Gerbes Super Markets, Inc.

GERBES SUPER MARKETS Gerbes Super Markets, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO Local 576' Gerbes Super Markets, Inc. and Retail Store Employees Union AFL-CIO, Local 655.2 Cases 17-CA-3482 and 17-CA-3508 May 21, 1969 DECISION AND ORDER CHAIRMAN MCCULLOCH AND MEMBERS FANNING, JENKINS, AND ZAGORIA On November 13, 1968, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 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. The Trial Examiner also found that Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. 1. The Trial Examiner found that the Union's majority claim was tainted and therefore deemed it unnecessary to pass upon the appropriateness of the grocery unit for which the Union sought recognition. Although we agree with his conclusion that the allegation of Respondent's unlawful refusal to bargain with the Union should be dismissed, we do so on the basis of the unit issue without reaching the matter of taint. By a letter dated March 11, 1968, the Union claimed to represent a majority of the Columbia, Missouri, store employees in a unit excluding meat department' and nonfood (hardware) employees,' and requested recognition for such a unit. The General Counsel contended that there were therein 41 employees (checkers, stockers, sackers, and bakery, produce, and delicatessen personnel), and rested the majority claim on 22 signed cards obtained by the Union. Respondent opposed this unit as inappropriate because of the exclusion of the hardware employees.' ' Herein called the Meat Cutters. 'Herein called the Union. 'As noted in the Trial Examiner 's Decision, the Meat Cutters sought recognition for the meat department employees. 'The other proposed exclusions were office clericals , guards, and supervisors as defined in the Act. 11 The Columbia store is a typical one-floor supermarket which has meat, bakery, grocery, delicatessen, produce, and hardware (variety) departments that are all under the supervision of the store manager. In contrast to the other departments where mainly food items are carried,' the hardware department, which occupies an area adjoining the grocery department, stocks nonfood items such as dry goods, greeting cards, cameras, and paint. The hardware department consists of four employees' and Billy C. Combs who is contended by the General Counsel to be a supervisor as defined in the Act because he assigns work, makes out schedules, and grants time off to the employees in the department. Each hardware employee is responsible for a section of the department and has to keep it stocked. At least one hardware employee is on the floor at all times for the purpose of selling hardware merchandise to customers. Grocery and hardware employees generally do not work outside their own area.8 However, all employees take their breaks in the delicatessen area. In the absence of Combs, grocery employees about once a month unload hardware merchandise from trucks. Customers purchasing hardware items may have them checked out at registers in the hardware department or by grocery department checkers. Although there is evidence that hardware employees may receive a lower rate of pay than some grocery checkers, the record shows that all store employees have the same number of working hours, vacation rights, profit-sharing privileges, and other benefits. As the General Counsel conceded, its novel contention that hardware employees may properly be excluded from the unit of all other grocery employees is based in part on the circumstance that the "Union could generate no interest at all among the hardware employees." In our judgment, the hardware employees constitute an artificial and arbitrary group without the clearly different interests that would justify their exclusion from the grocery unit." The General Counsel's argument that hardware employees are analogous to meat department employees does not take into account the fact that hardware employees do not have the special training or skills that have led the Board to find separate meat department units appropriate. As the hardware employees do not possess distinctive skills, are subject to the supervision of the store manager, work the same hours and are entitled to the same benefits as the other store employees, have stocking and selling duties similar to those of 'For reasons set forth by the Trial Examiner in finding the meat department at the Columbia store an appropriate unit, we disagree with Respondent's additional contention that only a unit of its 10 stores is appropriate. See Haag Drug Company. Inc., 169 NLRB No. 111. 'The grocery department has a few nonfood items such as light bulbs. 'Eva L. Allen, Eleanor G. Dale, Hazel E. Hardin, and Darrel W. Winkler. 'There is no evidence that employees in any other department sought by the Union substantially deviate from this practice. 'Cf. Ideal Super Markets, 171 NLRB No. 1. 176 NLRB No. 1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other grocery employees, and are not sought by any other union , we find, despite the lack of interchange and their apparently lower rates of pay than some other grocery employees, that hardware employees have a sufficient community of interest with the other store employees to require their inclusion in the unit. As we agree with Respondent that the grocery unit must include the hardware employees to meet the test of appropriateness, we conclude that the Union's claim, which is based on 22 signed cards, falls short of a majority of the appropriate grocery unit as the number of employees therein totals 45 by virtue of the inclusion of at least 4 hardware employees.'" Accordingly, we shall adopt the Trial Examiner's recommendation, albeit for other reasons, that the allegation of Respondent's unlawful refusal to bargain with the Union be dismissed. 2. The Trial Examiner found that employee Nolan Tritschler, who agreed to be interviewed by Respondent attorney William G. Haynes on condition that the latter furnish a copy of Tritschler's statement, was lawfully discharged for insubordination when the latter refused to surrender the statement because of the attorney's failure to comply with this condition. We disagree with this conclusion for reasons which follow: Tritschler, a checker at the Columbia store, after sounding out a number of employees in early January 1968, about his proposal to contact a union representative, arranged to meet the Union's representative, Louis A. Sachs, at the parking area of the store at I p.m. on Monday, January 22." We find in agreement with the Trial Examiner that the following unlawful conduct was thereafter directed by Respondent against Tritschler who, prior to his initiation of the union movement, had been "held in rather high regard" by Store Manager Duren.'r On Monday morning, January 22, Duren, after being apprised by some employees of Tritschler's forthcoming meeting with Sachs, created an impression of surveillance in violation of Section 8(a)(I) of the Act by telling Tritschler, "Don't think we don't know what you are doing." Duren also made an illegal promise of benefit by saying that Tritschler would be given a raise in addition to that recently granted by Respondent. Bill Phillippe, Columbia's meat manager, and Walter Roberts, the assistant store manager, followed Tritschler around the store on Monday morning . Phillippe made remarks to Tritschler which were calculated to give him the impression "In view of this result, we find it unnecessary to determine the supervisory status of Combs. "Tritschler informed a number of employees of this plan sometime on the preceding Friday. "The Trial Examiner also found, and we agree, the Respondent violated Sec. 8(axl) of the Act by interrogating other employees , engaging in surveillance of union meetings or union activities and requesting employees to do likewise, and threatening employees with the discontinuance of the profit-sharing plan or with loss of employment. that Respondent had his union activities under surveillance and hence violated Section 8(a)(1) of the Act. On Tuesday, January 23, Duren spoke to Tritschler about the Company's plan for another store in Columbia and declared that he would be recommended for the position of assistant store manager . This statement , which was coupled with the request that Tritschler drop the union movement violated Section 8(a)(l) of the Act. In the course of a conversation a few days later, Duren made an unlawful threat in violation of Section 8(a)(1) of the Act when he told Tritschler that Respondent's profit-sharing plan would probably be discontinued if the Union's organizational campaign succeeded . In the same conversation , Duren unlawfully stated to Tritschler that he was disappointed in the way several of the employees, particularly Tritschler, had let him down ; that he had allowed Tritschler Saturday as his day off and had done favors for Tritschler and other employees; that Duren had enough on them at one time or another to fire them and had not done so but now that they had let him down he was going to make up for lost time. In early or mid-February, Duren telephoned Tritschler's home" and in his absence asked Mrs. Tritschler to talk to her husband "about the store and what would happen if the Union came in." A few days later, Mrs. Duren called and told the Beillers that Tritschler was causing much trouble at the store and that Duren stood to lose a lot of money (via Respondent's profit-sharing plan) if the Union got in. Mrs. Duren appealed to Mr. Beiller to reason with Tritschler because his union activities were causing disturbance and disruption at the store. Although the Trial Examiner did not regard these telephone calls as violative of the Act, they nevertheless provide further evidence that Respondent, which had in past weeks made a series of unlawful statements against Tritschler for his role as leader of the Union , continued to be hostile on account of his activities on behalf of the Union. In the later part of February , while Tritschler was working as a checker , Duren slammed his fist on the conveyor and told Tritschler his day off was being changed from Saturday to Wednesday . As noted above, Duren had prior to this incident specifically referred to the favor he had done for Tritschler in allowing him to take Saturdays off and uttered a veiled threat against him for letting Duren down. As the Trial Examiner observed , "Duren 's previously declared intention to retaliate became operative on this occasion." Accordingly, the Trial Examiner correctly concluded that Respondent was motivated by a discriminatory purpose in making this change in working conditions and thereby violated Section 8(a)(3) and (1) of the Act. "The Tritschlers were living with the Beillers who were Mrs. Tritschler's parents. GERBES SUPER MARKETS Following the service on Respondent of the charges filed by the Unions, Respondent attorney Haynes interviewed a number of employees including Tritschler.'' At the outset of the interview with Tritschler on March 21 in the backroom of the hardware department. Haynes informed Tritschler of his investigative purpose and assured him that " You may refuse to cooperate with me if you like and this will have no affect [sic] on your fob."" As Haynes began questioning Tritschler about the Union's charges of March 12, which alleged, inter alia, that Respondent had discriminated against Tritschler in changing his day off, Tritschler told Haynes he wanted a copy of what he told Haynes during the interview. Haynes replied that he would give Tritschler a copy of anything he put into a statement for Tritschler's signature . However, when Tritschler demanded a copy of what Haynes had written down, Tritschler was told that a copy would be mailed to Tritschler. Upon Tritschler' s insistence on a copy, Haynes proposed that Tritschler make a copy as the interview proceeded. Tritschler declined to do so and when Haynes handed Tritschler the five-page statement Haynes had prepared, Tritschler again asked for a copy and Haynes said it would be mailed. Tritschler renewed his request for the copy and made the alternative suggestion that Haynes sign a statement promising that a copy would be mailed. Haynes told Tritschler that the latter would have to take his word and asked Tritschler to return the document if he did not wish to sign it. When Tritschler started to leave the room with the document, Haynes grabbed Tritschler's wrist which he released with the warning that if Tritschler went out of the room the latter was "through." Shortly thereafter, Haynes and Ryan approached Tritschler who refused to return the document unless his previously stated condition was met. Ryan then arranged for two top officials of Respondent to come to the store where Tritschler was told that his refusal to return the document was a serious incident, an act of insubordination for which he could be terminated. Tritschler said he was not going to help build a case against the Union and that he could not return the document even if he wished to because he had given it to the union representative. After a further conference of Respondent officials, Tritschler was terminated when he persisted in his refusal to return the statement. Although the Trial Examiner agreed that it is well established that an employer's pretrial investigative interrogation must be voluntary and that Tritschler could therefore set conditions for his cooperation,'' he held that Tritschler's condition that Haynes "As noted by the Trial Examiner, Harold D. Ryan, the personnel manager of Respondent's parent company , was present during significant portions of the interview with Tritschler. "Haynes handed Tritschler a written statement to the effect, dated March 19, 1968, and Tritschler thereupon added his name to the other employee signatures thereon. 13 provide him with a copy of the statement became "academic" because Haynes did not insist that Tritschler sign the document. As the Trial Examiner held that Respondent was in these circumstances entitled to reclaim the unsigned document which represented Respondent attorney's "work product and record of the interview", he concluded that Tritschler's refusal to return or facilitate the return of the document constituted insubordination for which Tritschler could lawfully be discharged. In our opinion, the foregoing holding is not warranted as Respondent did not fully satisfy the following safeguards set forth by the Board to minimize the coercive impact of the interrogation: (1) The employer must communicate to the employee the purpose of the action, assure him that no reprisal ' will take place, and obtain his participation on a voluntary basis. (2) The questioning must take place in a context free from employer hostility to union organization and must not itself be coercive in nature. We agree with the General Counsel that an employee may refuse to be interviewed or, if he so chooses, may qualify his cooperation by making it contingent on the reasonable condition that he be furnished with a copy of his statements as recorded by the employer. Once Respondent attorney Haynes agreed to meet this condition and Tritschler proceeded in good faith with the interview in a backroom of the store in the presence of both Haynes and a high Respondent official, it was understandable for Tritschler to insist on a copy before returning the original to Haynes. Tritschler, who as a result of a series of coercive statements by Respondent officials must have been acutely aware of Respondent's antagonism to him as the leading proponent of the Union, had on the advice of union counsel agreed to the interview subject to a condition he judged necessary in order to protect himself and the cause of the Union. Although Tritschler had not signed the document, which he refused to return without being given a copy thereof, the mere absence of his signature therefrom did not make any less genuine Tritschler's fear that Respondent might use it against him and the Union. We further agree with the General Counsel that Respondent's minimal property interest in the paper and ink, or in the record that these represented, cannot outweigh Tritschler's right to refrain from assisting Respondent in its investigation unless his reasonable term was met." As the record is replete with instances of unlawful Respondent conduct directed against Tritschler who was the most active adherent of the Union, we find that Respondent seized upon the opportunity presented by "Johnnie 's Poultry Co.. 146 NLRB 770, Winfield Mfg. Co.. Inc., 173 NLRB No. 103, Standard Fittings Company. 173 NLRB No 9; Automotive Warehouse Distributors , Inc, 171 NLRB No. 101 "As noted above, Tritschler proposed, as an alternative precondition, that he be given a written assurance that a copy of his statement would be 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tritschler's refusal to surrender the statement as a pretext for his removal. As already noted, Tritschler was the object of a sustained effort by Respondent to coerce employees into giving up the Union and had previously been warned by Duren that "he [Duren] was going to make up for lost time," i.e., punish Tritschler for "letting him down." Despite Respondent's oral and written assurance that Tritschler's refusal to cooperate would not result in reprisals, Respondent nevertheless did resort to the extreme penalty of discharge. Even assuming that Tritschler, whose work performance was highly regarded by Respondent, engaged in misconduct by his refusal to surrender the document, this "misconduct" was an outgrowth of his exercise of a protected right and we do not view it as an "impropriety" of sufficient magnitude to place Tritschler "beyond the protective shield of the Act."" Accordingly, we find, contrary to the Trial Examiner, that Respondent discriminatorily discharged Tritschler in violation of Section 8(a)(3) and (1) of the Act. We shall therefore order that Respondent offer to Tritschler immediate and full reinstatement to his former or substantially equal position, without prejudice to his seniority or other rights and privileges," and make him whole for any loss of earnings suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from March' 21, 1968, the date of his discharge, to the date of an offer of reinstatement, less his net earnings during said period (Crossett Lumber Company. Inc.. 8 NLRB 440), and in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 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 Respondent, Gerbes Super Markets, Inc., Columbia, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: mailed to him . Particularly under the surrounding circumstances , including the nature of the interview and Respondent 's clearly evident hostility to Tritschler's union activities, we find this alternative request likewise to be not unreasonable . And we further note that this request was of such a nature that, if Respondent had wished to avoid exacerbation of the difficult relationship in such an interview , it could easily and quickly have complied. "Standard - Coosa Thatcher v. N.L.R.B.. 395 F.2d 512 (C.A. 5). "This order is designed to remedy not only the discharge but also Respondent's unlawful change of Tritschler's day off. 1. Insert the following as new paragraph I (a) and reletter subsequent paragraphs accordingly: "(a) Discriminatorily discharging employees or otherwise discriminating against them in regard to their hire, tenure of employment, or any other term or condition of employment because they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." 2. Insert the following as new paragraphs 2 (a), (b), and (c) and reletter subsequent paragraphs accordingly: "(a) Offer to Nolan Tritschler immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him, in the manner set forth in this Decision. (b) Notify Nolan Tritschler if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay do under the terms of this Order." 3. Delete the following from the last paragraph of the Trial Examiner's Recommended Order: including, without limitation, the charge that Respondent discriminatorily discharged Nolan Tritschler. 4. Insert in the notice attached to the Trial Examiner's Decision the following before the first indented paragraph: WE WILL NOT discriminatorily discharge employees or otherwise discriminate against them in regard to their hire, tenure of employment, or any other term or condition of employment because they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL offer to Nolan Tritschler immediate and full reinstatement to his former or substantially equivalant position without prejudice to his seniority and other rights and privileges and make him whole in the manner provided in the Board's Decision for any loss of pay he may have suffered as a result of the discrimination against him. WE WILL notify Nolan Tritschler if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. GERBES SUPER MARKETS 15 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner : I heard this case at Columbia, Missouri, during the period May 20-22 and June 4-7, 1968, following pretrial procedures in compliance with the Act.' Briefs submitted to me following the hearing by counsel for each of the parties have been fully considered. Respondent owns and operates nine supermarkets, and a variety store , located in nine cities in the State of Missouri.' This case concerns only the Columbia, Missouri, store which, in addition to carrying the food and associated grocery items generally dispensed at supermarkets, has a "variety" department carrying such items as electric appliances, guns, shells, paint, dry goods, toys, greeting cards , suitcases, cameras, and film. Issues Presented After card authorization activity carried out by each of the charging unions named in the caption (herein sometimes called the "Meat Cutters" union and the "Retail Store" union , respectively), each union sought recognition from Respondent for collective bargaining purposes, the Meat Cutters in behalf of the employees in the Columbia store's meat department , and the Retail Store union in behalf of the other workers of that store excluding those in the "variety" department. Respondent declined these requests for recognition . Broadly speaking, the case presents the questions whether Respondent sought to obstruct the Unions' representational efforts by a variety of alleged coercive conduct; whether its refusals of recognition were unlawful ; and whether it engaged in discrimination against certain prounion employees, including its discharge of an employee who played a leading role in forwarding the Unions' representational efforts. 1. THE BUSINESS OF RESPONDENT ; THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that Respondent is a Missouri corporation engaged in the operation of retail stores in the State of Missouri which in the conduct of such business annually receives gross revenues in excess of $500,000 and annually purchases from outside the State of Missouri products valued in excess of $50,000. Respondent is engaged in commerce 'A charge and an amended charge were filed in Case 17-CA-3482 on February 8 and March 6 , 1968, respectively; on March 28, 1968, a complaint issued in that case, to which Respondent filed its answer on April 3, 1968. (All dates used herein refer to the year 1968 unless otherwise indicated .) A charge and an amended charge were filed in Case 17-CA-3508 on March 12 and 26, respectively . Thereafter, on May 6, the Regional Director of the Board concerned issued an order consolidating the two cases and an amended consolidated complaint . Respondent thereafter filed a motion in opposition to consolidation of the cases which prior to the hearing was denied by Trial Examiner Schneider and which, renewed at the hearing, the present Trial Examiner also denied. At the outset of the hearing Respondent filed its answer to the amended consolidated complaint. The General Counsel 's unopposed motion to correct the record, dated July 31, is hereby granted . I further correct the record as follows : p. 181, 1. 4, the word "be" should read "see." 'Since about 2 years prior to the hearing Respondent has been a wholly owned subsidiary of The J. S. Dillon & Sons Stores Company, Inc., of Hutchinson , Kansas. and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. Likewise the complaint alleges , the answer admits, and I find that the Meat Cutters Union and the Retail Store Union is each a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introductory Matters As a prelude to consideration of the evidence relevant to the important events of the case and corresponding alleged violations, it will facilitate their understanding to set forth some general description of Respondent's overall operations and managerial setup, and of the Columbia store. Respondent operates a chain of 10 stores, 9 of these being supermarkets (located at Tipton, Versailles, Windsor, Eldon, Holden, Camdenton, Pleasant Hill, Jefferson City, and Columbia, Missouri), and the 10th being a variety store located at Tipton in addition to the separate supermarket there. Fred M. Imhoff is president and general manager of Respondent, with his offices at Respondent's central headquarters in Tipton. On the record I find that Imhoff has general and broad authority over and responsibility for Respondent's operations. Responsible to Imhoff are two subordinates likewise stationed at Respondent's headquarters, John Hayes and John Long. Hayes is the "food supervisor" and Long the "nonfood" supervisor, and they are also, respectively, personnel manager and assistant personnel manager. In both these capacities, Hayes and Long have corresponding authority over the managers of the local stores, which they visit at frequent intervals. The Columbia store is a typical one-floor supermarket, fully open insofar as the sales areas are concerned. In the larger portion of the sales floor area what may be loosely called grocery items are stocked on shelves or in display cases; these items consist of delicatessen , bakery, produce, meat, and grocery products (including in the grocery area some associated "hard" and "soft" goods). The balance of the sales floor area is occupied, with no wall separation, by the so-called "variety" department, where the items previously enumerated are displayed. Behind the sales floor area are enclosed stockrooms where inventories are stored.' In general charge of the Columbia store, which has some 50-55 employees, is its manager, Bill Duren, whom Respondent unconditionally concedes is a "supervisor" within the meaning of the Act. Walter Roberts has the title of assistant manager of the store , and Bill Phillippe is described in the record as manager of the meat department. The General Counsel contends, Respondent denies, and I find that Roberts and Phillippe are supervisors within the meaning of the Act's definition - Section 2(11) - of that term. Uncontradicted evidence establishes that Roberts gives work assignments to employees when Manager Duren is also present in the store, reprimands employees for misconduct, grants employees limited amounts of time off, and is in charge of the store in Duren's absence. As to Phillippe, the record establishes that he played a principal role in hiring various of the meat department employees who testified; that he makes up the work hour schedules of the meat department employees, gives them their various and varying work assignments, and otherwise oversees the operations of that 'For a general floor plan of the store see G . C. Exh. 3. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department; and that in the commission of various acts alleged to be unfair labor practices (as hereinafter described) he plainly was playing a role and exercising authority which only one with supervisory status and responsibility could have occupied or have exercised., Some further clarification regarding the cast of characters is also desirable at this early juncture. These include two part-time meat department employees, Gary Randolph (Randy) Foley, and David Owen, age 18 and 19, respectively. At the times in question , Foley and Owen were students in the local high school who attended school in the morning and were employed by Respondent during the balance of the day, thus putting in over 30 hours per week in Respondent's employ.' At the high school, both boys were enrolled in a vocational agriculture educational program involving, at some stage prior to graduation, practical employment experience in their chosen field. In September 1967, the high school official in immediate charge of this vocational training program, D. R. Schneider, reached an agreement with store official Phillippe and Duren to provide such training in the store meat department to Foley (already in Respondent's employ) and Owen, who was employed in September 1967 in furtherance of this agreement. Under this program and arrangement the boys' hours of 1:15 to 3:15 p.m., at the store were treated as school study periods at the high school for which the boys received corresponding school credit. Further, under this arrangement, Schneider acted as their teacher-supervisor and Phillippe as their employer-supervisor, and Phillippe's periodic reports relative to the quality of the boys' work at the store were taken into account by Schneider (along with his evaluation of their regular school work) in determining the boys' school grades. In addition, and separately from the foregoing arrangement for general employment-training for these two boys, another arrangement existed between Respondent and the school authorities under which Respondent made its store facilities available on one evening a week for a meat-judging class of several local high school students, including Foley and Owen. This class was conducted at the store by teacher Schneider.' I make the foregoing clarification of relationships between the store and high school officials, involving these two boys, because the complaint charges that, acting as agents of Respondent, teacher-supervisor Schneider and a superior of his at the high school, a Mr. Willows, subjected these two boys to coercive pressures designed to put an end to their union activities. I now approach consideration of the substantive charges involved in the case, which divide themselves into three main categories. In one category fall the bulk of the items of coercive conduct charged against Respondent as independent violations of Section 8(a)(1) of the Act (alleged unlawful interrogation, threats of reprisal, promises of benefit, etc.). Since Respondent's alleged actions in these respects are associated with the union 'fhe parties also differ as to the supervisory status of certain other employees but in view of my disposition of pertinent issues I find it unnecessary to resolve these differences. 'From February until the end of the school year Owen's hours were reduced to about 20 per week and the complaint (par. 6(a)) alleges that this reduction was discriminatory . However, in his brief counsel for the General Counsel concedes, as I find , that the evidence does not sustain this allegation and accordingly it should be dismissed. 'One incident of the meat judging program was its objective of selection each year of a team of three members to enter into a statewide meat-judging competition with teams from other schools. organizational activity which developed among the store employees, it is possible in a single initial section to describe the main features of the employees' organization activity and much of Respondent's corresponding allegedly coercive opposition measures. Thereafter, I deal with the alleged refusals to bargain and the charges of discrimination, under respectively, Section 8(a)(5) and (3) of the Act. B. The Employees' Union Organizational Activity and Respondent's Allegedly Coercive Responses Thereto About the first week of January, employee Nolan Tritschler sounded out about 10 employees concerning his proposal to contact a union representative to see "what the union could offer us, not necessarily just to jump into it . . . ." The concensus was that he should proceed, whereupon, prior to going to work on the morning of Friday, January 19, Tritschler endeavored to reach by telephone at St. Louis, Mr. Louis A. Sacks, representative of the Retail Store union . Later in the morning Sacks called Tritschler back at the Columbia store, and in the ensuing conversation the two agreed to meet at the parking area of the store at 1 p.m., on Monday, January 22. During the course of Friday Tritschler informed a number of employees that he had talked to Sacks and had made the Monday engagement . (Tritschler did not work on Saturday, that being his day off.) Shortly after the store opening at 9 a.m., on Monday morning, Manager Duren initiated a conversation with Tritschler, in the course of which the complaint charges, Duren made an unlawful "promise of benefit" to Tritschler and, in addition, made a statement calculated to create the impression that Respondent was engaged in surveillance of Tritschler's union activities, all in violation of Section 8(a)(1) of the Act. As background to consideration of some of the evidence relating to what Duren said in this conversation, about mid-December 1967 Duren had proposed to Hayes, presumably in the latter's capacity as personnel manager, individual proposed wage increases for each employee in the Columbia store. Duren received notice of the head office action on these proposals on Friday afternoon, January 20, by means of the weekly paychecks received in the store earlier that day. Apparently in most cases the raises granted were less than Duren had proposed; Tritschler's raise was 10 cents rather than the 20 cents per hour Duren had recommended. Duren immediately called Imhoff to express his dissatisfaction with the company action and Imhoff had Hayes proceed immediately to Columbia that afternoon to confer with Duren. Hayes had a further conversation with Imhoff at Tipton the next (Saturday) morning, following which Imhoff or Hayes, or both called Duren. Duren testified that in this conversation he was told that the Company was reconsidering the matter; that the results would be reflected in the next week's paychecks; and that the Company was going to "finish out" the raises (meaning, I infer, carry out Duren's initial recommendations). Sometime prior to the noon "dinner" hour on that Saturday, Duren called Tritschler's home (but did not speak to Tritschler, who was away for the weekend) to tell Tritschler that he would receive the additional 10 cents per hour. Turning now to Duren's conversation with Tritschler on the morning of Monday, January 22, Duren approached Tritschler and told him that he had tried to reach him on GERBES SUPER MARKETS Saturday. Duren went on to say that he was not happy over the raise Tritschler had received the previous Friday, that he had talked to Imhoff and Hayes on Saturday and had been informed that Tritschler would receive the additional 10-cent raise and that other employees would likewise receive further increases (in the next week's checks, Tritschler did receive the further 10-cent raise and at the same time "about all" other employees received further increases). Following these remarks, according to Tritschler, Duren started to walk away and then turned to say that several employees had told him on Saturday that Tritschler had arranged to meet with a union representative; Tritschler acknowledged that this was true; Duren then told Tritschler "Don't think we don't know what you are doing" and asked Tritschler what made him think the employees wanted union representation; and Tritschler replied that he had talked to various employees, some of whom wanted to at least talk to a union representative. When later called as Respondent's witness, Duren was not directly questioned as to whether he had made the foregoing specific statements attributed to him by Tritschler. What he did testify is that he first heard about union activity shortly before noon on Monday, the 22d, when Roberts, his assistant manager, told him that Tritschler was going to meet with a union representative during Tritschler's 1-2 p.m., lunch hour that day; that he immediately informed Mr. Imhoff of this development; that he saw Tritschler sit in a car with someone in the store parking lot during that period; and that he had not learned during the preceding weekend that some employee had contacted a union. I credit Tritschler's testimony and find that at some point on Saturday morning (the store is open on Saturdays) Duren was informed by one or another of the employees that Tritschler had arranged to meet with a union representative on Monday; and further find that in this Monday conversation with Tritschler Duren told Tritschler "Don't think we don't know what you are doing." Duren's statement to Tritschler, just referred to, was plainly calculated to cause Tritschler to understand, indeed, to warn him, that Respondent was in possession of means enabling it to keep watch over his union organizational activities, and as such created the impression of surveillance in violation of Section 8(a)(1) of the Act. I further conclude that Duren's assurance to Tritschler that he would receive the further 10-cent raise was an illegal promise of benefit. For even if Duren took steps on Friday to register his dissatisfaction with the wage increases Tritschler and others had been accorded, he knew when he was dealing further on this subject with his superiors on Saturday that Tritschler's union organizational activities were under way and undoubtedly so informed Imhoff and Hayes that day. (Duren admitted that he informed Imhoff of Tritschler's union activity as soon as he learned about it, as he claimed, on Monday. I accept Duren' s assertion that he reported Tritschler's activities immediately but I place the date as Saturday when, as I have found, Duren had this information.) As my Decision unfolds, it will be seen that Duren and other of Respondent's officials were strongly opposed to the unionization of the employees. Moreover, the speed with which Respondent acted, more or less on an overnight basis, to grant Tritschler and other employees further raises seems out-of-character, bearing in mind that Duren's initial proposals had been under consideration for a month and a half and, after such extensive pendency and eventual partial denial, should have suddenly become 17 acceptable. I also consider it significant that neither Hayes or Imhoff, both of whom testified as witnesses for Respondent, gave any testimony bearing upon this incident in which they were directly and authoritatively involved. Finally, Duren's efforts to reach Tritschler on his day off to inform him of the further raise seems hardly the course a store manager would follow in the ordinary course of events. I think it more logical to believe that Duren had some special reason for thus wanting to inform Tritschler of Respondent's beneficient action toward him and other employees. On this record, that reason would appear to have been Respondent's knowledge of the step toward possible unionization Tritschler had simultaneously taken. I believe, and find, that Respondent did what it did when it did it to forestall unionization, and, accordingly, that Duren's representations to Tritschler were assurances of benefit violative of Section 8(a)(1) of the Act. Following this conversation between Duren and Tritschler, and in the further course of the morning, Assistant Store Manager Roberts and Meat Department head Phillippe followed Tritschler around the store. Sometime before the noon hour, Tritschler encountered Phillippe in a backroom and asked him why he was following Tritschler. Phillippe replied "Don't think we don't know what you are doing, we know you are going to see a union man" - "we know a lot more than you think we do." Tritschler replied that he was not trying to hide his activities and stated that he had talked to several employees (referring, I infer, to his earlier canvassing of employees relative to his contacting a union .) Phillippe responded by asking Tritschler why he thought he had a right to do this and why he thought other employees wanted to be in a union . Tritschler replied that he was merely acting as a spokesman. Phillippe then told Tritschler to leave "his" (meaning, I infer, the meat department) employees "out of it" - that they were happy with what they had and he wanted Tritschler not to bother them.' As in the case of Duren 's similar statement considered above, Phillippe's remarks that Respondent's representatives knew about Tritschler's union activities and more than Tritschler thought, were calculated to give Tritschler the impression that Respondent had his union activities under surveillance and hence violated Section 8(a)(1) of the Act. During Tritschler's lunch hour meeting with Sacks, the Retail Store union representative, it was agreed that Sacks should meet with interested employees that evening at his room in the local Holiday Inn and that Tritschler should spread word of the arrangement among store employees that afternoon, which to some extent he did. Shortly after Tritschler returned to work he was called into the store office for a talk with Duren and Roberts. Tritschler testified that in the course of the conversation "they" told him not to talk to employees about the Union on company time; that he agreed to this admonition and that he further explained that he had talked to several employees and they merely wanted to meet with a union representative. After some further conversation, according to Tritschler, he was asked, I infer by Duren, whether a meeting was planned for the near future, which inquiry he answered by disclosing the time and place of the meeting scheduled for that evening. In the same conversation, according to Tritschler, Duren inquired whether the employees would not hold off for a time, for 'I find the facts stated in the foregoing paragraph on the basis of Tritschler's uncontradicted testimony; neither Roberts or Phillippe testified. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the reason that he had been assured by President Imhoff that when the Dillon company "took over" there would be improvements in wages and other working conditions. Duren testified that he called Tritschler to the office because of a report from Roberts that Tritschler was talking to other employees so much that he was endangering completion of his work (stocking the dairy case); that he asked Tritschler why he was talking to the employees; and that Tritschler, referring to his lunch hour talk with a union official, said he was spreading word among the employees concerning that evening's meeting. Admittedly during this conversation Duren, under the impression from what Tritschler said that the meeting would begin at 8 p.m., told Tritschler that he would permit interested employees to leave work prior to the 9 p.m., closing time in order to attend the meeting, and in fact did so in the case of various employees. With regard to this incident, the complaint charges that Duren unlawfully interrogated Tritschler concerning a prospective union meeting . On Tritschler's version of what took place, Duren made an outright inquiry concerning any projected meeting. On Duren's version, Tritschler volunteered the information concerning that night's planned meeting and explained that this was why he was talking to various employees, the matter which brought the conversation about. But I do not consider it necessary to decide which of these versions is correct since, in either case, it is clear that Duren facilitated the attendance of the employees at the meeting, as he told Tritschler he would do. In these circumstances, even if as part of a lengthy conversation Duren made the inquiry Tritschler attributed to him, it could scarcely be regarded as having had any noticeable coercive effect on Tritschler. Employers' inquiries concerning their employees' union activities, including union meetings, are normally coercive because of their improper intrusive nature and natural inhibiting effect. In this instance, however, Duren's cooperation in facilitating attendance at the meeting had a disabusing and countervailing effect. At most, what was left could only be regarded as so minimal a violation as to warrant dismissal of this charge, which I will recommend. About 17 employees met with Sacks that night at the Holiday Inn, including Mrs. Joy Duren, the store manager's wife who is also, as the evidence establishes, an occasional employee of the store. Present also were "Randy" Foley and David Owen, the two part-time meat department employees previously described.' During that day, Meat Manager Phillippe asked meat department employee Randy Foley if he knew there was to be a union meeting for the grocery (i.e., nonmeat department) employees. Foley replied in the affirmative. Phillippe asked Foley if he intended to go and Foley said he had not planned to do so. Phillippe then asked Foley and Owen, if they would attend the meeting and see what went on and who was there, which they agreed to do. The next day, January 23, Phillippe talked both to Foley and 'The complaint alleges that Mrs. Duren's presence at this meeting constituted unlawful surveillance on Respondent's part, a matter I deal with later. No other issue is present concerning the events of this meeting but for general background it may be noted that they consisted of distribution by Sacks of a copy of a contract between the Retail Store union and a local Kroger chain store, of material concerning that Union's health and welfare program, and of the representation authorization cards. Sacks made some explanations concerning the Kroger contract and the health and welfare program . He also read the text of the authorization card, invited card signatures, and made explanations relative to two possible uses of the cards , i.e., for an election , or for recognition by the card check method if that were agreeable to Respondent. Owen. He asked Foley if any department heads were present. Foley replied in the affirmative, naming them,' and went on to inform Phillippe that Mrs. Duren was at the meeting taking notes and that Phillippe was "right," i.e., that Tritschler was the employee behind the union movement. In Phillippe's talk with Owen, Owen told him (contrary to Phillippe's prediction to him the day before) that the Union (i.e., Sacks), had not painted a "rosy picture" and had not promised anything.10 The complaint alleges that Phillippe's inquiries of Foley concerning his knowledge of that night's meeting and his intentions regarding attendance constituted unlawful interrogation . This they clearly did, and I so find. The complaint further alleges that Phillippe requested the two boys to engage in surveillance of the meeting when he asked them to attend and report back particulars to him. The facts I have found sustain this charge. Likewise on January 23, according to Tritschler, Duren spoke to him concerning the Company's plans for the addition of a second store at Columbia, and described to Tritschler how he, in the light of certain eventualities, would be in line for and would receive Duren's recommendation to fill an assistant manager position in one of the two stores. According to Tritschler, Duren then asked him to "hold off" until they saw how the Dillon company's acquisition of Respondent would affect things, adding that he was sure the Dillon ownership would help Imhoff who, Duren said, could see that there was unrest among the employees and that various changes would have to be made if the Union did not come in. In this same conversation, according to Tritschler, he told Duren that he would find out from Sacks how the card signatures were coming along, that he did not see any sense in having the matter drag out if only a "minimum" of cards had been signed and if this was the case he would see whether the employees he had originally contacted were agreeable to asking Sacks to abandon the union organizational movement." According to Tritschler he and Duren also agreed on this occasion that neither would talk to the employees relative to the Union during work time. Duren admitted that around the time specified by Tritschler he called Tritschler into a back room to talk "about the progress" [of, as I infer, the union movement] and that in this conversation he informed Tritschler of the Company's expansion plans and the resulting possibilities of Tritschler's promotion. I credit Tritschler's testimony and find that Duren made to him the statements described in Tritschler's testimony relative to his promotion possibilities.' I rrhe matter is of no particular importance but a list given by Sacks of the 17 employees includes George Cornell, loosely described in the record as the produce "department" head , and Ima Jean Lewis, the so-called head of the delicatessen "department." The complaint raises no issue relative to the attendance of Cornell and Lewis, whom the General Counsel contends are not supervisors. Foley's reference to them is significant only as a response made to Phillippe's interrogation of Foley relative to what took place at the meeting, which the complaint does charge as violative of Sec. 8(ax l ) "I make the foregoing findings on a composite of the testimony of Foley and Owen, which I credit. As previously noted, Phillippe was not a witness at the hearing. "It is clear from both the testimony of Tritschler and Duren that early in the organizational period Tritschler told Duren he would keep the latter informed relative to the progress of the organizational effort and I conclude that this was the pertinent occasion when this understanding was reached. "Duren also testified that in this conversation he declined to agree to Tritschler's proposal that each of them refrain from talking to employees about the Union on work time, but it is unnecessary to decide whether GERBES SUPER MARKETS 19 The complaint charges that what Duren said to Tritschler regarding promotion possibilities for Tritschler constituted illegal promises of benefit. While strictly speaking not promises, certainly Duren was projecting promotion possibilities while at the same time importuning Tritschler to drop the union movement. Inducements held out for such a purpose plainly violate the Act and are within the fair intendment of the complaint. On January 25, the Company called and President Imhoff addressed a meeting of all the store employees (in terms not reflected in the record), following which he invited questions. Someone asked what would happen to the profit-sharing plan if a union became the employees' representative, a question answered by Personnel Manager Hayes who stated that it would become a "negotiable" subject and there was no way of knowing what the outcome of such negotiations would be. A few days later, however, according to Tritschler, in the course of a conversation he had with Duren ," Duren referred to his and Mrs. Duren's plans to build a house but said that if a union came in the profit-sharing plan (where, Duren added "my money is") would almost certainly be cut out and his house plans "go down the drain." Tritschler further testified, on cross-examination , that Duren did not on this occsaion mention "negotiation" as the cause of the probable plan termination, and that when Tritschler had himself told Duren in the course of earlier conversations that the plan was negotiable, Duren had said Tritschler could not make him believe this was the case. I credit Tritschler's testimony as to what Duren said on this occasion. Duren admitted that he talked to Tritschler about the plan and its advantages on this occasion and that, among other things, he told Tritschler that he would hate to see anybody lose the plan. But his testimony concerning what he said on this specific occasion contains no declaration that he tied possible loss of the plan to union negotiations. What remains of his testimony is his broad assertion that in telling other employees on other occasions the plan could be discontinued he referred to its "negotiable" character, testimony I consider inadequate to create a direct conflict with the testimony of Tritschler as to what took place on this specific occasion . Having credited Tritschler's testimony, I find that Duren made an unlawful threat when he told Tritschler the profit- sharing plan would most probably be discontinued if the Union organizational activity succeeded." In this same conversation, according to Tritschler, Duren said he was disappointed in the way several of the employees, and Tritschler in particular, had let him down; that he had let Tritschler have Saturday as his day off and had done other favors for Tritschler and others; that he such an agreement was clearly arrived at or not. "Tritschler first gave Wednesday, January 24, as the date of this conversation but on cross-examination stated it could have taken place some other day. From other evidence , I find the conversation occurred subsequent to January 25 and either on Monday , January 29, or Tuesday, January 30. "Tritschler's testimony refers to two earlier occasions (January 22 and 23), upon which, according to ban , Duren similarly expressed his fear that the profit-sharing plan would be terminated if the Union came in. However, these instances are not charged in the complaint , which alleges January 20 and 30 as the dates of such threats. Since I find violations on the occasions alleged, I do not consider the question whether , if it was the intention of the General Counsel to litigate the earlier instances referred to by Tritschler without moving to amend the complaint, these items could be said to have been fairly put in issue and tried, in the absence of some notice of intention to litigate given by counsel for the General Counsel. had had enough on them at one time or another to fire them and had not done so but now that they had let him down he was going to make up for lost time. Duren admitted that in one of his conversations with Tritschler he had reminded Tritschler that he had done him a favor in giving Tritschler Saturday as his day off so that he enjoyed a full weekend off and that he told Tritschler that he could or might have to change this arrangement and Tritschler should feel lucky. On the other hand, he denied making the other statements Tritschler's testimony describes. I believe Tritschler to be the more credible witness and find that Duren on this occasion made the threatening statements Tritschler attributed to him, statements plainly violative of Section 8(a)(1) of the Act. In the meantime, the Meat Cutters Union had entered the picture to obtain representation of the Respondent's meat department employees, all six of whom attended a meeting conducted on the night of Monday, January 29, at the local Labor Temple by Theodore Wolff, a Meat Cutters' business representative." These six were Larry Nelson, Joy Carlos, Mary McMinn, Bill Paxson, Randy Foley, and David Owen. Also present were Owen's father and Tritschler. Phillippe, manager of the meat department, likewise put in an appearance. On the day of the meeting Phillippe asked Foley if he knew of the meeting and whether he was going to attend, questions which Foley answered in the affirmative. Phillippe likewise told Foley he would probably be given a union authorization card but not to sign it because there was nothing requiring him to do so.16 The complaint charges that Phillippe's inquiries of Foley relative to the meeting and his telling Foley not to sign a union card violated the Act. The facts support these charges and I so find. During the meeting, in). identified himself, and expounded upon the benefits provided in Meat Cutters' contracts with other Columbia stores. During this phase, Phillippe made two inquiries, one relative to Respondent's profit sharing plan (if, I infer, the Union got in.)" Phillippe's other question was whether if the Union got in this would prevent Respondent from installing meatwrapping machines, to which Wolff replied by stating that this also was a matter subject to collective-bargaining negotiations. The complaint alleges that Phillippe's inquiry relative to installation of wrapping machines constituted a threat of such installation and consequent job loss (employees Carlos and McMinn wrap meat by hand, among other duties) if the Union became the employees' representative. I conclude that this allegation of the complaint should be dismissed. On its face, Phillippe's inquiry seems a natural one and there is no evidence of any further remark on his part which would lend a threatening import to his query. The complaint further charges that Phillippe's attendance at this meeting represented unlawful surveillance of the union activities of Respondent's employees. This charge must be sustained. Phillippe had previously, on the occasion of the Retail Clerks' meeting "Alerted by Sacks, the Retail Store union representative , to the presence of meat department employees Foley and Owen at the January 22 meeting conducted by Sacks, Wolff promptly obtained the names and addresses of the meat department employees from one of them , Larry Nelson, and sent them samples of union contracts . On January 29, upon request of Nelson, Wolff agreed to meet that night with meat department employees. "I make these findings on the basis of Foley's uncontradicted testimony. As previously stated, Phillippe was not a witness at the hearing. "As to this query, not challenged in the complaint, Wolff stated that the plan was a negotiable matter. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of January 22, sought to ascertain information concerning employee attendance at and other particulars of that meeting, and, as other earlier and later events show, deployed himself on many fronts to set at naught the self-organizational desires of Respondent's meat department (and other) employees. That he came to this meeting (uninvited so far as the record shows) to acquaint himself on Respondent's behalf with what took place cannot be doubted. As the meeting progressed, Wolff passed out Meat Cutters' authorization cards and spoke of two routes to obtain recognition, i.e., a card check or an election. One employee, Nelson, then signed a card and Wolff left the employees to themselves for a while. When he returned, Phillippe departed and then, at the employees' suggestion, Wolff joined them for coffee at a nearby bowling alley. While at the alley, Foley, Owen, McMinn, and Carlos decided to sign cards and did so. Thus, in the end five of the six meat department employees signed authorization cards that evening. The next day, Tuesday, January 30, Phillippe asked Foley if he had signed a Meat Cutters' card and Foley replied that he had. Phillippe then asked Foley if Owen had signed and Foley said, untruthfully but understandably, that he did not know. That same morning, Phillippe asked Joy Carlos if she had signed a Meat Cutters' card and she replied that she had. Phillippe also asked her if Foley and Paxson had signed, and in response she told him Foley had but she did not know whether Paxson had." These inquiries of Phillippe as to employee signatures of union cards violated the Act, as charged in the complaint. Later that morning, at Duren's instructions, Phillippe called Carlos, Nelson and Paxson into the meat cooler where Duren talked to them for about an hour concerning the profit-sharing plan. (Phillippe was in and out of the meeting.) Carlos and Nelson testified concerning what was said during this gathering but without purporting to recall all that transpired in such a lengthy meeting . So much as they recalled, however, is not in conflict. Combining their accounts, Duren said he had with him his own, Phillippe's, and employee Sullivan's profit-sharing books and explained how much employee Sullivan would accumulate over some period of years. Nelson said he would rather join a union and have his money now, instead of waiting until he was elderly. Some heated argument then developed between Duren and Nelson over the union vs. profit-sharing plan issue, in the course of which Duren asked Nelson why if he liked a union so much he had not stayed with National ( a union store in Columbia where Nelson had previously worked); Duren said, in reference to a union coming in , that the Company could, if it wished, terminate the plan ; that he did not care about himself but would hate to see other employees lose; and further said that he was having a $45,000 house built but not with union money, and that he had never belonged to a union and never would. At the end of the discussion Duren asked the three employees to think over what he had said. Under cross-examination, both Carlos and Nelson firmly adhered to their direct testimony that Duren had said the Company could, if it wished, terminate the plan , and Carlos denied that Duren described the plan as terminable because of its negotiable character." "I make these findings on the basis of the uncontradicted testimony of Foley and Carlos. As previously stated, Phillippe did not testify. "Nelson's testimony on cross-examination is implicit with such a denial Duren's account of what transpired at this gathering, which admittedly he caused to be assembled, generally conforms in many aspects to the testimony of Carlos and Nelson as to what transpired. But he denied that he said the plan "would" be discontinued if the Union came in30 and asserted that what he told the employees with respect to termination of the plan was that "this profit sharing is a negotiable item, that we could lose it or we could not." I credit the employee witnesses and find that Duren described the plan as terminable at the Company's volition if the Union came in without ascribing this possible termination to the negotiable character of the plan. I make this credibility resolution in part because of Miss Carlos' uncontradicted testimony that during that afternoon she did think over what Duren had said and that night called her coworker in the meat department, Mary McMinn, who I find had not been present," and told McMinn that Duren had said the Company could drop the plan if "we went union" and that she hated to see this happen to the older employees; that she and McMinn then discussed the matter further and agreed that Carlos would call Duren that night to tell him they would vote against the Union in any election; that she did telephone to Duren's house that night and, in his absence, gave this message to Mrs. Duren; and that the next morning Duren admitted receiving this message and thanked her and McMinn for this action on their part" Moreover, I was more impressed from a credibility standpoint by the demeanor of the two employee witnesses than by that of Duren. Duren's discussion of the profit-sharing plan with the three employees obviously was arranged and conducted as part and parcel of his and Phillippe's manifold efforts during this period to prevent the unionization of Respondent's employees, and in this context Duren's proclamations that Respondent could, if the employees became organized , terminate the profit-sharing plan was calculated to pressure the assembled employees into abandoning the union movement. That it had such an effect, in fact, is not an essential element of the General Counsel's proof but the fact that it had such an effect, as established by the ensuing conversation between and action of employees Carlos and McMinn, is strong proof of the veracity of the General Counsel's witnesses as to what Duren said and the effect such statements do have on employees. Duren's statements represented threats violative of Section 8(a)(1) as charged in the complaint." also, because, having his attention called to the company statement at the employees' meeting on January 25 that the plan was negotiable, he testified that Duren made no reference to this statement in telling the employees that the Company could if it wished (that is, of its own volition ) terminate the plan. "This denial does not contradict the employees ' testimony, which was that he said the Company could, if it wished, terminate the plan. "Duren testified that McMinn was present and had entered into the discussion, but Carlos excluded McMinn from her list of those present. At the close of the hearing , counsel stipulated that McMinn , if called, would testify that she did not work that day and had never had a conversation with Duren relative to the profit plan. "Duren admitted that his wife had told him Miss. Carlos had called and left a message that she and McMinn had changed their minds. "On February 22, Respondent posted in the store a notice to the employees stating that a "rumor has been circulating that the Profit-Sharing Plan will be discontinued " if the employees obtained union representation; that this rumor was untrue; and adding that if a union became their bargaining representative the plan would be a topic of collective-bargaining discussions (Reap. Exh . 3). The posting of this notice, after Duren's various discussions of possible termination of the plan, has no tendency to corroborate Duren 's testimony in regard to the various GERBES SUPER MARKETS About this same time, Duren and Phillippe drew Foley and Owen into the meat cooler where they talked to these teenagers at some length. In the course of the discussions, according to a composite of the boys' testimony, Duren said that the Company might have to close the store because it could not afford to pay union wages, and Phillippe said if the Union came in the two boys would be laid off and their places taken by an apprentice meat cutter because the Company could not afford to pay union wages to part-time boys such as they. As previously noted, Phillippe did not testify. Duren admitted talking to the two boys in the cooler on one occasion and had a rather hazy recollection of the subjects discussed but denied he had ever told them the store would close if the Company had to pay higher wage rates." Under all the circumstances of the case, including some immediately referred to below, it is clear that Duren and Phillippe were intent on putting considerable pressure on these young men and in observing the two boys on the stand I felt each was endeavoring to tell the truth. I credit their testimony and find that Duren and Phillippe made on this occasion the statements respectively attributed to them in the boys' testimony. Duren's statement regarding closing the store and that of Phillippe concerning their layoff, if employees became organized, were threats violative of Section 8(a)(1) of the Act as charged in the complaint. On what I conclude was a day or so later (that is, about February 1),2' Phillippe went to the high school where he had a talk with Schneider, the teacher-supervisor over Foley and Owen as vocational trainees at the store under the arrangement Schneider had made with Phillippe and Duren the previous fall and under which Phillippe was the boys trainee-supervisor. Present on this occasion at Phillippe's request, but participating little in the discussion, was a high school teacher named Braden who had nothing to do with the boys' high school instruction or their store training. On the basis of the testimony of Braden,26 some of Schneider's testimony27 and that of the boys (as to what Schneider told them Phillippe had said in talking to Schneider and Braden), I set forth in the following paragraph my findings as to what Phillippe said on this occasion. instances involving his discussion of the plan , if that was Respondent's objective in offering the document, but rather tends to support the General Counsel's evidence. "Duren likewise denied having told the boys that they would be laid off or their jobs abolished if the Company had to pay union wages, but these remarks had been attributed to Phillippe , not to him. "In this instance , as in the case of many other events dealt with in this record, the evidence does not permit of a finding as to the exact date of its occurrence , due primarily to the witnesses ' use of approximations or guesses and to conflicts among these time estimates . By the same token, and because little corresponding effort was made by counsel , it is not possible to erect into clear chronological order various events having some possible common factor. "Braden testified as a witness for the General Counsel and by his demeanor impressed me as an honest witness , so far as his recollection extended. "Schneider expressed an inability to recall having met with Phillippe on this occasion but in other portions of his testimony referred to statements by Phillippe which I conclude from all the evidence were made by Phillippe on this occasion . By his demeanor, and by the nature of his testimony in general, Schneider made a most unfavorable impression on me. He repeatedly asserted a lack of recollection about meetings he undoubtedly was deeply involved in (even as to matters about which he previously had given some particulars ), frequently gave vague, unresponsive, or roundabout explanations in response to simple questions, engaged in some contradictions, and all-in-all, appeared intent on obscuring the record as to what actually had happened on occasions when he was an important participant. In short, in general I consider him an unreliable witness. 21 Phillippe said that he wanted to discuss the union activity of the two boys and cautioned Schneider and Braden not to repeat the conversation to the two boys. He expressed dissatisfaction because the boys had gone union and said, or said he thought, that the boys would be better off without a union. He also said that he was certain he would have to terminate one and might have to terminate both of the boys if the Union got in, that is, if Respondent should have to pay them the union wage scale. He further said that it might be impossible to continue the meat-judging class at the store if the Union got in, referring to unionized stores which he asserted did not permit such classes. Immediately following the conclusion of this meeting (which Owen had observed taking place from another room), Schneider took Foley and Owen into the nearby shop for a talk. Based on the testimony of the boys and some admissions of Schneider," I make the following findings concerning Schneider's remarks on this occasion. He told the boys that Phillippe had complained because they had gone union and thus had showed a lack of faith in Phillippe. In similar vein, he told the boys that he was disappointed in them because they had signed union cards without first consulting him or Phillippe. He further stated that if the Union got in Phillippe would probably drop the school program and hence the boys would probably have to return to school for the corresponding 2 hours, and that Phillippe would or might cut out the meat-judging class, because such programs were not allowed in union stores. On the next day, Phillippe and Store Manager Duren came to the school for a further talk with Schneider, at which teacher Braden was also present, again more or less as an observer. i9 Braden, Schneider, and Duren were interrogated concerning what happened at this meeting. From Braden's demeanor and the nature of his testimony I believe that Braden endeavored to testify honestly concerning what took place at this meeting so far as his recollection went. From his testimony, and that of Schneider and Duren, it is clear that the conversational exchanges were mainly between Phillippe and Schneider. Schneider set the agenda for discussion by referring to the union activities of the two boys (their having signed union cards) and inquiring of Phillippe and Duren what effect their union activities might have on the boys and the school programs being conducted at the store. With reference to this central topic of conversation (it is not possible from the testimony I have to depict either the entire discussion or the order of statements made) in the course of the meeting Phillippe said he did not know what a union wage scale would be (i.e., if the Union got in) but he was sure it would be such that he would have to let one boy go and might be unable to retain either. With reference to the meat judging class, Phillippe said the class might not be able to continue meeting at the store, pointing to a local unionized store where, he said, such classes were not allowed to meet. As to the vocational training program, Phillippe or Duren, or both, said that so far as he (or they) then knew they would continue the program. Further in the course of the meeting Phillippe and Duren expressed the view that the two boys were better off if the store remained as it was (meaning, I infer, Nevertheless, he did make some admissions supporting the General Counsel's case and these I credit. "Schneider expressed an inability to recall having talked to Foley and Owen on this occasion but admitted making to them some statements which I conclude from the other evidence he made on this occasion. "This meeting was the result of Schneider's telling Phillippe the previous day that he wanted to talk both with Duren and Phillippe. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without a union); in this connection, Phillippe referred to the profit-sharing plan, the characteristics of which Duren then explained further to Schneider.3° A day or so later, Foley and Owen were called in to meet with Schneider and Schneider's superior, the school director of vocational education, Jay Willows. I credit Foley's testimony that in the course of this meeting Schneider criticized the boys for getting involved in the Union without first consulting Schneider and further told them that Phillippe had said he did not think he could retain both boys if the Union got in because of an asserted inability to pay them the union scale. There is further testimony (primarily of Foley and Willows) which, despite Willows' various assertions that he was merely instructing the boys not to engage in picketing or other union activities during the 2 school-credit hours, would warrant findings that he did not so limit himself but, in fact, criticized the boys broadly for having gotten involved in union activities, told them (or Owen) not to attend more meetings without letting him know first, and told them to remain neutral and keep out of further union activity. But the record does not warrant holding Respondent responsible for what Willows may have said along these lines. I see no reason to discredit Willows' testimony that he had never talked to Phillippe or any other store official prior to talking to the boys. Moreover, even if Schneider had told him that prior to this meeting Schneider had been in touch with Phillippe and Duren (which Willows first denied and then had an uncertain recollection), there is no evidence indicating that Schneider had portrayed to Willows what had transpired in Schneider's meetings with the store officials." Nor is there evidence contradicting Willows' testimony that his first knowledge of the boys' union activities was imparted to him when Schneider called him down to speak to the boys (whom he did not know). In these circumstances, I consider the evidence insufficient to warrant a finding that Willows was acting at the instigation or behest of Respondent in making whatever statements he did on this occasion. I reach the opposite conclusion as to Schneider, who repeated to the boys statements to the following effect which Phillippe had made to him: 1. That they had incurred Phillippe's displeasure in signing union cards; and 2. That their union activities, if successful (that is, if the Union got in) might lead to loss of one or both of their jobs, and to termination of the meat-judging class. That Phillippe was intent on severing these boys from any union attachments is blatently evident from the many coercive pressures he rather continuously applied to them before (see supra), and after (see infra), his meetings with Schneider. And that this was his purpose in approaching Schneider is evident, and must have been evident to Schneider, from the expression of dissatisfaction with the boys' union involvement and the predictions of dire consequences likely to flow from that involvement which he made to Schneider at both their meetings, i.e., that the boys' employment (and thus their vocational training at the store) and the continuation of the meat-judging class of which they were members, were being put in jeopardy by their union activities. By the same token, Phillippe was placing strong pressure on Schneider to act in line with "Philippe had made some such reference to the plan in his initial talk with Schneider and Braden the day before. "There was no interrogation of Schneider on this important question. Phillippe' s wishes, for discontinuation of these programs would have represented a serious blow to the school. I am satisfied, and find, that Schneider understood that this was why Phillippe had come to him and that it was in response to this implicit appeal that Schneider said what he did to the boys. For a few days earlier Foley had broached the matter of union activity at the store to Schneider and, in response, Schneider said he knew about it (from Duren) and did not think it was anything Foley should worry about. When Phillippe later approached him, however, Schneider's attitude changed. He went directly from his first meeting with Phillippe to talk to the boys, and in his two talks with the boys repeated to them statements Phillippe had made to him. In short, Schneider did exactly what Phillippe obviously wanted him to do. To conclude that when Schneider did thus sound the alarm he did so on his own would require ignoring surrounding circumstances which show all too clearly that his action represented a consensual response on his part to Phillippe's importuning." I conclude that, in making to the boys the statements previously enumerated, Schneider was knowingly and willingly acting at the behest and in the interests of Respondent and hence was an agent of Respondent, for whose conduct Respondent may be held responsible. Since the statements made were plainly coercive, by Schneider's conduct Respondent violated Section 8(a)(1) of the Act. Along in this same period, Owen (and, apparently, the other meat department employees) received a communication from Wolff enclosing a sample of a union contract. Encountering Owen in the parking lot the next day Phillippe asked Owen if he had yet received this material . Since Owen did not want to admit having received it, he engaged in various ruses in the ensuing conversation. He first denied having received it yet but added that he did not know whether it might have arrived at his home in the day' s mail . Phillippe then offered to give Owen time to go home to inquire but Owen begged off doing so and offered instead to telephone his mother which he did. He then told Phillippe the material had not come. Some days later, he told Phillippe that his father had said he did not have to give the material to Phillippe, which ended the matter." Phillippe's inquiries of Owen concerning union literature he may have received constitutes unlawful interrogation concerning Owen's union activities, plainly violative of Section 8(a)(1) of the Act as the complaint charges. In what must have been this same general time period (early February, I infer), Phillippe told Foley that Mary McMinn and Joy Carlos had changed their minds (see supra), and were going to write the Meat Cutters Union to get back the authorization cards they signed, and asked Foley if he would like to do likewise. Foley said he would. Phillippe then asked Foley if he knew what to write and, when Foley said he did not, Phillippe wrote out the text of a letter and provided Foley with a stamped envelope. With only an insignificant change in the Phillippe draft, Foley prepared the letter in duplicate (G. C. Exh. 7), sending "I so find despite the fact that at both meetings the school officials were asked not to "relate this conversation" or "mention anything about this" to the boys (Braden's testimony ). For these cautions appear to have meant, not that the school officials should say nothing to the boys, but merely that they should make no attributions to the store officials in whatever they said to them . Viewed merely as attempts at concealment, such cautions do not counteract the evidence predominantly indicating that Schneider did what he did in response to implicit appeals made in behalf of Respondent. "Since Philippe did not testify, I find the facts stated above on the basis of Owen's testimony. GERBES SUPER MARKETS 23 one to Wolff at his Kansas City address and the other to the International office of the Meat Cutters Union in Chicago. 7° Phillippe's importuning of Foley to withdraw, and assistance to Foley in withdrawing his card authorization, were acts of coercive conduct violative of Section 8(a)(1) of the Act. I also find that on three occasions, in February and March, Phillippe interrogated Foley as to whether he had been interviewed by a Board agent. Although Foley had not yet talked to a Board agent when Phillippe first interrogated him on this matter, over Foley's denial Phillippe insisted that Foley had talked to a Board agent the preceding night and said the agent's name was Carter. 36 On about March 10, Phillippe asked Foley if the Union (apparently meaning the Meat Cutters), had contacted him any more. In response, Foley said he had that day received from the Union some union contract. Phillippe asked to see the document, Foley agreed to this request, and the two drove to Foley's home where he obtained the document and gave it to Phillippe.16 Phillippe's inquiries of Foley as to whether he had been interviewed by a Board agent and concerning his contacts by the Meat Cutters Union were coercive interrogation violative of Section 8(a)(1). On February 12, the two unions held a joint meeting for Respondent's employees at a local Holiday Inn, which some 27 employees attended as did Union Representatives Sacks and Wolff and Mr. Kimbrough, counsel for both unions. Before the actual opening of the meeting, those arriving foregathered in a lounge adjacent to the downstairs meeting room, and among these was Meat Department Manager Phillippe. At this juncture, Attorney Kimbrough spoke to Phillippe, objecting to his presence on the ground that he was a supervisor (that is, asserting that Phillippe had the right to hire and fire). Following this conversation, Phillippe went from the downstairs lounge and meeting area to the first floor lobby (area near the stairs to the lower meeting area) where he sat for some appreciable portion of the time the meeting consumed. The complaint charges that Phillippe was engaged in surveillance on this occasion, a charge which I find sustained by the evidence. The record establishes that Phillippe was an ardent opponent of unionization who applied, particularly to meat department employees, a stream of coercive acts to smother their desire for and attempts toward self-organization. Attempts, largely successful, to ferret out information concerning those allying themselves with the organizational movement were an important segment of his coercive conduct, as evidenced by his interrogations of various employees. That such a purpose motivated him in putting in an appearance at the February 12 gathering is an inescapable inference on the record as a whole, and, as one occupying supervisory status, his conduct is chargeable to Respondent. J7 The complaint further charges surveillance of the "I find these facts on the basis of Foley's uncontradicted testimony. "Carter, in fact, was the Board field examiner who later interviewed Foley. "Since Phillippe did not testify, I find the above facts on the uncontradicted testimony of Foley. "Mrs. Joy Duren, wife of Store Manager Duren, attended the actual February 12 meeting and the complaint likewise charges that her presence constituted surveillance on Respondent's behalf. I deal with this charge later. February 12 meeting, and that of January 22, through Mrs. Joy Duren, wife of Store Manager Duren, whom the complaint alleges to be an agent of Respondent. Mrs. Duren did not testify. Mrs. Duren works at the store on occasions, that is, during some pre-Christmas periods and otherwise on random occasions when needed to replace sick or vacationing employees. As to the January 22 meeting, the General Counsel's evidence shows nothing more than her presence throughout the meeting. As to the February 12 meeting, his evidence shows that just after the meeting began Mr. Kimbrough made to Mrs. Duren a polite suggestion that she leave because she was the store manager's wife but also indicated that whether she stayed or left was a matter for her choice." Mrs. Duren then chose to stay and during her stay took some written notes. She remained at the meeting until about 10 minutes prior to its end when she announced that she was leaving and went on to say that others who wished to remain could do so because "no one will ever know," and that those who wished to sign cards could do so because "no one," including herself, would ever know. The remaining direct evidence is that of husband Duren, who on direct examination testified that he told his wife that a meeting was to be held (I infer from his testimony that Duren was referring to the February 12 meeting), but did not ask her to attend it or report what transpired, that he did not ask her to name and she did not give him a list of those who attended; and that she told him "very little" of what was said at the meeting (merely that the meeting was not long and it looked lily' there was not much interest); and that she told him sly had left when it was indicated to her that her presence would inhibit employees present from signing authorization cards. On cross-examination, however, Duren, while still attaching the "very little" label to the discussions he and his wife had after the meetings, admitted that his wife told him what was said, and, "in general" who was present, at each of these meetings. In short, rather than "very little," Duren's admissions show that Mrs. Duren gave him extensive information concerning who attended and what transpired at these two meetings. Considering these admissions, and the marital status of the two, I think it most likely, and find (contrary to Duren's assertions) that Mrs. Duren attended these meetings and reported to Duren what took place pursuant to an understanding between the two that she would do so. Because of the existence of such an understanding, Mrs. Duren became Respondent's agent, since what she was doing for her husband she was doing for Respondent's representative. This conclusion is supported, if need be, by Mrs. Duren's conduct on another occasion when she put herself in the service of Respondent's program of coercion in response to the unionization movement. At a time not fixed in the record but which I conclude must have been in early or mid-February, Mr. Duren initiated a telephone conversation with the wife of unionization leader Nolan Tritschler, in whic:i Duren asked Mrs. Tritschler to talk to Nolan "about the store and what would happen if the union came in."" A few days later, Mrs. Duren called the home of Mrs. Tritschler's parents (with whom the "In apparent explanation to Mrs. Duren as to what he meant by "choice," Mr. Kimbrough indicated that while the Union might be agreeable to including her among represented employees he thought this would not be acceptable to Respondent. "Duren was attempting to reach Tritschler in placing this call and spoke 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tritschler's were living ) and spoke to each of Mrs Tritschler's parents, Mr and Mrs Beiller Mrs Duren opened the conversation by explaining that she felt she should talk to Tritschler's parents-in-law since Tritschler's own parents were abroad In the course of the conversations, Mrs Duren, referring to Tritschler's union activities said that Tritschler was causing much trouble at the store and that they (apparently the Durens) stood to lose a lot of money (via Respondent's profit-sharing plan) if the Union got in, which, she said, Tritschler was trying to achieve Mrs Beiller then turned Mrs Duren over to Mr Beiller, to whom Mrs Duren spoke in similar terms but more extensively Mrs Duren appealed to Beiller to reason with Tritschler because his union activities (which Mrs Duren said she felt were `wrong' ), were causing disturbance and disruption at the store and if the store went union this would jeopardize continuation of the profit-sharing plan in which the Durens and other employees participated Mrs Duren's conversations with the Beillier's manifest both her antiunion disposition and her taking corresponding action running exactly parallel to that of her husband, who was making extensive use of the threat of termination of the profit-sharing plan in the various interviews he was having with employees at the store These circumstances throw light on Mrs Duren's attendance at the two union meetings and tend to fortify the conclusion that she attended by arrangement with her husband and with knowledge that in doing so she was lending herself to Respondent's service just as her husband was 00 I also find Respondent in violation of Section 8(a)(1) of the Act because it uses an employment application form, question 14 of which calls upon applicants to name among other types of organizations, the ' labor unions to which you belong " That such a questionnaire violates the Act is axiomatic 41 Finally, the complaint alleges that Respondent, through Phillippe, caused the meat-fudging class not to be held on to Mrs Tritschler in her husband s absence "The complaint charges that Duren s conversation with Mrs Tritschler violated the Act as an attempt to induce relatives to put pressure on Tritschler to abandon his union activities I do not consider this charge sustained because Duren s request that Mrs Tritschler speak to Trttschler `about the store and what would happen if the Union came in is altogether too vague and general to sustain the more specific charge that Mrs Tritschler was being implored to get her husband to desist from his union activities which Duren denied The complaint contains no such charge referable to Mrs Duren s conversations with the Beilliers nor did counsel for the General Counsel at any time indicate that he was without attempting to amend the complaint nevertheless litigating the issue as one of violation in Mrs Duren s case In the circumstances, I do not deal with any such issue of violation but consider the evidence of Mrs Duren s conversations for the purposes stated in the text 411 granted the motion of counsel for the General Counsel to include this charge in the complaint by amendment on the next to the last day of the hearing Counsel for Respondent objected to the amendment unless the hearing were postponed to allow Respondent an opportunity to determine whether the application form had been in use during the statutory limitations period ie within the period beginning 6 months prior to filing the charge and at the close of the hearing the next day counsel for Respondent moved for a continuance on the ground that further investigative time was needed Since there were present at the hearing officials of Respondent who must have known or merely by a quick trip to Respondents nearby head office could have ascertained the simple information Respondent's counsel thought necessary I now rule that a continuance was not necessary and hence in effect that the amendment was not prejudicial to Respondent and should stand one evening, in violation of Section 8(aXI) There is no evidence to support this charge, which I will recommend be dismissed C The Alleged Refusals To Bargain I With the Retail Store Union By a letter dated March 11, this Union claimed to represent a majority of the store employees in a unit excluding the meat department and the variety department employees along with other customary exclusions,02 and requested recognition as the bargaining representative for such a unit On Respondent's behalf its attorney, Mr Haynes, replied to the Union's letter on March 14, asserting Respondent's good faith doubt that the Union represented a majority of employees "in an appropriate bargaining unit" and suggesting that the Union file an election petition with the Board for resolution of the majority claim, including the question of the appropriate unit and the related question of employee eligibility in the unit found appropriate With no further communications between the parties, the complaint issued in this case alleging that the partial store unit asserted by the Union is an appropriate one and that Respondent refused to bargain with the Union as the majority representative of the employees in that unit At the hearing, the General Counsel contended that there were 41 eligible employees in the unit he asserts is appropriate and rested his majority claim on 22 cards signed by employees he considers eligible Respondent resists the bargaining charge on various grounds, i e , that only Respondent's chain of stores is, and the partial store unit defined by the General Counsel is not, an appropriate bargaining unit that a partial store unit excluding the variety department employees is not an appropriate one, that certain card-signing employees whom the General Counsel classifies as eligible should be determined, on supervisory grounds, to be ineligible, and other nonsigning office employees whom the General Counsel classifies as ineligible should be included in those making up the unit in which event the Union would fail of a majority " and that Respondent had a good-faith doubt of the Union's majority in the claimed unit 41 Over and above all of the foregoing defenses, Respondent asserts that, in any case, the Union's representative claim is vitiated in its entirety because of certain representations made to employees by employee Tritschler and others in the course of the card-signing campaign I deal first with the latter contention In this regard, Tritschler testified that in handing out Retail Store Union cards to employees for signature, he told employee Philip Smith and "approximately a half-dozen or more" other "That is office clerical employees and guards and supervisors as defined in the Act "At the hearing Respondent sought but faded to establish that certain cards should be disregarded because signed as a result of misrepresentations concerning the purpose of the card or because not sufficiently authenticated "In this connection Respondent relies on a document signed by some 34 employees including many who had previously signed cards disclaiming any desire to be represented by the Retail Store Union which Respondent (Attorney Haynes) received more or less simultaneously with the Union s representation claim The General Counsel does not contend that there was anything illegal in the circumstances immediately surrounding the circulation of this document but does contend that these purported defections should be disregarded as the product of Respondent s intervening unfair labor practices GERBES SUPER MARKETS employees that they would have to join the Union if it got in (that is, if it attained majority status ); that in that case everybody would have to join because there would be a "closed shop." He further testified that "approximately" what he told the employees he spoke to was "to sign the card now because, after the Union came in, they would have to become a member ." He further testified that he was present when some other solicitor made such statements to employees other than the ones to whom he had made them ." He further testified that Smith signed his card about a week after he had made these statements to Smith . 16 As to the others to whom Tritschler made such statements, he testified that "several" did not sign, thus indicating, as I find, that several did sign after Tritschler made these statements to them . Thus, looking only at those to whom Tritschler spoke, the record requires a finding that these statements were made to at least three of the card signers (Smith and at least two others). On these facts alone the Union's majority was destroyed if the statements were coercive misrepresentations since the Union's card designations would be reduced to 19 out of a unit total of 41. But these same statements were made to an indefinite number of other employees by some solicitor or solicitors other than Tritschler . Thus the statements were directly made to such a considerable number of employees that they serve to taint the Union 's entire vote-soliciting procedure and majority claim , if they were of a vote-vitiating character." I hold that the statements described by Tritschler were coercive misrepresentations . They were misrepresentations because a union's attainment of representative status does not create a "closed shop" (unlawful under the Act) or otherwise impose upon employees an obligation to join, as was plainly portrayed to the employees by these statements. They were coercive because their plain implication was that those who declined to join once the Union "came in" would lose their jobs. For any obligation implies some concomitant penalty or prejudice for noncompliance , and the customary penalty for failure to comply with a "closed shop" or other requirement to join a union is loss of employment. In short, the employees must have understood from these statements that their jobs would be in jeopardy if, once the Union "came in," they then declined to join it . It is true, of course, that the threat was conditional upon the Union's attaining majority status, but the signing employees affected may well have decided that their interests would be better served by signing up with the Union earlier rather than later, lest there be some other penalty for late, or some advantage for early, adherence. Construing the situation as involving implicitly a threat of job loss, the Union's majority claim must be considered wholly tainted 68 and, therefore, the charge of refusal to bargain with the Retail Store Union should be dismissed." With this basis dispositive of the matter, I do not pass upon Respondent's other defenses to this bargaining charge. "Tritschler was not called upon to identify what other person or persons made these same statements but it is clear that it was someone soliciting signatures on behalf of the Retail Store Union. "The record shows that Smith signed his card on February 15. G. C. Exh. 2-s. "See N.L.R.B. v. James Thompson d Co.. 208 F.2d 743, 748 (C.A. 2); Puerto Rico Food Products Corp., Ill NLRB 293, 295. "See The James Thompson d Co., and Puerto Rico Food Products Corp.. cases, supra, Fn. 46. "The General Counsel concedes that the statements shown on the record were made but, obviously looking only at their bare words, asserts, on the one hand, that they contain no threat of job loss, and, somewhat 2. With the Meat Cutters Union 25 At the times in question there were six nonsupervisory employees" in the meat department, and, as has been seen, five of these six (those other than Paxson ) signed Meat Cutters cards on the evening of January 29, when the matter was first presented to them. By letter dated January 30, this Union sent copies of the signed cards to Respondent, asserted its majority representation status, and asked Respondent to communicate its stands" On February 8 Respondent, replying through Attorney Haynes, wrote the Union asserting its preference for a Board election in line with the Union' s petition, its good-faith doubt of the Union's majority , and reservations relative to unit, and voter eligibility questions . On that same day, the Union filed its charges with the Board. The evidence establishes that these cards are valid designations of this Union . 32 Hence, the essential questions presented are (1) whether the meat department employees constitute a unit appropriate for collective bargaining, and (2) whether or not Respondent's rejection of the Union's demand for recognition was, in fact, based on a good-faith doubt of the Union's majority. contradictorily on the other, asserts that employees disinclined to join the Union would refuse to sign , in an attempt to prevent the Union from attaining a majority and thus in the hope of avoiding being "forced" into becoming a member. For the reasons previously indicated I hold that the statements embodied a threat of job loss . As to counsel's alternative argument, it tacitly recognizes, in referring to threatened "forced" membership, that job loss or some such prejudice was embodied in the statements. Moreover, even if a threat of "forced" membership could somehow be denuded of any threat of job loss or similar prejudice , the statements were incorrect and coercive because under the Act employees are not obliged and cannot be required to join a union merely because it attains majority status. Indeed, they cannot be required to do so under valid union shop agreements, but can only be required to pay ordinary initiation fees and dues. With the Act expressing and protecting the right of employees to refrain from joining a union, contrary assertions could well induce employees, not versed in the Act's niceties in this regard, to abandon contrary inclinations and sign up . And finally, if the authors of these statements were merely attempting to describe the Act 's provisions in this regard, they should have done but did not do so. On the contrary, Tritschler's testimony indicates that he understood a union majority would automatically produce an obligation to join , and this is, in fact, what was told to the employees. "Nelson, Paxson, Carlos, McMinn, Foley, and Owen. The seventh, Department Manager Phillippe, was a supervisor within the meaning of the Act. Respondent has contended that Nelson is likewise a supervisor but the evidence does not sustain this contention. Nelson, who called himself assistant manager or "second man" in the department, in fact spends practically all his time in the performance of such physical tasks as unloading, carrying, cutting, packaging and otherwise handling meat products, cleanup operations, etc., as do the other nonsupervisory employees. On occasion, and apparently in Phillippe's absence, he "prices" meat according to "the mark-up table" and gives work assignments to other employees, but the evidence shows that these responsibilities are routine in character not involving the exercise of independent judgment. There is no suggestion that he is endowed with any of the other supervisory authorities enumerated in Sec. 2(11) of the Act. In his opening statement, counsel for Respondent referred to Owen as a "student" employee. But the evidence shows that both Owen and Foley work many more than their 2 hours per day of student status and otherwise are indistinguishable from Respondent's other regular part time employees. Hence, they are properly included in the unit. "The letter also stated that the Union was filing for an election unless Respondent were agreeable to a "card check ." Apparently the petition was filed but was later abandoned when the Union filed its unfair labor practice charges. "In his brief, counsel for Respondent asserts that these cards should be disregarded on the ground that the signers were among the employees who were told they would have to join if the Union got in. But a careful 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That the meat department constitutes a unit appropriate for collective bargaining is clear. Here, as in other cases determining meat department employees to constitute appropriate units separate from other store departments, there are marked differences between the duties and skills of the meat department employees from those of other store employees, there is a long history of bargaining on the basis of such units in the retail food industry, there is no evidence of interchange or transfer of personnel between the meat and the other departments of the Columbia store, the meat department employees work in a self-contained area distinct from the other departments, the employees concerned plainly desire a separate unit, there is no claim of any competing union to a larger unit including the meat department, and, as I read the record, Meat Department Manager Phillippe runs the meat department with almost plenary authority, that is, only in limited consultation with Store Manager Duren. Under applicable decision, these factors establish the appropriateness of the meat department unit." Respondent's second main defense, that it entertained a good-faith doubt of the Meat Cutters' majority and declined recognition on this ground, has a hollow ring, for the record shows that from the very moment it learned of the Meat Cutters' entry into the picture, Respondent set about, first, to prevent that Union from receiving bargaining authorizations and, once those authorizations were given, to nullifying them. This is the obvious explanation for Phillippe's telling Foley not to sign a card at the first meeting, for his inquiries as to who had signed cards, for the many pressures exerted on Foley and Owen thereafter and resulting eventually in Foley's attempts to regain his card, and for the corresponding coercive statements made to Nelson and Carlos, resulting in the purported defection of Carlos and McMinn. Plainly, by manifold coercive activities along these lines , Respondent, aware that various of these employees had signed up with the Meat Cutters, set out to undermine the employees' attachment to that Union and to prevent a fair election initially sought by that Union. In these circumstances, under principles uniformly followed by the Board and the appellate courts, Respondent cannot be heard to assert that it entertained a good-faith doubt of the Meat Cutters majority. On the contrary, the facts previously found demonstrate that insofar as Respondent rejected the Meat Cutters recognition demand in purported reliance on a doubt as to majority, it acted in bad faith. Accordingly, I find and conclude that Respondent's denial of recognition violated Section 8(a)(5) and (1) of the Act. scrutiny of Tritschler's testimony shows that he was being interrogated specifically about what was said to employees solicited to sign cards of the Retail Store Union (see is ., pp. 314-317). The circumstances under which the meat department employees signed their cards on the evening of January 29 were explored by counsel without producing any indication that any such statements were then made by Union Representative Wolff, Tritschler (who was present) or anyone else. "Respondent refers to elements of centralized administration of all its stores in asserting that only its entire chain constitutes an appropriate bargaining unit. The short answer is that while these centralization factors are entitled to and have received my consideration , and lend some support to a claim that the entire chain is an appropriate unit, they do not outweigh or cancel out the other circumstances of this case establishing that the meat department is an appropriate unit also . That is all that is necessary to decide. D. The Charges of Discrimination 1. The change in Tritschler's day off Tritschler testified that at an approximate time which, according to his description must have been in the latter half of February, and when Tritschler was working as a "checker," Duren came up, slammed his fist on the conveyor, and told Tritschler his day off was being changed from Saturday to Wednesday; and that, after starting to walk off, Duren returned and told him the reason for the change was that he needed another checker because two girls were leaving (Respondent's employment, I infer). The complaint charges that Respondent (Duren) thus shifted Tritschler to a less desirable day off in retaliation against him because of his union activities. On the record before me I conclude that this charge should be sustained. Various aspects of Tritschler's testimony previously described indicate that Duren held Tritschler in rather high regard prior to his initiation of the union movement, but that thereafter Duren's attitude toward Tritschler changed to one of hostility. Indeed, about a week prior to this incident Duren had specifically referred to the favor he had done Tritschler in allowing him Saturdays off, while uttering a veiled threat to retaliate against him for having let Duren down. Duren's slamming his fist down on the conveyor when announcing the change to Tritschler certainly was indicative of his anger toward Tritschler. The General Counsel's evidence thus warrants an inference that Duren's previously declared intention to retaliate became operative on this occasion, and Respondent was obliged to come forward with evidence explaining the change on nondiscriminatory grounds if that were the case. This it did not do since Duren made no reference to this incident in his testimony.6° Accordingly, I find that Respondent was motivated by a discriminatory purpose in making this unfavorable change, in violation of Sections 8(a)(3) and (1) of the Act.63 2. The discharge of Tritschler William G. Haynes, Respondent's attorney, interviewed at the store various of Respondent's meat department and nonmeat department employees following the service on Respondent of the respective charges filed by the Unions.36 There is no charge that these interviews were conducted in a manner violative of the Act. Haynes interviewed Tritschler on March 21, in the back room of the variety department. Present during the significant portions of this interview was Harold D. Ryan, personnel manager of the parent Dillon Company. At the outset of the interview, Haynes informed Tritschler of the investigative purpose of the interview and asked for Tritschler's cooperation, but informed Tritschler of his right not to be interviewed if he so chose. Haynes then handed Tritschler a handwritten sheet67 expressing these and other points, which Tritschler signed, as had other employees previously interviewed by Haynes. As Haynes 'ffritschler's testimony that Duren told him the change was necessary because two girls were leaving is not the equivalent of testimony by Duren demonstrating a need to make the change for such reasons. "Tritschler admitted on cross-examination that he had worked on some previous Saturday because of a personnel shortage but Respondent's asking Tritschler merely to fill in on one day is not the equivalent of permanently changing his day off. "See Resp. Exh. 2 and 6. "See Reap. Exh. 2. GERBES SUPER MARKETS began questioning Tritschler about the Retail Union's charge of March 1268 (which alleged, inter alia, that Respondent had discriminated against Tritschler in changing his day off and in revoking a previously approved leave of absence) Tritschler told Haynes that he wanted a copy of what he told Haynes during the interview. Haynes replied that he did not yet know whether he would take any statement from Tritschler, and when Tritschler repeated his demand, Haynes told Tritschler he would give Tritschler a copy of anything he put in a statement for Tritschler's signature. The interview then proceeded, and when Haynes engaged in some writing following Tritschler's answers to the initial questions, Tritschler demanded that Haynes make a copy for him. Haynes replied that he would mail a copy to Tritschler. Tritschler insisted on receiving a copy "then" (presumably as the interview proceeded), and Haynes then handed Tritschler a tablet and proposed that Tritschler make a copy as they went along . Tritschler declined, telling Haynes to write the statement; the interview then proceeded with Haynes engaging in further writing. At the end of the interview Haynes handed to Tritschler a five-page statement (Resp. Exh. 4) which Haynes had written up and which Haynes asked Tritschler to read and to sign if he was satisfied that it correctly reflected what he had said in response to Haynes' questions. Tritschler read about half of the proposed statement and then asked Haynes for a copy. Haynes replied that he would send Tritschler a copy in the mail. Tritschler rejected this proffer, insisting either that he then be given a copy or that Haynes give him a signed statement to the effect that he would receive a copy by mail. Tritschler still had the proposed statement in his hands at this juncture and asserted that he would retain the document unless one of these conditions was met. Haynes replied that Tritschler would have to take his word that Tritschler would receive a copy by mail and told or asked Tritschler to leave the document there unsigned if he did not wish to sign it. In response Tritschler said he would keep the document. An undoubtedly acrimonious argument then developed between Tritschler and Haynes as to whether Respondent or Tritschler was entitled to possession of the document following which Haynes walked over to Tritschler, who had then started to leave the room with the document, and said he was not going to let Tritschler leave the room with it. Tritschler asked who was going to stop him whereupon Haynes said he was and grabbed Tritschler's left wrist. (Tritschler, taller than Haynes, was then holding the statement in his right hand held above his head.) Tritschler then told Haynes that an employee outside the room was observing what was going on. Haynes then let go of Tritschler's wrist and as Tritschler proceeded out the room, Haynes told him that if he went out the door he might as well keep going right out of the store because he was "through." Tritschler then left the room with the document in his possession and went back to work. Shortly thereafter, Haynes and Ryan approached Tritschler, who refused successive requests of Haynes and Ryan that he return the document to them, unless he was either given at that time a copy or signed statement that he would receive one in the mail. On these occasions Haynes told Tritschler that if he would hand over the statement the whole incident would be forgotten but that if he refused he was engaging in insubordination which Haynes would have to report to Imhoff and Hayes.S9 "G. C. Exh. I-E. 27 Ryan then arranged for Imhoff and Hayes to come immediately to Columbia and upon their arrival a conference took place among them and Haynes, Ryan, and Store Manager Duren, at which Ryan recounted what had taken place during Haynes' interview session with Tritschler. Tritschler then was called in to meet with this group (but with Haynes absent). Ryan then recounted again what had happened in the interview session, an account which, with some addition made by Tritschler, Tritschler confirmed was correct. In the further course of this meeting, Personnel Manager Hayes told Tritschler this was a serious incident - an act of insubordination - for which Tritschler could or would be terminated unless he gave the statement back. For his part, Tritschler again said that he was not going to help build a case against the Union and that he could not return the document even if he wished to because, as was the fact, he had given the document to Union Representative Sacks during the preceding lunch hour.60 Hayes again emphasized to Tritschler the seriousness of the incident and the Company's unwillingness to tolerate this type of action by any employee; Tritschler inquired whether he was discharged; and Hayes told Tritschler to return to his work and he would let Tritschler know. There then took place a further conference between Imhoff, Haynes, Ryan, Hayes, and Duren, following which (but with Haynes absent) Tritschler was again called in, On this occasion Hayes again gave Tritschler an opportunity to change his mind - to return the document - and when Tritschler declined Hayes notified Tritschler that he was terminated. While the complaint broadly charges that Respondent discharged Tritschler because of his "union and/or protected and concerted activities," in his brief counsel for the General Counsel makes no contention that Respondent discharged Tritschler because of his instigation of and leading role in the Union's organizational campaigns . Rather, counsel for the General Counsel concedes in his brief that Respondent discharged Tritschler because of his refusal "to surrender the statement" and, asserting that Tritschler was privileged under the Act to retain the document, contends that on this basis the discharge violated the Act. Counsel's theory is that since, as is well established under Board decision, an employee's participation in an employer's pretrial investigative interrogation must be voluntary," Tritschler could impose upon his cooperation any conditions he saw fit and thus could, even after the interview was concluded, retain possession of the statement counsel for Respondent had prepared unless the demands he had previously made - that he be immediately given a copy of the proposed statement or written assurances that he would receive a copy - were met." In short, the General Counsel asserts that compliance with such a demand is required by the Act as an incident of the employer's duty to procure the employee's cooperation with employer-conducted investigative interviews only on a voluntary basis. "In this conversation, when Haynes remonstrated with Tritschler for his lack of cooperation, Tritschler replied that he was not going to "build any case for you guys." "In the ensuing discussion , Hayes asserted that Tritschler's giving the document to Sacks was the same as theft, i.e., that the document was company property because written on company paper, or company time, by a company attorney, with a company pen. "See Johnnie's Poultry Co., 146 NLRB 771, 775. "In his brief, counsel for the General Counsel also asserts that at some point in the interview Attorney Haynes had agreed to Tritschler's demand 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of course, in accord with this principle, Tritschler could have withdrawn from the interview at any time prior to its completion. And I will assume, without deciding the issue since it is not presented, that Tritschler could have refused to sign the proposed statement (if, having fully read it, which in this case he did not do, he considered it correct) unless he were forthwith given a copy or written assurances that he would receive a copy of the statement as signed. But this is not what happened. What did occur is that after the interview was concluded and after Haynes had rejected Tritschler's conditions, Haynes first and later Ryan and Hayes requested Tritschler to return the document unsigned, which Tritschler refused to do unless his conditions were met. With Respondent then not insisting that Tritschler sign the document his conditions had become academic; his only choice in these circumstances was to return the document, which represented merely the work product of Respondent's attorney - his record of the interview - to which Respondent was certainly entitled and which it must be presumed was of value to Respondent. Tritschler's refusal to return or to attempt to facilitate the return of the document was unjustifiable conduct which Respondent could fairly characterize under the "unsubordination" heading, and for which Respondent could and, as I find, did discharge Tritschler. Accordingly, I will recommend that this allegation of the complaint be dismissed. THE REMEDY Having found Respondent in violation of the Act in numerous particulars as charged in the complaint, various of which represent serious infringements upon the rights of its employees under the Act and manifest a propensity in that direction, the injunctive portions of the order I recommend, as set forth below, contain a broad cease and desist provision coterminous with Section 7 of the Act. As affirmative relief which I find necessary to remedy Respondent's violations, my proposed order requires Respondent, upon request, to bargain with the Meat Cutters Union as the representative of the meat department employees. Such a requirement is required by Respondent's violation of Section 8(a)(5). But in the circumstances of this case, I also consider such an order necessary to remedy Respondent's other serious infringements of the Act, aimed as they were at undermining and obstructing the employees' desire for collective-bargaining representation. Hence, the bargaining order should issue even if no violation of Section 8(a)(5) were found. The order likewise requires the posting of notices and similar customary provisions necessary to effectuate the policies of the Act. Upon the foregoing findings and conclusions, and upon the entire record, I recommend pursuant to Section 10(c) of the Act that the Board issue the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, all as more particularly found above, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 2. By changing employee Tritschler's day off from Saturday to Wednesday, as more particularly found above, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and 8(a)(1) of the Act. 3. All full time and regular part time meat department employees employed at Respondent's store in Columbia, Missouri, excluding all other employees, office clerical employees, and supervisors within the meaning of the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since January 29, 1968, the Meat Cutters Union has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 8, 1968, to recognize the Meat Cutters Union as the exclusive bargaining representative of Respondent's employees in the aforesaid unit Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as found in the preceeding portions of this Decision, Respondent has not engaged in unfair labor practices charged in the complaint. early in the interview that he be given a copy of the statement "then." But there is no evidence that Haynes concurred in this demand ; indeed, the evidence is to the contrary. ORDER Respondent, Gerbes Super Markets, Inc., its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Discouraging membership in Local 655, Retail Store Employees Union, AFL-CIO, or any other labor organization by discrimination in regard to hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating employees relative to their knowledge of or their attendance at (or their plans concerning attendance at) union meetings, or relative to occurrences at union meetings, or relative to their receipt or possession of union literature, or otherwise relative to the union affiliation, activities, or sympathies of any of its employees. (c) Coercively interrogating employees relative to whether employees of Respondent have been in contact with or have been interviewed by agents of the National Labor Relations Board. (d) Requesting employees to attend union meetings for the purpose of supplying Respondent with corresponding information. (e) Engaging in surveillance of the union meetings or union activities of its employees, or creating the impression among employees that it has their union activities under surveillance. (f) Promising or holding out to its employees the prospect of granting them wage increases or other benefits for the purpose of encouraging them not to designate a union as their bargaining representative. (g) Threatening its employees with discontinuance of Respondent's profit-sharing plan, or with loss of employment, or with discontinuance of the meat-judging class, or with closing the store, or with any other reprisal if they designate a union as their bargaining representative. (h) Telling employees not to sign union cards. GERBES SUPER MARKETS (i) Utilizing an employment application form which questions applicants for employment concerning their membership in labor unions. (j) Soliciting employees to withdraw their union representation authorization cards or rendering corresponding assistance to employees so solicited. (k) Refusing to recognize Local 576, Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, as the exclusive representative of all its employees in the unit described in paragraph 3 of the above "Conclusions of Law" for the purposes of collective bargaining. (1) In any other manner interfering with, restraining or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organizations or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Local 576, Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, as the exclusive representative of all its employees in the unit described in paragraph 3 of the above "Conclusions of Law" with respect to wages, rates of pay, hours of employment and other terms and conditions of employment, and embody in a signed contract any agreement reached. (b) Post at its store in Columbia, Missouri, a copy of the attached notice marked "Appendix."6' Copies of said notice, to be furnished by the Regional Director for Region 17, after being signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous 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 said Regional Director, in writing, within 20 days after receipt of this Decision, what steps have been taken to comply herewith.61 IT IS HEREBY FURTHER ORDERED that the complaint herein be and it hereby is dismissed in respect to violations charged but not specifically found herein, including, without limitation, the charge that Respondent discriminatorily discharged Nolan Tritschler. "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 said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES 29 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 discourage membership in Local 655, Retail Store Employees Union, AFL-CIO, or any other labor organization by discrimination in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate employees relative to their knowledge of or their attendance at (or their plans concerning attendance at) union meetings, or relative to occurrences at union meetings, or relative to their receipt or possession of union literature; or otherwise relative to the union affiliation, activities, or sympathies of any of our employees. WE WILL NOT coercively interrogate our employees relative to whether agents of the National Labor Relations Board have been in contact with or have interviewed any of our employees relative to charges filed against us under the National Labor Relations Act. WE WILL NOT request employees to attend union meetings for the purpose of informing us concerning what takes place at such meetings. WE WILL NOT engage in surveillance of the union meetings or activities of our employees, and WE WILL NOT create among or give to our employees the impression that we have their union activities under surveillance. WE WILL NOT promise or hold out to our employees the prospect of granting them wage increases or other employment benefits for the purpose of encouraging them not to designate a union as their bargaining representative. WE WILL NOT threaten our employees with discontinuance of our profit-sharing plan, or with loss of employment, or with closing our Columbia store, or with discontinuance of the meat judging class, or with any other reprisal, if they designate a union as their bargaining representative. WE WILL NOT tell employees not to sign union cards. WE WILL NOT use an employment application form which questions applicants for employment concerning their membership in labor unions. WE WILL NOT solicit any of our employees to withdraw their union representation authorization cards. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of their rights to join or assist Local 576, Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, or Local 655, Retail Store Employees Union, AFL-CIO, or any other labor organization, or to designate any such labor organization as their collective bargaining representative. WE WILL, on request, recognize and bargain with Local 576, Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, as the exclusive bargaining representative of all our employees in the following described appropriate bargaining unit: 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All fulltime and regular parttime meat department employees employed at our Columbia, Missouri, store, excluding all other employees, office clerical employees , and supervisors within the meaning of the National Labor Relations Act. Dated By GERBES SUPER MARKETS, INC. (Employer) All our employees are free to become , remain, or refrain from becoming or remaining , members of any labor organization , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. (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 816-374-5282.