
Section 7 rights, in violation of Section 8(a)(1).
As indicated, the February 1 mailing was followed by the
second aspect of Respondent’s campaign—individualized
meetings in the Havre breakroom between one employee and
(usually) Denrich, Vice President Yingling, Vice President
Morrison, and Store Manager Hein; and the third part of the
campaign was a series of breakfast and luncheon meetings at
the local Sheraton hotel for small groups of Havre employ-
ees.
Given the number of individual breakroom meetings11 at-
tended by Denrich (he met with many employees on more
than one occasion, and he also spoke with them at their work
stations, see, e.g., Tr. 2259), the different courses the con-
versations probably took, as Denrich testified, and the pas-
sage of time between February 1988 and the hearing, it is
most unlikely that Denrich actually recalled what he said to
every employee on every occasion. Despite this admitted
fact, he sometimes testified as if he remembered and some-
times simply referred to the probabilities (‘‘I would have
said’’). He was so obviously anxious to prevail in this pro-
ceeding, and so willing to change ‘‘would have’’ to ‘‘did’’
when prompted, that I think he would have answered almost
any question in the light which seemed most favorable to his
cause. Bonnie Arnold, is, as earlier indicated, employed as
the nonsupervisory manager of the bakery department at
Havre. She was also the instigator of the union activity at
the store and its most active proponent, a fact which Denrich
quickly came to know. She is, in addition, married to Havre
Meat Manager Chuck Arnold, who was, on January 15, ad-
judged in the representation case to be a statutory supervisor.
Bonnie Arnold being a dedicated union supporter, it would
not surprise me if she recalled events in a fashion which
tended to serve her objectives. I doubt, however, that she is
the sort of person who would fabricate or, with malice,
grossly distort conversations or events.
The first meeting described by Arnold as having occurred
between her and various management officials was held in
mid-January, probably a few days after Chuck Arnold had
been found to be a supervisor, when Yingling asked her to
come to the breakroom. There she found (she believes)
Denrich, Morrison, and Hein. Denrich asked her if she knew
that her husband had been held by the Region to be a super-
visor. Arnold said she did and asked ‘‘if Chuck was going
to be fired.’’ Denrich purportedly said ‘‘that he was angry
and that he was pissed, but he wasn’t going to do anything
right then. He said that he had fired a meat manager in
Elkton’’ for union activity. In further discussion, Denrich
asked why she wanted the Union,12 and Arnold referred to
‘‘a pension’’ and ‘‘job security.’’ Denrich said ‘‘it would be
in my best interest and in Chuck’s best interest if the union
didn’t get in.’’ He explained this remark by stating that he
had provided ‘‘good job security without the union.’’ More
discussion ensued, with Arnold saying that the recent re-
placement of the well-liked Yingling by Morrison in han-
dling personnel problems was unsatisfactory, ‘‘and we need-
ed the union.’’
Denrich knew, at the time he spoke to Arnold, that she
was a major union supporter. His reason for wanting to
speak to her after the Region had declared her husband to
be a supervisor was:
And I felt obligated that I had to talk to her because
of the whole issue and that, you know, that I felt that—
I guess they, you know, she I knew, I assumed, that she
was very concerned about his job.
The source of this ‘‘assumed’’ ‘‘concern’’ is undisclosed,
but the testimony does indeed indicate that Denrich believed,
when the meeting started, that Bonnie Arnold was worried
about her husband’s job. Denrich had already met with
Chuck Arnold, as soon as the Region’s decision had issued,
to assure him that ‘‘we were not going to fire him.’’13 Ac-
cording to Denrich, at the meeting with Bonnie, he told her
of having given such reassurance, but she ‘‘right away blurt-
ed out, you know, like you’re going to fire Chuck.’’ He says
that he denied that and made it ‘‘clear to her that I wasn’t
going to fire Chuck.’’ Nonetheless, he admittedly told her
that he was ‘‘upset’’ with Chuck, saying that ‘‘supervisors
[are expected] not to be involved with unions’’ (at the same
time telling Bonnie that ‘‘it wasn’t clear that he was in-
volved’’). Denrich also attributed to Bonnie, rather than to
himself, the statement, ‘‘I know that you fired a meat man-
ager before for union activity,’’ which he says, he conceded
to her as factual.
I find Arnold’s version of the conversation more probable.
If, as Denrich says, he had assured Arnold from the outset
that her husband would not be fired, it is unlikely that she
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The employee manual states, ‘‘Our Company is a non-union company,
and we intend to stay that way . . . . We are firmly convinced that a union
cannot help solve any problems that we cannot solve ourselves by working
together.’’
15 One of the articles in the February 1 mailing is headlined, ‘‘Safeway
Closes 8 Shore Stores.’’
16 If, as Denrich claims, all he did at that meeting was to reassure Arnold
about the safety of her husband’s position, one would not expect him to be
so defensive.
17 I recognize that the cost to an employer of having to deal with a union
might be a legitimate consideration, but Denrich did not so limit the possibility
of loss.
still would have ‘‘blurted out’’ that Denrich was going to fire
him. I believe that this special meeting with Arnold in mid-
January, 2 weeks before the blitz of individual interviews
had begun, was hardly an effort by the staunchly antiunion
Denrich14 to reassure Arnold, but was rather an effort to in-
timidate her and to decelerate her union activity by sug-
gesting that her vulnerable husband’s activity had ‘‘upset’’
Denrich. Yingling’s version of Denrich’s assurances to
Bonnie Arnold hardly reflects an effort to make it ‘‘clear’’
that Chuck’s job was safe: ‘‘I haven’t fired Chuck. He still
has a job.’’ I also believe that Denrich, having mentioned
that he was ‘‘upset’’ at Chuck, might well have told Bonnie
that he had discharged a supervisor at another store for union
activity. And in this setting, the comment that it would be
in Bonnie’s and Chuck’s ‘‘best interest if the Union didn’t
get in’’ (which statement Denrich admitted), though ex-
plained at the hearing as having to do with the ‘‘job secu-
rity’’ previously furnished by Denrich, carried an especially
significant overtone. The statement is simply a flat assertion
that the two are better off without a union than with one. The
personalization of this remark—limited to Bonnie and
Chuck—renders distinguishable the cases cited by Respond-
ent in which the Board has tolerated a ‘‘best interests’’ com-
ment made to all the employees. E.g., Thomas Industries,
255 NLRB 646 (1981). When directed only toward Bonnie
and Chuck, in the given context, the statement is quite men-
acing.
Thus, although I find no direct and unequivocal expression
of intent by Denrich to discharge Chuck Arnold, I believe
that Denrich made this precampaign special effort to meet
with the known leading activist in order to suggest to her
that such a possibility was a real one, and thus to damp
down her activism. Although Denrich was not necessarily
prohibited by law from discharging Chuck Arnold, he could
not lawfully use the threat of such a discharge to restrain the
exercise of Section 7 rights by Bonnie Arnold. See Adver-
tiser’s Mfg. Co., 280 NLRB 1185 (1986).
Arnold testified that at a Respondent—sponsored luncheon
for a group of the Havre employees at the Sheraton on Feb-
ruary 12, Denrich exhibited a group of clippings (evidently
the ones mailed to the employees on February l) and, show-
ing an article relating to the Safeway chain, said, ‘‘I would
hate to see this one day read Valu Food Closes 14 Stores.’’15
When Denrich eventually asked if there were any questions,
Arnold commented that she had felt ‘‘really intimidated’’ at
an earlier meeting at which she thought that he had threat-
ened her job as well as her husband’s. Denrich replied that
it was an inappropriate subject for discussion.
Denrich, in recalling this luncheon, agreed that he had re-
ferred to and read from the clipping relating to the Safeway
and Acme closings. He also agreed that when he asked for
questions, Arnold said that she had ‘‘felt intimidated’’ by an
earlier meeting with him (evidently referring to the mid-Jan-
uary meeting), and he replied that ‘‘This is not the place to
talk about it.’’16 Denrich denied having made any statement
about substituting ‘‘Valu Food’’ for ‘‘Safeway’’ in the clip-
ping about closure.
Again, while I thought I detected in Bonnie Arnold a tend-
ency to exaggerate, I do not think she was likely to fabricate
such a statement. Denrich, on the other hand, seemed very
capable of emotion in addressing this subject. I concluded,
having taken into account the absence of corroboration of
Arnold, that Denrich did refer specifically to the possible
closing of Valu Food stores at this luncheon, and I would
think that such a reference is the kind of toying with the fate
of the voters which the Board would find to constitute an un-
lawful threat, in violation of Section 8(a)(1).
2. Various other alleged violations
On January 27, Yingling went to the Havre store and, with
Store Manager Hein, spoke to a few employees. Thereafter,
beginning on February 2, and up to the election on February
18, Denrich came to the store almost every day, sometimes
spending more than 12 hours there in order to speak sepa-
rately to the 50-odd employees, together with other manage-
rial representatives, in the breakroom, as well as to show
some documents and antiunion movies. Denrich had a collec-
tion of props, such as his February 1 mailing and some union
contracts, and a prepared list of topics: strikes, closings,
dues, fees, assessments, union officer salaries, etc., although
he found that he did not have to speak about all the topics
to all the employees (an employee, e.g., might become so
aroused by the idea of assessments that Denrich would home
in on that subject alone).
a. Bargaining from scratch
One of the subjects about which Denrich usually spoke to
employees in these breakroom meetings was the collective-
bargaining process. He understandably was unable to repeat
for us precisely what he told each of 50 employees, but he
said that his remarks followed a standard pattern. He would
say that the process is ‘‘like horse trading back and forth.
You could win, you could lose, you know, you could be the
same’’ Several General Counsel witnesses, on cross-examina-
tion, testified that Denrich had made such complete state-
ments, even though on direct they only quoted him as having
referred to the possibility of ‘‘losing.’’ Their initial recollec-
tion of just the reference to ‘‘losing’’ makes one believe that
any such reference is the one that really strikes a chord with
employees.
I fail to understand why an employer should be allowed
to tell employees that they could, in an initial bargaining
context, ‘‘lose’’ benefits. There is no clear legitimate reason
why employees who receive a certain quantum of benefits
when they are not represented by a union should be con-
fronted with the possibility of ‘‘losing’’ benefits merely be-
cause they have chosen to be represented.17
The Board has held, however, that an employer may de-
scribe collective bargaining as ‘‘bargaining from scratch’’ or
involving the possible ‘‘reduction of wages’’ except in cir-
757BI-LO
18 There also may be applicable here those cases in which bargaining-from-
scratch language has been found unacceptable because of the commission of
contemporaneous unfair labor practices, a doctrine of somewhat uncertain con-
tours sometimes applied by the Board. Beverly Enterprises-Indiana, 281
NLRB 26 (1986); Belcher Towing Co., 265 NLRB 1258 (1982).
cumstances which ‘‘effectively threaten employees with the
loss of existing benefits and leave them with the impression
that what they may ultimately receive depends in large meas-
ure on what the Union can induce the employer to restore.’’
Plastronics, Inc., 233 NLRB 155, 156 (1977). See also
Histacount Corp., 278 NLRB 681, 689 (1986); but see
Scranton Lace Co., 294 NLRB 249 (1989), while it is not
perfectly clear what factors or contextual distinctions will
transform a ‘‘bargain-from-scratch’’ statement from a lawful
description to an unlawful threat, see the useful collection of
cases in Shaw’s Supermarkets v. NLRB, 884 F.2d 34 (1st Cir.
1989), it seems to me that, on at least some occasions,
Denrich crossed over to the forbidden side.
Denrich’s description of a ‘‘standard’’ explanation of col-
lective bargaining varied. At one point in the hearing, as
shown above, he said that he made ‘‘horse trading’’ analo-
gies. However (at Tr. 2264), after repeating such a hypo-
thetical explanation, he added, with regard to Bonnie Arnold
and others (although it is hard to believe that he would really
recall such specific additions):
And what I would say, you know, at times, and I
said it to her at this time, I said ‘‘You know what you
have now.’’ I said Do you know what you’re going to
have?’’ You know, I said Things can be lost, things can
be gained, things could stay the same. You don’t know
what’s going to happen.’’
I said ‘‘It’s a bargaining process, and we’re going to
start, you know, from a clean slate.’’ Meaning we don’t
have a contract right now, so what are we starting
with? You know, yes, you have these benefits, but there
is no contract that we have right now to bargain from.
Denrich (at Tr. 2296) was even more explicit on this point.
He testified that he told employee John Day that, unlike an
existing union setting such as ALP (by which Day had once
been employed), he would not ‘‘have the old contract and
then you’re bargaining for the new contract’’; instead, at
Havre, it was ‘‘different’’: ‘‘You’re going to be bargaining
basically from nothing. You’re going to be bargaining from
scratch.’’
To emphasize that, unlike bargaining from an existing
agreement, nonunionized employees would be bargaining
from ‘‘nothing’’ is, in my view, to indicate that the employer
intended to strip the employees clean of benefits before bar-
gaining begins, as in Mississippi Chemical Corp., 280 NLRB
413 (1986), and Plastronics, Inc., supra at 156. How this dif-
fers from ‘‘bargaining from scratch’’ or ‘‘from zero’’ is not
entirely clear to me, but the Board has drawn such a distinc-
tion and it is my duty to apply it as best I can. Accordingly,
I conclude, based on Denrich’s own testimony, that on some
occasions during the early part of February he threatened to
reduce benefits if employees chose to be represented by a
union.18
b. Withholding of wage increases and
related allegations
The complaint in the Elkton store case (5–CA–19673)
contains only two counts of substantive violations. As they
impinge on Havre and the election there, the one of imme-
diate interest to us at this time is the claim that at all 14 of
its stores, from about January 1, 1988, to about March 6,
1988, ‘‘Respondent delayed the implementation of a wage
increase to employees’’ in circumstances proscribed by the
Act. Since this pervasive allegation also ties into allegedly
unlawful statements made to Havre employees, it seems ap-
propriate to discuss this area at the present juncture.
The record shows that until (and after) January 3, 1986,
Respondent maintained no official fixed salary schedule or
regular increase system other than a 25-cent raise per em-
ployee every 6 months from his or her anniversary date (with
certain exceptions). On the date given, Denrich sent to all
‘‘employees’’ (as they were then known) a schedule estab-
lishing a formal wage system for classifications falling into
three basic groups which continued the 25-cent raise for all
three groups every 6 months with a maximum for each
group.
The 1986 rates remained in existence in 1987, but,
Denrich testified, he was interested toward the end of 1987
in ‘‘updating’’ the schedule. In a letter to an attorney dated
September 9, Denrich stated that he was ‘‘in the process now
of researching and investigating our present wage status and
future wage strategy’’ and hoped to ‘‘implement a new wage
structure no later than January 1, 1988.’’ At a November 3
meeting with his attorneys, Messrs. Pokempner and Wolf,
also attended by personnel director Miller, there was, inter
alia, discussion about raising some pay levels, the possibility
of an attendance bonus, and the need for a seafood manager
pay schedule. The participants planned to meet again in De-
cember to ‘‘finalize’’ a schedule after Denrich had done the
appropriate research.
Denrich said that he began having discussions with various
managers, but stopped when he heard on November 26 about
the Havre petition being filed. Denrich informed Pokempner
of this development, and after Pokempner was told that
Denrich was still in the research stage, he warned Denrich
that bringing out a wage increase prior to an election could
be a ‘‘real problem,’’ because it would look as if Respondent
was bribing the employees. Pokempner said that since there
was no history of giving periodic wage increases and none
has been announced, Respondent could face unfair labor
practice charges and election objections if it proceeded with
preparing and announcing the raises. Recognizing the possi-
bility that they could also be charged with unlawfully with-
holding an increase—described by Pokempner as a ‘‘damned
if you do, damned if you don’t’’ situation—it was decided
by Pokempner that since the new system had not been for-
mulated, Respondent’s safest approach was to hold off the
program.
They further discussed what to do if an employee inquired
about an increase. Denrich was told that they could not
‘‘really talk about it,’’ that it would seem like a bribe to in-
crease wages during the campaign, and he was warned not
to blame the Union for the freeze. It was decided that if the
subject arose, Denrich was to respond that ‘‘we can’t even
talk about it.’’
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 For example, an increase was given to all eight seafood managers, in No-
vember in one case, and early February in the others, as discussed infra. This
could suggest that the increases were set by November, especially since our
earliest documentation of the matter shows that Denrich had been ‘‘in the
process’’ of researching the wage structure since prior to September 9.
But Denrich apparently found it impossible to confine
himself to such a simple formula. He testified that, as a gen-
eral matter, when an employee inquired about the circulating
rumors of a new schedule, he said to them that he ‘‘couldn’t
do anything now because there was an election petition and
because putting in a new wage schedule, at this time, would
be considered bribing the employees.’’ Denrich admittedly
went somewhat further with employee Geraldine Holley: ‘‘I
said that yes, we were discussing it. . . . That we had some
talks about it,’’ but it would seem like bribery, etc. When
asked whether he had to tell this to Holley, Denrich dis-
ingenuously said that he could not ‘‘lie’’ to her; but no rea-
son appears why he could not have answered the question as
Denrich and counsel had planned.
On March 11, 1988, 21 days after the election, Denrich
mailed out to all ‘‘associates’’ a new and more complex
wage schedule which took effect on March 6. The principal
schedule provided no new raises for most employees until
they had worked for 2-1/2 years, at which time they received
$6 or 50 cents more than the wage such employees had been
receiving. This 50-cent increase continued at 6-month inter-
vals until 6-1/2 years of service, when the 6-month raises
began decreasing, so that after 8 years, an employee pre-
viously earning the top scale of $8.50 was raised to a top
scale of $8.60. Separate schedules applied to ‘‘Parcel Pick-
Up/Baggers/Utility Clerks/Day Porters,’’ to ‘‘Night Crew
Grocery Stockers/Produce Stockers/Dairy Managers and Re-
ceivers,’’ to ‘‘Meat Cutters,’’ to ‘‘Hourly Department Man-
agers,’’ to ‘‘Store Detectives,’’ and to ‘‘Truck Drivers.’’ The
letter was fixed in content, thought Denrich, around the first
week in March. He estimated that ‘‘about half’’ of the work
force received a raise.
General Counsel relies on Atlantic Forest Products, 282
NLRB 855, 858 (1987), as ‘‘succinctly summariz[ing] the
law applicable to both Section 8(a)(1) and (3) allegations.’’
That case, however, specifically addresses the question of
how an employer is expected to proceed with an ‘‘expected’’
wage or benefit adjustment, the answer (sometimes easier
said than done) being, as stated in McCormick Longmeadow
Stone Co., 158 NLRB 1237, 1232 (1966), and hundreds of
other cases, ‘‘as if the union were not on the scene’’ Yet the
Board has long recognized that a ‘‘tension’’ exists between
this principle and the ‘‘settled Board policy’’ that a grant of
benefits prior to an election raises a presumption of illegality,
requiring the employer who grants the raise to risk having
to rebut the presumption, a risk which increases geometri-
cally when ‘‘the benefits are not pursuant to any fixed prac-
tice, pattern, or preorganizational announcement, but the tim-
ing and eligibility for the benefit are purely within the discre-
tion of the employer.’’ Singer Co., 199 NLRB 1195, 1196
(1972). In Singer, the Board saw no distinction between
postponements of expected benefits, which may be done if
the employees are given to understand that the purpose is to
avoid an appearance of impropriety (e.g., Uarco Inc., 169
NLRB 1153 (1968)) and ‘‘a situation where, as here, the
benefits are not necessarily expected, and the withholding is
for the limited purpose of protecting the employer from
charges of unlawful conduct.’’ Ibid.
It would appear that something has gone off the track in
this area. The Board adheres to the axiom that an employer
is to proceed as if the union were not on the scene, and yet
simultaneously permits an employer not to do so even
though benefit increases are ‘‘expected’’ by the employees,
for the purpose of avoiding an appearance of election inter-
ference. But if the increase is ‘‘expected,’’ no probability of
election interference exists, or so, at least, would seem the
underlying rationale for the doctrine of having an employer
proceed as if his situation was normal.
In addition, Singer Co. appears to treat 8(a)(1) and (3) vio-
lations as coextensive. In that case, where the employer with-
held promotions until after the election, the Board noted that
the withholding had not been done within the context of
antiunion propaganda, there appeared to have been no formal
announcement of the withholding, and inquiring employees
were told that promotions would be withheld until after the
election; in these circumstances, said the Board, ‘‘we do not
believe that the employees could reasonably conclude that
the Employer’s postponement of promotions and reclassifica-
tions was intended to influence organizational activities,’’
and it thereon dismissed the ‘‘8(a)(1)’’ allegation. But the
Trial Examiner had found violations of Section 8(a)(1) and
(3), and the Board obviously intended to dismiss the latter
as well. The difficulty is that the Board’s rationale for dis-
missal had everything to do with ‘‘coercion’’ and little or
nothing to do with ‘‘discrimination.’’
An assertion that an employer withheld benefits in order
to discourage union membership is an 8(a)(3) allegation,
which presumably should be analyzed, like all specific
8(a)(3) allegations, under Wright Line, 251 NLRB 1083,
1089 (1980), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
In the present case, the half-way-across-the-board wage in-
crease had not been expected, although rumors were abroad
about such an increase, and during some of the breakroom
interviews, employees put questions to Denrich about it.
There is some reason not to believe that, as Denrich testified,
the wage increases had not been virtually fixed by the time
the Havre petition was filed in late November,19 but not
quite enough.
The halt in processing the projected increases does not
present a prima facie case of discrimination, in view of my
conclusions about the motivation for the action. I found cred-
ible Denrich’s specific testimony about his conversation with
Pokempner to the effect that the wage survey had not been
completed as of late November, that if allowed to run its nat-
ural course, the timing of wage increases might well coincide
uncomfortably with the holding of the election, and that in-
creases so timed would very likely call forth charges and
election objections which, in such a discretionary setting,
might be difficult to defend against. My judgment, as we
shall see from later instances of individual raises, is that
Denrich’s personal preference would have been to finish the
wage schedule as quickly as possible and get it into effect
prior to the election, but he instead accepted the advice of
counsel that proceeding in that direction was the least pru-
dent choice. On the limited facts as here presented, I would
dismiss the claim that Respondent’s decision to delay the
processing of a new wage schedule was violative of Section
8(a)(3).
759BI-LO
20 It would have been Denrich, Yingling, Morrison, or White, all recog-
nized supervisors. Tr. 1120.
That holding does not dispose of the possibility that the
Respondent may have violated Section 8(a)(1) by certain ref-
erences to the frozen wage increases, even though it may not
have unlawfully failed to process such increases to comple-
tion. Hostar Marine Transport Systems, 298 NLRB 188
(1990). Charging Party cites six instances in which employ-
ees testified that Denrich discussed the possibility of a new
pay scale with them, and Denrich’s testimony indicates that
there were other such conversations.
Denrich testified that he never raised the issue of a wage
increase with any of the employees, but did discuss the mat-
ter with them if they broached the subject, based on rumors
they had heard. I am, with two exceptions (John Day and
Carol Corron) inclined to believe Denrich on this score; there
is insufficient employee testimony to establish a pattern to
the contrary. The state of the law regarding references to
postponement of benefits because of an election is not en-
tirely clear.
The standards draw some rather fine lines. In Atlantic For-
est Products, supra at 858, the Board (which seemed to be
talking Sec. 8(a)(1) while discussing Sec. 8(a)(3)) stated that
an employer may postpone an expected wage or benefit ad-
justment so long as it ‘‘‘[makes] clear’ to employees that the
adjustment would occur whether or not they select a union,
and that the ‘sole purpose’ of the adjustment’s postponement
is to avoid the appearance of influencing the election’s out-
come. . . . In making such announcements, however, an em-
ployer must avoid attributing to the union the ‘onus for the
postponement of adjustments in wages and benefits’. . . or
‘disparaging and undermin[ing] the [union] by creating the
impression that it stood in the way of their getting planned
wage increases and benefits.’’’ [Quoting from Uarco, Inc.,
169 NLRB at 1154.]
What is the employer’s responsibility when he is not post-
poning an ‘‘expected,’’ planned, and announced benefit?
Since the employees have not been told to expect the in-
crease, it would make no sense for the employer to be re-
quired to explain the ‘‘sole purpose’’ of the postponement of
an adjustment which has not been settled and of which they
are unaware. However, if the employer begins to speak about
the likelihood of new benefits, even in response to employee
questions, he then approaches the forbidden zone of promises
of unlawful benefit. As noted earlier, Denrich, despite having
been warned by counsel simply not to talk about wage in-
creases if the subject should arise, himself testified that he
went further by sometimes engaging in active discussion of
the contemplated increases.
Geraldine Holley, for example, testified that she had heard
rumors about a change in the wage schedule, and sometime
in December asked Denrich about it. He said ‘‘they had been
planning it for a while, but they hadn’t put it into effect yet.
They were going to have to hold off until after the Union
organization was over with’’ However, Holley conceded on
cross that Denrich had also told her that Respondent ‘‘hadn’t
finished . . . planning it yet,’’ and that they ‘‘couldn’t’’ im-
plement a change until the Labor Board proceedings were
over with,’’ because ‘‘it would be like they were . . . trying
to bribe the employees.’’
These remarks are reasonably consistent with the Board’s
standard for the requisite explanation which should accom-
pany a postponement of an expected benefit, but there ap-
pears to be no reason for an employer to say anything about
the likelihood of employees receiving a previously unan-
nounced one. As the Charging Party points out, an employer
seems to be unfairly receiving the best of all possible worlds
when he can, because of uncertainty, withhold a benefit and
at the same time dangle it in front of employees as a plum
they can expect in the future. While only a handful of em-
ployees testified that they had discussions with Denrich
about rumored wage increases, in each instance he gave the
distinct impression that he was preparing to make such in-
crease and was being held up because of the election (as
noted, it turned out that perhaps only half of the employees
benefited by the March increases). No doubt, Denrich’s
words about the increases spread as pervasively among the
employees as the original rumors about them. If telling em-
ployees that the employer is ‘‘looking into improving the
health plan and checking into a pension plan’’ is violative,
even when accompanied by such disclaimers such as ‘‘I can’t
say no more because I wasn’t supposed to say that’’ and
‘‘the company would not make any promises,’’ Pennsy Sup-
ply, 295 NLRB 324 (1989), then it seems to follow that
Denrich’s statements about a projected wage increase were
equally ‘‘an implied promise to better working conditions.’’
c. Allegations pertaining to Jacqueline Yrizarry
Jacqueline Yrizarry, the deli manager at Havre, testified
that at some unknown time, during a meeting in the
breakroom, she was asked, by an unremembered ‘‘member
of management,’’ if she had signed a union card or if she
knew of anybody else who had signed cards.20 She re-
sponded that she had signed a card.
On a Saturday before the election, according to Yrizarry,
she was called to the nearby bakery area to speak to super-
visor Jenelee Rolfe about ‘‘different things.’’ In so doing, the
Union was discussed. Rolfe asked about Yrizarry’s ‘‘feelings
about unions’’ and Yrizarry said she was not sure. Rolfe of-
fered, based on past experience, that unionized people
‘‘could’’ lose their jobs, go on strike, etc. Rolfe gave some
hypothetical examples of how she could easily discharge
Yrizarry, and she also mentioned a few times when Yrizarry
had not made sandwiches for customers, saying, ‘‘Well, you
know, if I wanted to push it.’’ Rolfe also said to Yrizarry
that Denrich ‘‘would believe anything she had to say.’’ As
they finished talking, Rolfe asked if Yrizarry could now sup-
port Denrich with a ‘‘thumbs up.’’ Rolfe then walked up to
Vice President Morrison, standing nearby, and said Yrizarry
‘‘had seen it their way.’’
A day or two later, Yrizarry went to Denrich to tell him
what Rolfe had said and to assert that Rolfe owed her a apol-
ogy. Denrich did not respond, but Rolfe did later apologize
for any misunderstanding, probably prior to the election.
Denrich also subsequently apologized for what Rolfe had
said. Yrizarry testified that it was ‘‘plain as the nose on my
face’’ what ‘‘was going on’’ when Rolfe was speaking to
her. She also testified, however, that after Denrich apolo-
gized, she did not feel that her job ‘‘was in any way, shape
or form jeopardized because the man was very up front with
me.’’
Rolfe denied having asked Yrizarry about her union senti-
ments, but did recall a union-related conversation with
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Although subjective reaction is seldom relied on in applying Sec. 8(a)(1),
her enthusiastic reaction gives some assistance in determining whether the vio-
lation may reasonably be said to have been cured.
Yrizarry shortly before the election. Rolfe spoke at some
length about job security only being assured by an employee
doing her job, regardless of the status of the union. She said
that, despite a union, an employee could be fired for not per-
forming. Yrizarry professed confusion, and Rolfe, recog-
nizing that ‘‘she wasn’t understanding anything that I was
saying,’’ referred her to Morrison, who was walking down
the aisle, for clarification, but Yrizarry did not want to speak
to Morrison. The conversation ended with Rolfe again urging
support for the Respondent, ‘‘possibly’’ saying that perhaps
Yrizarry could give Denrich her ‘‘thumbs up.’’
A few days later, Denrich called Rolfe and asked what she
had said to Yrizarry, who was ‘‘upset.’’ After hearing
Rolfe’s version, Denrich suggested that she talk to Yrizarry,
which she did, saying she was sorry if Yrizarry had not un-
derstood what she was saying and that she did not have to
worry about her job. Yrizarry reported to Rolfe that Denrich
had also said she was a ‘‘good’’ worker and her job was
‘‘secure.’’
Yingling testified that neither he nor Denrich nor Jackie
White asked, at a meeting ‘‘with Yingling and Denrich in the
breakroom,’’ if Yrizarry had signed a union card or knew of
other employees who had. According to Yingling, it was
Yrizarry who volunteered that she had signed a card ‘‘to get
rid of’’ the solicitor. Yingling was present during only one
interview with Yrizarry. Denrich, who said that he had had
‘‘multiple’’ meetings with Yrizarry, most of them initiated
by her ‘‘questions and problems and crying and things,’’ re-
called the occasion when Yrizarry had come to him ‘‘really
upset’’ and with ‘‘bags under her eyes and . . . tears.’’ She
told him that Rolfe had ‘‘threatened her job’’; in doing so,
she had mentioned her power to influence Denrich. Denrich
himself became upset and contacted Rolfe, who conceded
that she had been speaking to Yrizarry about people being
fired when they did not do their work, whether union or non-
union. Denrich told her to apologize, and he himself later
went to Yrizarry and apologized, saying that what Rolfe had
tried to explain was ‘‘a reality of life,’’ not a threat, and that
he did not simply listen to Rolfe, but always
‘‘investigate[d]’’ the facts. He reassured her about the
‘‘great’’ job she was doing.
Denrich also denied hearing any member of management
ask if Yrizarry had signed a union card or knew of other em-
ployees who had done so.
Yrizarry impressed me as a most honest witness who lit-
erally agonized over her testimony. I believed her when she
said that she was asked by a member of management during
a breakroom meeting whether she had signed a card and if
she knew of others who had. Although she could not recall
the identity of the questioner, she said it had to be one of
a group of people shown by the record to occupy supervisory
status; and although she answered the first question in the af-
firmative, it is my impression that the ‘‘totality of the cir-
cumstances’’—being asked such questions in the isolated
presence of at least two supervisors, with no explanation for
the inquiry—made the questioning coercive, within the con-
templation of the test, as quoted, embraced in Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
I have almost as much confidence about the complaint al-
legation that Rolfe ‘‘impliedly threatened to evaluate em-
ployees more strictly and discipline and/or discharge them
for engaging in union activities’’ by virtue of her conversa-
tion with Yrizarry. Rolfe admittedly spoke of an employee’s
vulnerability to discharge regardless of union representation,
and I believe that she also referred to past overlooked defi-
ciencies on Yrizarry’s part, as well as Rolfe’s accessibility
to Denrich’s ear. Put together, this does reasonably sound
like a threat to Yrizarry’s job, and however Rolfe may have
meant it, she should have realized what the natural impact
of her statements would have been on Yrizarry.
I am, nonetheless, inclined to recommend dismissal of this
allegation, based on the prompt apologies by Rolfe (who said
that Yrizarry had misunderstood her and that she did not
have to worry about her job) and by Denrich (who told her
that she was a good worker and that her job was ‘‘secure’’),
and on Yrizarry’s acknowledgement that, as a result of the
apologies, she did not feel that her position was ‘‘in any
way, shape, or form jeopardized.’’21 Raysel-IDE, Inc., 284
NLRB 879, 881 (1987).
Finally, while General Counsel argues that Rolfe’s gratu-
itous statement to Vice President Morrison that Yrizarry had
‘‘seen it their way’’ is coercive, I fail to detect the coercion.
Yrizarry was not required to respond to the remark, and I
cannot perceive any constraint that it imposed on her.
d. The allegedly unlawful pay raises
The complaint alleges that Respondent violated the Act
when, shortly before the election, it granted pay raises and,
in one instance, retroactive pay, to certain employees in
order to influence them to vote against the Union.
In reaching the following conclusions, I have taken into
consideration an exhibit introduced by Respondent showing
retroactive increases given to six other employees on various
days in March, April, May, and July 1987. Although Denrich
testified that he remembered two of the five situations, I
have my doubts (in each case with which he was purportedly
familiar he stated that ‘‘it looks like’’ the situation was etc.).
In any event, there is no clear evidence that Denrich person-
ally played any part in effecting these adjustments.
There is also in evidence notes taken by Denrich as he
made his normal tour of the stores in July and August 1987.
Some of them show pay problems and other requests brought
to his attention by employees, but there is no evidence that
Denrich was instrumental in personally resolving them in the
employees’ favor, and counsel for Respondent stated that the
notes were not offered to furnish such proof.
I have also noted the testimony of Carol Corron that on
election day, Denrich said to her that Respondent needed her
help, and that ‘‘we would all be given raises after this was
over.’’ She took advantage of the occasion to inquire about
the 25-cent raise she had expected when she transferred into
the meat department from the bakery in 1987. Denrich said
that he would check into the matter, and then, ‘‘a couple
hours later,’’ returned and said ‘‘they didn’t do that any-
more.’’
Denrich agreed that Corron had asked about her 25-cent
transfer raise; he made an inquiry to the payroll department
and was told that the practice had been abandoned. Denrich
was himself dubious, however, that he actually checked with
the payroll office and responded to Corron on the same
761BI-LO
22 When the actual decision was made is undisclosed by the record.
23 The other seafood managers apparently received a $1 raise in February;
at least that was the case according to the testimony of Stemmers Run Seafood
Manager Richard Heinly. These raises are not referred to by the complaint.
24 On brief, Respondent states that the record shows that Shaffer received
her increase effective November 22, ‘‘prior to the filing of the petition’’; but
in fact her pay record and the stipulation of the parties show that her increase
was ‘‘effective’’ November 28; when it was actually recorded is undisclosed.
Respondent’s argument as to ‘‘payroll ending dates’’ based on Susan Yale’s
card seems to be defeated by the 2-9-88 entry. Charles Smith is employed
part-time at Havre, for about 15 hours per week. He testified that he was not
sure of his classification when he began work in, as his pay record shows,
1984. At some point, he was asked his classification by the main office, which
said that the records showed him to be a ‘‘bagger.’’ Believing that he should
be classified as a grocery clerk, a higher-paying rate, Smith spoke to three suc-
cessive Havre managers, including Hein, but got no results. Perhaps within a
month of the election, he spoke, for the first time, to Denrich about the matter,
and within the week, Denrich had arranged, effective January 24, a change of
classification to grocery clerk for Smith, with a concomitant raise of 25 cents
per hour, as well as backpay of $99.45 (or approximately 25 weeks of com-
pensation, at 25 cents times 15 hours per week), paid by check on February
12.
25 While, as noted, he testified at one point that he had thought that baggers
were ‘‘ancient history,’’ the wage schedules issued on March 11, 1988, con-
tained a separate schedule for ‘‘Parcel Pick-up/Baggers/Utility Clerk/Day Por-
ter.’’
day—election day: it ‘‘wouldn’t seem I’d do that.’’ I tend to
agree that, as busy as Denrich obviously was on February 18,
he would not have had the inclination nor the time to look
into Corron’s request on that day. Thus, I would not draw
from Corron’s probably mistaken testimony the favorable in-
ference urged by Respondent, based on its view of the facts,
that Denrich obviously had no interest in influencing votes
because he could have delayed until after the election his
negative, and perhaps damaging, reply to Corron. My
guess—like Denrich’s—is that he did not respond to her
until the election was over.
Carolyn Shaffer, a rank-and-file employee serving as the
seafood manager at Havre, testified that probably around Oc-
tober 1, ‘‘before any of the Union stuff was going on in the
store,’’ she asked Denrich for a raise, citing various urgent
personal needs. He told Shaffer that ‘‘there was a pay scale
going into effect,’’ but he ‘‘would have to wait until after
the Union election before he could put it into effect,’’ refer-
ring to the fact that it could be construed to ‘‘buy people’s
votes and he could not do that.’’ Nonetheless, considering
her pressing situation, he agreed to look into it.
Time passed, no raise was forthcoming, and Shaffer
broached the matter with Denrich again, maybe ‘‘a couple of
weeks before Thanksgiving.’’ Once more he said he would
investigate, and this time, according to her pay record and
a stipulation entered into by the parties, a $1.50 per hour
raise, taking her to a wage of $7 became effective November
28, 1987, and showed up in her check perhaps ‘‘the second
or third week in December.’’
Denrich testified that he did tell Shaffer in late November
that he was ‘‘putting in’’ a new pay scale in January, but he
says that he only referred to a scale for seafood managers.
He had specifically discussed promulgation of such a scale
for seafood managers in the November 3 discussion with his
attorneys about changing the existing wage schedule because
‘‘we didn’t have at that time’’ a seafood manager pay scale.
But, as the January 3, 1986, wage schedule indicates, there
also was no existing wage schedule for any of the various
other managers at that time.
Shaffer’s testimony is somewhat confusing, but it is my
judgment that she did in fact first speak to Denrich about a
raise ‘‘before any any of the Union stuff was going on in
the store.’’ Denrich made a note of her request and said he
would check into it, but nothing happened. While she testi-
fied that ‘‘[i]t seems like to me there was a couple of weeks
had went by and I didn’t see anything,’’ at which time she
again asked Denrich about the raise, I believe that this sec-
ond conversation occurred sometime late in November, since
it must have been at that time that Denrich spoke of the rep-
resentation petition, which was not filed until November 25
and therefore could not have been referred to in the first con-
versation, which probably was held around the ‘‘end of Sep-
tember.’’ This time, however, Shaffer got action. As the
record shows and the parties stipulated, Shaffer was raised
from $5.50 to $7 effective November 28.22
The evidence shows, in other words, that Denrich appar-
ently paid no particular attention to Shaffer’s urgent request
for a much needed raise until after the petition was filed, at
which time he acted with dispatch and in seeming defiance
of his counsel’s advice, and his own comment to Shaffer,
that wage increases could appear to constitute bribery. I can-
not accept that this action was motivated either by altruism
or business considerations. Denrich’s delay after the first re-
quest militates against the first explanation, and that appears
to be the only explanation offered by Denrich.23
In these circumstances, I cannot accept the purported jus-
tification that Denrich was simply acting out of the goodness
of his heart, and I conclude that the evidence as a whole, in-
cluding Denrich’s explanation, preponderates in favor of a
finding of violation.24
Denrich explained that the ‘‘bagger’’ classification was
once used frequently for hiring at a low rate, but ‘‘we really
don’t use it very much any more’’; in fact, he thought they
were ‘‘ancient history’’ and that ‘‘we didn’t have any.’’ Gen-
erally, new stores had used baggers ‘‘a lot,’’ but they were
later reclassified as ‘‘grocery clerks.’’ Some got lost in the
system, and Smith appeared to be one of them. Smith had
never before complained to him about his classification.
Denrich looked into the complaint and found merit in it. Pur-
suant to the practice of paying ‘‘retros’’ in such situations,
which had been done ‘‘plenty of times,’’ Smith received
some backpay.
The record shows that Respondent makes some 40–60 ret-
roactive changes in employee status during an average year
at all its stores. Of the six examples from early 1987 placed
in the record by Respondent, they represented inadvertent
failures to pay employees in accordance with recent changes.
There is no evidence of any previous alleged failure to re-
classify on a par with Smith’s case.
Nonetheless, although the case is suspicious, I conclude
that no violation has been established. According to his testi-
mony, Smith had been complaining to various store man-
agers for years about being misclassified, but he had never
previously approached Denrich about the matter. Although
Denrich’s testimony is questionable in this area as in oth-
ers,25 there is no reason to believe that, having been in-
formed for the first time that Smith was performing grocery
clerk duties, he would not have acted with reasonable
promptness, with or without a union campaign, to set matters
aright. Unlike the broader increases which he was advised to
withhold, Smith’s increase amounted to a clearer and less
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 On direct examination, Yale testified that Denrich ‘‘asked what our griev-
ances were . . . [w]hy we wanted to get in a union.’’ On cross, however, she
readily agreed that Denrich asked neither question, but simply inquired wheth-
er she had ‘‘any problems.’’
27 The complaint does not allege that the sister’s promotion was a violation.
discretionary entitlement. And as for the 6 months of retro-
active pay (a figure which, Smith made clear at the hearing,
he thought was far from adequate), that arbitrary figure evi-
dently was warranted and could justifiably have been made
larger. I would, in the circumstances, dismiss the allegation
as to Smith. American Sunroof Corp., 248 NLRB 748, 749
(1980).
Sterling Rapposelli, a part-time employee and a fairly in-
coherent witness, met in the breakroom with Denrich and
Yingling. After talking about strikes, etc., Denrich allegedly
said that he had discussed Rapposelli with Manager Hein,
who told him that Rapposelli was ‘‘doing a good job’’; asked
him if he was satisfied with the hours he was getting; and
discussed a possible pay increase for Rapposelli because he
was a ‘‘utility clerk’’ and ‘‘kind of wrote it down in his little
black book’’ Rapposelli was ‘‘almost positive’’ that he did
not initiate the subject of a raise.
Perhaps 2 or 3 days before the election, having missed his
scheduled luncheon, he met again privately with the two
managers. After Denrich gave him ‘‘the same speech over
again,’’ he told Rapposelli that he had looked into it, found
that Rapposelli was being underpaid, and that the 50-cent in-
crease would be reflected in his next pay check (it was, in
the check for the period ending February 13, 1988. His clas-
sification was also changed to that of grocery clerk.)
On election day, Denrich told Rapposelli and his brother
Tom, also an employee, that he had been talking to their fa-
ther, and he ‘‘was counting on us.’’
Rapposelli was hired as a ‘‘bagger’’ (he ‘‘believe[d]’’) in
1985, and his duties remained the same thereafter. These
consisted of ‘‘bagging when the store got busy’’; stocking
shelves; taking care of the eggs and milk and bread; and fill-
ing in wherever needed.
Denrich said that in his discussion with Rapposelli in the
breakroom, he had the same reaction that he had had to
Charles Smith’s revelation of being classified as a bagger—
’’surprise’’ when he heard that Rapposelli was a bagger, be-
cause ‘‘really we weren’t using that many baggers anymore’’
except when opening up the store. After a while, ‘‘normally
they were transferred into other departments to become gro-
cery clerks, or deli, or produce, or whatever.’’ It was not
clear how Denrich came to know Rapposelli’s classification:
at first he testified that Rapposelli ‘‘brought it to my atten-
tion,’’ and then on the next page stated that he found out
from ‘‘talking to Warren,’’ the store manager. The expla-
nation as to why Smith, but not Rapposelli, received retro-
active pay, was that ‘‘we don’t like to give retros if we don’t
have to’’ and ‘‘[w]e felt that the decision we made was satis-
factory . . . to bring him up to the grocery clerk schedule.’’
Unlike the case of Smith, I am inclined to regard the up-
grade of Rapposelli as the product of Denrich’s irresistible
urge to display ‘‘a fist inside the velvet glove,’’ NLRB v. Ex-
change Parts Co., 375 U.S. 405, 409 (1964). Rapposelli did
not complain about his pay or his classification, as had
Smith, and I do not think that his work had changed, as
Smith’s apparently had. With no complaint from Rapposelli,
I doubt that, in normal conditions, Denrich would have made
the extra effort required to pay him a higher wage, just as,
admittedly, ‘‘we don’t like to give retros unless we have to.’’
Denrich testified that he made no effort to check his other
stores in a search for other matured baggers to promote. I
conclude that the raise given to Rapposelli so soon before the
election constituted an effort to infringe on his freedom of
choice, in violation of Section 8(a)(1).
Bakery employee Susan Yale testified that on about Feb-
ruary 10, she spoke to Denrich, Yingling, and Jackie White
in the breakroom for about 20 minutes. She recalled that
Denrich asked if she was having any problems.26 She spoke
of a promotion for her sister Dawn Saponaro and a 25-cent
wage increase for herself. In a second conversation prior to
the election, Denrich told her that she would be receiving her
raise, which was reflected in her next paycheck. Her sister
was also promoted subsequent to the election.27
On cross-examination, Yale agreed that, in answer to
Denrich’s question about problems, she brought up a com-
plaint she had about the loss, as a result of the new pay scale
in 1986, of a 25-cent differential which she had previously
been receiving as a cake decorator. Yale had never spoken
to Denrich or any other manager about the problem before;
she and Bakery Manager Bonnie Arnold had discussed it, but
there is no evidence that Arnold had made any effort to have
Denrich himself straighten out the situation. The next time
Yale saw Denrich, a day or two later, he said that he had
looked into the matter, ‘‘that [she] was right, it was incor-
rect,’’ and the situation would be taken care of. She received
the extra 25 cents in her payroll check on February 19,
which she agreed would have been made up prior to the
election.
With respect to the raise given to Yale, Denrich testified
that in looking into her complaint about erosion of her 25-
cent differential, he found that she was being shorted, and
her salary was therefore increased. Prior to this meeting,
Denrich had not heard about the problem.
As in Smith’s case, I see no viable basis on which to con-
clude that the grant of a increase to Yale was unlawful, al-
though the circumstances are suspicious. In answer to a ques-
tion about any problems that she had, Yale complained about
her loss of a 25-cent differential. Denrich investigated and
found that she had been improperly treated. He ordered that
the differential be restored. There is no dispute that he was
correcting a wrong which had never been made known to
him before, and unlike the cases of Shaffer and Rapposelli,
Yale’s increase is not easily considered simply an exercise
of discretion. I note that, evidently unlike the case of Smith,
Yale did not seek retroactive pay and Denrich did not go out
of his way to offer it to her. American Sunroof Corp., supra
at 749.
e. Solicitation of grievances and implied promises
The Havre complaint, with regard to Denrich, contains a
single allegation respecting solicitation of grievances—that
‘‘on or about January 27,’’ Denrich ‘‘attempted to influence
employees’ union support by soliciting grievances.’’ On
brief, General Counsel names two instances in which em-
ployees testified that they were asked, when called into
breakroom meetings, whether they had ‘‘any problems.’’
Denrich affirmed that it was his usual custom to greet em-
ployees at the stores with variations of ‘‘How’re you
doing?’’ or ‘‘Do you have any problems?’’, and the general
763BI-LO
28 He also had a ‘‘President’s Hotline,’’ by which an employee could di-
rectly communicate with him (although the employee manual indicates that the
communication was to be in writing, see C.P. Exh. 3, p. 33, the testimony
referred to telephone calls), and he regularly scheduled ‘‘Meet the President’’
days at all the stores, permitting employees to bring grievances to his atten-
tion.
29 Respondent refers on brief—but General Counsel does not—to a
breakroom meeting in which Arnold asked about the raise received by Carol
Shaffer and Denrich replied, ‘‘Bonnie, that’s one of the reasons why you don’t
need a union. If you have problems, you can always come to me and I would
do what I can.’’ From General Counsel’s failure to mention this exchange, I
infer that the Government either believes that no such violation is alleged or
that ‘‘I would do what I can’’ is, in Respondent’s words, ‘‘too nebulous to
support an adverse finding,’’ and, in any event, consistent with Denrich’s his-
torical practice.
tenor of employee testimony is that he usually made some
such greeting to them.28 Denrich’s general casual cordiality
with employees may, however, arguably be distinguished
from isolated breakroom meetings at which he sat them
down and asked, more emphatically, if they had ‘‘any prob-
lems.’’ Carbonneau Industries, 228 NLRB 597, 598 (1976).
The Board has held that soliciting grievances gives rise to a
rebuttable inference that the employer is making a promise
to correct any such grievances, Uarco, Inc., 216 NLRB 169
(1975). The Board had also held that expressing a strong
willingness to employees at a meeting to oblige them if they
felt a ‘‘need’’ to discuss wages or talk about any matter con-
tains ‘‘no indication or suggestion that Respondent would act
on any grievances or problems raised by any employees.’’
Wm T. Burnett & Co., 273 NLRB 1084, 1086 (1984). See
also Sunnyvale Medical Clinic, 277 NLRB at 1223. These
cases are not easily reconcilable. My own feeling is that,
even in the unprecedented circumstances of the breakroom
campaigning, Denrich’s question about ‘‘problems,’’ without
more, did not logically or in common intercourse connote a
serious commitment to resolve any such problems, especially
since they appeared to be nothing more than a solicitous
opening gambit for launching into the semistandard antiunion
attack. This conclusion is to some extent bolstered by the
employees’ familiarity with Denrich’s availability.
Two other instances purportedly falling into this general
category are listed by General Counsel. One is the instance
involving Sterling Rapposelli, which I have already discussed
in the context of the raise actually given to him. The remain-
ing incident, according to General Counsel, may be found in
a conversation between Denrich and Bonnie Arnold.29
The day before the election, Denrich asked to speak to Ar-
nold. He told her that after talking to many employees, he
saw the need for changes in the store and ‘‘he needed a year
to get some of these changes to go through.’’ He assertedly
wondered if they could ‘‘work something out’’ so that she
would tell the voters to give him the needed year. Arnold re-
plied that the employees could make up their own minds.
When Denrich said that he did not need Arnold to win, she
accused him of taking her participation personally. Denrich
replied that ‘‘it was personal to him, that if [she] wasn’t with
him on this, then we could not be friends.’’ When he further
stated that no outsider was going to come in and tell him
how to run his store, she became ‘‘upset’’ and left.
Denrich testified that he asked for the meeting because su-
pervisor Jenelee Rolfe, who had spent much time in the store
prior to the election, told him that she felt that ‘‘Bonnie may
have changed her allegiance.’’ In the breakroom, he told her
what Rolfe had said and asked ‘‘Is there anything I can do?
. . . . What can I say to you?’’ In response, Arnold ‘‘went
into a long discussion about why the company needed a
union.’’ He then testified at length about the issue-oriented
discussion which followed, but did not specifically address
all of Arnold’s other allegations. He did state, however, that
she accused him of ‘‘taking it personal’’ and he said, ‘‘Yeah,
it is personal to me.’’ Denrich denied that Arnold had ever
abruptly departed from a conversation with him.
For one thing, I find it most unlikely that Rolfe would
have had any reason in the world to believe that Arnold was
wavering in her Union allegiance, and I do not believe
Denrich’s version of the genesis of this conversation. Nor do
I accept his testimony that he merely spoke to her about
changing her own mind (although his account—‘‘Is there
anything I can do?’’—may itself constitute an unlawful solic-
itation and implied promise). I believe Arnold’s testimony
that Denrich spoke to her as a leader of the union movement
and asked her to try to convince the voters to give him a
year to make needed changes in the store.
Respondent, citing recent cases holding lawful employer
requests for ‘‘a second chance to see if they could make
things better,’’ National Micronetics, 277 NLRB 993 (1985),
and for another year ‘‘to work together,’’ Clark Equipment
Co., 278 NLRB 498, 500 (1986), argues that they stand for
the doctrinal proposition that ‘‘Generalized expressions of
this type . . . have been held to be within the limits of per-
missible campaign propaganda,’’ National Micronetics, supra
at 993, citing Allied/Egry Business Systems, 169 NLRB 514,
517 (1968). While the conclusion might be subject to dis-
pute, the authority of the precedent cannot be, and, on this
point, I am unable to meaningfully distinguish the cited
cases.
However, I do believe that Denrich violated the Act, in a
manner fully and fairly litigated, by calling in Arnold and
putting her in the awkward and discomforting position of
having to respond to his request that she attempt to dissuade
union supporters from following their bent. Putting her on
that particular spot plainly constituted coercion and inter-
ference under Section 8(a)(1). It is true that the Board’s 2–
1 panel decision in Gary Aircraft Corp., 190 NLRB 306, 312
(1971), argues against such a finding, but its subsequent de-
cision in Cordin Transport, 296 NLRB 237 fn. 3 (1989),
slips the absolutist shackles of Gary Aircraft and examines
the ‘‘context’’ in which the request was made. I need refer
to no more of the context than Denrich’s earlier pressure on
Bonnie Arnold regarding the tenuousness of her husband’s
and her own job.
I also believe that Denrich’s statement—and here I credit
Arnold—that ‘‘if she wasn’t with him on this, then we could
not be friends’’ was violative. I perceive no reasonable infer-
ence but that the friendship which would be lost over union-
ization could naturally result in adverse consequences for Ar-
nold. That is clearly an 8(a)(1) threat.
f. The Donahey discussions
William Donahey, who has since voluntarily left Respond-
ent’s employ, testified that during a breakroom interview
with Hein and Yingling, he was asked by Yingling if he
‘‘knew anything about this union campaign,’’ to which he re-
plied that he was ‘‘really not paying much attention to it,
which I wasn’t.’’ Donahey testified that he was further asked
by Yingling ‘‘what are the—any other employees trying to
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Donahey admitted that when he left Respondent’s employ, he spoke to
the Union about filing a claim on his behalf for Respondent’s failure to con-
tinue his insurance coverage.
get other employees to sign union cards or join the union,’’
to which he responded that he had no idea. With Yingling
saying they were ‘‘sorry you couldn’t shed more light on
this,’’ the meeting concluded.
This meeting probably occurred, as Donahey seemed to
agree, on January 27, when, according to Yingling, he first
came to the Havre store to oversee the preelection activities
(Denrich did not start participating in the breakroom meet-
ings until February 2), and he conceded that he and Hein had
a few quick breakroom conversations with employees on and
after that date. Yingling denied having asked Donahey ‘‘who
was involved with the union’’ or any like questions, but he
did recall that he spoke to Donahey on January 27 in a
‘‘very short’’ conversation in the breakroom.
Although, as discussed hereafter, I am not enthused about
Donahey’s reliability, this particular segment of his testimony
sounds real to me. It seems likely that Yingling might have
asked these questions and that the courteous Yingling would
have expressed sorrow that Donahey ‘‘couldn’t shed more
light on this.’’ Yingling actually recalled speaking to
Donahey in such a ‘‘short conversation,’’ but did not tell us
what he did discuss or might have discussed. I have consid-
ered and rejected the argument that the end of January would
have been late in the game to be searching out the identity
of union partisans. Those individuals would logically have
been the ones on which management wished to concentrate
during the campaign. I would credit Donahey on this subject,
and would further hold that the unexplained and unapologetic
probing of union activity by a top management official was,
in the total circumstances, likely to have had a coercive ef-
fect, in violation of Section 8(a)(1).
According to Donahey, not long before the election, he
was called into the breakroom by Denrich (and perhaps
Hein). Denrich showed him some clippings from the Feb-
ruary 1 mailing and stated that the Havre store ‘‘could be
closed’’ and that the employees could lose benefits ‘‘that we
already had established’’ Donahey further testified, at least
initially, that Denrich said that ‘‘there . . . . was going to
be an across-the-board raise that had been initiated before the
union even started its drive at our store.’’ However, when
counsel for General Counsel tried to pin this down more spe-
cifically, Donahey somehow converted the statement about
the ‘‘pay raise’’ into Denrich saying, ‘‘I know that things
can be improved here at these stores and that you meat cut-
ters may be looking for a retirement program, and that when
this is over we’ll talk about that.’’ In further questioning by
me about the ‘‘pay raise,’’ Donahey returned to asserting that
Denrich had said ‘‘there was to be an across-the-board pay
raise.’’
At another meeting with Denrich, Donahey was shown the
Union pay scale for meatcutters at another chain, without
Denrich pointing out that he was referring to the beginning
wage. Presumably knowing that Donahey’s financial condi-
tion caused him to work every possible Sunday in order to
earn time-and-one-half premium pay, Denrich allegedly said
that ‘‘quite possibly Sundays could either go to straight time
or we can make 50 cents per hour over normal pay for work-
ing all day Sunday.’’ At this meeting, Denrich asked
Donahey, ‘‘Do we have your vote’’ (which he evaded an-
swering) and also made a statement purportedly ‘‘to the ef-
fect that he had 14 [sic] other stores and maybe losing one
wasn’t too rough.’’
Denrich and Yingling denied Donahey’s more sinister alle-
gations, while admitting showing him clippings about store
closings. I was not impressed with the trustworthiness of any
of the three witnesses, but Section 10(c) requires the General
Counsel to shoulder the burden of proving his case by a
‘‘preponderance of the testimony taken’’ Donahey exhibited
an extreme bias in favor of the Union. He also was most elu-
sive and suspiciously uncertain about whether Chuck Arnold
had ever expressed his preference to Donahey, while at the
same time he was ‘‘absolutely’’ certain that Arnold had noth-
ing to do with Donahey’s signing a card. While answering
‘‘No’’ to a question as to whether Denrich had ever talked
to him ‘‘about collective bargaining with the union,’’ he then
went on to answer affirmatively four questions which nec-
essarily constituted a discussion about collective bargaining.
These examples of Donahey’s testimony lead me to believe
that I am unable to trust the veracity of his testimony as a
whole.
On these issues, I am constrained to find that we heard
half-truths and embellishments from Donahey. I would not
depend on his testimony (while recognizing that it could be
true) that Denrich simply stated that the Havre store ‘‘could
be closed’’ or that closing one ‘‘wasn’t too rough.’’ I have
no idea whether a pay raise was mentioned, and although
Denrich conceded that he spoke of the possibility of a lower
Sunday premium, he said that it was in the context of a
‘‘bargaining—from-scratch’’ explanation which, as earlier
discussed, the Board seems to find legally tolerable. I doubt
that Denrich asked if Respondent had Donahey’s vote; other
testimony along this line shows that Denrich usually stated
affirmatively, and without questioning, that he hoped he
could count on the employee for support. In sum, except as
indicated with respect to Yingling, I recommend dismissal of
all allegations related to Donahey.30
g. Surveillance and other allegations
Other kinds of occurrences allegedly violative of the Act
were litigated. It seems useful to preface their discussion
with some background information regarding the situation at
Havre prior to the election.
Despite my resistance, and General Counsel’s repeated ac-
knowledgements that the matter was not, in general terms,
encompassed by the complaint (Tr. 924, 1336–1339, 1631,
1649, 1788), a plethora of testimony seeped into the record
about the presence of outside supervisors and union orga-
nizers in the Havre store during the 10 days or so preceding
the election. Whether the supervisors were brought in to con-
stitute a show of force, to engage in surveillance of union
activity, or simply to guard against an invasion by a group
of organizers (and union members from other bargaining
units) who, the record shows, made frequent trips through the
store as the election approached, greeting and speaking with
the employees, I do not know. It is evident that the store was
chockablock with representatives of both sides. Denrich was
present almost constantly; Jenelee Rolfe was exclusively sta-
tioned at Havre for several days; Director of Security Wil-
liam Tolson and security guards were prowling around al-
most ceaselessly; the produce supervisor for all the stores,
765BI-LO
31 She asked if Arnold had Sunday off, and said ‘‘Good’’ to Arnold’s af-
firmative reply.
George Handley, spent most of his time at Havre in the pe-
riod prior to the election; Vice Presidents Yingling and Mor-
rison were often on the premises; and other storewide mana-
gerial types were assigned there. Similarly, it appears that as
the countdown to the election proceeded, more and more
union organizers or partisans made more and more appear-
ances, buying bagels and fruit and in subtle ways waving the
union banner. The atmosphere was both unprecedented and
presumably tense.
While, as indicated, I attempted to discourage the almost
unstoppable flow of unfocused testimony about the strangers
in the store prior to the election, certain incidents were liti-
gated more or less in harmony with allegations specified in
the complaint.
Arnold told us that on the Saturday preceding the election,
Jenelee Rolfe came into the bakery, said she would be there
‘‘for the duration,’’ and ‘‘wanted to know [Arnold’s] sched-
ule.’’31 Rolfe stayed in the bakery until the election on the
following Thursday. During this period, Rolfe did little but
occasionally wait on a customer and a few other functions.
Rolfe testified that in February, she was asked by Yingling
to go to Havre ‘‘to maintain business’’ in the bakery depart-
ment because there was ‘‘a lot of union activity going on,
a lot of confusion in the bakery department.’’ She arrived at
8 a.m. on Saturday and stayed until after the election, except
for Sunday. She said that when she first came, Arnold asked
if she was there ‘‘to baby-sit her,’’ to which Rolfe replied
that she was there to ‘‘make sure we stay in business and
maintain our bakery.’’ Rolfe also told Arnold that she would
‘‘appreciate it if [she] would not do union business on your
working hours.’’ Arnold was, Rolfe said, quite open about
her sympathies.
Arnold testified that it had been the practice of employees
in the morning to buy a roll at the bakery, ‘‘talk for a few
minutes, get warm.’’ About the Saturday prior to the elec-
tion, Rolfe told Arnold that they ‘‘weren’t allowed to come
up to the bakery,’’ had to ‘‘stay on the other side of the
counter’’ and had to get their pastries and leave: ‘‘They
couldn’t stand around and talk.’’
Rolfe testified that it was against Company policy for em-
ployees in one department to enter another, help themselves,
and hang around. She says that she told Arnold that she
‘‘would prefer that they not take their breaks in the bakery
department.’’ Rolfe was not sure, but thought that the policy
was set out in the employee handbook.
Rolfe’s concession that she was told by Yingling to go to
Havre because there was ‘‘a lot of union activity,’’ a ‘‘lot
of confusion,’’ in the bakery department, plus the fact that,
like Arnold, she was not present on Sunday, strongly suggest
that her special purpose for being there was to ride herd on
Arnold, and to do so in a rather ostentatious manner, given
the number of supervisors who were already in place to mon-
itor this relatively small store. There is no evidence that an
unusual amount of union activity had been taking place at
the bakery counter, although doubtless the subject had come
up before the employees were interdicted by Rolfe from con-
tinuing their prior practice of talking ‘‘for a few minutes’’
after purchasing a bakery product.
I conclude that storewide Supervisor Rolfe’s specific as-
signment to the bakery department for 5 full days, according
to a schedule which coincided with Arnold’s, was not only
an effort to oversee Arnold’s union activities, but was also
designed deliberately to give impression that those activities
were being monitored. I further conclude that the record does
not support a finding that any such union activity in which
Arnold may have engaged while on duty interfered with her
work or differed—except in terms of content—from the kind
of worktime communication which had been permitted in the
past.
General Counsel also notes testimony by Arnold about a
conversation with George Handley, the produce supervisor
for all the stores, who spent an unprecedented amount of
time at Havre during the week or two before the February
18 election. Arnold, who was obviously friendly with
Handley, testified:
[During the week before the election] we would talk
back and forth to each other and this, that, and the
other, and George came up and he said, ‘‘Bonnie, I’ve
known Louis for a long time. I’ve known him for like
22 years,’’ and he was teasing, he said ‘‘we had a fight
one time when I was little,’’ you know, and whoever,
he said he whipped Louis, you know, just teasing, car-
rying on. And he said, ‘‘Look, Bonnie, I’ve known him
so long, I know if the Union get in, he will close this
store.’’ And I said, ‘‘Oh, George.’’
Handley testified that in his amiable conversations with
Arnold during the week preceding the election, he made no
statement about Denrich closing the store. While Handley
struck me as a relaxed and pleasant witness, his testimony
seemed unreliable. On cross-examination by Charging Party,
when asked how he ‘‘came to know Mr. Denrich 22 years
ago,’’ Handley replied that it was not 22 years ago. To the
next question—‘‘I thought that’s what you said’’—Handley
answered, ‘‘I said 15 years. I didn’t say 22 years.’’ This ap-
pears to be an admission that Handley did have a conversa-
tion with Arnold in which the length of his relationship with
Denrich was mentioned, and tends to corroborate the remain-
der of her testimony.
In any event, I do not believe that Arnold manufactured
this conversation. The facts that she referred to Handley
‘‘teasing,’’ that she replied, ‘‘Oh, George,’’arguably as if she
did not believe him, and that she testified that, in fact, she
did not think Denrich would close the store in the event of
unionization, do not militate against finding a violation based
on Handley’s statement. The Board has settled the principle
that the test of coercion or restraint is whether a statement
would reasonably tend to have such a result, Hanes Hosiery,
219 NLRB 338 (1975), and Handley’s prediction would sure-
ly have such a tendency. That the statement was made as the
culmination of a good-humored conversation does not seem
to detract from that tendency.
Not long before the election, Security Director Tolson ap-
proached Arnold and introduced himself. According to Ar-
nold, Tolson said he was there ‘‘to make sure that I stayed
in my department and that there was no union activity, that
I wasn’t allowed any phone calls.’’ Tolson was ‘‘very nice’’
and apologized for having to impose such constraints.
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 The record also shows that Tolson nonetheless received a ‘‘favorable’’
reference from Respondent.
33 Security guard Mark Donnellon testified that the guards had been in-
structed by Tolson to ‘‘watch what the [Union was] doing . . . outside the
store.’’
34 Whether Rolfe was with Tolson on this occasion, I cannot say; Day did
not remember seeing her.
Tolson, who testified that he arrived at the store on Feb-
ruary 8 at Denrich’s instruction (because the employees were
being interfered with and the store was ‘‘in somewhat
chaos’’) and stayed there full-time (except for Saturday and
Sunday) through election day on February 18, recalled that
store management had noticed an ‘‘unusual’’ amount of tele-
phone calls coming into all the departments, and he told the
department heads separately to keep ‘‘all personal telephone
calls down to as minimal as possible.’’ Tolson also denied
mentioning the union in the conversation with Bonnie. He
was not specifically asked to deny that he said he was there
to make sure that she stayed in her department, but his testi-
mony as a whole contradicts that claim.
Arnold also testified to a similar remark by Tolson as that
made by Handley, earlier discussed. At some time prior to
the Handley conversation, Tolson allegedly told Arnold that
‘‘he knew that Louis and his father had already had meetings
and if in fact the Union did get in, the store would close.’’
She ‘‘probably’’ responded to Tolson that she ‘‘didn’t think
he would do it.’’
Tolson gave quite a different version. He said that when
he began his full-time tour of duty at the store, he had a con-
versation with Arnold at the bakery counter in which Arnold
said to him that she had heard that Denrich was ‘‘talking
with his father about closing the store down if the Union got
in, and she asked me if I have heard the same thing.’’ He
denied having heard any such rumor, and was rebuffed when
he asked her to name her source.
Tolson made a good personal impression, and I am aware
that he was discharged by Respondent because of an incident
on the evening of the election.32 I am inclined, however, to
accept most of Arnold’s account.
Some of Tolson’s testimony gave me considerable pause.
For example, with reference to a matter to be discussed here-
after, he said that he was aware of the Respondent’s off-duty
no-access rule ‘‘because when I came with the company, I
had a set of rules and regulations, a general basic guidelines
to go by in what the company allows and doesn’t allow.’’
When asked if these rules were written, Tolson answered,
‘‘To actually say they’re written, no, sir, I don’t believe they
were.’’ Then he was remitted to ‘‘guessing’’ who it was that
told him what the rules were. Again, he testified that store
management (‘‘I believe it was Mr. Hein’’) had asked him
to tell the department heads to keep personal calls to a min-
imum, but he had ‘‘no idea’’ why Hein did not undertake
to perform this simple task himself.
My inclination is to accept Arnold’s testimony that Tolson
apologetically said that he was there to make sure that Ar-
nold (and presumably other employees) ‘‘stayed in my de-
partment and that there was no union activity.’’ The former
restraint was, in practice, a new one, the latter was unquali-
fied and overbroad, and I find that Respondent thereby vio-
lated Section 8(a)(1). My intuition as to the telephone call
matter is that Tolson did not say that Arnold was not allowed
‘‘any’’ phone calls, but rather that, as he testified, he asked
her to keep the calls to a minimum.
I find it highly unlikely that Arnold, who indicated that
she did not believe Denrich would close the store, would put
such a question to Tolson. Accordingly, I accept her testi-
mony and find that Tolson violated Section 8(a)(1) by saying
that Denrich and his father had already decided that if the
Union was elected, ‘‘the store would close.’’
Arnold testified that on February 17, she left the store to
take her break in her car. Tolson and Rolfe allegedly fol-
lowed her out of the door and stood watching. Employee
John Day, coming to the store to shop on his day off, spotted
Arnold and came to her car to converse. Two security guards
drove around and pulled over next to her vehicle, facing in
the opposite direction and occupying a space which was not
a parking spot, and then ‘‘just sat there and watched us’’
until Arnold returned to the store (she thought that Day left
at some earlier time). Day gave substantially corroborative
testimony, although he testified that the guards left after ‘‘a
couple of minutes, maybe five,’’ and he believed that he and
Arnold returned to the store together.
Rolfe denied ever following Arnold out to the parking lot.
Tolson recalled leaving the store to make a ‘‘periodic outside
patrol’’ to check that no vehicle was parked in a fire lane,
and he noticed Arnold and a man sitting in a vehicle in an
unusual location. He saw that Arnold was looking at him,
and he walked on to where two security guards were parked
in their personal cars. He told them not to bother Arnold’s
vehicle as long as it was not blocking the receiving area. On
cross, Tolson conceded that he need not have left the store
to see the fire lane, which is directly in front of the store.
Since Tolson admittedly did not have to leave the store in
order to observe the fire lane, his departure from the store
shortly after Bonnie Arnold walked out certainly suggests
that he was intending to monitor her activities or at least give
the impression of doing so. Tolson’s admission that he did
speak to the security agents to tell them not to bother
Arnold’s car, which was not illegally parked, is decidedly
odd. Given the corroborative testimony of John Day, who
struck me as a most creditable witness, coupled with
Tolson’s peculiar explanation of his contact with the security
guards, I am willing to find that the guards drove over and
parked next to Arnold’s car, and that their impetus for doing
so was an instruction by Tolson to, in the words of the com-
plaint, ‘‘inhibit [her] activities on behalf of the Union.’’33 I
find that Respondent, through Tolson, also violated Section
8(a)(1) by surveilling the activities of Arnold.34
Charles Smith testified that about 4 days prior to the elec-
tion, he stopped at the store to buy some lunch to take to
his regular job, as he did each day, and Tolson cautioned
him that Denrich had instructed that employees could not
enter the store if they were not on the clock. Smith left.
However, he then asked Yingling if he could come in, and
Yingling said ‘‘Sure.’’ Moreover, on other days thereafter
and prior to the election, he entered the store off-the-clock
without hindrance; he could not recall whether Tolson saw
him, but there was present a plenitude of supervisors who
did not bar him.
Tolson said that he had noticed Smith often enter the store
during off-duty hours and converse with others, particularly
in Bonnie Arnold’s area. Having been informed that Denrich
had made a rule ‘‘during the last couple of days of the day
767BI-LO
of the vote’’ that off-duty employees should not be allowed
to disturb other employees, Tolson informed Smith of the
policy when he entered the store. After leaving, Smith soon
returned; having received a hand signal from Yingling,
Tolson did not interfere with Smith again. Denrich, however,
denied that he gave any ‘‘specific instruction’’ dealing with
‘‘employees no longer on the clock coming back into the
store, from the period of February 14–18.
The Board’s rule governing the validity of a no-access rule
as applied to off-duty employees is a three-part test. The no-
access limitation must only limit access to the interior of the
facility and access to working areas; must be clearly dissemi-
nated to all employees; and must be applied nondiscrimin-
atorily. Tri-County Medical Center, 222 NLRB 1089 (1976).
The employee manual issued in January 1986 provides,
‘‘Once you complete your work schedule, you are to leave
the premises unless you are purchasing items as a customer’’
(C.P. Exh. 3, p. 23). While the manual does not speak to the
matter of returning to the store after leaving it, it seems im-
plicit that such reappearances are also forbidden (except for
the purpose of purchasing groceries). The dissemination of
this rule via the manuals seems adequate; and the rule is lim-
ited to the ‘‘premises,’’ which employees would likely con-
strue to mean the store itself. There does not appear to be
discriminatory application of the rule—while most of the tes-
timony on this point has to do with employees reentering the
store to purchase groceries, Kelly Smith testified that she had
previously stopped at the store while off-duty ‘‘just to stop
by to say hi to somebody.’’ There is no indication that she
did this more than once or that she was seen by a supervisor.
Furthermore, this seems to me to have been a very trivial
incident, particularly in the light of the speed with which
Smith was allowed to reenter the store by Yingling. I do not
believe that this was shown to be an unfair labor practice.
Even if it was—and there is no evidence that Smith had any
notion that union activity played a role in his momentary ex-
pulsion—it was so quickly set aright that I would be reluc-
tant to find it violative of Federal law.
Kelly Smith, daughter of Charles, testified that although
she was scheduled to start work at the Havre store on elec-
tion day at 4 p.m., she entered the store to vote at about 1
p.m. As she approached the voting area, Tolson stopped her
and asked if she was on the clock. When she said no, Tolson
said that Denrich ‘‘did not want me in the store if I wasn’t
on the clock.’’ She departed, but returned a few minutes later
after being told by organizer Gary Gatewood that she was
entitled to vote. This time, Tolson did not try to stop her.
As earlier noted, Smith told of having previously stopped at
the store while off duty to say hello to someone.
Tolson testified that when Smith entered, she headed to-
ward the meat room, and Tolson approached to ask where
she was going. She said that she needed to talk to somebody,
and Tolson told her that that was against company policy for
off-duty employees. He asked her to leave, and she did.
When, several minutes later, she reentered and headed to-
ward the voting both, he did not intercede.
Although Smith first testified on cross that she proceeded
‘‘immediately to the voting area’’ in the breakroom when she
entered the store, she also agreed that she stopped and
‘‘talked to a few people’’ as she went, for ‘‘[a]bout five min-
utes, if that long.’’ She also conceded that Tolson stopped
her ‘‘by the meat case’’; when asked if the meat case was
located in the area of the polling place, Smith replied,
‘‘Going towards that way, yes.’’ She further testified that
when she saw Gatewood as she left the store, he told her to
reenter the store and ‘‘this time walk directly to the voting
area.’’ When she followed his advice, she was not disturbed.
Here, we seem to have a case of an off-duty employee
who came into the store, probably to vote, but who first
stopped to chat with other on-duty colleagues on what ap-
pears to be a circuitous route to the polling area. In so doing,
she appears to have been in breach of a valid no-access rule.
Despite this, when she returned to the store and proceeded
directly to vote, she was not deterred from doing so. I cannot
find in all this an actionable unfair labor practice.
John Day testified that on election day, he was speaking
to employee Donahey in the parking lot when organizer
Gatewood pulled up in his car and joined the conversation.
Two security guards drove up and parked next to
Gatewood’s automobile, and remained there until the two
employees left to go to work.
Gatewood testified to what appeared to be a different inci-
dent and Donahey gave no testimony on the subject. Re-
spondent failed to call as witnesses any security guards who
were working in the lot that day. The excellent impression
made on me by employee Day leads me to credit his testi-
mony. Since Tolson testified that the security guards were in-
structed by him to monitor the union organizers, I would
hold him, and thus the Respondent, liable for the coercively
‘‘close observation of employees in order to inhibit their ac-
tivities on behalf of the Union’’ on February 18, as alleged
in the complaint.
D. The Requested Bargaining Order
The complaint seeks a remedial bargaining order at the
Havre store pursuant to the authority granted by NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969), which held that
such an order based on signed union authorization cards may
be issued where an employer has engaged in unfair labor
practices which have a tendency to impede the election proc-
esses and make the possibility of expunging the effects of
such practices by the use of customary remedies, ‘‘though
present,’’ nonetheless ‘‘slight.’’ Id. at 614. In order to deter-
mine whether a bargaining order should be entered in this
case at the Havre store requires, first, a unfortunately labo-
rious investigation of whether, under the law, an order can
legally be entered. We turn first to the somewhat unusual
(for this sort of case) issue of the scope of the appropriate
bargaining unit, and then to the card majority question.
1. The bargaining unit
As indicated, General Counsel seeks a bargaining order at
a single grocery store. Respondent argues that the only ap-
propriate unit would include all of Respondent’s stores, and,
consequently, that General Counsel would have to produce
perhaps 500 signed union cards and prove sufficient unmiti-
gated unfair practices throughout most of the stores in order
to make a Gissel order possible. At the hearing, I ruled that
Respondent would not be allowed to attempt to prove that
the only appropriate unit consisted of all stores, whether back
in 1987 or later. I so ruled on the basis of the following
facts.
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 While it is usually laudable to see counsel throw themselves on the sword
for the sake of their clients, I find it rather improbable that the veteran labor
lawyers representing Respondent here would not have spotted, with the instinct
of a cat sensing a bird, an all-store-unit argument, had there been any scintilla
of a suggestion in reality that such a contention might have borne fruit.
36 Despite this, and without objection by the General Counsel or the Charg-
ing Party, Respondent introduced in evidence two documents distributed by
Denrich to store managers and supervisors on February 26, 1988, and June
27, 1988. The first document is designed to concentrate all personnel problems
in the hands of Charles Yingling, whose promotion to ‘‘Vice President of
Human Resources’’ (from ‘‘Director of Operations’’) is also announced. This
document is peculiar because it seems to say that Yingling already possessed
the authority invested (‘‘Traditionally, if a store manager or supervisor had a
‘people’ problem Mr. Yingling was called to straighten it out’’ (emphasis
added)). Furthermore, the letter also announces the promotion of Pat Miller
to Personnel Director (from Personnel Administrator) and seems to accord her
the same authority as that given to Yingling (‘‘As with Charles, if you have
a ‘people problem’ call Pat.’’).
The June 27 letter, characterized as ‘‘a follow-up’’ to the February letter,
was much more formal and provided that hiring, discharge, disciplinary ac-
tions, transfers, promotions, wage and benefit matters and problems, and train-
ing programs for all 1000 employees had to be submitted to Yingling ‘‘for
review and final decision.’’
37 On two occasions during the hearing, I referred to the right of Respondent
to appeal my ruling during a hiatus in the case. To my knowledge, Respondent
never took advantage of this opportunity.
Although the Union has been attempting to organize Re-
spondent on a store-by-store basis since 1981, it was not
until a representation hearing on April 14, 1988, regarding
the Rosedale Shopping Center store that the Respondent first
took the position that the only appropriate unit consisted of
every store owned by it. At the earlier hearing on the Havre
petition held on December 9, 1987, counsel for Respondent
stipulated that ‘‘an appropriate unit would consist of all full-
time and regular part-time employees at its Havre de Grace
location,’’ and that was the unit in which the February 1988
election was held. Respondent took the same position at a
February 24, 1988, hearing on the Stemmers Run store peti-
tion filed on February 14, and at the Elkton hearing held on
March 2, 1988.
At the April 14 hearing on the Rosedale petition, however,
the same attorney stated as the Employer’s position that ‘‘the
only appropriate unit is a unit of all of the Employer’s 14
locations.’’ Despite this assertion, counsel stated, in effect,
that ‘‘Respondent was willing to fragment the newly discov-
ered monolith by going ahead with the election at the Elkton
store, where a Decision and Direction of Election had al-
ready issued, and would also proceed with the proceedings
at the other [two] locations that are already in place in com-
pliance with the normal Board processes.’’ Counsel also stat-
ed that there had been ‘‘no significant change in the Employ-
er’s operation’’ since the three most recent cases had been
initiated.
The hearing officer denied the Employer’s request to liti-
gate the unit issue, but on review, the Board reversed the rul-
ing, stating that the position taken by the Respondent in ear-
lier cases did not bind it in the latest proceeding, and noting
that ‘‘the issue as to the proper unit scope has never been
litigated, in this or any other proceeding involving the Em-
ployer’’ On remand, the Union withdrew the petition.
At the hearing in this case, Respondent notified me that
it desired to litigate the all-stores unit claim, proffering 66
topics on which it would introduce evidence (and presumably
provoke contradictory proofs). Counsel for Respondent as-
sumed a dual position: the first was that Respondent had
been ‘‘in error’’ in the past in agreeing to single-store
units.35 The second, in response to an assumption stated by
me, was that even if the Respondent’s operations had been
deliberately restructured to affect the size of the bargaining
unit, ‘‘the reason’’ would be ‘‘immaterial,’’ and only the re-
sult would count. In due time, I ruled that I would not hear
further evidence in support of the effort to establish that the
only appropriate unit is an all-stores unit.36
‘‘It is well settled that in the absence of newly discovered
and previously unavailable evidence or special circumstances,
a respondent in a proceeding alleging a violation of Section
8(a)(5) is not entitled to relitigate issues that were or could
have been litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941);
Secs. 102.67(f) and 102.69(c) of the Board’s Rules and Reg-
ulations.’’ St. Francis Hospital, 271 NLRB 948, 949. Sec.
102.67(f), referred to above, provides:
(f) The parties may, at any time, waive their right to
request review [of a Regional Director’s Decision and
Direction of Election]. Failure to request review shall
preclude such parties from relitigating, in any related
subsequent unfair labor practice proceeding, any issue
which was, or could have been, raised in the representa-
tion proceeding. Denial of a request for review shall
constitute an affirmance of the Regional Director’s ac-
tion which shall also preclude relitigating any such
issues in any related subsequent unfair labor practice
proceeding.
It is true that if, after an election, an employer revamps
its organizational structure, such action may well result in the
creation of evidence which was, beyond doubt, ‘‘previously
unavailable’’ at the time of the original litigation. There are
two reasons why, despite any such alleged changes, the rule
against relitigation should nonetheless normally apply in
Gissel bargaining unit situations.
The first is that changes made at a time when the em-
ployer perceives himself to be in actual jeopardy of having
to bargain with a union are necessarily instinct with the inti-
mation that the changes are related to the union effort, and
the Board should permit cognition of the claimed alterations
only when the employer has cogently proffered that the
changes were not simply voluntary, but were compelled by
circumstances of a most exigent nature and are of such a
character as to make bargaining in the smaller unit totally
unworkable. To permit any lesser showing could threaten
havoc to the system. In the present case, the Respondent did
not suggest that it was abruptly shifting its organizational
and functional structure after many years of doing business
the same old way because of any perceived economic need.
Cf. St. Anthony Hospital Systems, 884 F.2d 518 (10th Cir.
1989), enfg. 282 NLRB 790 (1987)) (‘‘To hold otherwise
would allow employees to nullify unfavorable elections sim-
ply by modifying the job responsibilities of a particular posi-
tion.’’).37
The second reason for locking in the scope of the bargain-
ing unit in a Gissel case flows from the Board’s well-settled
rule that ‘‘the validity of a bargaining order depends on an
evaluation of the situation as of the time the unfair labor
practices were committed.’’ Highland Plastics, 256 NLRB
146, 147 (1981); M.P.C. Plating, 295 NLRB 583 (1989). In
applying this rule, the Board refuses to take into consider-
769BI-LO
38 The Board’s refusal to examine employee turnover long after the events
seems a sound method of guarding against the diehard wrongdoing employer.
It is arguable that the literal language of the Supreme Court in Gissel implies
that the Board should base its judgment on the situation as it stands at some
later time (‘‘In fashioning a remedy in the exercise of its discretion, then, the
Board can properly take into consideration the extensiveness of an employer’s
unfair practices in terms of their past effect on election conditions and the
likelihood of their recurrence in the future . . . . If the Board finds that the
possibility of erasing the effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) . . . is slight . . . then such an order should issue.’’
(Emphasis supplied.) It would appear that the court did not fully train its sights
on the Pandora’s box which would be opened by a ‘‘second look’’ doctrine,
but several (although not all) courts of appeals, in addition to the Board, have
recognized the consequences. E.g., NLRB v. L. B. Foster Co., 418 F.2d 1, 5
(9th Cir. 1969); G.P.D., Inc. v. NLRB, 430 F.2d 963, 964 (6th Cir. 1970).
39 This conclusion also seems consistent with the Board’s recent holding in
Butera Finer Foods, 296 NLRB 950 (1989), where a successor employer at
one store attempted to show that two other stores opened by him within 2
months of opening the first should all be considered a single employerwide
unit. The Board stated, at fn. 1, that since, ‘‘when the Union demanded rec-
ognition, only the Ogden store was in existence, . . . evidence of multistore
bargaining units is not relevant.’’
ation subsequent changes in the constituency of the unit or
other factors.38
If we are, for purposes of Gissel, to freeze the playing
field and the players as of the time of commission of the un-
fair labor practices, then it should follow that the size of the
field should be untouched. Even counsel for Respondent stat-
ed in the Rosedale proceeding, as earlier quoted, a willing-
ness to continue processing the already-commenced cases, in-
cluding Havre, ‘‘in compliance with normal Board proc-
esses.’’ He further agreed that there had been ‘‘no significant
change’’ in the operation as of April 1988. An unfair labor
practice case arising after a representation case in the same
unit is, as the Ninth Circuit stated in Sahara Datsun, Inc. v.
NLRB, 811 F.2d 1317, 1321 (1987), a ‘‘continuation of the
representation case heard by the regional director.’’
Accordingly, I reaffirm my ruling made at the hearing that
the Board precedent restricting the evaluation of the entry of
a bargaining order to the facts as they existed at the time of
the commission of the unfair practices operates so as to pre-
clude relitigation of the scope of the bargaining unit which,
at the time, was recognized by Respondent as an appropriate
one and so as to prevent enlargement of that unit (in the or-
dinary case) by a voluntary modification of the structure of
the company.39 I see no conflict here with the Board rule
that stipulations which contravene Board policy or statutory
requirements will not be honored, as Respondent argues.
That rule obviously applies only to stipulations which on
their face have such an effect; otherwise, a party to a stipula-
tion could always force a hearing simply by alleging that its
stipulation was, because of the actual facts, inconsistent with
law. See C.K.E. Enterprises, 285 NLRB 975 fn. 1 (1987)
(stipulation excluded ‘‘leadpersons’’; employer argues that
now that administrative law judge has found them to be not
supervisors, but rank-and-file, the appropriateness of bar-
gaining unit should be redetermined; Board finds no evi-
dence that demonstrates that exclusion of leadpersons ‘‘even
if . . . statutory employees,’’ is ‘‘inconsistent with Act or
Board policy’’).
2. The card majority
In order to qualify for a bargaining order under Gissel, the
General Counsel must establish that ‘‘at one point’’ (395
U.S. at 614) the Union had acquired a majority of valid
signed authorization cards in the unit found appropriate.
The cards used in this campaign were themselves invulner-
able to direct attack. They were headed, in capitalized letters,
‘‘AUTHORIZATION FOR REPRESENTATION.’’ The
printed portion that followed was worded, ‘‘I hereby author-
ize the United Food and Commercial Workers Local 27,
AFL–CIO–CLC, to represent me for the purpose of collec-
tive bargaining.’’ In Gissel, the Court discussed the weight
which should be given to such unambiguous language when
card solicitors make statements about the purpose of the
cards which may arguably tend to dilute the plain wording;
the Court came down on the side of the printed word (id.
at 606–607):
[W]e think it sufficient to point out that employees
should be bound by the clear language of what they
sign unless that language is deliberately and clearly
canceled by a union adherent with words calculated to
direct the signer to disregard and forget the language
above his signature. There is nothing inconsistent in
handing an employee a card that says the signer author-
izes the union to represent him and then telling him that
the card will probably be used first to get an election.
In so holding, the Court approved the rulings of the trial
examiner in General Steel Products, one of the three cases
consolidated for consideration in the case known familiarly
as Gissel. Those rulings are quoted in Gissel at 584 fn. 5:
Accordingly, I reject Respondent’s contention ‘‘that
if a man is told that his card will be secret, or will be
shown only to the Labor Board for the purpose of ob-
taining election, that this is the absolute equivalent of
telling him that it will be used ‘only’ for purposes of
obtaining an election.’’
. . . .
With respect to the 97 employees named in the at-
tached Appendix B Respondent in its brief contends, in
substance, that their cards should be rejected because
each of these employees was told one or more of the
following: (l) that the card would be used to get an
election (2) that he had the right to vote either way,
even though he signed the card (3) that the card would
be kept secret and not shown to anybody except to the
Board in order to get an election. For reasons here-
tofore explicated, I conclude that these statements, sin-
gly or jointly, do not foreclose use of the cards for the
purpose designated on their face. [Emphasis in origi-
nal.]
The Court later noted its belief that ‘‘the Trial Examiner’s
findings in General Steel (see fn. 5, supra) represent the lim-
its’’ of the rule tolerating some potentially misleading state-
ments, and also cautioned against ‘‘a too easy mechanical
application’’ of the principle enunciated in Cumberland Shoe
Corp., 144 NLRB 1268 (1963), that an unambiguous card
will be counted unless it is proved that the employee was
told that the card was to be used ‘‘solely’’ to obtain an elec-
tion. 395 U.S. at 608.
As the law of Gissel stands, however, and as it has been
construed by the Board over the years, the fact that an em-
ployee is told that a card ‘‘would’’ be used to get an election
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 General Counsel also entered in evidence copies of the employees’ W-
4 tax forms so that I might compare the employees’ authentic signatures with
those shown on the cards. This procedure has been approved by the Board
and the courts of appeals, e.g., NLRB v. Philamon Laboratories, 298 F.2d 176,
179–180 (2d Cir. 1962), and, as well, by the Fed.R.Evid. 901(b)(3).
41 Although General Counsel introduced a total of 44 cards, he concedes on
brief that the card of Gene West, who was not an employee at any material
time, should not be counted.
42 I disagree with Respondent’s argument on brief that Kimberly Eldreth’s
testimony ‘‘supported’’ Mitchell’s. Eldreth’s version had no negatives; she
said the avowed purpose of the card was ‘‘to give them the opportunity to
give us an election.’’
43 Schatz also testified that Gatewood said ‘‘This is just so they can get a
vote in the store, if they had a majority of people to sign.’’ Since the petition
was filed on November 25, I cannot imagine that Gatewood would have made
such a statement on January 27.
or even that the employee retains the ‘‘right to vote either
way,’’ despite having signed the card, or both, does not have
the effect of vitiating the card as a valid authorization for
representation. Ona Corp., 261 NLRB 1378, 1410 (1982)
(telling an employee that signing a card puts him under ‘‘no
obligation’’ does not invalidate the card). Accord: De Queen
General Hospital, 264 NLRB 480, 495 (1982).
Through employee-signers, employee solicitors, and pro-
fessional union solicitors, General Counsel introduced signed
cards collected during the payroll periods ending December
5, 1987, through February 20, 1988.40 According to an ap-
pendix attached to General Counsel’s opening brief,.
throughout the designated periods the Union had collected a
continuingly increasing majority of cards from the employee
complement, ranging from 29 cards/52 employees in the first
pay period shown to 43/53 in the final period.41 I have not
personally attempted to validate the accuracy of General
Counsel’s appendix, principally because Respondent’s reply
brief has not questioned it. While I do not regard them as
holy writ, Respondent’s two briefs are quite well organized
and encompassing, and I have no doubt that if the figures
in the appendix were inaccurate, Respondent would have
made me aware of any such deficiencies.
I conclude, therefore, that the Union had collected cards
from an increasing majority of the unit employees during the
period shown in the appendix. By cross-examination, and by
calling a number of employee-signers, Respondent has
sought to establish, and now argues, that many of the cards
were ‘‘cancelled’’ by representations made to signing em-
ployees, within the meaning of Gissel.
I see no need, however, to prolong this already prolix
analysis by considering, card by card, all the conflicting evi-
dence pertaining to what employees were told and by whom.
For, applying the Gissel-approved standards formulated by
the trial examiner in General Steel, it does not seem to mat-
ter whether General Counsel’s factual arguments are accept-
ed; in my view, even assuming arguendo the evidentiary
claims made on behalf of Respondent, they would be insuffi-
cient to nullify the cards. Some specific comments, however,
are in order.
1. There was, unquestionably, considerable comment by
the Union organizers about the holding of an election, given
the unlikelihood that Respondent would respond affirma-
tively to a demand for an election. It is regrettable that such
references are made, because they may not be clear to some
employees when uttered, and, with the passage of time, an
election may become the only avenue of recognition recalled.
However, under the case law, references to elections—even,
startlingly, if employees are told that they can vote against
the union in an election—are simply insufficient to nullify a
card.
2. Frieda Scott (G.C. Exh. 15) testified at one point that
organizer Gary Gatewood told her that the card was for
‘‘just’’ a meeting at which employees ‘‘could listen to the
Union and what they were going to do for us.’’ While Scott
seemed an honest witness, I think that she was confused.
Bonnie Arnold testified that she solicited the card, which is
dated November 24, 1987, from Scott, and Gatewood
credibly testified that he did not become involved in the
campaign until he joined the staff on January 11, 1988. He
recalled paying a ‘‘support’’ house call on Scott shortly be-
fore the election, but I do not believe that he would have
made at that time any of the remarks attributed by her to
him.
3. Sheryl Mitchell (G.C. Exh. 18) testified for Respondent
that although she could not recall when or from whom she
received her card, she remembers being told at a meeting
that its ‘‘only’’ purpose was to get a union vote, that signing
did not mean that ‘‘there would be a union coming into our
store, it was just for a vote.’’42 It seemed clear that Mitchell
was uncertain about what she had been told; asked on cross
if the word ‘‘only’’ was used, Mitchell replied, ‘‘No, I don’t
think so.’’ Mitchell checked ‘‘Yes’’ to a question on the card
which asked ‘‘Would you participate in an organizing com-
mittee?’’ Considering her uncertainty about what was told
her and the likelihood that she did want representation, I
would find that Bonnie Arnold gave Mitchell the card, as Ar-
nold testified, probably prior to any meeting attended by
Mitchell, and I would qualify Mitchell’s card.
4. Dianne St. Laurent (G.C. Exh. 24) was married to a
serviceman who was about to be shipped out, and when she
signed a card for Arnold, St. Laurent said that she ‘‘didn’t
care one way or the other.’’ It has often been held immate-
rial that an employee is contemplating severance of employ-
ment. Stride Rite Corp., 228 NLRB 224, 236 (1977). St.
Laurent was still employed at the time of the election, and
she was authorized to vote. Her card should count.
5. There is some complicated testimony about employees
John Schatz (G.C. Exh. 25) and Keith Jennings (G.C. Exh.
36). Both testified that Gatewood said at a meeting at a diner
that there was ‘‘no obligation’’ to vote for the Union if they
signed a card. As we have seen, this statement does not in-
validate a card.43 Moreover, I do not believe that Gatewood
made any such remark, and I further believe that Schatz
signed his card 3 days before the meeting at which the state-
ment was allegedly made. In addition, Schatz was the person
whose enthusiasm led him to organize the breakfast meeting
for the night crew, and both Schatz and Keating marked on
their cards that they would participate in an organizing com-
mittee. I would count their cards as valid.
6. Howard Oals (G.C. Exh. 24) testified that whomever he
received his card from said it was ‘‘just’’ to show interest,
but he was not sure of the exact words, not ‘‘even vaguely.’’
I find that Respondent has failed to carry its burden nec-
essary to cancel this card.
7. Carolyn Shaffer (G.C. Exh. 54) ‘‘thinks’’ she got her
card from organizer Michael Tumolo in the parking lot of a
motel at which a meeting was being held on November 23.
At first, Shaffer testified that she asked Tumolo ‘‘what it
meant’’ and ‘‘if we were voting in for a union,’’ and his
771BI-LO
44 Organizer Tumolo denied that he attended the meeting described by
Shaffer, and stated that he ‘‘said nothing about the reason for signing cards
in the parking lot to any employee.’’ Tumolo seemed believable.
45 I find immaterial the fact that Denrich was overheard by Kelly Smith giv-
ing a negative answer to Michael Jeppi’s question to him as to whether the
store would be closed in the event of a election loss to the Union. Whether
the two employees found this answer convincing is unknown. Perhaps of more
significance is the fact that Jeppi asked the question in the first place, having
heard it, according to Denrich, by rumor.
46 I therefore reject Respondent’s claim on brief that the mailing, ‘‘standing
alone, or in conjunction with the entire campaign, is protected opinion under
Section 8(c) of the Act.’’
reply was ‘‘No, it was like a registration for signing up for
a meeting.’’ Shaffer’s testimony was suspect. In the next two
attempts to have her reconstruct the conversation with
Tumolo, she neglected to include any question to Tumolo as
to whether ‘‘we were voting in for the union,’’ and finally
testified that ‘‘that didn’t happen.’’ Because of her daugh-
ter’s pregnancy, she was so distracted that she could not re-
call anything being said at the meeting about the cards. She
did remember that, at the meeting, a paper was passed
around for people to sign, and the people and the cards were
counted ‘‘to make sure that everybody had signed their
card’’—the suggestion here is that she must have understood
the cards to represent something more than a second kind of
attendance list. Jacqueline Yrizzary accompanied Shaffer to
the meeting, and she testified that she and Shaffer ‘‘did ask
a question’’ when they signed their cards, but the response
that she recalled had nothing to do with a registration list:
‘‘[I]t was told to us that it would give the Union a chance
to have meetings and whatnot to get, you know, people to-
gether that might be interested.’’
Shaffer went to the first meeting on a ‘‘very cold and rain-
ing’’ evening, even though she was concerned by her daugh-
ter’s imminent delivery. She read the card ‘‘vaguely.’’ She
seemed to be saying that she was told that the card con-
stituted only a registration list, even though another such list
was signed at the meeting and was compared with the
cards.44 She checked the ‘‘would participate’’ box on the au-
thorization card. It is my conclusion that she was not misled
into believing that the card meant something other than it
stated and I conclude that the card should be counted as
valid.
8. Some employees, such as Rhonda Ray (G.C. Exh. 62)
and Linda Schatz (G.C. Exh. 66), gave testimony to the ef-
fect that that were told that the purpose of signing the card
was to see if there was enough interest to have an election.
Generally speaking, such testimony does not necessarily
seem to detract from the authorization of representation
printed on the card, as the Supreme Court held in Gissel. In
most such cases, in any event, the testimony was quite uncer-
tain. Ray was an honest witness, no longer employed by Re-
spondent, but her faulty recollection was apparent. Schatz
thought that she received the card from Gatewood, who did
not join the staff until 7 weeks after she signed her card.
9. Only one card would I reject on this record. G.C. Exh.
63 purports to be a card signed by ‘‘Kelley A. Smith’’ on
November 24, 1987. No issue was made at the hearing or
on brief about the following point: the name as printed and
signed on the Form W-4 marked G.C. Exh. 100 is ‘‘Kelly’’
Ann Smith, with no ‘‘e.’’ Since I am to assume that the W-
4 is authentic, I have to think that Kelly Smith would not
have misspelled her own first name on the authorization
card. Smith testified, but was not asked to authenticate her
card or about this discrepancy. I would therefore not count
the card, but the fact of a continuing majority remains the
same.
3. The appropriateness of a bargaining order
Under Gissel, the Board may conclude that a bargaining
order based on authorization cards is an appropriate remedy
when it seems likely that the employer’s unfair labor prac-
tices would impede the election process, an impediment that
probably cannot be removed by imposition of the Board’s
traditional sanctions as a prelude to an election. 395 U.S. at
610–614.
The appendix to General Counsel’s brief shows that for
the payroll period ending January 30, the Union had obtained
41 signed authorization cards from 51 unit employees. On
February 1, Respondent mailed to its employees the letter
pertaining to store closures and enclosed copies of newspaper
articles regarding such closures (some of which, as dis-
cussed, were not even identified as unionized stores). There-
after, in the individual interviews with employees in the
Havre breakroom, Denrich repeatedly alluded to these arti-
cles. On February 18, when the election was held, the
Union’s overwhelming card majority was stunningly whittled
into a 28–21 loss.
I have concluded above that the promulgation of and in-
tensive emphasis on the subject of store closings were in-
tended to convey to employees the possibility that their store
might be closed if they selected the Union to represent them.
To many of the employees, this possibility might not seem
at all remote, considering that Respondent operated 14 stores;
the chilling effect of one closure could be seen by them to
promise handsome dividends at the other locations.45
Threats to close the facility are considered by the Board
to be ‘‘hallmark violations,’’ e.g., Long-Airdox Co., 277
NLRB 1157, 1160 (1985). Such a threat is ‘‘one of the most
coercive actions which a company can take in seeking to in-
fluence an election.’’ Donn Products v. NLRB, 613 F.2d 162,
166 (6th Cir. 1980). I have found other violations here which
may be said to vary in their placement on the spectrum of
seriousness, ranging from impliedly threatening to fire the
union leader’s husband to unlawful economic pressure to co-
ercive interrogations.
But, in my view, pounding home the message of potential
plant closure by the top management official via a mass
mailing and individual follow-ups to employees warrants,
without more, a conclusion that a bargaining order is remedi-
ally appropriate. As the Third Circuit held in Midland-Ross
Corp. v. NLRB, 617 F.2d 977, 987 (1980), ‘‘[A] closing is
the penultimate threat for an employee, and its psychological
effect is at least as likely not to dissipate as other unfair
labor practices we have held to justify a Gissel II order.
[Case citations omitted].’’ Employees who received a not-so-
veiled threat that Denrich considered closing the store as a
viable option would not, I think, derive much comfort from
a posted notice that Respondent would not in the future
threaten to close their store.46
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, I conclude that this case falls within the so-
called ‘‘Gissel II’’ category of unfair labor practices which
tend to undermine a union’s majority status and make a fair
election unlikely. A bargaining order is called for, in normal
circumstances.
4. The affirmative defenses
Respondent contends, however, that these circumstances
are not normal ones. Two central themes highlight this claim.
a. The leafletting
Almost 7 months after the Havre election, in September
1988, the Union began picketing and leafletting, at various
times, at five of Respondent’s store (none of which was
Havre). For the first 100 days, as Respondent states on brief,
‘‘the message conveyed by the picketers was exclusively re-
lated to the labor dispute between the Union and Respond-
ent.’’ The leaflets then distributed accused Respondent of
breaking the labor laws, and they urged shoppers to refrain
from making purchases at the Valu Food stores.
In the latter part of January 1989, the Union adopted a
new tactic by mailing out to all residences in 12 zip codes
near Respondent’s stores (including Havre) a document bear-
ing the return address of ‘‘Concerned Consumers of Mary-
land’’ (but also noting in small print that the message was
‘‘brought to you by . . . The United Food and Commercial
workers Union, Local 27’’) which carried a reprint of a De-
cember 15, 1988 newspaper article describing a fine and pro-
bation imposed on Respondent by a county judge for offer-
ing for sale 44 underweight packages of meat and fish at one
of Respondent’s stores. The article contained Respondent’s
explanation of the shorting. The leaflet tied in these viola-
tions with alleged unfair labor practices and urged a con-
sumer boycott. Subsequently, at the picketed locations, the
Union distributed for about a month another leaflet referring
to the newspaper story and warning customers to ‘‘PRO-
TECT YOUR FAMILY’’ by checking the date of perishable
goods and by checking receipts furnished by cashiers who
are forced to work under conditions in which ‘‘mistakes can
happen.’’
Thereafter, in mid-March 1989, the Union handed out and
mailed a leaflet reporting that, since 1983, state inspectors
had cited Respondent for more than 1000 health violations,
including rodent droppings, spoiled foods, etc., and again en-
treating shoppers to stay away. No reference was made to a
labor dispute other than the appearance of the Union’s name
on the leaflet. Later leaflets combined warnings about health
violations, overcharging, and violation of employee rights,
and continued to argue against buying at Valu Food. At the
same time, since April 1, 1989, the Union also handed out
leaflets which adverted solely to the labor dispute in asking
consumers ‘‘to boycott Valu Food.’’
The Respondent did not remain somnolent through this pe-
riod. In flier after flier, Respondent replied, attacked the
picketing and, while not denying the reported 1000 viola-
tions, insisted that it had always corrected these relatively
minor violations, hired experienced ‘‘sanitarians’’ to oversee
any problems, etc. The fliers also assaulted the Union on
other fronts, including its refusal to participate in an all-
stores election, and even attempted to turn the Union action
to its benefit by conducting ‘‘picket sales.’’
b. The threats to destroy
Respondent also introduced the testimony of two witnesses
to establish that by February 1989, the Union was no longer
interested in organizing its stores, but only in eliminating it
as a competitor of other chains whose employees were rep-
resented by Local 27.
Cynthia Colburn, a front end manager for 5 or 6 years,
now at the Odenton store, testified that chief organizer Don-
nelly called her a number of times for a date, but Colburn
turned him down, citing a ‘‘conflict of interest.’’
In February 1989, shortly after a judicial decision barring
picketing at the store, Donnelly called and, in the course of
conversation, said that the next campaign would be ‘‘a thou-
sand health violations.’’ When Colburn asked how that
would result in organizing the store, Donnelly said that
‘‘they had no longer any interest in organizing Valu Food,
that they just wanted to put Louis out of business.’’ She
called Denrich and reported the conversation.
Colburn also testified on cross that perhaps in March
1989, Donnelly was in attendance at a picket line in front
of the Odenton store as she and two other employees drove
up. One of the other employees had a conversation with
Donnelly in which he ‘‘told us that if Louis would agree to
organize the Havre de Grace store, that he would remove the
pickets from all the other stores.’’
Donnelly testified that he struck up a acquaintanceship
with Colburn at a representation hearing and saw or spoke
to her intermittently thereafter. At the instant hearing, he
stated that he did not ‘‘recall’’ speaking to her about the pro-
jected ‘‘1000 health violations’’ leaflet, or about ‘‘any as-
pect’’ of the ‘‘organizing campaign’’ He was not specifically
called on to deny that he had said that the Union had lost
interest in organizing Valu Food, ‘‘that they just wanted to
put Louis out of business.’’ Presumably, I am to infer that
no such conversation would have occurred because, accord-
ing to Donnelly, he and Colburn had early on recognized that
they were on opposite sides of the fence (she was an ardent
antiunionist), and they had agreed not to discuss the Union.
Such a desired inference is no substitute for an explicit ques-
tion and answer, and I am persuaded that the failure at hear-
ing to confront Donnelly directly with Colburn’s assertion,
plus his half-hearted (and logically inconsistent) inability to
‘‘recall’’ referring to the ‘‘1000 health violations’’ campaign,
plus the solid impression Colburn made in giving testimony,
should lead me to accept Colburn’s testimony.
Jenelee Rolfe testified that on February 15, 1989, as she
was making her rounds of the stores, she found organizer
Tumolo at the Beltway Plaza store handing out one of the
pamphlets which accused Respondent of cheating customers.
After some chitchat, Rolfe asked why he did not ‘‘give up
the bull crap’’ because the employees thought too highly of
Denrich to organize. Tumolo assertedly replied that Local 27
president Russow ‘‘was not interested in organizing Valu
Food any more. That he had a hard-on against Louis, that
he wanted blood, and he was going to put Valu Food out of
business.’’ As she walked away ‘‘upset,’’ Tumolo called,
‘‘wait until you see what we have coming out next. It’s a
real biggee. You’re going to be shocked.’’ She later reported
the diatribe to Denrich. Rolfe testified that Tumolo was not
speaking in an angry tone.
Tumolo described a heated argument in which he lashed
out at Rolfe’s claim that Respondent ran a ‘‘nice’’ operation.
773BI-LO
47 I am assuming, for purposes of these affirmative defenses, that the
Board’s rule in Gissel cases limiting consideration to the circumstances which
existed at the time of the employer’s unfair practices does not apply here. The
argument to the contrary, which I find persuasive, is based on the good chance
that if Respondent had not handled the Havre election as it did, a union vic-
tory there might have entirely changed the course of events and the Union’s
subsequent approach to campaigning.
He mentioned some facts he had uncovered in research at the
health department and also said, in anger, ‘‘[Local 27 presi-
dent] Tom Russow’s really pissed about what happened over
at Havre de Grace. He was there. He’s really pissed about
it and that’s why these picket lines are up. We’re going to
close your stores.’’ He explained at the hearing that he was
‘‘cold’’ and ‘‘tired’’ and ‘‘mad’’ and ‘‘just wanted to hurt
her.’’
C. The Defenses
From the foregoing, Respondent advances two basic con-
tentions.
First, Respondent argues that an employer is justified in
refusing to meet with a union representative ‘‘who had ex-
pressed both bitter hostility to the employer and a desire to
destroy the employer financially,’’ an attitude which would
make ‘‘any attempt at good-faith bargaining a futility,’’ see
Deeco, Inc., 127 NLRB 666, 667 (1960). This line of cases,
however, has to do only with an employer’s right to refuse
to bargain with a personally hostile union representative.
NLRB v. Kentucky Utilities Co., 182 F.2d 810, 813 (6th Cir.
1950).
In Holmes Detective Bureau, 256 NLRB 824 (1981), the
Board appears to have taken a different tack with regard to
the right of an employer to refuse altogether to bargain with
a union whose president had stated several times that he
would put the employer ‘‘out of business.’’ The statements
themselves were, while ‘‘intemperate,’’ provoked by Re-
spondent’s ‘‘misconduct’’ (which consisted of failure to
comply with various contract requirements) and therefore no
justification for a refusal to bargain.
The Board also examined into whether the record sup-
ported a conclusion that the union ‘‘had any motive to de-
stroy Respondent or . . . [was] engaged in any such effort,’’
id. at 825, and found no support. There is evidence here
which is probative of such a motive. Both Donnelly and
Tumolo, in the same month, made statements attributing to
Local 27 a motive to destroy Respondent. Russow, president
of the Local, was not called to testify to the contrary. It is
not irrational to infer that if a union is unable to organize
a competitor of bargaining units which it represents, it might
well wish to put that competitor out of business.
That objective, however, is not an uncommon one. Pick-
eting for recognition may have the same effect. The problem
here is that the two union representatives spoke of ruining
Respondent’s business in preference to organizing it.
Whatever provoked Donnelly and Tumolo to make such
statements in February, it does not appear that the Union felt
the same in March and thereafter. As noted, Donnelly was
quoted as having said in March that if Respondent would
recognize the Union at Havre, there would be no picketing
at the other stores—this clearly indicates a representational
intent. The Union invested heavily in both time and re-
sources in the litigation of this proceeding, similarly sug-
gesting a desire to represent the Havre employees. Once hav-
ing achieved that goal, as the Sixth Circuit recently stated in
Roadway Package System, v. NLRB (unpublished; Apr. 24,
1990; sl. op. 10), ‘‘it is improbable that a union would orga-
nize a company and then force its demise, putting its mem-
bers out of work’’ Not only is this ‘‘improbable’’ and apt
to implicate breach-of fair-representation problems, but it
would probably require the substantial participation of the
employee complement to ‘‘force the demise’’ of the em-
ployer in such a situation; the Union could not do it alone.
I am not convinced, in the end, that the passing indications
given by Union agents of a desire to destroy or harm the em-
ployer are sufficient here for the Board to deprive employees
of their undoubted right to select, for better or worse, rep-
resentatives of their own choosing. E.g., NLRB v. Sunbeam
Electric Mfg. Co., 133 F.2d 856, 860 (7th Cir. 1943). For the
Board to cabin that right of choice—which can be almost as
easily withdrawn from the Union by the employees as be-
stowed on it—would take more unqualified proof than has
been presented.47
Respondent’s second contention is constructed on an amal-
gam of Laura Modes Co., 144 NLRB 1592 (1963), and
NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard), 346 U.S. 464 (1953). Laura Modes is not a clear-
ly defined concept, and it is only rarely applied to deprive
a union of representative rights. The case involved attempted
‘‘union enforcement of an employer’s mandatory bargaining
duty by unprovoked and irresponsible physical assaults’’ by
virtue of an attack on managers by union officials. Since the
notion was introduced, it has been discussed in broader terms
(although seldom invoked, not even in response to seemingly
widespread strike misconduct in a Gissel-type case, Fairview
Hall Convalescent Home, 206 NLRB 688 (1973)). It is clear
in Laura Modes that the Board found repugnant and barbaric
the attack mounted by union agents on managerial officials,
and, as well, the evidence of the union’s ‘‘total disinterest in
enforcing its representation rights through the peaceful legal
process promised by the Act . . . .’’ 144 NLRB at 1596. To
discourage future departures from reasonably civilized legal
and behavioral norms, the Board chose to deny the offending
union its representative status, but only until the union
‘‘demonstrates a majority among [the] employees through the
Board’s election procedures.’’ 144 NLRB at 1596. Thus, the
behavior was not considered so repulsive that the union
would be forever barred from representing the employees—
the question was whether the employees still wanted the
union, warts and all. But in this case we deal with behavior
not remotely approaching that condemned by the Board in
Laura Modes.
The other strand of precedent with which Respondent
would braid Laura Modes is Jefferson Standard, a holding
that a handbill issued in the midst of a strike which made
no references to the labor dispute and confined itself to a dis-
paragement of the employer’s product constituted ‘‘dis-
loyalty’’ and a lawful ‘‘cause’’ for the discharge of the em-
ployee-distributors. There was similar conduct by the Union
here, is publicizing the short-weighting and health violations.
Although also apparently true in Jefferson Standard, it seems
difficult, given the entire scenario and the generally static au-
dience before whom it was played out, that anyone could
view these specific attacks as separable from the ongoing
labor dispute rather than as an overall part of the dispute
(which, if not apparent to the more interested observers, was
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 The fact that Denrich came to the store and met individually in the office
with several cashiers, beginning with Hayes, leaves little doubt in my mind
that he had become aware of and was responding to the new union effort at
Stemmers. His normal practice when entering a store, he said, was simply to
greet employees with a ‘‘Hi, how you doing?’’ I also note that Stemmers man-
agement trainee John Cuddy conceded at the hearing that prior to the receipt
of the February 4 petition, he ‘‘knew that some of the employees were for
the union,’’ which included Hayes, although he denied knowing that ‘‘there
was a union organizing campaign’’ going on.
surely put into context by the publications issued by Re-
spondent in replying to the Union thrusts).
Jefferson Standard is a narrow holding as to certain cir-
cumstances in which an employee may go too far in prosecu-
tion of a labor dispute, and it relies in large measure on the
‘‘underlying contractual bonds and loyalties of employer and
employees’’ (id. at 473), a relationship found by the dis-
senters to be ill-fitting in the labor-management arena
(‘‘Many of the legally recognized tactics and weapons of
labor would readily be condemned for ‘disloyalty’ were they
employed between man and man in friendly personal rela-
tions,’’ id. at 479–480). As the Charging Party has pointed
out, however, conduct which is not protected by the Act for
individuals has been held to be consistent with good-faith
bargaining (‘‘But surely that a union activity is not protected
against disciplinary action does not mean that it constitutes
a refusal to bargain in good faith,’’ NLRB v. Insurance
Agents, 361 U.S. 477, 494 (1960)). The equation which Re-
spondent seeks to draw between the consequences of unpro-
tected individual activity and the tolerable outer limits of
pressure applied by a union qua union is, in other words, an
unacceptable one. Again, I believe that the balance must be
struck in favor of what appears to be the best evidence of
employee sentiment before Respondent’s unfair labor prac-
tices took hold. As the Supreme Court noted in Gissel, 395
U.S. at 613, putting into perspective this entire exercise in
what must candidly be regarded as speculation, ‘‘There is,
after all, nothing permanent in a bargaining order, and if,
after the effects of the employer’s acts have worn off, the
employees clearly desire to disavow the union, they can do
so by filing a representation petition.’’
I conclude, accordingly, that, as far as one can tell, the
ends of the law will be served by entering the remedial bar-
gaining order at the Havre facility requested by the General
Counsel and the Charging Party.
E. The Objections to the Election in Case 5–RC–13005
Having found support in the record for certain Objections
to Election filed by the Petitioner in Case 5–RC–13005,
namely Objections 1(a), 1(c), 4, 5, and 8, and having also
concluded that such conduct is violative of Section 8(a)(1),
I must hold that Respondent has interfered with the exercise
of employee free choice in the election conducted on Feb-
ruary 18, 1988. Dal-Tex Optical Co., 137 NLRB 1782,
1786–1787 (1962). I recommend, accordingly, that the elec-
tion be set aside.
III. THE STEMMERS RUN ROAD CASE
We now turn to the remaining allegations involving two
other stores in Respondent’s chain. The first complaint in-
volves the Stemmers Run Road store (‘‘Stemmers’’).
The union campaign at Stemmers began in early January
1988, when nonsupervisory Seafood Manager Richard Heinly
(who later quit Respondent’s employment after being de-
moted) met with a union organizer, signed a card, and was
given 25 cards to distribute. The Union filed a petition for
election on February 4, 1988. General Counsel’s brief skele-
tally outlines the violations that the Government believes it
has proved at Stemmers, and they are based on the testimony
of Heinly and two other Stemmers employees.
A. Events Relating to Hayes
One of these employees is Debra Hayes, who worked as
a cashier at Stemmers at times material. Hayes was active on
behalf of the Union, passing out cards during her time off,
and she thought that this activity was known to management.
Hayes testified that sometime around January 10, Denrich
came into the store and Hayes was told by the manager, as
she waited on a customer, that she should close her register
because Denrich wanted to talk to her. She did so, and
Denrich then asked her ‘‘[H]ow things were going. You
know, if I had any problems.’’ With Store Manager Kenneth
Knight in attendance, Hayes listed a catalogue of problems,
including one about being sent home 1 day when there was
no need for the number of cashiers on hand. Thereafter,
Hayes saw Denrich call four or five other cashiers into the
office to speak to them.
When Hayes complained, in answer to his inquiry about
‘‘problems,’’ about being sent home, Denrich reprimanded
Knight for doing so and told Hayes to get her timecard so
that he could take care of it. He told Knight that they were
‘‘having too much of a problem with this. You’re sending
these girls home and you’re not asking them, you’re just
sending them. I’ve had too many complaints.’’ Hayes gave
Denrich her card and he saw to it that some 2-1/2 hours of
wages were added.
Denrich testified that prior to this complaint, he had re-
ceived ‘‘some complaints from the Stemmers cashiers over
a period of time’’ about, inter alia, their being sent home
without pay, and he says that he told Manager Knight in Oc-
tober that ‘‘they shouldn’t be sending people home forcibly’’
even though the workload did not require their presence. Al-
though he had received this complaint ‘‘from the cashiers
over a period of time . . . even in the summer of that year,’’
it was not until Hayes had become an activist for the Union
that Denrich made this gesture of recompense.48
I find that by paying Hayes for being sent home ‘‘forc-
ibly,’’ Denrich was motivated by the union campaign. When,
as Denrich testified, cashiers had made previous complaints
about this practice, it is clear that no reparations were made.
On this occasion, only days after the Union’s campaign for
cards at Stemmers was begun, Denrich made a display of
criticizing Knight (Knight testified, but was not asked about
this matter) and also compensated Hayes for the loss recently
suffered by her, a major union partisan. I cannot help but be-
lieve that the relief given was an unlawful grant of benefit.
I recognize that, as Hayes testified, changes had resulted
from an October grievance meeting between the cashiers and
Denrich (e.g., the cashiers no longer were required to clean
the bathroom), but he had made no previous effort to finan-
cially compensate cashiers for a complaint which he admit-
tedly had received from a number of them in the past. Giv-
ing money to Hayes was no way, as Denrich put it, to ‘‘rep-
rimand’’ Knight.
775BI-LO
49 In subsequent versions, Cuddy omitted the reference to Acme (Tr. 1716),
and then put it back (Tr. 1717).
50 As indicated, at the hearing Cuddy virtually confirmed this testimony by
saying that he told Hayes, while discussing the Union, ‘‘if you have . . . any
complaints . . . we’ll try to take care of them for you.’’
I conclude, therefore, that the payment made to Hayes was
a grant of benefit inspired by the emergent union effort at
Stemmers, and violative of the Act under the principle in
NLRB v. Exchange Parts Co., 375 U.S. 405, supra.
On February 10, management trainee John Cuddy, who
was believed by Hayes to be the assistant manager and who
is conceded by Respondent to have held supervisory status,
asked to speak to Hayes for a few minutes. After asking
about ‘‘problems’’ she might be having, and getting a re-
sponse from Hayes, Cuddy said that Denrich had ‘‘sent me
in here to make sure all the problems were corrected,’’ and
that if she had any problems, to see him rather than Manager
Kenneth Knight because Cuddy ‘‘[d]eal[s] directly with
Louis.’’ After Cuddy brought up the case of a cashier who
had filed charges with the Board over a dispute, he asked if
Hayes knew that the Union was responsible for closing sev-
eral named supermarkets. When she defended the Union,
Cuddy said ‘‘[T]his union’s bad . . . . It closes everything
it gets its hands on.’’ Cuddy went on to say that ‘‘you were
going to get a wage of a dollar more an hour. But since the
Union came in everything’s frozen because it’s against the
law to do that.’’
Cuddy testified that Yingling transferred him from another
store to Stemmers to replace the Stemmers assistant manager.
Yingling (or some manager) told him that morale was ‘‘a lit-
tle off’’ among the cashiers, and by the second week of his
arrival, several cashiers had complained about scheduling,
menial duties, and assignment to the express lane.
Cuddy testified that Hayes complained to him 5 or 6 times
and had also made it quite clear that she was in favor of the
Union in the first few weeks he was there. He would respond
by saying that Respondent had always been fair to him, and
‘‘if you have . . . any complaints . . . we’ll try to take care
of them for you’’ He did not ‘‘recall’’ telling Hayes that this
union ‘‘closed Acme and Pantry Pride,’’ although he remem-
bered ‘‘talking to a different employee about something of
that nature’’ Subsequently, however, Cuddy testified that he
‘‘may have said something to that effect to Debbie Hayes in
one of our conversations.’’ He denied saying to Hayes that
the Union ‘‘closes everything it gets its hands on,’’ or men-
tioning a raise, or making any reference to Denrich sending
him in to handle problems directly.
The ‘‘different’’ situation to which Cuddy referred, relat-
ing to the closing of Acme and Pantry Pride, occurred as he
passed the bakery and heard the bakery manager and two
other employees, Pauline Morris and Dorothy Machin, con-
versing about the Union. Morris had worked for Pantry Pride
and expressed the belief that the Union had been useful
there. What follows is Cuddy’s recollection of how he
‘‘butted in’’: ‘‘Acme and Pantry Pride, you know, what’d
they—you know—what’d they do for you at the time? What
have they done for you now, you know, at this time?’’ Why
he would have mentioned Acme was not discussed at the
hearing.49 Morris reacted sharply, and Cuddy withdrew. Pan-
try Pride and Acme have closed nearly all of their stores.
Denrich denied having had anything to do with Cuddy’s
presence at Stemmers, much less having instructed him to
solicit grievances or resolve problems. Cuddy made a good
impression as a witness, but Hayes struck me as outstanding.
I credit her testimony in its essentials, and I conclude that
Respondent violated the Act in the following ways: by
Cuddy asking Hayes about her problems and at the same
time telling her that Denrich had ‘‘sent me in here to make
sure all the problems were corrected’’ (this would not nor-
mally be the function of a manager trainee, and the conversa-
tion as a whole indicates that it dealt with the union effort);50
and by impliedly threatening closure if the Union should win
recognition (‘‘It closes everything it gets its hands on.’’). I
would agree with the complaint allegation that Cuddy unlaw-
fully stated that the employees’ wage increase ‘‘was frozen
because of the Union’’; even though Hayes’s testimony was
that Cuddy said ‘‘everything’s frozen because it’s against the
law to do that,’’ what Cuddy was in fact doing was prom-
ising a benefit to Hayes once the Union had gotten out of
the way.
General Counsel’s brief succinctly touches on an encoun-
ter by Hayes with admitted statutory supervisor Mary Debbie
Neis, who held the position of assistant front end supervisor
for all the stores. Weis testified that she had been sent to
Stemmers by her superior to look over the cashier’s schedule
made up by a newly appointed Stemmers head cashier ‘‘to
make sure that the hours were distributed fairly.’’ While in
the breakroom, Weis was joined by Hayes and two other
cashiers. The cashiers made some complaints about the
scheduling in the past, and Weis said that she was there to
make sure that assignments were made fairly. Hayes recalled
no mention of the Union, nor did Weis. Weis told the new
head cashier to be sure that seniority should govern assign-
ment—a request made by Hayes—and that the express reg-
ister assignment should be distributed equitably, a matter
about which all the cashiers had complained. Hayes testified
that a practice of trying to keep employees on the express
register no more than 3 times a week was begun. I have no
reason to believe, however, that if a complaint had been
made previously to Weis, it would not have been acted on.
I recommend dismissal of this allegation.
The complaint alleges that Denrich and four Stemmers in-
dividuals are statutory supervisors and agents of Respondent
and that two are only ‘‘agents.’’ One of the latter is Per-
sonnel Assistant Bonnie Birtcher, an hourly paid former
cashier whose primary function is to train new cashiers,
which she does at different stores nearly every week for 3
days. In the course of training, she tells the trainees of ‘‘all
company policies’’ so that they are ‘‘aware of what the com-
pany expects . . . of the employees,’’ such as company pol-
icy regarding breaks and lunches when working the cash reg-
ister. When she returns on Thursdays and Fridays to the of-
fice which she shares with Personnel Director Pat Miller, to
whom Birtcher began reporting in October 1987, she per-
forms various ministerial duties, such as verification of pre-
vious employment of applicants. She also occasionally assists
at a ‘‘very few’’ stores, one of which was Stemmers, in ask-
ing applicants to respond to a standard questionnaire, and
when she submits the applications to Miller (who also inter-
views applicants), she is asked by Miller her opinion of those
she had interviewed. Her ‘‘guess’’ is that, of the perhaps 50
people she interviewed in a 2-year period, she may have rec-
ommended 25 of them for hire, and possibly half of those
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 At the hearing, General Counsel seemed to agree that Birtcher is delib-
erately not alleged to be a supervisor, but rather only an agent.
52 Indeed, it is uncontroverted that Hayes frequently called Birtcher at home
with various complaints, both while and after Birtcher worked as a cashier,
and that Birtcher responded that ‘‘there’s nothing I could do about that.’’
53 The fact that Hayes would have asked how Birtcher came to have knowl-
edge of such an intention indicates that Hayes did not regard Birtcher as an
agent of, or closely allied with, management. There is no showing that Hayes
was aware of Birtcher’s office duties.
54 His testimony that security guards were ‘‘hanging around’’ his department
more often after February 4 is mitigated for present purposes by his volun-
teered information that ‘‘that was also due to a lot of things being stolen from
[there]—by customers.’’ General Counsel stated that because there was no al-
legation as to guards, he offered this only for the purpose of establishing ani-
mus.
55 The brief makes no reference to the raise received by Heinly or to the
promise of a future raise, although both matters are alleged in the complaint.
Knight said that he first heard of the raise for seafood managers from
Yingling, perhaps around January 24.
were hired. Employee Hayes testified that she did not regard
Birtcher as a ‘‘manager or a supervisor,’’51 and it is difficult
to conclude that she would have reasonably been regarded by
other employees as an agent of Respondent for purposes of
communicating labor policy.52 While I therefore recommend
dismissal of this allegation attributed to Birtcher, I would
otherwise credit Hayes’ testimony that, around the end of
January 1988, while Birtcher was shopping in the store, the
two began to discuss the Union; Birtcher said that it was
‘‘bad’’ and she could not see why the employees would want
it; Hayes mentioned something about attempting to have an
election at Stemmers; Birtcher said that her ‘‘understanding
is that Louis would close the store before he would allow
this union in because, you know, its no good’’; and when
Hayes asked how she knew that, Birtcher replied, ‘‘Well, I
don’t—I can’t say that.’’53 Not only was I much impressed
with Hayes, but I was less than overwhelmed by the form
of Birtcher’s denial: ‘‘No, sir . . . . Not that I can recall.’’
B. Events Relating to Heinly
Seafood Manager Heinly, a nonsupervisor, testified that
around February 4, 1988, Store Manager Knight came to
Heinly’s department and asked him ‘‘if union representatives
had been to his house or [sic] to call me.’’ Heinly replied
that they had done so on several occasions. Knight went on
to say that Heinly and the seven other seafood managers
would be receiving a pay raise of $1 an hour and then talked
about how, when he had worked at Acme, ‘‘things didn’t
work out with disciplining the employees as well as they
could working with a nonunion company.’’ Ninety minutes
later, Knight returned to say that ‘‘the raise was retroactive
the next day’’ and that there would be an additional increase
in the future. Heinly received the $1 raise in his next check,
and, sometime later, a 50-cent raise.
In answering a question as to Knight’s knowledge of his
union activity, Heinly said that such knowledge was obvious
to him from the way Knight and Cuddy would follow him
if he conversed with another employee and would ‘‘break up
the conversation.’’ Heinly also alleged that he was followed
in this manner by various security guards.54
Knight denied knowing of Heinly’s relationship with the
Union and having any conversation with, or making any in-
quiries of, Heinly about the Union. He was not specifically
asked about, but presumably would have denied if asked, the
claim by Heinly that he and Cuddy kept known union sup-
porters under surveillance.
The General Counsel’s brief refers to only two violations
respecting Knight vis-a-vis Heinly: one, that Knight followed
Heinly around the store, and two, that Knight questioned
Heinly.55 First of all, I would credit Heinly over Knight.
Heinly seemed most honest, and I have taken into account
his reason for bitterness against Respondent. Knight was not
an unimpressive witness, but I believe that I sensed an in-
tense (and understandable) desire to protect his job.
Secondly, I conclude that the interrogation of Heinly,
sprung on him abruptly and without explanation, and in the
context of the conversation about wage increases, violated
Section 8(a)(1), despite the fact that Heinly admitted to hav-
ing had contacts with the Union. I further find reliable
Heinly’s impression that the managers were keeping him
under surveillance and following him around the store,
breaking up conversations, and that such conduct can only be
attributed to Heinly’s known support for the Union.
The remaining item relating to Heinly alluded to in Gen-
eral Counsel’s brief is a peculiar incident in which, on Feb-
ruary 19, a security guard, Mark Donnellon, was said by
Heinly to have pointed his finger in Heinly’s face and, in an
‘‘uproar,’’ told Heinly that if he did not vote no in the elec-
tion at Stemmers, ‘‘what happened to people in Havre de
Grace will happen to me.’’ While Donnellon gave an entirely
innocuous account of their conversation (almost too innoc-
uous for Donnellon to have recalled the matter at all), I
thought Heinly’s seemed more likely. However, Donnellon,
whose principal duty consisted of spending time at the stores
watching for shoplifters, was clearly not an agent of Re-
spondent, either actual or apparent, for the purpose of labor
relations communications. It may be noted, moreover, that
Heinly had no idea of what Donnellon was talking about, nor
could Donnellon have reasonably expected him to. I would
dismiss this allegation.
C. Events Relating to Machin
The remaining Stemmers allegations relate to Dorothy
Machin, a 5-year employee. She was a bakery clerk at
Stemmers in 1988.
Machin testified that one morning around the end of Feb-
ruary 1988, storewide bakery supervisor Rolfe entered
Stemmers, spoke to the deli manager, and then came to the
bakery and asked Machin if she had signed a union card.
Machin said she had. Rolfe then said that Denrich ‘‘didn’t
have to bargain at all,’’ that he was still the head of the com-
pany, and that he would say how the company was run.
Machin replied that they were not trying to take the company
away from Denrich. In the course of discussion, Rolfe assert-
edly said that ‘‘the union would bust people back to part-
time, that they [don’t] need that many full-time people back
there,’’ and ‘‘there wouldn’t be any more Saturdays Off.’’
Machin replied that she could not understand why ‘‘the
union would bust people back to part-time’’ because she as-
sumed that full-time employees would pay more union dues.
Rolfe denied having held any such conversation. She re-
called only one union-related discussion with Machin, some-
time after the Havre election, when, as Rolfe talked to the
deli manager at Stemmers, Machin joined the conversation
and asked abruptly when Denrich was coming to ‘‘talk about
the Union and take us for a free lunch?’’ Rolfe purportedly
777BI-LO
56 The election had been blocked by a charge. Although the complaint in
the Elkton case (5–CA–19673) alleges that the questionnaires were distributed
at all of Respondent’s stores (and that does seem quite likely), the proof ad-
duced at the hearing was limited to the Elkton location.
57 Assuming that General Counsel has proved what it had alleged as viola-
tive—the filling out of the forms at all the stores—the argument is even less
persuasive as to the non-Elkton stores at which no other elections were sched-
uled.
replied that she had ‘‘been through Havre de Grace and I
really can’t get into that.’’ Rolfe then suggested, since the
woman with whom she was speaking, Deli Manager Lee
Horstman, had been a union member, ‘‘why don’t you ask
Lee what’s going on with it?’’
Horstman then described to Machin her experience with a
union, indicating that she was ‘‘not prounion.’’ According to
Rolfe, Horstman told Machin that the Union ‘‘couldn’t guar-
antee her every single Saturday off,’’ a privilege then being
accorded to Machin, a league bowler; denied the Union’s
claim, mentioned by Machin, that it could get her $7 to $9
an hour; and Rolfe denied hearing Horstman say that Denrich
would never recognize the Union and would not bargain with
it.
Horstman’s testimony substantially corroborated Rolfe’s.
This is the kind of testimonial conflict that turns gray what
may be left of a factfinder’s hair. Machin was, I thought, a
most impressive witness; Rolfe’s demeanor gave no appear-
ance of simulation; and I was moved to silent superlatives
in my appraisal of Horstman. It is very difficult for me to
believe that Machin, a current employee, manufactured her
testimony; and it is equally difficult for me to think that the
refreshingly open Horstman was not telling the truth. It may
be simply that Machin is confused about the events. On her
redirect testimony, when Machin was asked if Horstman
‘‘was in on the conversation,’’ Machin answered, ‘‘Not at
that time, I don’t think she was.’’ In these circumstances, I
am constrained to conclude that the evidence is in equi-
librium, and that General Counsel has therefore failed to
prove by a preponderance of the evidence the allegations at-
tributed to Rolfe.
Machin further testified that perhaps in early February
1988, while talking with John Cuddy and mentioning that
she had signed a union card, Cuddy stated that he had been
sent to the store by Denrich and ‘‘was going to take back
all of our problems to him to see what he could handle. You
know, what he could fix and stuff.’’ She thinks that she told
him ‘‘a few’’ problems. On another occasion, also in early
February, Cuddy said, in the context of a discussion about
the Union, that Stemmers ‘‘was such a low volume store that
Louis wouldn’t have any problems closing it.’’
Cuddy recalled an occasion, perhaps in mid-February,
when, in casual conversation, Machin complained about not
getting enough hours. He referred, probably, to their ‘‘low
volume’’ store as explaining why shifts had to be split. In
discussing this subject, Machin told why she thought a union
might help, and volunteered the information that she had
signed a card. Cuddy responded that he did not think a union
was needed, because they could ‘‘get our problems straight-
ened out and . . . take care of that in the store or at com-
pany level.’’
As for these conversations, there is no likelihood that
Machin was confused. With regard to the allegation that his
presence was explained as an implied promise to correct
problems, Cuddy came close to conceding it with his last-
quoted offer to Hayes. While the possibility always exists
that I may be wrong, I am comfortable with a finding that,
as Machin testified, Cuddy coerced her by suggesting that
Stemmers was such a low-volume store ‘‘that Louis wouldn’t
have any problems closing it.’’
IV. THE ELKTON QUESTIONNAIRE
On April 22, 1988, a ‘‘mandatory’’ (according to a notice)
meeting for the ‘‘associates’’ was held at the Elkton store
after it closed for the day. Employee Melanie Vance testified
that chainwide meat department supervisor Beamon handed
out questionnaires to the employees, telling them to fill the
forms out and hand them back unsigned. He also said that
if anyone ‘‘had something else to do, we could leave.’’ A
union campaign was being waged at the Elkton store at the
time, the petition having been filed on February 12. Beamon
said that the purpose of the questionnaire was to find out
‘‘how the employees felt about the Company . . . and then
we would get the results back later.’’ About a month before
the hearing, Denrich came to the store and discussed the re-
sults with the employees, but did not mention the Union.56
The complaint alleges that the questionnaire violates the
Act by asking a question concerning ‘‘the extent of union
support among employees.’’ Of the 103 questions put by the
forms, most of which were to be answered by checking vary-
ing degrees of agreement or disagreement, question 43 was
phrased, ‘‘The employees of this store do not feel that they
need a union to speak and act for them.’’ The other state-
ments were more personally work- and attitude-related, such
as ‘‘My manager helps me learn from my mistakes’’ and
‘‘This company expects too much work from me.’’ Although
the form states boldly at the top of the first page and the bot-
tom of the last, ‘‘Please do not sign your name!’’ and each
page is marked ‘‘CONFIDENTIAL,’’ most of the final 17
questions seem to make theoretically possible the identifica-
tion of the employee by (l) asking the name of his or her
department and store manager and (2) propounding essay
questions (e.g., ‘‘If I could change something or begin some-
thing, I would:’’) which could reveal not only facts about the
writer, but also provide good specimens of the examinee’s
handwriting.
The Government’s brief argues that item 43 ‘‘is in fact a
means of measuring employee sympathy as the scheduled
election date approached.’’ I do not agree with this assertion
of fact, since an employee’s opinion as to whether his col-
leagues ‘‘do not feel that they need a union to speak and act
for them’’ has not been shown on this record by any empir-
ical evidence to constitute a useful and scientific means of
measuring such sympathy. Moreover, even if that had been
proven, I do not see how the gathering of such general infor-
mation by such a method could have a coercive, restraining,
or intimidating effort on the employees.57
Perhaps in recognition of these problems, General Counsel
pushes beyond the borders of the complaint’s stated theory
to suggest that this display of interest in the feelings and sen-
timents of the employees is ‘‘of a piece with the solicitation
of grievances and promises—actual or implied—which fig-
ured so prominently in the Havre de Grace and Stemmers
Run cases.’’
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
58 In Gordonsville, the Board also employed the phrase ‘‘[e]specially since
it occurred within the context of other violations of Section 8(a)(1).’’ The use
of the word ‘‘especially’’ indicates that other unlawful conduct is not critical
to the finding. Id. at 563.
59 As Respondent points out on brief, an earlier case, ITT Telecommuni-
cations, 183 NLRB 1129 (1970), evidently would dismiss a claim that the
questionnaire constituted an unlawful promise of benefits. It may also be that
that case would not have found unlawful interrogation here, since there the
Board gave no weight to the survey question, ‘‘Many company employees I
know would like to see the union get in.’’ Unlike that case, however, the in-
stant and the cited later cases made identification of the examinees possible.
This is, perhaps, further than General Counsel had to go.
One of the cases relied on by General Counsel is Gordons-
ville Industries, 252 NLRB 563 (1980), in which I con-
cluded, depending on Reliance Electric Co., 191 NLRB 44,
46 (1971), that, in the circumstances, a questionnaire which
sought to identify employee grievances in an unprecedented
fashion soon after the initiation of a union effort constituted
an implied promise to rectify grievances, in violation of Sec-
tion 8(a)(1). I declined to find, however, that the survey also
amounted to coercive ‘‘interrogation,’’ as charged, because
the form did not ‘‘explore employee evaluation of working
conditions.’’ 252 NLRB at 569.
In reversing the latter holding, id. at 563, the Board con-
cluded that the data supplied by the employees on the forms
‘‘clearly gave information which could serve to identify em-
ployees’’ (which is also true, if possibly more complicated,
in this case). The Board went on to hold that even though
the poll posed no express question about ‘‘union senti-
ments,’’ it was ‘‘obvious’’ that some questions (such as
‘‘[w]hat would you like to see done to make your company
a better place to work’’) ‘‘had that effect.’’ This latter infer-
ence was based on the fact that a number of employees re-
sponded with answers ‘‘which revealed their union senti-
ments.’’ The Board concluded that the ‘‘necessary confiden-
tiality and assurances against reprisals were lacking during
the administration of the survey,’’ and ‘‘the responses gen-
erated by some of the subjective open-ended questions had
the effect of infringing on the employees’ Section 7 rights’’
and constituted unlawful interrogation. Id. at 564.
It is unclear to me how the standard of judging a survey
by some of the ‘‘responses,’’ rather than by the customary
test of the reasonable tendency of the questions to coerce,
was developed. I presume that the Board would equally have
held that, regardless of the responses, the ‘‘subjective open-
ended questions’’ themselves, absent assurances, would also
have been violative. Applying Gordonsville to the present
case, there were here an absence of ‘‘assurances against re-
prisals’’ and ‘‘subjective open-ended questions’’ which could
have encouraged disclosure of union sentiments. That seems
to be a sufficient basis, under the Board’s Gordonsville rul-
ing, to sustain a finding of unlawful interrogation.58
Moreover, as in Reliance Electric and Gordonsville (fur-
ther followed in Keystone Lamp Mfg. Corp., 284 NLRB 626,
639 (1987)), the in-depth formal inquiry into employee senti-
ments about their work environments must similarly have
given rise to the ‘‘compelling inference’’ that the employer
is ‘‘implicitly promising to correct those inequities he dis-
covers as a result of his inquiries . . . .’’ Reliance Electric,
supra, 191 NLRB at 46. For this reason as well, I find that
the circulation of the questionnaires at Elkton violated Sec-
tion 8(a)(1).59
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers International
Union, Local 27, AFL–CIO–CLC is a labor organization
within the meaning of Section 2(5) of the Act.
3. By, at its Havre de Grace store, from November 1987
to February 1988, impliedly threatening to close the store by
virtue of a mailing and discussion thereof, and by other con-
duct; asking employees to maintain surveillance of other em-
ployees and report on their union activities; impliedly threat-
ening to discharge the spouse of a prounion employee;
threatening to reduce benefits prior to bargaining; coercively
interrogating employees about union activities; impliedly
promising to improve working conditions and to give a wage
increase; unlawfully giving wage increases to employees; re-
questing an employee to take a position on asking other em-
ployees to abandon union support; threatening an employee
with loss of friendship; unlawfully requiring an employee to
remain in her department; unlawfully forbidding an employee
to talk about a union; and engaging in and giving the impres-
sion of surveillance of the union activities of its employees,
Respondent violated Section 8(a)(1) of the Act.
4. By, at its Stemmers Run Road store, in January and
February 1988, unlawfully making and promising and
impliedly promising grants of benefits, impliedly threatening
to close the store, keeping an employee under surveillance,
and interrogating an employee about union activities, Re-
spondent violated Section 8(a)(1) of the Act.
5. By, at its Elkton store, on April 22, 1988, by means of
a questionnaire, coercively interrogating employees and
impliedly promising to rectify their grievances, Respondent
violated Section 8(a)(1) of the Act.
6. The appropriate unit for collective bargaining at the
Havre de Grace store is:
All full-time and regular part-time employees excluding
guards and supervisors as defined in the Act.
7. By refusing, on or about April 5, 1988, to recognize and
bargain with the Union as the exclusive collective-bargaining
representative of the employees in the unit described above,
Respondent violated Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Except as found above, Respondent has not violated the
Act in any other respect alleged in the consolidated com-
plaints.
THE REMEDY
I shall recommend, as a remedy for the unfair labor prac-
tices committed at the Havre de Grace store and pursuant to
Gissel Packing Co., supra, that Respondent be required to
bargain with the Union as the representative of the unit em-
ployees at that store. I shall also recommend that Respondent
be required to post at its Havre de Grace store, its Stemmers
Run Road store, and its Elkton store, the attached notices
marked, respectively, Exhibits A, B, and C.
779BI-LO
60 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
61 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended60
ORDER
The Respondent, So-Lo Foods, Inc., t/a BI-LO and So-Lo
Foods, Inc., t/a Valu Food, Havre de Grace, Stemmers Run,
and Elkton, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively in good
faith, on request, with United Food and Commercial Workers
International Union, Local 27, AFL–CIO–CLC (the Union),
at its Havre de Grace store as the exclusive collective-bar-
gaining representative of all employees in the appropriate
unit set forth in paragraph 6 of the Conclusions of Law en-
tered above.
(b) Impliedly threatening to close its stores, asking em-
ployees to maintain surveillance of other employees and to
report on their union activities, impliedly threatening to dis-
charge the spouse of a prounion employee, threatening to re-
duce benefits prior to bargaining, coercively interrogating
employees about union activities; impliedly promising to im-
prove working conditions and to give a wage increase; un-
lawfully giving wage increases to employees; requesting an
employee to take a position on asking other employees to
abandon union support; threatening an employee with loss of
friendship; unlawfully requiring an employee to remain in
her department; unlawfully forbidding an employee to talk
about a union; and engaging in and giving the impression of
surveillance of the union activities of its employees.
(c) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid, or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively with
the Union, as the exclusive representative of the employees
in the appropriate unit set forth above, with respect to rates
of pay, hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Post at its places of business at Havre de Grace,
Stemmers Run Road, and Elkton, Maryland, copies of the at-
tached notices marked ‘‘Appendix A,’’ ‘‘Appendix B,’’ and
‘‘Appendix C.’’61 Copies of the notice, on forms provided
by the Regional Director for Region 5, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ALSO ORDERED that those portions of the complaints
found to be without merit are hereby dismissed.