Dexter IGA Foodliner

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