Winn-Dixie Stores, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1963

143 N.L.R.B. 848 (N.L.R.B. 1963)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Briefs, or proposed findings and conclusions, or both, relating to the merits of
the issues presented by the entiro record in this case may be filed at Washington, D.C.,
pursuant to Section 102.42 of the Board's Rules and Regulations, Series 8, as amend-
ed, on or before November 9, 1962. In the event the parties, or any of them,
desire to present oral argument in the matter written request therefore must be
made of me in Washington, D.C., within five days of the date of this Order.
Dated at Washington, D.C.
October 18, 1962.
(S) Thomas F. Maher,
THOMAS F. MAHER,
Trial Examiner.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL recognize Amalgamated Lithographers of America as the collective-
bargaining representative for all of our employees in the unit found appropriate
for the purposes of collective bargaining concerning wages, hours, and working
conditions, and we will, upon request, bargain with said Union as the exclusive
collective-bargaining representative of all employees in the appropriate unit,
and, if an understanding is reached, we will embody such understanding in a
signed writing. The appropriate unit is:
All employees of the Employer's Sutherland Division engaged in the
lithographic process at Kalamazoo, Michigan, including the offset pressmen,
assistant offset pressmen, helpers, utility men, platemakers, the blanket
washer, and the stock repilers primarily engaged in the lithographic process,
but excluding inkmen, all other employees, and supervisors as defined in
the National Labor Relations Act.
KVP SUTHERLAND PAPER COMPANY-
SUTHERLAND DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 500
Book Building 1249 Washington Boulevard, Detroit, Michigan, 48226, Telephone
No. 963-9330, if they have any question concerning this notice or compliance with
its provisions.
Winn-Dixie Stores, Inc., and Winn-Dixie Louisville , Inc. and
District Union Local 227, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO. Case No.
25-CA-1637. July 25, 1963
DECISION AND ORDER
On March 28, 1963, Trial Examiner William J. Brown issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. The Trial Examiner also found that the Re-
spondents had not engaged in certain other unfair labor practices
143 NLRB No. 89.
WINN-DIXIE STORES, INC., ETC. 849
alleged in the complaint. Thereafter, the Respondents filed excep-
tions to the Intermediate Report and a supporting brief. The General
Counsel filed limited exceptions t to the Trial Examiner's Intermedi-
ate Report and a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection With
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error Was committed.
The rulings are hereby affirmed.' The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,3 conclusions, and recoin-
inendations of the Trial Examiner with the following exceptions,
additions, and modifications :
1. We find, in agreement with the Trial Examiner, that Respond-
ents violated Section 8(a) (1) of the Act by interrogating its em-
ployees regarding their own and other employees' union activities
and sympathies, and by threatening employees With economic re-
prisals if their Union was successful in organizing the employees.'
We agree with the Trial Examiner's finding that the requests made
of employees by Respondents' Assistant Divisional Manager Marion
Merritt that they furnish the Company with copies of pretrial state-
ments which they might give to the Government violated Section
8 (a) (1) of the Act. Pretrial statements taken by the General Counsel
are intended to record and preserve the facts leading to the alleged
unfair labor practices on which the charge is based. As such, these
statements necessarily reveal the employees' attitudes, activities, and
sympathies in connection with the Union. Moreover, the statements
divulge the union sympathies and activities of other employees and
the conduct of the supervisors toward the Union and its adherents.
As such, they should be as free of any inquisitive interest by the
Employer as are the employees' union activities themselves. Knowl-
1 We find merit in the General Counsel's exception to what appears an inadvertent
omission from the Appendix attached to the Trial Examiner's Recommended Order of a
provision informing the employees that the Respondent will bargain with this Union
upon request.
2In their brief, Respondents renewed their motion to dismiss Winn-Dixie Stores, Inc,
as a party to this action For the reasons set forth in the Intermediate Report, the mo-
tion is denied
'In his Intermediate Report, the Trial Examiner inadvertently stated that employee
"Montgomery referred to a meeting of himself, Naomi Grey, William Danacher, Frank
Alvey, Paul Davis, and Montgomery which was addressed by Merritt on September 8 "
The record shows that it was employee Pierce who testified with respect to this meeting,
at which Montgomery was present.
4 We agree with the Trial Examiner's finding that the remarks addressed to Wanda
Dickens on August 20 by Store Manager Davis implied that the store would be closed if the
Union succeeded in organizing the employees In so doing, we rely on the additional
statements of Davis, not adverted to by the Trial Examiner, that Winn-Dixie Stores, Inc.,
"have 610 stores and one store more or less won't matter to them."
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edge by the employee that his Employer is manifesting an interest in
what the employee may say about him can only exert an inhibitory
effect on the employee's willingness to give a statement at all or to
disclose all of the matters of which he has knowledge for fear of say-
ing something that might incur the Employer's displeasure and pos-
sible reprisal. Accordingly, we are of the opinion that the Respond-
ents' requests for copies of employees' statements to the General
Counsel constitute interference, restraint, and coercion within the
meaning of Section 8(a) (1) of the Act.5
2. The Trial Examiner found that on August 16, 1962, and there-
after, the Respondents unlawfully refused to recognize or bargain
with the Union, thereby violating Section 8(a) (5) of the Act. For
the reasons more fully set forth in the Intermediate Report, we agree
with the Trial Examiner that Respondents' refusal to recognize or
bargain with the Union was not motivated by a good-faith doubt of
the Union's majority status. We are, as the Trial Examiner, impelled
to this conclusion by clear evidence of unlawful measures taken by
the Respondents to thwart the employees' union activities and to gain
time in which to dissipate the Union's majority. Thus, it appears
that only 2 days after the Union began its organizing activities, the
Respondents embarked upon a systematic campaign of coercive inter-
rogations and threats, making clear to the employees that the store
would close if the Union were successful in its organizing activities.
In such circumstances, it cannot be said that the Respondents' refusal
to bargain was well intentioned.e
Furthermore, the unlawful coercive conduct in which the Respond-
ents persisted after the Union's request for recognition and bargain-
ing was made, negatives any possible inference that the Respondents
had experienced a change of heart in their attitude toward the Union
and were acting in good faith when they filed their representation
petition 2 days after rejecting the Union's demand. Nor does the
Respondents' asserted reliance on suspected improper conduct on the
part of two supervisors in securing authorization cards, or otherwise
aiding the Union, persuade us to a contrary conclusion. Insofar as
the record shows, the Respondents had no knowledge that the super-
visors in question had engaged in any improper conduct at the time
Respondents began their unlawful campaign against the Union.7
5Cf. Texas Industries , Inc.; et al., 139 NLRB 365; Hilton Credit Corporation, 137
NLRB 56.
' Joy Silk Mills , 85 NLRB 1263, affd . 185 F. 2d 732 (C.AD.C.).
7 The only evidence adduced as to alleged improper conduct on the part of supervisors
was given by employee James Wright . Wright testified that he was solicited by Jerry
Everly, a former meat department manager, but knew at such time that Everly was no
longer in Respondents ' employ And the Respondents offered no evidence to show that
Produce Manager Westerfield , who had also signed a card for the Union , solicited, or in
any manner assisted, the Union in obtaining employee signatures.
WINN-DIXIE STORES, INC., ETC. 851
We are similarly of the opinion that the Respondents were not moti-
vated by a good-faith doubt as to the appropriateness of the unit in
refusing to bargain with the Union. It is clear that the Respondents
did not rely on any claim of inappropriateness of the unit when they
rejected the Union's demand for recognition and bargaining.
The Respondents, on the basis of the Board's decision in Englewood
Lumber Company's also contend that they were justified in refusing
to recognize the Union because it did not represent a majority of their
employees for collective bargaining. Specifically, the Respondents
allege that the cards submitted by the Union to substantiate its
majority status cannot be considered as designations of the Union to
act as bargaining representative, since, as the Respondents allege,
the cards were obtained for the sole purpose of enabling the Union to
secure an election. We do not believe that the facts herein present
an issue in which the principles of Englewood Lumber, supra, are
applicable. In the instant case the cards, on their face, specifically
authorized the Union to represent the employees.' And, except for
one card, not in issue herein, the record shows that the representa-
tions made by the Union's solicitors in order to obtain employee sig-
natures, clearly reflect and corroborate the purpose of the cards as
printed thereon. The Trial Examiner's finding that no misrepre-
sentations were made in securing employee signatures is amply sup-
ported by the record. Hence, without considering their subjective
intent in signing the cards, we find, in agreement with the Trial
Examiner, that the employees authorized the Union to represent
them.10 Unlike Englewood Lumber, supra, there is no evidence in
the present case to negative the overt action of the employees of hav-
ing signed cards designating the Union as bargaining agent.11
In view of the foregoing and on the record as a whole, we find that on
August 16, 1962, when the Union requested recognition and bargain-
ing, it represented a majority of the Respondents' employees in an
appropriate unit," and that the Respondents on and after that date
8 1 30 NLRB 394.
9 The following language appears on the cards : "AUTHORIZATION FOR REPRE-
SENTATION UNDER THE NATIONAL LABOR RELATIONS ACT." Under this bold
heading, the card states : "I, the undersigned , employee of . . . ['b]ereby authorize Dis-
trict Union Local 227 , AFL-CIO to represent me and in my behalf petition the National
Labor Relations Board for an election to determine bargaining rights."
10 Member Brown joins in this finding because, in his opinion , the best evidence of the
employees' intent, i e., their signatures to cards which designated the Union as their
bargaining agent , establishes that the Union enjoyed majority status when it requested
recognition. He believes it unnecessary and inappropriate to consider what representa-
tions the Union's solicitors may have made or what the employees may have been told
"Dan River Molla, Incorporated, 121 NLRB 645.
19 For the reasons stated in the Intermediate Report, we agree with the Trial Examiner
that all employees of the Respondents ' store located in Owensboro , Kentucky, excluding
office clerical employees , guards, and supervisors as defined in the Act, constitute an
appropriate unit for the purpose of collective bargaining within the meaning of Section
9(b) of the Act.
717-672-64-vol. 143-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawfully refused to recognize and bargain with the Union in viola-
tion of Section 8(a) (5) of the Act.
In view of the nature of the Respondents' unfair labor practices
which show complete opposition to union organization and the prin-
ciples of collective bargaining and go to the very heart of the Act, we
shall issue a broad cease-and-desist order in this case.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Winn-Dixie
Stores, Inc., and Winn-Dixie Louisville, Inc., their officers, agents,
successors, and, assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively concerning rates of pay, wages,
hours of employment, and other terms and conditions of employment
with District Union Local 227, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, as the exclusive
representative of the employees in the following appropriate unit :
All employees of the Winn-Dixie store in Owensboro, Kentucky, ex-
clusive of office clerical employees, guards, and supervisors as defined
in the Act.
(b) Interrogating employees concerning their own and other em-
ployees' activities on behalf of, and intentions with respect to, the
above-named Union or any other labor organization, in a manner con-
stituting interference, restraint, or coercion violative of Section
8(a) (1) of the Act.
(c) Informing its employees that it would close its store if the
Union were successful in organizing the employees, or otherwise threat-
ening its employees with loss of benefits or with economic reprisals
because of their adherence to the said, Union or any other labor
organization.
(d) Requesting its employees to furnish copies of any pretrial state-
ments which they have given or may give to the General Counsel.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named Union or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WINN-DIXIE STORES, INC., ETC. 853
2. Take the following affirmative action which will effectuate the
policies of the Act :
(a) Upon request, bargain collectively with District Union Local
227, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, as the exclusive representative of employees at
Respondents' store in Owensboro, Kentucky, in the unit found, ap-
propriate above, and embody any understanding reached in a signed
agreement.
(b) Post at the Respondents' store in Owensboro, Kentucky, copies
of the attached notice marked "Appendix." 13 Copies of said notice, to
be furnished by the Regional Director for the Twenty-fifth Region,
shall, after being duly signed by an authorized representative of the
Respondents, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondents
to insure that said notice is not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith.
13 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain with District Union Local 227,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, as the exclusive representative of our em-
ployees in the following appropriate unit :
All employees of our retail store at Owensboro, Kentucky,
exclusive of office clerical employees, guards, and super-
visors as defined in the Act.
WE WILL NOT interrogate our employees concerning their own
and other employees activities on behalf of, and intentions with
respect to, the above-named Union or any other labor organiza-
tion, in a manner constituting interference, restraint, or coercion
violative of Section 8 (a) (1) of the Act.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT inform our employees that we will close our store
if the Union succeeds in organizing the employees, or otherwise
threaten our employees with loss of benefits or with economic
reprisals because of their adherence to the above-named Union
or any other labor organization.
WE WILL NOT request our employees to furnish the Company
with copies of any pretrial statements which they have given
or may give to the General Counsel.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist the above-named
Union or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with District
Union Local 227, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, as the exclusive representa-
tive of employees at our store in Owensboro, Kentucky, in the
unit found appropriate above, and embody any understanding
reached in a signed agreement.
WINN-DIXIE STORES, INC., AND
WINN-DIXIE LOUISVILLE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana, 46204, Telephone No. Melrose 3-8921, if they have any
questions concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The charge of unfair labor practice herein was filed by the above-indicated Charg-
ing Party, hereinafter sometimes called the Union, on September 4, 1962. There-
after, on October 26, 1962, the General Counsel of the National Labor Relations
Board, through the Regional Director for the Twenty-fifth Region , issued the com-
plaint herein pursuant to Section 10(b) of the National Labor Relations Act, as
WINN-DIXIE STORES , INC., ETC. 855
amended , hereinafter sometimes called the Act . The complaint alleges the commis-
sion by the above-indicated Respondents , hereinafter sometimes collectively called
Winn-Dixie, of unfair labor practices defined in Section 8(a)(1) and ( 5) of the
Act. Respondents' duly filed answer admits the jurisdictional allegations of the
complaint, denies some of the factual allegations of the complaint tending to indicate
the propriety of joining Winn-Dixie Stores, Inc., as a respondent , and denies the
commission of the unfair labor practices alleged. Concurrently with the filing of
its answer, Respondent Winn-Dixie Stores, Inc., filed a motion for dismissal of the
complaint or, alternatively , its deletion as a Party Respondent . This motion was
by the Acting Regional Director referred to the Trial Examiner conducting the
hearing for ruling.
Pursuant to notice a hearing was held before Trial Examiner William J. Brown
at Owensboro , Kentucky , on December 10 through 12, 1962, at which all parties
were represented and participated fully, being accorded full opportunity to present
evidence and argument on the issues. At the outset of the hearing the Trial Exam-
iner denied the motion to dismiss or alternatively to delete Winn-Dixie Stores, Inc.,
as a Respondent, on the basis that the allegations of the complaint , if established by
evidence , would warrant the inclusion of Winn-Dixie Stores, Inc., as a respondent.
Renewed at the close of the hearing, the motion is disposed of hereinafter.
Subsequent to the hearing briefs were received from all parties which have been
fully considered by me.
Upon the entire record in this case , and on the basis of my observation of the
witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
It appears from the pleadings and the evidence herein that Winn-Dixie Stores, Inc.,
a Florida corporation with its principal office and place of business in Jacksonville,
Florida, in the course of its business operations throughout the year 1961 , sold and
distributed products having a gross value in excess of $ 5,000,000, and sold and
distributed products having a gross value in excess of $50,000 from various ware-
houses, retail stores, and other places of business in interstate commerce directly to
States of the United States other than those in which the particular establishments
of origin were located; at the same time it received goods valued in excess of $50,000
at its various establishments in interstate commerce directly from States other than
those in which the establishments were located.
It also appears that Winn -Dixie Louisville , Inc., a Kentucky corporation with its
principal office and place of business in Louisville , Kentucky , is engaged in the
retail sale and distribution of food, groceries, and other products in Kentucky and
Indiana and , during 1961, sold and distributed products valued in excess of $ 500,000
while at the same time receiving goods valued in excess of $50,000 at its establish-
ments, directly from States other than those in which the establishments were
located, and similarly shipping interstate goods valued in excess of $25,000.
It clearly appears and I find that Winn-Dixie Stores , Inc., and Winn-Dixie Louis-
ville, Inc., are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act and that assertion of the Board's jurisdiction is warranted.
It. THE LABOR ORGANIZATION INVOLVED
It appears from the pleadings and the evidence herein that District Union Local
227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Synoptic view; introduction to the issues
Winn-Dixie Stores, Inc., a Florida corporation , operates through subsidiary cor-
porations or operating divisions a large number of retail supermarkets throughout
the southeastern part of the United States. Winn-Dixie Louisville, Inc., a wholly
owned subsidiary of Winn-Dixie Stores, Inc., has its headquarters in Louisville and
is engaged in the operation of 33 retail food supermarkets in the Kentucky area.
T. W. Davis, executive vice president of the parent organization , is president of the
Louisville corporation . He has his headquarters in Montgomery, Alabama, but
maintains an office in Louisville. In addition to the Louisville operation, Winn-
Dixie Stores, Inc., operates through seven other divisions which have their head-
quarters in Jacksonville , Miami, Tampa, New Orleans , Montgomery , Greenville,
and Raleigh. The number of retail supermarkets in each of the other 7 divisions
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
varies from 48 to 120. Of the 33 supermarkets operated by the Louisville division,
some 19 are operated in the city of Louisville and its environs, and other stores are
operated in Frankfort, Lexington, Fort Knox, Glasgow, and Shelbyville. These
other locations are 100 miles, more or less, distant from Owensboro which is the
location of the retail store involved herein.
Clem E. Schmidt, a vice president of Winn-Dixie Stores, Inc., works directly
under Regional Director T. W. Davis, as divisional manager of the Louisville divi-
sion. Directly under Schmidt is Marion Merritt as assistant divisional manager.
Under Merritt are three merchandising officials, Steiden, Jackson, and Kahalen, re-
sponsible respectively for grocery, meat, and produce merchandising.
Merritt's primary responsibility is the retail operations of the stores and to assist
him in this, and working directly under him, are four store supervisors each having
responsibility for a number of stores. Thomas Theodore Hamilton supervises a
group of seven or eight stores including the Owensboro store. Hamilton also super-
vises stores in Glasgow, Fort Knox, and several in the Metropolitan Louisville area.
In immediate charge of the Owensboro store is Manager Paul Davis. At times
material to the issues involved in the instant proceeding, the assistant manager, work-
ing directly under Davis, was William Ross. Ross entered military service sometime
about October 1962, and was replaced by James E. Wright who, in August 1962,
was working in the Owensboro store as a stock boy. In August 1962, J. Westerfield
was produce manager; he resigned the last week in August 1962, and was ultimately
replaced by George Montgomery who in August 1962 was a produce clerk. Jerry
Everly was the meat department manager for sometime prior to August 10 and
probably up until approximately August 12, 1962, when his employment terminated.
He was ultimately replaced by Frank Alvey. The personnel of the Owensboro store
at the material times included 23 employees 1 plus the 4 supervisors above mentioned.
On August 6, 1962, Eugene Duncan, financial secretary of the Union, accom-
panied by Corresponding Secretary Seal and International Representative Humes,
commenced an organizational campaign among employees of the Owensboro store.
They were assisted by volunteer workers employed at Winn-Dixie's competitors
Kroger (Matthews) and A. & P. (Posey and Castlen). Assistant Manager Ross
immediately reported the Union's solicitation to Hamilton. During the period of
organizational activity there occurred several conversations and conferences between
Winn-Dixie supervisory personnel and employees. Ultimately the Union under
date of August 15, 1962, wrote to Schmidt, forwarding photostatic copies of 16 2
signed authorization cards and requesting recognition and collective-bargaining con-
ferences. Under date of August 22, 1962, Winn-Dixie's Attorney Bowden wrote
Respondents' reply, taking the position that the inclusion of supervisory cards among
those submitted indicated impropriety in the organizing effort and that employees
had indicated that many cards did not reflect personal desires. Bowden's letter
declined recognition.
On August 24, 1962, Winn-Dixie Louisville filed a petition seeking an election
among the Owensboro store employees in Case No. 25-RM-136. The charge in
the instant proceeding was filed September 4, 1962, and the Company's petition for
an election was held in abeyance until issuance of the complaint herein on October
26, 1962. Thereafter on November 8, 1962, the Acting Regional Director dis-
missed the employer's petition in Case No. 25-RM-136 because of the issuance of
the complaint in the instant proceeding. Subsequently the Board affirmed the
Regional Director's action.
In addition to issues as to the content and legal effect of various utterances on
the part of supervisors during the course of the Union's organizational campaign, the
instant case presents the question as to whether, as contended by the General Counsel
and the Charging Party, Respondents should be compelled to bargain with the
Union for employees of the Owensboro store. Respondents contend that there is
no showing that the Owensboro store is an appropriate unit and that in any event
the evidence indicates that (a) there was improper interference by supervisory per-
sonnel in the Union's organizing efforts and (b) in fact the Union's solicitation
was directed to employee support for a Board-conducted election rather than for
representation or recognition without an election, and, since that would be precisely
'Schmidt initially testified that the Owensboro store as of the payroll period ending
August 11, 1962, had 24 employees. Later it appears from Schmidt's subsequent testi-
mony and from the payroll records, General Counsel's Exhibit No. 5, that 1 of the 24,
Higdon, did not work after July 28, 1962
2 Two of the cards enclosed with the Union's August 15 letter were signed by Meat
Manager Everly and Produce Manager Westerfield under dates of August 10 and 13, 1962,
respectively The other 14 were of employees on the Owensboro store payroll at all
material times.
WINN-DIXIE STORES, INC., ETC. 857
the objective of the RM petition which was ultimately dismissed , a bargaining order
should not be entered in the present proceeding.
B. The refusal to bargain
1. Majority representation: As indicated above a key issue in this aspect of the
instant case is the nature and effect of the authorizations given the Union by em-
ployees of the Owensboro store. Of the 23 employees on Respondent's payroll at
the material period, the General Counsel has submitted in evidence cards signed
by 14 employees and bearing dates between August 7 and 14, 1962. Respondents
have offered in evidence two additional cards which were included among those
transmitted by the Union in support of its bargaining demand. These two were
signed by Everly and Westerfield and dated August 10 and 13, 1962, respectively;
Everly and Westerfield were admittedly supervisors .3
Of the 14 employees whose cards were submitted to the Company with the
Union's bargaining demand of August 15, 1962, and also in evidence in the instant
proceeding, 12 appeared at the hearing to identify their signatures and explain the
circumstances of their signing. Two employees who signed cards, Larry Elder and
Naomi Gray, did not testify concerning the circumstances surrounding their sign-
ing their authorization cards; instead the union solicitors who procured their sig-
natures-Wesley Posey in the case of Larry Elder, and Russell Matthews in the case
of Naomi Gray-testified as to the circumstances of their solicitation and the em-
ployees' execution of the cards.
Respondents' brief asserts that Englewood Lumber Company, 130 NLRB 394,
controls the instant case and requires rejection of the contention that the Union
had secured a valid majority designation at the time of its bargaining demand on
August 15. The General Counsel asserts that the rule of the Englewood Lumber
case is limited to a situation where employees are solicited to sign by representations
that the cards are to be used only for the purpose of securing an election.
To me the nature of the cards in the instant case so clearly indicates a designa-
tion of authorization for representation that strong and convincing evidence would
be required to show that the cards in fact merely amounted to a request for a
Board-conducted election or that they could be so represented. The cards are regu-
lation 31/a- by 5V2-inch business reply mail postal cards. On the signature side is
captioned, in letters larger and blacker than anything else on the card, the legend:
"AUTHORIZATION FOR REPRESENTATION UNDER
THE NATIONAL LABOR RELATIONS ACT"
Following this legend there is a space for a date to be filled in by the signer, and a
space for the employer's name and the signer's job title. The statement follows that
the signer does "hereby authorize District Union Local 227, AFL-CIO, to repre-
sent me and in my behalf petition the National Labor Relations Board for an elec-
tion to determine bargaining rights." The other side bears the name and address
of the Union as the addressee. These cards show so clearly an unqualified designa-
tion of authorization that it would require, to my mind, a strong array of evidence
to establish that they were in fact signed by employees merely for the purpose of
obtaining a Board-conducted election. They are clearly unlike those in Morris &
Associates, Inc., 138 NLRB 1160.
Since the circumstances of the signing of each of the cards were litigated at the
hearing it is appropriate to analyze the circumstances surrounding each execution
of the cards in evidence in support of the Union's majority claim.
To revert for a moment to alleged instances of supervisory intimidation; in the
case of three of the signers of authorization cards, James E. Wright, Roy Lee
Wright, and James E. Thompson, Respondents assert that their signing was obvi-
ously motivated by fear and in reliance on gross misrepresentations by former super-
visor, Jerry Everly. James E. Wright, who has been assistant manager at the Owens-
boro location since sometime in October 1962, but who was a rank-and-file employee
in August 1962, testified at length as to what representations were made to him at
the time of his execution of his authorization card on August 14, 1962. He was
solicited by Jerry Everly who had been meat department manager up until a day or
two before his solicitation of Wright. Wright's account of what Everly represented
to him plainly indicates that there were no representations that the card was merely
for the purpose of an election . Rather the evidence reveals that Everly informed
S Clearly the cards of Everly and Westerfield cannot be included among those counting
toward the Union 's majority . The question is whether they indicated that some or all
other cards must be nullified.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Wright that his job was in jeopardy because he was making too much money
and that by affiliation with the Union his job status would be protected with Re-
spondent.4 The parties fully explored at the hearing the circumstances surrounding
James Wright's execution of his authorization card; from this it plainly appears that
he signed to protect his job on a representation by Everly that his lob was in peril.
This is insufficient to invalidate his act of authorization resulting from his execution
of the card.
Roy Lee Wright, who had been previously solicited by union representatives to sign
a card and had refused until he discussed the matter with his mother, did sign a card
on August 14 at the solicitation of his older brother, James E. Wright. He signed
after his brother James told him that Jerry Everly had told him that both the Wright
boys would be fired unless they signed cards. There was no representation to the
effect that the cards would be solely for the purpose of an election but it appears from
Roy Wright's testimony that he signed the card because he believed that union
representation would protect his job and that of his older brother.
James E. Thompson, Jr., signed a card after his uncle, James Wright, came to him
and told him that Everly had said that the two Wrights and Thompson were going
to be fired because they were all making too much money. He signed to protect his
job and his uncle's job. It does appear that there had been previous representations
to Thompson by union representatives that the signing of the card would lead to an
election but Thompson's testimony plainly indicates that his purpose in signing was
to have the Union's assistance in protecting his job and that of his uncle.
The evidence indicates that the cards of James Wright, Roy Lee Wright, and
James E. Thompson, Jr., were signed in order to get the job protection that would
result in their minds from union representation. In the case of these three employees
there were no representations or inducements concerning an election. They might
have been misled as to the reasons why the Union would benefit them but they were
not misled and there is no contention that they were, as to what they were signing.
These three cards must be counted in determining the Union's claim to a majority
at the time of its demand for recognition on August 15.
We now turn to those instances in which Respondent contends the signers were
induced to sign nothing more than a request for an election.
Robert Pierce, a meatcutter in the Owensboro store with 4 years' service, signed a
union card on August 9 at the solicitation of Humes and Castlen. The day before
he signed, according to Pierce's credited testimony, Hamilton had called him into
the cigarette room of the Owensboro office and asked him what he knew about the
Union's organizational efforts. Pierce's objective in signing the card, as developed
from his cross-examination, was to have the Union represent him and if an election
were a concomitant thereof that would be acceptable to him. Basically and un-
doubtedly he wanted to be represented by the Union, and he was in no way misled
in this regard. I find and conclude that there can be no genuine doubt as to Pierce's
designation of the Union as his representative and I conclude that his card must be
counted determining the Union's claim to majority.
Wesley Posey solicited, in addition to Larry Elder, employees Smith, Hunter,
Dickens, and Winstead. Concerning his solicitation of Elder, Posey testified that he
told Elder that the purpose of the card was merely to show enough interest to have
an election. He further testified on cross-examination with respect to his solicita-
tion of the other four that he told them there would be an election. With respect
to these other four it does not appear, however, that unlike the situation in the case of
his solicitation of Elder, he told them that the only purpose of the card was to obtain
an election. Elder did not testify. I find that his card should be discounted in view
of Posey's candid admission and the failure to call Elder to the stand.
Smith testified that Castlen and Posey talked to him about signing a union card
since the Union would like to represent him and petition the Board. His objective
in signing was to have union representation and to petition the Board for a union if
possible. Following his signature Smith drove to the home of Assistant Manager Ross
pursuant to a conversation in the backroom of the Owensboro store on the morning
of that day in which Ross asked Smith to meet with the union men and report back
as to what they said and get a card but not sign anything. In that conversation fol-
lowing his signing, Smith testified that he told Ross that he did not get a union card
nor sign one and that the Union wanted him to sign a card so they could represent him
and petition the Board for a union. Smith, on cross-examination, stated it was his
understanding as a result of the discussion with Posey that there might be an election
but there would not necessarily be one. This cross-examination also developed
6 Apparently James Wright had formerly been produce manager and at his own request
had moved back to a lower rated stockboy position.
WINN-DIXIE STORES, INC., ETC. 859
testimony from Smith that Posey stated that if sufficient cards were signed there would
be an election . It plainly appears to me that Smith desired union representation and
primarily intended to achieve that end by his execution of the card . I have no doubt
but what there was some reference to an election in the conversation preceding his
execution of the card , but it does not appear to be a fact that he was told that all he
would achieve would be the conduct of an election . I find and conclude that Smith's
card 5 must be counted as a valid designation of the Union for purposes of determin-
ing its majority status.
Naomi Gray's card was signed by her at her home at the solicitation of union
volunteer worker, Matthews , a Kroger meatcutter . Matthews told her of the union
benefits; while he also told her that there would be an election, I cannot conclude
from the evidence that he informed her that the sole purpose of the card was to
prepare the way for an election . I find that her card must be counted as a valid
authorization in determining the Union 's claim to majority status.
Wanda Dickens, a checker, first employed in November 1961, signed a card
for the Union on August 9. Although Posey testified that he solicited her it does not
clearly appear from his testimony that he claims to have been the one who procured
her signature . Actually, according to Wanda Dickens' testimony , the card that she
signed was given to her by a union volunteer , Gerald Stalling , who told her that a
certain percentage would have to be obtained before there would be an election.
It appears from her testimony that, however , irrespective of percentages or elections,
she wanted the Union to represent her. It clearly appears that she did not sign the
card on the basis of any misrepresentation that the sole purpose of the card was to
satisfy the requirements of the Board for the conduct of an election . I find and con-
clude that Wanda Dickens' card was a valid designation of the Union as her repre-
sentative and must be included in determining its majority status.
David Hunter , a stockman with approximately 2 years ' service at the Owensboro
store, signed a card on August 7 at the solicitation of Posey , Castlen, and Strobel,
the latter a former Winn-Dixie employee. Hunter testified on cross-examination that
three solicitors told him that the purpose of the card was to have the Union represent
him and petition the Board for an election . He understood that there would be a
petition for an election and his cross -examination reveals that the solicitors explained
the percentage requirements for a Board-conducted election. There is no indication in
the evidence that his only objective was or that the representations made to him were
that the card was designed solely to secure a Board election . Rather it appears that
he affirmatively wanted representation by the Union and this, coupled with the plain
import of the card itself, requires that David Hunter's card be counted in determining
the Union 's claim to majority status.
Jerry Bradley, who in August 1962 was a stockboy at the Owensboro location
with about 21/2 years' service , signed a union card on August 7 in Legion Park.
He was solicited by union volunteers Castlen and Strobel . According to Bradley's
testimony on his direct examination , the union volunteers explained to him the advan-
tages of union representation and he read the card over and signed it. On cross-
examination Bradley at first asserted that the presigning solicitation was to the effect
that the employees of Winn-Dixie would be better off with union representation and
the execution of the card would give the Union a right to bargain for the Owensboro
employees . Respondent introduced in evidence , however, a pretrial statement signed
by Bradley on November 7, 1962, in the Owensboro office cigarette room in the
presence of Schmidt and the Company 's attorney , Sheridan . The pretrial statement
asserts that Bradley read it and it is true and accurate and that it was given by him
voluntarily without promise or threats. It is not sworn . Among the statements con-
tained therein is one to the effect that
. one of the men told us that if we signed cards that no one would ever
know, he also told us that by us signing cards they could use those to petition
for an election . They told us that if enough cards were signed there would be
an election at a later date and that the voting would he secret. When I signed the
card I didn't regard it as my vote for the Union , I knew that there would be an
election. I expect Richard and Billy felt that way also . When I signed the card
I knew that I would have time to decide later whether or not I wanted to vote
for or against the Union.
As appears from the Board decisions in Englewood Lumber Company , supra,
and Gorbea, Perez & Morell , S. en C ., 133 NLRB 362, enfd. 300 F. 2d 886 (C.A. 1),
6I find no substance in Respondents' assertion that Smith's card was unrecognizable as
that of any person in the unit His signature thereon quite clearly is closely like his
signature on Respondents' payroll records
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the significant factor is what, if any, misrepresentations were made as to the card, not
what the signer might have understood, although conceivably his understanding
might be some evidence of what he was told . Appraising the evidence available from
Bradley in its totality, I am inclined to accept his testimony before me as more
credible. I was impressed with his demeanor on the occasion of his testimony before
me. Appraising his entire testimony , I find that he basically wanted union representa-
tion and bargaining by the Union on his behalf. It does not appear that he was
told that the sole purpose of his card would be to obtain an election . I find that
his card must be counted in determining the Union's majority status at the time of
the demand for recognition.
William Winstead in August of 1962 was working as a stockboy, checker, and in
produce; he signed a card on August 7, 1962, in Legion Park after conversations
with Castlen, Posey, and Strobel representing the Union and in the company of
Richard Smith and Jerry Bradley. He was told that the purpose of the card was
for the Union to represent employees and to petition for an election . Winstead also
was requested to give a pretrial statement to Company Attorney Sheridan in the
presence of Schmidt concerning the circumstances surrounding his execution of the
card. Although it was not introduced in evidence in the proceeding , Winstead
testified that among other things he told Sheridan and Schmidt that the union or-
ganizers had told him that by signing the card he would help to get enough cards to
file a petition . Winstead further testified that his understanding was that there would
be an election and he would have an opportunity to vote later . In the case of
Winstead it does not appear that he was told that the sole purpose of the card was to
get an election . His understanding that he might have an opportunity to vote later
is not determinative, and since it does not clearly appear that he was told by union
agents that the only purpose of the card would be to get an election I find that there is
no ground for refusing to credit his act of signing the authorization card as a valid
designation of the Union. I find and conclude that Winstead's card must be counted
in determining the Union's majority status.
George Montgomery, Respondent's produce manager at the Owensboro store since
October 8, 1962, but in August 1962 a rank-and-file employee of the produce depart-
ment , signed a union card on August 10. Similarly, Louise Bollinger , a cashier with
9 years' service at Winn-Dixie's Owensboro location, signed a card on August 14 at
the solicitation of Humes and Jerry Everly. It does not appear that any contention
is made that representations were made by union agents either to Montgomery or
Louise Bollinger that the sole purpose of the cards would be for an election. Al-
though Bollinger testified that she understood, from conversations with her husband,
that here would be an election it plainly appears that she wanted union representation
in any event. With respect to Montgomery there is no testimony or evidence con-
cerning solicitation or that he was led to believe or in fact did believe that his card
was anything other than what it purported to be, an authorization for representation
and an election . I find that both their cards must be counted in determining the
Union's majority status.
Joseph Hagan, a stockboy with about 6 months' service at Winn-Dixie's Owens-
boro store , signed a card on August 13, 1962, at the solicitation of Humes and
Strobel, the latter an ex-Winn-Dixie worker, who told him that the purpose was to
have Local 227 represent the employees and to petition the Board for an election. It
appears that Hagan also gave a statement to Company Attorney Sheridan in the
Owensboro cigarette room and in the presence of Schmidt concerning what was said
to him by the union solicitors at the time of his execution of the card. This was not
offered in evidence and it does not appear that he was told that the sole purpose of
the card was to obtain an election. I find that his card must be counted in determining
the Union's majority status.
Discounting Elder's card, I find that on August 15, 1962, the Union had obtained
valid authorizations from 13 of the 23 employees in the unit at the time of its bar-
gaining demand . It therefore was entitled to recognition unless there were present
factors justifying Winn-Dixie in rejecting its claim. Parenthetically, it may be
noted that the record would not warrant a finding that at the time of its rejection of the
Union's demand Respondents were aware of or motivated by considerations as to
alleged misrepresentation by union solicitors concerning the effect of authorization
cards.
2. The appropriate unit: The complaint alleges and Respondents ' answer denies
that employees of the Owensboro store exclusive of guards and supervisors constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
the Act. The General Counsel's memorandum brief asserts that the issue of unit has
"never been successfully rebutted." Respondents ' brief asserts that there has been
no proof by General Counsel of the appropriateness of unit asserted in the complaint
WINN-DIXIE STORES, INC., ETC. 861
and affirmatively contends that the testimony of Hamilton establishes that the group
of stores under his supervision would constitute an appropriate unit.
Since the Board's decisions in Sav-On Drugs, Inc., 138 NLRB 1032, there is no
longer a presumption in retail chain operations favoring an employer's administrative
division or a geographic area as appropriate. In that case, in finding appropriate a
unit confined to a single store of the employer's chain of drugstores, the Board an-
nounced that henceforth retail operations would be considered in the same light as
multiplant enterprises generally.
There a single store was found appropriate in view of the number and weight of
factors favoring separate treatment. The Board pointed to geographic separation,
minimal interchange with other stores, absence of a bargaining history on a broader
basis, and the fact that no labor organization sought employees on a broader basis as
circumstances militating in favor of the single-store unit. All those factors are present
here. Geographic separation of the Owensboro store from other Winn-Dixie stores
has been referred to above and is substantial. There appears to be virtually no
interchange of employees except in connection with occasional transfers as part of
management trainee programs. In fact the testimony indicates that the Winn-Dixie
policy is to hire employees for work in the neighborhood in which they live. Hamil-
ton was able to remember but a single instance of employee transfer and that appears
to have occurred more than 6 months prior to the date of hearing. These transfers
are exceedingly rare, usually in connection with plans for management training for the
employees involved. There is virtually no interchange of the type entitled to con-
sideration of substance in unit determination.
The only respect in which the unit here involved differs from that in Sav-On Drugs
is in the matter of the substantiality of the authority of the store manager. Although
there is no doubt of the supervisory status of the store manager a Owensboro, it ap-
pears that Hamilton visits, or tries to visit, each store once a week and generally ap-
pears to exercise a close day-to-day supervision over store operations such as to
minimize the autonomy of the store manager. It cannot be said that the store man-
ager possesses significant and substantial authority but he is admittedly a supervisor
and there are under him three other admitted supervisors in the Owensboro location.
Balancing all the factors it appears that the Owensboro location would constitute
an appropriate unit. Geographic separation it undoubtedly has and absence of inter-
change with other stores is clearly revealed. Realistically it is isolated from other
employee contacts. In fact and in law it stands as a unit by itself and I find it is
shown to be one appropriate for bargaining.
3. Conclusions as to refusal to bargain: Since I have found that the Union repre-
sented a majority of employees in an appropriate unit at the time of its bargaining
demand, the refusal of Respondents to recognize and meet with the Union as the ex-
clusive representative was an unfair labor practice under Section 8(a) (5). The
Respondents by their subsequent unfair labor practices could well have dissipated the
union's majority status and the Union is entitled to recognition on the basis of the
majority it held at the time of its demand for recognition. See Joy Silk Mills, Inc.,
85 NLRB 1263, affd. 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.
With respect to Respondent's assertion that the bona fides of its refusal of recog-
nition is demonstrated by Respondent's action in filing the representation petition
in Case No. 25-RM-136, I find that Respondent's refusal to bargain was not under-
taken in good faith and with a bona fide doubt as to the merits of the Union's claim.
This is shown by the series of acts of interference, restraint, and coercion engaged in
by Respondent almost from the first moment it acquired knowledge of union solicita-
tion in the Owensboro location. Respondents' extensive course of conduct amounting
to interference, restraint, and coercion is set forth fully below. See Koehler's Whole-
sale Restaurant Supply, 139 NLRB 945.
The evidence as a whole preponderates in favor of the conclusion that Winn-Dixie
unlawfully refused to bargain with the Union.
C. Interference, restraint, and coercion
The complaint alleges numerous instances of conduct on the part of Schmidt,
Merritt, Hamilton, Davis, and Ross which, as Respondents' brief concedes, if proven
would constitute violations of Section 8(a)(1). The General Counsel's brief, con-
centrating on the refusal to bargain aspects of the case as it does, merely asserts with
respect to the allegations of interference, restraint, and coercion that "the issues of
interrogation, threats, and coercion . have never been successfully rebutted."
Respondents' brief breaks down the complaint's allegations according to a pattern
of the alleged perpetrator. This approach appears to be one permissive of a treat-
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the allegations and the evidence which would neither fragmentize nor gen-
eralize the issues or the evidence.
1. C. E. Schmidt: The complaint alleges that Respondent interfered with, re-
strained, and coerced employees through the agency of Schmidt in (1) interrogating
employees concerning their own and others union activities and sympathies on or
about August 8 and 9, (2) threatening about August 8 or 9, 1962, to close the Owens-
boro location if the Union were designated as representative of the employees, (3)
threatening employees with discharge if they joined, assisted, or supported the Union
on the same dates, (4) soliciting employees to engage in espionage on August 17
and 18, and (5) promising changes in working conditions for the purpose of in-
fluencing employees respecting union representation on or about August 17 and 18.
Robert J. Pierce was, according to his testimony, aware on the morning of Aug-
ust 8, 1962, that union activity was afoot. He was called into the cigarette room of
the Owensboro store by Hamilton that morning and had some conversation with
Hamilton about the organizing campaign. Later in the afternoon of the same day
he talked with Schmidt in the same place. According to Pierce, Schmidt asked him if
he knew that the Union was attempting to organize and when Pierce said he was not
aware of that, Schmidt said, "We are not going to have any God Damn union here at
Winn-Dixie" then continued by referring to union representatives as crooks. Accord-
ing to Pierce he then asked Schmidt what they would do if the Union succeeded in
organizing whereupon Schmidt said that Winn-Dixie had over 600 stores and one
more or less did not make any difference. This conversation lasted about 10 or 15
minutes and included a discussion of the Company's assistance in defraying some ex-
penses in connection with a hand injury suffered by Pierce.
Louise Bollinger was checking at her register on August 9, 1962, when Davis di-
rected her to close her line and report to the office for a talk with Schmidt. According
to her, Schmidt opened the conversation by saying he could not ask questions but
could listen to anything she volunteered, that he wanted her to know first that they
"weren't going to have anything to do with the God Damn union " According to her,
Schmidt said that he knew they had been soliciting and he wanted to remind her of
the company benefits and of her responsibility as a senior employee to make these
benefits known to the younger ones. This conversation, according to Bollinger, lasted
about 20 minutes and, in the course of it, Schmidt said that if the Union got in they
absolutely would just lock the doors, that they had 601 stores and they did not need
this one. When Bollinger protested that she needed her job Schmidt replied that the
employees needed Winn-Dixie worse than Winn-Dixie needed them. On cross-
examination Bollinger conceded that Schmidt had previously talked to her at her
work station a number of times and had at all times conducted himself as a gentle-
man. She persisted, however, in her account that on the occasion of the interview
in the office he did use profanity as she previously testified.
George Montgomery, who signed a card on Friday, August 10, at a time when
he was a produce clerk at the Owensboro store, testified that a week later on Friday,
August 17, following receipt of the Union's demand for recognition together with
photostatic copies of the authorization cards, Schmidt talked to him, showed him
the photostatic copy of his authorization card, and asked him what the Company
had done to cause him to want union representation and why he had signed.
Montgomery answered that he wanted job security since he felt there had been
several instances where people were let go for reasons he felt inadequate but, pressed
by Schmidt, Montgomery could not give any names. All else that was said by
Schmidt on that occasion, according to Montgomery, was that the Union had at-
tempted organization before and had never succeeded.
Schmidt denied threatening employees that the store would be closed or that in-
dividuals would be discharged as a consequence of organization. He recalled the
conversation testified to by Pierce, denied saying that the Company was not going
to have a "God Damn union," and denied referring to the Union as a bunch of
crooks Concerning Pierce's testimony as to the effect of organization of a single
store out of the 500 in the chain, Schmidt testified that he did say that if the store
at Owensboro was organized, being but 1 out of 500, it would not make much
difference. He denied making the statement or using the profanity attributed to him
by Louise Bollinger. In respect to his interview with Montgomery following receipt
of the demand for recognition he testified that he followed the format of discuss-
ing company benefits and the reasons why in his opinion employees were better
off without a union.
Although Schmidt was by no means unimpressive as a witness I was more favor-
ably impressed with the demeanor of Pierce, Bollinger, and Montgomery and I
find their testimony to be more convincing. I was impressed also by their specificity.
WINN-DIXIE STORES, INC., ETC. 863
I credit their accounts and find that Schmidt engaged in interrogation 6 and threats 7
thereby interfering with , restraining , and coercing employees within the meaning of
Section 8 (a) (1) of the Act. The record does not preponderate in favor of a find-
ing that Schmidt engaged in the conduct in the nature of soliciting espionage or
promising benefits.
2. Theodore Hamilton: Hamilton , who was, as pointed out above , supervisor of
eight of the store locations in the Louisville division including the Owensboro store,
is charged in the complaint with having interrogated employees and threatened them
with discharge on August 8 and 9 and also with interrogating employees on
August 22.
Pierce's account of his conversation with Schmidt on the afternoon of August 8
is reported above. According to his testimony on the morning of August 8, Hamilton
called him into the cigarette room in the office of the Owensboro store and asked
him if he knew that the Union was trying to organize the store. Pierce said that
he did not. Hamilton continued by saying that it was not legal for him to ask
questions about the Union but if Pierce had anything to tell him he would be glad
to know about it. According to Pierce that was about the extent of the conversa-
tion after he told Hamilton that he did not have anything to say. Pierce recalled
that Hamilton discussed company benefits and asked what Pierce thought about the
Union but could not recall anything said about the reasons why employees might be
joining the Union. On the occasion of this conversation with Hamilton, there also
was discussion between Hamilton and Pierce about his hand injury and the medical
treatment therefor and the extent to which the Company might contribute toward
defraying medical expenses . According to Pierce , Hamilton visits the store as often
as twice a week and generally speaks to employees about their personal situations
and on the occasion in question had some discussion with Pierce about his hand
injury.
Richard Smith testified that sometime in the week following the first union meet-
ing (which was about August 20) Hamilton came up to him in the store and asked
if he was still for the Union and Smith said "Hell yes." Hamilton then asked him
what he thought the Union could offer and Smith set forth the types of security a
union could afford. Smith's card had been previously furnished by the Union to
Winn-Dixie in support of its bargaining request.
Hamilton recalled his conversation with Pierce on August 8, 1962, in the cigarette
room but denied asking Pierce if he knew that the Union was organizing . He con-
ceded that he probably did make the statement that it was his understanding that
the Union was organizing. He denied asking Pierce what he thought about the
Union but recalls having stated the Company's position regarding the Union as set
forth in a policy booklet issued by the Company. With respect to the conversation
referred to by Smith, Hamilton recalled talking with Smith and asking him how
working conditions at Winn-Dixie compared to those at the A. & P. stores and
when Smith replied that he preferred conditions at Winn-Dixie Hamilton asked him
if he felt that a union was necessary in the Winn-Dixie store to which Smith replied
affirmatively.
The testimony of Pierce and Smith appeared to me to be credible. I was par-
ticularly impressed with the steady and confident demeanor of Pierce and found
him most impressive as a witness . I thus find that evidence indicates that Hamilton
interrogated Pierce and Smith as to the union campaign and what they themselves
thought about the Union. This interrogation does not appear justified by any ex-
tenuating considerations such as those in Blue Flash Express, Inc., 109 NLRB 591;
it occurred in a setting comparable to that in Orkin Exterminating Company of
South Florida, Inc., 136 NLRB 399, and I find it to constitute unlawful interference.
I recommend dismissal of the allegation that Hamilton engaged in threats to dis-
charge employees since evidence thereof is lacking.
3. Marion Merritt: Merritt is charged in the complaint with having solicited em-
ployees to engage in espionage and report on union activities , promising improve-
ments in working conditions for the purpose of influencing employees' desires
respecting union representation and interrogating employees concerning their pre-
trial statements, and demanding copies of their pretrial statements . He is also
charged with threatening loss of benefits if the Union became the bargaining agent.
O The Interrogation of Pierce as to whether he knew the Union was organizing and of
Montgomery as to why he had signed constituted an unfair labor practice. P-M Garages,
Inc. et at., d/b/a P-M Parking System, 139 NLRB 987.
7 The statements to Pierce and Bollinger concerning the refusal to countenance a "god
damn union" constituted a threat proscribed by Section 8(a) (1) when uttered, as it was,
in connection with the reference to closing the store.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the testimony of witnesses for the General Counsel , Merritt came
to the Owensboro store shortly after the Union had submitted its demand for recog-
nition. Louise Bollinger recounted a conversation with Merritt on August 17 in
the cigarette room at the Owensboro store. According to her, Merritt had her card
and asked what they had done that would make her think that a union was de-
sirable. She answered by referring to job security and the matter of switching of
schedules . According to her Merritt was writing on a yellow paper pad during the
conversation and it made her nervous ; she asked him not to do it to which Merritt
replied that he wanted the notes so he would be sure to remember her answers.
She testified that following this conversation with Merritt she observed an improve-
ment in her working conditions under which she was able to get off work at her
scheduled release time contrary to her earlier experience. In the course of talking
about schedule difficulties on August 17 Bollinger accused management of favoring
other checkers and cashiers to which Merritt pointed out that she was the one who
received the incentive bonus payment for work on the health and beauty aid sales.
Bollinger testified that Merritt said that if the Union came in the health and beauty
bonus would be taken away.
About the time of this conversation between Merritt and Bollinger , shortly after
the Company 's receipt of the Union 's recognition demand , Merritt also had conversa-
tions with Smith and Hagan . According to Smith he was called into the office to talk
to Merritt on August 18 and asked what his complaint was against Winn -Dixie and
why he had signed a card . On that occasion according to Smith , Merritt gave him
a booklet outlining the basic principles of the Taft-Hartley law. Merritt promised to
correct some of the grievances . Hagan also was in conversation with Merritt on
August 18 in the stockroom. According to him , Merritt introduced himself and
said that he knew Hagan signed a card but he could not ask him why but would listen
to any comment Hagan had. Hagan said he had no complaints whereupon Merritt
went through his Taft-Hartley pamphlet with him and pointed out what the Company
could do and could not do and what the Union could do and could not do. The
conversation took about an hour according to Hagan.
Winstead related a conversation with Merritt in the cigarette room of the store in
the latter part of August in which Merritt showed him his card and asked why he
had signed and what grievances he had. Winstead recited a few of his complaints
and Merritt took notes on them and promised to improve working conditions. Merritt
on this occasion also referred to the Union's promise that Winn -Dixie would never
see his card and contended that it proved that they were liars and Winstead could
probably take it from Merritt's way of talking that he did not care for union repre-
sentatives and that they were a bunch of crooks . According to Winstead, Merritt
also referred to the fact that Winn-Dixie had well over 500 stores and one more or
less would not mean much one way or another, and if the Union came in they would
not be able to discuss things directly with him but there would be union stewards
intervening.
A number of employees testified concerning discussions Merritt had with small
groups during the first week of September 1962. Bollinger testified that she was with
a group of employees , including James Thompson , James Wright, Hagan, Ross, and
herself, when Merritt spoke to them about the first week of September and referred to
the charges , a copy of which he had with him on that occasion , and asserted that all
the charges were false except the one alleging refusal to bargain . She said that
Merritt said that any statement that employees gave to Government representatives
Winn-Dixie would like to have a copy.
Hagan testified concerning the same meeting, said that Merritt reviewed the charges
filed, and pointed out reasons why the Company 's position on each of them was
the correct one. According to him Merritt reviewed the investigative procedure,
referring to the Government men taking affidavits , and said Winn -Dixie would
appreciate it if employees would have a copy made of their statements and give
it to the Company.
Montgomery referred to a meeting of himself, Naomi Gray, William Danacher,
Frank Alvey, Paul Davis , and Montgomery which was addressed by Merritt on Sep-
tember 8. At that time Merritt went over the charges and discounted them all except
that of not negotiating. According to Pierce , Merritt said that they would probably
be asked to give a pretrial statement and the Company would like a copy of any
such statement.
Wanda Dickens, together with employees Dunn , Garner, and Simpson, was
addressed in the stockroom by Merritt . According to her he read off the charges
and stated the Company 's position with respect to them and said that the employees
would probably be contacted by a Government agent who would want a written
statement and the Company would like to have a copy of the written statement.
WINN-DIXIE STORES, INC., ETC. 865
George Montgomery was, according to his testimony, with employees Hunter,
Elder, Heady, and Bradley on September 8 when Merritt read off the charges to the
group and said that he would like a copy of statements given the Government.
In addition to the foregoing group discussions, Pierce testified that about Sep-
tember 26 Merritt talked to him alone outside the cutting room and asked if he
had given any statement concerning the Labor Board case, assuring him that he did
not have to answer and asked if he would care to tell him what was in the statement,
again assuring him that he did not have to answer to which Pierce said he would not.
Then according to Pierce, Merritt said that Pierce was making a mistake and he did
not know why he was doing it.
Merritt denied engaging in unfair labor practices alleged in the complaint, con-
ceded that he called employees together about the latter part of August, and
explained the Company's position concerning the charge which had been filed. In
the course of this meeting Merritt told the employees according to his testimony
that he understood the Union had asked for copies of statements given the Govern-
ment agents and the Company would like copies of them too. In this connection
it should be noted that the Union did write under date of August 31 to employees
who had signed cards asking the employees to request a copy of any statement given
the Board agent and mail it as soon as possible to the Union, the letter explaining
that this was necessary for the Union to stay on top of the case.
Merritt admitted the possibility of showing photostatic copies of their cards to
Smith, Winstead, and Bollinger. He asserted that in his conversation with Bollinger,
he reminded her that the beauty-aid bonus she received was peculiar to Winn-Dixie
and not in effect in unionized operations.
Concerning first the allegations relating to Merritt's request for copies of employees
statements furnished by Board agents, Merritt concedes having requested such
copies. It appears that he had knowledge that the Union had requested copies and
it also appears that his individual and group requests were restrained and, in the
case of Pierce and perhaps others, accompanied by assurances that the contents of
the statements could be kept from him if the employees so desired. It is plain,
however, that even such restrained requests for copies of or information as to the
contents of such statements constitutes interference, restraint, and coercion. Texas
Industries, Inc.; et al., 139 NLRB 365; see also Hilton Credit Corporation, 137
NLRB 56. The circumstance that the Union had also requested copies of any
statements furnished the Board cannot immunize Respondents' action.
I also find credible the testimony of Bollinger attributing to Merritt the statement
that if the Union came in the beauty bonus would be eliminated. There appears,
however, to be no support in the evidence for charges that Merritt solicited espionage
and insufficient support for the charge that Merritt promised improvements for the
purpose of dissuading union supporters.
4. Paul Davis: Davis has been at all material times manager of the Owensboro
store. He is alleged to have interrogated employees concerning their union sym-
pathies and the sympathies of other employees and to have threatened to close the
Owensboro store if the Union was selected as the bargaining representative of
employees at that location. James and Roy Wright recounted conversations with
Davis but apparently these occurred according to their testimony on their initiative,
when, after signing cards, they sought out Davis and asked him concerning procedures
on elections. The evidence does not indicate any impropriety in the conversations
between the Wrights and Davis.8
Wanda Dickens, however, testified that after she had signed a card and this had
become known to the store management through the Union's bargaining request,
she was getting off work on August 20 when Davis asked her as she was leaving the
store, "Are you going to the big meeting tonight." When she said she did not know
he said, "The Union didn't get you your job, they didn't get your pay, they didn't
get you your hours and they won't do anything else for you ... they can't." Dickens
then asked Davis if he thought the Union would succeed and he said he did not but
he was not worried in any event because if it succeeded he would be sent back home.
Louise Bollinger testified to a conversation with Davis in the cigarette room some
time about the middle of August to which she repaired in a state of nerves after a
man coming through her lane said, "Have you negotiated yet." Apparently she
volunteered the explanation to Davis that this was the cause of her state of nerves
and Davis said that management would have a job with the Company as long as it
wanted to but the employees were the ones who would lose because management
would just close the store.
8 Smith testified that shortly after he signed the card and reported to Assistant Manager
Ross on the circumstances surrounding it, he was called into the office to Manager Ross
and Assistant Manager Davis but apparently their only discussion concerned their work.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis did not testify. The allegations concerning interrogation by Davis do not
appear to the sustained by the evidence, but the undenied testimony of Bollinger and
Dickens plainly establishes coercive utterances to the effect that the store would be
closed if the Union succeeded in organizing.
5. William Ross: William Ross was the assistant store manager at Owensboro in
August 1962 and up until sometime about October 1962. He was transferred to
Louisville some time after the events here involved occurred, and at the time of the
hearing was on military leave of absence from Winn-Dixie. He did not testify.
He is alleged in the complaint to have interrogated employees concerning their
own and other employees' union activities and sympathies and to have threatened
the closing of the Owensboro store in the event the Union were successful in organiz-
ing it.
Richard Smith testified that on August 7, 1962, he was approached at work in the
store by Strobel, a friend of Smith and a former Winn-Dixie employee who asked
Smith to meet him and the union volunteers after work. Thereafter Ross called
him into the backroom and inquired what Strobel wanted and on being told Ross
asked Smith to go through with the meeting, get a union card but not sign it, and
report back to him which Smith agreed to do. Smith carried through on this pro-
gram with one variation, he did sign a union card. After signing his card as re-
counted above, he went to Ross' house and Ross asked what he found out and further
asked if he had signed a card. The following morning, which was Smith's day off,
Ross asked him to come to the store and he and Winstead were called into the office
and asked by Ross if they had heard anything more about the Union. The following
day Ross came up to Smith at work and specifically asked if Bradley and Winstead
had signed union cards.
David Hunter who signed a card on August 7 was called into the store office about
noontime on August 20, which was the date of the first union meeting, and asked
if he were going to attend the meeting that night. Hunter gave a noncommital
reply and Ross said that he thought maybe Hunter should go and help Winn-Dixie
find out what they were trying to do. The following day about noontime Ross called
him into the inner office and asked him what had happened at the union meeting and
specifically asked the names of those who attended and who were the union officials
present. While it appears from his cross-examination that Hunter has been a per-
sonal friend of Ross, that factor would not excuse the pointed questions that were
put by Ross to Hunter.
Bradley, who signed a card on August 7, testified that on that day Ross took him
to one side and asked if he had been contacted by a union official. Apparently
nothing more was said at that time when Bradley answered that he had not been.
The evidence thus indicates that Ross engaged in interrogation of employees con-
cerning their own or their fellow employees' union sympathies. It does not appear
to substantiate, however, the allegations that Ross threatened closing of the Owens-
boro store if the Union was selected as the employees' representative.
6. Improvements in wages, hours, and working conditions: The complaint alleges
that from and after August 15, 1962, Winn-Dixie granted increases in wages, em-
ployee promotions, premium rates for overtime work, and new lunch or break periods
all for the purpose of influencing employees in their choice of a collective-bargaining
representative. These are alleged to constitute unlawful interference with employee
rights under Section 8(a)(1) and also a refusal to bargain under Section 8(a)(5) of
the Act.
The record indicates that some time subsequent to Union's arrival and before the
date of the hearing in the instant case certain wage increases were granted and some
employees received promotions. There does not appear to be, however, any con-
vincing evidence tying in adjustments in wages or promotions to Winn-Dixie's un-
doubted opposition to the Union's organizing campaign. Neither do these adjust-
ments appear to be anything other than in accordance with established practice for
periodic review or in connection with a bona fide upward movement of the employee
affected. Hence they would not constitute a refusal to bargain even assuming the
exclusive representation status of the Union.
There is, however, evidence tending to indicate that coincidentally with the Union's
organizational efforts and continuing after the Union secured representative status,
innovations were made in premium pay for overtime hours and the institution of
break periods.
Respecting the matter of a change in compensation for overtime hours the testi-
mony considered as a whole quite clearly falls short of preponderating in favor of
a conclusion that Respondent changed established practice in this regard as a conse-
quence of the Union's campaign. Pierce testified that some time in July his super-
visor in the meat department, Jerry Everly, distributed to him (and quite conceivably
to others) a document in evidence as General Counsel's Exhibit No. 7 addressed to
WINN-DIXIE STORES , INC., ETC. 867
all Louisville store personnel with instructions that it was to be posted at the time-
clock and a copy given to each regular full-time and part-time employee. It is a set
of instructions as to company policy on the keeping of timecards, incorporating a
principle of rounding off to the nearest half hour and plainly indicating that hours
over 40 would be compensated at time and one-half.
In addition Merritt testified concerning a memorandum addressed to all Louisville
personnel and dated April 11, 1962, directing employees to enter on their timecards
hours actually worked and stating the policy of the management to pay time and
one-half for hours worked over 40.
A number of employees testified notwithstanding the foregoing document that in
fact they were either instructed or permitted to work overtime and before August 15
they did so either with no additional compensation, with hours offset in equal amount
from the following week, or with overtime at straight time. Their testimony tended
to indicate that after August 15 whenever they worked overtime hours they were paid
for at time and one-half.
Wanda Dickens testified that some time in the winter of 1961 or 1962 she worked
more than her scheduled hours and occasionally in excess of 40 hours but at no time
claimed wages because Everly had told her to mark down only the hours she was
scheduled for. Her testimony, however, lacks weight because of its generalized
nature and the fact that it was given in response to leading questions.
Jerry Bradley, although contending that he worked overtime prior to August 15
for which he did not receive time and a half, and worked overtime after August 15
for which he did receive time and a half, testified on his cross-examination that he
never worked as much as 40 hours until some time in midsummer although he appar-
ently did work occasionally over his scheduled 32 hours.
Winstead, Montgomery, and Louise Bollinger also testified concerning the Com-
pany's overtime practices. Their testimony is not convincing to establish any change
in practice from straight time or no premium for hours over 40 to a practice of time
and a half for hours over 40.
The only testimony concerning the establishment of an employee practice of lunch
periods or break periods after 6 hours' work was given by Montgomery. He was
assisting Davis, the store manager, on the Friday before Labor Day of 1962 and he
proposed to work a crew 7 hours straight. At that time, according to Montgomery,
Davis told him that was impossible because of new instructions from Merritt requir-
ing a lunch hour after 6 hours worked. Previously, according to Montgomery, lunch
was eaten whenever time was available. This isolated instance falls short of estab-
lishing by the requisite preponderance of evidence that Respondents' established
practice before August 15 was settled in one way and was thereafter changed to
another way, and that this was done to affect employee allegiance to the Union. I
shall recommend dismissal of the allegations set forth in paragraph 5(e) of the
complaint.
D. The liability of Winn-Dixie Stores, Inc.
The pleadings establish that the Respondents have common officers, directors, and
operators and that the common directors and operators formulate and administer a
common labor policy for both Winn-Dixie Stores, Inc., and Winn-Dixie Louisville,
Inc., I also attach significance to the fact, established by Schmidt's testimony that
Winn-Dixie Louisville does not have a separate board of directors of its own but that
the Winn-Dixie Stores, Inc., board sits as the ultimate managerial authority for both
parent and subsidiary. Although there are some elements of autonomy in the
Louisville division they relate to relatively minor details governed by local competi-
tive circumstances, and the basic labor relations policy of the Louisville operations are
clearly revealed by the evidence to be those emanating from the Jacksonville head-
quarters of the parent concern. This is forcefully revealed by General Counsel's
Exhibit No. 8, a letter from Schmidt on the Louisville letterhead but clearly emphasiz-
ing that the labor policies are those of the entire Winn-Dixie chain, and that Owens-
boro workers are regarded as part of the "Wmn-Dixie team" which has been in
business for more than 40 years, and has more than 18,000 employees-not a single
one represented by a labor union because in every election "our people" have voted
against union representation. Winn-Dixie Stores, Inc., is liable together with its
Louisville subsidiary for the unfair labor practices here found. See Darlington
Manufacturing Company, et al., 139 NLRB 241.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents found to constitute unfair labor practices as set
forth in section III, above, occurring in connection with their operations set forth in
section I, above, have a close, intimate, and substantial relation to trade, traffic, and
717-672-64-vol. 143-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce among the several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
In view of my findings set forth above that Respondents , Winn-Dixie Stores, Inc.,
and Winn-Dixie Louisville , Inc., have engaged in unfair labor practices defined in
Section 8(a) (1) and ( 5) of the Act, it will be recommended that the Respondents
be required to cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. In view of my finding that Respondents engaged
in an unlawful refusal to bargain with the Union , I shall recommend that Respondent
be required to bargain upon request with the Union as the exclusive representative of
the employees in the unit found appropriate herein. I shall recommend the posting
of an appropriate notice at the Owensboro location signed by both Respondents.
Upon the basis of the foregoing findings of fact , and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. All employees of Winn-Dixie Louisville, Inc., employed at its retail store located
in Owensboro , Kentucky, exclusive of guards and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
2. At all material times the Union has been and is the exclusive representative of
all employees in the aforesaid unit for the purpose of collective bargaining within
the meaning of Section 9 of the Act.
3. By refusing to bargain collectively with the Union as the exclusive representative
of its employees in the unit found appropriate , Respondents have engaged in and are
engaging in unfair labor practices defined in Section 8 (a) (5) and (1) of the Act.
4. By interrogation of employees concerning their own sympathies concerning
union representation and the sympathies of other employees concerning union repre-
sentation , by threatening employees with reprisal if they joined , assisted , or supported
the Union or if the Union became the exclusive representative of employees, and by
demanding copies of written statements given Board agents in connection with the
investigation in the instant case, Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommended order omitted from publication.]
Gilvin-Terrill , Inc. and International Union of Operating En-
gineers, Local 191 , AFL-CIO. Case No. 16-CA-1789. July -09,
1963
DECISION AND ORDER
On May 23, 1963, Trial Examiner Ivar H. Peterson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
143 NLRB No. 93.