Dexter IGA Foodliner

National Labor Relations Board - Board Decisions

Mar 5, 1974

209 N.L.R.B. 369 (N.L.R.B. 1974)

DEXTER IGA FOODLINER
Dexter Foods, Inc., d/b/a Dexter IGA Foodliner and
Retail Clerks International Association Local 896,
AFL-CIO. Cases 14-CA--7432 and 14-RC-7307
March 5, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENEI.LO
On November 15, 1973, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Dexter Foods,
Inc., d/b/a Dexter IGA Foodliner, Dexter, Missouri,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held on
May 22, 1973, among Respondent's employees be,
and it hereby is, set aside, and that Case 14-RC-7307
be, and it hereby is, remanded to the Regional
Director for Region 14 for the purposes of conduct-
ing a new election at such time as he deems that
circumstances permit the free choice of a bargaining
representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
i The Administrative I aw Judge declined to make any recommendation
with respect to whether or not a film shown to employees. "The Springfield
Gun," interfered with the election, on the ground that Case 14-RC-7307
was a regional proceeding , not a Board case , and that initial decision would
be made by the Regional Director. That is wrong. The Regional Director's
order provided that, following hearing. Case 14-RC-7307 be transferred to
and continued before the Board. However, since no exception has been filed
to the Administrative Law Judge's recommendation that the election be set
369
aside on other grounds, it is unnecessary for us to consider , and we do not
reach or pass upon , whether or not the showing of the film interfered with
the election
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this consolidated proceeding was held at Bloomfield,
Missouri, on August 28, 29, 30, and 31, 1973. In Case
14-CA-7432 a charge was filed on June 4, 1973, by Retail
Clerks Union Local 896, Retail Clerks International
Association, AFL-CIO, and a complaint issued on July 19,
1973, against Dexter Food, Inc., d/b/a Dexter IGA
Foodliner, herein called the Respondent or the Company.
In Case 14-RC-7307 a Board election was held on May 22,
1973, and the Regional Director directed a hearing on the
Union's objections to the election. The issues presented in
the resultant combined proceeding are whether the
Respondent violated Section 8(a)(1), (3), and (5) of the Act,
and whether it improperly interfered with the election.
Briefs were filed by the General Counsel and the
Respondent.
Upon the entire record and from my observation of the
witnesses I make the following: i
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Missouri corporation, has its princi-
pal office and place of business in the city of Dexter,
Missouri, where it is engaged in the retail sale and
distribution of canned goods, fresh vegetables, and related
products. During the calendar year 1972, a representative
period, the Respondent sold at retail in this location
products valued in excess of $500,000, and purchased and
caused to be delivered to this location directly from out-of-
state sources goods and materials valued in excess of
$50,000. I find that the Respondent is engaged in
commerce within the meaning of the Act.
II. LABOR ORGANIZATION
The Respondent denies the complaint allegation that the
Union is a labor organization . The Board has found too
often to justify citation here that the Retail Clerks
International Association, AFL-CIO , and its locals, are
labor organizations within the meaning of the Act,
Moreover , the Respondent stipulated to the election held
on May 22, 1973; its agreement that day was virtual
admission of this complaint allegation . The Regional
Director could not otherwise have held the agreed-upon
election . There is a suggestion that because there is a
trustee at the moment in charge of Local 896 the Union is
disqualified now. The argument has been rejected. E.
Anthony & Sons, Inc, 147 NLRB 204. 1 find that Retail
i A motion by the Respondent, filed together with its brief and
unopposed by any party, is hereby granted.
209 NLRB No. 65
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerks International Association , Local 896, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
The principal issue in this case is whether, when the
Respondent refused the Union's demand for recognition as
exclusive collective-bargaining representative by requiring
the Union first to prove its majority status in a Board
election, the refusal to bargain constituted a violation of
Section 8(a)(5) of the Act. The complaint contains the
usual factual allegations intended to support that ultimate
conclusion: that the Respondent restrained and coerced
employees by improper statements of its management
representatives, and that it discharged one of the principal
union protagonists, all before the election which the Union
lost. Thus the total picture is said to fall within the rule of
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969),
where the Court held that if a union has been authorized in
writing by a majority of the employees and the employer's
unfair labor practices are such as to make a fair election
impossible, it is just and proper to order the employer to
bargain with the union on the basis of such authorization
cards even without holding an election.
In defense the Respondent makes a number of argu-
ments , some advanced directly and some only obliquely.
One is that Roger Stanfill, the man whose discharge,
according to the General Counsel, constituted the main
prop supporting the complaint, was assistant manager and
a supervisor within the meaning of the Act. The Respon-
dent denies that it fired Stanfill because of his union
activities, but the fact remains that if indeed he was a
supervisor, the Respondent had a right to dismiss him for
attempting to organize the employees. In that event the
discharge was not an unfair labor practice, or conduct
improperly interfering with the election, and all the
authorization cards he solicited among the employees are
,tainted and may not be counted as voluntary expressions
of a desire to be represented by the Union in free collective
bargaining. And, of course, if Stanfill's discharge need not
be considered for this reason, and the cards he obtained
are removed from the alleged majority count, there could
be no finding of a violation of Section 8(a)(5).
B. Was Stanfill a Supervisor?
This case arose among the employees of the Respon-
dent's Dexter, Missouri, retail food store, where total
employment is about 35 persons. Until June 1972 Jack
Miller, the owner, worked there all day and personally ran
the business; he had assistants. In that month, at a meeting
of all employees, he announced he was leaving permanent-
ly, to spend all his time in Mississippi, where he was then
opening a second such store he had acquired. He told the
people that from that day on Wayne Evans would be the
store manager and Stanfill the assistant manager. The store
is operated by departments; about 24 persons work in
groceries, 3 in meat, I in frozen food, 3 in bakery, and 2 in
produce. Stanfill had for some time been grocery manager,
in charge of the 24 clerks who work there.
In my considered judgment, the total record proves
Stanfill was a supervisor between the time he was
promoted to assistant manager and the day of his
discharge on May 16, 1973. Before explaining the basis of
this decision; some preliminary comments are in order.
The question whether a given manager possesses statuto-
ry supervisory authority, exercises independent judgment
in looking after the employer's interests, responsibly directs
the work of subordinates-however the test be phrased
-presents at best a tenuous and elusive inquiry. Inevitably
the witnesses who testify when the asserted status is
disputed will color their testimony-some exaggerating his
prominence to make him appear a God, against others
reducing him to a robot. When the facts truly pertinent to
the question are not objectively ascertainable, standing
apart from any personal expressions of opinion, everybod-
y's testimony must be taken with a grain of salt, with due
consideration to the witnesses' understandable predilec-
tions. And especially must purely leading questions by
counsel-loaded with conclusionary phrases descriptive of
the authority, or lack of authority, he seeks to esta-
blish-be given very little weight when followed by a
simple "yes" from his witness.
For example, owner Miller testified that when he
announced his permanent departure from the store, he told
the assembled employees Evans would be manager and
Stanfill assistant manager, and that both would have "the
power to hire and fire." There is not the slightest indication
Stanfill ever hired or fired anybody. Stanfill, on the other
hand, testified that on the manager's day off, every
Tuesday, when he, Stanfill, was in complete charge of the
store, "the store more or less ran itself." At another point
he said when he became assistant manager, "I started
running the store." There is no substantive value in either
Miller's statement that he told everybody Stanfill could
just plain "hire and fire," or in Stanfill's statement that a
store this size simply "ran itself."
A second cardinal point in these cases is that no one fact
is determinative of the issue. The statute lists a number of
functions, or aspects of a supervisor's work, whose
presence must be considered when the question is raised.
In one case there will be established the existence of certain
duties or responsibilities sufficient to prove supervisory
status, albeit others are totally lacking; in another some
different grouping of duties will do the trick as well. Thus
nothing of significance is accomplished by proving
conclusively that the manager does not, or has not,
discharged or disciplined any employee outright; it is the
affirmative evidence of what power he does in fact exercise
that does or does not suffice to make him supervisor. From
this it follows that no two records in this type of case are
exactly alike, and that therefore no decisional precedent
can predetermine the next case. Moreover, the characteris-
tics which under the statutory language mark the supervi-
sor are to be considered in the disjunctive. It is sufficient
for the disputed man clearly to exercise one of the
enumerated duties to resolve the issue in favor of
supervisory status.
What counts is substance, and not descriptive language.
DEXTER IGA FOODLINER
In his inquiries as to what went on in the store from day to
day, again and again counsel for the Respondent asked
whether when Stanfill did this or that, he did so with
"independent judgment." Injection of this descriptive and
conclusionary concept in his repeated questioning added
nothing meaningful to the record, msofar as proof of the
facts is concerned.
The parties made a big to-do throughout the hearing
over exactly what Stanfill's title was-grocery manager or
assistant manager. This case could hardly turn on what
Stanfill was called, or called himself; at the start of his
testimony he said his title when discharged was "grocery
man." In a newspaper announcement when he publicized
his engagement he called himself "assistant manager."
Most of the employees who testified, including many called
by the General Counsel in support of the complaint, and
who worked under Stanfill, said he was the assistant
manager, indeed agreed he was their "boss." But ultimate
decision here rests upon what the evidence shows he did
while at work, what the company asked him to do during
his working hours, and not on what anyone may have
called him.
Two other matters were given out-of-proportion promi-
nence at the hearing, neither of which is of great moment.
There is much testimony of the work performed by other
department managers in the store-the man in produce, in
meat, in dairy, etc. The point of this testimony offered by
the General Counsel is that these men are in some respects
comparable to the assistant manager; they too are salaried,
tell their one or two respective helpers what to do, and
order produce, or milk and cheese, or meat. The General
Counsel asks: Inasmuch as the Respondent makes no
contention that these managers are supervisors, why
should it be heard to say Stanfill was a supervisor? It is a
poor argument; these men were not fired, their status is not
in issue, and Stanfill's position stands or falls depending on
the facts that relate to him, and not upon evidence
concerning others in the store. Maybe the other managers
are supervisors-who knows? It would not be the first time
supervisors voted in a Board election because nobody
challenged them. And this leads to the second matter
opened up at the hearing. There is indication the
Respondent did not always consider Stanfill a statutory
supervisor. Of course the question never arose until the
man brought the Union into the store. Does it follow that
just because the Company went about its business without
bothering to determine in the mind of management just
what Stanfill's legal status was, its past indifference to the
man supports a finding now that he was never more than a
rank-and-filer? I doubt it. In any event, before the
Respondent stipulated to the consent election that took
place, it advised the Union it intended to dispute Stanfill's _
right to vote on the ground he was a member of
management. The matter is best decided on the basis of the
work Stanfill in fact performed.
Section 2(11) of the statute declares that any man who
has authority "responsibly to direct" other employees, and
does so in a manner that "requires the use of independent
judgment," is a supervisor. I think the facts shown on this
record place Stanfill in that category.
The best evidence of what authority he exercised is that
371
coming from the employees who worked under him, and
especially acceptable must be the testimony of witnesses
called by the General Counsel. After all, the prosecution is
presumed to vouch for the evidence it itself presents.
Stanfill worked a great deal of the time himself helping
unload trucks, placing stock on the shelves, pricing
merchandise, etc. His job was also to see that the
employees did whatever work was necessary as the needs
of the business changed. Despite all his efforts at the
hearing to belittle the importance of the direction he had to
give all day to others, he did admit it was he who
constantly shifted employees from one chore to another.
The best words for describing his supervisory duties came
from the employees. Harold Staggs: "He told me to clean
up under some displays and different things and clean in
the aisle and stuff like that . . . . I would go ahead and do
it. . . . If there were aisles that needed to be worked he
told me to go ahead and do them and help the other guys
out." Larry Henderson: ". . . before Jack Miller left the
store . . . he said . . . when Wayne Evans wasn't there
Roger Stanfill was in charge of the store. . . . that Roger
Stanfill was next underneath Wayne and when Wayne was
not there Roger had the store. He was the boss and Roger
Stanfill had the right and the power to fire." "Q. On
Tuesday, when the manager was off, who was in charge of
the store? The Witness: Roger Stanfill . . . he was in
charge of the whole store as far as I know." Ray Dowdy: "It
was Roger's job to run the grocery department and order
groceries, things like that and Wayne had control over the
whole store. Roger took care of making sure the work was
done and grocery and things such as that." "Q. Was he in
charge of the whole store on Wayne's day off? A. Yes."
Bruce Eskew testified Stanfill assigned him to positions all
over the store, in the aisle, in the back room, to carry-out,
to build displays, and that he considered Stanfill one of his
bosses. Randy Huffman quoted Miller as saying that when
Evans was not in the store "just to do what Roger said, to
follow his instructions." "Q. What general orders and
directions and work was assigned by Roger Stanfill? A.
Just anything that needed to be done." Rick Morrow: "He
told me what to do whenever I came to work, he told me
what to start doing." "Q. What specific items of work and
what did he hand to you? A. Stocking the shelves or if
somebody was helping him and he wanted me to get their
carry-outs he'd tell me and I'd do that or if he wanted me
to work the sodas I'd do that, if he wanted me to put up the
milk I'd do that." These were all General Counsel
witnesses. Stanfill worked from 8 to 6 p.m.; groups of
employees arrived at 1 p.m. and at 4 p.m. for their regular
shifts, and this means he assigned everybody and kept
telling them what to do all day.
Manager Evans was away from the store for lunch I
hour each day and all day Tuesday, his day off; in his
absence Stanfill was in charge of the store. That during
those periods he was literally "responsible" for what work
was performed by the rank-and-file cannot seriously be
disputed on this record. The General Counsel attempted to
narrow his responsibilities to the grocery department, and
in a sense the other managers did exercise a measure of
control over their men. But in groceries there were 24 of
the overall complement of 35. Evans used to come to the
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store to look things over several times during his day off;
there is even evidence he some Tuesdays spent several
hours there, on and off. At other times it was only a matter
of 15 or 20 minutes now and then.
Clearly, therefore, Stanfill was many times during the
week the sole management representative in the store.
When Evans was out to lunch and away on Tuesdays, if
Stanfill was not the person charged with responsibility to
see that the employees did what had to be done, it means
the Respondent did not care what happened to the
business then-a very unlikely proposition. The contrary
inference-that Stanfill was put there to enforce company
work rules, to assign work and to see that the clerks carried
out their duties-is very strongly supported by evidence
offered in connection with the parties' dispute over why the
assistant manager was discharged. The Respondent's
affirmative defense of discharge for cause is that Stanfill
had permitted the store to deteriorate, had failed adequate-
ly to keep people at work, had ignored misconduct and
disruptive misbehavior during hours, and indeed had
himself carved on while on duty in violation of the
working rules. A few incidents will illustrate the point. The
Company proved Stanfill put ink remover in a clerk's
pepsi-cola bottle and the man had to be taken to the
hospital as a result. It also proved Stanfill ate cheese from
the counter in the presence of others without paying for it.
There are written rules of which all employees are aware
that no food of any kind or quantity is to be consumed
unless paid for. The General Counsel's reaction to this
defense was to offer to prove-which he fully did-that
this sort of "horseplay," as he called it, happened all the
time , and that many employees ate strawberries, bananas,
doughnuts, slices of cheese or salami, etc. Incidents were
related of ammonia being poured under a bathroom door,
water containers balanced on the top of doors to spill on
employees, other offensive liquids added to the drinks of
the clerks, etc. But while a number of the clerks said they
did eat in violation of the rule, for the most part they also
added it never happened while Miller, the owner, was
around.
It may well be, as the General Counsel argues, that the
fact of Stanfill's widespread disregard of working rules
gives the lie to the Respondent's assertion that it dismissed
Stanfill for himself having misbehaved, or for not ade-
quately enforcing the rules. But the question at this point is
not why did it discharge the assistant manager. Rather, the
concern of the moment is: what is the likelihood this
company would leave such a store with no supervision at
all, or at least hoped-for supervision, during all those hours
that Manager Evans had to be away? The clerks, most of
them working on the loading dock, storerooms, and
shelves, were largely schoolboys, many working off-school
hours. A look at them during the hearing showed rather
clearly there was not a great sense of responsibility among
them. Their own recitals of their behavior while at work
proved the need for some kind of supervision. In the
circumstances, with the owner aware of the general
attitude and behavior of the clerk group as a whole, I must
take at their word those employee witnesses who said they
were supposed to take their orders from Stanfill, to obey
him, and that in the absence of the manager, he was the
boss. It does seem there were times when Stanfill was not a
good supervisor, when he did not enforce the rules of the
company, maybe did not even care sufficiently for the
interests of his employer, but I do not think a man's neglect
of his duties suffices to reduce the quantum of authority
and responsibility placed upon him. At least the General
Counsel does not advance the direct contention that a
supervisor ceases being a supervisor merely because, when
he is alone in charge of a group of 35 people, he neglects
his duty.
There are other facts in the record indicative and
therefore supportive of the conclusion that Stanfill held
statutory supervisory status. He alone did all the ordering
of food and other merchandise for the grocery department,
about 65 percent of the total store volume. On many items
he used his own discretion, especially when dealing with
seasonal items which sell in greatly varying volume
depending upon the time of the year. He made direct deals
on behalf of the company with sellers and dealers of
certain merchandise such as soda, candy, cookies, bread,
etc., that is brought to the store in direct trucks and is paid
for in cash. He was also responsible for ordering supplies
and equipment for all the other departments. Only he,
besides the manager and the owner, regularly held the keys
to the store, the offices, and the money repository. He
distributed the paychecks and cashed them for the
employees. He initialed corrections on' the timecards
whenever employees made any kind of mistakes on them.
He approved the cashing of checks for customers. In his
testimony he tried to create the impression any clerk could
authorize the cashing of checks at the cashier's desk, on the
ground that he, the clerk, knew the customer personally.
Maxine Jewitt, called by the General Counsel, 5 years a
checker in the store, testified instead she asked Stanfill's
approval, and never anyone else's, because "he was my
superior," and she described him, when Evans was out of
the store, as the "person in charge." Evans was paid $210 a
week and Stanfill $130; all the other department managers
but one were paid less. The meat department manager
received $200. The record as a whole strongly suggests he
was paid so much more than any of the other department
managers because he was a craftsman, apparently the only
man possessing true craft skills in this store. He had only
two men assisting him, and there is neither evidence nor
claim he ever left his department or had anything to do
with any one outside his limited bailiwick.2
On the question whether the assistant manager made
effective recommendations affecting the job status of
others, again the testimony of the competing witnesses
reflects some straining , with the truth of necessity lying
somewhere between the extremes . Miller testified Stanfill
approached him to say "We've got to do something about
Joe Lloyd . . . . He's just too slow, we need somebody to
2 There is one fact upon which I in no sense rely in concluding that testified this came as a complete surprise to him, that no one had ever told
Stanfill was a supervisor When Stanfill returned to the store for his final him about any bonus at all I credit his testimony against that of Miller, who
paycheck a week after his discharge, Evans, the manager, handed him a said that the year before, when Stanfill was made assistant manager, he was
separate check for $100 which he told Stanfill was a "bonus" Stanfill told there would one day be a bonus for him
DEXTER IGA FOODLINER
replace him." Lloyd was dismissed the following week.
Miller told the same story about a clerk named Sherman
Boone, that Stanfill reported the man talked too much, was
too slow; Boone too was soon dismissed. A handicapped
clerk named Jim Adams was discharged the same day
Stanfill told Miller this boy's handicap slowed him too
much. Still according to the owner, Stanfill recommended
that Sue Grubbs be made office girl and it was done, and
that Huffman be reinstated to bakery manager, which also
happened. Lastly, Miller recalled Stanfill also recommend-
ed the effective promotion of Richard Hunt to night
manager.
Stanfill's testimony is really not inconsistent with all this.
He said Evans asked him several times about Lloyd and
that he advised Lloyd was "real slow." "There has been
occasion where they have called me upstairs and asked me
how so and so was doing, and I would give them my
opinion." Stanfill recalled recommending Grubbs be
promoted to office girl, discussing Hunt's performance and
saying he was "good," and giving his opinion on request
about Adams. As to applicants for employment, "They
would ask me if I knew the individual and what my
opinion was, and I gave them my honest opinion as far as
my knowledge of the applicant." He said this happened on
numerous occasions and recalled Eskew as another man
who got a job in consequence.
As already set out above, I find Stanfill was a supervisor
as defined in the Act and will therefore dismiss the
allegation that he was illegally dismissed.3 Sopps, Inc., 175
NLRB 296.
C. Section 8(a)(3) and 8(a)(5)
The finding that Stanfill was a supervisor within the
meaning of the Act disposes of both the 8(a)(3) and (5)
allegations in the complaint. As the General Counsel
concedes in his brief: "Determination of his status as a
nonsupervisor lies at the heart of his entire matter so far as
8(a)(1), (3) and (5) are concerned." No other theory of
illegality in the man's discharge was advanced or litigated.
Accordingly. no useful purpose would be served by
reporting here in great detail the evidence on the subsidiary
facts pertinent to the usual refusal-to-bargain case.
It is a fact the bargaining unit described in the complaint
is appropriate for collective-bargaining purposes; it is not
only the one agreed upon by the parties in the representa-
tion case consent election agreement. but also conforms
with the traditional retail food store unit found appropriate
in countless Board decisions.
Regular unqualified authorization cards in favor of the
Union, all signed by employees then at work, were received
in evidence in sufficient quantity to establish the Union's
majority status at the time of demand and refusal. The
total complement was about 35. Eighteen then employees
as sworn witnesses at the hearing authenticated their
individual signatures to the exhibit cards. Six more cards
were authenticated by Stanfill when he testified under oath
he saw each of the six signed in his presence by the
i While it is true that any conclusionary statements uttered at the hearing
by Respondent's counsel, or by owner Miller, should be viewed with
skepticism. it is not so where the disputed supervisor's own opinion of the
extent of his authority is concerned I think Stanfill well knew he
373
employees involved. Of this total of 24, four employees
asked for the return of their cards after they had signed.
Two-Wamble and Penrod-said this happened in April;
two others-Sturgeon and Staggs-apparently wrote the
Union about their change of heart on March 30, for each
received a reply dated April 2, 1973, saying their cards had
been forwarded to the Board in connection with the
representation proceeding. One card is dated March 27
and all the rest are dated either March 25 or March 26. By
the time the four employees in question indicated a change
of attitude, the Union had already demanded recognition
and been refused. Without question, therefore, the Union
had a majority of cards in its possession by March 27.
On Monday, March 26, Dowdy, an employee who had
been very active with Stanfill in soliciting cards, told
Manager Evans that a majority had signed authorization
cards. The next day, early in the morning. Vernon
Nickermann, president of Local 896, came to the store and
told Evans a majority of employees had signed cards,
wished to be represented by the Union, and would like to
have a card check conducted. Evans' answer was to give
him the visiting card of the Respondent's lawyer. That
same day the Union wrote to the Company, advising that a
majority had signed cards, and demanding recognition and
collective-bargaining rights forthwith. The Company an-
swered by letter dated April 2, 1973, refusing recognition
until such time as the Union could establish its claim to
majority by secret ballot.
Again there is much detailed testimony on the record
that does not justify repetition here. Stanfill, the supervisor,
solicited many of the cards; he was a very outspoken
pusher of the Union, if not the original instigator. Exactly
how many of these cards he personally obtained may be in
doubt; clearly it was a very substantial portion, for, as the
General Counsel concedes, Stanfill was "the spearhead of
the organizing campaign," "the most prominent union
activist," "instrumental in securing most of the Union's
authorization cards." The cards in this case are therefore
tainted by supervisory intrusion and may not be relied
upon to support a finding of voluntary authorization.
Steele Apparel Company, Inc., 172 NLRB 903, and Sopps,
Inc., supra. Most of the complaint allegations of unlawful
coercive statement charged to the Company involve
conversations between Stanfill and the higher company
agents. What violations of Section 8(a)(1) are found below
could in no event warrant an order to bargain with the
Union now even absent a showing of past majority status
based on valid cards. I shall therefore recommend
dismissal of the refusal-to-bargain complaint allegation.
D. Section 8(a)(1)
Several employee witnesses gave testimony of interroga-
tion and of threats voiced by Owner Miller and Manager
Evans. Dowdy testified that on Monday, the day after the
bulk of the cards were signed, he told Evans there had been
a union meeting and that the manager then asked him "if I
could tell him who called the union man." When he
represented management in the store, and cannot agree with the statement
in the General Counsel's brief that his testimony should be appraised
"regardless of any conclusions drawn in that line by Stanfill "
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answered he could not, Evans said "Do you mean you
won't?" and Dowdy came back with "Yes, I won't." At this
point, still according to Dowdy, "He [Evans] also said that
he thought that it was a bad move, that things would be
worse that way because some people would probably have
to lose theirjobs over it."
Eskew testified that late in April he was called to the
office where Evans asked why the employees would do a
thing like trying to bung a union into the store. Miller then
came into the office, joined in the conversation, and
compared the Union to Eskew's father's farm, asking what
its financial position was and commenting, "he [Eskew's
farmer father] has so much profit he makes. It would be
the same way with Jack [Miller], after this he would have
so much profit he has and he wanted to know how the
union would help us to get all the extra money they had
promised us." Miller then several times asked Eskew
whether he had signed a union card, always adding the boy
should not answer the question "because it was against the
law." Miller also asked where Eskew had obtained the card
and the clerk said Stanfill had given it to him. Finally, still
from Eskew: "Wayne [Evans] said something about an
address that I could write to get my card back and
Jack-Wayne went ahead and gave me the card-I mean
the address to get my card back if I wanted to get it back."
Evans and Miller both contradicted the foregoing
testimony. They denied asking either Dowdy or Eskew any
questions about the Union, or had they signed, or who was
responsible for the movement. They denied any threats of
any kind. I do not credit their denials. The Respondent was
firmly opposed to the Union; it distributed much literature
to combat the organizational campaign, Miller made
speeches to persuade the employees, and the Company
showed a moving picture intended to convince the
employees otherwise. Miller said he gave the Union's
address to Eskew at the employee's request and Evans gave
a confusing, evasive, and almost incoherent version of this
and other conversations clearly intended to befog what
really happened that day. Eskew never departed from his
clear statement he was invited to the office to be talked to.
This credibility resolution rests on more than demeanor,
however.
No need to pass judgment here on the now mooted
question of why Stanfill was discharged. Were it necessary
to decide I would without hesitancy hold he was dismissed
because of his union activity. What is relevant to this
question of credibility, however, is that both Miller and
Evans acted very deviously in creating a paper record
intended later to prove discharge for cause. A certain
indifference towards work was, as already stated, not
uncommon throughout the store for some time. But
immediately after the flurry of card signing activity, on
March 27, for the first time Manager Evans starts writing
up "grievances," as he called them, to record Stanfill's
delinquencies. Things that had not been uncommon in the
past now become matters demanding record upon record
of "reprimands." Employees are called to the office and
questioned about Stanfill's work, always with the purpose
of recording one incident after another. And even after the
assistant manager is discharged, detailed reports of his past
activities in the store are prepared, and employees are
asked to sign them. These were the many documents later
placed in the personnel file on Stanfill said to prove
discharge for cause. On their face some are even dated
before the discharge, although clearly prepared and signed
later. And finally there is testimony by Stanfill of being
interrogated and even threatened by both Evans and
Miller in their efforts to curb his own activities. Much of
this cannot be found to have been unlawful because
management was then talking to its supervisor. But it does
indicate a penchant by Miller and Evans to go beyond
normal limits in their resolve to keep the Union out of the
plant.
I find that by interrogating Dowdy as to who had started
the union activity, and telling him employees would lose
their jobs because of it, Manager Evans committed unfair
labor practices in violation of Section 8(a)(1) of the Act
chargeable to the Respondent. I also find that by
interrogating Eskew as to whether he had signed a union
card, by suggesting he withdraw it, and by giving him the
Union's address to be used for such purpose, Miller
committed unfair labor practices in violation of Section
8(a)(1).
While most of the things Miller said to Stanfill during
these events were aimed at learning what was going on
with respect to the Union, and even at curbing Stanfill's
continued participation, there were some things Miller said
that he knew, and indeed intended, would be passed on to
the employees. It is one thing for an employer to have a
right to control his management agents in union matters,
but it is quite another to use them to exercise improper
restraint upon the rank-and-file. On about April 10 Stanfill
became concerned over rumors that the Respondent might
react violently to the Union's campaign and perhaps
discipline employees for it, that the activities might hurt
rather than help the group as a whole. He talked to Miller
about this and asked was there any truth to the rumor that
the store might close. His testimony is Miller said: "As far
as the rest of the employees, if the union doesn't go
through•you can tell them that I am not going to fire any of
them, as long as they do their job and do it well. . . . If the
Union goes through, I will close the sonofabitch up tighter
than a jug. . . . You know what happens from there. The
work that was done during the night, the mopping of the
floors, the cleaning of the shelves, will have to be done
during the day. . . . There will be nothing but ass holes
and elbows around this place." Stanfill testified clearly
Miller told him to pass this message to the employees. And
Stanfill said he did so; in fact several employees recalled he
later gave them that very message.
Miller recalled this conversation generally but denied
any threat to close the store or retaliate against anyone. I
credit Stanfill. In the circumstances it must be found that
the Respondent violated Section 8(a)(1) of the Act in
Miller's statements to the supervisor that the store would
be closed and work become more onerous on the
employees if they chose to be represented by the Union,
and in Stanfill's statements to that same effect which he
passed on to the employees.
A few days after the Respondent learned that employees
in great numbers had signed union cards, it called them
one at a time to the office and asked each to fill in a
DEXTER IGA FOODLINER
questionaire and place it in a sealed box. The clerks were
told they did not have to do this-it was voluntary on their
part-and not to identify themselves in any way on the
document. The questionaire consists of 28 questions asking
what the employees thought of their working condition
generally-their relationship with supervisors, their earning
level, their promotion opportunity, their physical comfort
or discomfort, etc. There was no reference to the Union,
either explicitly or inferentially. The complaint calls this
solicitation of employee complaints concerning working
conditions necessarily discouraging self-organizational
activities and therefore coercion in violation of Section
8(a)(1) of the Act. Whatever evidence of illegal interroga-
tion or threat of reprisal there may be in this record, there
is no indication the Respondent made any promises of
benefits to induce abandonment of the Union, certainly
not either when the question was asked or any time before
that date. The only hint of such a technique appears in
Stanfill 's long recital of his talk with owner Miller perhaps
a few weeks later, and that is so vague and ambiguous as to
hardly ment comment. I find nothing improper in the
questionaire. As the Board said in ITT Telecommunica-
tions, a Division of International Telephone and Telegraph
Corporation, 183 NLRB 1129, "The solicitation of employ-
ee grievances by an employer is not illegal unless
accompanied by an express or implied promise of benefits
specifically aimed at interfering with, restraining, and
coercing employees in their organizational effort."
E. The Objections
The violations of Section 8(a)(1) found above fall within
the ambit of objections filed by the Union. On the basis of
such improper interference with the election by the
employer, I recommend that the results of the May 22,
1973, election be set aside as a new election held at a time
to be fixed by the Regional Director.
About a week before the election the employer invited all
employees to view a moving picture film entitled "The
Springfield Gun." About half the employees came to see it;
it was shown with no comment about it by any company
representative. At the conclusion Miller read a prepared
speech explaining why the company believed no union was
necessary in the store; his remarks were entirely privileged
and no contrary contention is advanced.
The film was offered into evidence by the Union,
although, while fully aware of its having been shown to so
great a number of employees, the Union had not referred
to it as a basis of objections when it filed its original
objections. The General Counsel stated explicitly on the
record he made no claim the showing of this film in any
sense constituted a violation of the Act. He also stated that
he made no contention, on his behalf or on behalf of the
Regional Director, that showing the film was improper
interference with the election or in any way supported the
Union's objectioris. In fact there was no reason for
injecting this matter of the film into the hearing at all; a
hearing is to inquire into and to establish facts, and the
Regional Director's Report says that the showing of the
4 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions , and recommended Order herein shall, as provided in See.
375
film at this time was conceded by the Company while the
objection was being investigated. Under the delegation of
authority, Case 14-RC-7307 is a Regional Office proceed-
ing, and not a Board case. My findings and recommenda-
tions on this aspect of the consolidated proceeding are
those of a hearing officer and automatically go back to the
Regional Director for initial decision. There is no reason
therefore for me to advise him respecting any objection
question as to which the facts were never in dispute.
I have viewed the film, I certainly agree its showing does
not constitute an unfair labor practice, and I also believe,
as a matter of personal opinion, that it falls short of
supporting the objections. Compare: Hawesville Rolling
Mill, National Aluminum Division of National Steel Corpora-
non, 204 NLRB No. 42. The film in the case at bar is
pictorial propaganda in favor of so called right-to-work
laws existing in some States; it is relatively innocuous when
contrasted to the film considered by the Board in the
Hawesville case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The conduct of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close.
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSION'S OF LAW
1. By Manager Wayne Evans ' interrogation of employ-
ee Dowdy as to who had started the union movement, by
President Miller's interrogation of employee Eskew as to
whether he had signed a union card , by his solicitation of
Eskew to withdraw from the Union, and by the threats of
both these management representatives that employees
would lose employment in retaliation for their union
activities , all for the purpose of discouraging union
activities , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
The Respondent, Dexter Food, Inc., d/b/a Dexter IGA
Foodliner, Dexter, Missouri, its officers , agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activity and threatening retaliation in the form of loss of
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment in reprisal for the union activities of its
employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join or assist any
labor organization, to engage in other concerted activities
for the purposes of collective bargaining, or other mutual
aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Dexter, Missouri,
copies of the notice attached hereto marked "Appendix." 5
Copies of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by an
authorized representative of the Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that the notices are
not altered defaced, or covered by any other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be
dismissed insofar as it alleges illegal discrimination in the
discharge of Roger Stanfill and unlawful refusal to bargain
with the Union.
S In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties had the opportunity to
present their evidence the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend
to carry out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all of these things.
WE WILL respect your rights to self-organization, to
form, join or assist any labor organization, to bargain
collectively in respect to terms or conditions of
employment through Retail Clerks International Asso-
ciation, Local 896, AFL-CIO, or any representative of
your choice, or to refrain from such activity, and WE
WILL NOT interfere with, restrain or coerce our
employees in the exercise of these rights.
WE WILL NOT interrogate our own employees any
concerning their union activity or the union activity of
other employees and WE WILL NOT threaten to close the
store or to discharge employees because of their union
activity.
You and all our employees are free to become members
of any labor organization, or to refrain from doing so.
Dated By
DEXTER FOODS INC., D/B/A
DEXTER IGA FOODLINER
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri
63101, Telephone 314-622-4167.