Winn-Dixie Stores, Inc.

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b)(4)(A) is, to the extent material here, substantially the same as Section 8(b) (4) (i) (B) of the Act, as amended in 1959, I shall recommend that Respondent cease and desist from engaging in conduct proscribed by Section 8(b)(4)(i)' 10 and (ii) (B) of the amended Act, and that it take certain affirmative action which I find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 3, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Picker X-Ray Corporation, Neptune Storage Company, Inc., and Lenox Hill Hospital are persons engaged in commerce and in industries affecting commerce within the meaning of Section 8(b) (4),(B) of the Act. 3. By inducing and encouraging individuals employed by Neptune Storage Com- pany, Inc., to engage in a strike or concerted refusal in the course of their employ- ment, to transport or otherwise handle goods, articles, materials, or commodities, or to perform any services for their employer, and by inducing and encouraging an employee of Belmont Electric Company, Inc., to cease performing services for his employer, in both cases with an object of forcing or requiring Neptune Storage Company, Inc., and Lenox Hill Hospital to cease doing business with Picker X-Ray Corporation, the Respondent has engaged in unfair labor practices within the mean- ing of Section 8(b) (4) (A), prior to the 1959 amendments. 4. By threatening Lenox Hill Hospital that the electricians represented by Re- spondent would walk off the job if the installation work of the cobalt 60 unit was performed by servicemen employed by Picker X-Ray Corporation, with an object of forcing or requiring Lenox Hill Hospital to cease doing business with Picker X-Ray Corporation, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)i(4)^(ii)(B) of the Act, as amended in 1959. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] "However, Belmont Electric Company, Inc., will not be named in the order, as the record does not show that it is a person engaged in commerce or in an industry affecting commerce. Winn-Dixie Stores, Inc., and Winn-Dixie Greenville, Inc. and' Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Retail Clerks International Asso- ciation, AFL-CIO. Cases Nos. 11-CA-1456 and 11-CA-1506. August 11, 1960 DECISION AND ORDER On January 29, 1960, Trial Examiner James T. Rasbury issued his Intermediate Report in the above-entitled proceeding, finding that Winn-Dixie Stores, Inc., and Winn-Dixie Greenville, Inc., herein referred to as the Respondent, had engaged in and was engaging in certain 'unfair labor practices within the meaning of Section 8(a) (1) and (3) of the National Labor Relations Act and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that 'the Respondent had not engaged in certain other unfair labor practices alleged in the complaint to be violative of Section 8(a) (1) and (3) of the Act, and 128 NLRB No. 77. WINN-DIXIE STORES, INC., ETC. 575 recommended that these allegations be dismissed .' Thereafter, the Respondent and the Charging Parties filed exceptions to the Inter- mediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner 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 filed by the Respond- ent and the Charging Parties, and the entire record in the cases, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner, with the exceptions , additions, and modifications noted below. 1. The Trial Examiner found, and we agree, that by the following conduct, the Respondent interfered with, restrained , and coerced its employees in violation of Section 8(a) (1) of the Act: (a) On February 12, 1959, Glenn R. Kay , general supervisor of the Respondent, told employee Edwards that he had an opportunity to advance far with the Respondent , but that he "would have to stay on the right side of the fence, . . . on the side of the Company." The Trial Examiner noted that such "well turned " phrases as "keep your thinking straight," "get on the right track," "loyalty to the Company," and "the right side of the fence," were used so frequently by the Re- spondent's supervisors in their conversations with its employees con- cerning unions that their use came to symbolize a union discussion. (b) On February 20, 1959, Supervisor Kay indicated to employees Curtis and Edwards in substance that their opportunity to advance with the Respondent would be greatly enhanced if they renounced the Union. (c) In February 1959, in the presence of C. J. Benfield, the Re- spondent's district supervisor, and G. H. Deriso, general superin- tendent of the Respondent 's Greenville division, Supervisor Kay told employee Capps in substance that the Respondent would not hold any- thing against him if he told the Union that he would have nothing further to do with it. (d) In the last week of January 1959, Supervisor Deriso told em- ployee Blackmon, "I see you are due for another raise ; people have their thinking a little mixed up, they aren 't on the right track." While noting that the record contained evidence of other instances of coercive remarks made by the Respondent 's supervisors "of a nature similar to those found above," the Trial Examiner found it unneces- 1 The General Counsel and the Charging Parties filed no exceptions to the Trial Examiner's finding that the Respondent had not engaged in unlawful surveillance of a union meeting on January 24, 1959. Accordingly, we adopt the Trial Examiner's find- ing pro forma. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sary to analyze each of these conversations "for the purpose of ade- quately remedying this phase of the case." We do not agree that no purpose would be served in making findings as to each instance in which the Respondent coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. Whether or not the remedy would be affected thereby, we deem it necessary in the instant case to describe in some detail the pattern of the Respondent's coercive behav- ior in order to provide an adequate background within which to evalu- ate the Respondent's other conduct alleged to have been in violation of Section 8(a) (1) and (3) of the Act. Accordingly, on the basis of uncontroverted testimony in the record, we find that the following conduct of the Respondent also constituted interference, restraint, and coercion in violation of Section 8(a) (1) of the Act; (a) In January 1959, Harley Dotson, manager of one of the Re- spondent's Hendersonville stores, told employee Capps, "I guess you know what brought this mess on, cutting the hours and you all get- ting the raise, this union mess. . . . I hope whoever got this mess started will have to suffer the consequences." (b) Late in January or the beginning of February 1959, Super- visor Benfield came into the backroom of one of the Respondent's stores and after asking employee Coggins whether he understood the letter written by Clary, vice president of Respondent, asking em- ployees to oppose the Union, he told Coggins that he hoped his thinking was straight. (c) About the same time, Store Manager Dotson spoke to Coggins and said that Dotson "didn't like the damned Union," that Coggins should get his thinking straight, that if Coggins had his "feet wet" he had "better get them dry," and that Dotson hoped that Coggins was on the "right side." (d) In February 1959, in a discussion as to why employee Curtis did not receive a raise in January, Supervisor Benfield told Curtis that he wanted him to get his "thinking straight" and "to get on the right side of the fence." (e) In February 1959, Supervisors Kay and Deriso told employee Taylor that his work was satisfactory and that he had a fine future with the Respondent. Supervisor Kay then stated that he knew that a lot of employees had signed cards and attended union meet- ings, but that the Respondent was "willing to forget all of this if you are . . . we will just wipe the record clear, and you wash your hands of the whole deal and we are all straightened out." Kay also said that, as Taylor was an old employee, other employees looked to him and therefore Taylor "ought to get out there and try to get their thinking straightened out." (f) In the middle of February 1959, Supervisors Kay, Benfield, and Deriso spoke to employee Coggins, saying that they thought Coggins WINN-DIXIE STORES , INC., ETC. 577 would like to get ahead and that they thought that Coggins would be "a good man to get in behind Mr. Trull [one of Respondent's supervisors] and break this thing up, get the boys over on my side." (g) At the end of February or the beginning of March 1959, Super- visor Benfield spoke to employee King and said that he should "keep his thinking straight about the Company." (h) In March 1959, Supervisor Kay and Store Manager R. W. Carland told employee Pace that they wanted him to "get his thinking straight on a few matters" and that they knew that Pace had been going to union meetings and had been talking to other employees on the job. Kay told Pace that when Kay was a young man "he had his thinking wrong and that he had talked with some of the super- visors and they got his thinking straightened out, and then he went ahead." Kay and Carland also told Pace that they knew that he was one of the Union "ring leaders." (i) In the middle of April 1959, Store Manager Dotson asked em- ployee Walker, "Are you on the right side yet?" (j) On April 22, 1959, Store Manager Dotson told Coggins, "I don't know how deep you have got into this union business, but I guess you have got in about as deep as you can go." Dotson reminded Coggins that he had spoken to him previously about getting his "feet dry," "but it looks like you have forgot about that." When Coggins asked Dotson to evaluate his work, Dotson said that it had been "all right," but "you just leave this union and you have still got a chance to get ahead." (k) Early in May 1959, Supervisor Deriso told employee Lusk, "A nice man like you with a bright future that you have ... I would hate to see you mess it up." Deriso then told Lusk that the Respond- ent would take away some of the employee benefits and that the Union could do nothing about it, and, finally, "I hope you get some of the other boys on the right track." Sb. Unlike the Trial Examiner, we find that the Respondent impeded the Board in the exercise of its authority to subpena witnesses to tes- tify at Board proceedings and interfered with the right of employees to testify at Board proceedings, in violation of Section 8(a) (1) of the Act. In reaching this conclusion, we rely on the following conduct of the Respondent : (a) Sometime in February 1959, employee Hudgins showed a Board subpena z which she had received to Store Manager Dotson. He asked her, "Where in the hell did you get it?", and he told her that she did not have to honor it. Dotson also told Mrs. Hudgins that she must have gone to a union meeting to have received the subpena, 2 This subpena and others hereinafter referred to were issued in connection with Board hearings held on February 24 through 28, 1959, and March 10 through 12, 1959, on a representation petition filed by the two unions , the Charging Parties herein , in Case No 11-RC-1212, 124 NLRB 908. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and he asked her whether she could go anywhere else to make more money than she was making with the Respondent. Finally, Dotson told Mrs. Hudgins that she would not be paid for the time that she took off when she went to testify. After Mrs. Hudgins left, Dotson told employee Capps that Mrs. Hudgins had "run her mouth to that union bunch and got herself in a mess of trouble." (b) On or about March 9,1959, Supervisor Kay and Store Manager Carland spoke to employee Pace in the backroom of one of the Re- spondent's stores. Kay and Carland brought up the subject of the subpenas and they told Pace that he "didn't have to come," and that, "the subpena didn't mean anything." (c) In March 1959, Supervisor Kay called employees Taylor and Embler into the backroom of one of the Respondent's stores. Kay told them that he knew that some of the employees were going to get subpenas to appear at the Board hearing and these employees did not have to honor the subpenas as "the Hearing Officer doesn't have any authority whatsoever." Taylor asked whether Kay meant that they did not have to honor the subpenas, and Kay said, "Well, there are two or three kinds of subpenas. I am not telling you that you do not have to honor the subpenas, I am just telling that if you go up there you go on your own." (d) In March 1959, Supervisor Kay told employees Lively and Suttles that they didn't have to appear pursuant to the subpenas if they didn't want to, that they could go if they wished to, but if they went, "they were on their own." The Trial Examiner found that the attitude of the Respondent toward its employees with respect to the subpenas was one of "ex- pressed indifference," and, accordingly, he concluded that the Re- spondent had not violated Section 8(a) (1). We do not agree. The record, in our view, establishes that the Respondent attempted to persuade its employees not to honor the Board subpenas and that, in doing so, it used veil threats to intimidate them into ignoring the subpenas. The theme running through the statements of the Re- spondent's representatives to employees regarding the subpenas was that they were not obliged to honor the subpenas, but if they did so they would be "on their own." By use of the phrase "on their own," we find that the Respondent intended to, and did, convey to employees the idea that they might be penalized in some manner if they honored the Board's subpenas. This conclusion is further supported when we view the statements regarding the subpenas in the context of Re- spondent's other coercive and threatening remarks concerning union activity which we have found to be in violation of Section 8(a) (1). Significantly, several of the statements of the Respondent 's super- visors with respect to the subpenas were made in the very same WINN-DIXIE STORES, INC., ETC. 579 conversations in which the supervisors made other remarks to the employee which we have found to be unlawfully coercive.' The Respondent contends that its conduct was lawful inasmuch as it merely indicated to employees the applicable law as to subpenas. We cannot view the statement that one may ignore a Board subpena if he so wishes to be an accurate statement of the law. The Act and the Rules and Regulations of the Board provide clearly that a per- son served with a subpena is required to appear and to give testimony pursuant to such subpena. Section 11(1) of the Act empowers the Board or its agent to issue subpenas "requiring the attendance and testimony of a witness." [Emphasis supplied.] 4 The Respondent argues that a person is under no obligation to honor a subpena as he may move to have the subpena revoked.5 However, the Respondent ignores the fact that at least until the person served with the subpena petitions to have the subpena revoked, he continues to be under an obli- gation to appear pursuant to the subpena. Nor, contrary to the Re- spondent, do we consider relevant the fact that only a United States district court may enforce a subpena.s The Respondent confuses a person's obligation to honor a subpena with the procedure for enforc- ing this obligation. The obligation to honor the subpena arises im- mediately when the subpena is duly issued and served. It is only when the person served fails to fulfill this obligation that the necessity arises to seek enforcement of the obligation in the district court.7 Accordingly, we find that the above-described conduct of the Re- spondent interfered with the right of employees to participate in pro- ceedings before the Board and that this conduct further tended to impede the Board in the exercise of its power to compel the attendance of witnesses at its proceedings and to obstruct the Board in its inves- tigation. As this conduct had the tendency to deprive employees of vindication by the Board of their statutory rights, it violated Sec- tion 8 (a) (1) of the Act.8 s For example, the statement that Supervisor Kay and Store Manager Carland made in March 1959 to employee Pace that the subpena did not mean anything were made in the same conversation in which the supervisors told Pace that they knew that he was one of the Union's ringleaders and that they wanted to get his thinking straight. * See also Rules and Regulations , Series 8, Sec. 102 31(a). 5 Sec. 11 ( 1) ; Rules and Regulations , Series 8, Sec. 102.31 (b). e Sec. 11(2) ; Rules and Regulations , Series 8, Sec. 102.31(b). 7 In recommending the dismissal of this allegation of the complaint , the Trial Exam- iner relied particularly on the Board's decision in Babcock and Wslcox Company, 114 NLRB 1465, in which, according to the Trial Examiner , the Board found a "much stronger case" of interference with Board subpena power to be lawful. We believe that the Trial Examiner entirely misses the point of the decision in Babcock and Wilcox. There (at p. 1468 ), the Board expressly pointed out that the "significant " fact was that the employee involved had already decided not to appear at the bearing pursuant to the subpena and therefore that he "could not have been induced or encouraged to do some- thing he had already decided to do himself " Here, however, the employees involved were determined to appear at the hearing and, despite the intimidatory efforts of the Respondent, many of these employees in fact appeared in response to the subpena and testified. 8 Personal Products Corporatson , 108 NLRB 743 , 749, Alterman Transport Lsnes, Inc., 127 NLRB 803. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Trial Examiner found, and we agree, that the Respondent, by assisting various employees in withdrawing from the Union, vio- lated Section 8 (a) (1) of the Act. However, in reaching this conclu- sion, we do not adopt the seventh paragraph in section III, E, of the Intermediate Report. 4. Unlike the Trial Examiner, we do not find that the Respondent discharged employee Hamilton on or about January 29,1959, for union activity, in violation of Section 8(a) (3). We do not believe that the. General Counsel has established by a preponderance of the evidence that the Respondent had knowledge of Hamilton's union activity or that Hamilton's refusal to obey his supervisor's instruction was not the real reason for his discharge. The Trial Examiner's finding that the Respondent knew of Hamil- ton's union activity was based solely on Hamilton's testimony that immediately before his discharge, he attended the union meeting on January 24, 1959, at the labor temple in Asheville and that at the time of the meeting, Supervisors Benfield and Bailey drove by the labor temple in an automobile. According to Hamilton, he and his father walked to the corner and, when Benfield and Bailey stopped for a red light, Benfield looked toward him. On the basis of this testimony,, the Trial Examiner concluded that "either Benfield or Bailey could easily have seen him." We note, initially, that the Trial Examiner did not find that any of the Respondent's supervisors did in fact see Hamilton but rather that they could have seen Hamilton. We do not believe that a finding that the Respondent had knowledge of Hamilton's union activity may be predicated on the mere possibility that one of the Respondent's supervisors could have known of Hamil- ton's union activity. Moreover, Hamilton, whom the Trial Examiner apparently credited, testified only that Benfield looked toward him and not that Benfield indicated in any way that he saw or recognized Hamilton. Benfield and Bailey, whom the Trial Examiner did not. expressly discredit, testified, on the other hand, that they did not recognize any employee on that occasion. As the only testimony sup- porting the Trial Examiner's finding as to knowledge is ambiguous and there is clear testimony to the contrary, we find that the record does not establish that the Respondent had knowledge of Hamilton's union activity. The Respondent contends that Hamilton was discharged because on January 24, 1959, he refused to obey the instructions of his super- visor, Roy Trull. The record is clear that the incident relied upon by the Respondent in fact occurred.9 While there are certain incon- s while Hamilton testified that this incident took place 3 to 4 weeks prior to his discharge, his testimony was contradicted by the testimony of Store Manager Dotson, Supervisor Trull, and employee Coggins. In numerous other respects, Hamilton's recol- lection at the hearing proved to be faulty and the Trial Examiner did not even mention, Hamilton's version of this incident. WINN-DIXIE STORES, INC., ETC. 581 sistencies in the testimony of the Respondent's representatives with respect to Hamilton's discharge, particularly between the testimony of Store Manager Dotson and Supervisor Trull, we are satisfied that these inconsistencies relate to details surrounding Hamilton's discharge rather than to the only material question herein, namely, whether this incident was the real reason for Hamilton's discharge. Our conclu- sion that the incident was the real reason for the discharge is further supported by the fact that other employees were standing with Hamil- ton outside the labor temple on January 24, whom Benfield and Bailey "could have seen," and yet no reason is suggested why Hamilton, a part-time schoolboy employee, who was not a leader in the union movement, should have been singled out for discharge because of his union activity. Accordingly, we shall dismiss the allegation of the complaint that the Respondent unlawfully discharged Hamilton. 5. The Trial Examiner found, and we agree, that the Respondent did not violate Section 8(a) (3) by discharging, on or about April 27, 1959, employees Capps, Coggins, Pace, and Walker. In adopting the Trial Examiner's recommendation for dismissal of this portion of the complaint, we note that the Respondent's action with respect to these employees is not without suspicion, in view of the Respond- ent's animus against the Union, and, more particularly, in view of the unlawful coercive statements which representatives of the Respondent had made to these employees at various times prior to their discharge. However, in light of the fire which occurred at one of the Respond- ent's Hendersonville stores, which the Respondent contends made the discharge of these employees necessary, we are not persuaded that the record establishes by a preponderance of the evidence that these discharges were motivated by any union consideration. We shall therefore dismiss these allegations of the complaint. 6. We shall also adopt the recommendation of the Trial Examiner and dismiss the complaint insofar as it alleged that the Respondent violated the Act by refusing pay increases to employees Curtis and Edwards and by discharging employee Bailey because of union activity. ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Winn-Dixie Stores, Inc., and Winn-Dixie Greenville, Inc., their officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Threatening or coercing employees because of their member- ship or interest in or activities on behalf of the Amalgamated Meat 577684-61-vol. 128-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cutters and Butcher Workmen of North America, AFL-CIO ; Retail Clerks International Association, AFL-CIO; or any other labor organization. (b) Threatening their employees with reprisals for participating in Board proceedings or otherwise seeking to persuade employees to forego participation in Board proceedings. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at each of their stores in Asheville, Hendersonville, Waynesville, and Brevard, North Carolina, copies of the notice at- tached hereto marked "Appendix." 'a Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Company's representative, be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by them to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Eleventh Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. IT IS FURTHER ORDERED that the consolidated complaints herein be, and they hereby are, dismissed insofar as they allege that the Re- spondent violated the Act by engaging in surveillance of a union meeting on January 24, 1959, by refusing to pay increases to em- ployees Curtis and Edwards because of their union activity, and by discharging employees Hamilton, Capps, Coggins, Pace, Walker, and Bailey because of their union activity. 10 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 policy of the National Labor Relations Act, we hereby notify our employees that WINN-DIXIE STORES, INC., ETC. 583 WE WILL NOT threaten or coerce our employees because of their membership, interest in, or activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO ; Retail Clerks International Association, AFL-CIO ; or any other labor organization. WE WILL NOT threaten our employees with reprisals for par- ticipation in Board proceedings or otherwise seek to persuade our employees to forgo participation in Board proceedings. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO; Re- tail Clerks International Association, AFL-CIO, 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 mu- tual aid or protection, or to refrain from any or all such activities. All our employees are free to become or refrain from becoming members of the above Unions, or any other labor organization. WINN-DIXIE STORES, INC., WINK-DIXIE GREENVILLE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This consolidation proceeding with all parties represented was heard before the duly designated Trial Examiner in Asheville, North Carolina, between August 18 and September 3, 1959, on complaint of the General Counsel and answer of the Re- spondent. The issues litigated involved the alleged violation of Section 8(a)(1) and (3) of the Labor Management Relations Act, as amended, herein referred to as the Act. Briefs were submitted by the General Counsel and the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE RESPONDENT The Respondent, Winn-Dixie Stores, Inc., a Florida corporation maintaining its headquarters and executive offices at Jacksonville, Florida. Respondent owns, con- trols and operates a subsidiary known as Winn-Dixie Greenville, Inc., having its office and warehouse facilities at Greenville, South Carolina. The Winn-Dixie Greenville, Inc., operates retail grocery stores located in parts of South Carolina, North Carolina, Virginia, and Tennessee. During the calendar year of 1958, Winn-Dixie Greenville, Inc., had sales valued at approximately $115,000,000. I find that the Respondent is engaged in commerce within the meaning of the Act. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,. and Retail Clerks International Association, AFL-CIO, herein referred to as the Union or Unions, are labor organizations within the meaning of Section 2(5) of the. Act. III THE UNFAIR LABOR PRACTICES A. Background Shortly after the first of January 1959, the Unions involved herein sought to. organize a unit of the Respondent's employees consisting of the Respondent's retail food stores located in the cities of Asheville, Hendersonville, Waynesville, and Bre- vard, North Carolina. These stores are all located within the territory of the oper- ating division, Winn-Dixie Greenville, Inc., and these stores comprised the district supervised by District Supervisor C. J. Benfield, referred to herein as the Benfeld' district. The organizational efforts of the Unions resulted in a joint election petition: being filed on January 26, 1959.1 At the time the election petition was filed, and at all other material times herein, there were five retail grocery stores operated by the Respondent within the city of Asheville, one retail grocery store in Waynesville, and one in Brevard. At all material times hereto, until April 26, 1959, there were two retail grocery stores operated by Respondent in the city of Hendersonville. On the evening of Sunday, April 26, one of the two stores within the city of Henderson- ville was destroyed by fire, and the Respondent has since disposed of the property- and has no intention of replacing this store. The Respondent was opposed to the Unions herein? The General Counsel has alleged that during the period from January through July 1959, the Respondent com- mitted several acts of interference violative of Section 8(a)(1), six payroll sever- ances as discharges in violation of 8(a)(3) and (1), and two acts of discrimination in connection with pay increases to two employees as violations of 8 (a) (3) and (1) of the Act. With this general background picture, we turn to a consideration of the. evidence as it relates to each alleged violation. B. Interrogation, threats, and promises Woodrow Edwards started to work for the Respondent in one of its Asheville stores as a part-time employee in April 1955. In 1956, he became a regular em- ployee, and at all pertinent times herein he was classified as an assistant grocery manager.3 Edwards testified that on February 12, 1959, while he was working at the Asheville Westgate store, G. R. Kay, a general supervisor of the Respondent, "told me I was a young man in the Company, I had great promises, that 'I had a chance to advance, far, and he said, of course if I did this I would have to stay on the right side of the fence, and I would have to stay on the side of the Company, and back the Company in everything, and that is just about the only thing the conversation con- sisted of." Employee William Curtis, an assistant meat market manager in the Asheville Westgate store, and Edwards both testified substantially the same con- cerning a conversation with Supervisor Kay on or about February 20, 1959. In this conversation, Kay related that he knew Curtis and Edwards were involved with the Union, that it was possible to make mistakes, but that if the two employees would go to their respective department heads tell them that they had washed their 'See 124 NLRB 908, wherein the Board issued Its Decision and Direction of Election. 2 See General Counsel's Exhibits Nos. 2A and 2B, wherein the Respondent set forth in a letter to the employees : "We don't want you to join a union, and we don't want to deal with a union." 8 Throughout the hearing, the parties frequently used the expression " full-time em- ployee" when they were referring to a "regular employee." Regular employees were paid on a weekly salary, and part-time employees were paid by the hour, but in many instances worked a "full schedule" or as many hours per week as did the regular em- ployees. Part-time employees were hired by the local store management and did not complete an application form. In addition to receiving their pay on a weekly salary basis, the regular employees received certain other benefits that did not inure to the part-time employees such as paid vacations, paid holidays, insurance, etc. In the Board Decision and Direction of Election, supra, footnote 1, the assistant department managers were found not to be supervisors for the purposes of the Act. Edwards comes within this latter category. WINN-DIXIE STORES, INC., ETC. 585 hands of this whole union deal, and were willing to talk the Union down, that he could almost guarantee them a raise in salary. William Edward Capps, an employee in the produce department at the Main Street store in Hendersonville, testified that in February 1959, Kay, Benfield, Deriso, and Dotson, all of whom were Respondent's supervisors, talked to him concerning the quality of his work, his future with the Company, etc. In this conversation, Capps stated that Kay said, "if you have been over there to the union meetings and signed the cards, signed a card, or have got anything to do with it, I want you to feel free to wash your hands clean of it, go over there and tell them you don't want anything else to do with it. We won't hold anything against you if you will do that. We will forget about you had anything to do with it." Mickey Ronald Blackmon, who is no longer employed by Respondent, testified that Between January and July 1959 he had about four sessions with Supervisors Kay, Benfield, and Deriso; that in each "session" the Union was mentioned only indirectly; and that on one occasion Deriso said, "I see you are due for another raise; people have their thinking a little mixed up, they aren't on the right track." Respondent Supervisor Kay denied that he guaranteed a raise in pay to either Ed- wards or Curtis. Kay testified, however, that he had talked to Edwards and Curtis in February 1959 and that the conversation had concerned promotions and advance- ment with the Company. This is not a case in which the Respondent's conduct was clearly black or white, but instead was consistently in the "gray" area. The Trial Examiner was particularly impressed, however, with witness William Curtis, and, while I do not discredit all of Supervisor Kay's testimony, I am of the opinion that remarks were made by Kay on or about February 20, 1959, that indicated to these -employees that their future with the Respondent would be substantially better if they renounced the Union. The remarks by Kay to Capps, as related above, are in .a similar vein, and I accept Capps' version of this remark as an accurate and truthful one. While the promise of benefit in the remarks by Kay to Capps are more subtle and veiled than in the case of the conversation with Edwards and Curtis, I am nevertheless convinced that all these employees were led to believe, by Supervisor Kay's remarks, that their opportunities to advance with the Respondent, both in salary and position, would be greatly enhanced if they renounced the Union Supervisor Deriso did not deny the conversation with Blackmon Blackmon stated that the Union was not mentioned directly in his "four sessions" with the supervisors between January and July 1959. Blackmon appeared to be an intelligent young man, and I do not believe it was necessary for each conversation to begin with the words "I want to talk to you about the Union," in order for him to accurately and properly understand the conversation. Practically every witness for the General Counsel testified as to the frequency of such remarks by Respondent's supervisors as: "Keep your thinking straight," "get on the right track," "loyalty to the Company," and "the right side of the fence." Such remarks standing alone may not be violative of the Act, but when coupled with a remark concerning a raise in pay as I find was made to witness Blackmon, it becomes coercive.4 In the Trial Examiner's opinion, the expressions occurring as they did, clearly con- tained threats of reprisal or promise of benefit if the employees refrained from cer- tain permissible union action, and thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. There were other instances of coercive remarks made by Respondent's supervisors of a nature similar to those found above, but this Trial Examiner does not deem it necessary to analyze each conversation, cumulative in nature, testified to in the course of a 3 weeks' hearing for the purpose of adequately remedying this phase of the case. General Counsel alleged and offered some evidence in support thereof that Store Manager Dotson threatened employees by telling them there would be no union workers employed at his store, and that the Respondent did not have to bargain -with the Union. Dotson denied making such statements and I credit his denial. Store Manager Southers is alleged to have threatened a closing of the store and a discharge of all part-time employees. In a heated organizational campaign such as occurred herein, there is bound to have occurred much discussion concerning the Unions, but I do not believe that Southers ever threatened a closing of any store or a layoff of all part-time employees. 4 Cf. Apex Toledo Corporation , 101 NLRB 807. Where such remarks occurred in a context of otherwise permissible 8(c) expressions , I have not found a violation. How- ever, the Trial Examiner is convinced from this record that such "well turned phrases" were used so frequently by Respondent's supervisors in their conversations with em- ployees concerning the unions, that their use came to symbolize a union discussion. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The subpena allegation The General Counsel has alleged that in February and March 1959, the Re- spondent by its supervisors or agents told certain employees that they did not have to honor Board subpenas served upon them as they were not legal and that in so doing the Respondent violated Section 8 (a)( I) of the Act. The hearing on the election petition filed January 26, 1959 (see footnote 1, supra), was held on February 24 through 28 and March 10 through 12, 1959. In connection with said hearing, a number of Respondent's employees were duly served with subpenas ad testificandum. The General Counsel does not contend that Respondent actually prevented the employees from responding to the subpenas in violation of Section 12 of the Act, but rather, by words and advice, that it discouraged the employees to respond and thereby interfered and coerced the employees in the ex- ercise of their rights guaranteed in Section 7, and thus violated 8(a) (1) of the Act. Elsie Fowler Hudgins, an employee at the Respondent's Main Street store in Hendersonville, testified that she had taken her subpena to Store Manager Dotson, and that he told her that she "didn't have to honor the subpoena." There was no explanation as to why she had gone to the manager or what she had asked him. After the witness indicated to Dotson that she "wasn't going to be left out," and that she was "going because I should honor the subpoena," there was no further effort to dissuade her from attending the hearing. The witness stated that she had appeared and testified at the election hearing. Employees Taylor and Capps, called to testify by General Counsel, indicated that they had overheard a portion of the conversation between Dotson and Hudgins. Taylor stated that Dotson had told Hudgins that she '•did not have to answer the subpena if she did not want to." Capps testified that he heard Dotson tell Hudgins that she would not get paid for the time off. Employee Curtis testified in regard to a subpena received by him for this unfair labor practice hearing that he had voluntarily gone to see Respondent's attorney, Theo Hamilton, to seek his advice; that Hamilton "told me that I could do as I please on it, that I could either honor the subpena, or not honor it, that the only way that I could be made to honor it would be through a court order." Curtis further testified that he heard Hamilton tell a fellow employee, Bill Smith, substantially the same thing. The essence of Frank Taylor's testimony was that Supervisor Kay had said, "Well, there are two or three kinds of subpenas; I am not telling you [you] don't have to honor the subpenas, I am just telling-you that if you go up there, you go on your own." Roy Trull was called by the General Counsel and testified that on or about March 9, 1959, he engaged in a conversation with Supervisor Kay in which Kay stated "that we didn't have to go, that we could go if we wanted to, and if we didn't want to go, if we went, we were on our own." At the time this conversation occurred, Kay telephoned Theo Hamilton and Trull talked to him concerning the subpenas. The pertinent portion of the testimony concerning this telephone conversation was whether Theo Hamilton had told Trull the "subpenas weren't legal, and we didn't have to honor them " At the hearing, Trull testified that Hamilton had not used the word legal in their telephone conversation, but that Hamilton had said "we could honor them if we wanted to, and if we didn't want to, we didn't have to." Trull had given a pretrial sworn affidavit to Board Agent Perloff in which Trull attributed to Hamilton the above-quoted phrase that the "subpenas weren't legal." Over the objections of Respondent Counsel, the Trial Examiner permitted the pretrial affadavit of Trull to be received in evidence for the purpose of showing the incon- sistency between the sworn affidavit and his testimony.5 At the hearing, Trull testified that the use of the word legal in the affidavit was either his own or Perloff's and was not used by Hamilton in the telephone conversation. This Trial Examiner is of the opinion that Trull's testimony at the hearing is to be credited and that Hamilton did not say the "subpenas weren't legal." In summary, I find that the evidence presented by General Counsel's witnesses, as well as the Respondent's concerning the conduct of Respondent's supervisors or agents toward the subpenas, to be one of expressed indifference. Certainly the Respondent did not go out of its way to stimulate or encouraee its employees to comply with the subpenas, but neither did it attempt to dissuade the employees from honoring the subpenas, or in fact induce any employee to ignore the subpena. The attitude of indifference expressed by the supervisors and agents leaves much to be desired, as the cornerstone of our form of government depends on affirmative compliance with the orderly processes of our judicial and quasi-judicial bodies, s General Counsel's Exhibit No. 11 See Wigmore on Evidence, vol III, section 902, for a discussion of prior self-contradictions of own witness. WINN-DIXIE STORES, INC., ETC. 587 While indifference should never be admired, it was not in this situation unlawful.6 I shall recommend that this portion of the complaint be dismissed. D. The surveillance incident The General Counsel has alleged that Supervisors Raymond Bailey and C. J. Benfield engaged in surveillance on a place of meeting of the Unions at Asheville, North Carolina, on January 24, 1959, in violation of Section 8(a)(1) of the Act. There is no dispute in the testimony, and I find that the Unions did hold a meeting at the labor temple in Asheville, attended by some of Respondent's employees on the evening of January 24, 1959. Employees Kirby Hamilton, Curtis, and Coggins each testified substantially that they saw C. J. Benfield drive by the labor temple on one occasion on the night of January 24, 1959, about 8 p.m.; that Raymond Bailey was with him; that the car was traveling approximately 15 miles per hour; that several of the employees of Respondent were standing in or about the lighted door- way of the labor temple; and that Curtis jumped on his motorcycle and followed the car for a block or two. Curtis indicated that he hollored at Benfield and Bailey when he caught up with them. Neither Benfield nor Bailey spoke to any of the employees, or acknowledged the yell of Curtis. Employee J. R. Lusk testified that he saw Bailey's car go by the hall three or four times, but this testimony I discredit because Lusk was not in any better position to see the car than were several of the other employees, and uniformly the others testified that the car only went by the labor temple once. The Respondent's two witnesses involved in this single instance of alleged sur- veillance do not deny driving by the labor temple at approximately 8 p in. on the evening of January 24, .1959. Supervisor Benfield stated that he had been working late one Saturday and after his mail was prepared for mailing, that he went to the Merriman Avenue store and picked up Store Manager Bailey. Benfield stated he picked up Bailey to go with him to look at the parking lot at one of the other stores, because he did not want to be checking the parking lots and the other stores at night by himself. Bailey was perhaps more candid when he stated that Benfield had complained about the appearance of the parking lot at his store (Merriman Avenue) and Benfield wanted to show him how a parking lot should look after closing on a Saturday evening. Both reasons are logical and not necessarily in- consistent or at variance. After checking the Biltmore Avenue store parking lot, they drove down French Broad Avenue past the labor temple and turned right and proceeded to the post office. This then is the factual picture upon which the General Counsel basis his allegation of surveillance. French Broad Avenue is one of the main downtown streets of Asheville, and at all times carries considerable traffic. For Respondent's supervisors to have merely driven past a downtown building where some of Respondent's employees were having, or about to have, a meeting does not establish a surveillance. The rate of speed of the car was not questioned as being unusual under the circumstance. This Trial Examiner accepts the reason given by the supervisors as to why they happened to have been passing the labor temple on the night of January 24, 1959, and regards the fact that some of Respondent's employees were holding a meeting in the labor temple on that evening as a mere coincidence which does not raise even a suspicion of illegality. This would be true regardless of whether Benfield or Bailey did or did not recognize any of the employees. Certainly, this coincidence of events falls far short of the burden of preponderance of proof that is required of the General Counsel. I shall recommend that this allegation of the complaint be dismissed. See Reeves Brothers, Incorporated, et al., 116 NLRB 422. E. Employees' withdrawal from the Unions The General Counsel has alleged that Respondent Supervisors Bailey, Robinson, Southers, and Dotson, during July 1959, did instruct and/or order certain employees to write letters to the Unions withdrawing their membership, and that said alleged conduct is violative of Section 8(a) (1) of the Act. The evidence introduced at the hearing concerning the allegation is confined to letters of withdrawal from the Unions written by employees Curtis, Lusk, Ball, and Halford. e See Babcock and Wilcox Company, 114 NLRB 1465, wherein a much stronger case of interference by Respondent's attorney than that presented in the instant case was found by the Trial Examiner to be violative of 8(a) (1), but the Board rejected this conclusion and dismissed the complaint. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Curtis testified that in July 1959, the meat department manager, Albert Payne (a supervisor employee), "had been to a managers meeting in Mr. Benfield's office, and he said [to Curtis] that the Company had a form, that we could get the form of a letter to write to the Union saying we had resigned from the Union, and that he would advise me to write one." A few days later in a conversation with Store Manager Southers, Southers related that he was glad Curtis was through with the Union, and that he would provide him with a copy of resignation form that he could use. Upon receipt of the form letter that same day from Southers, Curtis took it to the bookkeeper of the store who wrote the letter to the Union for him (see General Counsel's Exhibit No. 4) and Curtis signed it. As the letter was being signed, Southers walked into the office, took the letter from Curtis, and said that he would mail it for him. Albert Payne did not testify. Southers' testi- mony differed from Curtis' only that Southers testified Curtis approached him saying that he wanted to get out of the Union, and that "I am fed up with it." Employee Lusk testified that he advised Store Manager Robinson of his desire to resign from the Union; that in July 1959 Robinson called him into his office and said, "I have a letter for you. If you will sign it, I will mail it to them." Lusk then identified a handwritten letter as the one he had signed (General Counsel's Exhibit No. 5-A). Lusk stated that he signed an original and two carbons of the letter and that he kept a carbon and Robinson kept a copy. The original was then placed in an envelope that Lusk saw Robinson address to the Union (General Counsel's Exhibit No. 5-B). Respondent's witness, Robinson, admits writing the letter and addressing the envelope, but relates that Lusk had requested his assistance on two or three prior occasions. The contents of the letter was taken from a form letter provided Robinson by General Superintendent Deriso. Employee Ball testified that he went to Roy Trull, the grocery department man- ager at the Respondent's Hendersonville, North Carolina, store, and asked for assist- ance in the preparation of a letter of resignation from the Union.7 Ball explained that Trull did assist him in the preparation of his letter withdrawing from the Union. Ball's testimony stands undenied in the record. Halford related that he had heard that Trull, who had once belonged to the Union, had withdrawn from the Union, and that he went to him and asked assist- ance in the preparation of a letter of resignation. Halford testified that Trull gave him a copy of his letter, and that thereafter no further assistance was rendered. Halford's testimony is undenied. The store managers that testified admitted having received a form letter at a supervisor's meeting that was to be provided employees who desired to withdraw from the Union. Section 8(a) (1) states that it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guar- anteed in Section 7. This Trial Examiner cannot construe the word "interfere" as used in the Act to mean that an employer must turn his back to an employee seeking assistance in exercising his Section 7 rights. Where the initiative comes from the employee for assistance in performing a ministerial act which the employee has independently concluded should be done, and a minimum of assistance is rendered by the employer in the performance of said act, this does not constitute interference in violation of the Act. If the testimony of Halford and Ball stood alone in this record, the allegation would fail. However, it should be weighed in the light of -all the evidence concerning this allegation. There is some conflict in the testimony as to whether Curtis initiated the action in requesting assistance in resigning from the Union, but the unrefuted comments attributed to Meat Department Manager Payne cannot be ignored. I credit Curtis and find that Respondent initiated the action of Curtis in resigning from the Union. But wholly apart from who initiated the action, the Respondent went too far when it either prepared (as it did for Lusk) or permitted preparation of the letter by a bookkeeper, then took the letters and actually addressed the envelopes, and saw to the mailing of the letters. Respondent did more than perform a mere ministerial act. The Trial Examiner has noted that all four letters of resignation are almost identical in language The prenaration of a form letter by Respondent, when viewed in the light of the heretofore found coercive remarks ("washing their hands of this whole union deal") is further indication of interference. I find that Respondent, under all the circumstances of this case, interfered with the rights guaranteed to employees by their acts of preparing a form letter and by their acts ,of actually writing and mailing the union resignation letters. See The Jefferson Com- pany, Inc., 110 NLRB 757 at 771. and related cases cited in footnote 20 therein. Also Watson Bros. Transportation Company, Inc., 120 NLRB 146. ?In its representation decision , the Board determined that the grocery department managers were supervisors. WINN-DIXIE STORES, INC., ETC. 589' F. Alleged discrimination against William Curtis and Woodrow Edwards The General Counsel alleged that Respondent denied pay raises to employees William Curtis and Woodrow Edwards on or about January 21, 1959, because of their membership in and activities on behalf of the Unions in violation of Section 8 (a) (3) and (1) of the Act. At the time of the alleged discrimination against William Curtis, he was working as the assistant meat department manager at the Respondent's Westgate store in Asheville. Curtis was first employed by Respondent in May 1955. In November 1956 he voluntarily terminated his services, and in April 1957 he was reemployed. There is some slight discrepancy between Curtis' testimony and his employment record as to whether he was rehired at $50 or $55 per week. I do not regard this minor variance, however, as significant or controlling in determining the immediate problem. Curtis received either two or three $5 per week increases between April 27, 1957 (date of last employment), and January 1959, so that he was then making $65 per week, and was considered the assistant meat department manager. On January 19, 1959, he received an additional $5 per week increase making his weekly salary $70 per week. Curtis testified that he complained to Respondent because he felt there were other employees-and particularly one Billy Dockery- occupying similar positions with the Respondent who were receiving more money then he was receiving. Curtis testified, and I find, that he was active for the Union in obtaining authorization cards. During January 1959, most employees received an increase in salary and a^ reduction of hours which has been referred to in the record as a general increase. The amount of the increase varied, but most of the salaried employees received' either a $5 or $10 per week increase. Benfield testified that after receiving authority to establish the new wage schedule in his territory, he went over each employee's status with the respective store managers and granted increases as provided in the new schedule. The schedule provided only for minimums, and Benfield had; authority to exceed the minimum if circumstances warranted. The schedule was- broken down into 6-month periods of service. So far as Curtis was concerned, he was in his fourth 6-month period since being rehired, and was receiving $65' per week which was $1 over the minimum provided for in the schedule. According- to Curtis, he had received a $5 per week increase in November 1958. The Re- spondent then raised his salary an additional $5 per week in January 1959. A careful examination of the treatment accorded Curtis fails to establish any discrimi- nation in his salary treatment. In addition, the employees with whom Curtis was comparing salaries had substantially more service with the Respondent, and some had formerly been classified nand served as meat department managers. Employee Bill Dockery had started to work for Respondent at the same time as Curtis' initial employment, but had remained continuously employed. To sustain General' Counsel's allegation would require the piling of inference on top of inference which is not only improper, but requires a conclusion which I feel does not follow from the events proved. See Interlake Iron Corporation v. N.R.L.B., 131 F. 2d 129 (C.A. 7), cited with approval in N.L.R.B. v. The Newton Company, 236 F. 2d 438 at 446 (C.A. 5). Woodrow Edwards started to work for the Respondent as a part-time employee in April 1955. In October 1956 he became a regular employee. In January 1959 he was the assistant grocery department manager at the Respondent's West- gate store in Asheville. In January 1959, when a number of salary adjustments were made by Respondent, as well as changes in the hourly rates of pay and the number of hours worked per week, Edwards did not receive an increase . He started to work as a full-time employee at $55 per week, and received a $5 per week increase in November 1957, another in July 1958, and a third in September 1958, so that in January 1959 he was receiving $70 per week. Edwards was in his fifth, 6-month period since he became a regular employee, and the wage scale used by the Respondent called for a minimum of $63.50 per week. Respondent witnesses state that Edward's record with the Company was reviewed, but it was felt that he was receiving an adequate salary, and further adjustment in January 1959 was not warranted . It should be kept in mind that what has been referred to in the record as a general increase was not the usual blanket increase for all employees, but was• the institution of a new minimum wage scale and a reduced weekly hour program that resulted in most employees receiving some adjustment. The evidence introduced by the General Counsel, as well as the brief submitted, seeks to draw the conclusion that Edwards was discriminated against solely because he did not receive an increase in January 1959, and because of a number of alleged 8(a) (1) comments by supervisors to Edwards in the months following the failure to raise Edwards. The record completely fails to prove that at the time of the 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged discrimination the Respondent had any knowledge of Edwards' union activi- ties or sympathies. Moreover, as was true in the case of Curtis, this Trial Examiner is precluded by law from drawing such an inference as the General Counsel seeks. See Interlake Iron Corporation, supra. I shall recommend that the allegation of discrimination toward Curtis and Edwards by the Respondent be dismissed. G. The discharge of Kirby Hamilton Kirby Hamilton was a part-time schoolboy employee working at the Main Street store in Hendersonville, North Carolina, as a bagboy and grocery stock clerk at the time of his discharge on January 29, 1959. Hamilton performed his duties in the early morning hours before school, the late afternoon hours after school, and on Saturday; he had been employed by Respondent as a part-time employee since Easter 1958. Hamilton had been hired by Roy Trull who fixed his hours of work and generally supervised him in the performance of his duties. Hamilton attended the union meeting on January 24, 1959, in Asheville, and was standing in front of the labor temple when Benfield and Bailey drove past the building . Hamilton stated that he and his father walked to the corner when Benfield 's car stopped for the red light, and that Benfield looked toward him. Either Benfield or Bailey could .easily have seen him. The reason provided by the Respondent on Hamilton's separation notice in the form supplied by the Employment Security Commission of North Carolina reads as follows: "Cannot work boys under 18 years of age at certain hours of day according to State Law." A great deal of this record is consumed in cross-examining Hamilton as to whether he was questioned concerning age and hours of work when hired, hours and time actually worked , and the ages of other part-time employees. But all of this cross-examination testimony assumes its true posture of a "smoke screen," when Respondent's witness, Dotson, testified on direct examination that he let Kirby Haminton go because he did not follow instructions . Dotson further testified that he had placed the reason used on the official separation notice, because he had two sons of his own and he did not want to hurt the boy in getting a job some place else. The particular incident referred to by Dotson, in which Hamilton refused to follow instructions, occurred on Saturday before Hamilton 's last day of work on January 27, 1959. On this occasion, Hamilton had been working in the backroom with Roy Trull preparatory for the receipt of a truckload of groceries. Hamilton went to the front of the store to bag groceries for the customers . He apparently worked at the front of the store for 10 or 15 minutes, and then returned to the back to con- tinue the work with Roy Trull. A short time later he was called to the front of the store by Store Manager Dotson. Again Hamilton stayed about 15 minutes and then returned to the backroom . Dotson then went to the backroom and told Hamilton that he wanted him to stay at the front of the store and "if you slip off any more, Kirby, I am not going to need you any more." According to Dotson thereafter Hamilton again returned to the backroom, but according to employee Coggins-who had continuously worked in the backroom on this occasion- Hamilton did not return to the backroom again that day. Hamilton's testimony admits a reprimand by Dotson , but sheds no light on the particular point as to whether or not he returned to the backroom after the warning by Dotson. Trull apparently was out of the store for a period of time and missed the reprimand, and was not questioned about where Hamilton had worked for the rest of the day. The conflict in reasons furnished by Respondent as to why Hamilton was dis- charged is sufficient to be suspect. However, I am further persuaded that the dis- charge of Hamilton was violative of 8(a)(3) of the Act, because of the following. Dotson testified that later in the day on the particular Saturday in question he told Hamilton he was discharged . Dotson likewise states that he told Roy Trull on Saturday that Hamilton was discharged. Roy Trull testified that the first he learned of the discharge was by a telephone call from Dotson on Wednesday, January 28. 1959, in which Dotson told him that he could not use Hamilton any more. Hamil- ton actually worked on Monday and Tuesday following the "disputed" discharge on the preceding Saturday. It is difficult to believe that an 18-year-old high school boy would report to work and actually work after being told he was discharged. This becomes particularly true after my observations of the particular boy's de- meanor on the witness stand. It should also be noted that Roy Trull testified he did not discharge Hamilton, but merely told him to see Dotson before reporting for work on Thursday, and that he had never complained about Kirby Hamilton's work. The inconsistent official reasons for Hamilton 's discharge, the weak, if not WINN-DIXIE STORES, INC., ETC. 591 incredulous, testimony surrounding the actual discharge and the timing of events following Hamilton's attendance of the union meeting on January 24, 1959, are con- vincing to this trial Examiner that Kirby Hamilton was discharged in violation of 8 (a) (3) and (1) of the Act. As Chief Judge Hutcheson stated for the court in N.L.R.B. v. Houston and North Texas Motor Freight Lines, Inc., 193 F. 2d. 394, 398 (C.A. 5) cert. denied 343 U.S. 934, it is "crystal clear" that where an employer is "set against" a union's attempt to organize the employees , "every equivocal act that was done may be properly viewed in the light of Respondent's animus toward the efforts to organize its men." Also see N.L.R.B. v. L. I. Williams, d/b/a Williams Lumber Company, et al., 195 F. 2d. 669, 672 (C.A. 4), cert. denied 334 U.S. 834. H. The discharge of Capps, Coggins, Pace, and Walker The General Counsel alleged that on or about April 27, 1959, employees William Capps, Grover Coggms, John Pace, and Kenneth Walker were discharged by Re- spondent in violation of 8 (a) ( 3) and ( 1) of the Act. The circumstances affecting these employees are basically the same in each instance , and both for the sake of clarity and brevity their cases shall be considered together. The Respondent had two stores in Hendersonville, North Carolina. One was known as the Main Street store and the other as the Fifth Avenue store. Pace was employed as a meatcutter and had worked continuously at the Fifth Avenue store since March 1950. Capps was the assistant produce manager at the Main Street store, and had commenced his employment with Respondent at said store in August 1958. Coggins was first employed by Respondent at the Main Street store in June 1959, and worked as a stockman in the grocery department. Walker first started to work as a part-time employee at the Main Street store in 1956 , became a regular employee in May 1958, and worked in the dairy and meat departments. On Sunday, April 26, 1959, the Fifth Avenue store was destroyed by fire. The location has been sold by Respondent, and it has no plans to replace the store. Benfield is the district supervisor, and had charge of all the stores in Asheville, Hendersonville, Brevard, and Waynesville; Kay is Benfield's immediate supervisor, and he had charge of seven such district supervisors; Deriso is the general super- intendent over the entire Greenville division in which there are 112 stores. Ben- field testified that he appraised Kay of the fire on Sunday evening, and at that time advised him that he would need some help in placing the people, because he did not have any vacancies in any of the other stores in his district. Benfield, Kay, and Deriso met at Hendersonville on Monday, April 27, 1959, and considered the dis- position of the employees. There had been seven regular employees and six part-time employees at the Fifth Avenue store at the time of the fire. The top supervisors determined that the store manager, Carland; the produce manager, Milton, and the grocery manager, Branton , should be transferred to the Main Street store in Hender- sonville. This meant that three regular employees at the Main Street store would be displaced unless the store could absorb them This the management determined was not practical. (The cashier-bookkeeper, Clingerpeel, was transferred to the Main Street store, but displaced a part-time employee that did not become an issue in the case. ) The reason advanced by Respondent as to why these employees were trans- ferred to the Main Street store was that it felt they would be most helpful in taking with them some of the business from the burned store . This reason I accept as being both reasonable and practical , notwithstanding General Counsel 's theory that the burned store was a supermarket of a type that did not lend itself to the estab- lishment of personal customers . But apart from accepting the reason advanced as truthful, so long as the determination was not frivolous or patently discriminatory, it was a determination the Respondent had a lawful right to make. This left then three regular employees from the burned store to be considered . Sayles and McKee were offered and accepted transfers to stores of Respondent outside the Benfield district. Pace was offered a transfer, but declined . We shall consider the circum- stances of Pace further after turning to Walker, Coggins, and Capps who were dis- placed at the Main Street store by the three employees from the burned store as related above At the time of the fire there were 14 regular employees at the Main Street store. Of these 14, Capps, Coggin, and Walker had the least service with the Respondent (Respondent's Exhibit No. 7). While there was no contractural duty or obligation resting with Respondent to displace the youngest employees , such action certainly was in accordance with the policies of many employers and cannot be regarded as discriminatory . The General Counsel offers no alternative as to who should have been selected, or reason why the selection of these three was discriminatory, other 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than the fact that these three were active in the Union . Assuming, arguendo, that Respondent did have knowledge of the union sympathies of these employees, that does no insulate them from management control and direction for valid reasons. See Huber & Huber Motor Express, Inc., 223 F. 2d 748, 749 (C.A. 5). The record is clear that the Respondent had equal knowledge of the union sympathies of some of the other regular employees at the Main Street store . This being the case, pre- sumably the General Counsel would have alleged the displacement of any of these employees from the Main Street store as discriminatory. No new employees have been hired for the Main Street store. There is no proof that part -time employees have been utilized in a manner that would impugn the motive of Respondent . Clearly the motivation to displace Coggins, Capps , and Walker was not discriminatory in violation of the Act and I so find. The Respondent, however, did not thereafter terminate Coggins, Capps, and Walker, but instead offered each of them, as well as Pace, a transfer . The material evidence on this point is not in dispute . On Monday , April 27, 1959, each of these four employees were offered a choice of from two to four different locations to which they might transfer . The Respondent offered to pay their moving expenses, and to give each an increase in salary. For personal reasons-which may be characterized as a desire to remain in their hometown of Hendersonville--each elected not to accept the proferred transfer. These employees were never dis- charged-each of them by his own voluntary choice quit. A great deal of time was consumed in the record "chasing ghosts," and attempt- ing to create "bug-a-boos" which deserve only brief comment. From the testimony of Respondent's witnesses, I find that the company policy had been to transfer employees when and where needed, and that it was frequently done. The appli- cation forms signed by Coggins, Capps, and Walker contained a statement that they agreed to accept transfer from one location to another when directed by the Com- pany While Pace's application did not contain such a statement , the policy had never varied. The crisis creating the inconvenience to these four employees was not the Respondent's act, but the fire. Even if there had never been a transfer policy, after the fire something had to be done with these employees and the Respond- ent's efforts were logical and reasonable. Effort was made to show that Pace had previously rejected offers of transfer and therefore Respondent knew he would not accept the instant offer. The prior offers had never been precipitated by an emergency . In the past the Respondent had been in a position to permit Pace to remain relegated to the duties of a meat- cutter in Hendersonville , but following the destruction of the store by fire that was not possible . While meatcutter Lewis of the Main Street store had less service with the Respondent than did Pace, he was regarded as a much more able employee and one that was doing a very satisfactory job at the store that had not burned. Respondent did not contend that they adhered to seniority , but based their personnel actions on ability of the individuals and the dictates of Respondent 's needs. Respond- ent was free to determine which employees would be transferred absent illegal discrimination . While someone else might have made a different selection as between Lewis and Pace, the selection was a question of judgment . Absent an illegal discriminatory motive the Board may not substitute its judgment for that of management. There was no equivocal conduct here as was true in the case of Kirby Hamilton. While the possibility of part-time employment , instead of transfers , for Pace, Coggins, Capps, and Walker was not offered by Respondent on April 27, 1959, there was no proof in the record that any one of these employees ever suggested or requested such part -time employment in lieu of the transfer and the fact that they did not receive such work has no probative value in determining the real issue. Furthermore, counsel for Respondent made an offer on the record to give these employees part-time positions if they desired them. There are other innuendoes in the record that had Respondent offered these employees transfers within the Ben field district that such a transfer would have been reasonable and would have been accepted . But the proof is that there were no vacancies within the Ben field district on April 27, 1959. and no new regular em- ployees had been hired in the Benfield district up to the time of the hearing. Two new meat department trainees were hired by Benfield for employment in Asheville during the week of April 20 , 1959 (before the fire), who were to report for work on April 27, 1959 General Counsel would cast suspicions on Respondent for not permitting two of the employees herein involved to have taken these positions. The Trial Examiner finds no legal basis for such suspicion . The two men had been, WINN-DIXIE STORES, INC., ETC. 593 hired prior to the fire for work in a different city. They were hired as meat depart- ment trainees to be used where needed after training. The very fact that Coggins, Capps, Walker, and Pace refused transfer from Hendersonville defeats General Counsel's desired inference that any one of them could have satisfactorily fulfilled the Respondent's purpose in hiring these two meat department trainees. General Counsel attempted to make much of a casual remark made by the assistant store manager of the Brevard store to Coggins and Walker during the week following the fire that "they could use two men out there then." It is obvious from even Coggins' testimony that the remark was a frivolous one made by Bran- ton as it related to his particular duties of the moment, and was not, nor could not become probative material evidence reflecting on the Respondent's personnel needs. The mere fact that Coggins and Walker may have seen an applicant file an application for employment while they were in the Brevard store is indicative of nothing. I shall recommend that General Counsel's allegation that employees Coggins, Pace, Capps, and Walker were discharged for discriminatory reasons in violation of Section 8(a) (3) and (1) of the Act be dismissed. 1. The alleged discharge of Sally Bailey Sally Bailey was a part-time employee at the Respondent's Westgate Asheville store and worked in the produce department. She began work in August 1958. At the time she was hired she was over the age limit adhered to by Respondent for the hiring of female regular employees, and testified that she was so advised by Respondent. Mrs. Bailey, however, generally worked a full weekly schedule of from 40 to 48 hours per week. (See footnote 3, supra, for an explanation of part-time and regular employees status.) She became interested in the Union in January 1959 and according to her own testimony was responsible for the initial union contact that resulted in the Unions herein seeking to organize Respondent. How much of her union activity, if any was known to Respondent cannot be ,determined with certainty from the record. In my opinion, the evidence of Respond- ,ent's knowledge of her union activity or sympathies falls short of the preponderance ,of proof that is required of General Counsel. The only direct evidence that Respondent had knowledge of her activity is Mrs. Bailey's testimony that on June 3, 1959-the day of her severance-Store Manager Southers approached her and said, "I can't understand why you are so strong for the Union." Southers testified that the conversation was opened when he stated to her, "Mrs. Bailey, I don't :understand why the part-time help takes such an interest in the Union when they are all working by the hour." The impact and probative value of the two state- ments are quite different as to proof of knowledge of union activity or sympathy. From my observations of the two witnesses, I credit Southers' version. But this is not the real heart of the issue and evidence concerning Mrs. Bailey. I have carefully analyzed and studied her testimony and conclude that if all of her testimony were accepted without regard to Southers' version, that she was not dis- charged, but quit. As indicated above, she engaged in a conversation with the store manager on June 3, 1959, which began with Southern' comment concerning the interest of part- time employees in the Union. Thereafter, Mrs. Bailey expressed her dissatisfaction with "part-time employee status" while working a full 40 to 48 hour workweek. Her views were undoubtedly sincere and must of necessity present a real source of personnel discontent for this Respondent . The Board, however, is not a tribunal for the determination of all employee working conditions. The conversation con- tinued for several minutes in which Mrs. Bailey complained vigorously about her particular job. Q. Did you say anything else about working the scales , Mrs. Bailey? A. I told him one person's working the scales, on busy nights, would kill a horse, regardless of whether I worked them or anybody else worked them; on busy nights, they needed two people. Q. What next happened, tell the Court in your own words? A. After I told him the work would kill a horse, he asked me why I didn't quit. I told him regardless of who worked there, they needed two people. So he said, "well, get out of it, just get out, and I will hire someone else to work -the scales." 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said, "There they sit, you can get someone else to work them." Q. What did you then do? A. I got my pocketbook. I walked over to the produce manager, and I told him that Mr. Southers was going to get someone else to work the scales. I went over to the timeclock, punched my timecard, and I went up to the union office. Southers' words as related by Mrs. Bailey neither threatened discharge or actually discharged her. They did nothing more than indicate to her that she was not being forced to work at that job and that the job could be filled by someone else. Even more significant, however, is Mrs. Bailey's own evaluation of the conversation at the time it occurred. She immediately walked over to the produce manager and told him that Southers was going to get someone else to work the scales, but did not say that she had been discharged. There is nothing in the record to indicate that her duties had been changed from the date she was first hired, or that Respondent had im any manner made the duties more distasteful or more difficult. I find that General' Counsel's allegation that Mrs. Sally Bailey was discharged by Respondent on or about June 3, 1959, because of union activity has no merit and shall recommend, that said portion of the complaint be dismissed. See Coats and Clark, Inc. (Clarkdale Plant), 113 NLRB 237, 241 F. 2d. 556 (C.A. 5), wherein the Board stated: "[I]f- an individual quits his job, the employer is not legally responsible for that action, unless it can be shown that the quit was the culmination of a plan or a scheme on. the part of the employer to force such action." Such a scheme or plan was not shown. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free- flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall' recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases which I find necessary tai remedy and to remove the effects of the unfair labor practices and to effectuate the, policies of the Act. It will be recommended that the Respondent, upon request, make available to, the Board and its agents all payroll and other records pertinent to the analysis of the amounts of backpay due. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB '60, 61, and cases there cited, I shall recommend a broad cease and desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in these proceedings, I make the following conclusions of law: CONCLUSIONS OF LAW 1. The Respondent is, and has been at all times material to this proceeding, an employer within the meaning of the Act. 2. The Unions are, and have been at all times material to this proceeding, labor organizations within the meaning of the Act. 3. By discriminatively discharging Kirby Hamilton on January 29, 1959, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By interfering with, restraining, and 'coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6 All other material allegations of the complaint except those set forth in para- graphs numbered 1 through 5 immediately above must fail for want of sufficient legal proof. [Recommendations omitted from publication.]