The J. S. Dillon & Sons Stores Co., Inc.

THE J. S. DILLON & SONS STORES CO., INC. 1235 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 any labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities, except to the extent that such rights 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. WE WILL bargain collectively, upon request, with Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, as the ex- clusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining units are: All production and maintenance employees of the Employer at its Lewis- ton, Maine, plant, including shipping and receiving employees , but excluding all office clerical employees, professional employees , farm supervisors, laboratory employees , salesmen, foremen, assistant foremen , floorladies, pickup crews, truckdrivers, guards, watchmen, and supervisors as defined in Section 2 (11) of the Act. HILLCREST POULTRY INDUSTRIES, 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, Boston Five Cents Savings Bank Building, 24 School Street, Boston 8, Massachusetts, Tele- phone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. The J. S. Dillon & Sons Stores Co., Inc. and District 50, United Mine Workers of America. Case No. 17-CA-2113. October 28, 1963 DECISION AND ORDER On July 15, 1963, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that 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 Intermedi- ate Report. He also found that the Respondent had not engaged in other unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Leedom, Fanning, and Brown]. 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 Inter- 144 NLRB No. 116. 727-083-64-vol. 144-79 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and the recommenda- tions of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 While in agreement with his colleagues in all other respects, Member Leedom finds, con- rary to the Trial Examiner, that the Respondent did not violate Section 8(a) (1) of the Act by granting the Welfare Committee's requests for additional knives and rubber mats, new brooms, and repair of a radio at a time when the Union's petition for an election was pending. The record discloses that, before the advent of the Union, the Welfare Committee for many years represented the Respondent's employees and that it was long the employer's practice to supply the employees with knives, rubber mats, brooms, and radios for use in connection with their work Accordingly, as the supply of such items at the request of the Welfare Committee was a long existing practice and was established before the advent of the Union, Member Leedom is of the opinion that the granting of the requests did not constitute a change in terms or conditions of employment within the meaning of American Fieightways Co., Inc., 124 NLRB 146, 147. Member Leedom believes that these were mere grievances which the Respondent disposed of under its existing policy without creating any new policy. This the Respondent was privileged to do, and the exercise of such privilege does not unlawfully invade any employee rights under the Act See Shea Chemical, 121 NLRB 1027, 1029. Moreover, the benefits granted here appear to be too trivial to have a tendency to interfere with employee rights. 2 The Recommended Order is hereby amended by substituting for the first paragraph therein, the following paragraph: 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 Respondent, its officers, agents, successors, and assigns, shall: INTERMEDIATE REPORT On January 28, 1963, District 50, United Mine Workers of America, herein called the Union, filed charges against J. S. Dillon & Sons Stores Co., Inc., Hutchinson, Kansas, herein called the Respondent.' The General Counsel 2 issued a complaint on March 13, 1963, and an amended complaint on April 11, 1963. As amended, the complaint alleges that on or about January 24, 1963, the Respondent discharged its employee Edward Rupp, and has since failed and refused to reinstate him, be- cause of his membership in and activities on behalf of the Union, and to discourage union membership. It is further alleged that the Respondent, since on or about August 20, 1962, has interfered with, restrained, and coerced its employees in cer- tain specified respects. It is alleged that this conduct violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Thereafter the Respondent filed an answer denying the material allegations of the amended complaint. Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr., on April 25 and 26, 1963, at Hutchinson, Kansas. All parties were represented and participated fully in the hearing. The General Counsel moved to further amend the amended complaint by adding a new paragraph V(h); the motion was granted. The General Counsel then moved to withdraw this amendment; this motion was likewise granted. At the close of the General Counsel's case, the Respondent moved to dismiss paragraphs V, VI, VIII, IX, and X of the complaint as amended. The motion was granted with regard to paragraphs V(a), V(c), and V(f) of the amended complaint, and denied in all other respects.3 The General Counsel orally moved to amend paragraph V(f) of the amended complaint; the motion 1 The original charge named the Respondent as "J. S Dillon & Sons, Warehouse " This was changed in an amended charge filed March 1, 1963 2 The term "General Counsel" refers to the General Counsel of the National Labor Rela- tions Board and his representative at the hearing 3 Paragraph V (a) was dismissed for lack of supporting evidence Paragraph V (c) and V ( f) were dismissed because of fatal variance between the pleadings and the proof. THE J. S. DILLON & SONS STORES CO., INC. 1237 was granted on condition that the amendment be reduced to writing the following morning. On the following day the General Counsel withdrew the amendment to paragraph V(f), and announced that he would "stand on the complaint as written." At the close of the case, the Respondent again moved to dismiss the remainder of the amended complaint; ruling on this motion was reserved. For reasons which appear below, the motion is now granted with regard to paragraphs V(g), VIII, and IX of the amended complaint, and denied in all other respects. Briefs were filed on May 27, 1963, by the General Counsel and the Respondent; they have been duly considered. Upon the entire record in this case,4 and from my observation of the witnesses, I make the following: FINDINGS OF FACT The complaint alleges, the answer admits, and it is found that the Respondent is, and at all material times has been, engaged in commerce as defined in the Act,5 and its operations meet the Board's jurisdictional standards; 6 and that the Union is, and at all material times has been, a labor organization within the meaning of the Act. A. Introduction 1. The Respondent's operations The Respondent operates a number of retail food stores in Kansas and Colorado. It also maintains a warehouse in Hutchinson, Kansas, the only facility involved here. This warehouse is made up of six different departments, physically separated from one another: the maintenance department, the trucking department, the ware- house department, the general office department, the cafeteria department, and the advertising department. The warehouse department in turn appears to be broken down into shipping, receiving, grocery, and produce. Ray Dillon, Jr, is president of the Respondent and Harold Ryan is personnel manager. The supervisor of warehousing is Claude Creel. There are two assistant warehouse superintendents, one in charge of receiving and the other, Dale Douglas, in charge of shipping. Approximately 20 employees are engaged in shipping work, including such categories as order pullers and fork truck operators. Douglas also has supervision over packing and pricing operations, which tasks are performed within the warehouse department by approximately 15 employees. Fred Caywood is supervisor of trucking. It is not disputed and I find that Dillon, Ryan, Creel, Douglas, and Caywood are, and at all material times have been, supervisors within the meaning of the Act? 2. The Welfare Committee For approximately 15 years before the events described hereafter, the Respond- ent's warehouse has had a Welfare Committee composed of employee representa- tives elected by the warehouse employees by secret ballot. Its functions are to furnish flowers for ill employees, to arrange employee parties, and "to handle grievances of labor and carry their requests for wages, increase in wages and such things to management." Originally, an employee took up his grievance in the first instance with his immediate supervisor. If no satisfaction was obtained, his repre- sentative on the Welfare Committee would present the matter to Dillon. Since about 1961 an intermediate step-a conference with Ryan-was inserted before the issue was taken up with Dillon. * The official transcript Is hereby corrected in accordance with the attached Appendix A The Respondent is engaged in the retail distribution of foodstuffs. Its total retail sales exceed $500,000 annually. In addition to facilities elsewhere, it operates a ware- house in Hutchinson, Kansas, where it annually receives foodstuffs originating outside the State of Kansas valued at more than $50,000 See N.L R.B. v. Reliance Fuel Oil Corpora- tton, 371 U S 224 6 Carolina Supplies and Cement Co, 122 NLRB 88, 89; Great Leopard Market Corpora- tion, Inc, d/b/a King Jack's Foodarama, 140 NLRB 1154; and Jay's Food Center, Inc, d/b/a Jay's Sparkle Market, 142 NLRB 1332 7 The General Counsel maintains, and the Respondent apparently denies, that Duane ("Bud") Beer, foreman in the shipping division of the warehouse department, is a super- visor within the meaning of the Act. I deem it unnecessary to resolve this issue. I note In passing that in his Decision and Direction of Election in Case No. 17-RC-4076, issued April 26, 1963 (not published in NLRB volumes), the Regional Director held that "this record fails to show that [Beer] possess[es] or exercise[s] any authority which is other than routine In nature or which requires the exercise of independent judgment" and in- cluded him in the appropriate unit 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Welfare Committee meets from time to time with representatives of manage- ment, Dillon and Ryan. At one such meeting in January 1962, Raymond Bigger, then representing employees of the grocery division of the warehouse department, asked "for regular meetings to be held" and Ryan indicated that meetings would be held every 2 months. (Actually, they may have been held monthly thereafter.) At the same meeting Bigger asked, on behalf of the employees he represented, for an increase in wages, a cut in hours, time and a half for excess over 8 hours per day and 40 hours per week, seniority on vacations, and lounge equipment. In March 1962 Ryan summoned Bigger and told him that wages and hours would be con- sidered together in July of each year from then on. Based upon the foregoing, I find that employees participate in the Welfare Committee, and that it exists, at least in part, to deal with the Respondent concerning grievances and working conditions. Accordingly I find that the Welfare Committee is, and at all material times has been, a labor organization within the meaning of the Act.8 B. The discharge of Rupp 1. Facts Edward F. Rupp 9 began working for the Respondent in 1955 as an order puller in the warehouse department. In 1962 he was also made assistant fork truck relief driver. When he drove the fork truck ("a few hours each day"), he was paid 6 cents per hour more than when he was pulling orders or loading trucks. He, there- fore, considered the assignment to assistant fork truck relief driver as a promotion. Undoubtedly Rupp appears to have been a satisfactory employee, at least until 1960. The caliber of his performance from 1960 on is, however, a matter of ,dispute. According to the General Counsel's witnesses, he was "the best order puller in the warehouse" with a high piece count (the number of pieces pulled per hour), whose work had been complimented by Creel in April or May 1962. The Respondent's witnesses, on the other hand, pictured Rupp ( in recent months espe- ciallyd as having damaged merchandise excessively, overloaded trucks on several occasions, exhibited a surly attitude when ordered to do work other than order pulling, filed grievances when he thought he was being unfairly treated regarding overtime, and deliberately slowed up production. According to these witnesses, Rupp's conduct had given rise to complaints in November and December 1962, and early January 1963, by several of his fellow employees, and had caused discussions between Douglas and Creel regarding his performance. I deem it unnecessary to resolve this conflict or to make any evaluation of Rupp's work performance. On about January 8 or 9, 1963, Donald Diggs, a forklift operator in the Re- spondent's warehouse, contacted a representative of the Union, signed a union card, and was given blank cards to pass out. He gave some blank cards to Rupp, who signed one and passed out others to employees of the Respondent on company property during working hours. In sum, Rupp was among the first two or possibly three earliest proponents of the Union at the Respondent's warehouse. On Friday, January 18,10 Douglas requested employee Herbert Janson to work the following day, Saturday. Janson replied that he could not work Saturday morning, but agreed to do so Saturday afternoon. Douglas then asked Rupp to work Saturday morning only, explaining that Janson would come in on Saturday afternoon. Rupp responded: "Hell no, if I can't work all day, I won't work a half day." On Monday, January 21, Douglas asked Rupp if he wanted to work overtime that night. Rupp refused. On the same day Rupp filed a grievance with Robert Curley, the repre- sentative of his department on the Welfare Committee, regarding the distribution of overtime in the warehouse department." Curley, on the same day, presented the grievance to Creel on Rupp's behalf.12 Creel investigated, then informed Curley that he considered the grievance lacking in merit. 8 N.L R.B. v. Cabot Carbon Company, et al., 360 US 203; Edmont, Inc, 139 NLRB 1528; and Lawson Milk Company, 136 NLRB 538, at 545, enfd. in part 317 F. 2d 756 (C.A 6), 53 LRRM 2346. 8 Named in the complaint as Edward Rupp. 10A11 dates hereafter refer to the year 1963 unless otherwise noted. "This was not the first time Rupp had filed a grievance regarding overtime. He had done so at least once in 1962 12 As described above, the normal grievance procedure at this time called for submission of the matter to Ryan The record does not explain why Curley brought it to Creel instead THE J. S. DILLON & SONS STORES CO., INC. 1239 On that day and the next, Creel "reviewed" Rupp's work performance. It is not entirely clear just what the "review" consisted of, but at least it included discussing Rupp's record with both Douglas and Rupp's foreman, Duane ("Bud") Beer. Creek asked Douglas and Beer if they still thought they could "straighten out" Rupp and, each replied in the negative. Creel and Ryan then conferred with Dillon about the: matter on either Tuesday, January 22 or Wednesday, January 23. Creel stated that Rupp had deliberately slowed down in his work and had a "bad attitude that was spreading." He recommended that Rupp be discharged. Dillon replied that Creel should "go ahead and do it." Late in the afternoon of January 24, after informing Douglas and Beer of his intention, Creel summoned Rupp and discharged him in Douglas' presence. Rupp• was paid off, including severance pay. Creel's version of the discharge interview, substantially corroborated by Rupp, was as follows: I told Mr. Rupp that he had been crossways with the Company and with his job and that we could no longer ignore that, that he was no longer of value to the company and I felt we were even imposing a hardship on him as he was not happy in his job, I didn't think he ever could be, that we had attempted to do what we could to make his work pleasant, we had failed, we were admitting it and we were going to have to let him go. . In addition we remarked to him I was personally sorry this had worked out that way because I felt a deep regret that I had failed somehow to make this job what it should be for him and what I realized a man should have in his place of work. So his reply at the end of that was, "you needn't feel sorry because I don't give a Goddam." On the following day, January 25, Creel called in Curley and told him why Rupp had been discharged. The record does not furnish any further information about this conference. On the same day Creel summoned George Nelson, a fork truck operator in the shipping division of the warehouse department, and Kenneth Elliot, another employee. In Douglas' presence, Creel told him that Rupp had been dis- charged because of his hate for the Company, inability to get along with the Com- pany, damaging quite a bit of merchandise, talking other employees into slowing down production, and failing to cooperate in regard to overtime. Furthermore, Creel stated that Rupp had been "unhappy" and did not like Beer. Creel explained that he was telling them this because "he thought the fork driver saw the other [order] pullers and they might ask questions and he didn't know if the other grievance man would get to all of them." On the same day, Caywood asked Douglas why Rupp had been discharged. Ac- cording to George Sugg, an employee who overheard the conversation, Douglas replied that Rupp had been a "bad influence to other men in his department." According to Douglas, Douglas answered that Rupp "apparently had talked some of the men into a slowing down in their production." 2. Contentions of the parties Paragraph VII of the complaint alleges, and the answer denies, that Creel dis- charged Rupp, an employee of the Respondent, on January 24, and thereafter has failed or refused to reinstate him. At the hearing, however, the Respondent con- ceded the truth of these facts. The only remaining issue regarding Rupp is the reason for the discharge and failure to reinstate. Paragraph VIII of the complaint alleges the reason to be "because of [Rupp's] membership and interest in, and activity on behalf of, the Union and to discourage membership in the Union." At the hearing the General Counsel stated that he did not rely upon the filing of grievances by Rupp, even if the com- plaint could be read to include them, but relied entirely on Rupp's activity on the Union's behalf.13 13 At oral argument, the following colloquy took place: TRIAL EXAMINER' . . . is it the General Counsel's contention it was his activities on behalf of the United Mine Workers that motivated the discharge or his filing of several grievances or combination of both? . . . what is your position . . as to the grievances' Mr. Ross: As to the grievances? TRIAL EXAMINER: Does that enter into it? Mr Rosa: No, sir, we are alleging his union activity. In this posture of the case, I need not determine whether requesting a labor organization to process grievances constitutes protected concerted activity. See American Dredging Company, 123 NLRB 139 , enfd. as modified 276 F. 2d 286 ( C A. 3), rehearing denied April 26, 1960, cert. denied 366 U.S. 908. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent mounts a twofold attack upon the General Counsel's position. In the first place the Respondent maintains that, at the time of the discharge, none of its supervisors or agents knew of or suspected Rupp's prounion activities; there- fore, such activities could not possibly have provided the Respondent with a motive. Secondly the Respondent contends that Rupp was discharged for reasons entirely aside from his union activities, whether known or unknown, namely, he had become an unsatisfactory employee. In short, urges the Respondent, Rupp was discharged for cause. 3. Conclusions To indicate that the Respondent knew of or suspected Rupp's efforts to sign employees for the Union, the General Counsel points to certain remarks by manage- ment representatives (concerning Rupp's hate for the Respondent, his noncoopera- tive attitude and his bad influence on other employees) as veiled references to his prounion conduct. But it must be recalled that Rupp had filed a grievance just before his discharge. Furthermore, so far as the record shows, the subject of the Union was not mentioned either in conversations between management representa- tives (the Creel-Douglas, Creel and Ryan-Dillon, and Douglas-Caywood conversa- tions ) or in conversations between employees on the one hand and management representatives on the other (the Creel-Rupp, Creel-Curley, and Creel-Elliot and Nelson conversations). In this context it cannot be said that the remarks about Rupp's hate for the Respondent, lack of cooperation and bad influence reasonably indicate that the Respondent knew of Rupp's union activities. Indeed Beer, Douglas, Creel, and Dillon all denied that at the time of Rupp's discharge they were aware of any union activity by Rupp or any other employee. Although Rupp distributed union cards on company property and during working time, there is not a scintilla of evidence that any management agent saw him do so. His own testimony on this point was positive: Q. (By Mr. HAYNES.) If I understand you correctly .. . sometime between January 8 and January 24, you not only signed a U M.W. card and on com- pany time and property, but you distributed cards for signatures of other em- ployees, is that true? A. That is right. Q. Now then, do you have any knowledge of any supervisor seeing you do this9 A. Yes, I am sure they didn't see me. [Emphasis supplied.] Q. They did not see you? A. That is right. Finally, the General Counsel argues that the Respondent's knowledge of Rupp's prounion activities can be assumed from the small size of the operation. Aside from the question of whether such a presumption would be strong enough to over- come the denials of Beer, Douglas, Creel and Dillon,14 the Hutchinson warehouse had a total working complement of approximately 260 people. The General Counsel calls attention to a case in which the so-called "small plant" presumption was applied to a plant of 130 people 15 But more recently the Board refused to apply the rule to a plant of 275 employees.is I am therefore of the opinion that the plant involved here is too large to justify application of the presumption. More- over the General Counsel urges that the number of employees in the appropriate bargaining unit which included Rupp is between 125 and 135, and the number of employees supervised by Douglas is only about 30. But the small plant rule is 14In Hadley Manufacturing Corporation, 108 NLRB 1641, at 1650, the Board stated* ... Respondent denied knowledge of the union activities of Evans and Whitte- more . . . . The General Counsel admitted on the record that a finding that Re- spondent had such knowledge must be inferred from the small size of Respondent's plant However , the mere fact that Respondent's plant is of a small size, does not permit a finding that Respondent had knowledge of the union activities of specific employees, absent supporting evidence that the union activities were carried on in such a manner, or at times that in the normal course of events, Respondent must have noticed them [Emphasis supplied.] 18 Quest-Shon Mark Brassiere Co, Inc, 80 NLRB 1149, 1150, enfd. 185 F. 2d 285 (CA. 2), cert denied 342 US 812. 16 Tennessee Packers, Inc , Frosty Morn Division, 143 NLRB 494 (discharge of William L. Brown). THE J. S. DILLON & SONS STORES CO., INC. 1241 based upon the size of the plant, not the size of the department or appropriate bargaining unit, as the General Counsel conceded.17 For the reasons set forth above, I conclude that the General Counsel has failed to establish that, at the time of Rupp's discharge, the Respondent knew of or sus- pected Rupp's activities on behalf of the Union. It follows that an essential ele- ment of a discriminatory discharge-company knowledge-has not been proved.18 Accordingly, the Respondent's motion to dismiss paragraphs VIII and IX of the complaint is granted, and the reference to Section 8(a)(3) of the Act is stricken from paragraph XI. In this posture of the case, it is unnecessary for me to deter- mine whether, as the Respondent claims, Rupp was discharged for cause.19 C. Interference, restraint, and coercion 1. Threats of reprisal by Caywood (a) Facts On February 15 the Union filed with the Board a petition seeking to represent all production, maintenance, warehouse, and shipping employees and over-the-road truckdrivers at the Respondent's warehouse, with exclusions not here material (Case No. 17-RC-4076). In the latter part of February, Caywood summond to his office Richard Bridge- water, a truckdriver at the Respondent's warehouse. Caywood stated: "You know how I stand on this union. I told you before how I stand." 20 After remarking that he had heard the employees had "been talking union," he said: "We can't have that here. Ray Dillon has to keep his boys happy and he can't do it with agitators around." He also told Bridgewater that the employees "didn't need the Union" and that "Dillon could handle things there themselves, they were doing a pretty good job." Finally, Caywood stated that if the Union came in "everything would be tighter and everything would be run on a schedule" and "they could put these tattletales 21 or whatever it is, on the trucks and we would cut out coffee breaks (instead of stopping every 25 miles when you feel like stopping for coffee as we usually stop, we wouldn't be able to because we would be on a schedule of getting in on time and that would put us late) and it would be rough" for the employees.22 (b) Contentions and conclusions Paragraph V(b) of the complaint as amended alleges, and the answer denies, that on or about February 16 the Respondent, through Caywood, violated the Act by threatening employees with reprisals if they joined the Union or engaged in activities supporting it. The facts related above convince me, and I find, that in late February, Caywood threatened Bridgewater that the Respondent would visit reprisals upon the employees if they joined or assisted the Union. This threat interfered with the employees' freedom of choice of bargaining agent and therefore violated Section 8(a) (1) of the Act. Accordingly, the Respondent's motion to dismiss paragraph V (b) of the complaint as amended is denied. 17 At the hearing the following colloquy occurred, Mr. Ross: In any event, Douglas had a small number under him TRIAL EXAMINER: The small plant rule applies to the size of the plant [Emphasis supplied I Mr. RosE: I think perhaps it does 1sPhoenis; Newspapers, Inc, 142 NLRB 827; Wausau Concrete Company, Inc, 142 NLRB 33; Diamond Ginger Ale, Incorporated, 125 NLRB 1173; Hadley Manufacturing Corporation, supra; and Tennessee Packers, Inc, Frosty Morn Division, supra (discharge of William L. Brown). 'O N L R.B v. T. A. McGahey, Sr, et al., d/b/a Columbus Marble Works, 233 F 2d 406, at 412-413 (C.A. 5) ; Lawson Milk Company, supra, at 546 in the Board's opinion and at 2349 in the Court's opinion; Wausau Concrete Company, Inc, supra, at footnote 5 of the Intermediate Report ; and Tennessee Packers, Inc., Frosty Morn Div ision, supra (dis- charge of William L Brown) 20 Two or three years before, Caywood had informed Bridgewater that "the first thing he would fire a man for is talking union " -1 Tattletales are mechanical devices mounted on trucks to record the times of starting and stopping and the speeds attained 22 The findings of fact regarding this conversation are based upon the undenied testimony of Bridgewater. Caywood did not testify. 1242 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD 2 Granting benefits (a) Facts Some years before the events related herein, the Respondent had supplied four rubber mats for employees of the grocery division of the warehouse department to stand upon while working, and a radio for them to play. However, since then the number of the employees had increased so that additional mats were needed and the radio had broken down. On about March 12 the Welfare Committee held its regular monthly meeting with Ryan and Dillon. The representative of the grocery division of the warehouse department asked for additional rubber mats, repair of the radio, some additional cutting tools needed for opening boxes, and some new brooms to replace those which had worn out. Barbara Hobbick, the representative of the female employees of the produce division of the warehouse department, then requested rubber mats for the use of employees in that division, as they had not previously been furnished with any. There were other requests from other representatives for premium pay for employees who worked in the freezer, and for changes in working hours. Dillon replied that, "in regard to hours, we could not discuss anything at this time that would change their working conditions" [Emphasis supplied) 23 However. sometime between that date and April 25 the Respondent granted the requests of the representatives of the grocery and produce divisions of the warehouse department regarding knives, brooms, rubber mats, and the radio. (b) Contentions of the parties Paragraph V(d) of the complaint as amended alleges, and the answer denies, that in March Dillon violated the Act by "grant[ing] benefits to employees by changing working conditions in the grocery and produce departments." 24 Specifically the General Counsel points to the granting of the requests for mats, brooms, knives, and radio repair in the grocery and produce divisions of the warehouse department as changes in working conditions beneficial to the employees which, timed as they were, had "a tendency to interfere with the employees' Section 7 rights." 25 The Respondent, on the contrary, argues that "The items requested and granted were not of substantial benefit which could be considered sufficient inducement to dissuade employees from supporting the Union . The record is devoid of evidence that the meeting of these requests was calculated or intended to induce employees to forgo their Section 7 rights or to discourage them from engaging in union activities. Moreover the record is devoid of evidence that the granting of these requests had such a result." (c) Conclusions When the Union filed its petition in Case No. 17-RC-4076 on February 15, this raised a genuine question concerning the representation of the employees, among others, in the grocery and produce divisions of the warehouse department, which question was still pending on April 25, when the hearing in the instant case began. The Respondent of course knew this. It has long been held that it is a violation of the Act for an employer to recognize either of two competing labor organizations under such circumstances, for the employer thereby illegally arrogates to himself the resolution of the representation dispute, encroaches upon the Board's exclusive domain, and disrupts the orderly representation procedure established under the Act.28 Applying that principle here, it is clear, and I find, that the Respondent violated Section 8 (a) (1) of the Act by granting benefits negotiated through a labor organiza- tion (the Welfare Committee ), thus according it a certain status, at a time when a real question concerning representation raised by another labor organization (the Union) 21 The findines of fact regarding this meeting are based upon a synthesis of the testimony of Hobbick and Ryan =* Undoubtedly the terms "grocery and produce departments" refer to the grocery and produce divisions of the warehouse department. 25 At oral argument the General Counsel also urged that in 1962 the Respondent met only infrequently with the Welfare Committee and "took a very, very long time to act" on any employee requests ; while in 1963 during the Union's campaign, by contrast, the Respondent met more frequently with the Welfare Committee and granted employee re- quests more rapidly . I deem it unnecessary to consider this contention 26 Midwest Piping & Supply Co , Inc., 63 NLRB 1060; Shea Chemical Corporation, 121 NLRB 102T ; Halben Chemical Co , Inc., 124 NLRB 872 , 878, enfd as modified 279 F. 2d 189 (CA . 2) ; and Reliance Fuel Oil Corp ., 129 NLRB 1166, 1177 , set aside and remanded on other grounds 297 F 2d 94, rehearing denied January 4, 1962, at 99 ; reversed 371 U.S. 224, enfd. on remand February 26, 1963. THE J. S. DILLON & SONS STORES CO., INC. 1243 remained unresolved and pending before the Board. And this is true even though the Welfare Committee had not sought to intervene in the representation case.27 Moreover, the questions whether the Respondent intended to interfere and whether the Respondent's conduct actually resulted in coercion do not arise. Under the Board's decision in American Freightways Co., Inc., the only pertinent inquiry is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." 28 Under the circumstances existing here, that question must be answered affirmatively. Nor do I find merit in the Respondent's argument that the benefits granted to the employees by the Respondent were too trivial to have the proscribed tendency; they seem to me to be more substantial than those which the Board found violative of the Act in American Freightways Co., Inc. Accordingly, the Respondent's motion to dismiss Paragraph V(d) of the amended complaint is denied. 3. Threats of reprisal by Dillon (a) Facts Five female employees perform repack operations in the produce division of the warehouse department. They work varying hours from a minimum of about 15 hours to a maximum of about 44 hours per week, depending upon the need for their services. They are considered regular part-time employees 29 and participate in the same fringe benefits, such as vacations, insurance, etc., as do regular full-time employees. On March 23, Dillon and Ryan met with these five employees to discuss problems relating to vacations and hours. Dillon pointed out that they were the only part-time employees in the entire company who were "treated as full-time" employees so far as fringe benefits were concerned. In response to an inquiry from one of the em- ployees, Dillon stated that he knew of no union which could represent part-time help. He cited as an example the collective-bargaining contract governing the Re- spondent's employees in Colorado, which he stated did not grant fringe benefits to part-time employees. He further remarked that if the Union were chosen to repre- sent the employees of the Hutchinson warehouse they, as part-time employees, "would lose all [their] fringe benefits." He added that "the company wouldn't be able to help it because [the part-time employees] couldn't be covered by it and there- fore the Union couldn't give [them] any benefits either." 30 (b) Contentions and conclusions Paragraph V(e) of the complaint as amended alleges, and the answer denies, that on or about March 23, Dillon violated the Act by "threaten[ing] employees with reprisals if the Union were to become their certified collective bargaining repre- sentative." The Respondent, conversely, argues that Dillon merely compared the working conditions existing under the union contract in Colorado with those existing at the nonunion Hutchinson warehouse, a comparison which Section 8(c) of the Act protects. I cannot agree with the Respondent that Dillon's remarks constituted the mere exercise of free speech allowed by Section 8(c) of the Act. Rather, I construe them as a warning that the selection of the Union as their bargaining agent would auto- matically cause the regular part-time employees to lose benefits they would otherwise continue to enjoy. In short, Dillon portrayed the loss of fringe benefits as an in- "In Edmont, Inc, 139 NLRB 1528, as here, the Committee was not on the representa- tion ballot. The Board there stated- "we note that . . . the Committee . . . represented an outlet for employee grievances The Committee was recognized, given unlawful support and assistance and was thereby accorded a certain status by the Respondent. We find that this assistance to the Committee given just prior to the election, wherein the em- ployees were, called to express their desires with respect to representation by another union, tended to interfere with the employees' free choice of a bargaining representative " - 124 NLRB 146, 147. In True Temper Corporation, 127 NLRB 839, this test was fur- ther discussed In my opinion, nothing said in Trite Temper altered or modified the test laid down in American Freightways Co, Inc 20 I note in passing that the Regional Director , in his Decision and Direction of Election in Case No. 17-RC-4076, issued April 26, 1963, in footnote 4, classified these women as "regular full-time employees " 30 These findings of fact are based upon a synthesis of the testimony of Hobbick, Ryan, and Dillon. Where their versions conflict, I credit that of Hobbick, as I find her a more reliable witness with regard to this meeting than either Ryan or Dillon. 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evitable consequence of union representation. Viewed in this light, the statements clearly interfered with the employees' freedom of choice. And the fact that Dillon added that the Respondent was powerless to avoid such a loss of benefits is imma- tenal; the right of the employees to choose their bargaining agent free of restraint or coercion was nevertheless compromised.31 For the foregoing reasons, I find that such conduct violated Section 8 (a) (1) of the Act, and I therefore deny the Respond- ent's motion to dismiss paragraph V(e) of the complaint, as amended. 4. The profit-sharing plan (a) Facts Since about 1943 the Respondent has maintained a pension plan for its employees. In about April 1962, the Respondent retained a firm of actuaries to explore the possibility of changing this into a profit-sharing plan for employees. The profit- sharing plan was "finally formulated" in June 1962, and submitted to and approved by the board of directors and the stockholders in September 1962. In October 1962, the Respondent sent a letter to its full-time employees outlining the proposed changes. The letter read, in part: ... Subject to the approval of the Internal Revenue Service, we intend to have our new plans in effect for all of the current fiscal year, which will end June 30, 1963. This means that the amount of money which will go into your individual profit-sharing account depends on the profits earned by your efforts right now. In effect, you cannot get less than under our present plan-you may get much more as our profit-sharing fund reflects the efforts of all employees to increase profits. * * * * * * * If you are presently under our pension plan, you will be a participant in the new profit-sharing plan as of last July 1. * * * * * * * Some details of our plans must still be worked out. After that you will receive a full description of the plans and the benefits they offer you .... The first quarter of that fiscal year ended September 29, 1962, and in the middle of October 1962, an entry was made on the Respondent's books setting aside an estimated 8 percent of the first quarter's profits (from both the Kansas and the Colo- rado operations) for the profit-sharing fund. Additional similar entries were made after the close of the second quarter ending December 29, 1962, and the third quarter ending late in March 1963. No cash was actually paid over to the trustee, nor was any intended before the close of the fiscal year on June 29, 1963. Moreover, no employee was permitted to contribute until after that date. On March 14, 1963, the head of the Respondent's advertising department verbally explained the changes to the employees in that department. During the same month store meetings for a similar purpose were held by managers in approximately 47 stores in Kansas. Early in April the Respondent distributed to some of the warehouse employees at meetings a document explaining the details of the profit-sharing plan, which docu- ment had been printed in the advertising department of the Hutchinson warehouse several weeks earlier.32 Dillon "read it over with [the employees] and explained what it was all about." The document, consisting of six pages, contained examples of how the new plan would work and the following statements, among others- Our new Pension and Profit-Sharing plan went into effect July 1, 1962. At the end of each year, each employee will be furnished a statement showing how much he has in the fund, including earnings. * * * * * * * All employees employed before January 1, 1963, will be guaranteed at least as much monthly retirement income after they become 65, as they would have re- 81 Standard Cost Products, Inc., 99 NLRB 899, at 907 32 The first batch was printed on March 12 or 13 and contained a statement* "This plan will not apply to union members as they have a pension plan of their own " The second run, which was distributed to employees, omitted that sentence. As the first batch, con- taining this sentence, does not appear to have been distributed, no useful purpose would be served by discussing the sentence's legality. Compare Melville Confectsons, Inc., 142 NLRB 1334. THE J. S. DILLON & SONS STORES CO., INC. 1245 ceived under the old plan . . . All employees employed after January 1, 1963 . . . will not be guaranteed the same benefits as under the old plan. During the last 6 months of 1962 the employees' share of the company profit set aside for the profit-sharing was $125,000. This money will be credited to the individuals eligible to participate in the plan .... Beginning next July, employees may put into the fund up to 10 percent of their total annual earnings in addition to the company contribution .... (b) Contentions and conclusions Paragraph V(g) of the complaint as amended alleges, and the answer denies, that on or about April 3 Dillon "put into effect a profit-sharing plan retroactive to July 1, 1962, and advise[d] employees thereof." In his brief the General Counsel poses the issue as follows: "The question is whether the announcement of the plan in detail in April 1963, two weeks after the representation hearing [in Case No. 17-RC-4076], tended to interfere with, restrain or coerce the employees." [Emphasis supplied.] He argues that the announcement, coming when it did, tended to interfere with the employees' interest in the Union and therefore, under the American Freightways doctrine, violated the Act. The Respondent disputes this, contending in its brief: "the preponderance of evidence clearly establishes that the Profit-Sharing Plan .. . did [not] tend to interfere with the employees' Section 7 rights." So far as the amended complaint alleges that the profit-sharing plan was "put into effect" after the Union's advent at the Hutchinson warehouse-and assuming that the General Counsel by his statement in his brief has not abandoned this contention- the record shows the contrary. As found above, the plan was put into effect in 1962, long before the Union's campaign began, and entries to effectuate it were made on the Respondent's books. Furthermore, the plan was announced to the employees as far back as early October 1962. There remains the question, under the American Freightways principle, whether Dillon's announcement of the plan's details in April 1963, "may reasonably be said [to] tend to interfere with the free exercise of employee rights under the Act." In my opinion, this must be answered in the negative. Considering that the October 1962, announcement had promised "a full description" of the plan at an undeter- mined future date, and in light of the fact that the details were communicated to affected employees outside the appropriate units 33 (including the employees of many stores in Kansas), I am convinced, and find, that the announcement made by Dillon on or about April 3 had no significant tendency to impair the rights of the employees guaranteed in Section 7 of the Act. The Respondent's motion to dismiss paragraph V(g) of the amended complaint is accordingly granted 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. The J. S. Dillon & Sons Stores Co., Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. 2. District 50, United Mine Workers of America, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with reprisals if they join or assist the above-named labor organization, changing their working conditions under such circumstances as reasonably tended to interfere with the free exercise of their rights under the Act, and warning them that they would lose benefits if they select the above-named labor organization as their bargaining agent, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The unfair labor practices found above tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish that the Respondent put a profit- sharing plan into effect or advised its employees thereof in such a way as to interfere with the free exercise of their rights under the Act, or that the Respondent discriminated against Edward Rupp within the meaning of Section 8(a)(3) of the Act. 330n March 18, 1963, the Union had filed a petition in Case No. 17-RC-4109, seeking to represent the employees in the Respondent's advertising department. 1246 DECISIONS OF icATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that The J. S. Dillon & Sons Stores Co., Inc., Hutchinson, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with reprisals if they join or assist District 50, United Mine Workers of America, or any other labor organization. (b) Establishing, promulgating, instigating, or putting into effect any modification or change in any, term or condition of employment of its employees under such circumstances as reasonably tends to interfere with the free exercise of their rights under the Act; provided, however, that nothing contained herein shall be construed as requiring or compelling the Respondent to vary or abandon any economic benefit or any term or condition of employment which it has heretofore established. (c) Warning its employees that they would lose economic benefits if they select the above^named labor organization, or any other labor organization, as their collective-bargaining representative. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is found to be necessary and ap- propriate to effectuate the policies of the Act: (a) Post at its warehouse in Hutchinson, Kansas, copies of the attached notice, marked "Appendix B." 34 Copies of such notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith.35 "If this Recommended Order should be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. If the Board's Order should be enforced by a decree of a United States Court of Appeals, the notice shall be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order" 311f this Recommended Order should be adopted by the Board, tins provision shall be modified to read- "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A CORRECTIONS OF THE OFFICIAL TRANSCRIPT 1. Page 15, line 15: Strike the word "caused" and substitute therefor the word "discussed." 2. Page 56, line 15: Strike the word "closed" and substitute therefor the word "close." 3. Page 73, line 20: Strike the word "reframed" and substitute therefor the word "framed." 4. Page 78, line 1: Strike the word "subjects" and substitute therefor the word "subsections." 5. Page 143, line 7: Strike the word "successful" and substitute therefor the word .,suggested." 6. Page 150, line 2: Strike the word "say" and substitute therefor the word "stay." 7. Page 165, line 16: Strike the words "what then" and substitute therefor the words "that when." 8. Page 183, line 3: Strike the word "admitted" and substitute therefor the word "amended." 9. Page 189, line 8 : Strike the name "Williamsburg" and substitute therefor the name "Wellington." 10. Page 191, line 17: Strike the words "that, that love." 11. Page 191, line 18 : Strike the words "notion that Congress didn't accept to." RETAIL CLERKS UNION LOCAL NO. 324 , ETC. 1247 12. Page 191, line 19 : Strike the words "a power" and substitute therefor the words an employer." 13. Page 192, line 2: Strike the numeral "(6)" and substitute therefor the letter 14. Page 196, line 3: Strike the word "normal" and substitute therefor the word "formal." 15. Page 204, line 4: Strike the word "line" and substitute therefor the word "volume." 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 Relations Act, as amended, you are notified that: WE WILL NOT threaten our employees with reprisals if they join or assist District 50, United Mine Workers of America, or any other union. WE WILL NOT change the working conditions of our employees in such a way as to interfere with the free exercise of their rights under the National Labor Relations Act, as amended. WE WILL NOT warn our employees that they will lose benefits if they select a union as their collective-bargaining agent. WE WILL NOT in any related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist District 50, United Mine Workers of America, or any other union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from such activities. All our employees are free to become, remain, or refrain from becoming or re- maining, members of any union. THE J. S. DILLON & SONS STORES CO., 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. Anyone having any questions concerning this notice or compliance with its pro- visions may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No. Baltimore 1-7000, Extension 2732. Retail Clerks Union Local No. 324, Retail Clerks International Association, AFL-CIO and Vincent Drugs No. 3, Inc. Case No. 21-CB-1918. October 28, 1963 DECISION AND ORDER Upon unfair labor practice charges duly filed on July 5, 1962, by Vincent Drugs No. 3, Inc., herein called the Employer, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for the Twenty-first Region, issued a complaint on September 13,1962, alleging that Retail Clerks Union Local No. 324, Retail Clerks. International Association, AFL-CIO, herein called the Union, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b) (2) and (1) (A) of the National Labor Rela- tions Act, as amended Copies of the charges and the complaint, the 144 NLRB No. 108.