Gruber's Food Center, Inc.

GRUBER'S FOOD CENTER, INC. 629 All our employees are free to become or remain members of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) AFL-CIO, or any other labor organization, or to refrain therefrom. MONROE AUTO EQUIPMENT COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Telephone 526-5741. Gruber's Food Center, Inc. and Retail Food Clerks and Managers Union Local 1357,-Retail Clerks International Association, AFL-CIG. Case 4-CA-3772. June 17,1966 DECISION AND ORDER On March 2, 1966, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent and Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. The General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering 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 powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. 1. The Trial Examiner found that Respondent's general interro- gation of its employees concerning their union membership and sympathies was not coercive, but that the interrogations of three 159 NLRB No. 49. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees which were accompanied by promises or notification of pay increases interfered with and restrained these employees in the exercise of the rights guaranteed by Section 7 of the Act and vio- lated Section 8(a) (1) of the Act. We find that Eugene Gruber, Respondent's president, engaged in a campaign of coercive interrogation of employees concerning their attitude toward the Union. Gruber was Respondent's highest-rank- ing management official. He admitted interrogating at least 14 of the 19 employees in the bargaining unit. He further admitted that his interrogations were accompanied by remonstrances that his employees should not have gone to the Union without consulting him and by solicitations of the employees to vote against the Union. His interrogations were accompanied, in at least five instances,' by prom- ises or notification of pay raises to the employees. Gruber neither advised his employees of the purpose of his interrogations, nor did he reassure them that there would be no reprisals against employees who indicated allegiance to the Union.2 The interrogations were coercive, as shown by the fact that Gruber received many false answers from employees who had signed union authorization cards, a fact that was recognized by Gruber himself. Finally, the interro- gations were followed by pay increases to many of the employees. On the basis of the foregoing, we find that all of the interrogations engaged in by Gruber constituted independent violations of Section 8(a) (1) of the Act, in that. they tended to and did interfere with, restrain, and coerce, employees in the exercise of rights guaranteed by Section 7 of the Act.3 2. We agree with the Trial Examiner that Respondent's actions after it received notice of the Union's representation petition con- stituted a rejection of the principles of collective bargaining and that its rejection of the Union's bargaining demand' therefore violated Section 8(a) (5) of the Act. Although we believe this finding of the Trial Examiner is sustainable,. even assuming that Respondent had, as. the Trial Examiner found, a good-faith doubt of the Union's majority when it rejected the Uxiion's 'bargaining demand, we are convinced that Respondent did not have such a good-faith doubt. Whatever doubt Respondent had as to the Union's majority resulted from employee response to Gruber's unlawful interrogation of employees. Such responses did not furnish good cause for doubting 1 The Trial Examiner found only three such instances . We find, in addition , that Gruber threatened employee Hackert that "things wouldn't be the same" if the Union got in, and informed Hackert that he (Gruber ) had given everyone a pay increase . We find also that Francis Mang was told by Gruber that Maag would receive "a few more dollars." 2 Blue Flash Express, Inc., 109 NLRB 591. 8 Unlike the Trial Examiner , we believe that all interrogations herein were unlawful 'under 'the rules indicated in such cases as Bonnie 'Bourne, d/b/aBourne Co. v. N.L R.B., 332 F.2d 47 (CA. 2). ' GRUBER'S FOOD CENTER, INC. 631 the Union's majority claim. Moreover, it is clear from Gruber's own testimony that he did not believe his employees. Accordingly, we find that Respondent's rejection of the Union's demand for recogni- tion as the majority representative of its employees was not made in good faith, and therefore violated Section 8(a) (5) .' [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Paragraph 1(a) is amended to read: ["(a) Coercively interrogating its employees concerning their union sentiments; threatening them with loss of benefits or other reprisals; promising them benefits; or granting them wage increases for the purpose of discouraging them from selecting the Union as their bargaining agent ; provided, however, that nothing herein shall be construed as requiring the Respondent to vary or abandon any economic benefit or any term or condition of employment which it has heretofore established." [2. Reletter paragraph 1(b) as 1(c) and add the following as par- agraph 1(b): [" (b) In any like or related manner interfering with, restraining, or coercing our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Retail Food Clerks and Managers Union, Local 1357,-Retail Clerks Inlernational Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as'authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959." [3. The first two paragraphs of the notice are amended to read : [WWE WILL NOT coercively interrogate our employees concern- ing their union sentiments; threaten them with loss of benefits or other reprisals; promise them. benefits; or grant them wage increases, to discourage their membership, support, or activities in Retail Food Clerks and Managers Union, Local 1357,-Retail Clerks International Association, AFL-CIO, or any other labor A Joy Silk Mills, Inc. v. N.L R .B., 185 F 2d 732 (C A D.C ). The fact that Respond- ent's unfair labor practices occurred between the filing of the petition and the Union's demand for bargaining does not dictate a contrary conclusion , where, as here , the unfair labor practices had the clear purpose of precluding of the holding of a fair election and of preventing the Union from achieving majority status . See, e g , Aero Corporation, 149 NLRB 1283; Greystone Knitwear Corp. and Donwood, Ltd, 136 NLRB 573. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization; provided, however, that nothing herein will be construed as requiring us to vary or abandon any economic ben- efit or any term or condition of employment which we have here- tofore established. [WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Retail Food Clerks and Managers Union, Local 1357,-Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed September 15, 1965, by Retail Food Clerks and Managers Union, Local 1357, herein the Clerks or the Union, against Gruber's Food Center, Inc., herein Gruber's or the Respondent, the General Counsel issued a complaint alleging Gruber's violated Section 8(a)(1) and (5) of the Act. The answer of the Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard before Trial Examiner John F. Funke at Philadelphia, Pennsylvania, on January 4 and 6, 1966. At the conclusion of the hearing the parties were given leave to file briefs. Briefs were received from all parties on February 17, 1966. Upon the entire record in this case and from my observation of the witnesses I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is a Pennsylvania corporation engaged in the retail grocery busi- ness, having its principal office and place of business at Philadelphia. Respondent sells groceries and related products in a value in excess of $500,000 annually. Respondent purchases goods valued in excess of $50,000 annually from firms which purchase such goods from outside the Commonwealth of Pennsylvania. Respondent admits and I find that it is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Clerks is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts 1. Background According to the uncontradicted testimony of Peter V. Marks, an organizer for the Clerks, the Clerks began organizing the employees of Gruber's during the latter part of July 1965.1 On September 2 a petition for an election pursuant to Section 1 Unless otherwise noted all dates refer to 1965. GRUBER'S FOOD CENTER, INC. 633 9(c) of the Act (General Counsel's Exhibit 14) was filed and on September 9 a con- sent election agreement was signed. The parties agreed to an eligibility list for the payroll period ending September 4 (General Counsel's Exhibit 15) which contained the names of 19 employees.2 The Clerks had submitted to the Board in support of its petition authorization. cards from 12 employees.3 On September 15 the Clerks filed the unfair labor practice charge herein and on September 16 withdrew its peti- tion. On that date the Clerks demanded recognition as exclusive bargaining agent of Respondent's employees (General Counsel's Exhibit 16). This demand was refused in a letter from Respondent's counsel dated September 20 (General Counsel's Exhi- bit 17) which read: Plone, Tomar, Parks and Seliger September 20, 1965. 400 Market Street Camden, New Jersey Attention: Howard S. Simonoff, Esq. Re: Gruber's Food Center Gentlemen: Receipt is acknowledged of your telegram dated September 16, 1965, addressed to Gruber's Food Center, 2952-60 N. Fifth Street, Philadelphia, Pennsylvania. You demand recognition as the sole and exclusive bargaining representative of all of Gruber's regular full time and part time selling and non- selling employ- ees at store location. We have been instructed by our client to inform you that it does not believe that you have been authorized to represent a majority of its employees and that we are this day filing a petition with the National Labor Relations Board on its form 502 requestion action by the National Labor Relations Board pursuant to Section 9 of the National Labor Relations Act. Yours very truly, (S) Thomas J. Mullaney, THOMAS J. MULLANEY. TJM:mel On the same day Respondent filed an RM petition for an election. 2. The testimony of the employees The appropriate unit,4 the demand, and refusal are admitted and the only issues presented are (1) whether the Union represented a majority of the employees on September 16, (2) whether Respondent had a good-faith doubt of such majority, and (3) whether Respondent was precluded from raising such a doubt by reason of unfair labor practices designed to dissipate that majority. The complaint alleges Respondent, between September 7 and 11, interrogated its employees concerning their union membership, promised and granted economic benefits to employees to induce rejection of the Union, and threatened employees with loss of employment because of their union activity. Praticality dictates that the testimony respecting these allegations be considered first. Joseph William Rheinhardt, employed at Grubers' for over 5 years, testified that on September 9, after he had signed an authorization card, Gruber asked him if he knew of the upcoming election, asked him how he was going to vote, and told him he would raise him from $1.60 to $1.85 and consider it a favor if he would vote against the Union. He told Rheinhardt to talk it over with his father and added that he would know how each person voted. He also reminded Rheinhardt that many garment workers lost their jobs when the industry was unionized. On 21t was stipulated at the hearing that there were 19 employees in the appropriate unit at all times material herein. 3 It was also stipulated that these cards (General Counsel's Exhibits 2-13) were authentic as to signatures and dates except for one card, signed by Andrew Miliok, dated September 17. It was established that this card was signed at some date prior to September 2. A The answer admitted that the unit set forth in the complaint is appropriate. This unit is: All regular full and part-time selling and nonselling employees employed at the Employer's Philadelphia store, but excluding guards and supervisors as defined in the Act. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARL September 11 Rheinhardt received his' pay increase but on the following Monday, September 13, it was rescinded by Gruber "as a matter of record." Gruber, how- ever, told Rheinhardt to keep the money and say nothing about it .,9 Charles H. Hackert, employed by Gruber's for 10 years, testified that after he had signed an authorization card and during the first week in September Gruber asked him if he was one of the ones who wanted a union in the store. He said he did not and Gruber told him "things wouldn't be the same." About 1 week later Gruber told him that he had given everyone a raise, that his lawyer. told him to do it, and that he had gotten himself into troubles Hackert received a 10-cent raise, his first in 3 years. Joseph R. Joy, employed by Gruber's for over 4 years, testified that on Septem- ber -7 Gruber gave him a pay receipt indicating a 10-cent raise, his first in 2i years and asked him if he had been approached by anyone from the Union. Gruber told him there would be more expenses if the Union was "installed," more wages, and the possibility of cutting down on hours. Ronald Steven Pangoles, employed by Gruber's for 1Y4 years, testified that he received a 10-cent raise on September 11. Francis Maag, employed by Gruber's for 7 years, testified that after he had signed a card Gruber, on September It, asked him if he could use a raise and told him he would receive "a few more dollars." On the following Monday Gruber told him and Joe Joy that he had made a mistake and his raise was canceled. Later he retracted his testimony that the raise was rescinded and stated he was still receiving it. Respondent called the following employees as witnesses: Peter J. Mueller, employed by Gruber's for over 4 years, testified that he had signed a card for the Clerks but that he had changed his mind and did not want the Clerks to represent him .7 He stated that this change of mind occurred about 0 week after he had signed his card 8 and after he had talked with "people that are in the same union." He did not communicate this change of mind to the Clerks nor did he ask for the return of his card. Mueller stated that Gruber did not threaten him in any way respecting his union activity. On cross-examination and when confronted with his pretrial affidavit, he testified that Gruber had asked him if the Union had promised him anything and then told him he would give him a clear $100 a week to stay on his (Gruber's) side. (Mueller was making $95 per week at the time.) Gruber also told him not to tell the Union he had been given a raise. The date of this conversation was not fixed in the record but it may rea- sonably be assumed that it occurred concurrently with the offers to others. Mueller stated that it was after he had changed his mind about his desire for union representation. Thomas Gray, an employee, testified that he had changed his mind about the Union about 2 months before the hearing or some time after the Union had demanded recognition. (Marks testified that Gray had told him 1 week before the hearing that he would not vote for the Union.) Gustav Stoebenau signed an authorization card on August 23, and testified that he "changed his mind" about "a week or so later" because he "realized it was no good to me." He did not communicate this decision to the Union nor did he ask for his card back. Again, confronted with his pretrial affidavit on cross, Stoebenau admitted that Gruber had asked him if he had signed a card. The date was tenta- tively fixed as August 24. Andrew Mihok, employed by Gruber for 1 year and 4 months, testified that he signed a card (erroneously dated) but that he had since changed his mind. He could not fix the date of this change except to state that it was after a meeting at his house with seven employees and Marks. He also testified that after he had signed he was asked by Gruber if he had signed and he told Gruber he had not. He received a 15-cent raise in September. Wayne Shensky, employed by Gruber's for about 1 year, testified that he signed a card but had changed his mind after "the meeting at Andy's [Mihok] house." 5 Rheinhardt's father testified that at Gruber's request he talked to Gruber on the tele- phone, but their conversation adds little to the case. e Subsequent testimony , which I credit, establishes that Respondent 's counsel Thomas Mullaney, told Gruber to maintain the status quo. 7I permitted this line of questioning solely to preserve a record for the court of appeals and stated that I would not be bound by the state of mind of the witness at the time of the hearing. 8 The card was dated "9 Aug 65 " GRUBER'S FOOD CENTER, INC. 635 He admitted that Gruber had inquired if he had signed a card and told him he (Gruber) did not want a union.9 He never communicated this decision to the Union nor did he ask for the return of his card. Mark Lake McClintock, employed by Gruber's for 21/2 years, testified that he signed a card (dated August 8) and changed his mind immediately thereafter.'0 McClintock, an exceptionally evasive witness, testified that Gruber had asked him how he felt about the Union but he either could not or would not fix the date when this took place. He did not receive a raise in September. 3. Management witnesses Eugene K. Gruber, Jr., vice president of Gruber's, testified that he had been employed for 18 years as general manager. It had been the policy of Gruber's, according to Eugene K. Gruber, Jr., to give pay increases to, employees the first week in September for the past 3 years. This policy had been established to com- pensate employees for a reduction in hours required under either Pennsylvania's State Minimum Wage Law or Fair Labor Standards Act. On cross-examination Gruber admitted that he was not knowledgeable in the area of wage increases and that he heard about them from his father. Eugene Gruber, president of Gruber's, testified that he first learned that the Clerks was trying to organize his employees when he received a letter and a copy of the petition from the National Labor Relations Board. (This date was fixed as September 3.) After he received the notice Gruber made an appointment with his attorneys and met with Mr. Mullaney on September 7. Before this meeting Gruber testified that he spoke to most of his employees and interrogated them concerning their attitude toward the Union." After his meeting with his attorneys Gruber again spoke to his employees individually and named 14 of them. His testimony as to what he said reads: Well I asked them if they had any visitors from the union recently, and if they wanted the union to represent them; and I told them, "Well, you should have told me about it before you went ahead with the union because, after all, grievances could be straightened out without a union." There's no one com- plaining; not a-one complained before; not a thing; everything seems to be satisfactory. As to the responses, Gruber testified, "They left [ sic] me think they're against the union." 12 Gruber did solicit votes against the Union among his employees. As to the pay raises, the testimony is far from clear. Respondent's contention was that raises were given in September 1965, as they had been in September 1963 and 1964, to compensate for the decrease in the number of hours employees were allowed to work on straight time. Gruber testified: Well, it was the time of the year, in September. First we had the two hours- we came down two hours for time and a-half work. Years before I did-the fellows were entitled to an increase, they got a raise. But I ... Respondent then produced a document prepared by Gruber's accountant which purported to show the pay rates of all of Gruber's employees for the months of August and September 1963, August and September 1964, and August and Septem- ber 1965.13 Questioned on voir dire as to the preparation of the document, he stated that he gave the figures to his accountant who then prepared the document. Precisely, he testified, referring to the document: A. In this here [indicating the document], I give the figures, and he [the accountant] sort of figures it out. Q. He sort of figures it out. ' A. Only if there's changes, if there's changes in there-he's the one. 6 On cross-examination Shensky repudiated an affidavit dated September 13 (General Counsel's Exhibit 20-A), stating it had been dictated by Peter Marks. 10 Marks testified that McClintock told him, on a date fixed as shortly after the consent conference of September 9, that he would not vote for the Union. 11 Gruber's testimony: Yes-I was just feeling them out-you know-what's all about-because it was a` complete surprise ' 12 Specifically interrogated respecting Joe Joy; Gruber stated that` Joy told him he had ' nothing to do with the Union but that he (Gruber) knew it was not the right answer. 23 Respondent's Exhibit 1. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was then established that the records which showed the number of hours which the employees actually worked were kept in another book.14 Heiman Zinberg, a certified public accountant employed by Gruber's testified that he prepared the comparison payroll record (Respondent's Exhibit 1) from Gruber's payroll records for the respective payroll periods 15 On cross-examination, however, he testified that he did not have Gruber's payroll book when he prepared Respond- ent's Exhibit 1. Zinberg was then questioned at length as to the sources used for compiling Respondent's Exhibit 1. Zinberg's testimony on this issue is so confused and contradictory as to preclude any finding that the figures set forth in Respond- ent's Exhibit 1 were authentically compiled. It was received in evidence by me with the statement that it might have no weight on the issue. B. Conclusions 1. The Union's majority status I find that prior to September 2 and at all times thereafter to and including September 20 the Union had been designated as their collective-bargaining agent by 12 of the employees in the unit found appropriate herein and therefore represented a majority of the 19 employees employed in the unit. There is no asser- tion that any of these cards were obtained by fraud or duress nor that there was mis- representation as to their purpose in solicitation nor on the face of the cards them- selves. These cards are free from the stench of such sullies. Respondent, however, called six witnesses, Mueller, Gray, Stoebenau, Mihok, Shensky, and McClintock, all of whom testified that since signing the cards they had changed their minds and no longer desired the Union to represent them. None except Gray and McClintock communicated this change of mind to the Union or asked for the return of his card, and Gray testified that the change occurred about 2 months prior to the hear- ing or some time after the demand and refusal. (He did not tell the union repre- sentative that he would not vote for the Union until some time in November.) I stated at the hearing that I would not give weight to such testimony but would accept it to preserve a record for the courts. In Horse's Seafood Products, Inc., 152 NLRB 683, six employees defected from the union in February when all signed a document disavowing the union and three of them told the union representative that they wanted to get out of the union. The Board, overruling its Trial Examiner, held their repudiations did not become effective until they submitted letters of resignation, with copies to the employer, in early March. The crucial date of demand and refusal was March 2. In Tinley Park Dairy Co, d/b/a Country Lane Food Store, 142 NLRB 683, an employee signed a card at a union meeting on May 9, and then told her husband she had decided to stay out of the union. The next day she told her employer of the meeting and, on testimony credited by the Trial Examiner, told him the names of the employees who attended. It might be thought that no more effective method of repudiation of designation of union representation could be found than of turning stool pigeon against her fellow employees who were union adherents but the Board again, overruling its Trial Examiner, held that her card, necessary to estab- lish the majority status of the union on May 11, should be computed as of that date. 2. Gruber's unfair labor practices Gruber received a copy of the Union's petition for an election on September 3 and the following week 13 of the 19 employees received wage increases. Prior to granting these increases Gruber made inquiry among his employees as to their atti- tude toward the Union.is The testimony establishes that the employees were not told that the purpose of the inquiry was to discover whether a majority of the employees had designated the Union as their bargaining agent nor were they told li Gruber's testimony: A. (Gruber) Oh, yes-the other book, I use-use for the store-you, know, for the store-different hours. 15 These were subsequently identified as Respondent's Exhibit 2a, 2b, and 2c A third, exhibit, a composition book prepared by Zinberg from Gruber's original books, was marked as Respondent's Exhibit 3. se Gruber testified that be first interrogated his employees prior to his consultation with Mullaney on September 7. He made further inquiry of at least 14 employees after meeting with Mullaney. GRUBER'S FOOD CENTER, INC. ' 637 that there would be no reprisals if they joined the Union. The interrogation, there- -fore, does not enjoy exemption from charges of coercion under the Blue Flash rule.17 The interrogation was not, however, accompanied by any threats nor was it made under such circumstances that a coercive effect might reasonably be implied.18 On the other hand Rheinhardt testified that, at the time, Gruber asked him how he felt about the upcoming election, he also told him he would give him a raise of 25 cents per hour and consider it a favor if he voted against the Union. Joy testi- fied that Gruber gave him a pay receipt indicating he had received a 10-cent increase and at the same time asked him if he was one of the ones who wanted a union in the store. Mueller, Respondent's witness, testified that Gruber asked, him if the Union had promised him anything and told him he would give him a clear $100 a week (as opposed to the $95 he was receiving) to stay on Gruber's side. I find these interrogations, because they were accompanied by promises or notification of pay increases, inevitably tended to interfere with and restrain these employees in the exercise of the rights guaranteed by Section 7 of the Act.19 While I find only these three interrogations unlawful they may not be dismissed as isolated in a unit of only 19 employees. Arithmetically, the defection of these three would have cost the Union its majority status. As to the pay raises themselves, I find they also constituted a part of Respond- ent's plan to dissipate union sentiment among its employees. Respondent's only justification for the granting of these increases in the week immediately following his notice of the Union's claim is nowhere supported by documentation. While I have discredited Respondent's Exhibit 1 as an authentic compilation from the payroll records, that document itself reveals no pattern of increases which would indicate they were intended only to compensate for a reduction in hours. Not only is there no indication why six employees received no increase and accordingly no compensation for their reduction in hours, but the other increases follow no consistent pattern and consistency would necessarily follow if the increases were compensatory. (If the hours were reduced by operation of law the increases would be uniform.) Exhibit 1 shows that Gray was increased from $1:55 to $1.60; yet Pangolas and Shensky were increased from $1.25 to $1.35. Fischer was increased from $2.48 to $2.65 while Balbrirer was increased from $2.48 to $2.60. The Respondent's own figures establish that the raises were not intended to establish a pro rata, compen- satory increase. Furthermore six employee witnesses testified that they had received pay raises but none of them testified that he was told the raise was given to com- pensate for pay lost through a reduction in hours nor did a single witness, includ- ing Respondent's witnesses, testify that his hours had in fact been reduced in Sep- tember. None of the employees testified that it had been the past practice of the Respondent to grant pay increases in the month of September. Where, as here, an employer's immediate response to knowledge of union activity among his employees takes a form which presumptively interferes with their right to self-organization and he then asserts in defense thereof a reason which is proven to be false, the inference of unlawful conduct becomes well-nigh conclusive. I find no factors which favor Respondent or which lead to any other conclusion. The granting of these wage increases was a violation of Section 8(a)(1) of the Act. N.L.R B. v. Exchange Parts Company, 375 U.S. 405. 3. Respondent's good-faith doubt After Gruber had been told by an overwhelming majority of his employees either that they had not signed cards for the Union or were not in favor of it he had good cause to doubt that the Union represented a majority. However, Gruber also testified that he believed some of them were lying, a rather natural assumption in view of the Union's petition. The General Counsel, and the Charging Party appar- ently contend that Gruber could not, in view of this belief, still assert a doubt as to the Union's majority. This reasoning escapes me since, if it had not been for this suspicion that some of his employees were concealing the truth, Gruber would have had no doubt, he would have had a firm conviction that union representation was minimal. The issue is not whether Respondent has a good-faith doubt, which must be conceded, but whether his conduct precluded him from raising it. He is not precluded from raising it under that rule which holds an employer may not 17 Blue Flash Empress, Inc., supra. I 1B Cf. Bourne v. N.L.R.B., supra, reversing the Board's finding that the interrogation therein was coercive. 19 None of these conversations is denied by Gruber. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assert a good-faith doubt as -grounds for rejecting a union's claim to recognition in order to gain .time to dissipate the union's majority. Joy Silk Mills, Inc. V. N.L.R.B., supra. Respondent committed no unfair labor practices after the demand of September 16 and Respondent was willing to proceed to the Board election of September 17. Respondent, in fact, immediately filed its own petition for a Board election on the day it rejected the Union's demand. But these facts do not dispose of the 8(a) (5) issue. The unfair labor practices of the Respondent following so shortly after receipt of the Board's notice and the Union's petition lead inevitably to the conclusion that • their purpose was to defeat the Union at the polls and preclude the holding of a fair election. By such tactics the will of the employees and their right freely to chose their collective-bargaining agent would be frustrated. Under such circum- stances Respondent's willingness to sign a consent election agreement and proceed to an election are meaningless in evaluating its good faith and on September 17 Respondent could have gone to the polls with impunity.20 This case differs from none of those in which the Board has held that an employer may not reject a demand by a union enjoying majority status merely to gain time to dissipate its majority except for the fact that it commenced its unlaw- ful conduct before the demand. It is to be doubted that it would effectuate the purposes to permit Respondent to escape the consequences of its own unlawful conduct by the fortuitous circumstance the demand did not precede such conduct. It will not suffice to exculpate Respondent to say that its motive was not "to gain time." The contention that it must be shown that the reason for the refusal was to gain time to dissipate the Union's majority was rejected by the court in N.L.R.B. v. Elliot-Williams Co., Inc., 345 F.2d 460 (C.A. 7). The court stated, page 464: The law is clear that "The employer acts at his peril in refusing to recognize a duly-elected bargaining agency of an appropriate unit of his employees unless the facts show that in the exercise of reasonable judgment he lacked knowledge of the appropriateness of the unit or the selection of the majority representative." N.L.R.B. v. Piqua, Munising Wood Prod. Co., 109 F.2d 552, 556 (6th Cir. 1940). Regardless of the circumstances it is clear that the actions of the Respondent constituted a rejection of the principles of collective bargaining and violated Section 8(a)(5) of the Act. IV. THE REMEDY Having found that Respondent engaged in and is engaging in certain unfair labor practices, it shall be recommended that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It shall be further recommended that Respondent, upon request, bargain in good faith with the Union as the exclusive-bargaining representative of its employees in the unit heretofore found appropriate. Upon the foregoing findings and conclusions and from my observation of the witnesses and upon the entire record herein, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act and the Union is a labor organization within the meaning of the Act. 2: By interrogating its employees concerning their union activity in a context of interference and restraint and by promising and granting them wage increases for the purpose of dissuading them from selecting the Union as their bargaining repre- sentative, Respondent violated Section 8 (a)( 1 ) of the Act. 3. The appropriate bargaining unit is: all regular full and part-time selling and nonselling employees employed at the Employer's Philadelphia store, but excluding guards and supervisors as defined in the Act. 4. By refusing to bargain in good faith with the Union as the exclusive bar- 20 Respondent was not, of course, entitled to an election as a matter of right. N.L R B. v. Trimfit of California, Inc., 211 F.2d 2-06 (C.A. 9) ; N.L.R.B. V. Philamon Laboratories, 'Inc., 298 F.2d 176 (C.A. 2). - GRUBER'S FOOD.CENTER, INC. 639 gaining representative of its employees in the unit found appropriate Respondent has violated Section 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6 Respondent has not engaged in other violations of the Act as alleged in the complaint. RECOMMENDED ORDER It is hereby ordered that Respondent, Gruber's Food Center, Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activity in a context of interference and restraint; promising and granting its employees wage increases for the purpose of dissuading them from selecting the Union as their bargaining agent. (b) Refusing to bargain collectively with Retail Food Clerks and Managers Union Local 1357,-Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of its employees in the unit found appropriate herein. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Retail Food Clerks and Managers Union Local 1357,-Retail Clerks International Association, AFL-CIO, as the exclu- sive bargaining representative of its employees in the aforesaid appropriate unit with respect to wages, rates of pay, hours of employment, and all other terms and con- ditions of employment and, if understanding is reached, embody such understand- ing in a written agreement. (b) Post at its store at Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix." 21 Copies of said notice, to be furnished by the Regional Director for Region 4, shall, after having been signed by an authorized representa- tive of Respondent, be posted 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 Respondent to see that said notices are not altered, defaced, or covered by by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply therewith.22 IT IS FURTHER RECOMMENDED that the complaint be dismissed as to all allegations not specifically found herein to be in violation of the Act. 21 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words, "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 211n the event that this Recommended Order Is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT ask our employees whether they have signed a union card nor how they are going to vote in any National Labor Relations Board election. WE WILL NOT promise our employees pay raises nor give them pay raises to get them to withdraw from the Union or to vote against the Union in any National Labor Relations Board election. WE WILL, upon request, bargain collectively with Retail Food Clerks and Managers Union Local 1357,-Retail Clerks International Association, AFL- CIO, as the representative of our employees in the following appropriate unit 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to rates of pay, wages, hours of work, and other conditions of employment and, if an understanding is reached, sign a written contract cov- ering such understanding. The employees in the appropriate unit are: All regular and part-time selling and nonselling employees employed at the Employer's Philadelphia store, but excluding guards and supervisors as defined in the Act. GRUBER'S FOOD CENTER, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7617. Tullis and Hearne Broadcasting Company and American Fed- eration of Television and Radio Artists. Cases 21-CA-6569 and 6582. June 17,1966 DECISION AND ORDER On April 13, 1966, Trial Examiner Wallace E. Royster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, the Respondent filed exceptions to the Trial Examiner's Deci- sion and a supporting brief, and the General Counsel filed an answer- ing 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 powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings,' conclu- sions, and recommendations of the Trial Examiner.2 1 The Respondent , in its exceptions and brief , disputes the Trial Examiner 's credibility findings. It is the Board 's policy, however, not to overrule a Trial Examiner's resolu- tions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Well Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 2 Respondent's request for oral argument is hereby denied , as the record , exceptions, and brief adequately present the issues and the positions of the parties . We find no merit in Respondent's contention that it did not receive a fair hearing and that a new hearing should be held. 159 NLRB No. 57.