Delchamps, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 2000

330 N.L.R.B. 1310 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
Delchamps, Inc. and International Brotherhood of
Teamsters, Local No. 270 and Wilburn Ray
Young Jr. and Ivy H. Tate and David Aranyosi.
Cases 15–CA–13401, 15–CA–13564, 15–CA–
13642, 15–CA–13673, and 15–CA–14085–1
April 21, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On May 5, 1998, Administrative Law Judge C. Rich-
ard Miserendino issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and Charging Party David Aranyosi
each filed answering briefs.
The National Labor Relations Board has delegated 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,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Delchamps, Inc., Hammond,
Louisiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
Substitute the following for paragraph 2(b).
“(b) Make David Aranyosi, Michael Ledford, Gregory
Clayton, David Tippett, Marvin Jones, Ronald Richard-
son, Joseph LaMonte, Arthur Strahan, Joseph Hanson,
Donald Lester, John Tate, Donald Lee, Eugene Bardwell,
and Cody Fitzgerald whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the decision.”

Charles R. Rogers, Esq., for the General Counsel.
William E. Hester III, Esq. and Barclay D. Beery, Esq., of New
Orleans, Louisiana, for the Respondent.
Julie Richards-Spencer, Esq., of Metairie, Louisiana, for
Charging Party David Aranyosi, et al.

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall 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.
2 Member Hurtgen agrees that there was sufficient and related
8(a)(1) conduct to support the finding of antiunion animus that is nec-
essary to establish an 8(a)(3) violation. However, he notes that the
judge also relied on lawful conduct to support that finding. Member
Hurtgen does not rely on this lawful conduct to establish the “animus”
element of an 8(a)(3) violation.
3 We shall modify the make-whole paragraph of the recommended
Order to accord with standard remedial language.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge. This
case was tried in New Orleans, Louisiana, on May 5–9 and
June 10–11, 1997. Between the period of August 31, 1995, and
August 8, 1996, the first four charges in the above-captioned
case were filed and/or amended (several times) to allege that
during the course of events leading up to a union election on
September 22, 1995, the Respondent committed several viola-
tions of Section 8(a)(1) and (3) of the Act in opposing a union
organizing campaign by the General Truck Drivers, Chauffeurs,
Warehousemen & Helpers, Local 270 (Local 270 or the Union),
which sought to represent the Respondent’s warehouse em-
ployees in Hammond, Louisiana. The charges also alleged that
after the Union was defeated in the election, the Respondent
committed additional violations of Section 8(a)(1) and (3) of
the Act by threatening, disciplining, and/or discharging certain
employees because of their continued union support and/or
protected concerted activity.
On or about September 19, 1996, the Regional Director ap-
proved a settlement agreement disposing of these charges. Less
than 3 weeks after the settlement agreement was approved, the
Respondent discharged 14 employees, many of whom were
engaged in union and/or protected concerted activities. This
prompted the filing of a fifth charge (Case 15–CA–14085) on
October 8, 1996, which subsequently was amended twice, al-
leging that the Respondent unlawfully violated Section 8(a)(3)
of the Act by discharging the 14 employees.
On November 6, 1996, the International Chemical Workers
Union Council/United Food and Commercial Workers, AFL–
CIO (UFCW) filed an election petition seeking to represent the
same warehouse employees. By stipulated agreement, an elec-
tion was held on December 20, 1996, at which time the UFCW
received a majority of the valid ballots cast. However, 15 bal-
lots were challenged by the Board’s agent and 2 ballots were
challenged by the petitioner, UFCW. The Respondent also filed
objections to the election.
On January 30, 1997, the Regional Director issued an order
consolidating cases and revoking settlement agreement, con-
solidated complaint and notice of hearing. An order directing a
hearing on challenged ballots and objections and consolidated
cases was issued on January 31, 1997. The Respondent filed a
timely answer essentially denying the material allegations of
the consolidated complaint.
On April 22, 1997, the petitioner, UFCW, filed a motion to
sever representation case, withdraw petitioner’s ballot chal-
lenges, et al., which the Respondent opposed. The motion was
delegated to me for decision at the hearing. Upon consideration
of the parties’ briefs, and after hearing oral argument on the
issues, I granted the motion for the reasons stated in the record,
and remanded the matter to the Regional Director to determine
the validity of the challenged ballots. The Respondent’s request
for special permission to appeal from my ruling granting the
motion to sever the representation case, was denied by the
Board on May 27, 1997.
The parties have been afforded a full opportunity to appear,
present evidence, examine and cross-examine witnesses, and
file posthearing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
330 NLRB No. 187
DELCHAMPS, INC. 1311
by the General Counsel, Respondent, and counsel for Charging
Party David Aranyosi, et al., I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Hammond, Louisiana, is engaged in the warehous-
ing, transporting, and retail sale of food and other merchandise.
It annually derives gross revenues in excess of $50,000, for
transporting freight from within the State of Louisiana directly
to points outside the State. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Respondent further admits and I find that Local 270 and
the UFCW are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent operates approximately 118 retail food
stores, and 10 liquor stores, located in Florida, Alabama, Mis-
sissippi, and Louisiana. Its distribution center (i.e., warehouse)
is located in Hammond, Louisiana. Up until October 4, 1996,
there was an ice plant within the warehouse, which produced 8-
lb. bags of ice for shipment to the Respondent’s stores. The ice
plant was operated by three employees (one lead person and
two stackers). Up until October 4, 1996, the Respondent also
employed 11 maintenance mechanics in the warehouse, who
were responsible for the service and repair of the refrigeration,
electrical, and conveyor systems.
1. The unsuccessful attempts to organize the ware-
house employees
In 1990, Teamsters Local No. 5, unsuccessfully attempted to
organize the Respondent’s warehouse employees. Ice plant
stacker David Aranyosi was a key union activist. He solicited
union authorization cards, encouraged warehouse employees to
join the Union, and invited them to attend an organizing meet-
ing, which he arranged, with Local 5 Business Agent Douglas
Parr. Despite Aranyosi’s hard efforts, Local 5 was unable to
win a union election.
In spring 1995, a new management team took over the Re-
spondent’s overall operations. Kenneth Easton became director
of the distribution center on or about May 1995, and a few
weeks later, Richard La Trace became the Respondent’s new
president. Around the same time, Aranyosi contacted Rob
Lewis, a business agent for Local 270, to discuss mounting an
union organizing campaign at the warehouse. As a first step,
Aranyosi formed a union organizing committee, along with
coworkers David Tippett, Cynthia Sims, Samuel Lewis, and
Edward Palmer. The Union then sent a certified letter to the
Respondent identifying these employees as union organizers.
The committee members commenced soliciting union authori-
zation cards, and distributed union literature inside and outside
the distribution center. They placed union leaflets in the em-
ployee breakrooms in the grocery and produce departments,
and posted them on the employee bulletin boards. They handed
out leaflets at the entrance to the warehouse driveway, where
they could be observed by anyone entering or leaving the Re-
spondent’s premises, including supervisors and managers.
By June 1995, Local 270’s organizing campaign was fully
implemented. In the early part of the month, the Respondent
placed yellow signs outside the entrance of its driveway, which
read: “No handbilling or solicitation on Delchamps premises.”
Inside the warehouse, smaller signs eventually appeared in the
breakrooms, which advised the employees that any materials
left at the breakroom tables would be confiscated.
Wendall Watts was a supervisor, who oversaw operations in
the ice plant. One day in June, he was observed taking union
literature from the breakroom and removing it from an em-
ployee bulletin board. When Aranyosi heard that Watts had
been seen taking union literature, he and fellow employee, Wil-
liam Ray Young Jr. (Junior Young), confronted Watts by the
receiving office timeclock. Watts did not deny removing the
union literature or taking it from the breakroom. According to
Aranyosi and Young, he simply stated that it was his job to
remove union leaflets because the Respondent’s president,
Richard La Trace (La Trace), had stated that if the Union got
elected, the Respondent would move or close the warehouse
down.
In late June, employee Kevin Coston became more active
with the Union. He distributed union leaflets and began wear-
ing a union pin on his hat. On July 7, he left work after com-
pleting his shift, but realized when he arrived home that he left
his hat with a union pin in the employee changing room. Con-
cerned that the hat and pin might be confiscated, Coston re-
turned to the warehouse after hours to retrieve them. Instead of
parking his vehicle in the employee parking lot, Coston parked
in a restricted area next to the building and went inside. He
returned a few minutes later, but as he began to drive off, Hu-
man Resources Manager David Battle stopped him. Battle
wanted to know why Coston came back to work after hours and
what he was doing in the building. After a brief discussion,
Coston was allowed to leave.
Early the next morning, Supervisor Tony Martin called Cos-
ton into work for a meeting with two other supervisors, Danny
Gilmore and Chuck Germany. Martin said that Easton had left
him a message to fire Coston. After being questioned about
why he was at the warehouse the night before, Coston was sent
home, but was called back to the warehouse a few hours later
for a meeting with Easton. After a brief exchange, Easton told
Coston that employees were not permitted to return work dur-
ing off-hours without permission, and that if he did so again, or
if he parked in a restricted area again, he would be fired.
In mid-August 1995, La Trace met with shifts of employees
at the warehouse for the purpose of explaining the Respon-
dent’s opposition to the Union. He told the employees that he
opposed the Union and that the Respondent was capable of
solving its problems without outside help. He talked about his
prior experiences with a union organizing campaign in Califor-
nia, which resulted in a violent strike. He pointed out to the
employees that he could find replacements for 300 warehouse
employees in no time at all and he said that even if the Union
won an election, the Respondent would not collectively bargain
with it, that he would not back down.
David Aranyosi was accustomed to distributing union litera-
ture in nonworking areas of the warehouse during his breaks. In
September 1995, Supervisor James Athens told Aranyosi that
he only would be allowed to take his breaks in his designated
breakroom in the grocery area or at the entrance to the building.
When Aranyosi asked if he was being restricted to the grocery
department because of his union activity, Athens said that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
did not know, but that he would check with Easton. Later that
day, Easton asked Aranyosi if there was a problem with where
he was told to take his breaks. Aranyosi said that he was a un-
ion organizer in the middle of an organizing campaign, and that
regardless of what anyone said, he was going to continue visit-
ing the produce side of the warehouse during his lunch and
breaks. Easton cautioned Aranyosi about doing so, explaining
that it would be insubordination, if he did. As Easton turned to
leave the room, Aranyosi said that he had already contacted the
NLRB about his right to do so. Easton relented by telling Aran-
yosi that he could go to the produce breakroom, but that he had
to walk around the outside of the building; he could not walk
through any work areas to get there.
2. The events subsequent to the 1995 union election
Local 270 lost the election on September 22, 1995. Two
weeks later, on October 6, 1995, Supervisor Michael Lawley
submitted a letter of resignation after being employed by the
Respondent for more than 20 years. Sometime that morning,
while taking a break with employee Junior Young (a union
supporter), Lawley told him that it was his last day. Around 1
p.m. that afternoon, Lawley beckoned Young to come outside
the building. There, Lawley told Young that all the union or-
ganizers should watch their backs, because he heard Easton say
in a meeting that within 1 year he was going to get rid of them
all.
In November 1995, Aranyosi was called to Easton’s office,
where Easton and Battle were waiting. After complimenting
Aranyosi for the leadership ability he showed during the union
organizing campaign, Easton said that he wanted Aranyosi to
consider taking a supervisory position that would become
available in the near future. Although Aranyosi really was not
interested in a supervisory position, he told Easton he would
think about it. Suspecting some ulterior motive, he asked if
Easton was setting him up to get rid of him because of his un-
ion activity. Both Easton and Battle denied that the supervisory
position was a ploy. Easton said that he wanted Aranyosi to
join his management team. As the meeting progressed, Aran-
yosi pointed out that the employees had lost respect for Easton
because he did not communicate with them. He suggested that
Easton remedy this by holding more meetings with the employ-
ees. Aranyosi also added that he already had contacted the
UFCW about starting another organizing campaign. Easton
discouraged the idea, telling Aranyosi that they did not need a
union at the warehouse and that Respondent would not stand
still for it.
Aranyosi saw Easton’s overture as an opportunity to possibly
settle a number of pending unfair labor practice charges in ex-
change for giving each Charging Party the job of his/her choice.
After discussing the idea with Junior Young, Aranyosi polled
everyone who had a pending unfair labor practice charge to
find out what they wanted in exchange for settling the charges.
He pointed out to them that this was an all or nothing deal, that
is, unless everyone could be satisfied, none of the unfair labor
practices would be settled.
The next step was to meet with Easton to try and work out a
compromise. Junior Young set up a meeting with Easton at
which Aranyosi explained that the employees would withdraw
the unfair labor practice charges, if they were given the posi-
tions that they wanted. Easton did not reject the idea, but a total
package could not be worked out. The only person to be offered
exactly what he wanted was Aranyosi, who declined to take the
job because someone with greater seniority wanted it.
In the meantime, Aranyosi phoned the Respondent’s presi-
dent, Richard La Trace, who was located in Mobile, Alabama.
He asked him if he knew that Easton had offered him a supervi-
sory position. La Trace disclaimed any knowledge of such an
offer. Aranyosi explained to La Trace that Easton did not com-
municate with the employees and that if he was removed as
warehouse director, the unfair labor practices would be dis-
missed and the employees would work with the Respondent.
On the other hand, as long as Easton was running the ware-
house, Aranyosi was going to organize the work force. La
Trace told Aranyosi that he did not want a union running the
warehouse, and that he would like to meet with Aranyosi at the
warehouse the following week.
Instead of La Trace, Battle was sent by his superior, Thomas
Trebesh, senior vice president human resources, who reported
to La Trace, to meet with Aranyosi. In an effort to gain his
confidence, Battle assured Aranyosi that anything he said
would be confidential, and kept from Easton, because he (Bat-
tle) reported to Trebesh. Aranyosi told Battle that the employ-
ees did not like how Easton was running the warehouse. He
reiterated that if the Respondent did not get someone to manage
the warehouse who would communicate with the employees,
they were going to have the UFCW organize the warehouse.
Battle’s response was no different from La Trace’s. He said that
the warehouse did not need a union.
In late November 1995, rumors were circulating that the
Company was being bought out. Aranyosi gathered a group of
employees during the 9 a.m. break to talk about working condi-
tions and the rumors. Outside of the breakroom where the em-
ployees had gathered, Junior Walker phoned Supervisor Watts
asking him to come to the meeting. When he arrived, the em-
ployees began questioning Watts about several issues. They
wanted to know if the Company was being sold and why. They
did not understand why Easton would not discuss their con-
cerns. They complained about the recently initiated combo runs
which shipped meat, produce, and freezer items on one truck.
They also complained about having to tag trucks, a task that
was recently added to some of the leadmen’s duties. Watts had
little to say, other than he needed to talk with Easton and get
back to them.
At the 11 a.m. break, the group assembled again, demanding
to speak to Easton. Watts told them to go back to work because
Easton did not want to talk with them. A few employees re-
mained in the breakroom until their break was over, but every-
one else returned to work.
At 1 p.m., Aranyosi and Junior Young went to see Battle.
They basically put the same questions to him that had been
asked of Watts. They wanted to know if there was any truth to
the story that the Company might be sold and expressed their
displeasure with the combo runs. Aranyosi said that the em-
ployees did not understand why Easton would not meet with
him. He told Battle that as long as Easton maintained that that
kind of attitude, the employees were going to organize with the
UFCW. When Aranyosi asked Battle if he would meet with the
employees, he said he would consider doing so, if everyone
remained calm during the meeting.
The next day, around 11 a.m., Battle met with about 16 em-
ployees in the produce breakroom. After listening to various
employees’ concerns, he pointed out that many of the decisions
which evoked their displeasure had been made at corporate
headquarters in Mobile, Alabama. As the session intensified,
someone used profanity prompting Battle to end the meeting.
DELCHAMPS, INC. 1313
A day or two later, Supervisor Watts spent about 30 minutes
in the ice plant watching Aranyosi and the two other employees
(Mike Ledford and Ed Moore). When the employees shut down
the equipment to take their 9 a.m. break, Watts told them that
they should be bending their knees when they lift the ice bags
off the conveyor belt. Aranyosi asked how a person lifting a
bag off a waist high conveyor belt was supposed to bend his
knees. He even asked Watts to demonstrate, which Watts de-
clined to do. Watts also wanted to know whose books were
laying on a small table in the ice plant, but know one claimed
ownership. He reminded them that personal items should be
kept in their lockers. Finally, he told Aranyosi to make sure he
used the signal horn on the forklift when he backed out of the
freezer door into the corridor.
Two hours later, Ledford was called to Watt’s office, where
he received a verbal warning and a report of conference1 from
Watts for not bending his knees and leaving personal items in a
work area. Returning to the ice plant, he told Aranyosi that
Watts wanted to see him and added, “[Y]ou’re going to get
written up.” Watts and Supervisor Danny Howell were waiting
for Aranyosi when he arrived. They gave him a verbal warning
for not bending his knees, not blowing his horn, and leaving
personal items in a work area.2 Watts asked Aranyosi to sign
the report of conference, which initially he refused to do. In-
stead, he told Watts that he thought he was getting a warning
because of his union activity. Watts denied that union activity
had anything to do with the warning. He also said told Aranyosi
it was company policy to send home an employee who refused
to sign a report of conference. Aranyosi signed his name “under
protest.” Shortly thereafter, he filed an unfair labor practice
charge, a copy of which he mailed to Easton.
About a week later, sanitation employee Ivy Tate was given
a written warning for excessive absenteeism by his supervisor,
Danny Howell. When he refused to sign the written warning, he
was sent home, and eventually was discharged, after a meeting
with Easton.
In late December 1995, Aranyosi was called to Easton’s of-
fice again. In the presence of Battle, Easton offered Aranyosi a
position in the reclaim operations center, located in La Place,
Louisiana, some 40 miles from Hammond. Aranyosi said that
he would like to talk to his wife about the position. A few days
after Christmas, Aranyosi declined the offer. He told Easton
that because of his prior union activity he was afraid that
Easton might be trying to get rid of him. Easton assured him
that was not the case, and stated that other positions would
become available, probably in inventory control.
In January 1996, Easton went to the ice plant to talk with
Ledford. After greeting Aranyosi, Ledford, and Clayton, Easton
told Ledford that there was money in the budget for the ice
plant, and that he wanted Ledford to prepare a list of needed
items. He also told Ledford that he was considering expanding
the ice plant to make it more profitable.
About a month later, Easton called Aranyosi, Ledford, and
Clayton to his office to review an equipment catalog. They
selected some mats and a small plastic dump truck for the ice
plant. Easton stated that he was thinking about adding another
shift to increase ice production. Ledford used this opportunity

1 A conference report is a document, signed by an employee, which
acknowledges the fact that he has been verbally counseled about a
particular infraction.
2 Edward Moore, the other employee working in the ice plant at that
time, also received a warning for not bending his knees.
to ask for freezer pay, which was a 15-cent differential paid to
employees who worked in the freezer, because of the cold
conditions in which they worked. Easton said he did not see
any reason why they should not receive freezer pay and prom-
ised to look into the matter. A week later, Supervisor Watts told
the ice plant employees that their request for freezer pay had
been granted.
Around the same time, February 1996, Ledford received a
phone call from Supervisor Calvin Sealy, a close friend. He
said that it would be in Ledford’s best interest to find another
job in the warehouse because Easton was heard saying that he
was going to get rid of David Aranyosi, one way or another,
regardless of who he had to “take out” with him.3
In May 1996, forklift operator Tim Hill asked Aranyosi for
assistance in addressing employee concerns that the forklift
drivers had with management. As explained by Hill, the drivers
were being required to stack more pallets and their work was
being closely monitored by an new inventory control person
named Joanne Alack. Aranyosi and Ledford told Hill that the
forklift drivers should have a meeting with their supervisor.
The ice plant employees agreed to attend the meeting to show
their support for the forklift drivers. Encouraged by the ice
plant employees, Hill asked the forklift supervisor, Kurt Doug-
las, to attend a meeting, but Supervisor Watts attended instead.
He told everyone present that the meeting involved forklift
drivers only. When Aranyosi nevertheless attempted to attend
the meeting, he was sent back to work.
One weekend in June 1996, welding repairs were made to
the refrigeration units. Several employees, including Aranyosi,
complained about feeling ill. Aranyosi heard that fellow em-
ployee Oscar Eden had died over the weekend, and assumed
that his death was related to the welding fumes. Ledford en-
couraged Aranyosi to report the incident to the Occupational
Safety & Health Administration (OSHA). David Trippett, a
refrigeration maintenance mechanic, agreed. He had previously
told Easton in a safety meeting that the Respondent’s evacua-
tion procedure for ammonia fumes was inadequate. After the
three employees put together a list of items to report to OSHA,4
Aranyosi called OSHA stating that there had been a death in the
warehouse because of welding fumes. He also filed an OSHA
complaint, prompting an investigation which resulted in the
Respondent being cited for a variety of OSHA violations, in-
cluding not maintaining respirators to OSHA standards, failure
to maintain safety nets under the conveyor system, and failure
to follow an evacuation procedure when the ammonia alarms
sound.
Around the same time, Easton called a meeting of the perish-
able department employees (ice plant, produce, and freezer
employees) to explain an incentive plan. If the employees in a
particular section finished their work early (up to 2 hours
early), they would be allowed to go home early. Even before
the incentive plan was implemented, the three ice plant em-
ployees routinely kept the ice plant running through their
breaks, which enabled them to finish early. However, during
peak production periods in the summer, Lester Reed, a hauler,
3 Sealy was called by the Respondent to testify, but did not rebut
Ledford’s account of their phone conversation or deny that such a con-
versation took place.
4 In the meantime, Aranoysi and Young made a flyer entitled “I
Came Here To Work—Not To Die,” which they handed it out to em-
ployees, placed on the forklifts, and posted on the employee bulletin
board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
was sent to work in the ice plant, so that two employees could
go on break without shutting down the ice maker. When the
incentive plan went into effect, however, Reed was no longer
allowed to relieve the ice plant employees during their breaks.
In July through August 1996, the ice plant employees met
with Watts to discuss the continued need for Reed’s help during
breaks. When Watts insisted that Reed was needed on the
docks, Ledford tried to explain that without Reed’s help, the ice
plant employees were being unfairly excluded from participat-
ing in the incentive plan. His efforts had limited success, how-
ever, because Reed was allowed to help during breaks on only a
few other occasions.
In August, Easton met with the perishable department em-
ployees to announce a pay increase. There would be an hourly
wage increase of 25 cents for leadpersons and forklift opera-
tors, 15 cents for stackers (including Aranyosi and Clayton in
the ice plant), and 15 cents for sanitation workers. There would
be no pay increase for maintenance department employees.
Easton said that the increases were based on a survey con-
ducted of warehouses in the geographic area, which revealed
that the Respondent’s warehouse employees were among the
highest paid in the area. Junior Young questioned the accuracy
of the survey, and opined that if there was a union, the Respon-
dent would have to open its books to support what was said.
Easton disputed the remark.
The maintenance department employees were extremely up-
set about not receiving any pay increase at all. Tippett and co-
worker, Joey LaMonte asked their supervisor, Myron Hall, to
arrange a meeting with Easton, which he agreed to do. Two
days later, Easton, Hall, and Supervisor Kurt Douglas met with
the maintenance department employees. The employees ques-
tioned the basis for denying them a pay increase. Tippett spe-
cifically asked Easton to identify the wage data relied upon by
the Respondent, but Easton said he would have to check with
headquarters in Mobile because he did not have that informa-
tion. In Easton’s presence, LaMonte commented that if the
Union tried to organize again, he knew what he was going to
do. After the meeting, a few other maintenance employees ech-
oed LaMonte’s remark during their break. As LaMonte, Tip-
pett, and Supervisor Hall stood smoking on the ramp into the
maintenance department, coworkers Dick Strahan and John
Long lamented that they tried to convince the warehouse em-
ployees to vote for the Union in September 1995. LaMonte and
John Tate stated that if there was another organizing campaign,
they would support a union. Supervisor Hall quietly put out his
cigarette and left.
The ice plant employees were also dissatisfied. They wanted
a 25-cent increase because they used a forklift to double stack
ice in the freezer during the peak production months. When
they discussed their demand with Supervisor Watts, he disputed
the basis for the request by pointing out that they did not use a
forklift continuously. Failing to gain his support, they took up
the matter with Battle, who also disagreed with their rationale
for seeking a higher wage increase. He told them that stacking
the ice pallets in the freezer was part of their job. Aranyosi and
Clayton told Battle that if they were not paid the higher in-
crease they would no longer work as leadpersons on weekends
or perform any maintenance work on the ice machine, if a prob-
lem developed. Battle said that he would speak with Easton, but
before doing so he obtained their assurance that their com-
plaints evolved around the pay raises and nothing else.
A few days later, Easton, Battle, Watts, and Douglas, met
with Aranyosi, Ledford, and Clayton to discuss their pay in-
crease. When Easton attempted to explain the basis for their
wage increase, Aranyosi added that, in addition to using a fork-
lift, he and Clayton did a lot of extra work too. Ledford joined
the discussion arguing in favor of a higher wage increase for
Aranyosi and Clayton because of their extra efforts in perform-
ing routine maintenance on the ice machine. Easton was unper-
suaded.
Two days later, several employees, including the ice plant
employees, were in the breakroom commiserating over the
inadequacies of their wage increases. Ledford told Aranyosi
that it was time to organize a union. He demanded that Aran-
yosi take the authorization cards that he had been collecting,
and file an election petition. Aranyosi wanted to wait. He
thought that the Board’s Regional Office needed more time to
try to settle the pending unfair labor practices. Ledford was
adamant. He wanted to file a petition right away. As he spoke,
Junior Young motioned to the group to be quiet. In the reflec-
tion of the glass door leading to the breakroom, he saw Vince
Showers, a supervisor, standing outside the room. Everyone in
the breakroom stopped talking as Showers entered. After
Showers purchased something from a vending machine, he
made small talk with Lester Reed, and the group dispersed.
In mid-September 1996, Watts held a monthly crew meeting
for the perishable department (produce, freezer, and ice plant).
He told everyone that there would be a new rule requiring em-
ployees to change into their workclothes, and then clock in. The
ice plant employees had always been allowed to clock in, go to
their locker room, and change into jumpsuits before starting
work. Aranyosi asked for a meeting with Battle to discuss the
change. Instead of meeting with Battle, however, Aranyosi,
Ledford, and Clayton were called to Easton’s office, where
Easton, Watts, and Douglas were waiting. Easton began by
telling the three ice plant employees that from then on, he
wanted them to discuss their concerns with him, instead of
calling Battle. He said that Mobile (i.e., Respondent’s corporate
offices) did not need to know everything that was going on in
the warehouse. He was capable of handling any problems.
Ledford spoke up saying that it was unfair to change the dress
practice, since they had been clocking in first and then chang-
ing for years. Easton agreed, telling them they could continue
the original practice of clocking in first, then dressing.
But Ledford continued to vent. He told Easton that there
were other problems with the produce department that Easton
probably was not even aware of. Specifically, Ledford said that
leadpersons in produce were getting cash from the lumpers
(individuals that unload trucks, who are not employed by the
Respondent). He also said that some of the leadpersons were
lumping themselves for extra cash, while they were on com-
pany time. When Ledford accused the produce inspectors of
other illegal improprieties, Easton quickly admonished him
about spreading false rumors and told him that they would talk
about it another time. Ledford testified that at that point he felt
that maybe he had said too much.
In late September to early October, Associate Relations
Manager Renee Dexter, from the Respondent’s corporate head-
quarters in Mobile, toured the warehouse. Ledford invited her
to walk through the ice plant, where he introduced her to Aran-
yosi, who was stacking ice, and David Tippett, who was work-
ing on the refrigeration system. They proceeded to tell Dexter
all that they perceived to be wrong with the warehouse.
DELCHAMPS, INC. 1315
A few days later, on October 4, Aranyosi, Young, and Clay-
ton were called to Easton’s office. Easton told them that the
Respondent was closing down the ice plant because it could
buy ice cheaper than it could be made. He explained that their
jobs were being eliminated and that they were being termi-
nated. All three were surprised, particularly in light of Easton’s
prior comments about adding another ice machine to expand
the ice plant. Aranyosi stated out loud that the Respondent had
eliminated the whole ice plant, just to get rid of him. Even
though Easton told him that it was a business decision which
was made in Mobile, Aranyosi accused Easton of being vindic-
tive, warning him “what goes around, comes around.” Clayton
was equally perturbed about not receiving any advanced warn-
ing. Ledford expressed disbelief that the Respondent would
terminate someone like himself, who had been cross-trained to
perform many jobs in the warehouse.
Accompanied by Supervisors Pittman and Showers, they
were escorted to Battle’s office to pick up their final paychecks.
Aranyosi asked Battle to give Clayton and Ledford other jobs
in the warehouse, but he declined, stating that this was a busi-
ness decision. From there, the three ice plant employees were
escorted to the ice plant to pick up their personal belongings
and then out the door. The reason given for their discharges
was job elimination.
On or about the same day, October 4, a similar scenario was
played out with 11 maintenance department employees, who
were called to Easton’s office. They were told that “due to eco-
nomic reasons” and because the Respondent was “looking for a
little more expertise” in the refrigeration, electrical, and con-
veyor maintenance areas, they were being terminated. Their
jobs were being contracted out. They were taken to Battle’s
office to pick up their final paychecks, allowed to collect their
personal belongings, and escorted out of the warehouse. The
stated reason for their termination was job elimination.
One month later, on November 6, 1996, the UFCW filed an
election petition seeking to represent the Union. A few days
before the election, which was held on December 20, Renee
Dexter toured the warehouse again, accompanied by Battle,
asking employees what they thought about the Company, and
telling them that having a union could be make it costly too for
the Respondent to operate the warehouse.
B. Analysis and Findings
1. The 8(a)(3) violations
a. Analytical framework
In a typical section 8(a)(3) discrimination case, the General
Counsel’s evidence must support a reasonable inference that
protected concerted activity was a motivating factor in the Em-
ployer’s decision.5 Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Specifically, the General Counsel must establish union activity,
knowledge, animus or hostility, and adverse action which tends
to encourage or discourage union activity. Farmer Bros. Co.,
303 NLRB 638, 649 (1991). Since employer motivation is a
factual question, which rarely will be proved by direct evi-
dence, unlawful motivation may be inferred from the total cir-
cumstances proved. Fluor Daniel, Inc., 304 NLRB 970 (1991).
Once the General Counsel has satisfied this evidentiary burden,
the Employer must persuasively establish by a preponderance

5 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
of the evidence that it would have made the same decision,
even in the absence of union activity. T & J Trucking Co., 316
NLRB 771 (1995).
Relying on Delchamps, Inc. v. NLRB, 585 F.2d 91, 94 (5th
Cir. 1978), and its progeny, the Respondent argues that the
General Counsel has not met his evidentiary burden because the
evidence does not show that the managerial officials responsi-
ble for making the decisions to outsource the ice plant and
maintenance functions (and to discharge the 14 employees) had
knowledge of their individual involvement in union and/or
protected concerted activity. But a showing that the Employer
had knowledge of union activities of each discharged employee
is not necessary, where, as here, an employer lays off or elimi-
nates a portion of the work force for the purpose of discourag-
ing union support or to retaliate against its employees because
of the Union activities of some employees. See Ballou Brick
Co. v. NLRB, 798 F.2d 339, 342 (8th Cir. 1986); Birch Run
Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1179–
1180 (6th Cir. 1985); Dillingham Marine & Mfg. Co. v. NLRB,
610 F.2d 319, 321 (5th Cir. 1980); M.S.P. Industries v. NLRB,
568 F.2d 166, 176 (10th Cir. 1977). “Common sense dictates
that when employees are discharged for individual reasons,
then the Employer’s knowledge for each employee’s union
activity and the Employer’s motivation for each discharge are
the relevant inquires; but when the Employer makes a single
decision to fire 15 people to [discourage union support], then
the relevant inquiry is the Employer’s motivation for that single
decision.” Dillingham Marine, supra, 610 F.2d at 321.
The evidence in this case shows that shortly before October
4, 1996, La Trace, made the decision to “outsource” the ice
plant, thereby discharging the ice plant employees, Aranyosi,
Ledford, and Clayton. Simultaneously, Easton, in collaboration
with La Trace, made the decision to outsource the refrigeration,
electrical, and conveyor maintenance service functions, thereby
discharging maintenance mechanics, David Tippett, Marvin
Jones, Ronald Richardson, Joseph LaMonte, Arthur Strahan,
Joseph Hanson, Donald Lester, John Tate, Donald Lee, Eugene
Bardwell, and Cody Fitzgerald. The evidence also shows that at
least half the employees discharged were active union support-
ers, some of whom were known to the decision makers for their
union activity, and that the decision makers opposed the un-
ionization of the warehouse. The evidence also shows that the
decision to outsource certain functions came at a time when the
employees performing those functions had recently complained
to OSHA about safety violations and/or were particularly dis-
satisfied with their pay increases or lack thereof. Finally, the
evidence shows that the decisions were made very shortly after
the unfair labor practice settlement agreement was approved,
the election bar had expired, and just before another union or-
ganizing campaign was about to begin. The evidence taken as a
whole, therefore, supports a reasonable inference that the deci-
sions to outsource the ice plant department and maintenance
mechanic functions were motivated by a desire to discourage
support for the Union and to retaliate against those who ac-
tively supported the Union.
(1) The ice plant employees
Even applying the typical Wright Line analysis, the evidence
establishes that La Trace, who purportedly made the decision to
close the ice plant, knew firsthand from Aranyosi that he was
an active union supporter, who intended to organize a union at
the warehouse. According to Aranyosi, he told La Trace in a
phone conversation in November 1995, that as long as Easton
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
was in charge of the warehouse, Aranyosi would continue try-
ing to unionize the warehouse. The evidence also supports a
reasonable inference that La Trace had indirect knowledge of
Aranyosi’s intentions and union activity from David Battle. It
was Battle, who was sent by Trebesh to meet with Aranyosi in
place of La Trace. It was Battle, who told Aranyosi that any-
thing they discussed would bypass Easton because Battle re-
ported directly to Trebesh. This evidence shows that there was
a line of communication extending from Battle through Trebesh
to La Trace, and vice versa, and that Battle effectively was the
corporate “eyes, ears, [to a certain extent voice]” at the ware-
house.
In an incredulous attempt to downplay his familiarity with
Aranyosi and his union activity, La Trace nonchalantly testified
on direct examination that he had heard Aranyosi’s name men-
tioned a couple of times and that he was aware that a person
named Aranyosi was involved in the Union’s attempt to organ-
ize the warehouse. On cross-examination, however, his detailed
knowledge of Aranyosi (and his union activity) became evi-
dent. La Trace acknowledged that he had heard that Aranyosi
had been an election observer for the Union in the 1995 union
election and that he knew Aranyosi was on the union organiz-
ing committee. He conceded that he had heard Aranyosi’s name
mentioned in connection with the pending unfair labor prac-
tices, but said he did not attach any significance to it because he
had heard a lot of names in that timeframe. La Trace also testi-
fied that he had been told that Aranyosi was offered a position
in the reclamation center.6 As cross-examination continued, La
Trace reluctantly admitted that he had met Aranyosi twice at
the warehouse and also that he spoke with Aranyosi on the
phone one time—but could not recall what was said.
Thus, contrary to the impression that he initially sought to
foster, the evidence establishes that La Trace was very much
aware of Aranyosi and his union activities. The evidence also
supports a reasonable inference that he was kept apprised of
Aranyosi’s union activities by Battle, who Aranyosi sought out
with increasing frequency over time, whenever he became dis-
satisfied with a managerial decision made by Easton. In fact by
September 1996, Aranyosi had sought out Battle with such
regularity that Easton told him and the other ice plant employ-
ees that he did not want them going to Battle anymore because
he did not want Mobile knowing everything that went on in the
warehouse.
The evidence also supports a reasonable inference that La
Trace knew about the union activities of Aranyosi through dis-
cussions with Easton, who reported directly to him. Easton
testified that he and La Trace discussed the ice plant by phone,
and La Trace confirmed the same. There is no question that
Easton was well aware that Aranyosi supported the Union.
Shortly before the September 1995 union election, Aranosyi
defied an order by Easton to refrain from distributing union
leaflets in other than two designated areas. After telling Easton
that he was a union organizer in the middle of a union cam-
paign, he pointed out to Easton that he already had contacted

6 This admission, standing alone, calls into question La Trace’s ve-
racity because it supports a reasonable inference that as early as De-
cember 1995, La Trace was being kept apprised of Aranoysi’s union
activities. Otherwise, why would the president of a large company be
kept apprised, or even care, that a ice bag stacker in a warehouse 150
miles away from corporate headquarters might be transferred to a more
remote location—unless the ice bag stacker was the most visible and
vocal union activist at the warehouse.
the NLRB Regional Office to find out if he had the right to do
so. Aranyosi also drew attention to his union affiliation in No-
vember 1995, when he declined to join Easton’s “management
team” and when he filed a unfair labor practice charge in De-
cember, after receiving a verbal warning. Even more promi-
nent was the role Aranyosi played in January 1996, when he
attempted to settle all the pending unfair labor practice charges
in exchange for transferring the alleged discriminatees to jobs
of their choice. The evidence therefore supports a reasonable
inference that at least some of Aranyosi’s union activity, known
to Easton, was passed along to his supervisor, La Trace, in the
course of their conversations about the ice plant.
The evidence also reflects that it was more likely, than not,
that La Trace knew, through Easton and Battle, that the other
ice plant employees, Ledford and Clayton, stood behind Aran-
yosi and the Union. The evidence establishes that the ice plant
employees looked after one and other, as well as the other
workers in the warehouse. Ledford, who at one time aspired to
become a supervisor, was a visible and vocal spokesperson for
Aranyosi and Clayton on issues concerning their working con-
ditions and pay. In January 1996, he sought and obtained a 15-
cent freezer pay differential for Aranyosi and Clayton because
they worked inside the freezer. A few months later, Ledford
argued to Watts that without Reed’s help, the ice plant employ-
ees were being unfairly excluded from the “leave early” incen-
tive program which was recently implemented. In August 1996,
Ledford openly supported a demand made by Aranyosi and
Clayton for forklift pay, and argued to Easton that they de-
served the higher wage because of their extra efforts in per-
forming routine maintenance on the ice machine. In September
1996, Ledford vented his frustrations with management by
telling Easton about some allegedly questionable practices tak-
ing place on the receiving dock, which quickly invoked
Easton’s ire. The evidence therefore supports a reasonable in-
ference that by his comments and conduct in open support of
his fellow ice plant workers, Ledford made it known to Easton
that he supported his coworkers, and if another union organiz-
ing began, he would support the union effort.
Even though Gregory Clayton was less visible and less vocal
than Aranyosi or Ledford, the evidence shows that Clayton
supported Aranyosi and the Union. Accordingly to Aranyosi’s
unrebutted testimony, in attempting to settle the pending unfair
labor practice charges, he sought a better job for Clayton, who
did not have a unfair labor practice charge pending, because
Clayton steadfastly supported him and the Union. A reasonable
inference therefore can be made that Easton was aware of Clay-
ton’s union support because his name was discussed, along
with the alleged discriminatees, in the context of trying to settle
their unfair labor practice charges and because of the fact that
he worked closely with Aranyosi and Ledford.
Finally, the evidence shows that Aranyosi, Ledford, and
Clayton were not only supportive of the Union and each other,
they supported the other warehouse employees, who engaged in
protected concerted activities. In November 1995, Aranyosi
gathered the warehouse employees during their breaks to talk
about working conditions and the rumor circulating that the
Company was being sold. Subsequently, the forklift drivers
turned to the ice plant employees for advice and support, who
told them to demand a meeting with their supervisor, and then
tried to attend the forklift driver meeting, even though they had
no stake in the dispute. In July 1996, Aranyosi and Ledford
conferred with refrigeration maintenance mechanic David Tip-
DELCHAMPS, INC. 1317
pett about contacting OSHA, passed out leaflets addressing
health and safety concerns, and notified OSHA, which led to an
investigation followed by citations for various OSHA viola-
tions.
What the evidence shows therefore is that La Trace knew di-
rectly, and/or indirectly through Battle and Easton, that Aran-
yosi was a strong union supporter, and that a reasonable infer-
ence exists that he knew indirectly through Easton and Battle
that the other ice plant employees, Ledford and Clayton, sup-
ported Aranyosi and the Union. The evidence also support a
reasonable inference that La Trace knew indirectly that together
the three ice plant employees were advocates for the protected
concerted activities of the other warehouse employees.
(2) The refrigeration, electrical, and conveyor main-
tenance employees
According to the evidence, Easton, with the approval of La
Trace, made the decision to outsource the refrigeration, electri-
cal, and conveyor maintenance functions, resulting in the dis-
charge of 11 maintenance mechanics. The Respondent argues
that aside from Tippett, most of these individuals were only
minimally involved in union activities, which consisted of
wearing union buttons. A few, like LaMonte, Tate, and Fitzger-
ald made prounion comments in the presence of their supervi-
sor, Myron Hall, but Easton testified that at no time in 1996 did
Hall ever mention to him that he had heard or overheard the
maintenance employees making prounion comments. The Re-
spondent therefore argues that no basis exists for imputing
Hall’s knowledge of union support to the decision maker,
Easton.
But as pointed out above, a showing of knowledge of each
individual’s union or protected activity is not required because
the theory of Dillingham Marine, supra, focuses upon the Em-
ployer’s motive in ordering mass discharges, rather than the
prounion or antiunion status of particular employees. Id. at 321;
accord: Birch Run Welding & Fabricating, Inc., supra, 761
F.2d at 1180. The rationale is that a general action by an em-
ployer to discourage union activity or retaliate against the work
force because of the union support of some, impedes the exer-
cise of Section 7 rights just as effectively as adverse action
taken against known union supporters. The theory is viable
even though neutral or antiunion employees are also discharged
in the process. Merchants Truck Line, Inc., supra, 577 F.2d at
1016.
Several factors support a reasonable inference that the elimi-
nation of the maintenance functions was motivated by a desire
to discourage support for the Union. The first of which is the
Respondent’s awareness of increasing dissatisfaction among
the maintenance employees with the way they were treated with
respect to pay. The evidence shows that refrigeration mainte-
nance mechanic David Tippett told Easton in early August
1996,7 that the maintenance employees were dissatisfied with
pay and working conditions. Other maintenance employees
expressed similar dissatisfaction during a meeting with Easton
in late August to September 1996. Among those, the mainte-
nance employees complained that it was unfair to deny them
any pay increase at all and pointed out that some employees

7 In late July 1996, Tippett was given an employee of the month
award, which he made into a little bib, he called the “suck butt bib.”
Tippett rode around the warehouse on a motorized cart wearing the bib.
As a result, he was called to Easton’s office and reprimanded for his
conduct.
were bringing home $40–50 a week less than what they were
earning 5 years earlier.
In addition, the evidence shows that Easton was aware that a
another organizing drive was likely and that there was support
among the maintenance mechanics for the Union. When Tippett
was called to Easton’s office in August 1996, in connection
with the “suck butt bib” incident, he relayed to Easton that the
maintenance mechanic felt mistreated and intimated that an-
other union organizing campaign was likely. Tippett told
Easton that unions were making a comeback because of the
way employers were unfairly treating their employees. In the
pay raise meeting, LaMonte stated within earshot of Easton,
that if the Union came back to organize, he knows what he
would do. Easton also knew from the September 1995 union
campaign that some of the maintenance mechanics who at-
tended the meeting had supported the Union in the past. John
Tate had distributed union pins and literature, and in a one-to-
one meeting told Easton that he was in favor of having a union.
Cody Fitzgerald had a heated argument about the Union in
1995 with coworker Mark Stevens, in the presence of Supervi-
sor Hall.
The evidence supports a reasonable inference that Easton
knew from the union election only 11 months before, and from
the recent comments of the maintenance employees,8 that an-
other union organizing campaign was very likely, and that sev-
eral maintenance employees supported the Union. These fac-
tors, coupled with the evidence showing that Easton and La
Trace opposed the Union, as well as the evidence showing that
the statutory election bar9 would soon expire, support a reason-
able inference that the Respondent’s decided to eliminate cer-
tain maintenance functions in order to discourage support for
the Union.
(3) Animus
Further proof that the decisions to eliminate certain functions
in the warehouse (and discharge 14 employees) was motivated
by a desire to discourage union support is the uncontradicted
evidence showing that the Respondent opposed having a union
at the warehouse. In the summer 1995, La Trace met on 2 days
with warehouse employees to dissuade them from voting for
the Union. The uncontradicted testimony of employees, Cyn-
thia Sims, Samuel Lewis, Harvey Dickerson, and Kelly Ken-
nedy, discloses that on one of those days La Trace unequivo-
cally stated that (1) the Company did not want or need a union
in the warehouse, (2) the Respondent could solve any problems
that existed without outside help, and (3) if the Union were
elected, the Respondent did not have to, and would not, bargain
with it. Sims recalled that La Trace said, “[H]e would have the
last word.” Dickerson and Kennedy testified that La Trace
stated that individual wages and benefits would go down to
zero and that is where negotiations would begin. La Trace did
not deny making these statements. And on cross-examination,
he admitted that he gave two speeches in which he told the
employees that he opposed the Union and that unionization was
1996.
8 In addition to the comments by the maintenance mechanics, the
evidence shows that Aranoysi had openly and repeatedly vowed to
continue his efforts to unionize the warehouse, so long as Easton was
the warehouse director. In response, La Trace and his subordinate
managers had articulated their opposition to a union and Easton vowed
to discharge Aranoysi and anyone else who stood in his way by
September
9 Sec. 9(c)(3) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
not necessary at the warehouse. The evidence therefore estab-
lishes that La Trace took a very hard line in opposing the Un-
ion, and that he went as far as to imply to the employees that it
would be futile for them to elect a union.
Employee Lewis also recalled La Trace saying that the ware-
house employees were a drop in the bucket, who he could
replace and that they would not get their jobs back. Employee
Sims likewise remembered La Trace saying that the warehouse
employees were no more than a drop in the bucket, who could
be easily replaced. She testified that La Trace said that “if we
was to walk out, that he could replace us in two weeks with 600
employees.” Employee Dickerson testified that La Trace said
that in the event of a strike the employees would be fired and
replaced.
The Respondent did not ask La Trace any questions about
the comments he made at the employee meeting. Rather, in an
effort to rebut the employees’ testimony, the Respondent asked
Easton and Battle to describe what they heard La Trace say to
the employees. Easton responded, “I think he [La Trace] said
that if the Union got in and there was a strike we’d have to
replace those people while they were out on strike. We were
going to run the facility.”(Tr. 1224–1225.) Easton denied that
La Trace said that the employees who went out on strike would
be fired or that a strike could cost them their jobs. Instead, he
expounded that in the course of relating his prior experiences
with unions, La Trace spoke of a strike out west, where some
employees were fired for violence. Battle’s testimony really did
not add anything. He recalled La Trace saying that he had to
operate the business and hopefully there would be no strikes.
I find that the collective testimonies of the other employee
witnesses do not support Dickerson’s recollection that La Trace
said that the employees would be fired in the event of a strike.
However, I also find that the cumulative evidence establishes
that La Trace gave the employees the impression that they were
expendable, and if there was a strike, they could be easily re-
placed. No one asserts, and the evidence does not show, that La
Trace explained to the employees that they could or would be
recalled after a strike. In the context of telling the employees
that the Respondent did not have to bargain with the Union,
even if it was elected, and in light of the uncontradicted testi-
mony that La Trace said that the 300 warehouse employees
were nothing more than a drop in the bucket, the evidence sup-
ports a reasonable inference that the impression he sought, and
did, foster was that the employees would not be brought back to
work. I therefore find that La Trace’s comments are further
evidence of antiunion animus.
Evidence of animus is also established by La Trace’s contin-
ued opposition to the Union after the Local 270 was defeated in
September 1995. In his unrebutted testimony, Aranyosi said
that La Trace told him in their telephone conversation in late
November 1995, that he did not want a union in the warehouse.
Easton and Battle also told Aranyosi subsequently that they did
not need a union in the warehouse.
Several comments attributed to certain supervisors also re-
flect a strong aversion to Aranyosi’s union activity, as well as
opposition to the Union. According to the uncontradicted testi-
mony of Leadman Michael Ledford, he received a phone call
from Supervisor Calvin Sealy in January–February 1996, tell-
ing him that it was in his best interest to find another job in the
warehouse because Easton said that he was going to get rid of
David Aranyosi, one way or another, regardless of who he had
to take out with him. Although Sealy was called to testify by
the Respondent about escorting employee Harvey Dickerson to
a meeting with Easton, he did not deny that he phoned Ledford
or any part of his testimony. The evidence supports a reason-
able inference that Easton was determined to discharge Aran-
yosi because of his union activity, even if it meant firing the
other ice plant employees.
In a similar vein, employee Junior Young testified that in
October 1995, Dock Supervisor Michael Lawley beckoned him
to come outside the building at which time he told Young that
all union organizers should watch their backs, because he had
heard Easton say in a meeting that within 1 year he was going
to get rid of them all. Respondent’s counsel objected to the
admission of this testimony on the grounds of hearsay. He ar-
gued that the statement purportedly was made by Lawley on his
last day of employment with Respondent, after he was told he
could go home early that day. The Respondent asserts that the
statement therefore was outside the scope of Fed.R.Evid.
801(d)(2) because it was not made by a “party agent” during
the existence of the employment relationship.
The evidence shows that Lawley, who had been employed
by the Respondent for 20 years, submitted a letter on October 6,
1995, resigning effective that day because of a pending shift
change. According to Easton, Lawley presented the letter to
him sometime between 7:30–9 a.m. on October 6, in the pres-
ence of Perishable Manager Bobby Trest. About 1 hour after
Lawley left his office, Easton told Trest to let Lawley go home
for the day. But when Easton was asked if he was aware
whether Lawley had remained at the facility the rest of the day,
he never answered the question. Rather, he responded in the
following manner: “Some time after he left my office, I‘m go-
ing to say an hour about, I told Bobby to go and let him go for
the day. He wasn’t going to be productive on his last day so go
ahead and let him go home.” (Tr. 1227.) But there is no evi-
dence that Trest ever carried out that directive and there is no
evidence that Lawley did not finish out the day. Instead,
Young’s uncontradicted testimony establishes that Lawley
normally worked a 6:30 a.m.–2:30 p.m. shift, that he made the
statement about the union organizers watching their backs to
Young around 1 p.m. that day, and that sometime before then,
Young and Lawley took their break together, at which time
Lawley told him it was going to be his last day at work. It
seems rather odd that a supervisor, who allegedly was told to
go home at around 10 a.m., if he was told, would take a break,
and hang around another 3 hours, talking to employees, in the
presence of the same manager (Bobby Trest) who was told to
send him home at least 3 hours earlier. I therefore find that the
Respondent has failed to show that the employment relation-
ship had ceased to exist at the time the statement was made.
Rather, the evidence shows that Supervisor Lawley was on the
Employer’s premises and that the statement was made during
his normal working hours in and/or around a working area.
Therefore it is not hearsay and it is admissible.
The Respondent nevertheless argues that Young should not
be believed because he subsequently was terminated in Febru-
ary 1997, for allegedly falsifying documents. Young denied any
wrong doing at the hearing and testified that he had retained an
attorney to represent him in a proceeding involving his termina-
tion. In light of the contested allegations surrounding the true
reason for his termination, I am not inclined to attach any sig-
nificance to this evidence for purposes of impeaching his verac-
ity. I do find, based on my observation of the witness, that
Young was a credible witness and that therefore the comments
DELCHAMPS, INC. 1319
he attributed to Lawley further show that the Respondent, by
and through Easton, opposed the Union.
Employee Israel Williams also testified about a conversation
he had with Easton shortly after the 14 warehouse employees
were discharged. He recalled coming out the bathroom by the
main office day and encountering Easton in the hall. Since it
was just the two of them, he asked Easton for the real reason
the 14 employees were discharged. According to Williams,
Easton told him that they were discharged because of their
union activity, which was causing a commotion in the ware-
house. Easton also said that the employees involved with the
1996 organizing campaign eventually would be let go too.
Easton denied ever having such a conversation with Williams
and further denied that the 14 employees were discharged be-
cause of their union activities. The Respondent points out that
in an earlier group meeting, Williams asked Easton whether the
14 employees were let go because an election was coming up to
which Easton responded that the question did not make any
sense because he only knew of 2 individuals, out of the 14, who
were union organizers. At that point, Williams and other em-
ployee expressed disbelief with Easton’s response, and inti-
mated that he knew more than he was admitting to. The Re-
spondent nevertheless argues that it is highly unlikely that
Easton would answer the question one way in front of a group
of employees, and then answer it another way in private con-
versation with Williams.
Despite the Respondent’s assertions to the contrary, it is
plausible that Easton would tell Williams something different,
in a one-to-one conversation with no one else around, than what
he told a group, especially if he wanted to deter Williams from
voting for the Union in the upcoming election. On the other
hand, it is implausible that he would admit in public to violat-
ing the Act, while antiunion campaign was underway. What
adds credence to Williams’ testimony is that the comments
attributed to Easton are consistent with other similar statements
attributed to him via Supervisors Sealy and Lawley, and are
also consistent with Easton’s repeated assertions that he did not
need or want a union in the warehouse. I find that Williams was
a credible witness, with adequate recall, and I therefore credit
his testimony.
Employee Harvey Dickerson, who was a visible union sup-
porter, also testified about a private encounter that he had with
Easton sometime during “the week before” the December 20,
1996 union election. According to Dickerson, he was sum-
moned by Supervisor Calvin Sealy to a small office in the sani-
tation department about 7:30 p.m. one evening for a one-on-one
meeting with Easton. After complimenting Dickerson on his
leadership abilities and educational background, Easton pur-
portedly asked Dickerson to think about joining his manage-
ment team. According to Dickerson, Easton said that unions
were bad business and cost people their jobs. He added that the
Respondent would not tolerate a union in the warehouse and if
a union were elected, the Respondent would opt to move the
facility out of Louisiana. Supervisor Calvin Sealy testified that
he had no recollection of escorting anyone who he did not su-
pervise (which presumably included Dickerson) to a meeting
with Easton. He also said that he did not escort Dickerson to a
meeting with Easton on December 11, and that he was not at
work past 6 p.m. on December 11 or 12, 1996, which was ap-
proximately 1 week before the union election. Easton denied
ever meeting privately with Dickerson or discussing with him
the possibility of becoming a supervisor or telling him that he
knew that the 14 who were fired were on the union side.
Although not free from doubt, the greater weight of the evi-
dence, and particularly Sealy’s testimony, supports Easton’s
denial that the incident did not occur. I therefore credit Easton’s
testimony.
In addition to the evidence of animus already discussed, the
record reflects that soon after the 1995 union campaign began,
the Respondent promulgated a no-solicitation rule, which re-
sulted in the posting of a yellow sign outside the entrance of the
warehouse driveway, prohibiting any solicitation on the Re-
spondent’s property, as well as the posting of signs on the em-
ployee bulletin boards inside the building stating that any mate-
rials left in the breakroom would be confiscated. The undis-
puted evidence discloses that prior to the 1995 organizing
drive, there was no restriction placed on soliciting at the ware-
house, and even after the no-solicitation rule went into effect in
1995, employees were nevertheless allowed to sell raffle tickets
or chances.
The uncontradicted evidence also shows that Watts and other
supervisors were observed removing union leaflets from em-
ployee breakroom and bulletin boards, and that Supervisor
Mike Lawley refused to allow employee Kelly Kennedy to
place union material on an employee bulletin board.
With respect to Watts, Aranyosi and Young both testified
that he told them that it was his job to take down the materials
and that La Trace had said if the Union was elected he would
close or move the warehouse. The Respondent called Watts as a
witness for the sole purpose of denying that he said, or La
Trace said, that he would close the warehouse. He was not
asked by Respondent’s counsel, and therefore did not say,
whether La Trace told him he would move the warehouse if the
Union was elected. He was not asked and therefore did not
deny taking down the union literature or having a conversation
with either Aranyosi or Young about his actions.
The selective and very limited testimony of Watts leaves un-
contradicted the testimony that La Trace said he would “move”
the facility if the Union was elected. Aranyosi and Young both
were credible witnesses and I credit their testimonies. The Re-
spondent’s no solicitation policy and Watts’ remarks are further
evidence of union animus.
Based on all of the foregoing, I therefore find that the Gen-
eral Counsel has satisfied his initial evidentiary burden. The
Respondent must now show that legitimate business reasons
existed for its decisions, and that it would have made the same
decision even in the absence of union activity.
b. The Respondent’s defenses
(1) The ice plant
The Respondent argues that it closed the ice plant because it
was less costly to purchase ice from an outside vendor than to
produce ice in the warehouse. La Trace testified that the first
time he toured the ice plant in June 1995, he thought that it was
too small to adequately supply ice to the Respondent’s 118
stores. La Trace said that although the Respondent produced
and stored ice at a leased storage facility in Mobile, Alabama,
in anticipation of peak periods (i.e., summer months) and the
hurricane season, demand invariably outstripped supply, forc-
ing the Respondent to purchase ice from outside vendors. La
Trace testified that the transporting and storing of ice resulted
in significant additional expenses associated with the produc-
tion of ice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
La Trace testified that although he repeatedly asked Easton
to obtain competitive bids from outside vendors for ice, his
requests were ignored. Eventually he directed Thomas Robbins,
senior vice president marketing, to solicit competitive bids from
outside vendors for purchasing ice. In late September 1996,
pursuant to Robbins’ instructions, the merchandising depart-
ment obtained a bid from Sciana Ice Company, a vendor, which
could provide the Respondent with ice at a cost of 18.8 cents
per bag versus 23.5 cents per bag if produced in the ice plant.
According to a written report, dated September 30, 1996, the
Respondent could save $150,000 per year by buying ice from
an outside vendor. La Trace testified that after discussing the
report with Robbins, he informed Easton that he was closing
the ice plant.
While the evidence establishes that there was a cost savings
associated with purchasing ice from an outside vendor, the
Respondent has not shown with reasonable certainty the
amount of the cost savings. According to the September 30
report, which La Trace discussed with Robbins, the annual
savings amounted to $150,000. However, the evidence reflects
that the 18.8-cent-per-bag quote did not include the cost of the
Delchamps plastic bag, which according to Robbins was .0365
cents, or the cost of warehousing the ice in Hammonds and
delivering it from there to its stores. When these costs are
added, the actual cost of purchasing ice is 22.02 cents per bag
of ice, and not 18.8 cents per bag. The actual savings per bag
therefore is .013, rather than .047 cents per bag, which made
the annual projected savings $41,600, rather than $150,000.
Although La Trace testified that he was unsure whether the
18.8 cents per bag quote included the cost of the bag, the evi-
dence shows that Robbins was aware of this and other added
individual costs per bag, when he went over the report with La
Trace. The evidence therefore supports a reasonable inference
that the same information was available and/or provided to La
Trace, when he discussed the matter with Robbins, before he
informed Easton that he was closing the ice plant. That being
the case, the evidence also supports a reasonable inference that
La Trace knew and/or had reason to know that the projected
annual savings of $150,000 on its face was overstated.
According to La Trace and Robbins, the September 30 report
is inaccurate in another respect. Both testified that the cost of
producing ice in the warehouse was actually greater than 23.5
cents per bag. La Trace testified that there were additional
“dramatic costs” associated with producing ice such as, the cost
of storing the ice at Christian Salverson Storage in Mobile,
Alabama, the costs associated with fuel and transporting the ice
from Hammond to Mobile and back to Hammond, and the cost
of purchasing additional ice from outside vendors during peak
and emergency periods. Neither La Trace or Robbins knew the
actual costs of these items, but Robbins was sure he had seen
some figures at some point in time.
Adding further to the confusion is the fact that not all ice
produced in the warehouse was transported to and stored in
Mobile. Therefore, not every bag of produced ice had added-on
costs. But because there is no evidence showing how many
bags of produced ice were transported and stored in Mobile in a
year, there is no way to determine from the evidence the total
extra costs, even if there was specific evidence explaining each
of the extra costs. In addition, La Trace testified on cross-
examination that some of the ice transported back to Hammond
for distribution was carried by empty trucks returning to the
warehouse after delivering other products to the stores, which
at best would have resulted in a shared expense with some other
department.
Robbins’ testimony did little to clarify the issue. He testified
that prior to October 1996, the Respondent was charging its
stores 30 cents a bag for ice, even though it cost only 23.5 cents
per bag to produce, Robbins attributed the difference to the
transpiration and storage costs associated with transporting the
ice back and forth from Mobile. But he did not know what
those individual costs were and his testimony regarding the 30-
cent figure was uncorroborated.
In addition, the evidence does not show, exactly when prior
to October 1996, the Respondent was charging its stores 30
cents a bag. This is significant because the evidence shows that
the cost per bag of produced ice greatly fluctuated from month-
to-month. For example, at the end of June 1996, the cost of ice
produced was only 14.4 cents per bag, which means that the
delivered price per bag during that month would have been
significantly less than 30 cents.
Thus, with respect to determining the amount of cost savings
in closing the ice plant, the Respondent’s evidence raises more
questions than it answers. La Trace’s testimony about “dra-
matic” added costs is generalized and uncorroborated, and
Robbins’ uncorroborated testimony about 30 cents per bag
effectively is hearsay, which while admitted into the record
without objection, has little or no probative value in determin-
ing how much more than 23.4 cents per bag it cost to deliver
produced ice to a store.
In sum, while the evidence reflects that there was a cost sav-
ings associated with closing the ice plant, the Respondent has
not shown with any reasonable certainty the amount of the cost
savings. While that does not necessarily mean that the decision
to outsource was not legitimate, it does raise some serious
doubts about whether the same decision would have been made
in the absence of union and/or concerted activity.
(2) The maintenance mechanics
The evidence reflects that cost savings were less of a factor
in the decision to outsource the electrical, conveyor, and refrig-
eration maintenance functions. Easton vacillated at first by
stating that “cost was the primary factor driving the decision to
outsouce,” but quickly changed his testimony by saying that it
was motivated by the need to get higher quality service. La
Trace essentially conceded that some of the outsource contracts
did not result in any savings. For example, the evidence reflects
that there was little or no cost savings associated with the out-
sourcing of the electrical maintenance function.
The credible evidence also reflects very little cost savings as-
sociated with outsourcing the refrigeration maintenance func-
tion. Easton testified that in addition to saving the yearly wages
of 1-1/2 refrigeration maintenance men, which he calculated
using their W-2 forms, there was an additional savings of ap-
proximately 25 percent of their annual wages attributable to
benefits. His calculations are reflected in Respondent’s Exhibit
R-9. However, Easton testified that he did not know what the
25-percent benefits savings was based on because he got the
information over the telephone from Human Resources Vice
President Trebesh. No evidence was submitted to corroborate
the estimate. The Respondent sought to introduce a summary
comparison of the costs between contracting out and keeping
the functions in-house (R. Exh. R-12), but it was not allowed
into evidence. Neither Easton (nor the Respondent’s counsel)
could properly authenticate the document. No one knew for
sure who had prepared it, although the Respondent’s counsel
DELCHAMPS, INC. 1321
thought that another law firm had prepared the document in
response to the unfair labor practice charge. No attempt was
made to introduce any underlying documentation for the sum-
mary. Nor did the Respondent attempt to introduce the W-2
forms10 to verify that the wage calculation was correct. The
General Counsel also pointed out that although the summary
fell within the scope of his subpoena request, it had not been
provided. For all of the these reasons, Respondent’s Exhibit R-
12 was not admitted into the record.11 Easton’s testimony that
there was a 25-percent benefits savings, therefore, is unsubstan-
tiated hearsay, which standing alone has little probative value.12
Based on wages alone, the evidence discloses a negligible cost
savings in contracting out the refrigeration function.
With respect to the conveyor maintenance function, La
Trace’s testimony considered in tandem with a careful reading
of the contractor’s contract (C.P. Exh. 3) supports a reasonable
inference that there likewise was no cost savings associated
with the outsourcing of the conveyor maintenance function.
Instead, the Respondent primarily argues that the electrical,
conveyor belt, and refrigeration maintenance services were
“outsourced” in order to provide better service through more
qualified personnel. In support of the Respondent’s position, La
Trace and Easton testified that the Respondent, for example,
did not have a certified electrician. Easton said stated that after
a power outage in late June 1996, he sought a competitive bid
for electrical maintenance because the Respondent’s electrician,
Eugene Bardwell, was incapable of repairing the problem or
maintaining the electrical switch. Even though the type of re-
pair and maintenance involved only required about 10–15 per-
cent of Bardwell’s time, the evidence shows, and I find, that the
impact of the electrical outage on the Respondent’s business
potentially was significant, thereby justifying the decision for
outsourcing.
With respect to the refrigeration maintenance function, La
Trace testified that the outsourcing was prompted by continu-
ous ammonia leaks that endangered the work force. But the
evidence does not establish that there actually were ammonia
leaks, or if there were, that they presented any health concerns.
Rather, the evidence shows that the ammonia alarms frequently
sounded, but no one could determine why. Refrigeration me-
chanic Tippett opined that the fumes from the forklifts may
have contributed to the alarms going off, but there is no evi-
dence to support that theory. As far as safety is concerned, an
OSHA citation was issued because, among other things, the
employees failed to “heed” the ammonia alarms by evacuating

10 In his brief, p. 42, fn. 3, the General Counsel inaccurately states
that the W-2 forms were rejected. Those forms were never identified
and offered into evidence. In addition, I am denying the General Coun-
sel’s request that I should find that the wages of the maintenance em-
ployees were higher than the cost of the contractors, for the reason that
the Respondent did not produce certain tax forms. That issue was not
raised at the hearing and it is unclear which tax forms the General
Counsel is referring to.
11 I see no reason to change my ruling, nor do I see any reason to
grant the General Counsel’s renewed motion to strike all of Easton’s
testimony concerning costs simply because the Respondent did not
provide the summary in response to his subpoena.
12 R. Exh. R-9 also contains a handwritten notation that there would
be an additional $25,000 in savings during the first year of the contrac-
tor contract for installation of a new ammonia alert system, but no such
provision is contained in the contractor’s proposal (C.P. Exh. 5). I
therefore attach no significance and give no weight to this uncorrobo-
rated reference to a $25,000 savings.
the building. The evidence (C.P. Exh. 1) establishes, however,
that the violation was abated at the time of the OSHA inspec-
tion (7/22/96–8/16/96), which supports a reasonable inference
that the ammonia leaks/alarms no longer posed a potential dan-
ger to employees, after mid-August 1996. Thus, La Trace’s
testimony that the ammonia leaks endangered the work force is
not accurate, is unsubstantiated, and is suspicious.
The Respondent nevertheless implies that the frequent
alarms were result of Tippett’s inability to detect and correct
the problem, and therefore he was not up to the job. But the
evidence shows that the Respondent had planned to install a
new ammonia alert system, which supports a reasonable infer-
ence that the problem lie with the equipment and not with Tip-
pett. To be sure, neither Easton nor La Trace cited any other
particular problems with Tippett’s work and according to Tip-
pett’s uncontracted testimony, there was none. Nor does the
Respondent explain how an employee, like Tippett, could be
name “Employee of the Month,” in July 1996, and be termi-
nated in October 1996, because he was not providing quality
service.
In the absence of any other evidence reflecting a problem
with Tippett’s ability to satisfactorily perform the refrigeration
maintenance work, I find that the articulated reason for out-
sourcing the refrigeration maintenance position is pretextual.
As to the conveyor belt maintenance function, Easton testi-
fied that his decision was prompted by the continuous break-
down of the conveyor belt system, which he opined could have
been avoided with proper preventive maintenance. He also
pointed to the inability of the conveyor mechanics to install
new reflector mirrors on the system, which required shutting
down the system for several hours in order to detect and correct
the problem. Thus, the evidence on its face establishes that
there was a legitimate reason for outsourcing the conveyor belt
function.
The evidence, however, is not free from doubt. What is trou-
bling about the decision to outsource the maintenance functions
(all three) is the fact that never once did the immediate supervi-
sor, Myron Hall, tell or even suggest to Easton that the mechan-
ics performing these functions were not qualified to do so.
Whenever a problem was brought to his attention, he responded
that he would take care of it. And despite Easton’s testimony
that the service being provided was not satisfactory, there is no
evidence that Hall or any of the maintenance mechanics were
disciplined, counseled, or even sent for training during their
employment tenure with Respondent. The fact that the Respon-
dent did nothing, short of eliminating these functions, to correct
the quality of service raises some questions about the decisions
themselves. I nevertheless find that the Respondent had a le-
gitimate reason for outsourcing the electrical and conveyor
functions.
But even if the Respondent had established a legitimate
business reason for closing the ice plant and outsourcing all
three maintenance functions (electrical, refrigeration, and con-
veyor), the evidence taken as whole does not support the con-
clusion that the same decisions would have been made in the
absence of protected concerted activity. First, the timing of
decisions and the implementation of them is highly suspect. On
September 19, 1996, the Regional Director approved the set-
tlement of several pending unfair labor practice charges; on
September 22, 1996, the 1-year election bar expired; and on or
about September 30, 1996, La Trace notified Easton that he
was going to shut down the ice plant. Almost simultaneously,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
Easton told La Trace that he had been thinking about outsourc-
ing the electrical, refrigeration and conveyor maintenance func-
tions, so they might as well do both at once. A few days later,
on or about October 4, 1996, 14 employees (including the prin-
cipal union activists and union supporters) were discharged.
The evidence shows that in less than 2 weeks after the election
bar expired and the unfair labor practice charges were settled,
the Respondent eliminated four warehouse functions, and along
with that, the two principal union protagonists and a number of
union supporters. When viewed in isolation, the articulated
reasons for the Respondent’s action appear to be legitimate.
When viewed in the context of what was going on at the same
time, the reasons for the actions are less persuasive. Where, as
here, the circumstances surrounding the discharge of several
union supporters seems otherwise innocent, significant weight
may be given to the timing of the decision and its implementa-
tion. Merchants Truck Line, Inc. v. NLRB, 577 F.2d 1011, 1016
(5th Cir. 1978).
To put the matter into perspective, the evidence shows that
the Respondent had the information and opportunity to under-
take the same action long before the election bar was due to
expire. La Trace testified that the first time he toured the ice
plant in June 1995, it occurred to him that the ice plant was too
small for a company the size of the Respondent. From the out-
set he questioned whether the ice plant was economically justi-
fiable, told Easton to consider obtaining competitive bids for
ice production, and continued to push Easton to justify its exis-
tence. Why then did La Trace, who was generally intent on
reducing costs, tolerate Easton’s “recalcitrance” for more than a
year without taking action against Easton or action to obtain a
competitive bid sooner. There is nothing in the record which
shows that La Trace could not have taken the same action in
July, August, or even September 1995, that he took in the fall
of 1996.13 Rather, he waited until September 1996, as the expi-
ration date of the election bar drew closer, to close the ice plant.
Easton similarly had the information and opportunity to out-
source the conveyor and refrigeration function almost 1 year
earlier. The evidence shows that in November 1995, he ob-
tained had the same quote from Engineered Refrigeration Sys-
tems, Inc. (ERS) for outsourcing the refrigeration work and the
same quote from Southern Material Handling Specialist for
outsourcing the conveyor belt maintenance work. While Easton
said that he broached the subject with La Trace by memo and
phone in November 1996, the evidence shows that he waited 10
months before taking any definitive action on the same infor-
mation.
In an effort to explain the delay, Easton said that he decided
to revisit the outsourcing issue after a power outage in late June
1996. But he also testified on cross-examination that the same
power outage problem occurred almost 1 year earlier in August
1995, and at that time he knew that Bardwell, the electrician,
was not capable of correcting the problem. But instead of ob-
taining a quote for outsourcing the electrical function in Sep-
tember, October, or November 1995, which is when he ob-
tained the refrigeration and conveyor quotes, he did nothing,
until September 1996, right before the election bar was about to
expire.

13 To the contrary, the evidence discloses that the Respondent was
continuously seeking competitive bids with all of its products in an
effort to lower costs. It therefore would have been almost effortless for
La Trace or Easton to obtain a competitive bid for ice in the normal
course of business long before September 1996.
The sum total of the evidence therefore discloses that the Re-
spondent had the same information and opportunity to under-
take the same actions long before September 1996.
Nor does the evidence show that the Respondent was com-
pelled for economic reasons to close the ice plant or outsource
the maintenance functions when it did. There is no evidence
that the ice plant was not making a profit. Rather, the evidence
shows that Easton thought the ice plant was a profitable com-
ponent of the warehouse, and that he had obtained an estimate
in May 1996, to expand production to make increase profitabil-
ity.14 Nor is there any evidence that other exigent economic
circumstances warranted outsourcing the maintenance functions
at the exact same time.
In addition to the timing of the action, the conflicting testi-
monies of La Trace and Easton further draws into question
whether the same decisions would have been made, when they
were made, in the absence of union activity. In explaining the
rationale for closing the ice plant, La Trace said that he chal-
lenged Easton to justify the economic existence of the ice plant
and as time progressed he pursued the issue harder and harder
with Easton. He finally told Easton that he was taking it upon
himself to get a competitive bid for obtaining ice from a ven-
dor. But Easton denied he was instructed to reduce costs by
closing the ice plant. On cross-examination he testified as fol-
lows:

Q. During that time when he made that first statement
to you about reducing costs, did Mr. La Trace indicate to
you that the thought that a way to reduce costs would be to
close the air (sic) plant?
A. No, he did not.
Q. Do you recall, sir, subsequent to that initial discus-
sion with Mr. La Trace, him ever instructing you to start
looking into closing the ice plant?
A. No.
Q. Do you recall him ever giving you any instructions
to close the ice plant other than the ones he gave you in
September of 1996?
A. No.
Q. Do you recall Mr. La Trace ever ever telling you
that you should try to find other vendors for the ice plant?
A. No.
Q. Do you recall Mr. La Trace ever ordering you to
take action to look at the cost involved in the ice plant
manufacturing facility?
A. No. [Tr. 1243.]

Easton went as far as to testify that La Trace never gave him
any specific instructions about cutting costs related to the ice
plant prior to September 30, 1996.
While La Trace opined that Easton was “recalcitrant” and
“dragging his feet,” the overall vidence shows that Easton
dutifully attempted to carry out La Trace’s general instructions
to cut costs in the warehouse by obtaining bids to outsource the
refrigeration and conveyor maintenance functions in November
1995, by sending them to La Trace in a timely manner, by dis-
cussing them with him over the phone, and by following up
with a reminder memo, and then waiting for further instructions
which never came. If anything, the evidence shows that it was
14 The evidence reflects that even after La Trace decided to close the
ice plant, Easton contacted ERS to determine if the May 1996 estimate
was still valid.
DELCHAMPS, INC. 1323
Easton pressing La Trace to take action to reduce costs, rather
than the other way around.
Perhaps the most troubling aspect of the Respondent’s evi-
dence is La Trace’s reluctance to acknowledge that he knew
Aranyosi, and his outright denial that he knew of anyone in the
ice plant who supported the Union, prior to closing that facility.
On direct examination, La Trace was asked:

Q. Prior to making the decision to close the ice plant,
did you know that any employee or employees in the ice
plant had engaged in union activities?
A. Not to my knowledge.
Q. Prior to making the decision to close the ice plant,
did you know an employee by the name of David Aran-
yosi?
A. I believe I had heard that name a couple of times
previous to this period of time. [Tr. 1077.]

On cross-examination, La Trace testified that he was aware
of Aranyosi almost a year before when there was some union
activity in the warehouse, that he may have heard that Aranyosi
was on the union organizing committee, that he knew Aranyosi
was a union observer during the 1995 election, that he knew
Aranyosi was offered a job in the reclaim center, that he may
have heard his name mentioned in connection with the unfair
labor practice charges, and that he met Aranyosi twice and
spoke with him on the phone once. La Trace’s refusal to admit
the extent of his knowledge of union activity in the ice plant, as
well as the extent of his familiarity with Aranyosi and his union
activity, raises serious credibility issues and supports a reason-
able inference that he was trying to conceal his true motive for
closing the ice plant, because his true motive was unlawful.
Fluor Daniel, Inc., 304 NLRB 970 (1991).
In light of the timing of the Respondent’s decisions, the fact
that the same information and opportunity to act was available
long before September 1996, the fact that there was no reason
compelling the Respondent to implement its decision when it
did, and the fact that the Respondent adamantly opposed the
Union, I find that even where the decisions to outsource a func-
tion are legitimate on their face, the same decisions would not
have been made in the absence of union activity. I therefore
find that the Respondent violated Section 8(a)(3) of the Act by
discharging David Aranyosi, Michael Ledford, Gregory Clay-
ton, David Tippett, Marvin Jones, Ronald Richardson, Joseph
Lamote, Arthur Strahan, Joseph Hanson, Donald Lester, John
Tate, Donald Lee, Eugene Bardwell, and Cody Fitzgerald.
2. The presettlement 8(a)(3) violations
(a) Ivy Tate discharge
Paragraph 21 of the complaint alleges that employee Ivy
Tate was discharged on December 14, 1995, because of his
union activity in violation of Section 8(a)(3) of the Act. At page
35 of its brief, the Respondent essentially concedes, and I find,
that the General Counsel has satisfied his initial evidentiary
burden under the Wright Line standard. The Respondent argues,
however, and I agree, that the greater weight of the evidence
shows that Ivy Tate was discharged for nondiscriminatory rea-
sons.
No one disputes that Ivy Tate was called to the office of Su-
pervisor Daniel Howell in December 1995, to receive a warn-
ing for excessive absenteeism or that the warning was unwar-
ranted. The issue is whether Ivy Tate legitimately refused to
sign the warning and whether his refusal to do so, standing
alone, resulted in his discharge. Tate testified that he refused to
sign the warning, when he met with Howell and leadman Leroy
Davis, and in another separate meeting with Howell, because of
a large blank space in the middle of the form. He said that he
offered to sign the document if he could place an “X” in the
space, and if he could have a copy, but Howell would not per-
mit it. Tate further testified that when he met with Howell,
Battle, and Easton, he was shown a different form, which was
complete, and which he agreed to sign, after explaining why he
declined to sign the original form.
Howell and Davis denied that Ivy Tate asked to place an “X”
on the original form, which Howell identified as Respondent’s
Exhibit R-21. No large blank spaces appear on that form. How-
ell stated that after Ivy Tate left, he reviewed his records, added
the dates (which amounted to one more than he initially
thought), and then again asked Ivy Tate to sign the form, but he
still refused. Howell rewrote the warning to add the additional
date and make it look neat (R. Exh. R-5), and turned the matter
over to Battle, who arranged a meeting with Easton, Howell,
Battle, and Ivy Tate.
The evidence shows that the updated form, Respondent’s
Exhibit R-5, is substantially similar to Respondent’s Exhibit
R-21. Howell, Battle, and Easton all testified that during their
meeting with Ivy Tate he did not offer to sign the form, which
places Ivy Tate’s credibility in question.
The evidence shows that the Respondent has a policy of re-
quiring employees to sign disciplinary reports, and that at least
one other employee was terminated prior to Ivy Tate for refus-
ing to do so. The Respondent’s actions were consistent with its
policy and practice. I therefore find that Ivy Tate was dis-
charged for nondiscriminatory reasons and I shall recommend
that the allegations contained in paragraph 21 of the complaint
be dismissed.
(b) Kevin Coston suspension
Paragraph 19 of the complaint alleges that employee Kevin
Coston was suspended for 5 hours on July 5, 1995, because of
his union activity in violation of Section 8(a)(3) of the Act. The
evidence shows that Coston was a visible member of the union
organizing committee in June 1995, who wore a union button,
and handed out union leaflets inside and outside of the ware-
house. More than once he distributed union literature in the
breakroom in presence of his immediate supervisor, Tony Mar-
tin. His union support was therefore known to the Respondent’s
management official, who implemented the disciplinary action
taken against him.
The evidence also shows that on July 4, 1995, Coston re-
turned to work during off-duty hours to retrieve a cap with a
union pin. He parked in a restricted parking area, and upon
leaving was stopped and questioned by David Battle, who was
filling-in as receiving supervisor that evening. The following
morning, he was called to work by his supervisor, questioned
about being at the warehouse the night before, and sent home.
A few hours later, he was called back to work for a meeting
with Easton, who told him that if he ever returned to the ware-
house during nonworking hours without permission, or if he
ever parked in a restricted area again, he would be fired. Coston
estimated that he lost 5 overtime hours as a result the Respon-
dent’s action. While the evidence is not overwhelming, I never-
theless find that the General Counsel has minimally satisfied
his initial evidentiary burden.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1324
The countervailing evidence shows, and no one disputes, that
Coston returned to work during nonworking hours, without
permission, parked in a restricted parking area, and entered the
warehouse. The countervailing evidence also shows, and no
one disputes, that the Respondent had a policy of prohibiting
employees from returning to work during nonworking hours
without permission. Coston however testified that he was not
aware of the Respondent’s policy. And in an attempt to show
that he had been treated differently because of union activity,
he said that he had seen other employees return to the ware-
house during nonworking hours (primarily to pick up their pay-
checks). Coston conceded, however, that prior to July 4, he had
overheard some supervisors in another department talking
about the Respondent prohibiting employees from returning to
work to pick up their paychecks, because too many were doing
so. Contrary to his assertions, the evidence therefore supports a
reasonable inference that he was aware of the prohibition on
returning to work during nonworking hours without permission.
He had also seen other employees park in the restricted area,
but there is no evidence that the Respondent knew of these
incidents and/or failed to take action. To the contrary, Battle
said that he had no knowledge of any such violations.
Thus, the evidence shows that Coston was in effect verbally
warned for nondiscriminatory reasons. I therefore shall recom-
mend that the allegations of paragraph 19 of the complaint be
dismissed.
(c) The restrictions on Aranyosi’s movement
Paragraph 20 of the complaint alleges that on September 5,
1995, the Respondent unlawfully restricted David Aranyosi’s
movement within the warehouse in violation of Section 8(a)(3)
of the Act. The undisputed evidence shows that during his
breaks Aranyosi distributed union literature in nonworking
areas of the warehouse. While doing so, he was told by Super-
visor James Athens that he would have to take his breaks in
either of two designated areas close to the ice plant. When
Aranyosi complained that he was being restricted because of
his union activity, Easton intervened, told Aranyosi that he
would be cited for insubordination if he went outside the desig-
nated break areas, but reversed his decision when Aranyosi told
him that he had already contacted the NLRB Regional Office.
The evidence supports a reasonable inference that the Respon-
dent sought to limit Aranyosi’s union activity throughout the
plant during nonworking time in nonworking areas by restrict-
ing his access to those areas. I find that by discriminating
against him with respect to terms and conditions of employ-
ment because of his union activity, the Respondent violated
Section 8(a)(3) of the Act.
(d) Aranyosi’s verbal warning
Paragraphs 14 and 15 of the complaint allege that after orga-
nizing a series of employee meetings during breaks on Decem-
ber 5, 6, and 7, 1995, to discuss pay and working conditions,
and after insisting that Easton meet with the employees to dis-
cuss these matters, Aranyosi was issued a verbal warning on
December 8, 1995, for failing to bend his knees while lifting ice
bags, failing to honk the forklift horn before proceeding into the
corridor, and leaving personal items in the work area.15 The

15 Aranyosi was one of three ice plant employees who received
warnings for similar, but not exactly the same, infractions. Although he
did not deny that he failed to bend his knees or honk the horn, he ques-
tioned whether it was possible to bend knees when lifting from waist
Respondent does not dispute that Aranyosi engaged in the
above-described protected concerted activity or that he was
given a warning (i.e., a written report of conference). Rather, it
argues that Aranyosi violated general safety rules, which were
posted, about honking horns and bending knees when lifting
objects in the warehouse. It also argues that he and other em-
ployees were told by Supervisor Watts about 3 weeks before
the incident to bend their knees while lifting. Watts did not
testify about the circumstances surrounding the warning and
Aranyosi denied receiving any instructions from him about
bending his knees prior to December 8. The failure of Watts to
testify about this matter warrants an adverse inference that his
testimony would not have supported the Respondent’s asser-
tions that he instructed Aranyosi to bend his knees. Woodlands
Health Center, 325 NLRB 351 (1998).
The countervailing evidence therefore barely establishes that
the Respondent had legitimate reasons for disciplining Aran-
yosi. Even so, the real issue is whether it would have under-
taken disciplinary action in the absence of Aranyosi’s union
and protected concerted activities. To properly answer the ques-
tion, the disciplinary action cannot be viewed in isolation. In
this regard, the evidence shows that the events that occurred on
December 5, 6, and 7, where the culmination of a series of
events, which singularly focused attention on Aranyosi’s union
support. Only a few weeks before the warning was issued,
Aranyosi told Easton he was not interested in becoming a su-
pervisor, and in the same conversation he told him that he had
contacted the UFCW about organizing the warehouse employ-
ees. A few days later, Aranyosi phoned the Respondent’s
President, La Trace, to tell him that so long as Easton was man-
aging the warehouse, he was going to try to unionize the facil-
ity. He repeated that comment to Battle the following week,
and about the same time sought to broker a settlement agree-
ment involving all of the pending unfair labor practice charges
with Easton. This all took place within approximately 3–4 week
period before the warning. The evidence shows a crescendo of
protected concerted activity, which reached a peak on Decem-
ber 5, 6, and 7, when Aranyosi, single handedly, got the em-
ployees together during their breaks to talk about pay, “combo
runs,” and other terms and conditions of employment.
While there is no dispute that Aranyosi did not bend his
knees when lifting the ice bags or honk his horn when proceed-
ing into the corridor, the evidence supports a reasonable infer-
ence that the respondent chose to enforce the rules on the day
immediately after Battle met with the employees in order to
discourage Aranyosi’s increasing protected concerted activity.
I therefore find that the disciplinary action would not have been
taken in the absence of Aranyosi’s union activities, and that the
Respondent violated Section 8(a)(3) of the Act by giving Aran-
yosi a verbal warning on December 8, 1995.
3. The 8(a)(1) violations
Four presettlement violations of Section 8(a)(1) are alleged
in the complaint. Paragraph 7 alleges that Supervisor Watts told
Aranyosi and Junior Young in June 1995, that if the Union was
elected, the Respondent’s president, La Trace, would close the
warehouse. Paragraphs 8, 9, and 12 assert that shortly after
Local 270 began organizing in June 1995, the Respondent
posted a no-solicitation sign along the entrance to the ware-
house; posted signs in the breakroom stating that anything left

level and he disclaimed any ownership or other interest in the reading
materials that were found on a small table in the corner of the ice plant.
DELCHAMPS, INC. 1325
on tables after break would be confiscated; and that certain
supervisors removed union literature from employee bulletin
boards, while allowing nonunion literature to remain. A dis-
cussion of the evidence relating to each violation appears above
in section B,1,a,(3) and therefore will not be repeated. My find-
ings and the reasons are as follows.
(a) Wendall Watts’ threat of closing the warehouse
I credit the testimony of Aranyosi and Young that Watts told
them that La Trace had said that if the Union was elected he
would close or move the warehouse. Their individual recollec-
tions of details was satisfactory, their independent testimonies
were consistent, and they presented themselves as believable
witnesses. Although Watts denied that he said, or that La Trace
told him, that the warehouse would be closed, if the Union was
elected, his testimony was very selective, and he did not deny
that La Trace told him that he would “move” the warehouse.
Moreover, when La Trace testified, he did not deny making
either remark. The failure of La Trace to deny making the
comments warrants an adverse inference that his testimony
would not have corroborated Watt’s testimony or supported the
Respondent’s position. Woodlands Health Center, supra. The
greater weight of the credible evidence therefore establishes
that Watts did threaten that the warehouse would be closed or
moved if the Union was elected. I therefore find that the threat
of closing and/or moving the warehouse violated Section
8(a)(1) of the Act.
(b) No-solicitation rule and removal of union literature
The Respondent presented very little, if any, evidence to dis-
pute the allegations in paragraphs 8, 9, and 10, other than to
have Battle testify that as of May 1997, the no-solicitation signs
were not posted outside the warehouse. The Respondent instead
argues that the testimonies of various unspecified witnesses
should not be believed, because their testimonies are contradic-
tory, generally exaggerated, and the product of faulty recollec-
tion. I do not agree. The evidence taken as a whole, which is
largely undisputed, shows that after Local 270 began to organ-
ize, the Respondent posted no-solicitations signs at its entrance,
warned employees not to leave materials in the breakroom,
confiscated union literature left behind, and removed union
literature from employee bulletin boards, while allowing non-
union literature to remain. The evidence also shows that while
the no-solicitation rules were in effect, employees were allowed
to sell tickets, candies for charities, and products for Amway, as
they had done prior to the inception of the 1995 union organiz-
ing campaign. I therefore find that the Respondent conduct
violated Section 8(a)(1) of the Act by promulgating and main-
taining a no-solicitation policy.16
(c) La Trace’s antiunion campaign threats
The undisputed evidence establishes that during his anti-
union campaign meetings with the warehouse employees, La
Trace stated that (1) he did not want or need a union in the
warehouse, (2) that the Respondent could solve any problems
that existed without outside help, and (3) if the Union was
elected, the Respondent did not have to, and would not, bargain
collectively. His remarks reflect more than a hard line in op-
posing the Union. They imply to the employees that it would
be futile for them to elect a union. While not alleged in the

16 The evidence does not show that the Respondent continued to post
no-solicitation signs outside the warehouse after April 1996.
complaint, I find that these remarks are closely related and
sufficiently warrant a separate 8(a)(1) violation.
Although the evidence does not establish that La Trace spe-
cifically “threatened its employees with termination if they
engaged in an economic strike,” as alleged in paragraph 11, his
comments about easily replacing the employees, in the context
of telling them that he opposed the Union and in the context of
stating that he would not bargain collectively, was an implicit
threat that if there was a strike they would be replaced, and that
they would not be brought back to work. I therefore find that
these remarks by La Trace constituted an unlawful threat in
violation of Section 8(a)(1) of the Act.
(d) Mike Lawley’s alleged unspecified threat
For the reasons delineated in section B,1,a,(3), above, I
credit Young’s testimony that Lawley told him that all union
organizers should watch their backs because Easton was going
to get rid of them in 1 year. I also find that Lawley was a su-
pervisor when he made the statement. But that does not neces-
sarily establish that Lawley’s parting comments to Young were
a threat intended to interfere with any employee’s statutory
rights. The evidence supports a reasonable inference that Law-
ley was on good terms with the employees. Ledford testified
that they were friends and Young testified that he took his
break with Lawley on his last day at work. A few hours later,
Lawley made it a point to call Young out of the building to tell
him what he had overheard Easton say. It was not communi-
cated in a threatening manner or in the close confines of a su-
pervisor’s office or in connection with anything that Young or
had said or had done. Instead, the evidence reasonably shows
that Lawley waited to communicate to Young some friendly
advice, that is, “protect your back.” I therefore shall recom-
mend that the allegations of paragraph 13 of the complaint be
dismissed.
4. The remaining postsettlement violations
(a) Rene Dexter’s threatening remarks
The complaint alleges at paragraph 17, that in mid-December
1996, a few days before the 1996 union election, Associate
Relations Manager Renee Dexter toured the warehouse telling
the employees that if the Union was elected, the warehouse
would close. The evidence shows that Dexter visited the ware-
house in December 1996 as part of the Respondent’s 1996 anti-
union campaign. She was accompanied by Battle, who intro-
duced her to DeIsrael Williams. He testified that Dexter asked
him how the Company was doing and what he thought of the
Union. She told him that if the Union was elected it would be
costly to run the Company and that the Respondent may have to
close the warehouse. She asked him to vote no union. His
testimony on cross-examination was consistent and essentially
unchanged.
Dexter had very limited recollection of the details of her
conversation with Williams. Beyond asking him how he was
doing and how he thought the Company was doing, she said
she could not remember saying anything else to him. She also
could not recall what he said to her. Even though she could not
recall what they said to each other, she denied asking him his
views about the Union and she denied telling him that if the
Union was elected it would be costly to run the Company. She
denied saying that the warehouse would shut down.
On cross-examination, she was reluctant to admit that she
visited the warehouse as part of the Company’s antiunion cam-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1326
paign. She testified that Williams asked her about a pamphlet
put out by the Respondent showing that in a similar type facil-
ity in Baton Rouge that went union, the employees were receiv-
ing wages lower than the Respondent’s warehouse employees
in similar jobs. But she denied saying anything about the Union
or the union organizing drive. In short, Dexter’s testimony was
very guarded. Her recollection was not very good, and she did
not present herself as a confident, believable witness.17
I therefore credit William’s’ testimony. I find that by the
comments made by Renee Dexter on or about December 8,
1996, the Respondent violated Section 8(a)(1) of the Act.
(b) Easton’s alleged comments to Dickerson
The facts surrounding the alleged December 16, 1996 meet-
ing between Easton and employee Dickerson (complaint par.
18) are delineated in section B,1,a,(3), above. For the reasons
stated there, I credit Easton’s denial of the incident and there-
fore I shall recommend that these allegations in the complaint
be dismissed.
5. Revocation of the informal settlement agreement, which was
approved on September 19, 1996
I find that by terminating the 14 discriminatees on or about
October 4, 1996, and by the threatening remarks made by Rene
Dexter in mid-December 1996, a sufficient basis exists to va-
cate and set aside the informal settlement agreement.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
engaging in the following conduct:
(a) By threatening in late June 1995, that the Employer
would close or move its warehouse if the Union was elected.
(b) By posting on or about July 1, 1995, no-solicitation signs
along the driveway entering the Employer’s property, and
maintaining them through April 1996.
(c) By promulgating and maintaining a no-solicitation pol-
icy on or about July 1, 1995.
(d) By removing union literature from employee bulletin
boards, while allowing nonunion literature to remain.
(e) By posting signs in the employee breakrooms, which in-
dicate that any materials left behind will be confiscated.
(f) By implying to employees in August 1995, that electing
the Union would be futile and threatening to replace employees
permanently if they went out on strike.
(g) By threatening the employees in December 1996, by
stating that it would be costly if the UFCW was elected and the
Employer may have to close the warehouse.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by engaging in the following conduct:
(a) By discharging on or about October 4, 1996, ice plant
employees David Aranyosi, Michael Ledford, and Gregory
Clayton.
(b) By discharging on or about October 4, 1996, mainte-
nance mechanics David Tippett, Marvin Jones, Ronald

17 Battle gave a generalized account of Dexter’s tour of the ware-
house, pointing out that she had done so on more than one occasion. He
did not recall ever hearing her say anything about the facility possibly
closing. He also did not recall her talking to DeIsrael Williams.
Richardson, Joseph LaMonte, Arthur Strahan, Joseph Hanson,
Donald Lester, John Tate, Donald Lee, Eugene Bardwell, and
Cody Fitzgerald.
(c) By restricting in September 1995, the movement of
David Aranyosi from nonworking areas during nonworking
times.
(d) By issuing a verbal warning to David Aranyosi on De-
cember 8, 1995.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The aforesaid unfair labor practices delineated in 3(g) and
4(a) and (b), above, constitute a sufficient basis for vacating
and setting aside the informal settlement agreement, which was
approved on September 19, 1996.
7. The Respondent did not otherwise engage in any other
unfair labor practices alleged in the complaint in violation of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent discriminatorily dis-
charged David Aranyosi, Michael Ledford, Gregory Clayton,
David Tippett, Marvin Jones, Ronald Richardson, Joseph La-
Monte, Arthur Strahan, Joseph Hanson, Donald Lester, John
Tate, Donald Lee, Eugene Bardwell, and Cody Fitzgerald, I
shall recommend that the Respondent be ordered to immedi-
ately offer them full reinstatement to their former positions or,
if those positions no longer exist to substantially equivalent
positions, without prejudice to their seniority or any other rights
and privileges previously enjoyed; if necessary terminating the
contracts of any vendors who were retained to perform the
functions formerly performed by them and/or if hired in the
interim, terminating the employment of services of any em-
ployees hired in their stead, and to make them whole for wage
and benefit losses they may have suffered by virtue of the dis-
crimination practiced against them computed on a quarterly
basis as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), less any interim earnings, with the amounts due and
interest thereon computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The Respondent, Delchamps, Inc., Hammond, Louisiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to close and/or move its warehouse in
Hammond, Louisiana, if employees aid, support, or join the
Union or any other labor organization.
(b) Promulgate, maintain, or enforce any rules that prohibit
employees from union solicitation in the warehouse during
nonworking time or that prohibit employees from distributing
union literature in nonworking areas during nonworking time.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
DELCHAMPS, INC. 1327
(c) Restricting employees’ access to areas of the warehouse
to which they would have access during their nonworking time
because of those employees’ union activity.
(d) Implying to employees that it would be futile to elect the
Union or any other labor organization and threatening to re-
place them if they aided, supported, or joined the Union or any
other labor organization.
(e) Issuing verbal warnings to employees or discharging
them because they aid, support, or join the Union or any other
labor organization or because they engaged in protected con-
certed activity.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order offer David
Aranyosi, Michael Ledford, Gregory Clayton, David Tippett,
Marvin Jones, Ronald Richardson, Joseph LaMonte, Arthur
Strahan, Joseph Hanson, Donald Lester, John Tate, Donald Lee,
Eugene Bardwell, and Cody Fitzgerald, immediate, uncondi-
tional, and full reinstatement to their former jobs or, if those
jobs are no longer available, to a substantially equivalent one
without prejudice to their seniority or any rights or privileges
previously enjoyed.
(b) Within 14 days from the date of this Order, make David
Aranyosi, Michael Ledford, Gregory Clayton, David Tippett,
Marvin Jones, Ronald Richardson, Joseph LaMonte, Arthur
Strahan, Joseph Hanson, Donald Lester, John Tate, Donald Lee,
Eugene Bardwell, and Cody Fitzgerald, whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of offer David
Aranyosi, Michael Ledford, Gregory Clayton, David Tippett,
Marvin Jones, Ronald Richardson, Joseph LaMonte, Arthur
Strahan, Joseph Hanson, Donald Lester, John Tate, Donald Lee,
Eugene Bardwell, and Cody Fitzgerald, and the unlawful verbal
warning issued to David Aranyosi and within 3 days thereafter
notify them in writing that this has been done and that the dis-
charges and verbal warning will not be used against them.
(d) Rescind the invalid no-solicitation/no-distribution policy
prohibiting employees from union solicitation in the warehouse
during nonworking time or which prohibit employees from
distributing union literature in nonworking areas during non-
working time.
(e) Rescind the policy of removing union literature from
employee bulletin boards so long employees are allowed to post
other kinds of literature on the bulletin boards.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(g) Within 14 days after service by the Region, post at its
Hammond, Louisiana facility, copies of the attached notice
marked “Appendix.”19 Copies of the notice, on forms provided

19 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 Na-
by the Regional Director for Region 15, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 31, 1995.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten to close and/or move our warehouse in
Hammond, Louisiana, if employees aid, support, or join the
Union or any other labor organization.
WE WILL NOT promulgate, maintain, or enforce any rules that
prohibit employees from union solicitation in the warehouse
during nonworking time or that prohibit our employees from
distributing union literature in nonworking areas during non-
working time.
WE WILL NOT restrict employees’ access to areas of the ware-
house to which they would have access during their nonwork-
ing time because of those employees’ union activity.
WE WILL NOT imply to our employees that it would be futile
to elect the Union or any other labor organization and threaten
to replace employees if they aid, support, or join the Union or
any other labor organization.
WE WILL NOT issue verbal warnings to employees or dis-
charge them because they aid, support, or join the Union or any
other labor organization or because they engaged in protected
concerted activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1328
WE WILL, within 14 days from the date of this Order, offer
David Aranyosi, Michael Ledford, Gregory Clayton, David
Tippett, Marvin Jones, Ronald Richardson, Joseph LaMonte,
Arthur Strahan, Joseph Hanson, Donald Lester, John Tate,
Donald Lee, Eugene Bardwell and Cody Fitzgerald, immediate,
unconditional, and full reinstatement to their former jobs, or if
those jobs are no longer available, to a substantially equivalent
one without prejudice to their seniority or any rights or privi-
leges previously enjoyed.
WE WILL make David Aranyosi, Michael Ledford, Gregory
Clayton, David Tippett, Marvin Jones, Ronald Richardson,
Joseph LaMonte, Arthur Strahan, Joseph Hanson, Donald Les-
ter, John Tate, Donald Lee, Eugene Bardwell and Cody Fitz-
gerald, whole for any loss of earnings, and any other benefits
suffered as a result of the discrimination against them in the
manner set forth in the remedy section of this decision.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of offer
David Aranyosi, Michael Ledford, Gregory Clayton, David
Tippett, Marvin Jones, Ronald Richardson, Joseph LaMonte,
Arthur Strahan, Joseph Hanson, Donald Lester, John Tate,
Donald Lee, Eugene Bardwell and Cody Fitzgerald, and the
unlawful verbal warning issued to David Aranyosi and within 3
days thereafter notify them in writing that this has been done
and that the discharges and verbal warning will not be used
against them.
WE WILL rescind the invalid no-solicitation/no-distribution
rule prohibiting employees from union solicitation in the ware-
house during nonworking time or which prohibit employees
from distributing union literature in nonworking areas during
nonworking time.
WE WILL rescind the policy of removing union literature
from employee bulletin boards so long employees are allowed
to post other kinds of literature on the bulletin boards.

DELCHAMPS, INC.