Brunswick Food And Drug

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 663 (N.L.R.B. 1987)

BRUNSWICK FOOD & DRUG 663
The Kroger Co., d/b/a Brunswick Food and Drug
and United Food and Commercial Workers
Union, Local No. 1063, chartered by the Inter-
national Food and Commercial Workers Inter-
national Union, AFL-CIO, CLC. Cases 10-
CA-20082, 10-CA-20100, 10-CA-20416, and
10-CA-20537
30 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 29 November 1985 Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion. The General Counsel and the Charging Party
filed exceptions and supporting briefs, and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order, and to adopt the recommend-
ed Order as modified.
The judge found that the Respondent did not
violate Section 8(a)(3) and (1) of the Act by sus-
pending and then discharging Bonnie Manning be-
cause of her conduct on 11 October 1984. 1 Both
the General Counsel and the Charging Party
except to this finding. 2 We find merit in their ex-
ceptions and, for the reasons set forth below, we
reverse the judge and fmd that the Respondent vio-
lated Section 8(a)(3) and (1) by disciplining Man-
ning because of the 11 October incident.
Toward the end of 1983 and throughout the
spring and summer of 1984, the Union conducted
an organizing campaign among the Respondent's
work force. On 21 September an election was con-
ducted, and the Union received a majority of the
valid votes cast. On 11 October representatives
from the Union visited the Respondent's deli res-
taurant for the first time since the election. The
representatives purchased food and sat down to eat
with employees who were on a break, as they had
frequently done during the weeks preceding the
Board-conducted election. Bonnie Manning was
one of the employees present. The Union's repre-
sentatives were asked to leave the store by the Re-
dates refer to 1984 unless otherwise indicated.
The Charging Party additionally excepts to the Judge's failure to
order one of the Respondent's spokesmen to read the Board's Order to
the employees. We find no merit in this exception. The Charging Party
fails to show any reason why posting the Board's notice would be an m-
adequate remedy for the Respondent's unfair labor practices.
spondent's comanager; however, they refused to do
so. The Respondent's comanager then contacted
the police and had the Union's representatives
evicted from the store. The judge found that the
Respondent's conduct violated Section 8(a)(1) of
the Act.3
While the union representatives were being
evicted by the police, Bonnie Manning stated in the
presence of deli restaurant customers that she
would "like to apologize for the ignorance of man-
agement." According to the credited testimony of
the Respondent's witnesses, Manning "jumped up
from her seat," "paced around," and made the
statement to customers on her own initiative in a
very excited manner. The General Counsel and the
Charging Party except to the judge's crediting of
the Respondent's witnesses rather than Manning,
who testified that, in response to a customer's in-
quiry, she stated in a normal tone of voice, "Sir, I
apologize for management, but as an employee
there is nothing I could [sic] do." We adopt the
judge's credibility resolutions. 4 We do not, howev-
er, agree with his conclusions that (1) the Respond-
ent's unlawful conduct in having the Union's repre-
sentatives removed by the police was "directed"
only at those individuals and not at Manning and
the other employees who had been meeting with
the representatives or (2) Manning's spontaneous
protest of this unlawful conduct was "so excessive
and extreme that it lost any protected nature it
might otherwise have." Rather, we find that the
protest was provoked by the Respondent's own
misconduct.
In concluding, contrary to the judge, that the
discharge of Manning violated Section 8(a)(3) and
(1) of the Act, we start from the premise that em-
ployees have a right to meet with their collective-
bargaining representative on their own time. 3 That
right is protected against interference under Sec-
tion 8(a)(1) of the Act; and, pursuant to Section
8(a)(3), employers may not discriminate against em-
ployees for seeking to exercise that right or protest
its curtailment.
'The Respondent has not excepted to this or any other violation find-
ing made by the judge.
4 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law Judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Well Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
5 As explained below, the conversations involved here were quiet and
nondisruptive. Since they comported with the normal use of the area in
which they were conducted, it is immaterial that they took place on the
Respondent's property. See Hughes Properties v. NLRB, 758 F.2d 1320,
1323 (9th Cir 1985), and cases there cited. In any event, as previously
noted, the Respondent has not excepted to the finding that it violated the
Act when it had the Union's representatives removed by the police.
284 NLRB No. 78
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, some of the off-duty employees had been
exercising their rights, following the Union's victo-
ry, to meet with union representatives in the public
dining area, just as they had done prior to the elec-
tion. The record shows that the conversations were
as routine and nonobtrusive as they had been
before the election, yet the Respondent chose to
disrupt them by summoning the police to eject the
union representatives. This provocative and unlaw-
ful action could reasonably be expected to create a
sense of indignation, as well as to prompt a verbal
reaction, by a directly affected employee such as
Manning, who even before the election had been
an ardent and open union supporter.
To assert, as our dissenting colleague does, that
the eviction of the union representatives was di-
rected at them only, and not the employees they
were meeting with, is to ignore the fact that em-
ployees have the right to meet with their union
representatives and that the eviction of the union
representatives, which broke up such a meeting,
necessarily amounted to interference with that
right. As the rights guaranteed by the Act are
rights which are given to employees, not union
representatives, it is difficult to say, as our col-
league does, that interference with those rights is
not conduct directed at employees but rather con-
duct directed only at union representatives. Admit-
tedly, the union representatives were the only per-
sons physically evicted from the Respondent's
premises, but it would be anomalous to conclude
that the Respondent's conduct was directed at only
the union representatives. Clearly, the eviction of
the union representatives, in addition to its immedi-
ate interference with employee rights, also sent a
message to the employees that the Respondent was
going to continue to fight the Union even though
the Union had recently been elected as the employ-
ees' collective-bargaining representative.
To be sure, as the judge noted, otherwise pro-
tected employee conduct may be so extreme as to
lose the protection of the Act; and in such a case
discharge or discipline by the employer for that
conduct is lawful. But even when an employer has
not itself acted unlawfully before the discharge or
discipline in question, we balance an employee's
protected right—for example a right to discuss a
contract grievance—against the employer's "right
to maintain order and respect" and also to "permit
some leeway for impulsive behavior." NLRB v.
Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir.
1965). Accord: Crown Central Petroleum Corp. v.
NLRB, 430 F.2d 724, 730 (5th Cir. 1970). When
the impulsive behavior is induced by the employ-
er's unlawful infringement of employee rights, we
also compare the seriousness of the employer's un-
lawful conduct with the extent of the employee's
reaction. 6 As we stated in Louisiana Council 17,
AFSCME, 250 NLRB 880, 886 (1980):
[A]n employer cannot provoke an employee to
the point where [the employee] commits . . .
an indiscretion . . . and then rely on this to
terminate the employment. [W]here . . . the
employer's wrongful provocation is serious
and compelling, we will permit the employee a
certain amount of leeway in response. As the
court stated in [NLRB v.] M B Headware
Co., [349 F.2d 170, 174 (4th Cir. 1965)]: "The
more extreme an employer's wrongful provo-
cation the greater would be the employee's
sense of indignation and the more likely its ex-
cessive expression."
The judge sought to apply that standard here,
but we cannot agree that in view of the totality of
circumstances he was correct in concluding that
Manning's comment—a direct response to the
union representatives' getting the boot—was unpro-
tected. The judge's suggestion that her protest was
unprotected because it was communicated to cus-
tomers and continued for more than a moment ig-
nores the factual context. The deli restaurant was a
small area in which patrons were using some of the
approximately 12 tables and booths. Consequently,
even before Manning's comment, the patrons' at-
tention could not help but be drawn to the con-
frontation either as it began when the Respondent
unlawfully provoked it or as it culminated with the
arrival of police, summoned there by the Respond-
ent. Under such circumstances, it was not unrea-
sonable for Manning to direct her excited com-
ments to the customers, who had witnessed the in-
6 Two of the cases on which our dissenting colleague relies, Blue Jeans
Corp., 170 NLRB 1425 (1968), and NLRB a. M B Headware Go, 349
F.2d 170 (4th Cir. 1965), involved situations in which an employee was
provoked by his or her own discharge or layoff and then responded to
that provocation with disruptive, insubordinate, or threatening conduct.
Consequently, the Board in those cases had to determine whether the em-
ployee's postchscharge conduct precluded the employee from being rein-
stated by Board Order The Board, however, has not found discharge to
be the only type of employer provocation which would warrant an al-
lowance of some leeway for impulsive behavior. In Thor Power, supra,
grievance committeeman Tinsley, was discharged for allegedly referring
to the company superintendent as a "horse's ass" after the superintendent,
during the course of a grievance meeting, loudly objected, using an ob-
scene epithet, to Tinsley's participation in the grievance procedure The
Board found that the discharge violated Sec. 8(a)(3) of the Act, and the
court, m affirming the Board, concluded that Tinsley's impulsive behav-
ior in the context of that grievance meeting could not be said to have
exceeded the bounds of protected activity Id. at 587. Our dissenting col-
league has identified no principled basis for concluding that only m the
case of unlawful discharges may we assess the allegedly excessive or in-
subordinate character of an employee's conduct in the light of the em-
ployer's conduct that provoked it Just as the court in Thor Power de-
clined to eiamine employee Tinsley's conduct "in a vacuum" (id. at 586),
so we assess Manning's conduct in the light of the Respondent's unlawful
conduct that provoked It
BRUNSWICK FOOD , & DRUG

665
cident. 7 Her comments were, in a sense, an effort
to defend the lawfulness of the activity for which
the union representatives were being removed—to
suggest that it was the remover, rather than those
removed, who was in the wrong. In any event, the
Respondent selected the setting for this confronta-
tion, and it is thus hardly in a position to object
that customers were drawn into it. 8 Neither, in our
view, does the fact that Manning became very ex-
cited and repeated her statements at least twice
constitute prolonged or extreme conduct in com-
parison with the provocation.9
In sum, we conclude that the Respondent's un-
lawful interference with the rights of its employees,
including Manning, to meet with their union repre-
sentatives provoked a protest from Manning that,
under the circumstances, was not rendered unpro-
tected by virtue of the manner in which it was ex-
pressed. We therefore find that the Respondent
violated Section 8(a)(3) and (1) by discharging her
for that response.1°
The judge also noted that Bonnie Manning had released "verbal bar-
rages" in front of customers on two previous occasions. The first time
she was warned that her conduct was unacceptable and the second time
she was suspended for the remainder of the workday. Because, however,
the comments for which Manning was discharged here were not only
linked to the protected activity of meeting with union representatives but
also were provoked by the Respondent's unlawful disruption of that ac-
tivity, we cannot find that the previous incidents either established a
precedent for this discipline or removed its likelihood of discouraging
union activity.
Member Stephens notes that other reasons, m addition to Respond-
ent's own choice of situs for its violation, weigh against agreeing with the
dissent that Manning's remarks to persons other than "supervision or
management" deprive her protest of the protections of the Act. Even
when otherwise protected activity is not a response to employer conduct
that is unlawful under the Act, some leeway is given for impulsive and
exaggerated , utterances that come to the attention of outside parties.
Thus, for example, in NLRB v. Cement Transport, 490 F 2d 1024 (6th Cir.
1974), cert denied 419 U.S 828 (1974), the Court observed that in the
"the context of a struggle to organize a union . . allegedly offensive ac-
tions . . . directly related to activities protected by the Act" enjoy an
immunity if they "are not so egregious as to be considered indefensible."
Id. at 1029-1030. The employee involved there had, among other actions
in the course of his union organizing effort, made unflattering remarks
about the employer to a state agency, but this appeal to outside parties
was not found to justify the employee's discharge. In the present case,
the union organizmg effort had ended, but the Respondent's hostile treat-
ment of the union representatives suggested that the campaign for recog-
nition of the employees' chosen representative was still not completely
won. Member Stephens therefore notes that our decision here comes
within accepted principles in according some leeway for Manning's im-
pulsive conduct in that setting, notwithstanding that her remarks were
addressed to the customers who had witnessed the Respondent's unlawful
conduct.
9 Member Stephens emphasizes, however, that nothing in the decision
here gives an employee license to ignore "the requirements of discipline
and good manners" (NLRB v. M & B Headwear, 349 F.2d 170, 174 (4th
Cir. 1965)), nor is an employer precluded from meting out appropriate
discipline (and even discharge) for improper conduct that, apart from the
employer's own unlawful acts, is harmful to its business. Member Ste-
phens therefore notes that the decision here turns very precisely on the
facts of this case.
" We amend the Order and notice to correct the inadvertent omission
in the judge's decision and to reflect the additional 8(a)(3) violation we
have found.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Kroger Co., d/b/a Brunswick Food
and Drug, Brunswick, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraphs 1(m)
and (n) and reletter the present paragraph (n) as
paragraph (o).
"(m) Promulgating, maintaining, and enforcing
an overly broad rule which prohibits employees
from wearing union buttons; issuing written warn-
ings to employees; suspending and discharging em-
ployees for violating such a rule.
"(n) Suspending and discharging employees pro-
testing curtailment of employees' right to meet
with their collective-bargaining representative."
2. Substitute the following for paragraphs 2(c),
(d), and (e).
"(c) Offer Ella Rost and Bonnie Manning imme-
diate and full reinstatement to their former posi-
tions, or, if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority and other rights and privileges pre-
viously enjoyed.
"(d) Make whole Ella Rost and Bonnie Manning
for any loss of earnings or benefits they may have
suffered by reason of the discrimination against
them by payments to them of sums of money equal
to the amounts they normally would have earned
from the dates of the discrimination to the dates of
the Respondent's offer of reinstatement, less net in-
terim earnings, with backpay to be computed in the
manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
"(e) Remove from its files written warnings
issued to Ella Rost dated 22 August and/or 23
August 1984, as well as any reference to the dis-
charge of Ella Rost and remove from its files any
reference to the 11 October 1984 suspension of
Bonnie Manning and the subsequent discharge of
Bonnie Manning, and notify them in writing that
this has been done and that evidence of the unlaw-
ful warnings, suspension, and discharges will not be
used as a basis for future personnel actions against
them."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
I disagree with my colleagues' finding that the
Respondent's unlawful removal of two union repre-
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sentatives from its deli restaurant was so serious
and compelling a provocation against employee
Bonnie Manning that she should not be held ac-
countable for her loud and disruptive "apology" to
restaurant patrons "for the ignorance of manage-
ment." Like the judge, I would find Manning's out-
burst represents disloyal unprotected conduct and
would dismiss the complaint allegation that the Re-
spondent violated Section 8(a)(1) and (3) by disci-
plining her.
The Union's organizing activities at the Re-
spondent's retail grocery store began in December
1983, During the ensuing campaign and following
the Union's election victory, the Respondent com-
mitted a number of unfair labor practices.' Except-
ing the subject of discipline, there is no allegation
that the Respondent's misconduct involved dis-
crimination against Manning. 2 Concerning the out-
burst for which Manning was discharged, the evi-
dence shows that on 11 October 1984, a few weeks
after the election, Union Representatives Curtis
Williams and Mitchell Harden came to the Re-
spondent's store, exchanged pleasantries with em-
ployees, and then proceeded to the store's deli res-
taurant where they purchased food and sat down.
When Manager Lloyd Kerr saw these two enter
the store, he called the Respondent's Atlanta divi-
sion office as earlier directed. He was instructed to
ask the two union representatives to leave and, if
they refused, to call the police and have them re-
moved. Kerr went to the deli and asked the union
representatives to leave the store. Manning, who
happened to be sitting with Williams and Harden at
the time, asked Kerr, "Why the hell after nine
I agree with the judge's findmg that early m the Union's organizing
campaign the Respondent violated Sec 8(a)(I) by asking Manning if she
knew anything about an upcoming union meeting, requesting her to
attend the meeting and bring back mformation about what she saw and
who attended, and later questionmg her about what she had learned The
judge also found that about 12 January 1984 and again in late February
or early March the Respondent violated Sec. 8(a)(1) when it asked Man-
ning whether she knew about a planned union meeting On both of these
occasions Manning asked whether the Respondent wanted her to attend
the meeting and offered to find out who attended and what took place.
In each instance Manning later located the Respondent's representatives
m the store's deh restaurant and reported her findings, the last time
simply indicating, "It was the same old crew, nothing to worry about"
In the absence of exceptions, I adopt pro forma the judge's findings con-
cerning these later incidents where Manning offered to be the Respond-
ent's informant and voluntarily reported her findings to the Respondent
in a casual manner at a time and place of her choosing.
2 Durmg preelection meetings the Respondent unlawfully established a
complaint procedure, promised to remedy employee grievances, and
threatened employees would lose benefits if it had to bargain with the
Union The Respondent also unlawfully prohibited employees from wear-
ing union buttons Mannmg was one of many employees in attendance
when the unlawful statements were made and subjected to the Respond-
ent's unlawful dress code Also Manning was, as discussed above, unlaw-
fully asked by the Respondent to secure information about union meet-
ings and, after the election, was told she could not talk to employees re-
gardmg wages and pay increases Unlike other employees, Manning was
never sanctioned for any breaches of the unlawful work rules imposed by
the Respondent.
months they were just now asking these two gen-
tlemen to leave?" Williams told Kerr he and
Harden "were not going anywhere." Kerr then
telephoned the police. Upon their arrival, the
police confronted Williams and Harden and re-
moved them from the store. As this was happening
Manning "jumped up from her seat," "paced
around," and excitedly told the customers present
that "she'd like to apologize for the ignorance of
management." Manning repeated her unsolicited,
disparaging remarks more than once before stomp-
ing back to her work station behind the service
area in the deli. Manning was suspended for 3 days
and subsequently discharged for her public out-
burst. In the hour following their above-described
removal by the police, Williams and Harden re-
turned twice to the store. On the second occasion
Kerr again called the police and had them re-
moved. This time they were warned that they
would be charged with criminal trespass if they
showed up at the store again.
The majority finds that Manning's outburst dis-
paraging management to its customers did not
render unprotected her protest over the Respond-
ent's unlawful removal of the union representatives.
The premise of their finding is that in order to
reach the proper balance between the right of em-
ployees to engage in protected concerted activities
and the right of an employer to maintain disci-
pline, 3 employee misconduct in the course of oth-
erwise protected activity should be excused in the
face of wrongful employer provocation. The line
of Board and Court decisions relying on this
premise and discussed below involve employees
who, pushed to the breaking point by repeated em-
ployer harassment, have responded to such direct
provocation—often their own discriminatory dis-
charge or layoff—with disruptive, insubordinate, or
threatening conduct. While I agree with the bal-
ance reached in those cases, I find their facts distin-
guishable from those of the case at hand in several
critical respects. First, Manning was not the target
of chronic employer harassment. Second, Man-
ning's emotional outburst disparaging management
was in response to actions taken by the Employer
against union representatives, not herself. Third,
Manning's outburst was directed at the Respond-
ent's customers, not its supervision or management.
The quote from Louisiana Council 17,
AFSCME,4 cited by the majority as justification
for exonerating Manning, originated in NLRB v. M
3 NLRB v. Thor Power Tool Go, 351 F.2d 584, 587 (7th Cir. 1965),
NLRB v. Illinois Tool Works, 153 F 2d 811, 815-816 (7th Cir. 1946); Re-
public Aviation Corp. a NLRB, 324 U.S. 793 (1945).
4 250 NLRB 880 (1980).
BRUNSWICK FOOD & DRUG 667
& B Headwear Co. 5 There, key union proponent
Vaughan, the victim of unlawful surveillance, was
unexplainably transferred to the blocking depart-
ment and on the same day laid off allegedly be-
cause there was insufficient blocking work. Later,
when Vaughan applied for an advertised operator's
job, she was turned down on the grounds that she
had been trained as a blocker. After her layoff
Vaughan threatened to harm the supervisor who
had spied on the union meeting at her home, and
subsequently told a vice president to shut up when
he intruded upon her discussion with the company
president about being rehired. The court affirmed
the Board's finding that Vaughan was discrimina-
torily laid off and rejected the employer's claim
that its violation of the Act was absolved by
Vaughan's later insubordination. The court found
that Vaughan's conduct was understandable under
the circumstances, and neither harmed nor incon-
venienced the employer, nor provided a basis to
deprive Vaughan of her job. In this setting the
court found (349 F.2d at 174):
An employer cannot provoke an employee
to the point where she commits such an indis-
cretion as is shown here and then rely on this
to terminate her employment. See NLRB v.
Tennessee Packers, Inc., 339 F.2d 203 (6th Cir.
1964). The more extreme an employer's
wrongful provocation the greater would be
the employee's justified sense of indignation
and the more likely its excessive expression.
Repeating the above quote from M & B Head-
wear, the Board in Blue Jeans Corp. 6 found that a
threat by employee Hammonds as she was being
discriminatorily discharged did not negate the ille-
gality of the employer's conduct. Citing a litany of
antiunion activities targeted at Hammonds, includ-
ing surveillance, threats of discharge, and interro-
gation, as well as the denial of any explanation for
her discharge or the name of her accuser, the
Board found that the employer's discriminatory
treatment had brought on the emotional outburst
and that the judge had erred in denying Ham-
monds' reinstatement. 7 A similar set of facts existed
.5 349 F.2d 170 (4th Cir. 1965).
6 170 NLRB 1425 (1968).
7 While the employer impropriety in Thor Power, supra, occurred
during the course of a grievance meeting, the balance struck is similar to
that called for by the Fourth Circuit in M & B Headwear. Thor Power
discharged grievance committeeman Tinsley because, after a heated
grievance meeting fueled by the ill temper and loudly uttered obscene ep-
ithet of a company superintendent, extremely displeased at Tinsley's par-
ticipation, Tinsley mumbled to the grievant something about "the horse's
ass," apparently referring to the superintendent. The court found that
"not every impropriety committed during [the course of Sec. 7] activity
places the employee beyond the protective shield of the Act," that the
remark which allegedly precipitated Tinsley's discharge "cannot be con-
sidered in a vacuum" (351 F 2d at 586), and that the Board had reason-
in Trustees of Boston University. 8 There the Board
found that the provocation as well as illegal dis-
crimination against employee Schiffer, including
two unfounded warnings and changed and more
onerous working conditions, had contributed sub-
stantially to creating a suspicious and tense atmos-
phere, and that the resultant heightened conflicts
between Schiffer and her supervisor did not justify
discharging Schiffer or denying her reinstatement
and backpay. The court9 agreed that while
Schiffer's offensive dealings with supervisors and
fellow employees, including an occasion when she
brandished a pair of scissors, was not insignificant,
it nonetheless was stimulated by the employer's
own wrongful conduct and therefore not a legiti-
mate basis for her discharge. Much the same pat-
tern existed in Louisiana Council 17, supra. There
the employer, piqued by protected concerted ac-
tions taken by Linecum and other employees,
threatened that employees would be "in trouble" if
they pursued outside assistance, unlawfully restrict-
ed their movement to prevent them from attending
a union meeting, discriminatorily suspended Line-
cum, transferred him without legitimate business
justification, and then discharged him in part for
his poor posttransfer attitude. The Board refused to
shift the onus for Linecum's unlawful discharge
where the employer, through its unfair labor prac-
tices, had made Linecum's working conditions bur-
densome and then relied on his response to justify
his discharge.
The elements of provocation existing in the
above cases are not present here. Manning was
never singled out by the Respondent for harass-
ment as the discriminatees in the above cases had
been. Admittedly, Manning witnessed a number of
the Respondent's unfair labor practices, but she
was not alone on this account. Manning violated
several unlawfully imposed work rules, but unlike
other employees was never sanctioned for these
breaches. Further, while the Respondent unlawful-
ly questioned Manning about fellow employees'
union activities, a finding that the Respondent
thereby harassed Manning would be misplaced
since Manning twice volunteered to gather infor-
mation about union meetings for the Respondent
and willingly reported back her fmdings. Thus, the
campaign of attrition waged against the discrimina-
tees in the above cases by their respective employ-
ers is not present here.
ably concluded that Tmsley's impulsive behavior, in the context of the
grievance meeting, balanced favorably against the company's right to
maintain order and respect.
8 224 NLRB 1385 (1976)
9 Trustees of Boston University v. NLRB, 548 F.2d 391 (1st Cir 1977).
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As for the events of 11 October, it cannot rea-
sonably be found that the Respondent's unlawful
act of evicting two union representatives was di-
rected at Manning. The Respondent's concern was
the presence of union representatives on its prem-
ises, a fact made clear by Manager Kerr's orders in
advance of the incident to telephone the Respond-
ent's Atlanta division office should any union rep-
resentatives arrive on the premises. Kerr's orders to
remove the union representatives had nothing to
do with Manning, whose presence when Kerr and
later the police confronted Williams and Harden
was coincidental. While Manning immediately took
offense at Kerr's request that the union representa-
tives leave, Williams and Harden ignored Man-
ning's attempt to embroil herself in the confronta-
tion and informed Kerr directly that they had no
intention of leaving. The police likewise confronted
and removed only Williams and Harden. There is
no evidence that they even spoke to Manning who
became unhinged and loudly and repeatedly an-
nounced "the ignorance of management" to the
Respondent's uncomprehending customers. That
the Respondent's focus was on the union represent-
atives not Manning is reinforced by the fact that
later, when Manning was not present, Kerr had the
police again remove Williams and Harden from its
store, this time with the warning that they would
be arrested for criminal trespass if they reappeared.
I find that Manning was not the victim of direct
employer provocation as were the employees in the
above-discussed cases. 1 ° The onus for Manning's
discharge properly rests where it was placed by
the judge, on her own shoulders. The Respondent's
unlawful removal of the union representatives from
its premises cannot be used as an excuse for Man-
ning's poor judgment. Her disruptive and disloyal
outburst, made directly to the Respondent's unin-
volved customers, removed her protest from the
protection of the Act" and I find that disciplinary
action was legitimately taken by the Respondent.
15 Recognizing that "case precedent and policy emanciated in case de-
cisions have general applicability to non-parties in the future," Bernstein,
The NLRB's Adjudication-Rule Making Dilemma Under the Administrative
Procedure Act, 79 Yale L. Rev 571, 612 (1970), I am surprised at the ma-
jority's citation of inapt precedent to support a strained new view on the
meaning of employer provocation. It is settled that the Board is free to
adopt new rules of decision, however, it may, not depart sub Wend° from
its usual rules of decision to reach different, unexplained results in a
single case NLRB v Silver Bay Local 962, 498 F.21 26, 29 (9th Cir
1974), appeal after remand 510 F.2d 1364 (1975), NLRB v. Operating En-
gineers Local 925, 460 F.2d 589, 604 (5th Or 1972). Iron Workers Local
111 v. NLRB, 122 LRRM 2611, 2615-2616 (DC Or 1986) Here, the
majority's departure from the Board's accepted definition of provocation
is wholly unexplamed As one court has observed: "Mhere may not be a
rule for Monday, another for Tuesday, a rule for general application, but
denied outright in a specific case" Mary Carter Paint Co. v. FTC, 333
F 2d 654, 660 (5th Cir. 1964) (Brown, C J concurring specially), quoted
with approval in Operating Engineers Local 925, supra
" Sec 7 of the Act "does not embrace concerted activity undertaken
for an unlawful objective or protect employees against discharge for re-
sorting to 'indefensible' means . . in pursuit of their collective ends,
however lawful" Jefferson Standard Broadcasting Co., 94 NLRB 1507,
1509-1510 (1951), revd. 202 F.2d 186 (D.C. Cir. 1952), set aside 346 U.S.
464 (1953). The Supreme Court observed 346 U S at 477. "Congress,
while safeguardmg, in §7, the right of employees to engage in 'concerted
activities for the purpose of collective bargammg or other mutual aid or
protection,' did not weaken the underlying contractual bonds and loyal-
ties of employer and employee" It cannot be denied that Manning's dis-
paraging remarks, directed at urunvolved customers of the Respondent,
were far more destructive to these bonds and loyalties than the action of
employee Thompson in NLRB v. Cement Transport, 490 F.2d 1024 (6th
Cm), cert. denied 419 U.S. 828 (1974), cited by the majority as precedent
for according Manning some leeway for her impulsive behavior. Thomp-
son, in seeking a form stating Cement Transport's Interstate tariffs, told
the Kentucky Department of Motor Transportation that he had been
unable to obtain a copy of the form from his company. I find, in agree-
ment with the court, that "[e]ven assuming that Thompson had told a
falsehood, the utterances of such an isolated and non-prejudicial remark
could not justify his discharge." (490 F.2d at 1030). The same cannot be
said of Maiming's outburst, which would have been equally indefensible
had it occurred during an organizational campaign.
APPENDIX
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 ordered us to post and abide by this notice.
WE WILL NOT request you to attend union meet-
ings and report what takes place at those meetings
and otherwise conspire with you to learn what we
can about union activities among employees.
WE WILL NOT expressly and/or impliedly threat-
en you with closure of the Brunswick store if you
select a union to represent you or if management
should become "deadlocked" in negotiations with a
union.
WE WILL NOT tell you that we want you to re-
consider your support for the Union.
WE WILL NOT threaten you that if you select the
Union to represent you, you will lose your "PCS
card," or any other benefits.
WE WILL NOT promulgate an unlawful no-solici-
tation rule which prevents you from soliciting
union authorization cards anywhere on our proper-
ty.
WE WILL NOT grant you wage increases in order
to dissuade you from supporting the Union.
WE WILL NOT Solicit grievances from you and
promise either expressly or impliedly to remedy
such grievances.
WE WILL NOT interrogate you about your union
activities and sentiments and the union activities
and sentiments of your fellow employees.
BRUNSWICK FOOD & DRUG

669
WE WILL NOT tell you that you cannot commu-
nicate with other employees about promotions and
pay raises.
WE WILL NOT threaten to retaliate against you
by removing you from the positions which you
hold because of your support for the Union.
WE WILL NOT withhold promised wage increases
from you because of the Union.
WE WILL NOT cause union representatives to be
evicted from our public snack bar, although they
are using the snack bar in a manner consistent with
its purpose.
WE WILL NOT promulgate, maintain, or enforce
an overly broad rule which prohibits employees
from wearing union buttons; or issue written warn-
ings to you, suspend, or discharge you for violating
such a rule.
WE WILL NOT suspend or discharge you for pro-
testing curtailment of your right to meet with your
bargaining representative.
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 extend to employee Charles Hicks the
wage increase promised to him and withheld from
him because of the Union, and WE WILL make
Hicks whole for any loss of earnings or benefits he
may have suffered by paying him the raise retroac-
tively to 1 October 1984, with appropriate interest.
WE WILL remove from our files the written rep-
rimands issued to employees Rost, Chubb, and
Dowling for violating our unlawful rule prohibit-
ing employees from wearing union buttons, and
notify them in writing that this has been done and
that evidence of the unlawful warnings will not be
used as a basis for future personnel actions against
them.
WE WILL offer Ella Rost and Bonnie Manning
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL remove from our files written warn-
ings issued to Ella Rost dated 22 August and/or 23
August 1984, as well as any reference to the dis-
charge of Ella Rost and remove from our files any
reference to the 11 October 1984 suspension of
Bonnie Manning and the subsequent discharge of
Bonnie Manning and notify them in writing that
this has been done and that evidence of the unlaw-
ful warnings, suspension, and discharges will not be
used as a basis for future personnel actions against
them.
THE KROGER CO., D/B/A BRUNS-
WICK FOOD AND DRUG
Ann Leslie Unger, Esq., for the General Counsel.
John M. Flynn, Esq., and Donna K Snider, Esq., of Cin-
cinnati, Ohio, for the Respondent.
Norman J. Slawsky, Esq. (Jacobs and Langford, P.A.), of
Atlanta, Georgia, for the Union.
DECISION
STATEMENT OF THE CASE
PHILIP P. McLtop, Administrative Law Judge. I
heard this case on January 23, 24, and 25, and February
26, 27, and 28, 1985, in Brunswick, Georgia. The case
originated from four charges filed on March 20 and 30,
August 27, and October 19, 1984, by United Food and
Commercial Workers Union, Local No. 1063, chartered
by the International Food and Commercial Workers
International Union, AFL-CIO-CLC (the Union) against
The Kroger Company, d/b/a Brunswick Food and Drug
(Respondent).
On May 10, 1984, a consolidated complaint and notice
of hearing issued in Cases 10-CA-20082 and 10-CA-
20100, alleging that by various acts and conduct, Re-
spondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act).
On July 25, 1984, the Regional Director for Region 10
approved a settlement agreement remedying the allega-
tions in Cases 10-CA-20082, and 10-CA-20100, and a
related case, Case 10-CA-20024, which is not the subject
of this proceeding.
As a result of' the Regional Director's investigation of
the charge in Case 10-CA-20416, the Regional Director
concluded that a course of unlawful conduct beginning
on August 8, 1984, and continuing thereafter, violated
the substantive provisions of the settlement agreement.
By letter dated September 26, the Regional Director set
aside the 8(a)(1) portions of the settlement agreement,
leaving other portions of the settlement intact. The Re-
gional Director did not disturb the settlement agreement
in Case 10-CA-20224 and, as indicated, it is therefore
not involved in this proceeding.
The consequence of setting aside the settlement agree-
ment in Cases 10-CA-20082 and 10-CA-20100 was to
revive alleged $(a)(1) allegations dating back to Decem-
ber 1983. The facts relating to those alleged violations
are discussed in full detail below. Because I have found
that subsequent to July 25, when the settlement agree-
ment was approved, Respondent engaged in various vio-
lations of the Act that are related to those addressed in
the settlement agreement, I also find that the Regional
Director was justified in setting aside the settlement
agreement. City Cab Co. of Orlando, 273 NLRB 1344
(1985); Hatfield Trucking Service, 270 NLRB 136 (1984).
Therefore, in order to avoid repetition, I have consid-
ered and made legal conclusions regarding the various
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
allegations predating the settlement as they are discussed
factually.
On September 28, 1984, a consolidated complaint and
notice of hearing issued in Cases 10-CA-20082, 10-CA-
20100, and 10-CA-20416. Finally, on December 21,
1984, an order consolidating cases, amended consolidated
complaint, and notice of hearing issued in all four of the
cases captioned herein.
The final consolidated complaint sets forth numerous
alleged violations of Section 8(a)(1) of the Act, including
allegations that Respondent interrogated its employees
concerning their union membership and activities; threat-
ened its employees that Respondent would close its
Brunswick store if employees joined the Union; threat-
ened employees that it would be futile to select the
Union as their collective-bargaining representative;
threatened employees with loss of benefits, including
dental and medical benefits, prescription cards, and
wages if employees joined the Union; threatened to
demote employees if they joined the Union; threatened
employees with loss of access to management to present
grievances individually if employees joined the Union;
threatened to discharge employees who joined the
Union; solicited employees to abandon the Union; solicit-
ed employees concerning grievances they had with Re-
spondent; promised employees a wage increase and ex-
tended hospitalization benefits to its part-time employees;
maintained and enforced a no-solicitation rule, which
prohibits any solicitation at any time on Respondent's
property; prohibited employees from discussing promo-
tions and wages with fellow employees; demanded that
employees remove prounion buttons from their clothing;
and removed union representatives from its public snack-
bar even though they were using the snackbar consistent
with its purpose. The final complaint also alleges several
violations of Section 8(a)(1) and (3) of the Act, including
allegations that Respondent issued a verbal warning to,
suspended, and later discharged employee Ella Rost;
denied employee Charles Hicks a merit raise; and dis-
charged employee Bonnie Manning because of their
membership in, and activities on behalf of, the Union.'
In its answer to this complaint, Respondent admitted
certain allegations, including the filing and serving of the
charges, its status as an employer within the meaning of
the Act, the status of the Union as a labor organization
within the meaning of the Act, and the status of various
individuals as supervisors and agents of Respondent
within the meaning of Section 2(11) of the Act. Re-
spondent denied having engaged in any conduct that
would constitute an unfair labor practice within the
meaning of the Act.
At the trial, all parties were represented and afforded
full opportunity to be heard, to examine and cross-exam-
ine witnesses, and to introduce evidence. Following the
close of the trial, all parties filed timely briefs with me,
which I have considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
1 By letter dated December 11, 1984, the Regional Director dismissed
charges in Case 10-CA-2O537 that Charles Hicks and Bonnie Manning
were suspended in violation of Sec. 8(0(3) of the Act.
FINDINGS OF FACT
I. JURISDICTION
The Kroger Company, d/b/a Brunswick Food and
Drug is, and has been at all times material, an Ohio cor-
poration with an office and place of business located at
Brunswick, Georgia, where it engaged in the retail sale
of groceries. During the past calendar year, which
period is representative of all times material, Respondent
received gross revenues in excess of $500,000 and pur-
chased and received at its Brunswick, Georgia facility
goods valued in excess of $50,000 directly from suppliers
located outside the State of Georgia.
Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
IL LABOR ORGANIZATION
United Food and Commercial Workers Union, Local
No. 1063, chartered by the International Food and Com-
mercial Workers International Union, AFL-CIO-CLC
is, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent's retail grocery store in Brunswick, Geor-
gia, is a new facility. Respondent began interviewing and
hiring employees to work in that store in late February
or early March 1983. The store opened on May 10, 1983.
In early December 1983, the Union began an organizing
campaign among Respondent's employees at the Bruns-
wick store.
Employee Bonnie Manning testified that on December
6, 1983, she was summoned to Store Manager Joe Hall's
office. According to Manning, who I credit, Hall asked
Manning if she knew that there was going to be a union
meeting. Manning said she did not. Hall then told Man-
ning to see if she could find someone to go with her to
the meeting, to find out what the Union was telling em-
ployees, and to see who was at the meeting. Manning at-
tended the meeting and reported back to Hall after-
wards. On the next morning, December 7, Hall ap-
proached Manning in Manning's work area to again dis-
cuss the meeting. According to Maiming's credited testi-
mony, Hall asked Manning how many people had attend-
ed the meeting. Manning replied that 14 or 15 had at-
tended. Hall asked Manning, "Did they promise these
guys anything?" Manning said they did not.
As will be seen below, Manning and Hall had several
conversations at different times regarding the Union.
Manning, by her own admission, was actively opposed to
the Union during the early months of the campaign. She
later became one of its most active supporters. Respond-
ent argues that because of this change in allegiances,
Manning should be discredited. Store Manager Hall had
no specific recollection of particular conversations he
had with Manning with the exception of the conversa-
tion immediately following Maiming's attendance at the
first union meeting. Hall testified that he never asked
BRUNSWICK FOOD: DRUG 671
Manning to attend any meetings, but that Manning vol-
unteered to do so on several occasions. Hall testified, "In
all instances, I told her that as a Kroger manager, I
couldn't tell her to go or not to go. If she was asking me
as a person, my advice was that she needed to be in-
formed and she needed to do what she wanted to do."
Hall's testimony about this purportedly neutral response
to Manning struck me as being rehearsed. I discredit
Hall in this regard. Hall also testified, "Bonnie [Manning]
was always anxious to tell us what she knew and what
was happening." Standing alone, I credit this statement.
What is left unsaid, however, and what is amply revealed
by Manning's credible testimony is that Hall was an anx-
ious listener and an active conspirator with Manning to
learn what he could about the Union's campaign among
Respondent's employees. Manning's testimony regarding
these early conversations with Hall is straightforward
and candid. I credit that testimony. I find that by asking
Manning to attend union meetings and report back to
him what took place at those meetings, and by otherwise
conspiring with Manning to learn what he could about
the union campaign, Hall violated Section 8(a)(1) of the
Act. Eagle Headers, 273 NLRB 1486 (1985); L &
Equipment Co., 272 NLRB 652 (1984).
B. Employee Meetings of December 7 and 8
On December 7, Respondent's zone manager, Tex
Randall, personnel manager, Steve Wood, and assistant
personnel manager, Pete Williams, went to the Bruns-
wick store to talk to employees about the Union's orga-
nizing campaign. Randall, Wood, and Williams held sev-
eral meetings with small groups of employees on Decem-
ber 7 and at least one such meeting on December 8. Ap-
proximately 15 to 25 employees attended each meeting.
At these meetings, Randall and Wood both spoke to em-
ployees, using a prepared script as the basis for their re-
marks. There was considerable testimony whether Wood
and Randall simply read the script verbatim, or whether
they also ad-libbed as they saw fit. Randall and Wood
testified that they used the script as an outline or guide,
but that they departed from the script when they felt it
appropriate. They denied reading to employees one of
the statements in the prepared script, discussed in greater
detail below. I do not credit their denial. Based on the
testimony of all the witnesses on this point, I fmd that
Randall and Wood read the prepared script to employ-
ees, but departed from it by adding various impromptu
comments when they desired.
Employee Jonathan Chubb attended a meeting with
about six other employees at approximately 8:15. a.m. on
December 7. Randall, Wood, and Hall were all present.
According to Chubb, Randall began by stating he had
been informed that some employees had contacted a
union and that Randall was deeply concerned. Accord-
ing to Chubb, whom I credit, Randall told employees
they could revoke their union authorization cards by
contacting the Board, and Randall discussed how to ac-
complish this. Randall told employees that $4 per hour,
which Respondent was then paying full-time employees,
was the rate Respondent had agreed to pay, and there
was no way Respondent could pay any more even if the
Union came to represent employees. Chubb testified
Randall stated, "If Kroger had to pay higher wages, they
would have to raise the price of groceries to be competi-
tive and . . . if a Kroger store is not competitive, they
would have to close down the store, which they have
done." Chubb testified Randall stated, "The Scottsboro,
Alabama, store and the Martinsburg, Tennessee, store
closed because of the Union." Chubb then immediately
added, "What he was referring to was the high wages
that were being paid there." Last, Chubb testified Ran-
dall discussed a "PCS card" Brunswick employees have,
which allows them to obtain prescription drugs from Re-
spondent at no or low cost to employees. According to
Chubb, Randall told employees, "No other Kroger store
in the Atlanta [area, where employees are all represented
by unions] has this privilege and that if the Union were
elected, we would lose the prescription card. . . ."
Employee Ella Rost testified she attended a meeting
about 10 a.m. on December 7 with Randall, Wood, and
10 to 15 fellow employees. Rost, whom I credit, testified
that Randall and Wood both read from a text and spoke
extemporaneously. According to Rost, Wood explained
that the purpose of the meeting was to give employees
Respondent's position concerning the Union. According
to Rost, Randall talked about "other Kroger stores that
had been union and . . . had closed . . because of the
high rate of pay for the union stores." A few moments
later, Rost testified that Randall or Wood "discussed the
rates of pay in the other stores and that the reason they
had closed was because their union wages were so high
that they could not pass the cost of the pay hike on
. . ." Rost then testified, "Mr. Randall did mention the
fact that the Scottsboro, Alabama, store had closed be-
cause of the Union." I then asked the witness:
JUDGE MCLEOD: Because of the Union or be-
cause of the high rates of pay?
THE WITNESS: Because of the Union.
JUDGE MCLEOD: lie made that specific state-
ment?
THE WITNESS: Mr. Randall did make that state-
ment, yes.
In its brief, Respondent implies that Rost is contradicted
by employee Barney Oswalt and should therefore be dis-
credited. In describing this same meeting, Oswalt admit-
ted on cross-examination that neither Wood nor Randall
said Respondent would close the Brunswick store be-
cause of the Union. Oswalt testified, "I don't remember
that statement being made within that frame of phrase.
These subjects were all related you know." I do not find
Oswalt's testimony to contradict Rost. Rost does not
claim that either Randall or Wood specifically stated that
Respondent would close the Brunswick store because of
the Union. Neither does any other of the General Coun-
sel's witnesses. Rather, the General Counsel argues that
by Randall and Wood repeatedly discussing other stores
that Respondent had closed, they were inferring the
probability of the Brunswick store closing as well be-
cause of the union. Rost, who I credit, testified Randall
"made a statement that he didn't want our store to close
like some of the other stores had." Rather than contra-
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dicting one another, Oswalt and Rost tend to corrobo-
rate one another.
Rost testified that Wood discussed employee benefits,
and in particular the "PCS card." According to Rost,
Wood reminded employees that the Brunswick store was
the only store that had such a card, pointed out to em-
ployees that such a card was "not part of the union
package," and told employees "that if the Union came in
we would lose our PCS card." Rost testified Wood also
told employees that "once the Union was voted in, they
would go into negotiations and we would lose all bene-
fits and we would start from day 1 with a blank sheet of
paper and we would negotiate from there, we would
have nothing. We would lose everything, PCS card, our
health benefits, everything. We would start over from
day 1 with nothing and go from there." I credit Rost.
Employee Elizabeth Dowling testified about a meeting
that she attended at approximately 8 p.m. on December 7
with approximately 25 other employees. Randall, Wood,
and Store Manager Joe Hall were present. According to
Dowling, Randall did most of the talking, both from a
prepared script and extemporaneously. Dowling, like
Chubb, testified that Randall began the meeting by tell-
ing employees Respondent had learned of union activity.
According to Dowling, Randall then discussed union au-
thorization cards and how they might be retrieved.
Dowling testified that Randall discussed Kroger's "open
door policy" and told employees that "in signing the au-
thorization cards we would be allowing a third party to
come between us and our Kroger family" According to
Dowling, Randall also talked about a store in Scottsboro,
Alabama, that had been closed because Respondent
"could not afford to pay high union wages." Dowling
added, "He said since the Brunswick store was already
running—I think he used the expression 'in the red'—that
they could not afford to pay one penny more." Dowling
testified that Randall added, "Our only job security was
in continuing to run the store the way it had been run
and not increasing salaries." Dowling, like Rost and
Chubb, testified that "PCS cards" were discussed. Ac-
cording to Dowling, Randall said "that he couldn't guar-
antee that if the Union came in we would not lose the
prescription card."
The testimony of Randall and Wood is similar to that
of Chubb, Rost, and Dowling in many respects. In cer-
tain important respects, however, it differs. Randall testi-
fied that at each of these meetings he used an actual op-
erating statement from the Brunswick store and ex-
plained to employees, line-by-line, the costs of doing
business. According to Randall, he went on to say he felt
confident that if the store could increase sales and main-
tain good operating results, the Brunswick store would
probably begin making money within a year. Randall
admits emphasizing that the store had to remain competi-
tive in order to remain open. Randall told employees
that he could "point to markets where Kroger has
become uncompetitive." Randall then told employees
about stores in Grand Rapids, Michigan; Baton Rouge,
Chicago, Milwaukee, Birmingham, and Morristown,
Tennessee, where stores had been closed because they
were "highly unprofitable" or "no longer competitive."
Randall admits telling the employees that Respondent's
inability to obtain concessions from a union was a reason
for closing the Grand Rapids' store. With regard to the
other store closings, Randall testified, "I did not talk
about those as far as relating to employee costs." Randall
admits discussing Respondent's Scottsboro, Alabama
store with employees. That store had not in fact closed,
and Randall denies telling employees at the meetings on
December 7 and 8 that the store had closed. The Scotts-
boro store had recently become unionized. According to
Randall, he compared the Scottsboro store with the
Brunswick store. Randall pointed out to employees that
the Scottsboro store was unprofitable. According to
Randall, he also pointed out to employees that sales at
the Brunswick store were almost twice that at the
Scottsboro store. Randall admitted telling employees that
union picket lines at the Scottsboro store "could have
had some effect on this store not achieving the amount
of sales . . . that our store was achieving in Brunswick."
Randall testified that he compared the Brunswick store
with the unionized Scottsboro store rather than with a
nonunion store of similar size to Brunswick Iodated in
Warner Robins, Georgia, "because we wanted—we
didn't have the same similarities of what was happen-
ing—that store is profitable." Randall admitted, however,
that the Warner Robins store is in most respects more
similar to the Brunswick store than is the Scottsboro
store. The two factors that allow Brunswick to be com-
pared with Scottsboro are that Scottsboro is unionized
and allegedly unprofitable. Randall admitted that the
Brunswick store was unprofitable largely because it was
a new store, and it is not unusual for new stores to be
unprofitable for accounting purposes during their first
year of operation.
Randall denies telling employees they would lose their
"PCS cards" if they became unionized. According to
Randall, "There was questions from the people would
they lose their PCS card and I stated that I knew of no
place where we had PCS cards where we had organized
clerks, I was not aware of any that had PCS cards." Ac-
cording to Randall, he simply told employees, "Every-
thing is negotiable, can't promise anything." Randall's
testimony in this respect was not convincing.
According to Personnel Manager Wood, he discussed
with employees the wage and benefit package at the
Brunswick store. Wood testified, "I said to the group of
employees that we had put together. . . a total compen-
sation package . . . for the Brunswick store that we
knew to be competitive in the area . . . Wood denies
that either he or Randall told employees they would lose
benefits if they chose to be unionized. Wood, like Ran-
dall, testified that employees asked if they would lose
their PCS cards if the Union was selected to represent
them. Wood testified:
I explained to the employees that were we to get
to the point of having to negotiate a contract with
the Local that was seeking to represent them, that it
would be just that; a negotiation process, a process
of give and take, and that there would be gains in
some areas. There could be losses in some areas, but
that there were no guarantees.
BRUNSWICK FOOD & DRUG 673
The testimony of former Store Manager Joe Hall varies
considerably from that of Wood and Randall in one very
important respect. Hall agrees with Wood and Randall
they told employees that, "As of that point in time, no
organized store had a PCS card. Only the stores—the
employees that were not organized had them." Hall,
however, also testified, "It was said, you know, what the
employees had at the point and that, you know, if the
Union was voted in, you would have to go back to square
one and start negotiating all over again and they may or
may not end up with what they already had." Hall's ad-
mission lends considerable credence to the mutually cor-
roborative testimony of employee witnesses that they
would lose all existing benefits if the Union was selected
to represent employees. I credit that testimony.
Respondent introduced the script read to employees
by Randall and Wood and used as a basis for other ex-
temporaneous remarks. This document supports the testi-
mony of employee witnesses. On the first page, the script
states in part:
If you sign any kind of card—you will have
signed away your right and ability to deal directly
with the company. If you sign a card you will have
authorized someone else to speak for you.
Both Randall and Wood deny reading this statement to
employees. Their denial was particularly unconvincing.
Moreover, it left me with the distinct impression that
Randall and Wood were prepared to deny having said
anything that they perceived to be against Respondent's
interests. The script of the meeting also states in part:
If you signed a card and want it back—ask for it
back—Write a certified letter and demand that the
card be given back, or seek counsel from the NLRB
404-221-2896.
. . . .
We thought that our lines of communication
were open in this store. We think we have the situa-
tion here for you to express your self in terms of
ideas, suggestions or problems. If there are prob-
lems we would like to know about them—pay-
checks not arriving on time? Any other problems
with benefits? If there are let us know.
The similarity between the testimony of employee wit-
nesses and the script itself is striking. Further, Chubb,
Rost, and Dowling impressed me as being wholly credi-
ble. Chubb, in particular, impressed me as a very careful,
thoroughly straightforward witness with a superb com-
mand of detail. Rost also impressed me as being very
certain, straightforward, and having a good memory.
Similarly, Dowling impressed me as being very straight-
forward, totally without pretense, and cooperative on
cross-examination. I credit their testimony. I find that in
these meetings on December 7 and 8, Respondent at
times simply linked various store closures to the high
cost of (union) wages. When Respondent limited its
statements to such economic matters, it did not violate
the Act. At certain times during these speeches on De-
cember 7 and 8, however, Respondent explicitly linked
certain store closures to unionization by employees. With
regard to the Scottsboro, Alabama store Randall told
employees either that it had closed or that it would
close, and I credit Rost that he specifically gave as the
reason "the Union." By doing so, Respondent violated
Section 8(a)(1) of the Act. I also credit Chubb and Rost
that in the meetings they attended, employees were spe-
cifically told that if the Union came in, employees would
lose the PCS cards. Further, I credit Rost that employ-
ees were told if the Union was voted in, when negotia-
tions began employees would lose all benefits and begin
from day one. By these statements, Respondent threat-
ened to withdraw employee benefits if they selected the
Union in violation of Section 8(a)(1) of the Act.
From the script of the December 7 and 8 meetings, I
conclude Respondent told employees that by signing an
authorization card they were signing away their "right
and ability" to deal directly with Respondent. Similar
statements have been found to violate Section 8(a)(1) of
the Act. Colony Printing & Labeling, 249 NLRB 223, 224
(1980). The current Board, however, has held that such
statements do not violate Section 8(a)(1) of the Act be-
cause they simply "explain . . . a change in the manner
in which employees and employers deal with each other
when a union is elected." United Artists Theatre, 277
NLRB 115 (1985); Tr-Cast, Inc., 274 NLRB 377 (1985);
Purolator Products, 270 NLRB 694 (1984). Accordingly, I
find that Respondent's statement in this case did not vio-
late Section 8(a)(1) of the Act. Respondent also advised
employees how to revoke their authorization cards. Even
though the mere act of advising employees in this
manner may tend to encourage them to do so, an em-
ployer may nevertheless inform employees of such a
right, even if employees have not solicited such informa-
tion, so long as the employer makes no attempt to ascer-
tain whether employees avail themselves of this right nor
offers any assistance nor otherwise creates the impression
that employees are in peril by refraining from revoking
their cards. Mariposa Press, 273 NLRB 528 (1984). Ac-
cordingly, I find that by this statement, Respondent did
not violate Section 8(a)(1) of the Act.
Lastly, I conclude that in the meeting with employees
on December 7 and 8, Respondent told employees, "If
there are problems we would like to know about them—
paychecks not arriving on time? Any other problems
with benefits? If there are let us know." This statement
represents an outright solicitation of grievances from em-
ployees. I find it to be substantially different from the sit-
uation in Mariposa Press, supra, in which the Board
found that a solicitation of grievances that was ambigu-
ous and that, on the whole, represented a reiteration of
company policy did not violate the Act. Particularly in
light of Respondent establishing an employee grievance
procedure at a later meeting, which is discussed in great-
er detail below, it becomes apparent that at both of these
meetings Respondent was neither abiguons nor reiterat-
ing existing policy. Further discussion follows my con-
sideration of the August 8 and 9 meetings.
C. Other Events of December 1983
On December 15, 1983, Rost wore a union button to
work for the first time. This button stated, "Vote Yes
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
UFCS AFL-CIO." When Lloyd Kerr saw Rost wearing
the button, he asked her to take it off. Rost complied.
After lunch on the same day, Rost put the button back
on. Store Manager Joe Hall saw Rost wearing the
button, and told Rost to remove it. Rost, whom I credit,
testified:
Mr. Hall gave me Kroger's position on wearing the
union pin, they considered it to be an unauthorized
part of our uniform and they said that it was
Kroger's uniform and they did not want the union
button worn on it . . . . If I wanted to wear it on
my clothes, on my own time, I could.
Rost again removed the button. About a half hour later,
Rost changed her mind, and again put the button back
on. When Hall saw Rost again wearing the button, he
called Rost to his office and gave her a written repri-
mand.
Employee Chubb also wore a union button to work on
December 15. Chubb was instructed to remove the
button by Managers Hall and Turner. When Chubb re-
fused to do so, he was given a written warning. On De-
cember 16, Chubb again wore the button to work. On
December 16, Chubb again wore the button to work. On
that day, Chubb asked Grocery Manager Jerry Miller
whether he would be fired if he continued to wear the
union button. It is uncontroverted that Miller told Chubb
he would be fired. There are numerous instances of em-
ployees being told to remove union buttons. Few, if any,
instances are denied by Respondent. I have described
each instance separately below. I then discuss and con-
sider these instances jointly later in this decision.
Employee Hendrix Ketchup testified that in December
1983 he was called to Store Manager Hall's office. Ac-
cording to Ketchup, Hall asked if Ketchup had signed a
union card, whether Ketchup was passing out union
cards, and if Ketchup knew anyone that was signing
union cards. Ketchup testified that he replied, "No" to
all these questions. Hall testified he had been told that
Ketchup was passing out union authorization cards on
the sales floor while he was "on the clock." Hall testi-
fied, "I told him I didn't care whether it was true. I
didn't know whether it was true. Only that he wasn't to
do it." Hall denied that he asked Ketchup if Ketchup
had signed a union card or received a card from anyone
else. The General Counsel urges that Ketchup was a
"cautious, measured witness who should be credited."
My impression of Ketchup was somewhat different. For
example, at one point during his testimony Ketchup sud-
denly froze, seeming to forget even where he was or
what he was doing. Ketchup's testimony on cross-exami-
nation showed that he left out much on direct. I was left
with the distinct impression that Ketchup's testimony
was not reliable. Instead, I credit Hall, and I fmd that no
violation of the Act occurred in this instance.
D. Events of January 1984
Approximately January 12, 1984, Store Manager Hall
approached Manning in front of the delicatessen area of
the store. Manning, whom I credit, testified that Hall
asked if Manning knew anything about the union meet-
ing that was to take place that week. Manning said that
she did not, and asked Hall if he wanted her to go to the
meeting. Hall replied, "Do what you want to. If you can
fmd someone to go with, go." Manning told Hall she
had plans, but that she could find out who attended the
meeting and what took place. Hall replied, "Do what
you can." On the morning after the union meeting, Hall
approached Manning and asked if she had found out any-
thing. Manning replied that she had not. Later that day,
Manning spoke with other employees about the union
meeting and reported these facts to Hall who, at the
time, was seated with Customer Service Manager Don
Edwards in the deli-restaurant. Hall denied this conver-
sation with Manning. Although Respondent called Cus-
tomer Service Manager Edwards as a witness, he did not
rebut Manning's testimony regarding her conversation in
his presence with Edwards. I credit Manning. Hall's ac-
tions on this occasion again violated Section 8(a)(1) of
the Act.
Ella Rost testified that in mid-January 1984 Store
Manager Hall approached her and told Rost he wanted
to talk to her "off the record." Rost, whom I credit, tes-
tified Hall stated that if Rost ever repeated the conversa-
tion, Hall would deny it ever took place. Hall then told
Rost he wanted her to "reconsider being for the Union."
Hall asked why an intelligent person like Rost would be
in favor of the Union and involved with "half baked"
people like Chubb and Dowling. Hall did not deny
having the conversation with Rost nor contradict her
version of it. Rather, Hall simply described the conversa-
tion somewhat differently. According to Hall, "Ella was
very upset." Rost complained that some employees were
not being as friendly toward her as they had been in the
past. According to Hall:
As I explained to her, she was dealing with a situa-
tion where some people were very adamantly
against the union and some were for it. As long as
you had that, you were going to have people dis-
agreeing and not being friendly with each other.
Hall did not deny asking Rost to "reconsider" her sup-
port for the Union, and I credit Rost that Hall did so.
Whether it is unlawful for an employer to ask an em-
ployee to "reconsider" his/her support for a union must
depend on the circumstances. There may well be circum-
stances in which an employer might do so in a noncoer-
cive manner. I find that in the circumstances of this case,
however, the "request" was coercive and therefore vio-
lated Section 8(a)(1) of the Act. Hall in effect suggested
to Rost that if she was smart she would oppose the
Union. Hall referred to other union supporters as "half
baked." By Hall's own admission, the context of the con-
versation included discussion about why people were not
being friendly with one another. The obvious implication
of this request by Hall that Rost reconsider her support
for the Union was that she might receive a more friendly
reception if she did not support the Union. It is for this
reason that I find Hall's "request" coercive and a viola-
tion of Section 8(a)(1) of the Act.
On the night of January 1Z 1984, employee Chubb
and Store Manager Hall had an extended conversation
BRUNSWICK FOOD & DRUG 675
about the Union near the employee breakroom. Chubb
testified convincingly that Hall initiated this conversation
by asking Chubb "what my biggest gripe was." Chubb
replied that it definitely had to be the payscale at Re-
spondent's Brunswick store. Hall replied that Chubb had
sought the job and that Hall did not understand why
Chubb thought the pay was unfair. Hall then told Chubb
that by now he should realize only 2 or 3 percent of the
employees had any interest in the Union. Chubb simply
smiled. Hall then asked, "Jonathan, how many union
cards are signed or do you have signed?" Chubb went
into the breakroom, got his jacket, and returned, prepar-
ing to leave.
Hall was still there. Hall told Chubb, "Jonathan, I'd
like to make a bet with you." Chubb responded, "What
kind of a bet?" Hall then stated, "I'll bet for the best
steak dinner in town, that if this union comes in, you'll
wind up with one-third less than what you have in your
pocket right now." Chubb asked, "Do you mean wages
or benefits?" Hall replied, "Both." Chubb stated, "Mr.
Hall, I'll just have to take you up on the bet." In later
testimony, Chubb recalled another portion of the Janu-
ary 21 conversation. Chubb testified that during that
conversation, Hall asked Chubb "for a simulated case."
Hall asked Chubb what he would if he was a mediator,
the Union and Respondent were in negotiations, Re-
spondent was willing to pay $4 per hour, and the Union
wanted $10 per hour. Chubb replied that that was why
he wanted a union, he would not be there. Hall then
stated, "Well, sounds to me like if Kroger wants $4.00 an
hour and the Union wants $10.00 an hour, and nobody is
going to break, there would be a deadlock and if there
was a deadlock, they would have to close the store be-
cause neither side would agree." Hall denied this conver-
sation with Chubb. I credit Chubb, whose testimony was
candid, straightforward, and detailed. I find that in this
conversation with Chubb, Hall violated the Act in sever-
al respects. First, by asking Chubb what his biggest gripe
was, Hall was unlawfully soliciting grievances from
Chubb. The fact that Chubb may have been a known
union adherent might excuse Respondent for certain non-
coercive interrogation. It does not, however, give Re-
spondent the right to solicit grievances, which is equally
coercive regardless of whether the employee is a known
adherent. Similarly, I fmd that by asking Chubb how
many authorization cards were signed, Respondent vio-
lated Section 8(a)(1) of the Act. Such interrogation, even
of a known union adherent, is designed to reveal more
than his own union sympathies or the reasons for them.
It is designed to reveal the sympathies of the employees
at large, and I therefore find it to be coercive regardless
of the employee to whom it is directed. By offering to
bet Chubb that if employees select the Union, they
would end up with one-third less than current benefits,
Hall was predicting or in effect promising that this
would be the result. Such a "promise" (i.e., threat) to
reduce benefits because employees select the Union is
clearly coercive, Finally, Hall's description of a "simulat-
ed" bargaining session carried with it the threat if the
Union and Respondent "deadlocked" in bargaining, Re-
spondent would close the Brunswick store. Such a threat
clearly violates Section 8(a)(1) of the Act, and I so find.
Chubb testified that on January 28 he was called to
Hall's office around 11:30 a.m. After Chubb had been
seated, Hall stated, "Jonathan, I want you to understand
very clearly that you do not have to answer this, but I
have reliable sources, I don't have proof, but I have reli-
able sources that have told me you have been out in the
parking lot harassing employees to get them to sign
union cards." Chubb did not respond directly. Instead,
Chubb asked Hall, "Does that mean on my time and an-
other employee's own time, does that mean I can ask
them to sign union cards in the public restaurant or in
the parking lot as long as we are on our own time?" Hall
responded, "No, nowhere on Kroger property. The res-
taurant and parking lot are Kroger property." Chubb did
not respond, and the conversation terminated. Hall did
not testify regarding this conversation and Chubb's
straightforward testimony is unrebutted.
It is not an adequate defense that in this conversation
Hall told Chubb he did not have to answer the charges
against him. Any employee, summarily called to a man-
ager's office and accused of engaging in specific conduct
is, despite such disclaimers, put in a position of feeling
compelled to respond. Despite how management's accu-
sation is phrased, a response is expected. The employee
is forced to choose between responding or remaining
silent and suffering the consequences. Not only did Hall
interrogate Chubb about his union activities, but he
orally promulgated an unlawful no-solicitation rule,
which prevented Chubb from soliciting union authoriza-
tion cards anywhere on Respondent's property. Our-
Way, Inc., 268 NLRB 394 (1983); Birmingham Ornamen-
tal Iron Co., 240 NLRB 898, 902 (1979); Essex Interna-
tional, 211 NLRB 749 (1974).
It is undisputed that employee Elizabeth Dowling was
told to remove a union button by Manager Edwards on
December 15, 1983, by Manager Hall on December 17,
1983, and by Managers Miller and Turner on January 31,
1984. When Dowling refused to remove the button on
January 31, she received a written warning.
E. The February 1984 Increase in Wages and Benefits
On February 12, 1984, Zone Manager Randall, Person-
nel Manager Wood, and Assistant Personnel Manager
Williams again visited the Brunswick store and held
meetings with employees. During these meetings, Re-
spondent announced that employees would be receiving
wage increases and that part-time employees would be
eligible to receive Respondent's hospitalization benefits
for the first time. These wage increases and extended
benefits took effect immediately. With regard to the ben-
efits that were made available for part-time employees,
Respondent told employees this was being done because
"in the handbook [given to you when you were hired]
you were told that within a year a benefit package
would be available for part-time employees." With
regard to the wage increases, employees were told, "A
review of current wages paid at [this store] and those
currently being paid at competitors in Brunswick indi-
cate that changes need to be made in order to keep our
wages competitive."
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel argues that the delivery and
timing of the announcement of increased benefits and
pay raises evidences an attempt to dissuade employees
from supporting the Union. The evidence supports this
conclusion with regard to the pay increases, but not with
regard to the increased benefits. Assistant Personnel
Manager Williams testified that benefit packages for part-
time employees were extended at other nonunion stores
on the individual anniversary dates of those stores. The
store in Brunswick opened in May, not in February.
Nevertheless, Respondent began hiring employees at the
Brunswick store in late February or early March, several
weeks prior to the store opening. The "Brunswick Food
and Drug Employee Handbook" given to new employ-
ees stated in part, "After one year of part-time service
• . . a benefit package will be made available to part-
time employees." (Emphasis added.) Undisputed testimo-
ny reflects that Personnel Manager Wood began efforts
to extend benefits to part-time employees at five stores as
early as October 1983. Wood worked with Mike Jame-
son, manager of insured benefits at corporate headquar-
ters in Cincinnati, Ohio, to develop such a plan. On Oc-
tober 3, 1983, 2 months before the advent of union activ-
ity, Wood wrote to Jameson, enclosed a copy of a pro-
posed benefit package for part-time employees, and asked
Jameson to "set the wheels in motion for implementing
this new plan." Wood received final approval of the ben-
efit plan from his superior, Bob Hodge, in early Decem-
ber 1983. Wood, however, waited to implement the plan
until February 12, not long before the anniversary date
of newly hired employees.
Although Respondent would no doubt argue that the
increase in benefits and the wage increases naturally go
hand-in-hand, I view the situation differently. Assistant
Personnel Manager Williams testified that Respondent
has a standard policy of reviewing wages in its nonunion
stores annually. Williams acknowledged the use of an
"anniversary date" for such reviews, but it is not clear
from his testimony whether the anniversary date used in
other stores is the date of the store opening or the date
of the first hired employees. We must therefore look fur-
ther. Nowhere in the printed handbook given to newly
hired employees in March, April, and May 1983 is there
any promise, express or implied, that Respondent will
review wage rates on a recurring basis. An insert is sta-
pled to the last page of that pamphlet reflecting the in-
creased wage rates granted to employees on February
12, 1984. It is on that insert where, for the first time, Re-
spondent announced:
Kroger will conduct wage surveys between the
sixth and twelfth month after this scheduled in-
crease is in effect to remain current And competitive
with other retail food stores in the trade area. It is
our intention to see that our employees are provid-
ed with competitive wage rates and benefits as re-
flected in the trade area.
Assistant Personnel Manager Williams testified he trans-
ferred to the Atlanta division in July 1983, at which time
he was given responsibility for "salary and wage admin-
istration for the Brunswick store as well as other
groups." Williams testified that because surveys can take
several months to complete, he began working on the
Brunswick survey sometime in November 1983. He com-
pleted the survey and received fmal approval from Per-
sonnel Manager Wood and Atlanta Division Vice Presi-
dent Bob Hodge in early February 1984.
In the fmal analysis, the only explanation Williams
gives for choosing the February date to implement a
wage increase is that the information and approval
needed had been obtained at that time. If Respondent
had planned to grant such a wage increase for any ex-
tended period, why did Wood and Williams tell employ-
ees in the meetings on December 7 and 8 that any in-
crease in wages would cause the Brunswick store to gen-
erate further accounting losses, which might jeopardize
the future existence of the store? If Respondent was
planning such a wage increase, Why did Store Manager
Hall not tell Chubb about this in their conversation on
January 21, rather than chide Chubb for wanting more
money than he was already receiving? I find it hard to
believe that a store manager such as Hall would not have
been aware of a policy to grant annual wage reviews if
in fact such a policy existed. I find it even harder to be-
lieve that if Hall had been aware wage review was immi-
nent he would not have told Chubb about it in their con-
versation. In short, the reasons advanced by Respondent
for granting a wage increase on February 12, 1984,
simply do not ring true. In the end, I am convinced that
while Respondent had good reason to extend insurance
coverage to part-time employees in February 1984, it
seized on that as an opportunity to grant a general wage
increase to employees in order to dissuade them from
supporting the Union. I find that by doing so, Respond-
ent violated Section 8(a)(1) of the Act.
F. Other Events of February and March 1984
Employee Manning testified that in late February or
early March 1984, Store Manager Hall again approached
her and asked if she knew that the Union was having an-
other meeting. Manning asked Hall if he wanted her to
attend. According to Manning, whom I credit, Hall re-
plied, "If you can get someone to go with you, go and
find out who is there and how many. . . and what they
are saying." Manning attended the meeting as requested
that night. The following morning, Manning approached
Hall as he sat in the deli restaurant with Meat Manager
Lloyd Kerr, Deli Bakery Manager Robbie Turner, and
Manager Dugger. Manning simply stated to Hall, "It was
the same old crew, nothing to worry about." Manning
left.
Turner denied hearing Manning report any informa-
tion about union meetings to Hall in February or March
1984. However, one could not expect Turner to remem-
ber Maiming's brief statement to Hall, much less to place
any significance on it at the time. I therefore do not find
Turner's denial significant. As I have already stated
above, there is no doubt that Manning willingly, and
even happily, supplied information to Hall. Nevertheless,
I find that Hall was an active conspirator with Manning.
As testified to by Manning, in several instances Hall
asked Manning to attend union meetings and report back
BRUNSWICK FOOD & DRUG 677
to him. I find that by again soliciting Manning on this
occasion to obtain information about union meetings, Re-
spondent violated Section 8(a)(1) of the Act.
Employee Hendrix Ketchup was discharged approxi-
mately March 17, 1984. Two or 3 days after he was dis-
charged, Hendrix telephoned Respondent's Nashville,
Tennessee headquarters to speak with someone in man-
agement about his discharge. Someone in the Nashville
headquarters contacted Williams, and Williams returned
Ketchup's call. Ketchup, who had been discharged for
failing to report for work, testified that during the con-
versation Williams asked Ketchup if he was in favor of
the Union. Ketchup testified he told Williams yes, that
he favored the Union. Williams, who was far more be-
lievable than Ketchup about the substance of this con-
versation, testified Ketchup told him "he had incurred
some medical expenses as a result of an on-the-job injury
and hadn't been paid yet." Ketchup added, "I lifted
something and I pulled a muscle in my back." Ketchup
asserted to Williams that while he had officially been ter-
minated for "not working his schedule" the three real
reasons for his discharge were that he was black, the
store managers did not like him, and he was affiliated
with the Union. After several more minutes, Williams
asked Ketchup what Ketchup wanted him to do. Wil-
liams testified:
He ended up by saying he just wanted something
done about it. I asked him if he wanted his job
back, if that was what he was asking me to do for
him? He said, no, he didn't want to work there any-
more. He just wanted somebody to be aware of it
and somebody to get on the managers about it.
Williams denied that he asked Ketchup if Ketchup was
for the Union, Williams admitted he asked Ketchup to
explain what he meant when he said he was fired for not
working his schedule. Williams also admits he asked
Ketchup why Ketchup thought he was being discrimi-
nated against because of his race. It is therefore some-
what plausible that Williams might have asked Ketchup
if he favored the Union, since Ketchup advanced his
union nffiliation as one of the real reasons for his dis-
charge. Nevertheless, I found Williams the far more
credible and trustworthy witness with regard to his con-
versation and I credit his denial. Even if I were to fmd,
however, that Williams asked Ketchup if he was for the
Union, in the context of this conversation, such a ques-
tion would not be coercive. Ketchup had already been
discharged. Ketchup initiated the call to Respondent.
Ketchup advanced his union affiliation as one of the rea-
sons for his discharge. This kind of assertion naturally
raises questions about the extent of his affiliation and sup-
port for the Union. In that context, therefore, I do not
find that Williams' inquiry, even if it occurred, was coer-
cive.
G. Employee Meetings of August 8 and 9
On August 8, Wood and Randall again went to the
Brunswick store. With them were new Zone Manager
Jack Fair and Atlanta Division Personnel Manager Gary
Preston. On August 8 and 9, Wood, Randall, Fair, and
Preston held several meetings with different groups of
employees. Wood and Preston had again prepared a
"script" which, like the earlier one, was read to employ-
ees to and added to by the speakers.
The script indicates that several topics were discussed,
including the Union having filed a petition for an elec-
tion with the Board, Respondent's opposition to the
Union, and the closing of several stores in various parts
of the country. The script reflects that it was during
these meetings Respondent first announced the establish-
ment of an employee "complaint procedure." Employees
were informed:
Here is how the complaint procedure works.
Should you have a complaint about working condi-
tions, disciplinary action or other similar topics and
feel that other avenues (teams, open door, etc.) are
not best suited to deal with the complaint, you
should write your complaint, giving specifics, to
Pete Williams, assistant personal manager, Atlanta.
Mr. Williams, along with Mr. Randall and Mr.
Preston, will review your complaint and advise you
within 10 days of what is being done concerning
the complaint. You can be sure that all facts will be
considered and any decision will be fair and equita-
ble.
After advising employees that a petition had been filed
with the Board by the Union, the script reflects that em-
ployees were told:
The union cannot promise any of you that they will
be successful in negotiating a collective bargaining
agreement which is equivalent to the wages and
fringe benefits which you currently enjoy. As we
have said many times, the Kroger Company strives
to be competitive in the market place in which we
operate. The union cannot force the company into
any position which we do not agree with. The com-
pany's only legal obligation is to negoiate.
The script reflects that with regard to store closings,
employees were told in part:
In other markets across the country, the Kroger
Company has taken a firm stand in its position rela-
tive to negotiations and has been forced to make
difficult decisions regarding the continued operation
or total withdrawal from a market place. The most
recent examples of this took place in Baton Rouge,
Louisiana, Pittsburgh, Pennsylvania; Cleveland,
Ohio and Detroit, Michigan. The company is com-
mitted to being in a competitive posture with other
retailers in the market place. To do otherwise
would jeopardize the future for all of us.
This script was added to by the speakers. Employee
Chubb testified a fellow employee asked if Kroger would
close the Brunswick store in the event employees elected
the Union. Chubb testified that Wood stated, "Kroger
would not close the store because of the Union; howev-
er, the high union wages would cause us to become un-
competitive and if the store were to become uncompeti-
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive, they would close the store." Employee Rost testi-
fied that in response to a question concerning the closing
of stores in the North, Preston informed employees "he
was involved with that and that it was definitely closed
because the Union had pay raises that priced the stores
right out." Wood stated that Respondent "had no plans
of closing the Brunswick store at that time, but they may
further down the road." According to Rost, whom I
credit, Preston and Wood told employees that "if the
Union was voted in and we did go into negotiations,
when it started—Eon] day I, [there would be a] blank
sheet of paper with no benefits, no nothing and we
would start negotiating from there and that it was entire-
ly possible we would lose everything." Rost testified that
in response to a question by employee Pam Young, Pres-
ton or Wood also stated "we would lose [the PCS cards]
if we went into negotiations." Employee Bonnie Man-
ning attended the same meeting as Rost. She, like Rost,
recalled the question by employee Pam Young. Manning
testified that Young asked if employees would lose their
PCS cards if the Union came in to the store. Manning
testified that Wood or Randall replied, "Yes." Manning,
like Rost, testified that Wood stated, "Once we started
negotiations . . . there would be a piece of paper put
down, it would go to zero. What we had presently
would go to zero and we would start negotiations. We'd
go from there with it."
Randall testified vaguely about having a private con-
versation with employee Pam Young on August 8 deal-
ing with the subject of PCS cards. Randall did not testi-
fy to such a discussion having occurred in the employee
meeting. Randall's testimony does not rebut Rost's and
Manning's testimony about those meetings.
Preston testified that during one of the employee meet-
ings, an employee did ask if they would lose PCS cards
if employees became organized. According to Preston,
"We told them that wasn't a question we could answer;
that the collective bargaining process, what I referred to
as, was a give and take process. I can't predict." I do not
credit Preston's testimony in this regard. Rather, I found
Rost and Manning to be more straightforward and far
more believable.
Preston also testified about his comments regarding
store closmgs. Preston told employees that Kroger stores
had closed in Philadelphia, Pennsylvania, because
Kroger's main competitor was able to negotiate union
wage concessions while Kroger was not. Preston also
told of store closings in Pittsburgh, Pennsylvania. Ac-
cording to Preston:
I told the employees that in Pittsburgh, contrary to
popular belief it wasn't a situation of union and non-
union. In fact, it was a situation where most of the
retailers, the major retailers in the Pittsburgh area
are organized.
Preston explained that "the problem in Pittsburgh came
up when Giant Eagle [Kroger's main competitor] was
successful in negotiating concessions with their employ-
ees. Kroger was unable to negotiate these same conces-
sions. Preston also spoke of store closings in Michigan.
Preston admits telling employees "that the Michigan situ-
ation was unlike Pittsburgh in that it really was a
union/nonunion situation." According to Preston, how-
ever, he went on to explain:
We found that the growth of the non-union opera-
tor growing at tremendous rates and that the union
operators were getting smaller and smaller rather
than larger and our rate spread was such that it was
very difficult to operate.
Finally, Preston told employees about store closings in
Baton Rouge, Louisiana. With regard to these closings,
Preston told employees that Kroger sold approximately a
half-dozen stores in Baton Rouge to A&P, which re-
opened them as nonunion stores.
The testimony of Chubb and Rost agrees with that of
Preston that in these meetings on August 8 and 9, store
closings by Respondent in various parts of the country
were discussed in the context of, and attributed to eco-
nomic factors—not to unionization itself. Even though
Respondent dwelled at length on store closings, such
statements are nevertheless lawful because they convey
an economic fact of life—that employees may collective-
ly price themselves out of the market—which is not a
threat directed at employees for unionization per se. An
employer has the right to convey this fact to employees.
Certain other statements made by Respondent in these
meetings on August 8 and 9 do not fall into this protect-
ed category. I credit Rost and Manning that in the meet-
ing they attended, Respondent told employees that if it
did enter into negotiations, not only would Respondent
start with a blank sheet of paper, but employees would
have "no benefits, no nothing." What employees had en-
joyed "would go to zero." In response to a question by
one employee, Respondent repeated in this meeting that
employees would lose their PCS cards. By such threats,
Respondent violated Section 8(a)(1) of the Act. Lastly, I
find that in these meetings on August 8 and 9, Respond-
ent established an employee "complaint procedure" in
violation of Section 8(a)(1) of the Act. Respondent does
not even claim that it had considered such a procedure
prior to the advent of union activity. The tenor of the
script used in the August 8 and 9 meetings reflects clear-
ly that it had not been considered, and that it was a
recent innovation. The establishment of such a complaint
procedure is the epitome of grievance solicitation. Unlike
the situation in Matiposa Press, supra, Respondent did not
tell employees it could not make any promises regarding
resolution of their problems. In fact, Respondent specifi-
cally promised to "advise [an employee] within 10 days
of what is being done concerning [your] complaint." Re-
spondent therefore either expressly or impliedly prom-
ised to remedy employee grievances whenever possible.
Therefore, I find that by establishing this "complaint
procedure" and expressly or impliedly promising to
remedy employee grievances, Respondent violated Sec-
tion 8(a)(1) of the Act.
H. Other Events of August 1984
On August 8, employee Ricky Strickland wore a union
button on his uniform. Strickland was approached by
Managers Lloyd Kerr and Don Edwards. Edwards told
BRUNSWICK FOOD & DRUG 679
Strickland to remove the union button. 2 Edwards told
Strickland that the union pin was not part of the uniform
and thus could not be worn. Strickland removed the
button.
On August 16, Respondent held a "team concept"
meeting with employees. Chubb attended one of these
meetings about 3 p.m. in the employee breakroom.
Chubb had been wearing a union button throughout the
workday. As Chubb entered the breakroom for the em-
ployee meeting, he was met by Manager Williams. Wil-
liams instructed Chubb to remove the button. Chubb
asked Williams what would happen if he did not take off
the button. Williams replied, "I'll give you two warnings
and then I'll have to suspend you, and this is one of the
warnings." Chubb called Williams' attention to the
"Notice to Employees" posted pursuant to the settlement
agreement approved by the Regional Director on July
25. That notice reads in part, "We will not instruct our
employees to remove buttons in violation of the Act."
Williams responded, "We do not interpret that to mean
you can wear a union button." Chubb removed the
button. Before the meeting began, Manning entered the
breakroom wearing a union button. She was confronted
by Williams, who told Manning to remove the button.3
Manning asked Store Manager Clabey, who was with
Williams, whether he would suspend her if she refused to
take off the button. Clabey responded, "If I have to ask
you again, I will." Manning, like Chubb, pointed out to
Williams and Clabey the "Notice to Employees." Man-
ning stated, "We have a notice by the National Labor
Relations Board that you will not ask us to remove but-
tons." Williams responded that that was not how Kroger
interpreted the notice. Manning removed her union
button, but informed Williams and Clabey that further
charges would be filed with the Board.
On August 22, Strickland again wore a union button
to work. Front End Manager Don Edwards approached
Strickland shortly after 10 a.m. Edwards told Strickland
that the pin was not part of Strickland's uniform, and
while Strickland was on company time, Strickland was
not to wear the button. Strickland removed the button as
instructed.
I. The Discharge of Ella Rost
On August 8, Ella Rost also wore a union button on
her uniform at work. Manager Kerr told Rost to remove
the button because it was an unauthorized part of Rost's
uniform. Rost protested and referred Kerr to the "Notice
to Employees" described earlier. Rost told Kerr, "The
2 The complaint specifically references the Augst 8 incident, but incor-
rectly alleges that it was Kerr who instructed Strickland to remove the
button. Strickland testified that it was Edwards who spoke. Because Kerr
and Edwards approached Strickland together, I view this as a minor dis-
crepancy in the complaint to which the pleadings may appropriately be
conformed to the proof as covered by the General Counsel's motion at
the close of the trial
3 Manning initially testified that this conversation with Williams took
place around 1 or 1:30 p.m. Chubb, however, testified that he witnessed
the conversation, which took place in the breakroom before the meeting
began. Chubb had astounding recall of specific detail, and I found him to
be completely candid and credible. I therefore place this conversation be-
tween Manning and Williams in the breakroom Just before the "team
concept" meeting.
Labor Board states that we do have a right to wear the
union pin." Kerr repeated that he wanted Rost to take
off the pin. Rost did so.
On August 22, Ella Rost again wore a union button to
work. Manager Kerr noticed Rost wearing the button,
and told her to remove it. Rost, again referring to the
"Notice to Employees," told Keer that she had a legal
right to wear the button and that she was not going to
remove it. A few minutes later, Store Manager Clabey
approached Rost and told her to remove the union
button. Clabey stated that if Rost did not remove the
button, she would be suspended for the rest of the day,
and if she returned to work the next day wearing the
button, she would be suspended for another day. Clabey
asked Rost to remove the button. Rost asked Clabey for
his request and warning in writing. A few minutes later
Rost was called to Clabey's office. Rost was then sus-
pended for the remainder of that day and told to report
back to work the next morning.
When Rost returned to work the following morning,
she again wore the union button. Soon thereafter, Kerr
asked Rost to remove the button. Rost refused. Kerr
then asked Rost to go upstairs to Clabey's office, which
she did. Clabey gave Rost the written suspension notice
from the previous day. Clabey then told Rost to remove
the union button from her uniform. Rost replied, "No."
According to Rost, whom I credit, Clabey then "again
stated Kroger's policy of not wearing unauthorized but-
tons on the authorized uniform. . . ." Clabey told Rost
that if she continued to wear the button, she would be
suspended for 3 days. Clabey told Rost to remove the
button or leave the store. Rost again refused to remove
the button, at which time she was given a 3-day suspen-
sion. Rost was told to go downstairs and wait for copies
of her suspension notice. Rost left the office, punched
out on the timeclock, and went to the deli-restaurant
where she purchased a cup of coffee. A few minutes
later, Rost was again called to Clabey's office, where she
was given the 3-day suspension notice. Rost then re-
turned to the deli-restaurant. Rost sat down and contin-
ued to drink the coffee that she had previously pur-
chased. A few minutes later, Kerr and Clabey passed the
deli-restaurant and saw Rost still in her uniform wearing
the union button. Rost credibly testified:
[clabey] told me that even though I was off the
clock, I was still in uniform, I was not entitled to
wear a union button, and I had 15 minutes to take it
off or I would be fired.
Rost refused to remove the button. Approximately 20
minutes later, Rost was again called to Clabey's office.
Rost was given a termination notice stating, "Ella Rost is
being terminated for failure to follow a direct order
given by a member of management."
J. Events of September 1984
Employee Charles Hicks was promoted to lead clerk
in early August 1984. Hicks testified that in early Sep-
tember Grocery Manager Jerry Miller approached him
one day while Hicks was on break. According to Hicks,
who I credit, Miller took a notebook from his shirt
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pocket and stated that Store Manager Clabey wanted
Miller to make a list of who was for and who was
against the Union within the grocery department. Hicks
replied that he thought it was illegal for Miller to do
that. Miller agreed, but repeated that he still had to form
the list. Miller then began to read aloud the names of
employees in the grocery department. After reading each
name, Miller stated whether he thought the employee
was for or against the Union. Miller paused after each
comment, as if awaiting a response from Hicks. Hicks
testified that he "primarily went along with him." It is
undisputed that Miller did not ask Hicks about his own
union sympathies. After going through the list, Miller
commented that it appeared only two employees were
for the Union, and he stated that it really did not matter
if the Union came in since wages would stay the same.
The conversation ended. Miller was not called as a wit-
ness by Respondent, and there is no evidence contradict-
ing Hicks' otherwise credible testimony. I find that the
conversation occurred as described by Hicks. There can
be little doubt that Miller effectively interrogated Hicks
about the union sentiments of his fellow employees, and
I fmd that Miller's actions violated Section 8(a)(1) of the
Act.
A Board-conducted election was scheduled to be held
at Respondent's Brunswick facility on September 21,
1984. On September 19, Respondent held a meeting of
employees at the local Ramada Inn as a part of its elec-
tion campaign. Attendance was mandatory. Employees
wore street clothes to the meeting, however, not work
uniforms. Nevertheless, it is undisputed that employees
Charles Hicks and Bonnie Manning were required by
Respondent to remove union buttons they were wearing
prior to entering the meeting.
On September 21, the Board-conducted election took
place as scheduled. The Union received a majority of the
valid votes cast.
On September 22, the day after the election, Bonnie
Manning had a brief conversation with a fellow employ-
ee named Evelyn, whose last name Manning could not
recall. Manning congratulated Evelyn for a recent pro-
motion from part-time employee to a full-time meatwrap-
per. Other employees were also present during the con-
versation. That afternoon, Manager Kerr approached
Manning on the sales floor. Kerr told Manning, "Union
or no union, promotions and pay raises is none of your
damn business." Manning asked, "Are you talking about
Evelyn?" Kerr replied, "Yes." Kerr did not testify re-
garding this conversation, and I credit Manning. By tell-
ing Manning that she could not communicate with other
employees about promotions and pay raises, Respondent
violated Section 8(a)(1) of the Act. For years the Board
has recognized that to stifle communication between em-
ployees about such matters is to choke off collective bar-
gaining at its roots. Salt River Valley Water Users Assn.,
99 NLRB 849 (1952); Root-Carlin, Inc., 92 NLRB 1313
(1951). The Board has uniformly held such action to vio-
late the Act. Coosa Valley Convalescent Center, 224
NLRB 1288 at fn. 1 (1976). Jeannette Corp., 217 NLRB
653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976).
On September 22, the day after the Board-conducted
election, employee Charles Hicks reported for work 2
hours late. Hicks received a 3-day suspension. On the
morning of the next day, September 23, Hicks went to
Respondent's store for a "team meeting." The meeting
was canceled. While Hicks was at the store, he was sum-
moned to Store Manager Clabey's office. Hicks and
Clabey disagree about what happened during the ensuing
conversation. Hicks testified Clabey opened the conver-
sation by telling Hicks that he (Clabey) did not give a
damn whether the Union was in the store or not, Clabey
did not see how an intelligent adult like Hicks would
have anything to do with the Union. According to
Hicks, Clabey "mentioned that stores up North had
closed because of the Union." Hicks testified he replied
that Clabey could not make him believe a store doing a
million dollars a month business, which the Brunswick
store was then doing, would be closed. Clabey respond-
ed, "Anything is possible." Hicks testified that during
this conversation Clabey asked Hicks what the Union
had offered him to vote for the Union. Finally, Hicks
testified that Clabey stated he did not feel Hicks was the
right man for the lead clerk job.
Clabey testified that the purpose of the conversation
with Hicks concerned Hicks' suspension for tardiness.
Hicks' tardiness on September 22 was the third such in-
stance during August. According to Clabey, he warned
Hicks that "this is not the type of thing that a lead clerk
should be late, he should be setting an example." Clabey
admits telling Hicks that Clabey "was beginning to
wonder if we had made a mistake with promoting him to
lead clerk." Clabey testified, however, that this remark
was made solely in the context of Hicks' repeated tardi-
ness and suspension. According to Clabey, Hicks assured
Clabey he could do the job as lead clerk, and Clabey re-
plied, "Well, time will tell, we'll see." Clabey acknowl-
edges there was discussion during this conversation con-
cerning the Union. According to Clabey, Hicks said he
hoped there were not any hard fellings on Clabey's part
regarding the union organizing campaign. Clabey testi-
fied he assured Hicks that there were not. Clabey denied
that there was any discussion during the conversation
with Hicks about stores closing because of the Union.
However, immediately after that denial, in response to a
second question whether there was any discussion about
the closing of stores during the conversation with Hicks,
Clabey then replied, "I don't recall, there might have
been."
I have little doubt that Clabey's ostensible reason for
initiating this discussion with Hicks was Hicks' tardiness
and the suspension that resulted on the evening prior to
this conversation between Clabey and Hicks. Respondent
points out that although a charge was filed over Hicks'
suspension, that charge was dismissed. As a result, Re-
spondent argues, "In these circumstances there can be no
findings here that Clabey's concern about Hicks' contin-
ued lead clerk status was anything but legitimate and
noncoercive." I cannot agree. Although I credit Clabey
that this conversation with Hicks started ostensibly to
discuss with Hicks his tardiness and the resulting suspen-
sion, I do not credit the remainder of his testimony. I
credit Hicks that Clabey made the remarks to which
Hicks testified. More specifically, I find that Hicks ex-
BRUNSWICK FOOD & DRUG 681
pressed disbelief Respondent would consider closing the
Brunswick store because of the Union in view of its sub-
stantial dollar volume of sales. I credit Hicks that Clabey
responded, "Anything is possible," and I find that Cla-
bey's statement constituted a poorly disguised threat. I
further find that it was in the context of the discussion
regarding the Union, Clabey told Hicks he did not feel
Hicks was the right man for the lead clerk job. I fmd
that in doing so Clabey issued another poorly disguised
threat to retaliate against Hicks because of his support
for the Union. By doing so, Clabey violated Section
8(a)(1) of the Act.
At the time Hicks was promoted to lead clerk in early
August 1984, Hicks was due a 6-month "merit" increase
of 25 cents per hour. According to Hicks, who I credit,
Store Manager Hall told Hicks that in addition to the
scheduled 6-month increase of 25 cents per hour, Hall
would recommend that Hicks receive an additional 25-
cent-per-hour increase as a result of the promotion to
lead clerk. It is undenied Hall also told Hicks that if
Hicks was still holding the lead clerk job in September,
he would be raised to $6 per hour. Hicks did in fact re-
ceive the 6-month increase of 25 cents per hour and the
additional 25 cents per hour recommended by Hall short-
ly after Hicks became leadperson. In early September
1984, Store Manager Hall was replaced by Clabey. Hicks
asked Clabey if Clabey was aware that he was supposed
to receive a raise to $6 per hour at the end of September.
Hicks testified Clabey responded that he was aware of
this. Hicks also asked Clabey if the union business or the
election scheduled for September 21 was going to inter-
fere in any way with his raise. CIabey said it would not,
and offered to give Hicks that assurance in writing.
Hicks told Clabey that Clabey's word was good enough
for him. According to Hicks' undenied testimony,
Clabey added, "You have my word, you will receive
your raise at the end of September." During the first or
second week of October, Hicks again approached Clabey
about the raise. Clabey then told Hicks that he and Gro-
cery Manager Jerry Miller would be on vacation soon,
but when they returned "he would have Miller put it
through." Near the end of October, Hicks asked Miller
about the raise. Miller simply responded, "No." Later
that same day, Miller told Hicks that he was not sure,
but he thought there was some type of freeze on raises
because of the Union. Miller told Hicks that if he had
any futher questions he should speak to Clabey. Hicks
went immediately to Clabey and inquired about the pay
raise. Clabey said he would check with Assistant Person-
nel Manager Pete Williams. Approximately 1 to 2 weeks
after this conversation, Clabey told Hicks that there was
a freeze on merit increases and that Hicks' next raise
would be his usual scheduled raise based on length of
service. Hicks never received the promised raise to $6
per hour.
Hall did not deny promising Hicks the raise to $6 per
hour if he was still in the lead clerk position in Septem-
ber 1984. Neither did Clabey deny renewing the promise
to Hicks when Clabey became store manager. Respond-
ent apparently considers the fact that Hicks was suspend-
ed for 3 days for tardiness shortly after the election to be
a self-evident reason for withholding the increase from
Hicks. In its brief, Respondent argues simply that "there
is no basis to the allegation that Hicks' performance war-
ranted a 'merit' increase." The point, however, is not
whether the General Counsel has established that Hicks
warranted a "merit" increase. The point is that Hicks
was promised an increase and it was not given to him.
Hicks' unrebutted testimony is that he was told that his
promised wage increase was frozen "because of the
Union." This is not denied by Respondent. I therefore
find that by withholding Hicks' promised wage increase
because of the Union, Respondent violated Section
8(a)(1) and (3) of the Act.
K. Ejection of Union Representatives From
Respondent's Facility
In the weeks preceding the Board-conducted election,
union representatives made frequent visits to the Bruns-
wick store. It was common for them to eat in the deli-
restaurant and, while there, talk with employees who
were off work or on break.
The first time union representatives returned to the
store following the election was on October 11. Store
Manager Clabey was absent that day, and Kerr had been
left in charge. Clabey instructed Kerr that if union repre-
sentatives showed up in the store during his absence,
Kerr was to telephone Preston in the Atlanta division
office. When Union Representatives Curtis Williams and
Mitchell Harden came to the store on October 11, they
first walked the entire perimeter of the store, exchanging
brief greetings with employees. In the dairy department,
Williams and Harden stopped and spoke to employee
Carlos Inacio for 1 or 2 minutes. Kerr testified that
during this conversation Inacio stopped working. Inacio,
whom I credit, testified that during this conversation he
continued stocking dairy shelves. After the conversation
with Inacio, Williams and Harden proceeded to the deli-
restaurant, where they purchased food and sat down.
As soon as Kerr saw Williams and Harden in the
store, he telephoned Gary Preston, as he had been di-
rected to do. Preston instructed Kerr to ask Williams and
Harden to leave the store and, if they refused, to call the
police and have them removed. Kerr did as he was in-
structed. Kerr, accompanied by Manager Robbie Turner,
approached Williams and Harden and asked them to
leave the store. Employee Bonnie Manning was sitting
with Williams and Harden at the time. Manning asked
Kerr, "Why in the hell after nine months they were just
now asking these two gentlemen to leave." Williams told
Kerr that he and Harden "were not going anywhere."
Kerr then telephoned the police and had Williams and
Harden removed from the store.
Approximately 15 minutes later, Williams and Harden
returned to the store. Kerr again watched them from the
upstairs office. On this occasion, Williams and Harden
walked through the store and then left. Apparently they
spoke to no one and purchased nothing. Then, approxi-
mately 30 to 45 minutes later, Williams and Harden re-
turned to the store a third time. On this visit, Williams
and Harden again took their usual route around the pe-
rimeter of the store. When Kerr saw Williams and
Harden enter the store for the third time, he left the
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office and proceeded toward the back of the store. Kerr
testified that as Williams and Harden approached Inacio,
Kerr heard Inacio holler to Williams and Harden, "Hey,
did you hear about Bonnie? Isn't that something!" I
credit Kerr. Kerr then observed Williams and Harden
stop and speak to Inacio for another minute or two. Kerr
overheard Williams or Harden comment, "Bonnie can
take care of herself. We'll see you later." Kerr again
called the police and had Williams and Harden removed
from the store. Williams and Harden were warned that
they would be charged with criminal trespass if they
showed up at the store again.
In support of the argument Respondent violated Sec-
tion 8(a)(1) of the Act by evicting union business agents
from its public deli-restaurant, the General Counsel cites
Montgomery Ward & Co., 263 NLRB 233 (1982). Re-
spondent relies on the seminal case May Department
Stores Co., 59 NLRB 976 (1944), dealing with no-solicita-
tion rules. May Department Stores, however, does not
deal with removal of union representatives from store
premises. Rather, it simply formulated the now well-set-
tled rule that in a retail establishment an employer may
not lawfully establish a rule that prohibits union solicita-
tion off the selling floor during nonworking hours. Re-
spondent implies that in removing Williams and Harden
from its store it was simply enforcing a valid rule prohib-
iting them from soliciting or disturbing employee Carlos
Inacio while Inacio was on the selling floor working. Re-
spondent argues in its brief, "The removal of. . . Wil-
liams and. . . Harden. . . turns upon a narrow issue of
fact: Did the union agents disrupt Carlos Inacio while he
was at work and before Kerr had them removed?" I
have found that Inacio's work was not disturbed, and
that he continued stocking shelves. Nevertheless, I do
not agree with Respondent that resolution of the issue
turns on this narrow fact. Rather, I find that Respond-
ent's reliance on May Department Stores is misplaced.
Throughout the period relevant to this case, Respondent
did not have a valid no-solicitation rule that was uni-
formly and lawfully applied, whether to employees or to
the union agents who frequented Respondent's store in
the weeks before the election. As to employees, Re-
spondent prohibited them at times from soliciting any-
where on Respondent's premises at any time. As to
union agents, prior to the election Respondent did not at-
tempt to prevent, limit, or in any way restrict their visits
to the store or their behavior while in the store. If Re-
spondent objected to them walking the perimeter of the
store saying hello to employees who were working, Re-
spondent may well have lawfully restricted them from
doing so, requiring instead that they go directly to the
deli-restaurant to meet only with employees who were
not working. Montgomery Ward & Co., supra, fn. 1 and
cases cited therein. Respondent never attempted to do
so. Instead, it was only after the Union won the election,
and I believe in response to that, that Respondent decid-
ed to prevent further visits to the store. The evidence is
very clear that it was not the 1- or 2-minute conversation
with Inacio that caused Respondent to evict the union
representatives from its store. It was their mere presence
in the store after winning the election that caused that.
This is shown very clearly by the fact that Clabey, who
was not in the store that day, had left instructions with
Kerr to telephone Atlanta division headquarters if union
representatives came to the store. Respondent had al-
ready decided to take action. When Respondent did have
Williams and Harden removed from the store, Respond-
ent warned them not to come back. It was obviously Re-
spondent's purpose and intention to prevent union repre-
sentatives from coming to the store at all, not just to
limit their visits in some lawful manner. There is no evi-
dence that Williams or Harden attempted to use the
public snackbar in any manner inconsistent with its pur-
pose. Accordingly, I find that by having union represent-
atives evicted from the snackbar Respondent violated
Section 8(a)(1) of the Act. Montgomery Ward & Co.,
supra.
L. The Discharge of Bonnie Manning
On October 11, employee Bonnie Manning was given
a 3-day suspension. At the end of that suspension, she
was terminated Manning's suspension and termination
were precipitated by something that happened while
Union Representatives Williams and Harden were being
confronted and removed from Respondent's deli-restau-
rant by police the first time on October 11.
Manning and employee Kelly Jacobs testified that
while Williams and Harden were being confronted by
police, Manning was asked what was going on by a cus-
tomer sitting in the deli-restaurant. Manning and Jacobs
assert that Manning, speaking in a normal tone of voice,
told the customer, "Sir, I apologize for management, but
as an employee there is nothing I could do." Numerous
witnesses presented by Respondent, including other em-
ployees, paint a considerably different picture.
Employee Cathy Austin testified that after Harden and
Williams were asked by police to leave the store, Man-
ning "jumped up from her seat" and "paced around." On
her own initiative, Manning then turned to customers sit-
ting in the deli-restaurant and said that "she'd like to
apologize for the ignorance of management." Austin tes-
tified that Manning "stomped out" and returned to her
work area behind the service area in the deli. According
to Austin, Manning had become "real excited" and kept
repeating that she apologized for the ignorance of man-
agement. Austin testified she heard Manning make this
statement "at least three times." Other employees, in-
cluding Mary Hardwick, Rena Hyers, and Leslie Bradley
testified to having heard identical or similar comments
made by Manning. The General Counsel argues that
Hardwick and Bradley were not in a position to have ob-
served or overheard Manning. I disagree. Further, I
found their testimony to be detailed, candid, and wholly
credible. Although I found Manning's testimony regard-
ing her conversations with Hall to be candid, I cannot
say the same thing about her testimony concerning her
discharge. Manning's description of her discharge left me
with the distinct impression she was fabricating testimo-
ny where necessary. Kelly Jacobs impressed me as a
thoroughly biased witness whose only purpose in testify-
ing was to advance her position with those people she
saw as her comrades I credit employees Austin, Hard-
wick, Hyers, and Bradley. I conclude that Manning
BRUNSWICK FOOD & DRUG 683
indeed took it upon herself, after she saw that police
were confronting Williams and Harden, to approach cus-
tomers on her own and "apologize for the ignorance of
management."
The General Counsel argues that an employer may not
provoke an employee to commit an indiscretion and then
seize on the opportunity to discharge the employee. Re-
spondent, on the other hand, argues that Manning's con-
duct was both disloyal and unprotected. The cases cited
by Respondent4 contain excellent discussion about cir-
cumstances in which concerted activity may nevertheless
be unprotected because it is disloyal. They do not defi-
nitely resolve the issue in this case, however, because
they do not involve disloyal conduct that is precipitated
or provoked by the employer's own unlawful action. At
least two cases cited by the General Counsel, Golden
Day Schools, 644 F.2d 834 (9th Cir. 1981), and State
County Employees, Louisiana Council No. 17, 250 NLRB
880 (1980), are more on point. Both deal with allegedly
disloyal conduct provoked by the employer's own un-
lawful actions. I note, however, that in Golden Day
Schools the question was whether such conduct should
bar reinstatement, not whether the discharge itself was
unlawful, and therefore a standard was applied that is
not altogether applicable here. The Board's decision in
Louisiana Council No. 17, supra, articulates the standard
by which the instant case should be resolved:
We have adhered to the principle that "[a]n em-
ployer cannot provoke an employee to the point
where [the employee] commits . . . an indiscretion
. . and then rely on this to terminate [the] employ-
ment?' Thus where, as here, the employer's wrong-
ful provocation is serious and compelling, we will
permit the employee a certain amount of leeway in
response. As the court stated in M B Headware
Co. [349 F.2d 170, 174 (4th Cir. 1965)]
The more extreme an employer's wrongful
provocation the greater would be the employee's
sense of indignation and the more likely its exces-
sive expression.
The standard to be used in resolving a case such as
this necessarily requires a balancing test. The employer's
wrongful provocation must be balanced against the em-
ployee's reaction. There can be little doubt that calling
police to forcibly remove someone from a public restau-
rant is extreme. I must also note, however, that this
"provocation" Was directed at union representatives Wil-
liams and Harden, not at Manning. Manning could have
chosen to remain a bystander or witness, as other em-
ployees did. Instead, she chose to exacerbate the con-
frontation. If Manning had reacted with a verbal barrage
directed solely at Respondent's management, her con-
duct might also be considered more understandable and
more excusable. Instead, Manning chose to draw custom-
ers into the incident by directing her comments to them.
Lastly, if Manning's comments had been brief and short-
lived, they might be more excusable even if directed at a
4 Bird Engineering, 270 NLRB 1415 (1984), American Arbitration Assn.,
233 NLRB 71(1977); Giant Open Air Market, 231 NLRB 945 (1977).
customer. Instead, Manning continued to "rant and rave"
even after she returned to her work area. I must also
note that this was not the first time Manning had lost her
temper and released a verbal barrage in front of custom-
ers. She had done so twice before. The first time she was
warned that such conduct was unacceptable. The second
time she was suspended for the remainder of that work-
day. It cannot be said, therefore, that Respondent had
ever tolerated or excused such conduct when it was un-
related to union activity. Considering all the circum-
stances surrounding the incident that precipitated Man-
ning's discharge, I am persuaded that while Respondent
provoked, or at least caused, the situation, Manning's
conduct was so excessive and extreme that it must lose
any protected nature it might otherwise have. Accord-
ingly, I find that Respondent did not violate Section
8(a)(1) or (3) of the Act when it discharged Manning.
M. Discussion, Analysis, and Conclusions Regarding
the Removal of Union Buttons and the Related
Discharge of Ella Rost
The General Counsel argues that by requiring employ-
ees to remove union buttons, by reprimanding employees
for failing to do so, and by discharging Ella Rost for re-
fusing to do so, Respondent violated Section 8(a)(1) of
the Act. Respondent argues that it maintained and en-
forced a uniform and lawful rule prohibiting employees
from wearing union buttons and other insignia except
those issued to employees by Respondent.
The evidence is overwhelming, and largely uncontra-
dieted., that on numerous occasions Respondent required
employees to remove union buttons that they were wear-
ing at work. These prounion buttons were small, clip-on
buttons approximately 1-1/4 inches in diameter. The but-
tons bore one of two inscriptions: Either "Vote Yes
Retail Clerks Union AFL-CIO" or "Vote Yes UFCW
AFL-CIO." When employees refused to remove the but-
tons, they were issued written warnings. Employees
Rost, Chubb, and Dowling were among those who re-
ceived written reprimands. On August 22 and 23, 1984,
when employee Rost refused to remove such a union
button, she was first suspended and eventually dis-
charged.
Most of the instances when Respondent required em-
ployees to remove buttons such as those described above
involved employees wearing such buttons on their uni-
form while working on Respondent's sales floor. The
evidence is very clear, however, that Respondent re-
quired employees to remove such buttons at other times
as well. Employees Chubb and Manning were required
to remove union buttons prior to entering a "team con-
cept meeting," which was being attended only by em-
ployees and was being held in a breakroom frequented
only by employees. Employee Rost was discharged for
refusing to remove a union button at Respondent's direc-
tion even though she had clocked out and was not on
Respondent's worktime. Employees Hicks and Manning
were required by Respondent to remove union buttons
prior to entering a meeting that Respondent held at a
local Ramada Inn as a part of its election campaign. On
this occasion, attendance was mandatory and employees
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were being paid, but employees were not even in uni-
form and were not working. The evidence is overwhelm-
ing that Respondent maintained a complete ban against
employees wearing union buttons, which it applied to
nonselling areas as well as selling areas of its store, and
which it applied to nonworktime as well as worktime.
Respondent's ban on wearing union buttons was applied
even to times when employees were "on the clock" but
neither working nor in uniform.
The Board recently stated in Burger King Corp., 265
NLRB 1507 (1982):
It is well settled that, in the absence of special cir-
cumstances, an employee's wearing a union button
at work is protected activity under Section 7 of the
Act. Republican [sic] Aviation Corporation v.
N.L.R.B., 324 U.S. 793 (1945). Respondent argues,
and the Administrative Law Judge concluded, that
Griggs' contact with customers constituted such a
special circumstance, reasoning that Respondent
seeks to project a neat, standard appearance by its
employees and is therefore justified in prohibiting
employees with substantial customers contact from
wearing union buttons. However, "mere contact
with customers is not a basis for barring the wear-
ing of union buttons," and absent "substantial evi-
dence that the button affected Respondent's busi-
ness or that the prohibition was necessary to main-
tain employee discipline," requiring the removal of
such a small, nonprovocative button is unlawful.
Virginia Electric and Power Company, 260 NLRB
408 (1982). Accord: Floridan Hotel of Tampa, Inc.,
137 NLRB 1484, 1486 (1962); Consolidated Casinos
Corp. Sahara Division, 164 NLRB 950, 950-951
(1967).
In order for an employer to justify any restriction on
the right of employees to wear a union button at work, it
is the employer's burden to establish that "special cir-
ctunstances" exist that warrant such restrictions. Re-
spondent made no effort to establish such special circum-
stances that would warrant it from prohibiting employees
from wearing union buttons, whether on or off the sales
floor. Instead, Respondent simply argues that such but-
tons necessarily "connoted militancy and . . . triggered
friction" on the part of employees who opposed the
Union. In fact, Respondent itself paid for and distributed
to union opponents "Vote No" buttons, which were ap-
proximately 3 inches in diameter. There is no evidence
of any incident between union proponents and union op-
ponents that necessitated the ban on union buttons.
The main thrust of Respondent's position on this issue,
however, is not that there was some unusual incident
that justified the banning of union buttons. Respondent's
main argument is that it simply enforced a consistent rule
which it had not issued to employees or approved, pro-
hibiting the wearing of any insignia on employee work
uniforms. Respondent's "employee handbook" contains
the following rules:
Basic Dress Regulations:
In the best interest of customer satisfaction, cus-
tomer service, and employee safety, the following
guidelines for employee dress and appearance are to
be observed.
All employees-
1. The authorized Kroger uniform (clean and
neat) is to be worn at all times while on duty.
2. Conspicuous or garish jewelry will not be per-
mitted.
5. A Kroger name badge will be visibly worn at
all times while on duty.
Respondent argues that in prohibiting employees from
wearing union buttons, it was simply enforcing a consist-
ent rule against wearing "conspicuous or garish jewel-
ry." The evidence, however, reflects that Respondent
did not strictly enforce its rule in such a manner that em-
ployees in fact maintained a uniform appearance. From
time to time, employees were issued various trinkets pro-
moting various products or services offered by Respond-
ent. Some employees wore these and some did not. Some
employees continued wearing the trinkets on their uni-
form long after the special promotion ended. Some em-
ployees wore trinkets of their own that were not issued
by Respondent. The result was that different employees
wore different trinkets at different times. The uniformity,
to the extent there was any, was not in the trinkets and
badges worn by employees but solely in the uniform
itself. This lack of uniformity is actually reflected as well
in Respondent's rule quoted above. The rule does not
prohibit the wearing of all trinkets and insignia except
those issued by Respondent. The rule does not even ban
the wearing of all jewelry. Rather, the rule simply bans
the wearing of "conspicuous or garish" jewelry. This
was in fact the literal rule followed prior to the advent
of union buttons of the record is clear that prior to that
time, employees wore personal trinkets and jewelry
without incident. When employees began to wear union
buttons, Respondent prohibited them from doing so at all
times when they were either wearing the Kroger uni-
form or were "on the clock." This policy is the complete
antithesis of what an employer may lawfully prohibit
under any circumstances. Albertson s, Inc., 272 NLRB
865 (1984). Respondent argues that in Albertson 's, the
Board "limited the protection provided the wearing of
union buttons." The decision in Albertson's implies that
the current Board would find lawful a rule prohibiting
the wearing of union insignia provided it permits em-
ployees the right to wear such insignia in nonselling
areas, and does not apply to employee breaktimes when
employees are not working. Such a policy might well
represent a departure from the standard enunciated and
quoted above in Burger King Corp., supra. However,
whether the Board has or will adopt such a new criteria
is purely academic as it relates to this case, for it is crys-
tal clear that Respondent maintained and enforced a rule
prohibiting employees from wearing union insignia both
in nonselling areas and on nonworktime. Accordingly,
under any test that the Board has used in the past,
whether it be the standard enunciated in Burger King
Corp., or the standard applied in Albertson '5, Respond-
BRUNSWICK FOOD & DRUG 685
ent's rule prohibiting employees from wearing union but-
tons violated Section 8(a)(1) of the Act. Accordingly, I
also find that discipline imposed by Respondent pursuant
to this unlawful rule, including the written warnings
issued to employees, as well as the suspension and even-
tual discharge of Ella Rost, violated Section 8(a)(1) of
the Act. It is unnecessary to decide if Respondent could
have had a lawful rule pursuant to which some of its ac-
tions in this case might lawfully have been undertaken. It
is enough that all times relevant to this case Respondent
enforced a rule that was unlawful and that, pursuant to
that unlawful rule, Respondent took the actions that it
did. It has long been recognized that discipline imposed
pursuant to an unlawful rule is itself unlawful.
CONCLUSIONS OF LAW
1. The Respondent, The Kroger Company, d/b/a
Brunswick Food and Drug 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 Union,
Local No. 1063, chartered by the International Food and
Commercial Workers International Union, AFL-CIO-
CLC is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. On December 6 and 7, 1983, January 12, 1984, and
in late February or early March 1984, Store Manager
Hall asked employee Bonnie Manning to attend union
meetings and report back to him what took place at
those meetings, and otherwise conspired with Manning
to learn what he could about the union campaign, and
Respondent thereby violated Section 8(a)(1) of the Act.
4. In meetings with employees on December 7 and 8,
1983, Respondent explicitly linked certain store closures
to unionization by employees; threatened employees that
if the Union came in, employees would lose their "PCS
cards"; threatened employees that if the Union was
voted in, when negotiations began, employees would lose
all benefits; and solicited grievances from employees; and
Respondent thereby violated Section 8(a)(1) of the Act.
5. In a conversation in mid-January 1984, Store Man-
ager Hall told employee Ella Rost that he wanted her to
"reconsider being for the Union," and Respondent there-
by violated Section 8(a)(1) of the Act.
6. On January 21, 1984, Store Manager Hall solicited
grievances from employee Jonathan Chubb; interrogated
Chubb about the number of authorization cards that had
been signed by employees; threatened to reduce benefits
if employees selected the Union; and threatened that if
the Union and Respondent "deadlocked" in bargaining,
Respondent would close its Brunswick store; and Re-
spondent thereby violated Section 8(a)(1) Of the Act.
7. On January 28, 1984, Store Manager Hall interro-
gated employee Jonathan Chubb about his activities in
soliciting authorization cards from fellow employees and,
in the same conversation, promulgated an unlawful no-
solicitation rule, which prevented Chubb from soliciting
union authorization cards anywhere on Respondent's
property, and Respondent thereby violated Section
8(a)(1) of the Act.
8. In February 1984 Respondent extended insurance
coverage to part-time employees for reasons unrelated to
union activity, and Respondent did not violate Section
8(a)(1) of the Act by doing so.
9. In February 1984 Respondent granted employees a
general wage increase in order to dissuade them from
supporting the Union, and Respondent thereby violated
Section 8(a)(1) of the Act.
10. During meetings with employees on August 8 and
9, 1984, Respondent threatened the employees that if it
entered into negotiations with the Union, employees
would have no benefits and what they had enjoyed
"would go to zero"; threatened employees that if they
selected the Union they would lose their "PCS cards";
and solicited grievances from employees by establishing
an employee "complaint procedure"; and Respondent
thereby violated Section 8(a)(1) of the Act. During that
same meeting, Respondent discussed store closings that it
had made in various parts of the country, but it attrib-
uted such closings solely to economic factors—not to
unionization itself—and Respondent did not thereby vio-
lation Section 8(a)(1) of the Act.
11. During early September 1984, Grocery Manager
Jerry Miller interrogated employee Charles Hicks about
the union sentiments of his fellow employees, and Re-
spondent thereby violated Section 8(a)(1) of the Act.
12. On September 22, 1984, Manager Kerr told em-
ployee Bonnie Manning that she could not communicate
with other employees about promotions and pay raises,
and Respondent thereby violated Section 8(a)(1) of the
Act.
13. On September 23, 1984, Store Manager Clabey
threatened employee Charles Hicks with possible store
closure as a result of employees selecting the union as
their collective-bargaining representative and threatened
to retaliate against Hicks by removing Hicks from his
position as lead clerk because of his support for the
Union, and Respondent thereby violated Section 8(a)(1)
of the Act.
14. During September 1984 Respondent withheld a
promised wage increase from employee Charles Hicks
because of the Union, and Respondent thereby violated
Section 8(a)(1) and (3) of the Act.
15. On October 11, 1984, Respondent caused union
representatives Curtis Williams and Mitchell Harden to
be evicted from Respondent's public snackbar, although
they were using the snackbar in a manner consistent with
its purpose, and Respondent thereby violated Section
8(a)(1) of the Act.
16, On October 11, 1984, Respondent discharged em-
ployee Bonnie Manning because of conduct by her that
is not protected by the Act, and Respondent did not
thereby violate Section 8(a)(1) or (3) of the Act.
17. Throughout the period relevant to this case, Re-
spondent maintained and enforced a rule prohibiting em-
ployees from wearing union buttons anywhere on Re-
spondent's premises or at any time they were on Re-
spondent's payroll, including nonselling areas of Re-
spondent's facility and nonworkingtime, and Respondent
thereby violated Section 8(a)(1) of the Act. In further-
ance of this unlawful rule, Respondent issued written
warnings to various employees, including employees
Rost, Chubb, and Dowling. In addition, Respondent sus-
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pended and later discharged employee Rost. By each of
these actions Respondent violated Section 8(a)(1) of the
Act.
18. The unfair labor practices that Respondent has
been found to have engaged in, as described above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to affectuate the policies of the Act.5
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 6
ORDER
The Respondent, The Kroger Co., d/b/a Brunswick
Food and Drug, Brunswick, Georgia, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Requesting employees to attend union meetings and
report what takes place at those meetings, and otherwise
conspiring with employees to learn what it can about
union activities among employees.
(b) Expressly and/or impliedly threatening employees
to close the Brunswick store if employees select a union
to represent them or if management should become
"deadlock" in negotiations with a union.
(c) Telling employees that it wants them to reconsider
their support for the Union.
(d) Threatening employees that if they select the
Union to represent them, employees will lose their "PCS
card" or any other benefits.
(e) Promulgating an unlawful no-solicitation rule that
prevents employees from soliciting union authorization
cards anywhere on Respondent's property.
(f) Granting employees wage increases in order to dis-
suade them from supporting the Union.
(g) Soliciting grievances from employees and promis-
ing, either expressly or impliedly, to remedy such griev-
ances.
5 The Charging Party filed a bnef with me in which it requests that a
broad ,cease-and-desist order be issued and in which it asks that Kroger
be required to have management personnel read the Board's Order to em-
ployees. I find no justification for requiring Respondent to read the
Board's Order to employees The record reflects, however, that Respond-
ent's unfair labor practices have been repeated and pervasive. After once
entering into a settlement agreement pursuant to which it agreed not to
engage in various kinds of unlawful conduct, Respondent thereafter con-
tinued to engage in repeated violations of the Act. In view of these cir-
cumstances, a broad cease-and-desist order is warranted. Htckmott Foods,
242 IsiLRB 1357 (1979).
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 objections to them shall be deemed waived for all pur-
poses'
(h) Interrogating employees about their union activities
and sentiments, and the union activities and sentiments of
their fellow employees.
(i) Telling employees that they cannot communicate
with other employees about promotions and pay raises.
(j) Threatening to retaliate against employees by re-
moving them from the positions that they hold because
of their support for the Union.
(k) Withholding promised wage increases from em-
ployees because of the Union.
(1) Causing union representatives to be evicted from
Respondent's public snackbar, although they are using
the snackbar in a manner consistent with its purpose.
(m) Promulgating, maintaining, and enforcing an
overly broad rule that prohibits employees from wearing
union buttons, issuing written warnings to employees,
and discharging employees for violating such a rule.
(n) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Extend to employee Charles Hicks the wage in-
crease promised to him and withheld from him because
of the Union, and make Hicks whole for any loss of
earnings or benefits he may have suffered by paying him
the raise retroactively to October 1, 1984, with appropri-
ate interest.
(b) Remove from its files the written reprimands issued
to employees Rost, Chubb, and Dowling for violating
Respondent's unlawful rule prohibiting employees from
wearing union buttons, and notify them in writing that
this has been done and that evidence of the unlawful
warnings will not be used as a basis for future personnel
actions against them.
(c) Offer Ella Rost immediate and full reinstatement to
her former position or, if that position no longer exists,
to a substantially equivalent position without prejudice to
her seniority and other rights and privileges.
(d) Make whole Ella Rost for any loss of earnings or
benefits she may have suffered by reason of the discrimi-
nation against her and payment to her of a sum of money
equal to the amount she normally would have earned
from the date of the discrimination to the date of Re-
spondent's offer of reinstatement, less net interim earn-
ings, with backpay to be computed in the manner pre-
scribed in F. W Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977); see generally
Isis Plumbing Co., 138 NLRB 716 (1962).
(e) Remove from its files written warnings issued to
Ella Rost dated August 22 and/or August 23, 1984, as
well as any reference to the discharge of Ella Rost, and
notify her in writing that this has been done and that evi-
dence of the unlawful warnings and discharge will not
be used as a basis for future personnel actions against
her.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
BRUNSWICK FOOD & DRUG 687
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Post at its Brunswick, Georgia facility, copies of
the attached notice marked "Appendix." 7 Copies of the
notice, on forms provided by the Regional Director for
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicubus places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.