Cas Walker's Cash Stores, Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cas Walker's Cash Stores Inc. and United Food and Commerical Workers International Union, Dis- trict Union Local 227, AFL-CIO' Independent Union of Grocer's Employees and United Food and Commercial Workers Interna- tional Union, District Union Local 227, AFL- CIO. Cases 9-CA-12819 and 9-CB-3977 May 6, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On October 15, 1979, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respondent Em- ployer filed exceptions and a supporting brief.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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, as modified herein. We agree with the Administrative Law Judge that it is improbable that a fair election could be conducted among the employees involved in view of the Respondent Employer's serious unfair labor practices which included a threat to close if the Meat Cutters was successful in organizing and the unlawful establishment of Respondent Independent as bargaining representative of the employees. We conclude that the unfair labor practices tend to impede the election process and, in the circum- stances, union authorization cards are the most reli- able indication of employee sentiment concerning representation. Accordingly, we shall issue a bar- gaining order as recommended by the Administra- tive Law Judge. As the Union did not request rec- ognition until July 28, 1978, and the Respondent Employer's other unfair labor practices are reme- died by the Order herein, we find, contrary to the Administrative Law Judge, that the Respondent Employer's bargaining obligation arose as of July 28, 1978. 3 ' The name of the Charging Party, formerly Amalgamated Meat Cut- ters and Butcher Workmen of North America, District Union Local 227. AFL-CIO, is amended to reflect the change resulting from the merging of the Retail Clerks International Union and Amalganlated Meat cutters and Butcher Workmen of North America on June 7, 1979 2 The Respondent Employer excepted to the Administrative Lassaw Judge's finding that a reduction in hours of work as motivated hy union activity, and to his recommendation that a bargaining order be issued. 3 See irading Port, Inc., 219 NLRB 298, 301 (1975); Drug Package Company, Inc.. 228 NLRB 108 (1977); John G. Mrkel & Sons, Inc., 232 NLRB 140 (1977); Albertson Manufacturing Company, 236 NLRB 63 249 NLRB No. 41 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent Employer, Cas Walker's Cash Stores Inc., Harlan, Kentucky, its officers, agents, successors, and as- signs, and the Respondent Union, Independent Union of Grocer's Employees, Knoxville, Tennes- see, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph A,l(k): "(k) Refusing to recognize and bargain with Distrct Union Local 227as the exclusive collective- bargaining representative of the employees in the following unit: All employees of Cas Walker's Cash Stores Inc. at its Browning Acres and, up to Septem- ber 6, 1978, Main Street stores in Harlan, Ken- tucky, but excluding all office clerical employ- ees, technical employees, guards and supervi- sors as defined in the Act." 2. Substitute the attached Appendix B for that of the Administrative Law Judge. (1978); World Wide Press, Inc, 242 NLRB No. 40 (1979). Compare the date of the bargaining obligation in the following cases where an 8(a)(5) violation was found but other unfair labor practices began after the bar- gaining demand was made: The Kroger Company, 228 NLRB 149 (1977); Fritro-Lay. Inc., 232 NLRB 753 (1977); Chandler Motors, Inc., 236 NLRB 1565 (1978); Idak Convalescent Center of Fall River, Inc.. d/b/a Crawford House, 238 NLRB 410 (1978). Compare also the date of the bargaining obligation in the following cases where no 8(a)(5) violation was found but a bargaining order was issued to remedy other unfair labor practices: Beasley Energy, Inc., d/hb/a/ Peaker Run Coal Company Ohio Division #1, 228 NlRB 93 (1977); Hambre Honmbre Enterprises, Inc., d/b/a Panchitos, 228 NLRB 136 (1977). Member Jenkins would, as he stated in Crawford House, supra, date the bargaining obligation from either the date of the Union's demand for rec- ognition or from the commencement of the unfair labor practices, which- ever is necessary to remedy all the unfair practices APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union CAS WALKER'S CASH STORES INC. 317 To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT coercively interrogate you concerning your union activities and sympa- thies. WE WILL NOT threaten you with discipline and closing the Browning Acres store because you engage in union activities and in order to discourage your support of the United Food and Commercial Workers International Union, District Union Local 227, AFL-CIO, or any other labor organization. WE WILL NOT threaten you with discharge if you do not sign cards for the Independent Union of Grocer's Employees (Independent Union). WE WILL NOT promise you that you will re- ceive overtime work if you sign cards for the Independent Union. WE WILL NOT reduce your work week in order to retaliate for your support of District Union Local 227. WE WILL NOT promise you that your work hours, previously reduced, will be restored if you sign Independent Union authorization cards. WE WILL NOT request you to sign Independ- ent Union authorization cards and to enlist the support of other employees for the Independ- ent Union, and WE WILL NOT in any other manner assist or contribute support to the In- dependent Union. WE WILL NOT recognize the Independent Union as your exclusive collective-bargaining representative in the appropriate unit described below, at a time when the Independent Union does not represent an uncoerced majority of our employees. WE WILL NOT give effect to a contract which we signed with the Independent Union, dated July 27, 1978, or to any extension, modi- fication, or renewal thereof. WE WILL NOT give effect to any member- ship applications for the Independent Union signed on or after July 26, 1978. WE WILL NOT refuse to recognize and bar- gain with the Union as your exclusive collec- tive-bargaining representative in the following unit: All employees of Cas Walker's Cash Stores Inc. at its Browning Acres and, up to Sep- tember 6, 1978, Main Streeet stores in Harlan, Kentucky, but excluding all office clerical employees, technical employees, guards and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights to self-organization, to form, join, or assist District Union Local 227, or any other labor organization, to bargain collective- ly through representatives of your own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL withdraw recognition of the Inde- pendent Union and any successor thereto with respect to its representation of the employees employed in our stores in Harlan, Kentucky. WE WILL make whole, with interest, all our employees employed in our stores in Harlan, Kentucky, for any loss of pay or other benefits resulting from our reduction of our employees' working hours. WE WILL, upon request, recognize and bar- gain with United Food and Commercial Workers International Union, District Union Local 227, AFL-CIO, as your exclusive col- lective-bargaining representative in the appro- priate unit described above, and, if an under- standing is reached, embody such understand- ing in a written signed agreement. CAS WALKER'S CASH STORES INC. DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge: This proceeding was heard by me in Pineville, Ken- tucky, on March 5, 6, and 7, 1979, and in Middlesboro, Kentucky, on April 17, 1979. The consolidated amended complaint, dated September 29, 1978,' as further amend- ed during the course of the hearing, alleges, inter alia, that Respondent Cas Walker's Cash Store Inc. (Employ- er), engaged in a concerted effort to thwart the organiz- ing activities of the Amalgamated Meat Cutters and Butcher Workmen of North America, District Union Local 227, AFL-CIO (Meat Cutters), by interrogating and threatening employees; by creating the impression that the Employer was keeping its employees' activities on behalf of the Meat Cutters under surveillance; and by reducing its employees' working hours in an effort to gain support for the Independent Union of Grocers Em- ployees (Independent), which it unlawfully aided, assist- ed, and supported in violation of Section 8(a)(2) of the Act, with the promise that if the employees authorized Ulnless otherwise indicated, all events herein occurred in 1978 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Independent to represent them, their working hours would be restored. General Counsel further contends that the Employer signed an agreement with the Inde- pendent at a time when the Independent did not repre- sent a majority of the employees and that, by signing an agreement when it did not represent a majority, the In- dependent violated Section 8(b)()(A) of the Act. Gener- al Counsel requests a bargaining order pursuant to N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), as a partial remedy for the unfair labor practices committed. 2 Although all parties waived oral argument and were afforded the opportunity to file briefs, only General Counsel and the Employer have done so. On the entire record in this proceeding, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs submitted, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer admits that it is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Tennes- see and is engaged in the retail sale of groceries and re- lated items at various locations in Tennessee, Kentucky, and Virginia, including the facilities involved herein, lo- cated at Main Street and Browning Acres in Harlan, Kentucky. The Employer admitted that it operated the Main Street store only up to September 6 and I find no evidence to the contrary. During the 12 months preced- ing the issuance of the complaint, a representative period, the Employer received gross revenues in excess of $500,000, and purchased and received goods and ma- terials valued in excess of $50,000, which were shipped to its Kentucky facilities directly from points outside the State of Kentucky. As a result, the Employer concedes that it is and has been at all times material herein an em- ployer within the meaning of Section 2(2) of the Act, en- gaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. I so find. 11. THE LABOR ORGANIZATIONS INVOLVED The Independent admits, and I so find, that at all times material herein the Independent is and has been a labor organization within the meaning of Section 2(5) of the Act. In addition, all parties admit, and I so find, that at all times material herein the Meat Cutters is and has been a labor organization within the meaning of Section 2(5) of the Act. The parties also admit that the following employees of the Employer constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All employees of Respondent Employer at its Browning Acres and, up to September 6, 1978, Main Street stores in Harlan, Kentucky, but exclud- 2 The original charge in Case 9-CA-12819 was filed by the Meat Cut- ters on August I and was amended on August 7. The charge in Case 9- CB-3977 was filed by the Meat Cutters on September 19. ing all office clerical employees, technical employ- ees, guards and supervisors as defined in the Act. Ill1. THE UNFAIR LABOR PRACTICES A. The Facts In or about the latter half of June the Meat Cutters commenced organizing the Employer's employees; and from July 2 to 8, 16 employees had signed cards autho- rizing the Meat Cutters to represent them as their exclu- sive collective-bargaining agent.3 That constituted a ma- jority of the Employer's 30 employees in the appropriate unit. Additional cards were signed from July 12 to 21 by nine other employees,4 so that by July 21, the Meat Cut- ters was designated the exclusive bargaining representa- tive by 25 of 30 employees in the unit. By on or about July 9 or 10, Cas Walker, the Employ- er's president, became aware of the Meat Cutters' organi- zation drive. On July 13, the first of two Meat Cutters' organizing meetings was held at the home of Harold Clem, 5 at which approximately 16 or 17 employees at- tended. The following day Egre Manning, the Employ- er's manager of the meat department of the Browning Acres store, asked employee Tyree if she knew anything about the union the employees were trying to start and asked if she had signed a card. Tyree said that she did not know anything about it. Manning said: "You had better not get messed up in it or you could get yourself into trouble." On the same day Manning also asked bag and stockboy Joseph Edward Young if he knew any- thing about a union. Further, between July 15 and July 27, Lester Cox, the Employer's produce manager, told Silas Clem that Walker had told him on the telephone that he did not want the Meat Cutters representing the employees and that he would probably close the Brown- ing Acres store if the Meat Cutters was successful in or- ganizing the employees. On or about July 19, for the first time in the employ- ees' memories, the Employer announced the reduction of the working hours of many of the employees. Some re- ductions were effective immediately; others, within sev- eral days thereafter. In the meat department, the hours a The Union authorization card of Dan Farmer is dated "6-7-78." Al- though I recognize the parties' stipulation that the cards were received in evidence and the dates thereon were to be considered the dates that the cards were signed, I find that Farmer, purposefully or inadvertently, in- verted the month and day and that the card was signed on July 6. The other signatories were: Dorotha Bargo, July 8; Tommy Bennett, July 7; Donnie Clem, July 6; Gary Clem, July 6; Harold Clem, July 6; Hobert Clem, July 2; Silas Clem, July 6; Nancy Davis, July 7; John Dunson, July 6; Lois Gilbert, July 6; Dora Scott. July 8; Naomi Simpson, July 6; Deborah Tyree, July 6; Kathy Wilder, July 7; and Charlene Yount, July 6. 4 The signatories were: Tevis Belcher, July 18; Bill Caldwell. July 21; Mike Crawford, July 19; William Daniels, July 21; Gwen Ely, July 18; Sharon Hall, July 12; Jeffery Kilgore, July 19; and Joseph Edward Young, July 20. The card of Joseph Earl Young, dated July 20, was also received in evidence. General Counsel claimed that he was properly a member of the unit; however, Respondent claims that he was permanent- ly disabled and therefore no longer appropriately included within the unit In view of the substantial majority obtained by the Meat Cutters by July 21, it is unnecessary for me to resolve his status I note, of course. that if he is not included within the unit, the unit would consist of only 29 employees. 5 The second meeting was held on July 20 at Harold Clem's house. CAS WALKER'S CASH STORES INC. 319 were reduced for only approximately a week and for only certain employees. A general reduction of hours was otherwise applied to most of the other employees- the cashiers, stockboys, and bag boys. As a result of some or all of the foregoing acts, the Meat Cutters wrote to the Employer on July 20, advis- ing that it was currently engaged in organizing the em- ployees at the two stores and cautioning the Employer "against threatening, coercing and intimidating [its] em- ployees as to their activities with [the Meat Cutters]." The letters were received by the Employer on July 21 and apparently caused it to seek other means to thwart the Meat Cutters' organization drive. On July 26, a meeting was held in downtown Harlan, Kentucky, presided over by one Glenn Greene, Jr. It is unclear where the meeting was held, Tyree testifying that it was at Greene's or Greene's brother's office; and it is unclear how the employees who attended were ad- vised of the meeting-but advised they certainly were. In any event, employees Sharon Hall, Deborah Tyree, Myrtle Wilson, and Georgia Johnson attended the meet- ing together with Jenny Gale Johnson, whom Cas Walker, president of the Employer, testified was the overall supervisor and prime mover of the Browning Acres store, and Lois Vanover, a cashier who at that time had assumed many of the functions of then vaca- tioning Jenny Gale Johnson. Greene introduced himself as a representative of the Independent and stated that he wanted to read to them a contract between the Independent and the Employer covering the employees of the Employer's Knoxville stores and to explain its contends. He stated if the em- ployees did not want that contract, they could probably get another one; but if the employees got the Independ- ent, they would definitely get their 40 hours back. Greene then proceeded to read to contract and after- wards, passed out authorization cards for the Independ- ent and asked if the employees wanted to sign them. Two employees (Tyree and Hall) said that they did not want to sign the cards as that time but preferred to think about it. Greene said that that was all right-that the signing was up to the employees and he could not force them to sign the cards. The other employees, including Vanover and Supervisor Johnson, signed cards; and Van- over was given some extra cards by Greene to take to the store and pass out. Vanover agreed to do so, stating that the employees ought to get the Independent in be- cause then they would definitely get back their 40 hours. Eight cards were signed that day, July 26, authorizing the Independent to represent the employees as their "representative for purposes of collective-bargaining, hereby revoking any contrary designation.s" An addi- tional 11 cards were obtained by Vanover on July 27 at the Browning Acres store, one of whom was signed by e The signatories on July 26, were Myrtle Wilson, Tevis Betchler, Georgia Johnson, Delores McGeorge, Nancy Davis, Lois Vanover, Troy Thompson, and Gwen Ely. Deborah Lee Middleton, who also signed a card, and who Vanover believed was also at the meeting, was not an em- ployee whom the parties stipulated in the appropriate unit The payroll records of the Employer reveal that she was first employed in the last week of July. Joseph Edward Young, 7 who had requested that Van- over pay him his weekly wages on Thursday, July 27, a day before the normal pay day. Vanover agreed; and, later when Young reported to the store to pick up his check, Vanover asked him whether he wanted to sign an authorization card for the Independent. Young agreed to that and requested his check again; but Vanover refused, insisting that Young leave the store and sign a card first. When Young complied and returned his signed card, only then did Vanover pay him. The execution of the additional 11 Independent cards gave the Independent a clear majority of the 30 employ- ees in the appropriate unit. Since 12 of the signatories to the Independent cards also signed cards authorizing the Meat Cutters to represent them, presumably the Meat Cutters lost its majority by the signing of the Independ- ent authorization cards which revoked any prior authori- zation cards. It is the contention of both Respondents that on July 27, the Independent had obtained a majority and that the Employer was entitled to recognize the In- dependent, to negotiate a collective-bargaining agree- ment, and to execute one. In fact, that is exactly what the Respondents claim they did. I find that they had no right to do so. As noted above, on or about July 9 or 10, Walker learned of the organizing efforts of the Meat Cutters. There began a concerted effort to ascertain the principal proponents of the Meat Cutters and to discourage that union activity. The threat to close the store and the re- duction of the employees' hours from 40 to 35 was in- tended to foster that goal; and once the employees became aware of the consequences of their union activi- ties, the Employer then began to put back the pieces by fostering and encouraging employees to join the Inde- pendent. Greene did not testify, but I infer from the testimony that the Employer prompted Greene's promise to the employees that if they joined the Independent, then the hours of work which were taken away from them (and thus the money in their paychecks) would be immediate- ly restored. The attendance of Jenny Gale Johnson throughout the meeting, and Vanover's repetition of Greene's promise, were carfully calculated to lead the employees to the desired result-that the Meat Cutters should be abandoned, as it eventually was with the Em- ployer's help and support. With Vanover seemingly assigned to obtain authoriza- tion cards the evening of July 26 and the following day at the store, the Employer rushed through the execution of the collective-bargaining agreement with the Inde- pendent on July 27, chancing that a sufficient number of cards would be signed in the stores. Greene arranged with Walker on the evening of July 26 to meet with him the following morning in Knoxville, and the contract was executed by Greene and Walker, and the following day by the Independent's officers, Gaylor and McNutt. No negotiations concerning the contract were held, be- cause the contract was almost a verbatim copy of the contract which covered the Employer's Knoxville stores I The other cards were signed by Silas Clem, Gary Clem, John Dunson. William Daniels, Ruth Selvia, Bill Caldwell, Lois Gilbert, Mike Crawford, Tommy Bennett, and Naomi Simpson. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No increases of wages or any benefits or other terms and conditions of employment were agreed upon by any of the parties. Further, at the time the contract was executed, the In- dependent did not represent an uncoerced, or indeed any, majority of the Employer's employees in the unit described above. As originally testified to by Walker on March 6, 1979, at the same time as he was allegedly shown proof of the Independent's majority and his office was checking the cards for their authenticity in Knox- ville, Vanover testified that she was still obtaining cards in Harlan, Kentucky, and, only later that afternoon, de- livered the cards to Greene's home in Harlan. This pro- found inconsistency prompted Walker, at the resumption of the hearing on April 17, 1979, to alter his testimony, stating that he never came into the office in the morning but always came in around 3 p.m. I discredit that alteration of testimony, which I find was tailored to remedy Walker's earlier testimony, which I find to be equally incredible. I conclude that at no time on July 27 was the Employer aware that the Independ- ent represented a majority of its employees. Instead, the Employer had knowledge that the Meat Cutters was suc- cessfully organizing its employees in Harlan and con- ducted its affairs with the sole object of destroying the Meat Cutters and persuading its employees to abandon their support of the Meat Cutters in favor of the Inde- pendent. Indeed, once having signed the collective-bargaining agreement, the Employer within the next few days made good on its promise to reinstate the hours previously re- duced. That change was announced on or about July 31. The day before, on July 30, Arnold Belcher, the store manager of Browning Acres, asked Joseph Edward Young if he had signed an authorizatin card for the Inde- pendent. When Young replied that he had, Belcher said: "Good. Because the people that didn't sign them would lose their job and the only people that signed them would get overtime." B. Concluding Findings and Discussion 1. The 8(a)(l) violations Whether the Employer violated Section 8(a)(l) of the Act in the respects complained of depends primarily upon the resolution of the credibility of the various wit- nesses. In my findings of fact, I have credited General Counsel's witnesses. In particular, I find, as admitted by Walker, that he was well aware of the Meat Cutters' or- ganizing activities as early as July 9 or 108 and that Van- over testified that the organizing activities and the "bick- ering" which accompanied them were openly conducted since Supervisor Johnson left for vacation on or about July 14. In light of those facts, I find it improbable that Manning, Cox, and Belcher were not made aware of the Meat Cutters' efforts except, as they each testified, from different customers of the Browning Acres stores of quick-food stores across the street from the store-and not earlier than the end of July. 8 At one point of Walker's shifting testimony, he stated that he was aware of organizing activities possibly in June. Manning was impressive as a witness solely because of his demeanor, tapping his feet and wringing his hands when asked pertinent questions during his cross-examina- tion, characteristics also shared by Vanover. Belcher re- vealed a complete lack of memory about events and im- portant details. Cox, I am convinced, was merely mouth- ing a denial, without truly believing it. As a result, I am persuaded that on July 14 Manning interrogated both Young and Tyree, whom he also threatened; and that Belcher interrogated and threatened Young on July 30. Whether Cox threatened Silas Clem with the closing of the store is a closer question, because Clem testified that he first became aware of such a threat in a conversation with employee Ely on July 27. Later in his testimony, he related his earlier conversation with Cox. Despite this apparent inconsistency, I find it probable that Cox made the statement imputed to him in light of his original ad- mission that he told a customer of the quick-food store that the Employer might be forced to close its store if the Meat Cutters' drive proved to be successful. It is not improbable that Cox made a similar statement to one of his employees. On the basis of Cox's demeanor and the otherwise candid and forthright testimony of Clem, I find that Cox did make such a statement and discredit his later attempt to vary the words that he said to the cus- tomer. Board law makes patently clear that a threat of store closure is a most serious violation of employees' Section 7 rights to engage in self-organization, impressing them that, if their efforts are successful, they will lose their jobs. N.L.R.B. v. Gissel Packing, supra. The interrogation of Tyree, accompanied by the threat of disciplinary action,9 results in the same evils; and the interrogation of both Tyree and Young, attempting to ascertain the activ- ities of the individuals who are participating in the pro- motion of a union, coerces them to cease their legal and protected support by identifying the Meat Cutters propo- nents. I conclude that the Employer has violated Section 8(a)(l) by its interrogation of and threats to its employ- ees. W. H. Scott, d/b/a Scott's Wood Products, 242 NLRB No. 169 (1979). Finally, I credit Young's recital of Vanover's with- holding of his pay until he signed an Independent card. Young impressed me as a truthful young man, whereas Vanover's memory of events was frequently lacking and vague. Her denial that she solicited anyone to sign Inde- pendent cards is inconsistent both with her admission that she indeed solicited Young to sign a card and with the fact that she was the only one who possessed the In- dependent cards. Her request that Young signed the card outside the store is consistent with the instructions she received from Greene not to have cards signed inside the store. From the conversation related by Young, he should have most reasonably assumed that he would not be paid unless he signed a card. However, I do not find that the Employer was respon- sible for Vanover's acts. General Counsel contends that, U The Employer argues in its brief that Manning's comment to Tyree that she ought not involve herself with a union of she might get herself in trouble is "too vague and ambiguous" to constitute a threat. I find the statement neither vague nor ambiguous; nor, as this decision reveals, was the statement an "isolated" or "casual" violation of the Act. CAS WALKER'S CASH STORES INC. 321 in Supervisor Johnson's absence, Vanover substituted as a supervisor. The record does not support that conten- tion-she exercised no independent judgment with re- spect to any supervisory function except, perhaps, her as- signment of cashiers to particular registers, which I deem to be purely ministerial. Further, the record does not support the contention that she acted as an agent of the Employer. Although Vanover was apparently entrusted by Greene to solicit cards, and Manning sent Young to Vanover when his attempt to persuade Young to sign a card was unsuccessful, that is insufficient to meet the Board's test of whether "under all the circumstances, the employees could reasonably believe that [Vanover] was reflecting company policy, and speaking and acting for management." Aircraft Plating Company, Inc., 213 NLRB 664 (1974), citing American Door Company, Inc., 181 NLRB 37, 43 (1970); Community Cash Stores, Inc., 238 NLRB 265 (1978). Vanover was merely contributing to the Employer's grand scheme to gain support for the In- dependent. That did not give her real or apparent au- thority to act for the Employer. Rather, her motivation for supporting the Independent may have been caused by a desire to please the Employer and to protect her own means of a livelihood. That does not create an agency relationship. Accordingly, I dismiss paragraph 7(a) of the complaint. 1 o 2. The 8(a)(2), (3), and (5) and (b)(l)(A) and (2) violations a. Credibility Resolution of credibility conflicts are often difficult, requiring the weighing of equally plausible narrations of testimony of witnesses who appear to be telling the truth and who are no more prejudiced and biased than others who are telling a wholly different story. Ofttimes, there are no fatal inconsistencies nor contradictions for the de- terminer of factual issues to seize upon to arrive at a firm conclusion. In those instances, the trial judge or jury must rely upon a sixth sense and instinct, which makes the resolution of certain conflicts somewhat unsatisfac- tory, leaving the chance, sometimes slight and many times significant, that the final decision was erroneous. A reasonable doubt remains. Thcre is no such doubt in this proceeding. The testi- mony of witnesses called on behalf of the Respondents, and of Cas Walker, called by General Counsel as an ad- verse witness, was uniformly calculated to sell a story rather than to tell the truth. Their narration of events shifted as other important facts became known. Their testimony uniformly lacked candor and recall of mean- ingful events; their demeanor (except occasionally for Walker) was uniformly nervous, punctuated by some witnesses' tapping of feet and wringing of hands. Walker, in particular, hesitated in revealing facts; rather, he used his hours on the witness stand as an attempt to "sell" the correctness of his position, often avoiding the question put to him and, instead, answering with alleged facts not called for by the question and interposed solely to bol- 0o Par. 6(a)(iv) of the complaint, alleging Manning's creation of an im- pression of surveillance, is holly unsupported in the record I also dis- miss that paragraph ster his frequent inconsistent statements. Indeed, when Walker became aware that his testimony on March 6, 1979, did not conform with the testimony of others, he calculatedly altered his testimony at the final hearing so that his testimony, as a whole, became a series of fabrica- tions. In determining the facts upon which General Counsel bases his 8(a)(2) and (b)(l)(A) allegations, it is evident that whether or not the Employer recognized the Inde- pendent before it represented a majority of the employ- ees or assisted the Independent to become the bargaining representative of the employees to silence the Meat Cut- ters' organizational efforts depends, in large part, upon an assessment primarily of the information supplied by Respondents' witnesses, Cas Walker and June McNutt, the Independent's secretary-treasurer, both of whom were quite naturally attempting to protect the integrity of their collective-bargaining agreement. Further infor- mation was supplied by admitted Supervisor Arnold Belcher, the Browning Acres store manager, and em- ployee Vanover, who was equally opposed to the Meat Cutters and favored the Independent, for reasons which are not apparent in the record. The problem, then, is to separate the truth from the fiction contained in the testimony of these four witnesses, all of whose interests are aligned with the Employer and whose testimony is often internally inconsistent, whose testimony often conflicts with one another, and whose testimony was in toto filled with a variety of misstate- ments of fact so that the truth is as yet not fully revealed in the record. Whether the appearance of Glenn Greene would have aided in the resolution of the truth is conjec- tural; the fact remains that he was not called as a wit- ness. As a result, the findings and conclusions are based primarily on admissions and inferences thereon--not nec- essarily because all the admissions represent the truth, but because the Respondents have warranted that all their admissions are truthful. b. Discussion The Indenpendent agreement is dated July 27, but it is by no means certain that the agreement was signed on that date. No party argues that it was signed before July 27, although there is only the word of the Respondents' witnesses supporting that fact; and, as is evident in this Decision, I have grave doubts of their credibility. If the agreement had been signed before then, there would be no problem in finding a violation of Section 8(a)(2) and (b)(l)(A) of the Act, because at no time prior to July 27 was the Independent authorized by a majority of the Employer's employees as the exclusive collective-bar- gaining agent International Garment Workers' Union, AFL-CIO v. N.L.R.B., 366 U.S. 731 (1961). The uncertainty of the correct date arises, in part, from the differing testimony as to whether the signatures of the "negotiating committee"-which, the record dem- onstrates, never negotiated anything-were written on the signatory page of the agreement" at the time when Walker, Greene, McNutt, and Gaylor allegedly signed it i' The signatior page of the agreement is attached as "Appendix A' [Appendix A omitted from publication 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Walker's office in Knoxville, Tennessee. McNutt testi- fied that they were on the document; Walker stated that they were not. Vanover could not recall whether, at the time she and the other members of the committee signed, the signatures of Walker and the Independent's officers were on the agreement. It seems clear that on July 27 Vanover was collecting the Independent authorization cards and that afternoon, after 4 p.m., she delivered the cards to Greene's house. He was not at home. Vanover's best recollection, al- though not absolutely certain testimony, was that the fol- lowing morning, July 28, Greene came to the Browning Acres store, contract in hand, to obtain the signatures of her and the negotiating committee. By then, cards would have been signed and in Greene's possession; and he would have most assuredly taken the cards with him to Knoxville that day to present to the Employer and his alleged client, the Independent. If Greene did so on July 28, the same date that the Employer received the Meat Cutters' letter of July 27 demanding recognition, any agreement signed by the Employer on July 28 would have violated Section 8(a)(2) under the principles of Mid- west Piping & Supply Co., 63 NLRB 1060 (1945), assum- ing that the Independent cards were uncoerced and le- gitimate. David Scharf and Samuel Often d/b/a Bronx- wood Home for Adults, 244 NLRB No. 84 (1979). Thus, pending on the time of the signing of the agreement, the Employer violated Section 8(a)(2) of the Act under Gar- ment Workers or possibly Midwest Piping. Because I con- clude, infra, that the cards were not in Knoxville at the time Walker signed the Indpendent agreement, and be- cause I believe Vanover in the foregoing respects, I con- clude that Vanover's testimony is credible and that nei- ther Vanover nor the other members of the committee signed the contract as early as July 27. I thus conclude that the contract was signed by Walker and Greene early on July 27 and that McNutt and Gaylor signed, at the earliest, the day after. McNutt testified that the negotiating committee had signed the agreement before she did.' 2 Walker was equally positive that, at the time he signed, the negotiating committee sig- natures were not on the document. I credit both of them, concluding that the agreement was signed by the Inde- pendent's officers and the Employer at different times. I am persuaded that Walker and Greene executed the doc- ument early on July 27, at the time when Vanover was still gathering cards and in the hopes that she would obtain a sufficient number to support the Independent's majority. This conclusion is bolstered by the manner in which Greene executed the document, to wit, as "Counsel for Independent Union of Grocer's Employees. Approved July 27, 1978." If Gaylor and McNutt had been present at the time the agreement was initially executed, there would have been no reason for Greene to sign at all and no reason to indicate that the agreement had been "Ap- proved." Further, I doubt that a trained lawyer (as Greene s alleged to have been) would have permitted McNutt to "attest" to the signature of Walker, the presi- 2 McNutt also testified that the Independent authorization cards were in the office. I have previously found that at 4:05 p m., on July 27., the cards were still in Harlan. dent of the Employer, as the secretary of the Employer. It seems obvious that Greene and Walker signed the agreement in Knoxville on July 27, Greene brought the agreement back to Harlan on July 28 for execution by the negotiating committee, and only after that did Greene transmit the agreement to McNutt and Gaylor for signature. The latter were faced with the dilemma of where to put their names. The line for the president of the Independent was evident, and Gaylor signed there. There was one other line with no signature, with the designation of "Secretary." Since McNutt was the Inde- pendent's secretary, she signed there, unwittingly signing as the secretary of the Employer. Thus, the negotiating meeting of July 27 at Walker's office in Knoxville, as testified to by Walker, never took place. That explains the discrepancy in the testimony of Walker and McNutt. Walker insisted that he had no ne- gotiations with Greene prior to the meeting with Gaylor and McNutt. It was only after the latter arrived that ne- gotiations were held, and then mainly about a wage in- crease. Walker stated that faced with that demand, he re- mained adamant, but agreed to negotiate wages after the new federal minimum wages became effective later in the year. McNutt denied that she had discussed wages with Walker at any time; rather, she "bargained" and "negotiated" solely with Greene. As a result, when McNutt arrived at Walker's office, the contract must have been a fait accompli. It had been prepared in final form and signed by Walker and Greene within 24 hours of Greene's meeting with the Employ- er's employees at his office in Harlan. Indeed, because I discredit Walker's testimony, it may well have been signed prior to that time, since only Walker and Greene were present for its execution; and I do not trust Walk- er's truthfulness and Greene did not testify. In any event, as Walker testified, the signing "was just kind of a rush acted deal" and he "signed it trying to get some confu- sion [union activities of Meat Cutters' adherents] cut down out of the store." The very latest the agreement could have been signed was, giving Walker's original tes- timony the benefit of the doubt, 3 or 3:30 p.m., on July 27, at the moment when the Independent cards were still being obtained by Vanover in Harlan, 100 miles away. There was, thus, in Knoxville no proof that the Inde- pendent represented a majority of employees and no at- tempt was made to ascertain the status of the Independ- ent, since Vanover testified (contrary to Walker) that Walker never telephoned that day to discuss the Inde- pendent cards, contract, or anything else. 13 The Gar- ment Workers case makes clear that the Employer violat- ed Section 8(a)(2) of the Act by executing the agreement when the Independent did not represent a majority of 'a Walker testified that, during July 27, he telephoned Vanover to tell her about the Independent contract. Vanover told him that Greene had been to the store to see her and that she had about all of the employees signed up. She, however, wanted to know more about it; and Walker then described the contract and reviewed it with her. Even without Van- over's denial that she had talked with Walker about the Independent, cards, or contract, Walker's testimony makes no sense, because Vanover was well aware of the contents of the contract which Greene had read to her the night before. CAS WALKER'S CASH STORES INC. 323 employees in the appropriate unit 14 and, for the same reason, the Independent violated Section 8(b)(1)(A) of the Act. However, although the agreement contains a union-security provision, the Employer and Independent did not violate Section 8(a)(3) and (b)(2), respectively, because there is no proof that the provision was ever en- forced or that any employee was discriminated against by the application of that provision Having concluded that Greene and Walker orchestrat- ed the recognition by the Employer of the Independent, it is necessary to consider how Greene became a member of the cast of characters in this proceeding and how the contract was negotiated, if it in fact was. The contract itself is almost identical to the agreement between the Employer and the Independent covering employees of the Employer's Knoxville stores. It provided not only for no increases of wages; indeed, it set forth no provi- sions for wages at all. As far as the record reveals, there is not one clause in the agreement which granted the em- ployees at the Harlan stores any term or condition of employment at variance with what the employees had on July 26, with the exception of a grievance procedure. S Who then, authorized the preparation of the agreement? What was Greene doing preparing the entire contract"' for a bilateral agreement between the Employer and the Independent? McNutt testified that she retained Greene to obtain new contracts for the Independent and that the Employer's Kentucky stores were ripe for the Indepen- dent's new organizing campaign. I do not believe her, if only because the Independent had seemingly conducted no organizing activities since its initial contract with the Employer for its Knoxville stores had been entered in 1962, 16 years before.' 7 The Independent was, therefore dormant, except for its acceptance of dues from about 100 members employed in the Employer's Knoxville stores. The urgency for new organizing campaigns can be explained only by the Meat Cutters' organizing cam- paign which was then being conducted in the Harlan stores. The obvious conclusion is that, if in fact Greene was retained by McNutt, someone prodded her to do it. I am not satisfied that McNutt did retain Greene or that she even met him or talked with him. She testified that she did not know him before she retained him and she could not recall who first mentioned his name to her. She stated that she had retained Greene not only to see 14 The scope of the Independent agreement is not entirely clear, for art. V reads, in part: "The Union shall select a shop steward to represent the employees covered by this collective bargaining agreement for each of the stores operated by the Company, or hereafter operated by the Company, in Harlan County, or other countie in Kentucky." (Emphasis supplied.) is I do not minimize the significance of a procedure requiring the arbi- tration of grievances. However, in these circumstances, particularly be- cause there were no negotiations for any of the terms set forth in the agreement, and because McNutt's references to the Independent are couched in terms of a social club-"we had a nice Union" and "there's just a lot of little things in our union that we do and help a person and do things for each other"--the clause has less than the importance I might ordinarily give it. In Walker testified that at 9 am., on July 27, Greene appeared in Walker's office, contract in hand. " I discredit Walker's testimony that the Independent was always trying to organize the employees of his other stores. McNutt wholly con- tradicted this further attempt by Walker to explain away the sudden ap- pearance of the Independent whether he could obtain additional contracts for the In- dependent but also to handle certain problems for her or- ganization. However, she was unable to clearly define those other "problem areas," except for one involving a 5-cent increase for a few employees; and she testified that Greene never did anything about them. Further, the contact between McNutt and Greene consisted at most of a visit by Greene to the Employer's store in Knox- ville, where McNutt was employed't and a few phone calls-since he was moving around, McNutt did not even have a phone number for him. Rather, Greene, she testified, called her on no more than three occasions.' 9 What is even more disturbing is McNutt's explanation of her need to hire Greene at the very same time that the Meat Cutters was engaged in organizing the two Harlan stores. She testified that the timing of her decision was occasioned solely by her recent election in June as the secretary of the Independent and resulted from her dis- cussion with Gaylor and a former officer that there was need for "someone to help us with anything that comes up" and to resolve "a lot of problems." What triggered the organizing efforts, she testified, was that "we thought it was time for them [the Harlan stores] to come in." Thus, McNutt's testimony rises and falls upon her as- sertion that the problems became critical and that at- tempts to organize became ripe because she was newly elected to her position of secretary of the Union. Only then did she have a voice in the policy of her organiza- tion. That assertion is belied by the agreement between the Employer and the Independent, covering the Knox- ville stores, which was executed on January 1, 1978, and signed by McNutt as the Independent's secretary-5 months prior to the time she allegedly was elected to that position. As a consequence, there was no cogent reason offered by McNutt for the timing of Greene's re- tainer. I conclude that McNutt's testimony was principally a product of fiction and not of truth. The closest she came to the truth was her statement that she did not negotiate the terms of the Independent agreement with Walker. The statement is telling for two reasons. First, it contra- dicts Walker's repeated statements that on July 27 he ne- gotiated with Greene, Gaylor, and McNutt about wage increases. Second, it clearly indicates that Greene was not primarily McNutt's attorney but was just as much a representative or agent of the Employer. Despite the Employer's protestations, Walker knew Greene far better than McNutt. Greene had, at a minimum, handled a wage-and-hour case for the Employer and, according to Walker, worked for the Employer's lawyers or for the uncle or brother or someone else in Harlan.20 When i' The Knoxville agreement, as does the Harlan agreement, provides "It is understood and agreed that all officers of the Union must at all times be employees of the Company, and in the event any such officer ceases to be an employee of the Company for any reason, such officer hereby agrees to so resign his position with the Union. l9 The last call, according to McNutt, was in the late afternoon on July 27, "by long distance," telling McNutt that the contract was read} for signature. However, at that time, according to Walker. Greene was ill Walker's office in Knoxville. Either McNutt or Walker is incorrect. 2' In later testimony, apparently recognizing that his interests were better served by drawing a sharp line between him and Greene. Walkel testified that he did not believe that he ever talked with Greene becaus Conlinuei' 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there were problems in the Browning Acres store, Van- over was advised by the Employer's main office to con- tact Greene to resolve them. In addition, Belcher testi- fied that he had spoken to Greene shortly after he re- ceived the July 20 letter from the Meat Cutters indicat- ing that it was engaged in organizing the Employer's em- ployees and that the letter prompted a meeting which he attended with Walker and his grandson (but probably a nephew) at Greene's office. Although Belcher later re- canted his testimony that Greene was present, indicating that he thought Attorney Forester was Greene, 21 I find that there was a meeting with Greene, although, because of Belcher's confession that he could not remember one fact about the meeting, I profess that I do not know ex- actly what happened there, except (in Belcher's lan- guage), "About legal advice about what to go ahead and do about the union and stuff." That is sufficient in my mind, placing this at July 21 or, at the latest, 3 or 4 days after the July 20 letter, to indicate that the discussion involved the promotion of the Independent to rid the Employer of the Meat Cut- ters. Indeed, Walker testified that, prior to Greene's meeting at Walker's office in Knoxville, Greene called him 2 or 3 times "more than likely" pertaining to the In- dependent contract. Thus, I conclude that Greene and Walker prearranged the signing of the Independent con- tract and the promise by Greene to the employees on July 26 that their hours of employment would be re- stored. I find, in agreement with the Independent's answer, that Greene was its agent and had the authority to sign the contract on behalf of the Independent. I also find that Greene was an agent of the Employer, acting as a go-between to foster the Employer's goals of under- mining the Meat Cutters' majority and assisting and sup- porting the Independent. The fact that supervisor Johnson was at the July 26 meeting is almost sufficient evidence to support the Sec- tion 8(a)(2) violation alleged herein, for her attendance (and signing of an Independent card) indicated the Em- ployer's support of, and assistance to, the Independent. Her failure to speak in answer to Greene's claim may well have constituted the Employer's acquiescence in that claim. At any rate, the following day, Supervisor Manning telephoned employee Young, who had the day off, to ask her to come to the store to discuss "something important." When she arrived, Manning told her that he wanted her to sign a card for the Independent and, if the employees supported that union, they would all go back on regular hours. He added that it would be the best thing for the store. When Young refused, Manning told her to go to the office to see Vanover, who repeated that signing an Independent card would be best for the store. Thus, the scheme to entice the employees into aban- doning the Meat Cutters by holding up the "carrot" of restoration of the earlier work schedule was carefully or- chestrated, its players in Harlan being Greene and Man- he was working for the Independent and that Walker steered away from Greene about as much as he could 21 Belcher also identified Forester as the individual who prepared the Independent contract, but later said that he did not know. Belcher's testi- mony was not the model of clarity and instant recall ning, with the unspoken approval of Jenny Gale John- son. In Knoxville, Walker also made sure to promote the Independent. On July 27, he told Silas Clem by tele- phone that he thought the employees needed to get "these matters" under control because the first of the month was coming up and it was getting busy. Walker told Clem that he would appreciate, if Clem knew any of the other employees who had not signed Independent cards, his talking with them and seeing what they thought and felt about the Independent. The result of all this is that, even if the reduction of hours had not been motivated by the Meat Cutters' cam- paign, as General Counsel complains, the promise of res- toration of the hours was carefully geared to and con- nected with the success of the Independent of organizing the employees and persuading the employees to abandon their support of the Meat Cutters. The statements of Greene, Manning, and Walker are ample evidence of so- licitation of employees and promise of benefits to assist the Independent, in violation of Section 8(a)(2) of the Act. Dee Knitting Mills, Inc., 214 NLRB 1041 (1974), enfd. 538 F.2d 312 (2d Cir. 1976); Lawrence Rigging, Inc., 202 NLRB 1094 (1973); Vernitron Electrical Components, Inc., Beau Products Division, 221 NLRB 464 (1975), enfd. 548 F.2d 24 (Ist Cir. 1977). The scheme to support the Independent may have originated at, or before, the time when the employees' hours were reduced. Regardless of that speculation, I find that the reduction of hours in mid-July was intended to punish the employees for their known support of the Meat Cutters. By the Employer's own admission, when- ever, in the past it has found that too many employees staffed a store, one or two employees have been laid off or transferred to another store. The reduction of the hours of most of the employees at the Browning Acres store was without precedent. The Employer defends its actions by relying upon the fact that all of its employees became unemployed as a result of a fire in the Browning Acres store in early 1978 and resumed their employment only when the store was fully rebuilt and reopened in early June. Because they demonstrated their "loyalty" by returning to work for the Employer-and presumably re- maining out of the employment pool after the fire- Walker and Tsagaris, the Employer's comptroller and secretary-treasurer, decided to reduce the work week of all the employees by 5 hours, from 40 to 35, and the next week from 35 to 30, rather than to lay off any employ- ees. It is difficult to understand how to calculate the feel- ing of reward for loyalty when employees suffered sub- stantial loss of earnings. Between the weeks ending July 21 and July 28, the work week of Selvia was reduced 29- 1/2 hours; Dunson, 23-1/2 hours; Young, 15-1/2 hours; Hall, 15 hours; Caldwell, 14-1/2 hours; Simpson, 14 hours; Hobert Clem, 9-1/2 hours; Crawford, 9-1/2 hours; Georgia Johnson, 9 hours; Bargo, 8-1/2 hours; and Silas Clem, 8-1/2 hours. 22 Unaccountably, not all employees 2 Between the week ending July 14 and ending Jly 21. Silas Clem suffered a loss of another 14-1/2 hours; Caldwell, 11-1/2 hours; Dunson hours; and Bargo hours. In addition, the hours of Joseph Young were Continued CAS WALKER'S CASH STORES INC. 325 lost hours during the same 2 weeks: Gwen Ely's work- week increased from 33 to 36 hours; Wilson, from 26 to 42 hours; and Vanover, from 54 to 61-1/2 hours. Van- over, Wilson, and Thompson, whose hours were reduced from 53 to 44-1/2, were the only employees to work more than 40 hours during the week ending July 28. None of them signed cards for the Meat Cutters; they signed Independent cards the night of the meeting at Greene's office. The last observation may be merely coincidental; indeed, others such as Selvia, who had not signed a Meat Cutters card, were hurt badly by the Employer's deci- sion. However, the foregoing indicates that there was no across-the-board equitable decrease of hours. Disparity is more evidenced than loyalty. This is not to second guess the Employer's right to decide how a reduction of hours shall be effectuated; but when the Employer departs from its past practice to justify a reduction of 5 hours' employment for the first week and an additional 5 hours for the second week, and the proof does not support what it says that it did, a proper inference is that its pro- fessed considerations of loyalty are inaccurate and played no part in its decision. Instead, the Employer must have had something else in mind; and the only reason that comes to mind is the Meat Cutters' organizing campaign. Furthermore, I am not satisfied with the Employer's justification for the reduction of hours, based as it is on a relationship of the total dollar payroll to gross sales. If the precentage of payroll is above 6 percent, then that eats into profits; and because the profit margin is so ex- ceedingly thin-less than 1 percent, testified Tsagaris, and 2 percent, testified Walker-" that can be murder- ous." In support of the reduction, Respondent produced a computer printout for the month of July, showing that the percentage of payroll was 9.31 percent. Leaving aside the timing of the reduction, the state- ments of Greene, Manning, and Walker, and the rein- statement of the hours shortly after the Independent con- tract was signed, the document itself is not very mean- ingful. The record is barren of proof of comparable per- centages in June, August, and thereafter, or for any other period which might show the accuracy of Re- spondent's contentions. Further, it does not show that the percentage of less than 6 percent was ever reached. Rather, the weekly reports upon which the computer run was based remained nestled in the office at the Browning Acres store. In view of the overall unbelievability of Respondent's case, principally the lack of respect for the facts evi- denced in the testimony of Walker, and what amounts to an exercise of his imaginative ramblings, 23 I view with reduced 12-1/2 hours; Kilgore, 12-1/2 hours; Bennett, 11 hours; and Dan- iels, 10-1/2 hours. 2a For the sake of brevity, this decision does not contain all of Walk- er's inconsistent statements and misstatements, but only the most relevant and material. One other general category of testimony should suffice to support the conclusion made in the text. Walker originally testified that when the Independent cards were exhibited by Greene on July 27, Walker had Tsagaris check the signatures on the cards against the payroll records while Greene was in the office, somewhere around 2 p.m After Walker had changed his testimony, indicating Greene's arrival much later in the day, Walker testified that once he was given the cards, he turned them back to McNutt He merely took a "good look" at the cards. but did not check the signatures. He "had no reason to." In addition to the great suspicion Tsagaris' testimony. Indeed, the entire method of effectuating the attempted reduction of pay- roll costs smacks of equal punishment for all, for engag- ing in union activities, rather than loyalty to a few select individuals. In other words, the timing of the reduction of employees' hours was geared to the time when Re- spondent became aware of the Meat Cutters; not to the first week of July, when Tsagaris discovered the high percentage of payroll, but to the Union's organizing drive. The reinstatement of those hours became effective only when the Independent's contract was signed, sealed, and delivered. The motivation for the reduction of hours was the result solely of the employees' union activities in violation of Section 8(a)(3) of the Act; and the Employ- er's professed reason, even if I credited it, was clearly pretextual. I find that the Employer was fully aware of the manner by which the Independent obtained the "sup- port" of its employees. When the Employer was served on July 28 with the Meat Cutters' demand for recogni- tion, the Respondent had no right to reap the benefits of its illegal assistance to the Independent and its other unfair labor practices, to continue to recognize the Inde- pendent, and to refuse to bargain with the Meat Cutters. As a result, I find that the Employer violated Section 8(a)(5) of the Act. Multi-Medical Convalescent and Nurs- ing Center of Towson, 225 NLRB 429 (1976); but, see, Howard Creations, Inc., 212 NLRB 179 (1974), in light of my disposition of General Counsel's request for a Gissel bargaining order, infra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Employer and the Independent, set forth in section III above, occurring in connection with the Employer's operations described in section 1 above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. Upon the basis of the findings of fact and upon the entire record in this proceeding, I hereby make the fol- lowing: CONCLUSIONS OF LAW 1. Cas Walker's Cash Stores Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Independent Union of Grocer's Employees (Inde- pendent), and Amalgamated Meat Cutters and Butcher Workmen of North America, District Union Local 227, AFL-CIO (Meat Cutters), are each labor organizations within the meaning of Section 2(5) of the Act. 3. All employees of the Employer at its Browning Acres and, up to September 6, 1978, Main Street stores obvious inconsistency of his testimony, it appears that almost all of the Independent cards are not signed. Instead, the names of the employees are printed. It was therefore impossible to check the signatures and leads me to the conclusion that not only did Walker not take a "good look" at them but also that the cards were not even produced for his inspection :: 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Harlan, Kentucky, but excluding all office clerical em- ployees, technical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By coercively interrogating its employees concern- ing their union activities and sympathies and by threaten- ing its employees with store closing and discipline if they supported the Meat Cutters, the Employer has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by Section 7 of the Act and has thereby violated Section 8(a)(1) of the Act. 5. By threatening its employees with discharge if they did not sign Independent authorization cards; by promis- ing employees that they would receive overtime work if they signed Independent authorization cards; by promis- ing employees that their work hours, previously reduced, would be restored if they signed Independent authoriza- tion cards; by requesting employees to sign Independent authorization cards and to enlist the support of other em- ployees for the Independent; and by recognizing the In- dependent as the exclusive collective-bargaining repre- sentative of the unit employees at a time when the Inde- pendent did not enjoy an uncoerced majority status, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 6. By reducing the work week of its employees in order to retaliate for their support of the Meat Cutters, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 7. Since July 14, 1978, and at all times thereafter, the Meat Cutters has represented a majority of the employ- ees in the above-described appropriate unit and has been the exclusive representative of all said employees for the purposes of collective bargaining within the meaning of Section 9(a) of the Act; and Respondent was on that date, and has been since, legally obligated to bargain with the Union as such. 8. By refusing to recognize and bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in the above-de- scribed appropriate unit, since July 14, 1978, Respondent has violated Section 8(a)(5) and (1) of the Act. 9. By executing the aforementioned collective-bargain- ing agreement with the Employer at a time when the In- dependent did not represent an uncoerced majority, and by maintaining the agreement, the Independent has re- strained and coerced, and is restraining and coercing, the employees of the Employer in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Sec- tion 8(b)(X)(A) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. The Respondents have not engaged in any other unfair labor practices not specifically found herein. THE REMEDY General Counsel request that a Gissel bargaining order issue herein, in view of the unfair labor practices alleged in the complaint, most of which I have found. The issue is whether these unfair labor practices are of quality and quantity that their effect may be removed by the normal Board remedy of the posting of a notice or whether they are of such a nature that no fair representation election may be held. I conclude that the unfair labor practices in their entirety reclude the holding of a fair election where employees may freely-express their preference for a collective-bargaining representative. If ever there were any doubt of the underlying wisdom of the Gissel holding, this case ought to dispel it. Employees are indeed affected by their employer's show of force. The various unfair labor practices herein, par- ticularly the reduction of hours and the resulting loss of wages, injure employees not only in their wallets and pocketbooks but also in their minds and feelings. An overwhelming majority of employees, which had by July 21 favored the Meat Cutters, was quickly transformed to register their support for the Independent, not because of the legitmate and protected campaigns of the two labor organizations, but because of the Employer's threat to close the Browning Acres store and the reduction of their work hours. The employees, by changing their alle- giance from the Meat Cutters to the Independent, were seeking not substantial gains to their wages and condi- tions of employment, but merely a return to the status quo ante-to rectify the Employer's illegal actions against them and, on their part, to give up the thought of meaningful self-organization through the Meat Cutters. I am persuaded that only a bargaining order can remedy the Employer's violations of the Act herein and anything short of such an order would not place the em- ployees in the same position they would have been in, had it not been for the Employer's unfair labor practices. The experiences of July are obviously not easily forgot- ten. The fact that there are two competing labor organiza- tions in this proceeding creates no serious problem. The Independent, I have found, was wholly assisted and sup- ported by the Employer in violation of Section 8(a)(2) of the Act. Had it not been for the Employer, the Inde- pendent would never have entered the competition against the Meat Cutters in July, and its cards are tainted ab initio. For this reason, the Midwest Piping doctrine does not apply since there is not evidenced herein a le- gitimate showing of interest by two competing labor or- ganizations. In any event, as the Board stated in The Brescombe Distributors Corporation, 179 NLRB 787, 788 (1969), enfd. 452 F.2d 1312 (D.C. Cir. 1971). [T]he doctrine of the Midwest Piping line of cases, while a valid one, is not to be construed and applied so mechanically as to defeat its basic purpose. That principle is designed to serve as a shield and not as a sword. An employer, faced with a competing rep- resentation claim, quite properly should be protect- ed from a union's refusal-to-bargain charge, even where that union is able to demonstrate a card ma- jority, in a situation where he evidences his neutral- ity by maintaining the status quo while the question concerning representation is being determined by the Board. But it is foreign to the basic concept of CAS WALKER'S CASH STORES INC. 327 the rule to invoke it as justification for a refusal to bargain in a situation where, as here, the employer, instead of remaining neutral, takes sides, and en- gages in unfair labor practices aimed at assisting and supporting the union he favors, and utilizes this as a means of dissipating the majority of the rival union to which he is opposed. In this situation, to excuse the refusal to bargain and deny the remedial relief of a bargaining order could serve only to exalt the letter of the rule while stultifying its purpose, and would leave the vicitmized union without a truly ef- fective remedy. The fear that has been injected into the hearts of the employees of the Employer's Harlan stores precludes a fair election. The majority established by the Meat Cut- ters cards by July 8 is vastly more reliable than an elec- tion as the indicator of the desires of the employees herein. Professional Ambulance Service, Inc., 232 NLRB 1141 (1977); Brescome Distributors Corporation, supra; Mason City Dressed Beef Inc., 231 NLRB 735 (1977), modified in other respects, 590 F.2d 688 (8th Cir. 1978); Vernon Devices, Inc., 215 NLRB 475 (1974). Accordingly, I recommended the issuance of a bargaining order herein, effective not as of July 28, 1978, the date when the Employer received the Meat Cutters demand for rec- ognition, dated July 27, 1978, but effective as of July 14, 1978, the date when the Employer embarked on its course of unlawful conduct. Trading Port, Inc., 219 NLRB 298 (1975). To remedy the other unfair labor practices I have found, I have issued the usual cease and desist orders, as well as a broad cease and desist order against the Em- ployer because of its flagrant and egregious violations of the Act. In this connection, I find that the Independent was a somewhat unwilling pawn of the Employer, al- though it later knowingly attempted to expand its juris- diction to employees who were illegally coerced into supporting the Independent and to reap the benefits of the Employer's violations of the Act. Accordingly, I have issued only a narrow order against the Respondent. I also recommend that the Employer be required to cease giving assistance to the Independent and giving effect to the collective-bargaining agreement, dated July 27, 1978. Similar remedies are warranted with respect to the Independent. I also recommend that the Employer make whole all employees for any loss of earnings they have suffered because of the Employer's reduction of their working hours commencing on or about July 19. Admittedly, it may be difficult to identify some of the in- dividuals whose hours were reduced and, because of the disparity of the reduction, the number of hours which were eliminated. That, of course, is best left to the com- pliance stage of this proceeding. However, I note that there were new schedules of hours prepared and given to the employees at the times when the hours were re- duced and when the hours were restored. I will include in the recommended Order that such schedules be re- tained by the Employer. Interest on all amounts due shall be completed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 24 Finally, I recommend that the Employer be required to post the usual notice advising its employees of their rights and the results of this proceeding. It seems clear from the record as a whole that the Independent, which has approximately 100 members, does not maintain an office. Accordingly, I recommended that the Independ- ent mail the notice to its members. Further, I will direct the Employer to post the Independent's notice in its Browning Acres store. Because the Employer no longer owns the Main Street store, no notices need be posted there. Upon the basis of the entire record, the findings of fact, and the conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 2 5 A. The Respondent Employer, Cas Walker's Cash Stores Inc., Harlan, Kentucky, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their activities and sympathies. (b) Threatening employees with discipline and closing the Browning Acres store because they and other em- ployees had engaged in union activities and in order to discourage their support of the Meat Cutters. (c) Threatening employees with discharge if they did not sign cards for the Independent. (d) Promising employees that they would receive overtime work if they signed cards for the Independent. (e) Reducing the work week of its employees in order to retaliate for their support of the Meat Cutters. (f) Promising employees that their work hours, previ- ously reduced, would be restored if they signed Inde- pendent authorization cards. (g) Requesting employees to sign Independent authori- zation cards and to enlist the support of other employees for the Independent, or in any other manner assisting or contributing support to the Independent. (h) Recognizing the Independent as the exclusive col- lective-bargaining represenative of the unit employees in the appropriate unit described below, at a time when the Independent did not represent an uncoerced majority of said employees. (i) Giving effect to the collective-bargaining agreement between Employer and the Independent, dated July 27, 1978, or to any extension, modification, or renewal there- of. 24 See generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). The General Counsel seeks an order requiring that interest on backpay be computed on the basis of 9 percent per annum. The Board has already rejected that position. Southern California Edison Company, 243 NLRB No 62 (1979). 25 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, the recommended Order herein shall, as provided in Sec. 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. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (j) Giving effect to any membership applications ex- ecuted by any employees of the Employer employed at its Browning Acres and, up to September 6, 1978, Main Street stores. (k) Refusing since July 14, 1978, to recognize and bar- gain with the Meat Cutters as the exclusive collective- bargaining representative of the employees in the follow- ing unit: All employees of Cas Walker's Cash Stores Inc. at its Browning Acres and, up to September 6, 1978, Main Street stores in Harlan, Kentucky, but exclud- ing all office clerical employees, technical employ- ees, guards and supervisors as defined in the Act. (I) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the Meat Cut- ters, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Withdraw recognition of the Independent and any successor thereto with respect to its representation of the employees employed in the Employer's stores in Harlan, Kentucky. (b) Make whole all employees employed by the Em- ployer in its stores in Harlan, Kentucky, for any loss of pay or other benefits resulting from the Employer's re- duction of its employees' working hours, in the manner described above in the section entitled "The Remedy." (c) Upon request, recognize and bargain with the Meat Cutters as the exclusive collective-bargaining representa- tive of all employees in the appropriate unit described above and, if an understanding is reached, embody such understanding in a written, signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at Browning Acres store in Harlan, Kentucky, copies of the attached notice marked "Appendix B" and "Appendix C."2 6 Copies of Appendix B, on forms provided by the Regional Director for Region 9, after being duly signed by an officer, representative, or the Employer, and copies of Appendix C, on forms provided by the Regional Director for Region 9, after being duly signed by the Independent's representative, shall be posted by the Employer immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- 26 In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." sonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. The Respondent Union, Independent Union of Gro- cer's Employees, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Acting or purporting to act as the collective-bar- gaining representative of any of the employees of Re- spondent Cas Walker's Cash Stores Inc., at its Browning Acres and, up to September 6, 1978, Main Street stores unless and until said Independent has been certified by the Board as the collective-bargaining representative of said employees pursuant to Section 9 of the Act. (b) Giving effect to the collective-bargaining agree- ment, dated July 27, 1978, by and between the Employer and the Independent, or to any extension, modification, or renewal thereof. (c) Giving effect to any membership applications ex- ecuted by any employees of the Employer employed at its Browning Acres and, up to September 6, 1978, Main Street stores. (d) In any like or related mannner interfering with, re- straining, or coercing the employees of the Employer at its Browning Acres and, up to September 6, 1978, Main Street stores in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Mail to each of its members copies of the attached notice marked "Appendix C," 27 after being signed by a representative of the Respondent Independent. Immedi- ately after their receipt from the Regional Director, other copies of said notice shall be signed by a repre- sentative of the Respondent Independent and shall be forwarded to Cas Walker's Cash Stores, Inc., for posting at its Browning Acres, Harlan, Kentucky store. (b) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaints be dis- missed insofar as they allege violations of the Act other than those found herein. 21 See fn. 25. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. CAS WALKER'S CASH STORES INC. 329 WE WILL NOT act or purport to act as the collec- tive-bargaining representative of any of the employ- ees of Cas Walker's Cash Stores Inc., at its Brown- ing Acres and, up to September 6, 1978, Main Street stores, unless and until we have been certified by the Board as the collective-bargaining repre- sentative of those employees pursuant to Section 9 of the Act. WE WILL NOT give effect to the collective-bar- gaining agreement, dated July 27, 1978, entered into with Cas Walker's Cash Stores Inc., or to any ex- tension, modification, or renewal thereof. WE WILL NOT give effect to any membership ap- plications executed by employees of Cas Walker's Cash Stores Inc., employed at its Browning Acres and, up to September 6, 1978, Main Street stores. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees of Cas Walker's Cash Stores Inc., in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. INDEPENDENT UNION OF GROCER'S EM- PLOYEES