Hy-Vee Food Stores, Inc.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hy-Vee Food Stores, Inc., and Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, Charging Party. Case 17-CA-3650 May 21,1969 By MEMBERS FANNING, BROWN, AND ZAGORIA DECISION AND ORDER On February 24, 1969, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, 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. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Hy-Vee Food Stores, Inc., Kirksville, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' 'However, nothing herein shall be construed as requiring the Respondent to vary or abandon any existing terms or condition of employment. We reject, as did the Trial Examiner, the Union's request for a monetary remedy to make the employees whole for losses they may have suffered as a result of the Respondent's unlawful refusal to bargain. In denying the said request, however , we do not adopt or pass upon the Trial Examiner's specific reasoning, but do so because we deem it inappropriate in the case to depart from our existing policy with respect to remedial orders in cases involving violations of Sec. 8 (a)(5). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: This case was heard at Kirksville, Missouri, on November 19, 1968, pursuant to a charge filed on August 19, 1968, and a complaint issued on October 15, 1968 The complaint, as amended at the hearing, presents the question whether the Respondent's admitted refusal to meet and bargain collectively with the Charging Party (hereinafter called the Union) and its subsequent conduct after being presented with the Union's bargaining request violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Upon the entire record in the case, my consideration of the briefs filed by the parties, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Iowa corporation, is engaged in the retail sale of groceries and related products at 63 stores in Iowa and Northern Missouri. The Respondent's store in Kirksville, Missouri, is the only facility involved in this proceeding. In the course and conduct of its business operations, the Respondent annually has a gross volume of business in excess of $500,000 and annually receives products valued in excess of $50,000 which are shipped to it directly from points outside the States of Missouri and Iowa. Upon these facts I find, as the Respondent admits, that the Respondent is engaged 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. [I. THE LABOR ORGANIZATION INVOLVED The Charging Party, Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent's Refusal to Bargain Collectively with the Union and its Acts of Interference, Restraint, and Coercion in Violation of Section 8(a)(5) and (1) of the Act. 1. Sequence of events a. The organization of the Union at the Respondent's store There are six employees in the meat department of the Respondent's Kirksville store, including the head meatcutter. Four of these employees met with Ted Wolff, a business representative of the Union on the night of Tuesday, July 30, 1968, at the home of one of the employees. Wolff gave the employees information about the Union, showed them copies of the contract which it had with the Green Hills Supermarket, a competitor of the Respondent in Kirksville, and explained the procedures usually followed in organizing employees. Wolff mentioned that there were two methods of obtaining recognition from employers, either by winning an election or by means of a showing of authorization cards to the employer. Wolff recommended following the latter course and explained why. Wolff then gave the employees authorization cards and asked them to leave the room and consider whether they wanted to sign. He told them to read the cards carefully because he wanted them to understand that the cards authorized him to act as their bargaining agent and that, if a majority of the meat department employees signed the cards, he intended to use them as his authority to ask the Respondent for 176 NLRB No. 5 HY-VEE FOOD STORES 55 recognition and the commencement of bargaining negotiations. All four employees returned to the livingroom and handed him signed authorization cards. At the request of the employees, who wished to give Daryl Monk, the head meatcutter, an opportunity to join the Union, a second meeting was scheduled for August 5. At this meeting, which was attended by five of the six meat department employees, Wolff showed Monk the copy of the Green Hills contract and also the letter requesting recognition which he stated he was going to present to the store manager the next morning. Monk declined to join the Union, stating that the Company would do the talking for him. Wolff obtained authority from the four card signers at this meeting .to use the provisions of the Green Hills contract as a contract proposal to be submitted to the Respondent on behalf of the Respondent's meat department employees. Wolff arranged with Joe Harker, who was to be off duty the next day, to come to the store at the time the request for recognition was to be made so as to be available in case the store manager, Adam Marshall, raised any question to whether he had voluntarily authorized the Union to represent him. Joe Harker's brother, Donald, also worked in the meat department of the Kirksville store. Donald had not attended either of the two union meetings. At the request of Joe Harker, Business Representative Wolff met with Joe and his brother, Donald, before going to the store to request recognition on August 6. After Wolff answered a number of Donald's questions, Donald Harker handed Wolff his authorization card which he had previously signed. b. The Union requests recognition on the morning of August 6 About 9 a.m. on Tuesday, August 6, Wolff met with Store Manager Adam Marshall. Wolff was accompanied by Lowell Robinson, the head meatcutter and union steward at the Green Hills Supermarket. Wolff told Marshall that he represented a majority of the employees in the meat department and had come to demand recognition of the Union as the bargaining representative of all of the Respondent's full-time and regular part-time meat department employees in the Kirksville store. Wolff presented a letter formalizing the request and gave Marshall copies of the authorization cards of employees Marge Smith, Joe Harker, Charles Baker, and Garry Stanley. He stated that he had the original signed cards with him. Wolff showed the original card signed by a fifth employee, Donald Harker, to Marshall and said that he would send a copy of it to Marshall as soon as he could get back to his office and have one made. Wolff then informed Marshall that if he had any doubt about the authenticity of the cards or felt that the five card signers might have been intimidated or coerced into supporting the Union, he could satisfy himself on this score by talking to the card signers then and there. Marshall replied that it would not be necessary. Next, Wolff produced the Green Hills contract as a basis for beginning collective-bargaining negotiations. After reading it for 5 or 10 minutes, Marshall asked Wolff what had prompted the employees to seek affiliation with the Union. Wolff mentioned concern about job security and various other items, which Marshall made note of at the time. In its letter requesting recognition the Union had proposed that the parties hold their first bargaining meeting at the store at 2 p.m. on August 12. Marshall advised Wolff that he would have to check with his superiors at the headquarters of the Respondent at Chariton, Iowa, as to whether this date was acceptable. It was agreed that Wolff would call Marshall on Friday, August 9, to ascertain an acceptable meeting date. When Wolff did so, Marshall informed him that a letter was already on its way stating that Monday, August 19, at 2 p.m., would be the earliest possible date for a meeting. On August 9, the Union sent a letter to the Respondent enclosing a copy of Donald Harker's authorization card. In the letter the Union again requested recognition and immediate collective bargaining with respect to a unit consisting of the meat department employees. c. Store Manager Marshall's conversation with Ronald Van Vleck on August 6 Van Vleck is the head food clerk at the Green Hills Supermarket, which as stated above, has a contract with the Union. Van Vleck had previously had a conversation with Store Manager Marshall in which the latter had indicated to Van Vleck his disapproval of the Union. Van Vleck was off duty on August 6, and as soon as he was informed of the organization of the Respondent's meat department employees, he decided to visit the Respondent's store and observe Marshall's discomfiture at this turn of events. As he walked around the store, Marshall came up behind Van Vleck and asked him if he knew what was going on. Then the following occurred, according to Van Vleck's testimony: I told him I had heard about it, I heard they had signed up. And he asked me what I thought of the union and I said it had its ups and downs like anything else in this town. As far as I was concerned it had very good points. And he said, "I have a couple of fine boys in this outfit that had a good future in this outfit, but this is going to hurt them." Marshall denied saying anything to Van Vleck indicating that any employees would suffer any disadvantage as a result of affiliating with the Union. However, as found below, three other employees, Joe Harker, Donald Harker, and Charles Baker, testified to similar comments by Marshall to them concerning the threat which the Union presented to their future advancement in the Company. And, as noted below, Marshall himself admitted raising the question with the men "as to where they might go" in view of the fact that "only one store was union ." Under all the circumstances I credit Van Vleck's testimony. d. Store Manager Marshall meets with Marjorie Smith, Garry Stanley, and Donald Harker on the afternoon of August 6 At 3 p.m. on August 6 Marshall summoned Smith, Stanley, and Donald Harker to his office. As above noted, Joe Harker was not on duty that day. Present when the three meat department employees arrived in the office, in addition to Marshall, was Charles Smock, the meat supervisor for a number of the Respondent's stores. Marshall opened the meeting by saying that Wolff had indicated to him the reasons why the employees were seeking a union , and that he wanted to verify them so that he could report back to headquarters where he was to go 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the next day. After Smith and Stanley explained what their complaints were, Smock stated, according to the credited and undenied testimony of Smith and Stanley, that "he didn't like the idea of a union at all and he didn't like to go through the third party." Smock then inquired whether the employees would be satisfied if the Respondent "could come up with something similar, a contract or proposal or something, that we could discuss without having to go through the third party." Smith told him no. Whereupon Marshall stated, "If you join the union or go union, all I will say is good morning when you come to work, all the rest will have to be done through a third party, the union." As the meeting was about to end, Marshall asked Donald Harker how old he was. When Donald replied that he was 17, Marshall commented, "Well, under the contract that [Wolff] had shown me this morning you won't be able to work in the meat department because you are under 18, and we are going to follow by this contract." Later in the day, August 6, Store Manager Marshall went up to Donald Harker and Garry Stanley as they were grinding hamburger in the meat department. According to the testimony of Donald Harker, Marshall said he ... has three boys in the meat department that have a good future, and he said it was Joe, and Chuck Baker, and myself, and now, then, if we wanted a promotion or transfer to another store then it wouldn't be able to happen because there wasn't any union in any of the other meat departments.' e. Vice President Clemmons questions all five card signers individually on August 8 concerning why they wanted union representation Wilson Clemmons is vice president in charge of retail operations in all of the Respondent's 63 stores. His office is at the company headquarters at Chariton, Iowa. Clemmons came to Kirksville on August 8, 2 days after the Union made its demand for recognition. He had last visited the Kirksville store in April or May 1968. Clemmons had all of the card signers who were on duty that day sent to the backroom where he questioned each in turn why they were seeking representation by the Union. Joe Harker, Smith, and Stanley expressed concern about the possibility of layoffs, since three grocery department employees had recently been laid off. Clemmons sought to reassure them their fears were groundless, stating that the meat department employees were more highly skilled than the grocery employees, and he told one or two of them that the work of the laid off grocery employees was not satisfactory. As Clemmons dismissed Joe Harker and Garry Stanley he asked each in turn to "search [his] soul and think this out very carefully." Stanley replied, as he testified, "I had thought it over and ... I was for the Union." 'Garry Stanley's testimony is to the same effect. While Marshall denied generally making any threats against employees he admitted visiting with the men in the meat department "about the future of these employees." Marshall's testimony on this point continues as follows: The way I stated it to him was I wondered if they had given thought to the fact that if only one store was union and none of the rest of them were, when they began training as market managers for the future I was concerned as to where they might go. As found above, Marshall's comments to Ronald Van Vleck were in the same vein . I credit Donald Harker's testimony. When Charles Baker's turn came, Clemmons asked him what his "gripe" was. Then the following ensued, according to Baker's credited and undenied testimony: I said I didn't think my wages were quite up to par and I told him that Adam [Marshall] promised me a raise previous to my coming to the meat department, I had not got it yet, and he said, "Yes, we have made a mistake there. We have fired managers for less than this," . . And he asked me, "Have you given any thought to an election?" And I said, "No, I have signed the card... . To Marjorie Smith, whom he had known for a long time, Clemmons stated as follows: Majorie, our face is red, we are embarrassed, we in the company have let you down. Why didn't you come to us before you went to the Union? Smith replied that the discharges of the three employees without warning and the rumors of further layoffs made her apprehensive about job security. Donald Harker was not working on Thursday, August 8, but he came into the store during the day to buy groceries. Store Manager Marshall asked Donald to come up to the office. Clemmons was present but Marshall did most of the talking. As Donald Harker credibly testified, the following then occurred: Adam [Marshall] asked me my reason for signing the card to join the Union. And I didn't know if I should tell him, but I said, "I heard they were going to lay off three men by September 1 and I thought we needed more security than we had." And he came right back and said he thought the people in the meat department had more security than we thought. And he asked me what my future plans are and he said, "Do you know the Union won't help you in anything but the meat department?" And I never answered him. And he asked me if I planned to stay in the meat department and I said, "Yes, as far as I know." And Bill [Clemmons] asked me if I thought this was what I wanted, if I thought I would get along with it and I said, "Yes, I think I can." And Adam said, "I think we have been close enough friends that I figured at least you would come to me when you needed help." f. Store Manager Marshall's threat to Joe Harker on August 9 Joe Harker encountered Store Manager Marshall as he arrived at work on Friday morning, August 9. Marshall told him at this time that he would like to talk to hith some time that day. Harker said that he had time right then. They went into the coffeeroom where Marshall asked him why he had joined the Union. Harker replied that he had heard rumors that full-time meatcutters were going to be laid off and replaced with lower paid employees. Whereupon Marshall stated: "Well, I want to give you some advice." He said, "This might have a bearing on your future with Hy-Vee" . this might have some bearing on your promotions and advancement with the company. 'The quoted testimony is Joe Harker's. As indicated above, Marshall denied generally making any threatening statements to employees. However, Marshall admittedly made a similar statement to Donald Harker and Garry Stanley in the meat department on August 6. 1 credit Joe Harker's testimony. HY-VEE FOOD STORES 57 At some unstated time during this period Marshall stopped the mother of Joe and Donald Harker as she was shopping in the store and told her that he "didn't feel that the Union was right for [Donald] and Joe, he didn't think we would get along with it." Thereafter, Mrs. Harker, in the presence of her husband, reported Marshall's comments about the Union to both Donald and Joe. On this occasion both Mr. and Mrs. Harker indicated to their sons their agreement with Marshall's views about the Union. At this,time Donald, who was 17 years old, was living at home with his parents.' g. Vice President Clemmons talks with employees early in the week of August 12 Clemmons returned to Kirksville on August 12 or 13 and again talked with three of the card signers individually. With Charles Baker, Clemmons took the same approach as he had in the discussion on the previous Thursday, with Clemmons attempting to satisfy him about the wage increase he had been promised and about other aspects of his job as well. Clemmons opened the discussion with Marjorie Smith as follows: "Have you changed your mind about the union?" And I said, "No, I have not," and he said, "Well, I was just sure when I came in today you would say 'I have changed my mind'." And I said, "No, I haven't," and so he said, "Well, this won't do you any good, you will not get anything out of it," .. . Clemmons then stressed the difficulties in reaching a collective-bargaining contract, and broached the possibility of a strike. To Garry Stanley, Clemmons emphasized the length of time it took to reach a collective-bargaining contract, saying that it would take 6 months or a year or so, but that the Union would finally get one. h. Joe and Donald Harker and Charles Baker revoke the bargaining authorizations previously given the Union On August 13 Joe and Donald Harker signed and mailed to Union Business Representative Wolff documents, the form of which is identical, as follows: Ted, I Joe G. Harker Jr. as of this date August 13, 1968 do withdraw, cancel and resind the authorization Signed By me July 30, 1968. Joe G. Harker Jr Both Joe and Donald Harker told Store Manager Marshall that same day that they had resigned from the Union. On August 15 Charles Baker signed an identically worded revocation, placed it in an envelope, sealed it, and after obtaining a stamp from Store Manager Marshall, asked Marshall to mail it to the Union for him. Before doing so he told Marshall, as he credibly testified, "This is letter of withdrawal." Marshall said, "I sure will." The foregoing finding is based on the testimony of Donald Harker. Marshall's version of this conversation is that he merely asked Mrs. Harker "if Joe and Donny had a problem why they didn't come and visit with me." I credit Donald 's testimony. i. The Respondent refuses to recognize the Union On August 14 the Respondent mailed the following letter to the Union: Highway 6 & 63 South Kirksville, Missouri August 14, 1968 Mr. C.A. Nothnagel Secretary-Treasurer Local No. 576 1305 East 27th Street Kansas City, Missouri 64108 Dear Sir: We do not recognize you as bargaining representative for the employees of our meat department. We feel and are informed that you do not represent a majority of our employees. Therefore there will be no occasion for a meeting Monday, August 19, 1968, at 2:00 P.M. Furthermore, we question the appropriateness of the unit, and insist that if there is to be a unit it should include all employees of the store. Sincerely, HY-VEE FOOD STORE /s/ Adam Marshall Adam Marshall, Manager. J. The pay raises and bonuses given the Respondent's meat department employees The complaint in this case was issued on October 15 and served on the Respondent's attorney the next day. A few days later Joe Harker's wages were raised from $2.45 to $3 per hour. About the same time the Respondent raised the wages of Charles Baker from $2.40 to $3 per hour. Prior to that time the raises the two men had received had been in 15- to 25-cent increments. Joe Harker and Baker were two of the three employees who had signed withdrawals from the Union. According to Joe Harker, in the preceding December Marshall had promised him a raise the following fall. Baker testified that Marshall had promised him a raise when he took Jim Bullock's job in the meat department. This occurred on January 15, 1968. Although Baker had "bugged" Marshall once or twice, to use Baker's expression, about the raise which he had promised him, it was not forthcoming until October. Just a few days after Joe Harker and Baker were given their raises, Marshall told Donald Harker that he was going to see about getting Donald a raise. This is Donald's undenied testimony. The Respondent has a practice of paying profit-sharing bonuses to its employees based upon the profits of each individual store. Vice President Clemmons testified that the amount of the bonus is determined by following a set formula which has been approved by the Internal Revenue Service and varies in accordance with the wage scale of each individual employee. The bonus is paid monthly if the profits of the store warrant it. Between February and September 1968 no bonus payments were made at the Kirksville store. Clemmons testified that this was due largely to the extra expense of remodeling and adding to the Kirksville store, which work 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was going on during this period . However, in September and October very substantial bonuses were paid, over $75 in September and over $150 in October. These were the amounts paid to Garry Stanley, Joe Harker, and Charles Baker. Their previous bonuses in February 1968 had been less than $ 10. The October bonus was substantially larger than any bonus the employees had previously received. The Respondent asserts that this was because the profits of the store were better than they had ever been before and that the amounts of the bonuses had been determined the same way they had been in the past. k. Store Manager Marshall's attempts to influence the testimony of the employees in this proceeding About November 5, 2 weeks before the hearing in this case, Marshall suggested to Donald Harker as follows: You can do it if you want to, but I would like to have one of you three boys, either you, Chuck, or Joe, to stand up in the trial and ask for an election. The "three boys" mentioned by Marshall were the three who had signed withdrawals from the Union . Donald Harker, to whom Marshall made the suggestion , was the 17 year old, who had previously been spoken to by both Marshall and Clemmons about the Union.' A week or so later Marshall again spoke to Donald Harker, asking him if he "was ready to testify." When Harker replied that he was, Marshall stated, according to Harker's undenied testimony , that "he was there to back us all the way." The night before the trial in this case , which was held on November 19, Marshall received a phone call from Donald Harker's father about 10:30 p.m. asking Marshall to come by the Harker residence and visit with him. As Marshall testified, Mr. Harker did not mention what he wanted to talk about. Marshall, however, picked up Vice President Clemmons and the two men arrived at the Harker residence about 10 :45 p.m. A lengthy discussion (from an hour to an hour and a half) ensued in which Mr. and Mrs. Harker, Donald Harker, Marshall, and Clemmons took part. As Donald Harker summarized the discussion, Well, they came in and Adam [Marshall] wanted to explain to my dad, we had a misunderstanding about I thought I was going to get a raise and I misunderstood and I wasn't supposed to get one. . . . And he wanted to explain to them , and he just thought the Union, he just told Mom and Dad that he didn't think the Union was right for me and Joe, that he thought we could work out better with the Hy-Vee Company than with another union. Marshall's version of the discussion is consistent with Harker's except that it omits any reference to the Union. I credit Donald Harker's version. 2. Conclusions concerning the Respondent's unfair labor practices a. The Respondent's acts of interference, restraint, and coercion in violation of Section 8(aKl) of the Act 'Marshall's conduct on this occasion was in keeping with his conduct 2-1/2 months earlier when he told Garry Stanley that a Board investigator would be visiting the store and that "all we had to say was we had a change of heart." This is Stanley's credited and undenied testimony. (1) The Respondent's questioning of employees and threats of reprisal As found above, the same day that the Union requested recognition and gave Marshall copies of the signed authorization cards , Store Manager Marshall summoned three of the four card signers who were on duty that day to his office and questioned them in a group about the problems which had caused them to seek union representation . Meat Supervisor Smock , who was present in the office during this group interview , frankly stated that he did not like the idea of a union at all and proposed that the employees enter into a contract directly with the Respondent, without the intervention of the Union. Store Manager Marshall threatened Donald Harker on this occasion that the contract proposals submitted by the Union required his discharge for being underage. Although the Respondent was under no obligation to agree to this contract proposal, Marshall went out of his way to state "we are going to follow ... this contract." Later that same day, Marshall warned Donald Harker and Garry Stanley that having a union in the store would diminish their chances of being promoted or transferred. Marshall similarly threatened Joe Harker on August 9, telling him that union affiliation "might have some bearing on [his] promotions and advancement with the company." Store Manager Marshall's threats to employees and Meat Supervisor Smock's suggestion that the employees forget about the Union and make a contract directly with the Respondent, constitute well recognized forms of interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. In view of Marshall's threats and the illegal proposal of Smock, Marshall's questioning of employees about the problems which led them to affiliate with the Union also interfered with, restrained, and coerced the Respondent's employees in violation of the Act. On August 8, 2 days after the Union's request for recognition was received, Vice President Clemmons came down from company headquarters in Chariton and questioned each of the five card signers individually concerning their reasons for seeking union representation. While Clemmons indicated to some of the employees that it was up to them to decide whether to continue with the Union, the net effect of his talks was to implant in the employees' minds the Company's view that there was no need for union representation . To those who expressed fears concerning their job security Clemmons sought to allay these fears by assuring them their jobs were not vulnerable to layoffs like those of the grocery employees: To those who expressed dissatisfaction concerning their wages or some other aspect of their jobs Clemmons sought by veiled promises of benefits to convince them that the Respondent had been remiss in the past and would make amends in the future. On August 12 or 13 Clemmons returned to Kirksville and again talked with three of the card signers individually. His approach to employees varied depending upon the employee with whom he was talking but the sum of his remarks to each left no doubt but that he was seeking to induce them to change their minds about union representation. Since normally Clemmons' visits to the Kirksville store were infrequent, Clemmons' visits to the store 2 weeks in a row underlined the urgency of his message to the employees being interviewed. And the technique of having a top official of the Respondent interview each of the card HY-VEE FOOD STORES signers individually' could not fail to impress upon the employees that the Respondent was deeply concerned about their decision to have union representation . In view of the manner in which Clemmons ' systematic questioning of all the card signers was carried on, the background of threats against which it must be viewed , and the fact this questioning was not for the purpose of ascertaining the truth of the Union's claim of majority status and did not serve any other legitimate interest of the Respondent, but on the contrary had as its sole purpose the dissuading of the employees from adhering to the Union , I conclude that Clemmons' questioning of the card signers took on a coercive coloration , and therefore violated Section 8(a)(1) of the Act . Struksnes Construction Co., Inc., 165 NLRB No. 102; International Harvester Company , 170 NLRB No. 134; Automotive Warehouse Distributors, Inc., 171 NLRB No. 101; Bryant Chucking Grinder Company, 160 NLRB 1526, 1529, 1539-44, enfd . 389 F.2d 565, 567 (C.A. 2), cert. denied 392 U. S. 908. (2) The wage increases and the bonus payments As found above, shortly after the issuance of the complaint herein and after the Respondent was apprised of the fact that it would have to answer to charges of unfair labor practices, the Respondent raised the wages of Joe Harker and Charles Baker by two or three times the amount of any previous wage increase given them. Joe Harker and Baker were two of the three employees who had signed withdrawals from the Union. The Respondent's defense is that both had been promised wage increases prior to the advent of the Union , that it had previously hesitated in granting any wage increases during the union campaign because of fears of violating the Act, and that in October, after being advised by counsel that it was lawful to grant previously promised increases during a union campaign, it finally did so. As found above , the previous year Joe Harker had been given a vague promise of a wage increase in the fall of 1968 and Baker had been told by Marshall that he would get an increase when he took Jim Bullock 's job in the meat department , which occurred on January 15, 1968. However, although Clemmons told Baker in the August 8 interview that the Respondent had "made a mistake" in withholding the wage increase, the Respondent did nothing about the raise promised to become effective on January 15 until the latter half of October, when it knew that its prospects in the forthcoming trial would depend in part upon the testimony of Baker and the others who signed withdrawals from the Union . Under all the circumstances, including the substantial amount of the raises given both men , I conclude that the Respondent would not have granted the two men the wage increases it did, at least in the amounts which it did, but for a desire to assure their continued rejection of the Union and to foster a sympathetic attitude towards the Respondent in the forthcoming trial. Wage increases given for such purposes, in my opinion , interfere with the rights guaranteed in Section 7 of the Act and violate Section 8(a)(1). N.L.R.B. v. Exchange Parts Co ., 375 U.S. 405. The General Counsel contends that the very substantial profit-sharing bonuses given the Respondent's employees in September and October 1968 were also granted in violation of the Act. The Respondent's explanation for the September and October 1968 bonuses - that the amounts of the bonuses were the result of strictly applying the set 'Cf. N.L.R.B. v. Syracuse Color Press, 209 F. 2d 596, 599 (C.A. 2), cert. denied 347 U.S. 966. 59 formula for determining bonuses to the high level of store profits in September and October - if believed, in my opinion , constitutes a complete answer to these allegations of the complaint as amended . I agree with the General Counsel's view that the Respondent failed to support its oral testimony concerning the large bonuses given in September and October 1968 with convincing documentary evidence. However, in my opinion, the Respondent's oral testimony , as supplemented by the exhibits which were received in evidence at my request, was sufficient, in the absence of any rebuttal evidence, to sustain the Respondent 's defense to this aspect of the case. Accordingly, the allegations of the complaint as amended based upon the Respondent 's granting of the September and October 1968 bonuses are hereby dismissed. (3) Store Manager Marshall 's further attempts to influence the testimony in this proceeding I have found that several weeks before the trial of this case was scheduled to begin Marshall granted extra large wage increases to Joe Harker and Charles Baker, two of the three employees who had signed withdrawal cards from the Union , in part, in an effort to encourage a more favorable attitude towards the Respondent on the part of the two men. I have also found that on two occasions within 2 weeks of the trial Marshall had conversations with the third union withdrawee about the testimony he was to give at the trial. On the first occasion Marshall requested Donald Harker "to stand up in the trial and ask for an election ." The second time Marshall asked Donald if he were ready to testify. When Donald replied that he was, Marshall stated that "he was there to back us all the way." Implicit in Marshall's statement was the assumption that Donald was going to testify in accordance with Marshall's expressed desires and say that he had had a change of heart and wanted an election . As the cases cited below hold, the Act does not tolerate such pressures on employees to shape their testimony to fit their employer's wishes. I conclude that by Marshall's suggestions to Donald Harker concerning his testimony at the trial the Respondent has obstructed the Board 's processes and interfered with the freedom of its employees to vindicate their statutory rights in a Board proceeding. It is indispensable to a fair adjudication of employees' rights under the Act that witnesses in Board proceedings testify free of all pressures to tailor their testimony to favor any party to the proceeding . The normal effect of the Respondent's repeated approaches to Donald Harker was to restrain him from testifying with the full freedom which the Act and due process requires. Such conduct violates Section 8(a)(1) of the Act. Cf. Oregon Teamsters, Security Plan Office, 113 NLRB 987, 1028-29, as modified in 119 NLRB 207, 209-211; Better Monkey Grip Company, 115 NLRB 1170, enfd. 243 F.2d 836 (C.A. 5), cert. denied 355 U.S. 864; Jackson Tile Mfg. Co., 122 NLRB 764, 766, enfd. 272 F.2d 181 (C.A. 5); Grand-Central Chrysler, Inc., 155 NLRB 185, 188.6 'While the General Counsel apparently contends that the late night visit of Marshall and Clemmons to the Harker residence on the night before the trial constitutes a further attempt to intimidate Donald Harker with respect to his testimony in this case, in view of the fact that the visit was paid in response to the request of Mr. Harker , a friend of Marshall's, I am reluctant to conclude that Marshall's statements on this occasion were intended to coerce Donald with respect to his testimony in this case In any event, a finding of such an unlawful intent would not affect the scope of the remedial order in this case. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The Respondent's refusal to recognize and bargain collectively with the Union in violation of Section 8(aX5) and (1) of the Act (1) The Union' s majority status in an appropriate collective-bargaining unit The complaint alleges that all full-time and regular part-time employees in the meat department of the Respondent's Kirksville, Missouri, store, excluding office clerical employees, food clerks, bakery and delicatessen clerks, casual employees, guards and supervisors as defined in the Act, and all other employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The Respondent contends that a unit of meat department employees is not an appropriate unit under the circumstances of this case, urging that the store as a whole should be treated as a single unit . The Respondent points out that all of the employees in the store are subject to the same working hours and conditions, have the same vacation plan, profit-sharing bonus plan, and other benefits . On the other hand , the General Counsel notes that the meat department is geographically separate from the rest of the store, is under separate supervision, and that generally speaking there is no interchange of employees between the meat department and other parts of the store . And, as the Respondent emphasized in attempting to allay the meat department employees' fears about their job security, the meat department employees are more highly skilled employees than those in the other departments . The Union made no effort to organize the employees of the store as a whole . In circumstances similar to those of this case the Board has traditionally held separate meat departments to be appropriate units. The Great Atlantic & Pacific Tea Company, Inc., 130 NLRB 226; Bruno 's Food Store , Inc., 131 NLRB 1023; Owego Street Supermarkets , Inc., 159 NLRB 1735, 1741. Under all the circumstances I find a separate unit of the Respondent's meat department employees to be an appropriate unit, as alleged in the complaint. It was stipulated at the hearing that there were six employees in the Respondent 's meat department. On August 6, 1968, when the Union first requested recognition and bargaining of the Respondent, the Union had in its possession bargaining authorization cards signed by five of the six employees in the meat department. It offered to show the originals to Store Manager Marshall and actually handed to Marshall photocopies of four of the five cards in its possession and showed him the original of the fifth card . The Respondent has at no time challenged the fact that as of August 6, 1968, the Union was the duly designated bargaining representative of a majority of its meat department employees . I conclude that as of August 6 , 1968, the Respondent was the exclusive bargaining representative of the Respondent's employees in an appropriate bargaining unit. (2) The Respondent's refusal to recognize the Union In its letter of August 14 to the Union the Respondent expressly declined to recognize and bargain collectively with the Union. Obviously relying on the fact that Joe and Donald Harker had informed it on the day before that they had withdrawn from the Union, the Respondent predicated its refusal primarily on the grounds that the Union did not represent a majority of the meat department employees. It is settled that where a union representing a majority of the employees (a fact which may be evidenced, as here, by authorization cards) requests recognition and bargaining, and the employer declines such a request upon the ground the union lacks the requisite majority support, the employer may be held to have refused to bargain collectively in violation of Section 8(a)(5) and (1) of the Act if the evidence justifies the conclusion the employer's refusal "is motivated, not by any bona fide doubt as to the union's majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union." Joy Silk Mills, Inc., 85 NLRB 1263, 1264, enfd. 185 F.2d 732, 741-742 (C.A.D.C.), cert. denied 341 U.S. 914; Colson Corp. v. N.L.R.B., 347 F.2d 128, 135-136 (C.A. 8); The Madison Courier, Inc., 162 NLRB 550, 593-596, enfd. 67 LRRM 2462 (C.A.D.C.), and cases therein cited. As found above, Store Manager Marshall parried the Union's original request for recognition which was received on August 6 by saying that he would have to consult his superiors in Iowa. Immediately, however, Marshall embarked on a course of conduct which supports the conclusion that the Respondent, in postponing giving an answer to the Union, was seeking to gain time in which to undermine the Union. Thus, that same day Marshall questioned the group of meat department employees about their reasons for wanting union representation and warned Donald Harker that under the union contract he would lose his job, and Meat Supervisor Smock proposed on this same occasion that the employees enter into a contract directly with the Respondent. Later that day Marshall threatened Donald Harker and Garry Stanley that their chances of promotion would be adversely affected by unionization of the store. Marshall similarly threatened Joe Harker on August 9. On August 8 Vice President Clemmons coercively questioned each of the card signers and engaged in a repeat performance on August 12 with three of the five card signers. While Clemmons' technique in attempting to dissuade the employees from adhering to the Union was much more subtle than that of Marshall's, Clemmons' questioning must be considered a part of the total picture, which includes Marshall's blunt threats concerning the adverse consequences of unionization. The coercive conduct of Store Manager Marshall and Vice President Clemmons in the period from August 6 through 13, in my opinion, caused the withdrawals of the Harker brothers and Charles Baker from the Union. Under all the circumstances, including the Respondent's subsequent grant of extra large wage increases to two of the three union withdrawees and its efforts to induce the third to testify favorably to it in this proceeding, I conclude that the Respondent's conduct from the time it first received the Union's request for recognition and bargaining was motivated not by any good-faith doubt as to the majority status of the Union or as to the appropriateness of the unit but rather by a rejection of the collective-bargaining principle. As the Supreme Court stated in Medo Photo Supply Corp. v. N.L.R.B. 321 U.S. 678, 687: [The Respondent] cannot, as justification for its refusal to bargain with the union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the union no longer had the support of a majority. It cannot thus, by its own action, disestablish the union as the bargaining representative of the employees, previously designated as such of their own free will. HY-VEE FOOD STORES Accordingly I find that on and after August 6, 1968, the Respondent has refused to bargain collectively with the Union in violation of Section 8(a)(5) and ( 1) of the Act. Owego Street Supermarkets , 159 NLRB 1735, 1741.' Conclusions of Law 1. All full-time and regular part-time employees in the meat department of the Respondent's Kirksville, Missouri, store, excluding office clerical employees, food clerks, bakery and delicatessen clerks, casual employees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times on and after August 6, 1968, Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, has been the duly designated exclusive collective -bargaining representative of the employees in the aforesaid appropriate unit. 3. By refusing on and after August 6, 1968, to recognize and bargain collectively with the Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 4. By threatening employees with reprisals because of their affiliation with the Union; coercively questioning employees about their decision to affiliate with the Union; making veiled promises of benefits and granting wage increases to affect its employees' decisions regarding union matters; and by attempting to interfere with the Board's investigation of unfair labor practice charges and to influence the testimony of witnesses in this proceeding, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (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 engaged in an effort to dissipate the Union's majority 'Respondent's raising a question in its August 14 letter concerning the appropriateness of a unit of meat department employees has all of the earmarks of an afterthought in view of the fact that this point had not been mentioned previously in the discussions or the correspondence between the parties . In any event, the Board has long held that a good faith but erroneous doubt as to the appropriateness of the unit is not a defense to an otherwise meritorious charge of a refusal to bargain. Owego Street Supermarkets . 159 NLRB 1735, 1742; The Madison Courier, Inc., 162 NLRB 550, 597, enfd .67 LRRM 2462 (C.A.D.C.). 61 status, 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. The Union, relying on the Trial Examiner's decision in Zinke Foods, Inc., 30-CA-372 (now pending decision by the Board), contends that in addition to the conventional remedies in refusal-to-bargain cases, I should also require in this case that the Respondent execute the area collective-bargaining contract between the Union and the several area employers as a means of effectively remedying the Respondent's refusal to bargain and to prevent the Respondent from profiting from its own unlawful conduct. I am sympathetic with the argument of counsel in favor of making the 8(a)(5) remedy more effective and believe that under appropriate circumstances the directing of a monetary remedy in an 8(a)(5) case is within the Board's powers (see my decision in Ex-Cell-O Corp., 25-CA-2377, decided March 2, 1967, pending decision before the Board). However, in my opinion a basis should be laid in the unfair labor practice proceeding for the conclusion that there is a practicable way of ascertaining (albeit in a supplemental proceeding) the measure of the employees' losses resulting from the refusal to bargain before a monetary remedy should be ordered in a refusal-to-bargain case. The basis for such a conclusion was laid in the Zinke case. No attempt was made to establish grounds for such a conclusion in this case. For these reasons, the Union's request for an extraordinary 8(a)(5) remedy in this case is denied. In view of the nature of the unfair labor practices committed, the commission by the Respondent of similar and of other unfair labor practices may be anticipated. I shall, therefore, make my Recommended Order herein coextensive 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 hereby issue the following: RECOMMENDED ORDER The Respondent, Hy-Vee Food Stores, Inc., Kirksville, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, as the exclusive representative of all its employees in the appropriate unit stated in the Conclusions of Law above. (b) Threatening employees with reprisals because of their affiliation with the Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, or any other labor organization; coercively questioning employees about union matters; making promises of benefits or granting wage increases or other benefits in order to affect its employees' decisions regarding union matters; and attempting to interfere with the Board's investigation of unfair labor practice charges or to influence the testimony of witnesses in Board proceedings. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request , recognize and bargain collectively with the Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, as the exclusive representative of all the employees in the appropriate unit stated in the Conclusions of Law above. (b) Post at its Kirksville , Missouri, store, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 17 , after being duly signed by an authorized representative , shall be posted by 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 Respondent to insure that said notices are not altered, defaced , or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the 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." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith," APPENDIX NOTICE TO ALL EMLOYEES 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten employees with the loss of promotions or other benefits because of their affiliation with the Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, or any other labor organization. WE WILL NOT coercively question employees about their decision to affiliate with the Union or about other union matters. WE WILL NOT promise benefits or grant wage increases in order to influence our employees' decisions regarding union matters. WE WILL NOT interfere with the Board's investigation of unfair labor practice charges or attempt to influence the testimony of witnesses in Board proceedings. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to join a labor organization and to participate in union activities. WE WILL, upon request, recognize and bargain collectively with the Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, Local Union 576, as the exclusive representative of all of the full-time and regular part-time meat department employees in our Kirksville Missouri, store. Dated By HY-VEE FOOD STORES, INC. (Employer) (Representative) (Title) 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 , 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.