Big Bear Super Markets

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Food Stores, Inc., T/A Big Bear Super Mar- kets and Retail Clerks International Association, AFL-CIO, Local Union No. 204. Case 11-CA-3211 January 11, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On July 14, 1967, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and the General Counsel filed cross-exceptions and an answering brief. 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 powers in connection with this case to a three- member panel. 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 the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner as hereinafter modified: We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act when on October 21, 1966, Regional Supervisor Odum warned employee Lambert not to engage in union talk. It is clear that in so doing Odum in- tended the prohibition to apply to nonworking areas and employees' nonworking time. We also agree with the Trial Examiner that Respondent violated Section 8(a)(3) of the Act when on December 28, 1966, it discharged Lambert purportedly for lack of work and for the added reason that Lambert on the night of December 19, being the eve of an election scheduled for the following day, had allegedly taken certain employees of a local competitor into the backroom of the store contrary to store rules. The Trial Examiner, however, on credited testimony, found that Lambert and the other individuals had not entered the backroom and the subsequent discharge of Lambert was motivated by Respond- ent's opposition to Lambert's activities on behalf of the Union. We do not, however, agree with the Trial Ex- aminer that Respondent's Vice President ' Greensboro Hosiery Mills, Inc., 162 NLRB 1275. 9 Id. Hutchens' letter of December 9, circulated among the employees, and his subsequent speeches to em- ployees on December 19, which repeated the sub- stance of the letters, thereby threatened employees with economic reprisal in the event the Union was successful in organizing the plant. In our opinion, the letter and speeches were not, in themselves, coercive, "for their bare words, in the absence of conduct or other circumstances supplying a particu- lar connotation, can be given a noncoercive and nonthreatening meaning."' And, none of the attend- ing circumstances "tend[ed] to impart a coercive overtone"2 to them. Accordingly, we shall dismiss the allegation of the complaint that Respondent in- terfered with, restrained, and coerced employees by Hutchens' letter and speeches.3 Nor do we agree with the Trial Examiner that Produce Department Manager Wilson's statement to employees, to the effect that if the Union won the election the employees would lose their Christmas bonus and. pension fund, amounted to restraint and coercion in violation of Section 8(a)(1). The Union at a representation hearing agreed with the Respond- ent that department managers generally were eligi- ble to vote in the election. Similarly situated depart- ment managers in local competitors' stores were in fact members of the Union, and the Union invited Wilson to attend union meetings, which he did. Although the Trial Examiner found Wilson to be a supervisor, a finding which we do not disturb, we cannot in the circumstances conclude that the em- ployees regarded Wilson as a representative of management or speaking for management and the statement could not have had the coercive effect upon the employees attributed to it by the Trial Ex- aminer. The Trial Examiner found that Respondent, in refusing to recognize and bargain with the Union, was not acting in good faith, and that by such con- duct it violated Section 8(a)(5) of the Act. The Trial Examiner concluded that the Respondent was act- ing in bad faith in insisting upon the election and was motivated by a desire to gain time within which to undermine the Union. In so doing, the Trial Ex- aminer relied in large measure on Produce Depart- ment Manager Perkins' testimony, which he credited, that tended to refute Hutchens' claim that he had reason to believe that a majority of the em- ployees did not desire to be represented by the Union. Perkins testified that on October 10 at a regular meeting of produce managers he had informed Hutchens, in answer to a question about the reason for the employees' interest in the Union, that the employees of the meat department were "a hundred percent" for the Union except for Gene Beaudry and that "the rest of the store was too." Hutchens 3 Member Brown would affirm the Trial Examiner 's finding that certain statements in the letter and speeches were coercive. 169 NLRB No. 12 BIG BEAR SUPER MARKETS 95 denied that Perkins had so stated, claiming that Per- kins "volunteered that he didn't think they would get very far, that he didn't think the employees in the store were in favor of the Union."4 Hutchens also testified that at about the same time several other employees, whom he named, also told him that they doubted the Union's strength. The Trial Examiner credited Perkins' testimony, believing that Perkins' detailed account of the conversation, in contrast with Hutchens' brief testimony, in- dicated that Perkins had a better recollection of the conversation. But in making this evaluation, the Trial Examiner seemingly overlooked essential parts of Perkins' testimony on cross-examination. Perkins admitted that he had given signed affidavits to a representative of the General Counsel wherein he had stated that he had told both Walker and Hutchens that the Union was not strong and that he told Hutchens(and similarly Walker) that he "didn't think there was much to it, and that the employees wouldn't support it." Perkins reaffirmed the truth of the affidavits, specifically admitting that the above statements were truthful ones. Then, at- tempting to account for his contradictory state- ments, Perkins maintained that he told Hutchens, in the same conversation, both stories, that is, the Union was "a hundred percent" and that he "didn't think the employees would support it." In the face of Perkins' admissions on cross- examination, we cannot agree with the Trial Examiner that Perkins' version of the con- versation with Hutchens on October 10, or for that matter with Walker before then, is worthy of credence irrespective of the gloss of credibility given the account by its detailed nature. On the contrary, we find his testimony on cross-ex- amination is an unmistakable corroboration, in material part, of Hutchens' testimony as to the details of the conversation with Perkins. We can only conclude, therefore, that when on October 22 Hutchens informed the Union, in answer to its writ- ten demand for recognition and bargaining, that "all circumstances coming to our attention indicate that a majority of the employees at our Burlington store do not desire to be represented by your Union," he had a reasonable basis for declining to recognize and bargain with the Union. Under these circum- stances we cannot sustain the Trial Examiner's finding that Respondent acted in bad faith in insist- ing on an election. Nor is our conclusion as to the absence of bad faith on the part of the Respondent changed by the fact of Odum's conversation with Lambert which we have found to have been in violation of 'Section 8(a)(1). On the record as a whole, we are unable to conclude that this violation was "inconsistent with a good-faith doubt that the Union represented a majority of the employees."5 Accordingly, we shall dismiss the complaint insofar as it alleges that the Respondent violated Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, National Food Stores, Inc., T/A Big Bear Super Markets, Burlington, North Carolina, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating or enforcing any rule prohibit- ing union discussions in the store during nonwork- ing time or in nonworking areas. (b) Discouraging membership in Retail Clerks International Association, AFL-CIO, Local Union No. 204, or any other labor organization, by laying off or in any other manner discriminating against employees in regard to their hire or tenure of em- ployment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Offer immediate reinstatement or placement on a preferential hiring list to Samuel Lambert, without prejudice to his seniority and other rights and privileges, and pay him backpay; such remedial action to be effected in the manner provided in the section of the Trial Examiner's Decision entitled "The Remedy." (b) If no vacancy in full-time positions to which Samuel Lambert is entitled under this Order has become available at its Burlington store, notify Samuel Lambert, in writing, of his preferential hir- ing rights, as provided in the section of the Trial Ex- aminer's Decision entitled "The Remedy." (c) Notify Samuel Lambert if presently serving in the Armed Forces of the United States of his right to full reinstatement or placement on a preferential hiring list upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 4 Perkins also testified that somewhat earlier Store Manager Dan Walker asked him who was behind the Union, and that Perkins answered that "it was a bit too late ... that [he] thought the majority of the store had voted for the union ...... Walker was no longer employed by Respondent at the time of the hearing, and Hutchens testified that Respondent had attempted, without success, to reach him to rebut Per- kins' testimony. 5 Hammond & Irving, Incorporated, 154 NLRB 1071, 1073 96 DECISIONS OF NATIONAL (e) Post at its Burlington, North Carolina, store copies of the attached notice marked "Appendix. "s Copies of said notice, on forms provided by the Re- gional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the com- plaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. 9 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT promulgate or enforce any rule prohibiting union discussions in the store during nonworking time or in nonworking areas. WE WILL NOT discourage membership in Retail Clerks International Association, AFL-CIO, Local Union No. 204, by laying off or otherwise discriminating against employees. WE WILL NOT in any other manner interfere with , restrain, or coerce employees in the exer- cise of the rights guaranteed by Section 7 of the Act. WE WILL offer Samuel Lambert immediate reinstatement to a full-time position in the produce , grocery , or front-end department, or if no such vacancy has become available since Lambert's layoff, we will place Lambert on a preferential hiring list to be given the first such vacancy becoming available. WE WILL notify Samuel Lambert if presently serving in the Armed Forces of the United States of his right to full reinstatement or place- ment on a preferential hiring list upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and LABOR RELATIONS BOARD Service Act, as amended, after discharge from the Armed Forces. WE WILL pay Samuel Lambert backpay for any loss of earnings he suffered as a result of our discrimination against him. All our employees have the right to form, join, or assist any labor union, or not to do so. NATIONAL FOOD STORES, INC., T/A BIG BEAR SUPER MARKETS (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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 , 1624 Wachovia Building , 301 North Main Street, Winston-Salem , North Carolina 27101, Telephone 723-2911. TRIAL EXAMINER'S DECISION OWSLEY VOSE, Trial Examiner: This case was heard in Graham, North Carolina, on April 10 and 11, 1967, pursuant to charges filed on January 4 and 18, 1967, and a complaint issued on February 28, 1967. The complaint presents the following questions arising out of conduct occurring at Respondent's Burlington , North Carolina, store: (1) Whether the Respondent engaged in certain acts of interference, restraint, and coercion in violation of Section 8(a)(1) of the National Labor Relations Act, as amended; (2) whether the Respondent permanently laid off Samuel Lambert in violation of Section 8(a)(3) and (1) of the Act; and (3) whether Respondent refused to recog- nize and bargain collectively with the Charging Party (hereinafter called the Union) in violation of Section 8(a)(5) and (1) of the Act. Upon the entire record and my observation of the wit- nesses and after due consideration of the brief filed by the General Counsel, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent operates a chain of supermarkets in North Carolina. During the year preceding the issuance of the complaint the Respondent sold over $500,000 worth of groceries, produce, meat products, and other items. During the same period, the Respondent bought and had shipped from out-of-State sources to its North Carolina stores more than $50,000 of grocery and other items. Upon these facts, I find that the Respondent is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. BIG BEAR SUPER MARKETS 97 II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, AFL-CIO, Local Union No. 204204, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of Events; Conclusions Concerning the Respondent's Violations of Section 8(a)(1) and (3) of the Act 1. Background; the employees' affiliation with the Union; events in the period preceding the Union's request for recognition On September 27, 1966, Samuel Lambert, an em- ployee of the produce department at Burlington, attended a meeting for the Union's members working at the A & P Food Store in Burlington. The A & P grocery and produce department employees are covered by a collec- tive-bargaining contract between the Union and the A & P company. Lambert obtained 50 "Authorization for Representation" cards at this meeting and in the next few days actively solicited the signatures of his fellow em- ployees on these cards. By September 30, 19 employees, a majority of the 35 employees in the store at that time, had signed authorization cards. Among those signing was Samuel Perkins, the manager of the produce department. Lambert had personally obtained the signatures on all but 2 or 3 of the 19 cards. In the following week Lambert ob- tained four additional signatures on authorization cards. Two incidents occurring in the next 2 weeks involving Produce Department Manager Perkins must be related, even though not alleged to constitute unfair labor practi- ces,' because of the light which these incidents cast on subsequent events, particularly the Respondent's refusal to recognize and bargain with the Union and its discharge of Samuel Lambert. Shortly after the authorization cards were signed, Cecil Gabriel, the front-end manager at Burlington, who had been invited but declined to join the Union, reported to Dan Walker, then store manager, that employees were soliciting signatures on union authorization cards. Sub- sequently Store Manager Walker asked Produce Manager Perkins "just who was behind the union the union movement." Perkins replied that he thought "it was a bit too late ... that [he] thought that the majority of the store had voted for the Union and that [he] didn't think he could do anything about it." Walker rejoined that "the union wasn't going to run his store, and that he had a bad temper, and that he might fly off the handle."2 On October 10 a regular meeting of the produce managers was held at one of the High Point stores. After the meeting Vice President Hutchens and Produce Manager Perkins of the Burlington store got into a discus- sion out in front of the store. The testimony of Hutchens and Perkins concerning the details of the conversation is sharply in conflict. Perkins' version is as follows: Hutchens asked him the reason why the employees had become interested in the Union. Perkins replied that the employees objected to working on Sundays. Hutchens explained that the Respondent had considered closing the stores on Sunday, but, when it discovered how profitable the Sunday opera- tions were, it decided to abandon the idea of closing on Sunday. Then Hutchens asked Perkins if Raymond Rudd was associated with the union movement. Perkins an- swered that he "felt like that the meat department was a hundred percent, except for Gene Beaudry, and that the rest of the store was too." Perkins' version continues: "Sammy's (Lambert) name was brought into it, I believe, I told John (Hutchens) Sammy wasn't the only one that was in the union movement." Hutchen's testimony concerning this conversation is as follows: A. Sam asked me if I had heard anything about possible union activities in the Burlington store, and I told him that I had heard just a little something, and I asked him what seemed to be the problem, and he said, well, some of the employees objected to the Sunday work, and then he volunteered that he didn't think they would get very far, that he didn't think the employees in the store were in favor of the Union. Q. (By Mr. Alexander) Was there anything else at all said between you and Sam Perkins on that oc- casion? A. I don't recall exactly, I think he did volunteer that Sam Lambert was one of the ones that seemed to be actively pushing it, but I didn't ask him, I told him I didn't really want to know who had signed cards, if any; I really didn't care. I credit Perkins' version. Perkins' detailed account of the conversation, in contrast to Hutchens' brief testimony, indicates that he had a better recollection of the incident than did Hutchens. At the time of the conver- sation Hutchens was admittedly aware that the union movement was under way. Hutchens also had knowledge that department heads were included in the bargaining units at the A & P store and could reasonable assume that the Union was seeking to organize the Respondent's de- partment heads at Burlington. The Respondent's position throughout the events involved in this case has been that department heads are nonsupervisory employees who are eligible to join the Union. Hutchens' subsequent conduct indicates that he was strongly opposed to the Union. Under all the circumstances, it seems unlikely that Per- kins, who had been one of the first to sign a union card, would have volunteered that Lambert was actively push- ing the Union. It is more probable in my opinion that Per- kins would have soft-pedalled Lambert's role in the union movement as he testified. For all of the foregoing reasons I find that Hutchens took the initiative in questioning Per- kins about the union sympathies and activities of Lambert and Rudd on October 10. This questioning concerning Lambert's union activities is significant in connection with Lambert's discharge which is discussed below. i For reasons stated below in connection with the discussion of the un- 2 This is the credited and undenied testimony of Perkins The Company fair labor practices attributed to Produce Manager Franklin Wilson, I find terminated Store Manager Walker in November 1966 and at the time of that the Respondent's produce managers at Burlington were supervisors the hearing he was working for another supermarket chain. Vice President within the meaning of Section 2(11) of the Act. Samuel Perkins was the Hutchens testified that the Respondent had been unable to get in touch produce manager at Burlington until he was discharged about the middle with Walker since the hearing began of November 1966 Franklin Wilson succeeded Perkins at this time. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union's request for recognition and bargaining; the Respondent's refusal ; the representation proceedings On October 11, 1966, the Union wrote the Respondent a letter in which it asserted that it represented a majority of the employees at its Burlington store , requested recog- nition as the exclusive bargaining representative of all regular full-time and part-time employees at its Burling- ton store , excluding the store manager, guards, and super- visors, and offered to submit its authorization cards at a meeting proposed for the following week for a card check to be conducted by a neutral third party. The Respondent replied to the Union's October 11, 1966, letter requesting recognition by letter dated Oc- tober 22, 1966. The letter in full is as follows: Retail Clerks Union, Local No. 204 P. O. Box 1681 Durham, North Carolina Attention: Mr. J. Leroy Capps Gentlemen: We have received your letter of October 11, in which you state that your Union represents a majority of the employees at our Store in Burlington, North Carolina. We do not know that a unit of employees, such as you refer to in your letter, would be an appropriate unit under the law. At any rate, however, all circum- stances coming to our attention indicate that a majority of the employees at our Burlington Store do not desire to be represented by your Union. Your letter suggests that some arrangement be made for a "card check" on the question of your "majority status." It certainly does not seem to us that that would be, by any means, an accurate or reliable method of ascertaining the wishes of our employees. We are informed by the Labor Board, in Winston- Salem, North Carolina, that you have already referred this matter to that office. It is our un- derstanding that the Labor Board is the proper agen- cy for resolving questions of this nature, and we as- sume that the Board will proceed with such steps as are appropriate. Very truly yours, /s/ John G . Hutchens NATIONAL FOOD STORES, INC. In the meantime , the Union on October 17, 1966, had filed with the Board a petition for certification of bargain- ing representatives . After a hearing, the Regional Director issued his Decision and Direction of Election in the representation proceeding on November 16, 1966. In it the Regional Director found the following unit to be ap- propriate for the purposes of collective bargaining: All employees at the Employer's Burlington, North Carolina, store, including regular part time em- ployees, meat department 'employees , front end, grocery department, meat department and produce department managers , but excluding the store manager, guards and supervisors as defined in the Act. The Regional Director thereafter scheduled the election for December 20, 1966, at 4:15 p.m. The Regional Director was forced at the last minute to call off the elec- tion because of the refusal of paid organizers of the Union to leave the rear portion of the store which had been set up as the polling place. 3. Events in the period following the Union's request for recognition a. Respondent's initial reaction Shortly after the receipt by the Respondent of the Union's request for recognition the Respondent posted a notice in the back of the store announcing that a meeting was to be held and requesting all employees, including off-duty employees, to attend. The meeting was held as scheduled. Off-duty employees were paid for attending. As Samuel Lambert credibly testified, Vice President Hutchens announced that the Union had filed a petition for an election and told the employees, among other things, that the Respondent "would take a stand to fight the Union." 3 b. Supervisor Odum's prohibition against union talk in the store About October 21, Gene Beaudry, the meat depart- ment manager, engaged Lambert in a discussion about the Union in the backroom of the store. Lambert was just commencing his break period. After talking to two stockboys, Beaudry turned to Lambert and told him that the Union would not do the employees any good, that the Respondent already had better working conditions than A & P and Kroger (both stores were organized by the Union). Lambert emphatically denied this, saying that he had worked at the A & P for 10 months, and that he knew that the A & P had "better salaries" and "better working conditions," and that he thought that the Union would benefit the employees. Beaudry and Lambert left the backroom and the discussion or argument continued in front of the Coke machine which was ajacent to the end of the meat counter. Regional Supervisor Harold Odum, who had supervisory responsibilities over four stores, passed by while Beaudry and Lambert were still arguing, but he did not say anything to either man at the time. About 15 minutes later, after asking Produce Manager Perkins whether Lambert was on break and being in- formed that he was, Regional Supervisor Odum went up to Lambert at the produce rack and the following oc- curred, according to Lambert's credited testimony: ... Mr. Odum come up to me and said, "We don't want you talking about anything else on our time any more," and I said, "I wasn't on your time, I was on break." And he said, "Well, that is still our time." I said, "Well, the Federal Government says I can help organize and assist organization on my own time, and they consider that my time." And he said, "Well, you had better be right." Beaudry testified that Odum cautioned him about the same time as follows: He just told me it was against policy to discuss for or to discuss against the union, either one, in the store, and if he heard it again he would have to take further steps. 3 Hutchens was not questioned about this incident at the hearing. BIG BEAR SUPER MARKETS 99 Regional Supervisor Odum was not called as a witness because of ill health. Counsel for the Respondent and for the General Counsel stipulated that Odum, if called as a witness, would testify that he warned both Lambert and Beaudry against engaging in loud conversations in customer areas of the store, and that, as far as he was aware, neither man was on breaktime. I do not credit the stipulated testimony. It is in conflict not only with the testimony of the General Counsel's witnesses Lambert and Perkins, but also with the testimony of the Respond- ent's own witness Beaudry. In view of the fact that the Union was the sole topic of the conversation between Beaudry and Lambert which was overheard by Odum and the further fact, as testified to by Beaudry, that Odum, in talking to him about the same incident, specifi- cally mentioned union talk, I find that Odum, in his con- versation with Lambert, was referring to union talk, and that Odum warned both Beaudry and Lambert that discussions about union matters would not be permitted during working hours in the store. The Respondent adduced no evidence concerning the existence of any rules prohibiting employees generally from talking with one another while at work. Nor has the Respondent offered any justification for the sweeping scope of its no-union-talk rule, applying as it does not only to customer areas of the store, but also to non- customer areas and during break periods. Under all the circumstances of the case I find that the Respondent's blanket prohibition against union talk in the store was adopted in an effort to curb Lambert's union activities and to deter the employees generally from continuing to support the Union. Such conduct unquestionably violated Section 8(a)(1) of the Act. Electro Plastic Fabrics, Inc., 157 NLRB 1023; Witbeck's IGA Supermarket, 155 NLRB 40, 42. c. The harrassment of Lambert for smoking in the store During Odum's conversation with Lambert about union discussions in the store Lambert was smoking a cigarette, Odum called Lambert down for smoking, say- ing, "I don't want to see you smoking out here any more." Lambert argued that smoking in the store had been per- mitted in the past. Odum rejoined that Lambert was not supposed to smoke in the customer areas of the store. Then the following colloquy occurred, as Lambert credibly testified: ... he said, "If you think the grass is greener somewhere else, why don't you go somewhere else?" And I said, "The grass can be greener here," and by that time we had gotten into the bathroom, and he said, "Well, if the grass will be greener here, we are going to make it without anybody else coming in from outside." Lambert disputed this in vulgar retort, and this ter- minated the conversation. After Store Manager Dan Walker came back from lunch that day, he went into the backroom where Lam- bert was working and asked him, "Were you smoking on the floor?" When Lambert admitted that he had been, Walker told him, "Well, we don't need you any longer." The following then ensued, according to Lambert's credited and undenied testimony: ... I said, "Mr. Odum said it would be next time he caught me smoking on the floor that he would fire me." And he said, "Well, Mr. Odum ain't running this place," and I said, "Well, the only reason you are firing me is for union activities," I said, "I have smoked out there in the past, and there wasn't nothing said about it," and he said, "Well, I didn't say I would fire you, I said it would be the next time I caught you, like Mr. Odum did." . he said, "I don't know anything about the union," and I said, "Yes, you do," and I said, "I know who told you; Mr. Gabriel told you," and he said, "How do you know Mr. Gabriel knows anything about it?" and I said, "He was asked to sign a card the first night we were starting it," and he said, "Well, did he?" And I said, "That's none of your business, it's against the law for you to ask anyway." d. Produce Manager Wilson's threat to Lambert and Nicholson About the middle of November 1966 Perkins, the manager of the produce department, was terminated. Franklin Wilson, who was then employed at another of the Respondent's stores, was transferred to Burlington to take Perkins' place as produce manager. Late in November Produce Manager Wilson engaged the other two employees in the produce department in a discussion about the Union. According to the credited and undenied testimony of Lambert and Elcie Nicholson, Wilson stated that the employees were going to "mess up" matters bringing a union in. When Lambert disagreed with him, Wilson stated, to quote Lambert, "If the union come in, they would cut out our Christmas bonus and pension fund." There can be no question but that Wil- son's threat to Lambert and Nicholson was of a coercive nature; there is a serious question, however, as to whether Wilson's supervisory responsibilities were such as to make the Respondent responsible for his conduct. The General Counsel contends that the Respondent's produce managers at Burlington (Samuel Perkins up until about the middle of November, and Franklin Wilson thereafter) exercised such responsibilities as would con- stitute them supervisors within the meaning of Section 2(11) of the Act. The Company disputes this, and ap- parently contends that only the store manager himself had such responsibilities as would constitute him a supervisor within the meaning of the Act, for Vice President Hutchens testified that the Respondent had only one su- pervisor at the Burlington store.4 This would mean that the Respondent has only one supervisor for a large store in which 35 to 38 employees are regularly employed and that the store is operated for many hours without any su- pervisor present.5 I cannot accept Hutchens' testimony in this regard. But the question remains whether the 'Respondent's produce managers have the requisite supervisory respon- sibilities. The General Counsel points to Perkins' unde- nied testimony that he was paid substantially more than the employees in his department and that he assigns the work to the produce department employees, two in 4 It is difficult to ascertain the Respondent's precise position in this re- gard since the Respondent failed to avail itself of the opportunity to file a brief with the Trial Examiner 5 The store is open 7 days a week and its earliest closing hour is 10 p in Friday nights the store remains open until 1 a.m. 350-212 0-70-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number. Hutchens testified that department managers make recommendations concerning hiring and discharg- ing employees, wage raises, transfers, and the disciplining of employees. But Hutchens went on to say, in response to a leading question, that the store manager after receiv- ing such a recommendation would make an independent investigation and act on what he learned in the investiga- tion. However, there is undenied testimony that, in the case of the discharge of Ezell, which Produce Manager Perkins recommended, Store Manager Walker acted without even knowing the basis for Perkins' recommen- dation. Under all the circumstances I do not credit Hutchens' sweeping testimony as to the limited scope of the recommendations of Respondent's department managers. The record also shows that the produce manager fills out employee evaluation forms for the produce depart- ment employees and thereafter discusses the ratings with the employees. Hutchens testified that such evaluations were made only upon request of the store managers, were, reviewed by the store managers, and were sometimes changed before the results were communicated by the produce manager to the employees. It was further testified that the produce managers had no access to the employees' personnel records, other than in connection with the evaluation forms, and that any corrections on employee timecards had to be approved by the store managers. The General Counsel calls attention to undenied testimony that produce managers attend monthly meetings with the store managers and higher manage- ment officials at the High Point, North Carolina, store at which the profits from operations and losses from shrink- age during the previous months are discussed. According to Vice President Hutchens, attendance at the monthly meetings at High Point was largely for trainihouse. The Respondent adduced testimony to the effect that the produce managers are hourly paid employees like or- dinary rank-and-file employees, enjoy the same employ- ment benefits as any full-time employees, and are clas- sified as nonsupervisory employees by the Wage and Hour Division of the United States Department of Labor and consequently receive premium pay for overtime. The Respondent also points out that the Union has agreed to the inclusion of produce department managers and the other department managers in the appropriate unit at Burlington and that the Regional Director, in the antecedent representation proceeding, Case 11-RC-2450, after a hearing determined that produce and other department managers should be included in the appropriate unit. The Respondent asserts that at the A & P Food Store in Burlington, the grocery and produce de- partment employees of which are represented by the Union, the grocery and produce department managers are included in the appropriate unit and are represented for collective-bargaining purposes by the Union. Under all of the circumstances of the case I conclude that the Respondent's produce department managers at its Burlington store have the authority in the interest of the Respondent responsibly to direct the employees in their departments, and effectively to recommend the hir- ing, discharge, promotion, and disciplining of such em- ployees, and consequently are supervisors within the meaning of Section 2(11) of the Act. Respondent is there- fore legally responsible for Wilson's threat to Lambert and Nicholson. However, in the unusual circumstances of this case I do not believe it reasonable to treat Wilson's statements to Lambert and Nicholson late in November as part of what I find hereinafter to be a campaign to de- feat the Union in the election. As stated above, the Union was seeking to include the Respondent's department managers in the appropriate unit. The Regional Director had expressly included the produce department manager in the appropriate unit in his Decision and Direction of Election. And the Union invited Produce Manager Wil- son to attend, and he in fact attended, the union meeting the night before the election was scheduled to be held. Consequently in considering the Section 8(a)(5) allega- tions of the complaint, Wilson's threat to Lambert and Nicholson will be disregarded. e. The Respondent's antiunion letter of December On December 9, 1966, the Respondent mailed to each of its Burlington store employees a six-page letter in which it openly opposed voting for the Union in the elec- tion. About 3 p.m. on December 19, the day before the election, the Respondent held two meetings of employees in the store at which Vice President Hutchens "went over" the various statements against the Union which he had made in the letter. The text of the letter in full is as follows: To All Employees At The Burlington Store: As you have already been informed, an election is to be held at this Store, so that you may have the op- portunity of voting as to whether you do or do not want the Union to come in here. Tuesday, December 20, has been set as the date for this election. The voting place will be in the Grocery Stock Room here at the Store. The time for the voting will be from 4:15 P.M. to 4:45 P.M. on the date named, that is, Tuesday, December 20. You will be able to vote on Company time without any loss of pay for the time you spend in voting. The question to be decided in this election is im- portant. It is important to you - and to those who are dependent on you - important to your job and to your entire future here. That is the reason I am writing you this letter, in order that you may have the facts on all sides as you make up your mind about this matter. I realize this may look like a rather long letter. Nevertheless, I will appreciate it if you will take your time and sit down in your home, or wherever you find it most convenient, and give careful considera- tion to the things which I am going to try to bring out. The Union may tell you that some of the things which I will bring to your attention have been said before. That is no doubt so, but it seems to me that when these things are sound and true, they should be given consideration no matter that they have been said before. You are now faced with the necessity of deciding this issue for yourself and for your future, and I think that it is only fair and right that you should hear the truth on the whole subject before you make up your mind about it. I hope you will understand in the first place, that we do not expect you, and we do not ask you, to do any favor for the Company on this matter. You should decide whether to vote for this Union purely on the basis of whether or not it would be to your own BIG BEAR SUPER MARKETS 101 best interests. If this Union were to get in here, would it benefit you or harm you? Would it actually work out to your advantage or to your disadvantage? These are the questions for you to decide. Now some people are under the impression that if they vote for a Union, then automatically they will get higher pay and benefits of various kinds. Such an idea as that is absolutely in error. Voting for this Union will not 'automatically bring any wage in- creases nor any other benefits to you. If this Union were to be voted in, there would still be no way that it could force this Company to do anything that we are not willing or able to do. It could call you out on strike. I hope, however, you will real- ize and understand - in advance - that we have no in- tention of yielding to any sort of strike pressure. Nevertheless, WHERE UNIONS ARE IS WHERE STRIKES GENERALLY TAKE PLACE. Everybody knows that, and everybody knows that strikes mean trouble and dissension, strife and misery, lost work and lost pay. From time to time you have heard and read of trouble that has come with Unions at various places - trouble that often ends up in serious violence. Again and again it has happened that people, pulled out by their Unions, have stood around day after day and week after week on picket lines, while their bills and expenses meantime continued, and obligations piled up on their homes, their automo- biles and all their other belongings. And generally when the Unions have given up these strikes and told the people to go on back and get their jobs, if they could, what has been the net result for them? What have the Unions gained for the people who were involved in these strikes? The answer as a rule is nothing except trouble and mis- ery, debt and regret. It won't do to assume that this couldn't happen right here! Violence is not the only dangerous consequence that may result from a strike. There are many, many instances in which people having gone out on Union strikes, and while they were out, other people came and took their jobs. Through the Unions and the Union strikes, they gained nothing - instead, they lost everything, including their jobs! For if a Union calls people out on strike in order to try to force the Company to agree to what the Union wants, it is definitely the right of the Company to fill the jobs of those who see fit to go out on strike. And those whose jobs are filled while they are out on such a strike, will have no right to return to their jobs after that-or get their jobs back-even when the strike has ended. The Union which is now trying to get you to vote for it and bring it into this Store is the Retail Clerks International Association, AFL-CIO. This very same Union tried to get in at the Big Bear Stores in Greensboro some years ago. The people there looked this Union over, studied its record and de- cided that it would be a great mistake for them to line up with this organization. Now you should bear in mind it is the Company which furnishes your job and your pay checks - not any Union. And always you should bear in mind that a Union will never furnish you a day's work nor a cent of earnings. It is our hope and our intention to keep your pay benefits moving upward. You can count on that without having to pay any Union dues to accomplish it. And bear in mind that when people who have a Union get through paying dues to the Union, their take-home pay is just that much reduced. Likewise, you have always had the benefit of Christmas bonuses, which people working in unionized Stores do not have. Union organizers, of course, try to turn you against the management of this Company in every way they can. But who do you believe is really more interested in your welfare -we who are trying to carry on this business, or these organizers who want to collect Union dues from you? Do you think you will do better with us whom you know and with this Company which keeps this operation going and meets the payroll or with these Union agents who are here today and gone from here tomorrow? Job security and the advantages of Union con- tracts is one of the main things that the Union or- ganizers constantly talk about. Yet the truth is at many places where the people have had a Union, they now do not have any jobs at all. There are vari- ous Companies where the employees have paid dues to a Union for years and yet today those people are out of work, for many of those Companies are now closed down and out of business. Did the Unions protect the employees who worked under Union contracts at those places? The plain and simple truth is that they did not! Economic and competitive conditions control such matters and a Union cannot control them- no matter what Union organizers may tell you. We are all striving to maintain and build up this operation, in an effort to assure its success on into the future and thereby also to assure jobs for you and security for you and for your families. But a success- ful future for this Store and security for you and your jobs here cannot be accomplished by any Union. It can only be accomplished through your loyalty and cooperation - and by all of us working and pulling together- not by our pulling apart. Ask yourself also this question - why is it that this Union is trying to get in here? Your common sense tells you the answer. The answer is - MONEY - YOUR MONEY! The Union does not expect to collect a single cent from this Company. The organizers know that this Company will never pay them anything. They expect to get it from the pockets and pay checks of you peo- ple. It is of course for you to decide whether you want to let them have some of your money. But make no mistake - it is your money that this Union is after! Now some of you may have the idea that if you join and vote for the Union - then, in one way or another, you will get benefits or advantages over other employees. We want you to know that this is definitely not true. Those who join or belong to the Union will never receive any preferred treatment over those who do not belong. And you can absolutely depend and rely on this:-It is not necessary for anybody to belong to the Retail Clerks International Association, AFL-CIO, or any other Union, in order to work for this Company. The law of North Carolina guaran- tees this to you. 102 DECISIONS OF NATIONAL Another important thing to think about is this. If this Union were to get in here, who would be the peo- ple who would run it anyhow? Who would get to be the shop stewards and committeemen, handling the affairs of everybody else? Look around you and see who is active in pushing this Union in this Store. Are they individuals into whose hands you are now ready to trust your business and your affairs and your fut- ure? Bear in mind that you now have the individual right and freedom to come in and settle with us per- sonally any problems you may have. But if this Union were to get in here, this freedom and this right, which you now have, would be taken away from you and placed in the hands of the Union. In the light of all these considerations, I hope you will realize the importance of your taking an active personal interest in the question of whether this Union shall be voted in or not. You may have been told, or you may have the idea, that if you don't want the Union, then you should just keep hands off and let those who do want the Union vote for it and bring it in if they wish. Now that is a very misleading and mistaken idea. If this Union were to get in, then it would represent those who do not want it as well as those who do want it. And if it were voted in, you could not just throw it out at will. You would be bound by its decisions whether you like it or not. So when this election is held, you can see the im- portance of everybody voting. Don't stand aside on the idea that the outcome won't affect you. It will af- fect YOU. Take a hand in the matter. Help make it go the way you want it to go. Otherwise, you may find yourself saddled with a Union you do not want. BYALL MEANS VOTE IN THIS ELECTION. The voting arrangements will be simple. You merely go to the voting place and there you will be handed a ballot. Then you go into a private booth which will be provided there and mark an "x" on the ballot - either under "Yes", for the Union, or under "No", against the Union. Then you fold the ballot and drop it in the ballot box. You do not sign your name in any way. Nobody can know and nobody will know, how you vote. Bear in mind that all of you who are against the Union are by law entitled to oppose the Union, and to talk and work against it, if you wish to do so. Remember also that in this election, you will be free to vote entirely according to your own judgment and convictions on the election day. YOU CAN VOTE AGAINST THE UNION EVEN THOUGH AT SOME TIME OR OTHER YOU MAY HAVE SIGNED A UNION CARD. Now I hope you will think carefully about all of the things I have tried to bring out in this letter. As mat- ters now stand, you have a good job with steady earnings and a good place here to work. We all hope to make things even better. Do you see any good reason to bring this outside Union in, pay your money to it, and at the same time run the risk of tear- ing apart everything that you now have? If you will study this whole matter thoroughly, I believe you will surely come to the conclusion in your own good judgment ; - That you stand to lose if LABOR RELATIONS BOARD this Union were to get in here and that you stand to gain by keeping it out! [Emphasis in original.] Sincerely yours, /s/ John G. Hutchens John G. Hutchens The content of the Respondent's letter is similar to the content of two speeches which the Board recently found exceeded the protection of Section 8(c) of the Act. See Brandenburg Telephone Company, 164 NLRB 825, 65 LRRM 1183, and Kawneer Company, 164 NLRB 983. Thus Hutchens urged in the letter that the Union was interested only in the dues which it could col- lect out of the employees' paychecks, pointed out that it was the Company "which furnishes your job and your pay checks" and that it was the Company's hope "to keep your pay benefits moving upward ... without [the employees] having to pay union dues to accomplish it." Hutchens asserted that the only way the Union could at- tempt to gain benefits for the employees which the Respondent was unwilling to grant was by calling the em- ployees out on strike, and iterated that "we have no inten- tion of yielding to any sort of strike pressure." Hutchens also intimated that the employees' Christmas bonus might be in jeopardy, reminding them that they had "always had the benefit of Christmas bonuses, which people working in unionized stores do not have." Near the end of the letter, again suggesting that a choice of the Union in the election might mean a loss of benefits, Hutchens stated as follows ". . . you have a good job with steady earnings and a good place to work. We all hope to make things even better. Do you see any good reason to bring this out- side union in, pay your money to it, and at the same time run the risk of tearing apart everything that you now have?" After inviting opponents of the Union to "talk and work against it," Hutchen's concluded his letter by ex- pressing confidence that the employees would conclude that they stood "to lose if this Union were to get in here and" that they stood "to gain by keeping it out!" The tenor of these portions of the letter is analogous to the re- marks condemned by the Board in the Brandenburg case of which the Board said that they "were calculated, and tended, to impress upon the employees the futility of selecting a bargaining representative, and to intimidate them into withdrawing their designations and abandoning the Union." As the Board stated with respect to the speeches in- volved in the Kawneer case, the "theme running through these speeches was that unionization of the plant would inevitably lead to strikes, violence, loss of business, and ultimately, the closing of the plant." Hutchens used the same techniques in his letter in this case. He stressed that "WHERE UNIONS ARE IS WHERE STRIKES GENERALLY TAKE PLACE" and alluded to the "strife and misery" and "serious violence" often attend- ing strikes. Hutchens not only reminded the employees of various unionized companies which "are now closed down and out of business," but he repeatedly mentioned the unionization of the store in terms of its being a threat to each employee's "future," "security for you and for your families," and his very "job" itself. In my opinion the approach of Hutchens closely parallels the approach which was held by the Board in the Kawneer case to transgress the boundary between "views, argument or BIG BEAR SUPER MARKETS 103 opinion" protected by Section 8(c) of the Act and threats which are prohibited by Section 8(a)(1). One other portion of the letter exceeded permissible bounds, Hutchens represented that in the event the Union was chosen exclusive bargaining representative the employees would be precluded from continuing, as in the past, to present grievances individually, stating that "if this Union were to get in here, this freedom and this right, which you now have, would be taken away from you and placed in the hands of the Union." This was er- roneous, as Section 9(a) of the Act, which makes the representative chosen by a majority the exclusive bar- gaining representative of all, expressly provides that "any individual employee or a group of employees shall have the right at any time to present grievances to their em- ployer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a col- lective-bargaining contract or agreement then in effect: Provided further, that the bargaining representative has been given opportunity to be present at such adjustment." The employees, accordingly, have a right to present their own grievances to their employer and need not permit the Union to talk for them to their exclusion. The employees' statutorily protected right to present their own grievances and thus speak for themselves is undoubtedly a right cherished by many employees and Hutchens' statement that if the Union became their representative this right would be taken away from the employees and placed in the hands of the Union amounted to a threat that the em- ployees would lose a substantial benefit. Graber Manu- facturing Company, Inc., 158 NLRB 244. f. The discharge of Lambert 1. The relevant facts Samuel Lambert, the instigator of the union movement in the store, was discharged on December 28, 1966. An incident occurring in the store involving Lambert, among others, on December 19, which admittedly played a minor role in his discharge, must be related before coming to the details of the discharge and the other facts casting light on the Respondent's motives in discharging Lam- bert. Lambert attended a meeting of the Union on Sunday evening December 19. As stated above, this was the night before the election was scheduled to be held. Lam- bert and four employees of the A & P Store in Burlington went from the union meeting to the Respondent's store, arriving there about 9:40 p.m. The closing time that night was 10 p.m. After assembling in the front part of the store, the group started walking around to the right towards the rear of the store. Wayne Howell, the assistant manager, started following the group, whereu- pon the group split up, with two of the A & P employees going around to the produce department and Lambert and two of the other A & P employees disappearing towards the back of the store. Howell returned to the front of the store and announced that the store was closed, and requested everyone to please check out, although it was then not yet 9:45 p.m. Howell added, for the benefit of Lambert, "that includes you, too, Sammy." One of the four A & P employees handed a clerk who was engaged in stocking shelves a card on which was written "Vote Yes." Lambert also spoke to one of the employees. Lam- bert returned to the front of the store and asserted that the store did not close until 10 p.m. and that he was looking for something. Howell threatened to call the police. The five men left about 9:48 p.m. after having been in the store not over 8 minutes, as Assistant Manager Howell admitted. On December 28, Store Manager James Allison called Lambert to one side in the backroom and the following conversation then occurred, according to Lambert's credited and undenied testimony: . he said , "I am going to have to lay you off," and I didn't say anything, and he said, "I've been think- ing seriously about laying you off since you come here with those boys last Sunday night," and I said, "What do you mean?" And he said, "I guess you know it's against company policy to take someone who is not employed by the company into the back room," and I said, "I didn't take them into the back room, I don't know what you're talking about," and he said, "Well, that's not the reason I'm laying off, anyway, the reason I am laying you off is for lack of produce business." And I said, "Do you want me to leave now?" And he said "Yes." Well, when I punched out, I said, "Is this lay-off going to be temporary or permanent?" And he said, "Well, I doubt seriously if the produce business picks back up," and I said, "Well, what about a job in stocking?" and he said, "It'll stay the same as it is." And so I left; I said, "Checker?" and he said, "It'll stay the same," and so I left. During the first week in January 1967, the Respondent laid off Martha Robinson, a part-time meat wrapper. Raymond Rimmer, a grocery clerk who left to return to farming, was not replaced. Vice President Hutchens also testified that a full-time checker was laid off during this period and not replaced, and that no full-time employee had been hired since Lambert's layoff. However, Hutchens admitted that "there were some people hired" on a part-time basis between September and December 1966. At the time Martha Robinson was laid off, Meat De- partment Manager Beaudry, who notified her of her layoff, told her that he had tried to place her in the produce department but had been informed that she could not be transferred to that job until after it had been first offered to Lambert and he had turned it down.6 Vice President Hutchens testified that he made the "final decision" regarding the layoff of Lambert after discussing the matter with Regional Supervisor Odum and Store Manager Allison. When asked concerning the reasons for Lambert's layoff, Hutchens first answered "our past experience there in connection with smoking, in one instance, but the more important, of course, was his act on the night of December 19, wherein he brought these employees from a competitor into the store, and went into the back room." Hutchens' testimony at this point continues as follows: 6 This finding is based upon Robinson's testimony. I find her detailed testimony about this conversation much more convincing than Beaudry's brief denial. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We delayed at that particular time, because we knew that eventually after Christmas rush business, we were going to have to have a lay-off anyway. Later when Hutchens was again asked why Lambert was selected for layoff, Hutchens answered as follows: For two reasons, basically, No. 1, he had most recently come there, he had been there the shortest length of time, and No. 2, it was in connection with this escapade the night of December 19th. 7 Then Hutchens stated that Lambert was not laid off for smoking. When asked whether Lambert was laid off or terminated, Hutchens replied that he had issued instruc- tions that Lambert was to be permanently laid off and was not to be recalled to work. The Respondent's basic contention regarding Lam- bert's layoff is that it was necessitated by a lack of work and that Lambert was selected because he was the last man hired in the produce department. In support of its contention concerning the lack of work in the produce de- partment, the Respondent introduced into evidence two sales summaries comparing the dollar volume of sales, week by week, with the corresponding week a year earli- er. The first is a comparison of the weekly sales of the Burlington store's produce department for the period from September 10, 1966, through March 18, 1967. The second summary compares the total weekly sales of the Burlington store during the period from October 1, 1966, through March 18, 1967. Both of these summaries bear out the Respondent's contention that in the last 3 months of 1966 it was in the midst of a serious slump in sales, not only in the produce department at Burlington , but also in its overall sales at the store. 2. Conclusions Lambert, as found above, was the instigator of the union movement at the store and singlehandedly had ob- tained the signatures on at least 20 out of the 23 authorization cards upon which the Union's request for recognition was founded. The Respondent suspected Lambert to be the ringleader of the union movement, as Vice President Hutchens' comment to Perkins after the meeting at High Point makes clear. And Lambert had been warned by Regional Supervisor Odum not to talk about the Union in the store. At this time Lambert was vociferous in asserting his right to engage in union activi- ties. Both Odum and Store Manager Walker had cautioned Lambert against smoking in the store in a manner which clearly suggested that the Respondent was looking for ex- cuses for getting rid of him. Walker went as far as to sum- marily discharge Lambert, but withdrew the discharge when Lambert asserted that he was being discharged because of his union activities. Walker did this despite the fact that he had previously freely permitted the em- ployees to smoke in all but the front portion of the store. While it was the Respondent's policy throughout its chain not to permit employees to smoke in its stores, except in the backrooms, Walker, up until this time, had refused to enforce the policy. The Respondent's intense aversion to having the Union in the store is clearly manifested in the statements in Hutchens' letter to the employees dated December 9, which he reiterated at the two meetings of the employees on December 19, the day before the election was scheduled to be held. The testimony of both Hutchens and Store Manager Allison concerning the reasons for selecting Lambert for layoff reveals that the "escapade the night of December 19th" was a significant factor in their deliberations con- cerning Lambert's layoff. I credit the testimony of Lam- bert and Bobby Clark that none in the group went into the backroom of the store on the evening of December 19. Consequently, the "escapade" consisted of Lambert and the four A & P employees rapidly circulating around the store and talking to employees about the election for not over a total of 8 minutes. Assistant Manager Howell's reaction, in abruptly declaring the store closed and threatening to call the police if Lambert did not leave im- mediately, although it was before the normal closing time, strongly suggests, in my opinion, that what Howell really objected to was the fact that Lambert was doing a little last minute electioneering in favor of a "Yes" vote. Had the group entered on some other occasion, in my opinion, the Respondent would not have become so aroused and would not have placed such stress on this incident at the hearing 4 months later. Under all the circumstances, I conclude that but for Lambert's electioneering in favor of the Union on December 19 and his previous vociferous support of the Union, Vice President Hutchens would not have issued instructions that Lambert be permanently laid off and not recalled to work, but rather would have merely tem- porarily laid him off and would have recalled Lambert when the volume of work in the store subsequently picked up. While a temporary layoff of Lambert for lack of work would not have been unlawful, the Respondent's per- manent termination of Lambert on December 28, 1966, violated Section 8(a)(3) and (1) of the Act. However, in view of the fact the volume of work available in the store warranted Lambert's temporary layoff, my Recom- mended Order with respect to Lambert, as stated more fully below, will require that he be reinstated with backpay from the date that a position of the type described below first became available after his per- manent layoff. In the event that no such position has become available by the time of the Respondent's com- pliance with the Recommended Order in this case, the Respondent will be required only to place Lambert on a preferential hiring list. B. The Respondent's Violation of Section 8(a)(5) and (1) of the Act 1. The appropriate unit; the Union's majority status As found above, the Union by letter dated October 11, 1966, which was received by the Respondent on October 12, requested recognition as the exclusive bargaining representative of an overall unit consisting of the regular full- and part-time employees at its Burlington store, in- cluding grocery, produce , and meat department em- ployees, but excluding the store manager, guards and su- pervisors, as defined in the Act. While not admitting that the unit described above constitutes an appropriate unit ° Store Manager Allison revealed the same preoccupation with the in- cident in the store on December 19, the evening before the election, when he testified , in response to a query as to the factors causing Lambert's selection for layoff as follows: Based on seniority ; second, that this trouble had been caused on Monday, the 19th. BIG BEAR SUPER MARKETS 105 for the purposes of collective bargaining within the mean- ing of Section 9 of the Act, the Respondent has advanced no reasons why the above unit, which is one of the custo- mary units for employees in food supermarkets, should not be deemed appropriate. In the representation case the Respondent did not oppose the overall unit proposed by the Union. In a 1957 representation case involving the Burlington store, the Respondent took the position that only the overall unit was appropriate. Accordingly, I find that the Union requested recognition and collective bar- gaining on behalf of a unit which is an appropriate unit within the meaning of the Act. Regarding the Union's status as the majority represent- ative of the employees in the appropriate bargaining unit, the record shows that by October 5, 1966, the Union had obtained the signatures of 23 employees on cards authorizing the Union to act as their collective-bargaining representative. However, one of these was signed by Samuel Perkins, whom I have found to be a supervisor within the meaning of the Act. This leaves 22 cards signed by regular full- and part-time nonsupervisory em- ployees. The Respondent has adduced no evidence chal- lenging the authenticity of the signatures on any of the cards and has raised no specific objections concerning the validity of the individual cards as collective-bargaining authorizations. At this time, and on October 12, 1966, when the Respondent received the Union's letter requesting recognition and bargaining, there were no more than 35 nonsupervisory employees at most in the bargaining unit for which the Union requested recogni- tion." Accordingly, I find that the Union represented a majority of the employees in an appropriate bargaining unit at all times material herein. 2. Conclusions concerning the Respondent's refusal to bargain collectively As stated above, the Union by letter dated October 11, 1966, requested the Respondent to recognize it as the ex- clusive bargaining representative of its employees, and offered to submit its authorization cards for a card check to be conducted by a neutral third party. By letter dated October 22, the Respondent declined to grant recogni- tion, suggested that a question existed concerning the ap- propriateness of the unit sought by the Union, stated that "circumstances ... indicate that a majority of the em- ployees ... do not desire to be represented by your union," and expressed the opinion, in conclusion, that these questions should be resolved by the Labor Board in the pending representation proceeding. It is well settled that under the Act the Respondent's obligation in this situation was thereafter to refrain from unfair labor practices the natural tendency of which was to prevent the employees from exercising a free choice in the election. Such unfair labor practices reflect adversely on an employer's good faith in insisting upon an election. While the Board has held that an employer may in ap- propriate circumstances refuse to accept a card check and may insist upon an election as the only way of resolving a union's claim of majority status, he may do so only if such a position is taken in good faith. Where it reasonably may be concluded that an employer's insistence upon an election was not motivated by a good-faith doubt of majority status, but rather by a rejection of the collective- bargaining principle or by a desire to gain time within. which to undermine the union, then the employer's con- duct will be judged accordingly, and the employer will not be permitted to insist upon an election. In such situations other evidence may be relied on to determine a union's majority status, including authorization cards. Aaron Brothers Company of California, 158 NLRB 1077, 1078-79; Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.). The Respondent's course of conduct from the time it received the request for recognition from the Union casts revealing light on its motives in insisting upon an election. As found above, as soon as the Union requested recogni- tion of the Respondent , Hutchens summoned all of the employees at the store to a meeting at which he an- nounced that the Respondent was going "to fight the Union." While this statement was not unlawful, it is part of the background which must be considered in determin- ing the Respondent's motives in refusing to bargain and insisting upon an election. About the same time Regional Supervisor Odum repri- manded Lambert, the instigator of the union movement in the plant, for talking union in the store and announced his sweeping edict against all union talk in the store dur- ing periods the store was open for business, which even applied to union discussions in noncustomer areas during off-duty periods. Later that day, both Regional Supervisor Odum and Store Manager Walker harassed Lambert about smoking in the store, and Odum, plainly indicating a desire to get rid of Lambert, asked him, "If you think the grass is greener somewhere else, why don't you go somewhere else." Store Manager Walker, who previously had not ob- jected to employees smoking in the store (except in the front area), at first discharged Lambert for the smoking incident observed by Odum, but then rescinded the discharge when Lambert protested that he was being discharged because of his union activities. On December 9, about 10 days before the election, the Respondent mailed to each of its employees a six-page letter concerning their vote in the election. The letter as a whole constitutes a frank appeal to reject the Union in the election and to get out and work to see that the Union is defeated. Again on December 19, the day before the election, Hutchens summoned the employees to two meetings of employees in the store and orally commu- nicated the gist of his letter of December 9 to the em- ployees. Had Hutchens in his letter and his oral communica- tions to the employees confined himself to the expression of views, arguments, or opinions the Respondent would have been fully within its rights. While Hutchens' letter was skillfully drafted in an apparent effort to bring the letter within the protection of Section 8(c) of the Act, the Respondent overstepped the boundaries in several respects, as I have found. Hutchens' letter, as may be s This figure is arrived at as follows . G.C. Exh. 15, a stipulated list of employees in the bargaining unit on October 12, 1966, contains 35 names, not including the name of Samuel Perkins , the produce manager, which apparently was inadvertently omitted since the parties intended to include department managers on the list However, in view of my conclusion that Perkins was a supervisor, he should not be included in the appropriate unit, which brings the total of nonsupervisory employees back down to 35. Other department heads such as Gene Beaudry, Cecil Gabriel, Wayne Howell, and Margaret Scott, the head cashier, are included in the 35 em- ployees in the appropriate unit since I have not passed on the question of their supervisory status. Such a ruling was not necessary to my decision herein and the facts were not fully developed at the hearing 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seen from the portions summarized supra, section III, A, 2, particularly, Hutchens' repeated references in the letter to the unionization of the store as being a threat not only to the employees' present benefits but also to the employees' entire security and future with the Company, had a coercive impact. As in Wausau Steel Corp. v. N.L.R.B., 377 F.2d 369, 372 (C.A. 7), Hutchens' "words must be judged by their likely import to his employees." The General Counsel urges that Respondent's lack of good faith in insisting upon an election may also be seen in the fact that the Respondent in its letter denying recog- nition to the Union raised a question about the ap- propriateness of the bargaining unit sought by the Union. In support of his contention the General Counsel points to the fact that the unit sought by the Union was the same unit which the Respondent itself had advocated for the Burlington store in the 1957 representation case, and the further fact that the Respondent has at no time in this case or in the representation case immediately preceding it advanced a single reason why the Union's proposed unit is not appropriate for the purposes of collective bar- gaining. The evidence summarized above, in my opinion, war- rants the conclusion that the Respondent was acting in bad faith in insisting upon an election and was motivated by a desire to gain time within which to undermine the Union. In reaching this conclusion I have not overlooked cer- tain testimony of Vice President Hutchens concerning his reasons for insisting upon an election . Thus, when asked at the hearing why he denied the Union recognition, Hutchens replied that "he had no real evidence" that "the statements in the letter were correct." Hutchens, an at- torney, testified further that he was familiar with cases in- volving forged authorization cards. Hutchens also testified that Gene Beaudry, the meat department manager, Cecil Gabriel, the night manager, and Margaret Scott, the head cashier, had reported to him that they "didn't feel that the employees generally speaking wanted a union." Hutchens did not state what these individuals had reported to him as the basis for their opinions. On the other hand, Samuel Perkins, the produce manager, testified that he told Hutchens in October that he "felt like that the meat department was a hundred per cent (for the Union), except for Gene Beaudry, and that the rest of the store was too." Hutchens' reply, according to Per- kins, was "yeah, he felt like it was too late to do anything about it."a In my opinion, Hutchens' testimony above referred to, should it be relied on as evidencing the Respondent's good faith in insisting upon an election , falls short of rebutting the inference of bad faith arising out of the Respondent's course of conduct since the Union's request for recognition was made, including its spurious questioning of the appropriate unit. It is true that not all employer conduct found violative of Section 8(a)(1) of the Act will necessarily support an inference of a bad-faith refusal to bargain and that the em- ployer's conduct must be of such a character as to in- fringe the employees' freedom of choice in the election. Aaron Brothers Co., 158 NLRB 1077, 1078-79; Wausau Steel, Corp. v. N.L.R.B., supra, at 372-373. However, I do not regard the Respondent's actions in this case as I Although Hutchens denied Perkins' testimony above quoted, I credit Perkins. On the whole, Perkins was less given to making sweeping state- being "minor or borderline" or having only "a moderate unbalancing of an election." Wausau Steel, supra, at 373. Aside from the unlawful conduct of Regional Supervisor Odum, Vice President Hutchens' statements in the December 9 letter, repeated again on the day before the election, were obviously designed to bring about the de- feat of the Union in the election. While it may be contended here, as it was in the Wausau Steel case, that Hutchens "proceeded carefully in attempting to limit his communications to the em-. ployees to the legally permissible," it may also be said here, as the court said in Wausau Steel, supra, at 372, that "one who engages in `brinkmanship' may easily overstep and tumble into the brink." Having deliberately skirted the boundaries of the law in an attempt to defeat the Union, the Respondent can scarcely validly object, when it oversteps the boundary of permissible activity, to its conduct being judged accordingly. I find, as stated above, that the Respondent in refusing to recognize and bargain collectively with the Union was not acting in good faith, but rather was attempting to gain time within which to coerce the employees into rejecting the Union. Such conduct under the authorities cited above is viola- tive of Section 8(a)(5) and (1) of the Act and I so find. CONCLUSIONS OF LAW 1. By prohibiting union talk in the store for antiunion reasons and by extending the prohibition to nonworking areas during nonworking time, the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act, thereby en- gaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 2. By threatening its employees in written and oral communications that the unionization of the plant will result in harm to the employees, the loss of benefits and even their jobs, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act, thereby engaging in further unfair labor practices in violation of Section 8(a)(1) of the Act. 3. By refusing on and after October 12, 1966, to bar- gain collectively with the Union, which had been authorized by a majority of the Respondent's employees in an appropriate bargaining unit to act as their exclusive collective-bargaining representative, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 4. By permanently laying off Samuel Lambert because of his union activities and issuing instructions that he not be recalled, the Respondent has discouraged membership in the Union by discrimination in regard to his tenure of employment, thereby engaging in an unfair labor practice in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices in violation of Section 8(a)(1), (3), and ments favoring the Union's case than was Hutchens in respect to the Respondent's case., BIG BEAR SUPER MARKETS 107 (5) of the Act, my Recommended Order will provide that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In order to remedy the Respondent's refusal to bargain collectively in violation of Section 8(a)(5) of the Act my Recommended Order will direct the Respondent upon request to bargain collectively with the Union. In view of the Respondent's unfair labor practices in violation of Section 8(a)(1) of the Act, which I have found were en- gaged in to dissipate the Union's majority status and to in- terfere with the free choice of the employees in the elec- tion, I find that such an affirmative bargaining order would also be appropriate under the circumstances of this case to remedy the Respondent's violations of Section 8(a)(1) of the Act.10 I have found that the Respondent unlawfully dis- criminated against Samuel Lambert by permanently ter- minating him instead of laying him off temporarily. While I have found that a slump in the Respondent's produce operations justified Lambert's temporary layoff, it is reasonable to assume that by the time of the Respond- ent's compliance with the order herein a_ vacancy will have become available either in the Respondent's produce department, or in the grocery or front end (checking) department." Accordingly, my Recom- mended Order will provide that Lambert be immediately reinstated to a full-time nonsupervisory position either in the produce, grocery, or front end departments, discharg- ing, if necessary, any person hired to fill such a vacancy since the Respondent's discrimination against Lambert, with backpay from the date of the filling of the first full- time vacancy becoming available in the Respondent's produce, grocery, or checking departments after the dis- crimination against Lambert.12 Such backpay is to be computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716. In the event that no vacancy in a full-time position has arisen in the produce, grocery, or front end departments at the Respondent's Burlington store by the time of the is- suance of my Recommended Order herein, my order will merely require that Lambert be placed on a preferential hiring list to be given the first available full-time nonsu- pervisory position in the produce, grocery, or front end departments at the Burlington store, that Lambert be notified in writing of his preferential hiring rights, with backpay from 20 days after the date of my Recommended Order in the event that the Respondent fails to place Lambert on a preferential hiring list and to notify him of his preferential hiring rights, as directed herein. Cf. Deena Products Company, 93 NLRB 549, 554-555; Climax Spinning Co., 101 NLRB 1193, 1195, 1207. In view of the nature of the unfair labor practices com- mitted, the commission by the Respondent of similar and of other unfair labor practices may be anticipated. I shall, therefore, make my Recommended Order herein coex- tensive with the threat, and order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I make the following: [Recommended Order omitted from publication.l 10 The courts have approved such a remedy in numerous cases. Texarkana Bus, Inc v N L.R B , 119 F 2d 480, 484 (C.A 8); N.L.R B v. Caldarera, d/b/a Falstaff Distributing Company, 209 F.2d 265, 268 (C A. 8); Greystone Knitwear Corp, 136 NLRB 573, 575-576, enfd. per curiam, 311 F.2d 794 (C A. 2); Summit Mining Corporation v. N.L R.B, 260 F 2d 894, 900 (C A 3), Piasecki Aircraft Corporation v. N L.R.B., 280 F.2d 575, 591-592 (C.A. 3), cert. denied 364 U.S. 933, Editorial "El Imparcial" Inc. v. N.L R.B., 278 F 2d 184, 187 (C A 1); D H. Holmes Company Ltd v N L.R.B, 179 F.2d 876, 879-880 (C A 5); Local No. 152, Teamsters v N.L.R.B., 343 F.2d 307, 309 (C A D.C.), N L R.B. v. Delight Bakery, Inc., 353 F.2d 344, 347 (C.A. 6), Wausau Steel Corp. v N.L.R B., 377 F.2d 369,374 (C.A 7) 11 In view of the fact that Lambert admittedly was a satisfactory produce department employee and had experience not only in produce operations, but also in the grocery and checking operations, as well, and in view of the further fact that some shifting about employees, including the transfer of grocery and produce employees to checking work, is not uncommon at the store, my Recommended Order will provide that Lam- bert be reinstated either in the produce, grocery, or front end department at the Burlington store. 12 Because I have not passed on the status of the Jobs of the Respond- ent's department managers, excepting the job of the manager of the produce department, which I have found to be a supervisory position, my Recommended Order will not require that Lambert be considered for such positions