Delchamps, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delchamps, Inc. and Retail Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A. Case 15-CA- 6311 January 16, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 23, 1977, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a brief in response to the General Coun- sel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions1 of the Administrative Law Judge only to the extent consistent herewith. The Respondent, whose corporate headquarters are located in Mobile, Alabama, operates a chain of 44 retail grocery stores in Alabama, Florida, Louisi- ana, and Mississippi. In early July 1976, the Charg- ing Party began a campaign to organize employees at the Respondent's stores in the Mobile, Alabama, area; approximately 17 stores were affected. The Respondent admittedly learned of this activity short- ly thereafter. On November 28, 1976, the Respon- dent implemented a wage increase of between 45 and 75 cents per hour at all of its 44 stores. An election petition for a unit including the store involved in this proceeding was not filed until April 19, 1977.2 The General Counsel has excepted to the Adminis- trative Law Judge's dismissal of that aspect of the complaint alleging that the Respondent granted the wage increases for the purpose of discouraging the 1 In the absence of exceptions, we adopt. pro forma, the Administrative Law Judge's dismissal of the allegations that the Respondent unlawfully solicited and promised to remedy grievances, solicited employees to withdraw union authorization cards. implemented rules prohibiting employ- ees from talking and restricting their movements, and changed the work schedules of known union adherents. 2 On February 23, 1977, the Union filed a petition in Case 15-RC--6068, seeking to represent the employees at the Respondent's Fairhope, Alabama, store. The Regional Director dismissed that petition, reasoning that a single- store unit was inappropriate. Thereafter, on April 19, 1977, the Union filed a petition, seeking to represent the employees at the Respondent's 17 stores located in Mobile and Baldwin Counties, Alabama. Most of the conduct which is the subject of this proceeding occurred at one of these stores. 3 Joel 0. Swanson and Hugh Bray, area supervisor for the Mobile area, both of whom testified in this proceeding, figured prominently in those unfair labor practices. 4 Notwithstanding his assertion and the Administrative Law Judge's finding that such evaluation was "continuous." Swanson's testimony reveals 234 NLRB No. 47 union activities of its employees. We find merit in this exception. We disagree with the Administrative Law Judge's failure to consider as background the Board's Deci- sion in Delchamps, Inc., 232 NLRB 168 (1977), which was concerned with events occurring during the same organizing campaign as is involved in this proceed- ing. In that case, the Board affirmed the Administra- tive Law Judge's finding that, in late July and early August 1976, the Respondent violated the Act at its Fairhope, Alabama, store by creating the impression employees were under surveillance, threatening to discharge union members, and actually discharging a leading union adherent. 3 The Administrative Law Judge, in this proceeding, declined to rely on the earlier case because he believed the Board had not yet ruled on the Respondent's exceptions to the Administrative Law Judge's Decision in that case, and that it was inappropriate for him to rely on another Administrative Law Judge's Decision before the Board had disposed of exceptions to it. The Board, however, issued its Decision and Order affirming the Administrative Law Judge in the earlier proceeding on September 20, 1977, 3 days prior to the issuance of the Decision presently before us. Accordingly, we shall notice the earlier case for purposes of this Decision. We also disagree with the Administrative Law Judge's suggestion that the General Counsel failed to establish a prima facie case as to the alleged illegal wage increases. The record shows that, in early August 1976, Joel O. Swanson, the Respondent's vice president and secretary, ordered that the Respon- dent's wage structure be evaluated in comparison with those of its competitors,4 and that several weeks later a decision was made to increase wages.5 Contrary to the Administrative Law Judge, we are of the view that, particularly in light of the union animus demonstrated by the Respondent's commis- sion of unfair labor practices at its other store, the General Counsel has established a sufficient nexus between the decision to raise wages and the advent of that data on competitors was not collected between March and August 1976. Although the Administrative Law Judge expressly credited Swanson's testimony throughout his Decision, and despite the fact it has long been our policy not to reverse an Administrative Law Judge's credibility findings, we believe Swanson's testimony was so inconsistent and contrived as to be unworthy of belief. See W. T Grant Company, 214 NLRB 698 (1974). s Swanson equivocated as to the date upon which he reached his decision. The following exchange is illustrative: Q. Do you know approximately when the decision was made to implement the November raise? A. The decision to do it and the timing of it were made not too far in advance of it, but the decision on the one that was going to be made was in effect during the whole time that we were doing the survey work, so we knew in August that we were going to--that we were working on a new wage plan, and it wasn't until several weeks later that we had picked a date for it. 262 DELCHAMPS, INC. the union organizing drive in the chain to require the Respondent to produce evidence that the wage increase was unrelated to the presence of union activity. Newport Division of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975); Revco Drug Centers of the West, Inc., 188 NLRB 73 (1971). We further disagree with the Administrative Law Judge's finding that the Respondent has shown that its November wage increase was consistent with an established practice of periodically granting wage increases to maintain a competitive posture in the local labor markets. Not only is it apparent, contrary to its claim, that the Respondent did not continuous- ly survey its competitors' wages,6 but Swanson was evasive when questioned about the criteria used in periodically determining whether a wage increase was necessary to remain competitive.7 Similarly, when asked specifically about the factors revealed by the wage survey which prompted the decision to raise wages in November 1976, he was equally evasive. 8 Finally, although he testified at one point that he periodically prepared a "spread chart" to reflect the Respondent's competitors' wage structures, he sug- gested that the chart used for the November increase had been destroyed and accordingly that it could not be produced at the hearing. The failure to produce this critical documentary evidence, in the face of the extensive documentation of the amounts of previous increases, and the General Counsel's prima facie evidence of a violation of the Act, warrants an inference that had it been produced it would have been damaging to the Respondent's case. Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939). The Administrative Law Judge places much reli- ance on the timing and amounts of the Respondent's previous wage increases, which he finds evidence a pattern of granting substantial raises every 6 to 9 months. We are of the opinion that the Respondent's policies have been anything but consistent. Appendix A, attached hereto, illustrates the Respondent's wage policies after it switched from a system of granting raises on an individual basis in May 1973. With few exceptions, the November wage increases were the largest percentage increases ever given by the Re- spondent. Moreover, although the Respondent claims that decisions to raise wages were evenly 6 See fn. 4, supra. For example, Swanson testified on cross-examination: Q. Were you competitive, equal to, or better than your competi- tors from March of'74 until March of'76? A. From March of '74 to March of '76, we carried on a continual program to keep our wage rates competitive. We adjust them on a frequent basis. Q. I believe that was [not] in response to my question. From March of '74 til March of '76, did you consider your stores, Delchamps Stores, competitive with all of your competitors in wage rates? spaced about 6 to 9 months apart, the dates upon which wage increases became effective are at best erratic. We therefore find that the Respondent failed to rebut the General Counsel's prima facie case. Ac- cordingly, we find that in granting a wage increase on November 28, 1976, the Respondent interfered with the rights of its employees and thereby violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Delchamps, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Retail Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A., is, and all times material has been, a labor organization within the meaning of of Section 2(5) of the Act. 3. By granting its employees wage increases on November 28, 1976, with knowledge of and for the purpose of affecting the Union's organizing cam- paign, the Respondent has interfered with, re- strained, and coerced employees in the exercise of rights guaranteed by the Act and has committed an unfair labor practice within the meaning of Section 8(a)(l) thereof. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since the Respondent granted the wage increases at all of its locations, and since we have found that the increases interfered with the employees' self- organizational rights at the Saraland, Alabama, store, logically it also interfered with the rights of all employees affected by the organizing campaign in the 17 stores in Mobile and Baldwin Counties, Alabama. Further, we have previously found in Delchamps, Inc., 232 NLRB 168, that the Respondent violated the Act in a store which is also I of its 17 stores in Mobile and Baldwin Counties, Alabama. Therefore, we believe that effectuation of the policies of the Act will be achieved by ordering that Respon- dent post notices at all of its stores located in Mobile A. We made changes between that time. s For example, he testified: Q. Who was the competitor in August of'76 that prompted you to get the wage increase in November? A. There was no single competitor, Mr. Romero. I keep telling you that. Q. Tell me who they all were. A. [Recites a list of all of the Respondent's competitors.l 263 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Baldwin Counties, Alabama. See Texas Gulf Sulphur Company, 195 NLRB 13 (1972), enfd. 463 F.2d 788 (C.A. 5, 1972). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Delchamps, Inc., Mobile, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Granting wage increases or other benefits to employees for the purpose of impeding or interfering with their self-organizational activities; provided, however, that nothing herein shall be construed to require said corporation to revoke any wage in- creases or benefits heretofore granted. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization; to form, join, or assist the above-named Union, or any other labor organization; to bargain collectively through repre- 9 In the event this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a sentatives of their own choosing; and to engage in either concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which will effectuate the purposes of the Act: (a) Post at each of its stores in Mobile and Baldwin Counties, Alabama, copies of the attached notice marked "Appendix B."9 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's represen- tative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." NDIX A HOURLY RATES AND PERCENT INCREASES FOR GROCERY CLERKS, CASHIERS, PRODUCE CLERKS, MEAT WRAPPERS, AND DELI/BAKERY CLERK Length of Service May 13 April 28 Oct. 20 July 29 Mar. 14 July 4 Nov. 28 a/ h/ (in months) 1973 1974 1974 1975 1976 1976 1976 Rate 2 Rate 2 Rate 2 Rate % R Rate Rate 2 Rate 2 c/ New Part-Time 1.90 -0- 2.00 5.2 2.10 5.0 2.25 7,1 2.25 -0- 2.30 2,2 3,05 32.6 o - 6 2.15 -0- 2.25 4.7 2.50 11.1 2.75 10.0 2.90 5.4 3.05 5.2 3.50 4 6 - 12 2.35 -0- 2.45 4.3 2.75 12.3 3.00 9.1 3.15 5.0 3.30 4.8 3.75 13.6 12 - IB 2.65 -0- 2.75 3.8 3.00 9.1 3.25 8.3 3.10 4.6 3.55 4.4 4.00 12.7 18 - 24 2.9o -0- 3.05 5.2 3.25 6.2 3.50 7.7 3.65 4.3 3.80 4.1 4.25 12.0 24 - 3( 3.15 -0- 3.25 3.2 3.50 7.7 4.00 14.3 4.15 3.8 4.30 3.6 4.75 1 30 + - --0-__ 3.40 -0- 4.00 17.6 -0- -0- 4.40 0.0 4.50 2.3 5.00 11 a/ The Administrative Law Judge declined to consider the April 28, 1974, increase because he viewed its timing as distorted by the fact it occurred at the termination of Federal wage-price controls. We agree that the 11-1/2-nmnth interval between Msv 13, 1973, and April 28, 1974, might overstate the normal Interval between wage increases. The Administrative Law Judge, however, should have considered the amounts of the April 28 increases since, if anything, they would have overstated the normal increments. In fact, they were substantially less than the 5.5-percent increases w-ich were permitted during the period of wage-price controls. b/ The Respondent announced a wage increase in March 1976, half of which was deferred until July 1976. The Administrative law Judge chose to consider this as one wage increase. We are of the view that it should be considered from the perspective of the employees, and hence as two wage increases. c/ If anything, the figure shown for the November 28, 1976, increase for new part-time clerks and cashiers is understated since the Respondent also introduced a policy whereby, after 30 days, such employees would receive an additional 45 cents, boosting them to the full-time starting rate. d/ The data for the after-30-month category are somewhat distorted since there were apparently no employees in this classification on May 13, 1973, and on July 29, 1975. We note this because the Administrative Law Judge apparently placed some reliance on the magnitude of the October 20, 1974, and the March 14, 1976, increases for this category in drawing his conclusion that the November 28, 1976, increase wsa not inordinate. 264 DELCHAMPS, INC. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the chance to give evidence the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. The law gives you the right: To form, join, or help unions To choose a union to represent you in bargaining with us To act together for your common interest or protection To refuse to participate in any or all of these things. The Board has ordered us to promise you that we will not interfere with your rights. WE WILL NOT in the future grant our employees wage increases, or other benefits, for the purpose of interfering with their self-organizational efforts or to interfere with their activities on behalf of the Retail Clerks Union, Local 1657, AFL-CIO-CIC, R.C.I.A., or any other labor organization. DELCHAMPS, INC. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This case was heard before me at Mobile, Alabama, on May 25 and 26, 1977, pursuant to complaint issued on February 10, 1977, and charges filed on December 6, 1976 by Retail Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A.1 (herein the Union). The complaint alleges violation of Section 8(a)(1) of the National Labor Relations Act, as amended, consisting of soliciting and promising to remedy grievances; soliciting employees to withdraw union autho- rization cards; implementing work rules prohibiting em- ployees talking and restricting their movement; changing R.C.I.A. is an abbreviation for Retail Clerks International Association. 2 Errors in the transcript have been noted and corrected. 3 The facts set forth herein are based on a synthesis of the credited aspects of the testimony of all witnesses, the exhibits, stipulations of fact, and careful consideration of the logical consistency and inherent probability of the facts found. Although I may not, in the course of this decision, advert work schedules of known union adherents; and granting wage increases; all at Respondent's Store No. 5. Del- champs, Inc., herein sometimes called the Respondent or the Employer, filed a timely answer denying the commis- sion of any unfair labor practices. Upon the entire record,2 including my observation of the witnesses as they testified, and after careful consideration of the posttrial briefs of the parties, I make the following: FINDINGS AND CONCLUSIONS I. THE RESPONDENT'S BUSINESS The Respondent is an Alabama corporation engaged in the retail sale of groceries, meat, and related food products at various store locations in Alabama, Mississippi, and Florida, including stores in Mobile and Baldwin Counties, Alabama. During the 12 months prior to issuance of the complaint, the Respondent purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Alabama, and received gross revenues in excess of $500,000. The Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts3 The only matters before me are occurrences at the Employer's Store No. 5. It appears that the Union has made several organizational attempts over a period of several years among the Respondent's employees. The Respondent became aware of some union activity in its chain of stores shortly before August 12, 1976,4 and set out to express its position regarding the Union to its employ- ees. I credit the testimony of Joel Swanson, Respondent's vice president and secretary, that a written speech was prepared and typed in his office for delivery to employees in the Mobile area on August 12 and 13. I1 am persuaded that the speech was given at Store No. 5 on August 12 by vice president of operations, Turnipseed, to two groups of employees. Turnipseed first read the written speech, which reads, in pertinent part, as follows: to all of the record testimony or documentary evidence, it has been carefully weighed and considered and, to the extent that testimony or other evidence not mentioned herein might appear to contradict the findings of fact, that evidence has not been disregarded but has been rejected as incredible, lacking in probative worth, surplusage, or irrelevant. 4 All dates are in 1976 unless specified otherwise. 265 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I want to talk to you about a very serious matter. Some union people have been knocking on the doors of our folks, trying to talk them into signing union cards. I want all of you to understand just how serious that is. I want to be absolutely sure that you know the compa- ny's position because it would be mighty unfortunate if someone made a mistake. I'm going to be frank and honest right now so there can be no misunderstanding. WE DO NOT WANT UNION OUTSIDERS IN THIS STORE OR IN ANY DELCHAMPS STORE. WE BELIEVE IT WOULD BE A SERIOUS MISTAKE FOR YOU, AS WELL AS FOR THE COMPANY, TO LET THE UNION COME IN HERE. WE ARE COUNTING ON YOUR HELP TO KEEP THE THREAT OF THE UNION AWAY FROM HERE. * * . I want to make absolutely certain that each of you realizes the seriousness of signing a union card. That card can legally bind anyone who signs it. If you sign a union card, that can take away your right to deal with us directly. Signing a union card also could cause a union to come into Delchamps without your even having a chance to vote in an election-that's right, you could give up your rights to vote in a democratic, secret-ballot election. The union may tell you that those cards can't obligate you in any way. But that's simply not the truth. The union doesn't worry too much about the truth-all it's concerned with is getting you in its trap. The truth is that if you put your name on the dotted line you may be taking on serious obligations. The union may force you to pay union dues, union assessments or any other union fees. If you refuse to pay, it can even go into court and force you to pay. It may do that if you sign a union card no matter what it told you at the time you signed. But I'll bet the union would never tell you about that! In other words, the union could be forced down your throats whether you like it or not. I don't want to see that happen here, and I'm completely convinced that the overwhelming ma- jority of people at Delchamps don't want to see that happen either. It's terribly important for you to fully understand the truth and facts of this matter. The union will use all sorts of tricks to get you to sign a union card-tricks such as telling you that, "All we need is one more card signed," or, "Everybody else is signing and wants a union," or, "You'll get into trouble if you don't sign," or, "If you don't sign up now you won't get another chance...." In addition to the kinds of things I just mentioned, the union pushers have also been falsely claiming that they have got a whole crew signed up, or a whole store signed up-and people are telling us the union won't give straightforward answers to their questions. It's most unfortunate that the union pushers are saying and doing those things, trying to use pressure and tricks like that. But, it's because of those things that you really have to be on your guard. . . . It's human nature to always want more and better things. The union tries to take advantage of this fact of life, to get a hold on those human emotions and feelings, and entice people to sign union cards. But don't believe it. . . . The law holds you responsible for knowing and understanding the consequences when you sign your name to a union card-so don't give away your signature without thinking long and hard about it, and without making absolutely sure you know what the real facts are. . . . These union outsiders are professional salesmen. The money they make, personally, depends on how many of you they get signed up on union cards and how much money the union is able to get out of your pockets in union dues, assessments or other union fees. No matter what they may tell you, you mean dollars to them, and that's their only real interest in you. There's no need for you to get involved in a union fight. There's no need for you to get caught in the trouble the union can bring. If you're going to take my advice, you'll have nothing to do with these union outsiders. Some of you may have already been talked into signing union cards. Remember that those cards are dangerous to you as long as they are in effect, and they stay in effect until you do something to cancel them. If anyone pushing the union approaches you, we strongly urge you to think seriously before you sign anything or commit yourself to anything. It's terribly important for you to make sure you have all the facts and understand both sides of the story. So don't hesitate to see your store manager or Mr. Bray (supervisor) or me before you act in haste and possibly make a mistake. We're a family-type business here. We can know each other and work with each other-and we've done just that. Sure-we have problems from time to time. But we can work out our problems in a friendly way, just as we've done in the past, without having to run the risk of union strikes and other union trouble. * * * S * If any of you have any questions at any time or if you want our advice, be sure to come and talk to us, and we'll be sure you get the truth and the facts. At the close of his reading, Turnipseed asked if there were any questions. After the first meeting, he was asked (I) questions about future dental insurance; (2) the reasons for discontinuing a Christmas bonus a year or two prior; (3) if the bookkeeper could be provided with a stool; and (4) why had Emily Tew, who was not at this meeting, not been able to remove the name of her estranged husband from her insurance. In reply to the foregoing, Turnipseed said (I) there was no plan for future dental insurance; (2) the Christmas bonus was discontinued to give other 266 DELCHAMPS, INC. benefits to employees; (3) if the cashiers could stand all day, so could the bookkeepers; and (4) said Tew's problem would be looked into. I am also persuaded from her own testimony, considered in its entirety on the topic, that employee Gail Payne was referring to the last sentence of the written speech, rather than any additional invitation by Turnipseed, when she testified that he invited employees to bring any problem they might have to him or anyone else at the office, and I conclude that she thereafter, during the question-and-answer period, told him that employees were afraid of him, whereupon he told her that they could go to their store manager if they were afraid to come to the office. After the second meeting, at which no questions were asked, and after the other employees in attendance had dispersed, Emily Tew approached Turnipseed and told him of the difficulties she had encountered in getting her estranged husband removed from her Blue Cross-Blue Shield insurance coverage. Turnipseed told Tew that Area Supervisor Hugh Bray, who was also present, was taking notes and they would check it out. Bray did check it out, according to Turnipseed whom I credit on this. Bray was sent a memorandum from the Company's insurance clerk Bonnie Woodman that she had discussed the matter with Blue Cross in late July and that Tew's estranged husband had been removed from her insurance contract effective August 10. The Respondent's records and the uncontra- dicted and credible testimony of Joel Swanson fairly establish that Tew's husband was dropped from her insurance on or about August 10. Gail Payne, who signed a card for the Union in August, testified to a conversation with Assistant Store Manager Pat Lami. Lami did not testify and the date of the conversation is uncertain, but I conclude that it happened some time after she signed the union card, because of the content of the conversation. In view of her testimony that the conversation happened before her work schedule was changed in late November, it therefore must have occurred on some unspecified date in August, September, October, or November. A careful sifting of Payne's testimony, which although uncontroverted is somewhat confused, leads me to the conclusion that Lami had been giving warning slips to some "boys" (presumably the bagboys). When Lami came in and sat down with Payne and two or three other employees at lunch in the breakroom, one of the female employees other than Payne "shamed him" for giving out the written warnings. I construe "shamed him" to mean that Lami was told that he should be ashamed. Lami's response, in substance, was that he was giving the warnings so that he would have a record if he found it necessary to fire the boys. At that point, apropos of nothing so far as I s Lanham credibly testified that he had a similar checklist which he used at Store 4 to instruct employees. 6 This direction is more lenient than the Respondent's memorandum to all store managers pertaining to "WAGE AND HOUR REOULATIONS," and dated December 6, 1974, which reads: To be in full compliance with the Wage and Hour Regulations it is necessary we restrict the "off the clock time" hourly employees spend in the store. Hourly employees shall report to work no more than 10 minutes prior to clocking in and not remain in the store after clocking out. unless that employee is shopping. can detect, Payne volunteered that she wanted to make it clear that she had signed a union card. Lami commented that "it better go in," and said nothing more about the union. Effective November 22, Area Supervisor Bray trans- ferred Ronald Lanham from Store 4 to be the manager of Store 5, and transferred Jackson, the previous manager of Store 5, to Store 4. Bray avers, in substance, that he did so because he did not think Store 5 was being operated in an efficient manner, with particular reference to lack of store cleanliness, poor stocking, and employees not keeping busy. Transfer of managers between store is not an unusual incident and has been done by the Respondent in the past on several occasions. For about the first week he was at Store 5, Lanham merely observed and compiled a list of matters to be corrected. According to Lanham, he found the operation of the store to be too lax and, after compiling checklists of matters to cover,5 called in employees and went over the rules he wished them to follow. These employee interviews, with one or two employees at a time, commenced Novem- ber 27. Lanham used different checklists for checkout cashiers and grocery employees. Common to both lists are instructions on appropriate attire, designated smoking areas, prohibition on receiving other than emergency phone calls, use of register number one for employee purchases, responsibility for signing employee's own time- card and not to sign or punch for other employees, prohibition of shopping while on the timeclock (except for consumption during break), instructions on responsibility of employees to know and work their own schedule, direction to wear name badges, instructions on parking areas, prohibition of employment in a "like business," direction to answer three rings of the bell, direction not to be in the store 15 minutes before scheduled or 15 minutes after checking out,6 prohibition against leaving personal items in the front office, and an instruction to address the manager and assistant manager by their surname prefaced by "Mr." In addition, the checklists contain items pertaining specifically to checkout or grocery. Thus, the checkout list notes that only the manager and assistant manager will check prices and handle all complaints; 7 that there will be no talking among cashiers and all cashier questions should be directed to the manager or assistant manager; all cashiers are to maintain an upright posture at the check stand and thank every customer, but not engage in idle conversation; 8 no personal items are to be kept in the check stand or the cooler; no gum chewing; 9 no checks for cash; no conversation between cashier and bagboy while Turmpseed, the author of the 1974 memorandum, credibly testified the reason for the rule is that if an employee is in the store prior to clocking in there is a danger he might inadvertently perform work and thereby violate the wage and hour law prohibiting working off the clock. I Cashier Emily Tew testified that the former manager, Jackson, had told her, before Lanham came to the store, that she was supposed to ask the manager or assistant manager about prices. 8 This fairly implies, as Lanham asserts, no idle conversation with customers or each other. 9 The evidence shows this is a repetition of a longstanding instruction. 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they are in checkout; report all derogatory remarks to the manager; 10 cashiers will not be over 6 feet from their register without having it put in safe; 1 cashiers are to report directly to the manager or his assistant, not the bookkeeper; 12 several other rules relating to the handling of merchandise, money, and food stamps; reference to a coffee fund, a bell system, and a hot line (none of which are important to this case); and a prohibition against checking out relatives, roommates, or very close friends. Similarly, the grocery employees checklist used by Lanham contains stocking, pricing, labeling, and clean- liness instructions, as well as a reference to talking, eating, or drinking in the wareroom.13 Lanham spoke to all of the Store 5 employees except approximately three who were not at work during the few days he conducted the interviews. He testifies that the reason for going over the checklists with employees was to explain what he expected of them, and it appears from the composite testimony of Lanham and the employee wit- nesses called by General Counsel that he covered the items on the list with each of them and placed special emphasis on limiting conversations by employees with customers and conversations between employees in certain respects. Lanham testified that it was his purpose to eliminate idle conversations on the job which were not pertinent to the business at hand. Employee Payne states that prior to Lanham's arrival cashiers would talk to each other on worktime about personal matters, if they were not busy with a customer. According to Payne, Lanham told her that the reason for restricting talking between employees was to maintain a business-like atmosphere; and that when a customer came in he or she should be greeted by "good morning" or "good evening" and thanked for shopping at Delchamps, but was not to be asked how he or she felt because this would tend to be talking to the customer. Cashier Tew says that Lanham told her not to engage in lengthy conversations with customers, and concedes that employees already knew that they were not supposed to talk with customers. Employee Shirley Smith says that Lanham told her to keep conversations with customers short, and not to talk with other employees unless they were in the breakroom. There is no evidence whatsoever that employees were restricted in the subject matter of their conversations when they were in the breakroom. During the same period of time that he was having these conversations with employees as to what he expected of them, Lanham took over the scheduling of cashiers from Payne, and instructed her that she would no longer schedule cashiers or keep them busy, as she had done under Jackson, because these duties were not to be part of her job as bookkeeper and head cashier, but would be his responsibility. Lanham made extensive changes in the work schedules, including a change of Tew's offday from Monday to Thursdays. Tew testified that she never object- ed to this and, about 3 weeks prior to the hearing herein, when she asked for a Monday off, her offday was changed back to Monday. Additionally, when Lanham came, Gail 10 This refers to remarks by customers. it Cashiers Smith and Tew aver that Jackson also had mentioned the 6- foot rule, but neither he nor Lanham strictly enforced it. 12 When Lanham came to the store, head cashier and bookkeeper Gail Payne was working on alternating Saturday nights. Lan- ham was not satisfied with the bookkeeping performance of the employee alternating with Payne on Saturday nights. Lanham and Payne agree that, after Lanham expressed his views of the abilities of the alternating employee to Payne, Payne worked every Saturday night for a 2-month period. Lanham asserts that he told Payne that she would have to train someone and that, until she did, since she was the head cashier, she would have to work on Saturday. He further says that Payne trained Linda Phillips for the 2 months Payne worked every Saturday night. Payne claims that she was not training anyone for the first 6 weeks, but then trained Linda Phillips on bookkeeping during the last 2 weeks of the 2-month period, after which she returned to working alternate Saturday nights. Under questioning by General Counsel, Payne testified that she volunteered to work every Saturday night, when Lanham told her that he wanted her to, because she loves her job, likes doing the books, and would do anything to help the store. On November 28, 1976, the Employer raised the starting rate for part-time employees by 75 cents an hour, and gave full-time employees either a 45 or 50-cent increase depend- ing on their seniority and classification. This increase covered all 44 retail stores operated by the Respondent, not just Store 5 at Saraland, Alabama. Respondent's vice president, Swanson, credibly testifies that the Respondent carries on a continuous wage review program with a primary ingredient being the examination of competitor's wage rates in the areas in which the Company operates. Once the Respondent determines, on the basis of this review, to grant a wage increase, and then grants it, the whole process of wage review begins anew. Prior to 1973, the Respondent gave raises on an individual basis under a merit system. After the new system was adopted, the Respondent gave wage increases at all of its retail stores on May 13, 1973; April 28 and October 20, 1974; June 29, 1975; a two-part raise announced and granted on March 14, 1976, with the second installment of the raise taking effect July 4, 1976; and the raise on November 28, 1976, which is an issue in this case. The intervals between these raises were, therefore, 11, 6, 8, 9, and 8 months respectively. I consider the March and July increases to be one single raise announced in March, with a portion deferred to July, and shall hereafter refer to them collectively as the March 1976 raise. There appears to be no precedent for the 75- cent increase in the starting rate of part-time clerks and cashiers which, effective November 28, 1976, brought their rate to $3.05, the beginning rate for full-time clerks and cashiers after the July installment of the March 1976 raise. With respect to the amounts of the raises given, the Respondent's wage raise schedules reflect that the June 1975 raise gave 4 classifications a greater wage increase and 12 a lesser in terms of percentage when compared with the October 1974 increase. The March 1976 raise gave 12 classifications a greater percentage increase than they received in June 1975, and 4 classifications a lesser percentage than 1975. The November 1976 schedule gave Payne had been handling some of the scheduling and direction of the work of cashiers. 13 The wareroom is apparently a storage area, as opposed to the breakroom where employees do eat, drink, and talk. 268 DELCHAMPS, INC. nine classifications a greater percentage than the March 1976 raise and eight classifications a lesser percentage. These figures are somewhat misleading because the No- vember 1976 increase gave grocery clerks, cashiers, pro- duce clerks, meat wrappers, and the deli/bakery clerk considerably higher percentages of increase at all levels, except the 30-month plus service level, than the March 1976 increase. The Respondent concedes that a majority of the employees are classified as clerks. For purposes of illustration and comparison percentages of wage increase for these classifications are set forth below: PercentaRe of Increases months of Oct. June IHr. Nov. Level Service 1974 1975 1976 1976 1 2 3 4 5 6 0-6 6-12 12-18 1 6-24 afte.r-24 after-30 11. 12.2 9.1 6.6 7.7 17.6 10. 9.1 8.3 7.7 14.3 14/ 10.9 1n. 9.2 8.6 7.5 12.3 15/ 14.8 13.6 12.7 11.8 10.5 11.1 On or about December 20, the Respondent received a letter dated December 18 which notified it of an organiza- tional campaign by the Union, and which bears the signatures of 50 employees under the legend "Organizing Committee." Among the signers were Payne, Tew, and Shirley Smith, all of whom testified before me. On February 23, 1977, the Union filed a representation petition seeking to represent employees at the Employer's Fairhope, Alabama, store. The petition was dismissed by the Regional Director. Thereafter, on April 19, 1977, the Union filed a petition seeking to represent Respondent's employees of its 17 stores located in the Mobile and Baldwin Counties areas, including Store 5. No evidence was offered and none adduced of any union activity, or employer knowledge of any, at the Saraland store between the Lami-Payne conversation and the April 19, 1977, petition. B. Conclusions I am convinced from a synthesis of the credible evidence that Turnipseed read his August speech verbatim and did not deviate therefrom. Any fragment of testimony that might indicate the contrary is hereby expressly discredited as employee interpretations rather than as accurate recitals. Contrary to the General Counsel, I find the speech to be nothing more than permissible campaign propaganda. Turnipseed's discussion of union cards and the effects of signing them does not add up to a coercive solicitation of union authorization withdrawals violative of Section 8(aXl) of the Act, and is protected commentary within the meaning of Section 8(c) containing "no threat of reprisal or force or promise of benefit." I further find that Turnip- seed's invitation to employees to talk to the Respondent's management if they had any questions or wanted advice 14 Level 6 does not appear on the June 29, 1975, schedule. 15 Percentage noted on Respondent's record for March 1976 rate. 's In reaching this conclusion and all others herein, I have kept in mind was not a solicitation of grievances but, rather, was an invitation to ask the Employer for what it considered to be the true facts about matters raised by the Union in its campaign. That Turnipseed was not making any promise, express or implied, to remedy grievances or satisfy employ- ee desires is made clear by his refusal to provide the bookkeeper with a stool, his disavowal of any plan for better dental insurance, and his simple explanation of the discontinuance of the Christmas bonus without the slight- est implication that it could be revived. With respect to Tew's question about her insurance, all Turnipseed prom- ised was that her problem would be looked into, which is nothing more than a normal managerial reaction in any case and conveys no promise that Tew's problem would be resolved favorably to her. Any contention that an employer must not look into routine complaints involving an estab- lished insurance program merely because a union is conducting an organizational campaign is patently frivo- lous. As the record clearly shows, Tew's problem had been remedied by contacts between the Respondent's insurance clerk and the insurance carrier prior to Turnipseed's speech. For all the foregoing reasons, I conclude and find that the General Counsel has not shown by a preponder- ance of the credible evidence that Turnipseed solicited or promised to remedy grievances in order to induce its employees to forgo union activities. General Counsel posits a basic premise that Lanham was transferred to Store 5 to impede the Union's organizational efforts. In addition to the fact that the record does not disclose whether or not the Union's efforts were ever actively conducted in the store, there is no evidence, other than General Counsel's conclusion, that Lanham was transferred to Store 5 for any reason other than to improve the appearance and operation of the store, including the work performance of the employees at the store. That Lanham's predecessor Jackson remarked to Payne that, "I would not do ya'll what they wanted me to do and that is probably why I am leaving," does not establish that he was transferred because he would not interfere with or restrict employees' union activities. To so conclude would totally ignore the strong probability that Jackson was referring to his unwillingness to replace what appears to have been a rather casual and informal relationship with his employees with a stricter, more business-like mode of operation in accordance with Bray's judgment that the store was being too loosely run. I am persuaded that Lanham was assigned to Store 5 because the Respondent was dissatisfied with the way it was being run, and reasonably exercised its business judgment in assigning Lanham. 16 After careful examination of the checklists utilized by Lanham in instructing the employees, and all testimony pertinent thereto, I am not persuaded that his instructions were motivated by antiunion considerations. His instruc- tions are consistent with commonsense and reasonable business judgment. They are not interdicted by or inconsis- tent with any established employer policy or practice, nor are they so oppressive or unreasonable as to warrant an inference of unlawful motivation. The General Counsel the Respondent's hostility to unionization evidenced by the August speech, and given this factor careful consideration. 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places considerable emphasis on Lanham's instructions relative to conversations between employees and customers and conversations solely between employees. With respect to the first, all that is prohibited is idle or lengthy conversations. 17 With respect to the second, employees were not, as General Counsel contends, enjoined from all conversation with each other, but were instructed to confine their nonbusiness conversations to the breakroom. I do not find that this restriction is so broad as to be inherently unlawful, and I can perceive of no reason, considering the lack of evidence of illegal motivation, that Lanham could not legitimately prevent employees from discussing personal matters at their work stations. In any event, General Counsel has not shown that the restrictions on conversations were "primarily for the purpose of blocking union activity and harassing union supporters" as contended. The same is true with regard to the changes in work schedules made by Lanham. Although the complaint alleges a discriminatory changing of schedules of known union adherents, the General Counsel focuses on the work schedule changes of Payne and Tew, of whom only Payne has been shown to be a known union adherent, to the total exclusion of the other extensive work schedule changes that Lanham credibly testified were made. As set forth hereina- bove, Tew had no objection to her schedule change and Payne, although it is probably true that she had little choice, was so agreeable to an every Saturday night assignment until another bookkeeper was trained that she admittedly gladly cooperated with Lanham because she loves her work and would do anything to help the store. After the training of another bookkeeper, Payne returned to working on alternate Saturdays without incident. On the basis of the evidence before me, I find that the Respondent did not unlawfully change work schedules as alleged. Although it may well be true that a grant of a wage increase during a union organizational campaign might in and of itself persuade employees to refrain from selecting the union as their representative, it is incumbent on General Counsel to establish by direct evidence or reason- able inference from the facts that the purpose of the raise was to induce employees to refrain from supporting the union.18 On the other hand, when an employer grants a wage increase while a representation petition is pending, the Board has found a strong presumption of illegality, and noted that unless the evidence shows that other factors governed the timing of the announcement interference with employee freedom of choice would be regarded as the motivating factor.' 9 In the instant case there was no petition pending at any of Respondent's retail stores until February 23, 1977, so far as the record shows, but the Respondent admittedly had knowledge that some union organizational activity was afoot in its chain in August 1976 and Gail Payne expressly advised Assistant Manager Pat Lami of her union card signing sometime thereafter in 1976. An employer is obliged to carry out his wage setting practices during a union campaign in the same manner that 1? According to Emily Tew. whom I credit, employees were aware before the coming of Lanham that they not supposed to carry on conversation with customers. is Revco Drug Centers of the West, Inc., 188 NLRB 73, 75 (1971); Tonkawa Refining Co., 175 NLRB 619 (1969). s1 Newport Division of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975). he would have done in the absence of the union's presence.20 In examining the record of past increases I have adopted the percentage of increase as a more revealing standard of comparison than pure dollars and cents because it is obvious that as basic wages increase an identical increase in terms of cents, such as a yearly 50-cent raise, will produce a diminishing percentage of increase with each succeeding year. It is equally obvious that annual increases of equal percentage in terms of the existing wage rate each succeeding year will yield an increasingly larger actual monetary increase. I have eliminated the May 1973 and April 1974 increases from consideration because the May 1973 increase appears to have been the first of the new plan and the April 1974 increase occurred at the end of the Federal wage and price controls in effect until early 1974. Looking to the remaining four increases,21 I find nothing disparate in the timing of the November 28, 1976, raise, or any departure from past practice. I do, however, note that the percentage of increase, in all but the "after 30-month" category, is higher than any of the three increases immedi- ately preceding. I further note, although I deem it of little significance in view of the lack of such data on other employees, that all three of General Counsel's employee witnesses fall in the "after 30-month" pay level. After a careful consideration of the records of increases and the testimony of Respondent's vice president, Joel Swanson, whom I observed to be a credible witness in demeanor and whose testimony regarding the Respondent's method of determining the amount and time of increased wage rates is uncontroverted, I conclude that the Respondent has given a reasonable and persuasive explanation for the November 28, 1976, wage increases. In the absence of countervailing evidence sufficient either to warrant rejecting Swanson's explanation, or sufficient to establish an unlawful motiva- tion, I find and conclude that the General Counsel has not shown by a preponderance of the evidence that the November 28, 1976, wage increase granted to all 44 stores in the Respondent's chain was for the "express purpose" 22 of discouraging union activities in violation of Section 8(a)(1) of the Act. General Counsel would also have me find, on the basis of Swanson's statement on cross-examination to the effect that the Respondent plans to do nothing in the area of implementing a new wage plan during the pendency of the petition, that the Respondent has now abandoned its practice in violation of Section 8(aXl) of the Act. Apart from the fact that I would be reluctant to find a violation on the basis of a mere expression of intention elicited on cross-examination, this belated contention was neither alleged in the complaint nor further litigated at hearing. Accordingly, General Counsel's request that I find the violation he now asserts is denied. Similarly, I make no finding with respect to the Lami-Payne conversation, other than to consider it as evidence of employer knowledge, 20 McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237. 1243 (1966). 21 I treat the March and July 1976 increases as part of the March raise because it was then announced as one raise with part deferred. 22 Cf. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405,409(1964). 270 DELCHAMPS, INC. because it was neither alleged as a violation by General Counsel nor fully litigated. General Counsel has not established by a preponderance of the credible evidence that the Respondent violated the Act as alleged in the complaint,2 3 and I hereby make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 23 On General Counsel's motion, over Respondent's objection, I took official notice of Administrative Law Judge Wagman's Decision involving the same parties at Respondent's Fairhope, Alabama, location. Administra- tive Law Judge Wagman's Decision has been excepted to by the Respon- 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. General Counsel has not established by a preponder- ance of the evidence that the Respondent has violated the Act as alleged in the complaint or in any other manner. [Recommended Order for dismissal omitted from publi- cation.] dent and the Board has not, at this writing issued its Decision thereon. Accordingly, I have not relied on Administrative Law Judge Wagman's Decision in reaching my decision here. Cf. Walton Manufactunng Company. 125 NLRB 485,487 (1959). 271