The Great Atlantic & Pacific Tea Co., Inc.

GREAT ATLANTIC & PACIFIC TEA CO. 645 The Great Atlantic & Pacific Tea Company, Inc. and Retail Clerks International Association, Local 458, AFL-CIO. Cases 15-CA-3811 and 15-RC- 317 August 13, 1971 DECISION, ,ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 8, 1971, Trial Examiner Davis S. Davidson . issued his ,Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that, it cease and desist therefrom and take certain affirmative action,, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found-that the Respondent had not engaged in certain other unfair labor practices alleged in,the_ complaint, and recommended that such allegations be dismissed. In, addition, -the Trial Examiner found that the conduct of the Respondent had interfered with the election held in -Case 15-RC-4317 and recommended that said election ' be set aide and a new election ordered .' Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and briefs in support thereof. The Respon- dent filed an answering brief to the General Counsel's exceptions and the Charging Party filed an answering brief to the Respondent's exceptions. Pursuant to the'-provisions of Section 3(b) of the National Labor Relations ' Act, as amended, the National Labor - Relations Board has delegated its powers in connection with these cases to a three- member panel. 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 these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below. We do -not agree with, the Trial Examiner that in the circumstances of these cases the Employer's withhold- ing of the wage increases was a violation of Section 8(a)(1) of the Act. The -evidence relied ,.upon .by the Trial Examiner consists of several previous wage increases that were granted to the employees and the fact that the employees might-have received another -raise at about the time the election was to take place. The Respondent points to the outstanding court order' enforcing the Board's-earlier decision2 involy- ing the Mobile area stores and the fact that it acted pursuant to advice of counsel as special justification for its decision, to, withhold, the increases. -The Respondent also contends that it was entitled to withhold the wage increases because it could not point to any specific, date when it gave increases in the past and could not point to any specific amount of,increase that it normally granted. It is true that Respondent had not given increases on the same-date each year in the past, although it had in the previous years granted increases soon after they ,became effective under the National Food Stores agreement. Upon the advice of its attorneys of the possible effects of the court decree; Respondent gave .no general pay increase during the course of the Union's campaign. Its supervisors were instructed not to discuss with employees the reasons why such a pay increase was not being effectuated at that time. When ,the petition in the instant case was,filed, a Mobile wage survey had not begun and no decision had been reached concerning a wage increase.-The decision not to give a wage increase during the organizational campaign was based on the absence of a provable pattern of the amount or time of an increase in the Mobile area. Since Respondent could not designate any particular date or amount for a wage increase which could be definitively shown, as that which would have occurred absent the campaign, it decided against giving any increase. The Trial Examiner recognized that Respondent could lawfully withhold any action on a wage increase during the union campaign, based upon its desire to void the appearance of interference and the commis- on of an act which would be considered an unfair abor practice. His only basis for his conclusion that unfair labor practice had been committed was that espondent made no announcement to the employ- that its policy had changed andthat the employees ould receive the raise regardless of how they voted in the election. Respondent had made no prior promise of a wage increase. Employees simply were aware that `4increases had been given in the spring in previous to the Trial Examiner, we do `not ears." Contrary f d that Respondent had an affirmative duty under e facts in this case to explain a postponed wage crease that never had been promised, where no specific date could be set for a wage increase because ere was no established past-practice from which it uld be concluded with any degree of certainty when al wage increase would have _ been given., It is not ' N.LRB. v. The Great Atlantic & Pacific Tea Company, 408 F.2d 374 tq abandon support of the Union or to work against the union. (C.A. 5,-1969). The relevant portion of the order barred Respondent from 2 167 NLRB 776. promising or granting wage increases or other benefits to induce employees 192 NLRB No. 83 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD unlawful per se for an employer to deny wage increases during a union organizational drive, for otherwise: it may be-accused of attempting to influence employees to decide against being repre- sented by a collective-bargaining representative. Thus, an employer's action in postponing the grant of a wage increase may be taken to avoid the appearance of ` attempting to influence the employees' decision concerning 'their representation for purposes of collective bargaining. We hold that there has been no interference in this -case with the employees' rights under the Act." Accordingly, we find that the Respon- dent's postponement of the wage increase without an explanation therefor and at a time.when the Union's organizational campaign was' about to be resolved m ,a scheduled Board-conducted election was not violative of Section 8(a)(1) of the Act. In reaching this conclusion we specifically note that there is no evidence ,to, indicate that Respondent in any way sought to scapitalize on.the absence of a wage increase by connecting the absence with the Union or the employees' support of the Union. THE REMEDY We - have found in -agreement with the Trial Examiner that Respondent engaged in conduct violative of Section 8(a)(1) of the Act and accordingly we adopt his remedial recommendations in that regard. However, we have found, contrary to the Trial Examiner,, that the 'Respondent did 'not violate Section 8(a)(l) of the Act because Respondent withheld wage increases until after the election. CONCLUSIONS OF LAW 1. The Great Atlantic- A PacificTea Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of 'the Act. 2. Retail Clerks International Association, Local 458,; AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively . interrogating, employees with respect to their union sympathies; by instructing employees, not to display union buttons while at work; and by holding an employee up to ridicule by his fellow employees and threatening him with reprisal because of his union. activities Respondent has engaged in and is engaging in unfair labor practices affecting commerce ; within. the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words m the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" ORDER Respondent, The Great Atlantic, & Pacific Tea Company, Inc., Mobile and Prichard, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees as to their union membership, desires, "or activity. (b) Instructing employees not to display union insignia while at work. (c) Holding employees up to ridicule by their fellow employees and threatening them with reprisals be- cause of their union activities. (d) In any like or related manner interfering with, restraining, or coercing its employees in the--exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Boar'dfinds will effectuate the policies of the Act: (a) ' Post at its stores in 'Prichard and Mobile,, Alabama, copies of the attached notice marked "Appendix." 3 -Copies of said 'notice, 'on johns" provided by' 'the Regional Director for Region 15, after, being` duly signed by Respondent's authorized representative, shall' be posted by it immediately upon receipt thereof, and'' be maintained by it for 60 consecutive days thereafter, m conspicuous 'places, including all places where notices, to employees are customarily, posted. Reasonable steps shall be taken by Respondent to insure that `said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the date'of this Order, what steps the Respondent has taken to' comply herewith. IT ](Si FURTHER ORDERED that those portions of the complaint as to whichno violations have been found be hereby dismissed. IT IS FURTHER ORDERED that the election held on April' 16,1970, be, and it hereby is, set aside. DIRECTION OF SECOND ELECTION A second election by secret ballot shall be conduct- ed among-the employees in the unit found-appropri- ate, at such time as the -Regional-Director for Region 15 deems appropriate: The Regional Director shall direct and supervise - the' election, subject to National Labor Relations Board- Rules and, Regulations. Eligible to vote are those in the unit- who were employed= during the payroll period immediately preceding the date of issuance of the Notice of Second Election,, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED .STATES COURT OF APPEALS , ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." ' ` GREAT ATLANTIC & PACIFIC TEA CO. engaged in an economic strike which commenced less than 12 months before the election date and who retained their' status as such during the eligibility period and their= replacements. Those in the military services of the United States may vote if they appear in,person-at the pollstlneligible to vote are employees who have quit or been discharged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement thereof, and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been permanently replaced.4 Those eligible shall 'vote I whether or not they desire to be represented for collective-bargaining purposes by Retail Clerks 'International Association, Local 458, AFL-CIO,.' s In order to assure that- all eligible voters may have the opportunity to be informed of the issues in the exercise of their sutory right to vote, all parties to the election should have access to alt of voters and their addresses which may be used to communicate with. them. Excelsior Underwear Inc., 156 NLRB 1236; N.LRB. v. Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 15 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election., No extension of time to file this list shall be granted by the Regional _ Director except in -extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. APPENDIX NOTICE TO, EMPLOYEES POSTED BY ORDER OF THE NATIONAL ;LABOR RELATIONS BOARD An Agency-of -the' United States Government After' a trial at which all parties had the chance to give evidence, the National Labor Relations Board found that we have violated the National Labor Relations Act and ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join; or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual' aid or protection To ref rain from any or all of these things. WE WILL ,NOT do anything that interferes with these rights. WE. WILL NOT question you about your ,union membership, activities, or desires. WE WILL NOT tell you to remove union buttons while at work. WE WILL NOT hold any of you up to ridicule by 647 any of your fellow employees because of your union activities. I WE WILL NOT threaten you with reprisal-because of your union activities. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted-for 60 consecutive days from the date of posting-and must not be altered, defaced, or covered by any othermaterial. Any questions concerning this notice 'or compliance with its, provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF TIM CASE DAVID S. DAVIDSON, Trial Examiner: The charge in Case 15-CA-3811 was , filed by Retail Clerks International Association, Local 458, AFL-CIO, referred to herein as the Union, on May 12, 1970, and the complaint issued on July 23, 1970, alleging that Respondent violated Section 8(aXl) of the National Labor Relations Act; as amended, by withholding a general wage increase from employees and by the 'conduct of several of its supervisors. Respondent denies the commission of any unfair labor practices. - The petition in -Case 15-RC-4317-was filed on February 9, 1970.- After a hearing, on March 18, 1970, the Regional Director for Region 15 directed an election among certain of Respondent's employees at its stores in,-the Mobile, Alabama, area to determine whether or not they desired to be represented by the Union for purposes of collective bargaining. The election was held on April 16 , 1970, and resulted in a vote of 42 for the Union , and 60 against the Union. There were 13 challenged ballots and-2 void ballots. Following the election the Unionfiled timely objections to the election. After an investigation, on July 8, 1970, the Regional Director issued a " Supplemental Decision and Order- -Directing Hearing on' ` Objections in which 'he overruled a number of the objections but found that others based on the conduct alleged in the complaint in Case 15-CA-381 1, which- was to issue shortly thereafter; raised issues which could be best resolved after a hearing . On July 23, 1970, the Regional Director-issued an order consolidat- ing both cases for purposes of hearing. The issues raised by the objections are identical to those raised by'the complaint except as to three allegations in,the complaint based- on conduct which occurred after the election and could not in any event serveas a basis for setting-the election aside. -' A hearing was held before me in Mobile, Alabama,- on 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 24 and 25, 1970. At the close of the hearing, oral argument was waived, and the parties were given leave to file briefs. All parties filed briefs. , Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Respondent, a Maryland corporation, is engaged in the retail sale of grocery and meat products at numerous locations including eight stores located in Prichard and Mobile, Alabama, the stores immediately involved in this proceeding. During the 12-month period preceding, is- suance of the complaint, at the stores,involved, Respondent received revenues in excess of $500,000 from retail sales, and purchased good valued in excess of $50,000 which were delivered to these stores directly from points located Outside;-the State of Alabama. I find that Respondent is an employer within the meaning of the Act, and that it will effectuate ` the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Local 458, AFL-CIO, is a labor organization within the meaning of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In the fall of 1966, the Union conducted an organizing campaign -at some of the,stores involved in this proceeding. Charges we're , filed based on the conduct . of certain of Respondent's supervisors and, led to a decision, of the Board' that Respondent had violated the Act and an order requiring Respondent to, cease and ,desist from telling employees .that Respondent would never have a union in its Mobile stores; telling them to work elsewhere if, they wanted-a union; telling certain employees that they were responsible for, initiating union activity, that the,Union was no good and, would do them no good, or that Respondent knew , which employees were working for the Union; requesting employees to abandon the Union or to assist in solicting other employees to abandon or work against the Union; threatening employees with reprisals for union membership; coercively ,interrogating employees regarding employees' union membership, activities, and sympathies; and,-promising or granting wage increases or other benefits to induce employees to abandon support of the Union or to work against the Union." In connection with the quoted portion of the order, the complaint as issued had, alleged only promises of benefit and had not alleged a grant of wage increases as a violation of the Act. At the hearingin that case the General Counsel sought to amend, the 1 The Great Atlantic & Pacifrc Tea Company, Inc., 167 NLRB 776. $ 408 F.2d 374. $ One ' of the stores is located on North Wilson Avenue in; Prichard, Alabama. The remaining seven stores are located on Cottage Hill Road, complaint to include an allegation , based on the grant of a wage increase on April, 29,4967, but . the, amendment was denied, on the ground that Respondent, was given inadequate time prior to the Tearing to prepare its defense. The National Labor Relations , Board's Order was enforced by the Court of Appeals for' the -Fifth` Circuit.2 Before ,the court Respondent' urged that`the' portion of the order requiring it to cease and desist from promising or granting wage increases was unduly broad `because there was no evidence that .Respondent granted benefits to discourage union activity. -However, the court rejected Respondent's contention on the ground, that the conduct barred with respect to granting wage increases was, like or related to the unlawful conduct: found to have occurred in the promise of wage increases. In,the spring of 1970 the Union conducted an. organizing campaign, at Respondent's eight , stores in the Mobile, Alabama, are'a,3 culminating in the`representation election conducted on April `16; 1970. The complaint and _ the objections before me in this case allege conduct similar in some , respects to the violations found in the earlier case. The complaint and objections also allege the withholding, of general wage increases by Respondent because of the-union activity and the pendency of the election. B. Respondent's Instructions to Its Supervisors` On March 9, 1970, Respondent= prepared, a two-page statement signed by Division General Manager Spencer setting forth instructions for its 'supervisors with respect to their conduct during the election campaign. The ,statement referred to the outstanding court order, stated that Respondent's policy was ,not. to commit unfair labor practices, and instructed supervisors not to engage in any coercive or discriminatory conduct. It set forth a number of examples of the kinds of things supervisors were not to do, including the conduct proscribed by the previous order. Each supervisor was asked to.read,the statement and acknowledge by his signature that he had read it, that it had been explained to him, and that he would not engage in activity of the type described-, or other coercive or discriminatory activity. Respondent's attorney was in- structed to go to'Mobile to advise the store managers and supervisors how to proceed and' to 'tell' them ' of the seriousness of the court -order' in the, previous case. In addition, Ralph Daugherty, who had 'general supervision over the grocery departments at allthe stores involved, gave similar instructions orally to ,all°the store managers and assistant managers. He - told= them that they could not discuss the 'Union with employees because it had been determined that =only he,, Harold Davis, who was general supervisor of the meat departments in all the stores, and Claude Robinson, who was produce superintendent for Respondent's entire 'New Orleans division, could discuss union issues 'with the employees or answer any questions employees might raise .4 Daugherty also posted the` following -notice Ao all Moffat Road, Michigan Avenue, Navco Road, Old Shell Road, Springbi f Avenue, and Airport Boulevard, all in Mobile.' ' 4 Daugherty so testified. Daugherty also testified that the supervisors were given similar instructions at the time of the previous campaign. Owen, GREAT ATLANTIC & PACIFIC TEA CO. 649 employees, also signed by -Spencer and dated March 12, 1970.5 TO ALL MOBILE EMPLOYEES: The Retail Clerks Union is again trying to get into the A & P stores in Mobile. We are against the union getting in because we do not believe it would be good for you or the stores. We will explain why we feel this way between now and the election. I want to make certain that you know your rights concerning the union issue and that no one interferes with your rights. You have the right to be against the union. No one can force you to support the union, vote for the union, or join the union against your, will. You do not have to support or join the union to work at A & Pin Mobile. You have the right to join the union, support the union, and vote for the union, if you wish. You have, the right to make your own decisions on this issue free=from any threats, coercion, intimidation, interference, restraint, or discrimination. All members of A & P supervision and management recognize your rights and none has any authority to abridge such rights. If any union representative, company representative, or anyone else engages in any -threats, coercion, intimidation, interference, restraint, or discrimination, please report it -to a member of supervision or management,of A & P. The question of whether or not you want to be represented by the ,union is a serious one. You should not take it lightly. Please take plenty of time, think it through, and be sure you reach the right decision. As set forth below, there is evidence that further specific instructions ,-were given to supervisors with respect to discussion of wage increases. C. Respondent's Policy With Respect to Wage Increases The eight Mobile area stores are in Respondent's New Orleans division, which includes 115 stores located in Arkansas, Louisiana, Mississippi, and Florida. Before 1966 Respondent established schedules of wage rates which applied uniformly to all stores in the division. In September 1966, Respondent decided that its wage policy had become obsolete and was causing Respondent to lose employees to competitors and other industries. Respondent decided accordingly to institute a policy of determining wages on an area basis based on annual reviews of salaries and surveys of rates paid by competitors in the areas in which it operates. The first wage schedule for the Mobile area stores pursuant to the changed policy was adopted in September 1966. That wage schedule applied to a number of other stores in Louisiana and Florida as well.'' an assistant manager, testified that he was told that he was not to ask questions 'of employees but that if employees wanted to talk to him he could listen. S The notice was posted for approximately 2 days at all eight stores. 6 Insofar as appears, Allred Supermarkets, the second chain which had a contract with the Union in the area , entered into its first agreement with the Union in September 1968. 7 Although the named classifications in the National contract differ Since then Respondent has reviewed wage schedules for the Mobile area "stores separately from those of stores in other areas. In the years 1967 through 1969 Respondent conducted surveys of wages in the Mobile area in the spring and granted annual increases. The surveys were keyed to wage changes made by competitors in the Mobile area and particularly to wages paid by two chains operating in the Mobile area which had contracts with'the Union. In March 1967, National Food Stores of Louisiana entered into a new contract with the Union effective March 5, 1967, which provided for wage increases on that date and again on January 29, 1968.6 Respondent placed a new wage schedule in effect- for the week ending April 17, 1967, approximately 5 weeks after the new National wage schedule became effective. Neither the National contract nor Respondent's wage schedule provided for uniform across-the-board increases for employees. Rather both provided for increases in-varying amounts for employees in different classifications and different steps of wage progressions based on length of service for employees in most classifications.7 The rates established by Respondent in 1967 for the most part were ,riot the same as those established by the Nati'onal' contract and were generally somewhat lower. Also the length of time required to progress to _ the top rate in several classifications in the National contract was .shorter than that required under Respondent's schedule. Respondent next placed a new wage schedule in effect for the week ending February, 10, 1968, or approximately I week after the second- wage increase ,provided by the National agreement Respondent continued to maintain different progression schedules for some of its classifica- tions, but its rates drew closer to those. provided in the National agreement. Starting and top rates for a number of classifications became the same, but some differences remained between the rates paid by National and Respondent. In September,1968, Allied Supermarkets, Inc., entered into a contract with the Union which ran until April 5, 1969, and contained a wage schedule substantially identical to that then in effect under the National contract.8 In the spring of 1969, the Union negotiated new agreements with National and Allied. The National-agreement was effective on March 9, 1969, for a 3-year term, and the Allied agreement was effective April 6, 1969, for a 3-year term.9 The National agreement provided for increases in wages on March 9, 1969, March 8, 1970, September 6, 1970, and March 7, 1971. As in the past the increases were not across- the-board but varied from classification to classification and within progression schedules. The Allied agreement provided for wages identical to those in the National agreement, but the effective dates of increases lagged approximately 4 weeks behind the effective dates of the increases provided in the National agreement. from those in Respondent's schedule, comparison of the contract schedules to Respondent's over the period from 1967 to date shows direct correspondence between each of the contract classifications and one or more of the classifications in Respondent's schedules. 8 The Allied, contracts do not cover meat department employees, unlike the National contracts and Respondent's wage schedule. 9 The evidence does not show whether the agreements were reached by their effective dates or later. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In 1969 Respondent adopted a new wage schedule for, the week ending March 29, roughly midway between the effective dates of A he first increases provided in e National and, Allied agreements. In its new schedul Respondent shortened the length of time required to reach the top rate for some classifications, but the, length of time for progression in these classifications remained longer than under ,' the _two- contracts. With the exception, of differences in rates related to the longer progression period for these classifications,,the rates provided in Respondent's wage schedule, largely corresponded to the first year rates set forth in thetwo contracts. D. Respondent's Failure To Grant an Increase in the `Spring of 1970 As set forth, the National and Allied contracts provided for wage - increases on March 8 and April 5, 1970, respectively. Respondent concedes that absent the Union's campaign and the pendency of the representation election it would have conducted 'a survey of wages in the Mobile area and ` would have put a new wage schedule into effect in the spring of 1'970. Respondent's witnesses testified that 'they believed the wage increase 'would 'have become effective during` the first half of April, around the time of the election. They conceded that the contracts were the principal'information they relied'on in making a survey and that they kept copies of contracts on file for use in'making the survey. Inasmuch -as Respondent instituted a new wage schedule a week after the National increases in 1968, when there were no National negotiations, and 2 weeks after the National increases in 1969, when a new National agreement was negotiated, I find that in 1970, when there were no National or Allied negotiations, Respondent's action would have been taken by late March and certainly before' the election.30 On February 9, 1970, when the petition- was filed, Respondent had not started its survey for 1970 and had not made any decision as to the grant of a wage increase in the Mobile area stores. Thereafter, at'a meeting between the division general manager, its assistant personnel manager, and its attorney, Respondent decided on advice of counsel to -refrain from making a wage survey or granting an increase to employees in the Mobile area stores at that time. According to Alvin Truxillo, who was then Respondent's assistant personnel manager, the reasons for-that decision were - that there, was no pattern of amounts or times in granting, increases in the Mobile area and Respondent feared that if it granted increases the Board would find that the grant, of increases was an unfair labor practice. At the ,same time the division general manager and Truxillo decided that a wage increase would eventually be granted, but they made no decision as to its timing or amount. After the election on April 17, on advice of ; counsel Respondent continued to, refrain from acting with respect to wage increases pending action by the Board on the objections to the election. The Regional Director's order 10 1-note in this regard that even in 1967, when there were National negotiations, Respondent's increases became effective approximately 5 weeks after National's increases. Since it was necessary for Respondent to obtain copies of the new contract in years when new National contracts were negotiated, the delay in Respondent's action was greater in such years directing a hearing on the objections issued on July 8, 1970, and thereafter Respondent quickly completed a survey and put a new wage schedule into effect for-the' week ending July 11, 1970. Respondent notified the employees of the new wage schedule by letter dated July 1-1, 1970, as follows: TO'OUR MOBILE EMPLOYEES: There have been a number of questions asked about the timing of 'the wage increase for our employees. In this letter we will try to answer your questions. " As you know, it can be an unfair labor practice for a company to give a raise when there is union organizing activity going on. Union organizers have been after you for months and this union situation is still'dragging on. A & P obeys the law and we do everything we possibly can to avoid unfair labor, practices. We have just been notified,by the LaborBoard that it will be necessary to have more hearings on the union's charges and objections. This will, probably mean more appeals and delays before we can get this issue settled. We decided it was not fair, to you for you to be penalized any-longer by this legal situation. The union made a big grandstand play a few weeks ago by sending us telegrams saying they did not object to our giving you a raise. They waited a-very, long time before stating such a position. You will recall they said nothing like that before the' - The union's telegrams do)not protect-A & P from unfair labor practices. We could still be charged with an unfair labor practice forgiving you the pay 'increase now but we decided to go ahead and accept whatever risk is involved: We are trying our very best' to be fair with you and obey the law. The July 11, 1970, wage schedule , eliminated prior differences in progression periods between' the National contract and Respondent's schedule. As in the past it did not provide for uniform- across-the-board increases., With only a few exceptions, the rates ^ provided were identical to those contained in the National agreement. However, as noted above, the National agreement provided for two increases during 1970, in -March and September, for the first time since Respondent's wage policy changed in 1966, and the rates in Respondent's new schedule corresponded to the rates scheduled ' to become effective under the National contract'in September, 2 months later." Apart from the July 11 letter, there is no evidence that before or after the election Respondent undertook to discuss with its employees as a group by letter or' orally its decisions 'or-policies with respect to wage increases. The store managers and supervisors were told that they could not discuss wage increases with employees and that if asked about increases they were, to say they could not discuss the subject. The supervisors were told before the election why the wage increases normally granted in the spring were not being given, but they were 'also told not to discuss those than in years when there were contracts in effect. But even a 5-week delay in 1970 would have resulted in 'increases for Respondent's employees before the election. 11 There is,no contention that the July 11 grant of increases violated the Act. GREAT ATLANTIC & PACIFIC TEA CO. reasons with employees. The supervisors were not told when the increases would be given.12 The employees were aware that increases had been given in the spring-in previous years at the time of increases given under the National and Allied contracts, and during the preelection period several employees asked supervisors questions about increases. Four to,six weeks before the election Patterson Owens, an employee at Springhill Avenue-store, asked for a raise and was told by Robinson that he could not discuss a raise at that- time, because, of the election and that it was against company policy to give a raise at that time.13 On April 10, 1970, Area Supervisor Daugherty read a letter to a small group of employees at the Airport Boulevard store. Paul Riise who was in the group asked when the employees were going to get raises. Daugherty said that Respondent could not, give raises because of the election and that it would be a violation for it to do so.14 Ruse then asked why meat department heads, who were excluded from the unit as supervisors, received increases. Daugherty did not answer, but Area Supervisor Davis stated that the meat.department heads had been put in for raises previously and that it took time as raises did not come through right away.15 Riise had asked about raises before the petition was filed and was told at that time that the employees would probably receive them in March. Apart from the evidence as to these statements by Robinson and Daugherty, there is some additional evidence of statements by Davis concerning wage increases in conjunction with conduct alleged to violate Section 8(a)(1) which is set forth below. E. The Alleged Violations of Section 8(a)(1) of the Act by Respondent's Supervisors 1. Harold Davis a. Based on a conversation between Area Supervisor Davis and employee Annie Mearl Innabnit on April 1 or 2, the complaint alleges that Davis promised Mrs. Innabnit that if Respondent won the election the employees would receive everything Respondent promised them, that Davis solicited her to so inform other-employees in order to induce them to vote against the Union, and that Davis 12 These findings are based on the testimony of Robinson and Davis which I have credited in this regard . To the extent that Daugherty's testimony is in conflict as to what the supervisors were told, it is not credited, as indicated below. 13 Owens so testified. Robinson denied that he told any employee why they were not getting the increase , but did not otherwise contradict Owens in this regard. I have credited Owens. Owens also testified to another conversation with Robinson concerning a step increase he received pursuant to the progression schedule about 2 weeks before the election. There is no contention that the step increase or Robinson's statements at that time were improper. 14 According to Riise, Daugherty did not say what would be violated by raises. 15 Riise so testified. Daugherty denied that he explained to any employee why increases could not be granted and testified that he told Ritse only that he couldn't discuss wage increases at that time . Davis was not questioned about this incident. Contrary to Robinson and Davis, Daugherty testified that Robinson had told him simply that he could not discuss wage increases with employees , and that Robinson did not tell him why Respondent could not grant increases. Surprisingly, although Daugherty read the same letter to a number of groups of employees, he could not recall any aspect of its contents when he testified . I do not credit 651 interrogated her concerning her union activities, sympa- thies, and desires. Both Mrs: Innabnit .and Davis testified concerning the conversation. Although their testimony is in conflict as to criticalportions ,of their conversation, there is no dispute that the conversation occurred and concerned the Union. I have credited Mrs. Innabnit as to the initial portion of their conversation and find that Davis approached Mrs. Innabnit in the back ,of the Moffat„Road store during her lunchbreak and asked her how she was doing, stating that she seemed to have a lot on her mind and-he wanted to know what it was. She replied that she and her husband had been sick and that she did have a lot on her mind. Davis then said, "You know what I'm talking about," and pointed to an election notice posted nearby. She relied that she hadn't given the Union a second thought' and that if Respondent had, done what it had promised the union organizing wouldn't have gone that far.16 I have difficulty, however, crediting , the remainder of Mrs. Innabnit's testimony, not so much because she impressed me as untruthful as because her cross-examina- tion showed that her initial brief version of the 'conversation omitted a great deal of it, was considerably telescoped, and may well have represented her own summary` of what she thought Davis was driving at rather than an accurate recollection of what was said . For purposes of resolving the conflict between her `testimony and Davis', it would have been helpful if the critical portions of her initial testimony had been placed in context onn redirect examination in the light of her cross-examination by' redeveloping her testimony as an orderly whole. However, this was not done, and on the record as it stands it is "impossible to integrate her direct testimony with her cross-examination . Despiie a curious inability of Davis on redirect examination to recall matters as to which he had already testified, I have concluded that I cannot credit `Mrs. Innabnit as' to the remainder of their conversation to the , extent that her testimony conflicts with Davis', and I credit Davis as to 'the remaining material portions of their conversation. I find that, after some discussion of whether Respondent had made certain promises, Mrs. Innabnit asked Davis when Respondent was going to give salary increases, and he replied that he was not at liberty to discuss increases. Mrs. Daugherty's testimony that he was not told the reason why the increases were withheld. Although, as indicated below, I have not credited Ruse's testimony in other respects, I find Daugherty's denial, as to the April_ 10 conversation unpersuasive and credit Ruse in this regard. 16 Although Davis' version of this portion of their conversation differed, he conceded that he mentioned the election notice,- that he then told her that he would like to think she was supporting the Company "and that I don't think she answered." The quoted portion of his testimony strongly indicates that he also viewed his opening remarks as an inquiry into Mrs. Innabnit's thoughts about the Union. After Mrs. Innabnit had testified as to Davis',initial inquiry, the General Counsel through a series of questions attempted to elicit further testimony from her concerning conversation about her thoughts about the -Union. Mrs. Innabnit testified that a question was asked but that she could not recall what it was, She ultimately was led to testify that Davis asked her what she thought about the Union. However, from her testimony as a whole, it appears that she was referring to Davis' initial question, and her difficulty in answering these questions appeared to stem from their implied premise that Davis had asked her a second question about her thoughts in so many words. I find that Davis' only question was that to which she initially testified in describing the beginning of their conversation. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Innabnit pressed him to talk about increases, and Davis again stated that he could not discuss them, adding that Respondent was under court order not to discuss them. She asked what` the court order involved, and he explained that the' court had ordered' Respondent not to commit unfair labor practices, comparing a violation of that order in seriousness to the commission of a crime. She expressed the view that if there was no salary increase, a lotof employees would vote for the Union. He said that they might, but that he could not discuss it with her, and that he thought all=the employees realized why Respondent could not give salary increases. She stated that she did not know, and he` told her that she would have to read between the lines. At some point ' Davis also told her that Respondent had been competitive in the area in its salaries and that it was its policy to continue to be competitive. `Davis did not ask Mrs. Inhabnit-to talk to other employees and urge them to vote against the Union. b. Based on another conversation between Davis and Robert Clark the complaint alleges that Davis promised an employee that its, employees would receive a wage increase as soon as the election was over. Davis spoke with Clark on the day before the election and showed Clark several timecards' of employees at Respondent's Opelousas, '`'Louisiana, store which was represented by a union. The timecards showed that several part-time employees had had their weekly earnings almost or entirely offset by union-related deductions for the weeks they `covered. Davis pointed out what ' the timecards showed. Davis told Clark that Respondent did not have to meet any of Respondent's demands, that he could go out on strike, and that it would be pretty `hard on him with a family getting started. Davis also 'mentioned a warehouse supervisor in 'New` Orleans who Davis said was retiring because he couldn't take having' to deal with the Negro stewards the union had-chosen. According to Clark, Davis also said that if it was more money Clark wanted, he couldn't 'say anything but that raises were coming in',- later as soon as the election was over and settled with and not to worry about it because they would get the money soon. Davis denied that 'he said anything about wages at that time, but testified that 2 or 3 weeks earlier in a conversation in which the Union was not mentioned he may have told Clark that rates had been competitive and would continue to be competitive. When asked what he meant by-that,-'Davis testified, "When we are permitted to give a raise,legally, ;then our raise would be as high as other people's. We have always paid,the rate as high as any in town." There is basis to believe that Davis was more accurate than Clark as to the timing of his conversation with Clark about wages and that Clark may have combined two conversations into one in recalling them,17 but the timing is not critical, as even in Davis' version, the' discussion of wages occurred 2 to-3 weeks before the election. Although Davis testified that there was no mention of the Union in that , conversation, I -find it highly unlikely that Davis 17 Davis gave 'a, statement to a union representative on April 19 in support of the Union's objections in which he described the April 15 conversation without mentioning any discussion of wage increases. u: Riise and Daugherty both testified that Daugherty told him of merely made an isolated remark about competitive wages without indicating at least, as he didito Mrs. Innabnit, that he was not free to discuss wages at that time. I credit Clark, who impressed me generally as truthful, that Davis, told him that he could not discuss wages at that time and find in this at least an implied reference to the pendency of the election. As between the two versions otherwise, the question is whether Davis told Clark, as Clark-testified, thatraises -were coming in later as soon as the election was over and,settled and not to' worry` because they would get the money soon, or whether, as Davis testified, he told Clark wages had been competitive and Would continue to be. There is really little difference in substance between the two 'versions, and Davis' explanation of what he meant by^his remarks comes even closer to Clark's recollection of ° what Davis said. Whether or not Clark's recollection represents a verbatim restatement of Davis' remarks, I credit Clark and find that Davis conveyed to Clark an assurance that he need , not worry about wages because after the election was over -and settled the raises would be granted: At the same time I credit Davis that in the course of this assurance ' he mentioned Respondent's policy of paying competitive wages. 2. Ralph Daugherty Based on testimony concerning a conversation between Daugherty and employee Paul Riise at the Airport Boulevard store, the complaint alleges that, on March 31, Daugherty orally promised anemployee that if he urged other employees to vote against the Union it would help him -to obtain abetter position and that Daugherty created an impression of surveillance by stating that he knew how another employee would vote in the election. Some months before March 31 Ruse asked Daugherty about the possibility of getting transferred to a job in Respondent's New Orleans office. Daugherty said he would inquire and did so, but received, no reply. Thereafter, Riise asked Daugherty ''about the transfer 'on several occasions, and Daugherty replied that helad not heard but assumed there were no openings. , ,Around' March 1, Riise told Daugherty he almost 'had to know whether he could be transferred. Daugherty told Riise he hadn't`heard recently but would write to Robinson and get a definite answer. On March 6, Daugherty received a' letter- from Robinson stating that there were no openings: Daugherty so informed Ruse. There was no discussion- of the Union in this conversation.18 Ruse testified ' that on March 31 he again asked. Daugherty fora transfer, to Respondent's New Orleans office. According`' to Riise, Daugherty replied that there were going to be changes at higher levels of management which would result in openings at lower levels for-,which Ruse could probably qualify. Riise testified that Daugherty then said ;that the election was coming up and that he needed his, support. He testified that Daugherty asked him to talk to the employees, especially the part-time employ- Robinson's letter at that time. Ruse was not questioned as to , whether he had indicated shortly before that'he had an urgent' need for an "answer, but Daugherty so'testified'without contradiction. - GREAT ATLANTIC & PACIFIC TEA CO. ees,,to persuade them to vote against the Union, and said that doing so would help -him to get a job in the office. According to Riise, he,- Riise, then named several employees, said that he would talk to them, and stated that he believed that they would vote for Respondent. Ruse testified that he then said he did not know about Larry Kerns, an employee; and Daugherty told him not to worry because he knew about Kerns.1s , Daugherty testified that he spoke to Riise at the Airport Boulevard- store, but his 'version of the conversation differed sharply from Ruse's. According to Daugherty, Ruse approached him and told him that since Respondent could not give raises at that -time, it would hurt its chances of winning the election. He testified that he replied that he could not discuss raises with Ruse. Daugherty testified that Ruse went on to tell him of representations the Union had made to two employees to the effect that they were not receiving everything they should from Respondent. Ac- cording to Daugherty he said little or nothing in response. Daugherty denied that any mention was made of Ruse's request for a transfer or that any mention was made of Larry Kerns. Daugherty testified that he did not discuss a transfer with Ruse again after giving him what he described as a final answer in-early March. Riise conceded that `after he spoke with Daugherty, and approximately 2 days before the -election, he spoke with Robinson about the possibility of a transfer. He testified that at that time Robinson referred to forthcoming changes in supervision in New Orleans and mentioned a possible job on inventory. While conceding that Daugherty on March 31 and Robinson on April 14 both made statements to the same effect concerning possible openings in New Orleans, Riise 'denied that he had confused Robinson's statements with Daugherty's. Riise testified that he asked Daugherty about the transfer possibilities on March 31 because he had told Daugherty he would check back with him from time to time to see if there were any openings, and that he asked Robinson or Daugherty about it every month or two.2° The credibility issue raised by this testimony is not easily resolved. On the one band, as Respondent points out, when placed in the context of his earlier conversations with Daugherty about a transfer,. Ruse's testimony concerning March 31 reveals a troubling lack of continuity. Despite the fact that he had been tolda few weeks earlier, after months of indefinite replies, that Daugherty had heard from Robinson and there were no openings, Riise testified that on March 31 he, simply asked Daugherty for a transfer to the New Orleans office, without reference to their earlier conversations. Similarly, despite the fact that Daugherty allegedly-told Riise on March 31 of the possibility of an opening arising' because of supervisory changes, Riise's brief testimony as to his conversation with Robinson on April 14 fails to indicate that he made any reference to his March 31 ` conversation with Daugherty even when Robinson told him essentially what Daugherty had already told him about- the possibility- of openings developing, If 19 Riise conceded that he knew Kerns was a close friend of Daugherty's son and that they were neighbors. 20 Rise testified that until Daugherty mentioned the letter on March 6, Daugherty answered his questions by -stating that he hadn't heard but assumed there were no openings. On March 6, Daugherty told him he had 653 Daugherty had promised that Riise's help in the election would help him to get a transfer, and .if Ruse seemingly showed willingness to cooperate by volunteering informa- tion to Daugherty, the question arises why Riise next, spoke to Robinson rather than Daugherty in pursuing his desire to transfer. On the other hand, Daugherty's testimony as a whole and his version of the March 31 conversation also leave doubts. As I have already indicated, Daugherty's, version of his response to Ruse on April 10 is not persuasive, his denial that -he, knew why, Respondent was withholding wage increases is in conflict with other testimony, and his inability to remember what was in the letter he read to a number of groups of employees raises considerable question as to his recollection. Although Daugherty denied seeking to elicit employee support for Respondent, he clearly sought to do so in showing the ,Opelousas timecards to employees, and his denial seemed based on a legalistic distinction between a direct and an implicit request for support. With respect to the March 31- conversation, his version portrays Riise as an eager volunteer of information concerning the effect of the union campaign with Daugherty in a totally passive role- and no hint of any explanation for Ruse's eagerness in giving him information to which he made little response. Thus, while Riise's testimony leaves the impression that its parts do not fit together, Daugherty's .testimony creates substantial doubt that it contains everything that was said between them. Perhaps the doubts over Riise's testimony may arise from a simple tendency on his part to compress the introductory portion of his conversation with Daugher- ty and the failure to develop 'completely his' later conversation with Robinson. But the doubts raised by Ruse's testimony are sufficiently substantial that I find his testimony as to the March 31 conversation may not be relied upon even though I am -less than persuaded that Daugherty's testimony tells the whole story. 3. John Shelkofsky Based on a conversation between Shelkofsky and employee Patterson Owens at the, Springhill Avenue store,21 the complaint, as amended at the hearing, alleges that Shelkofsky interrogated an employee about his union activities, sympathies, and desires and promised him advancement in order to induce him to vote -against the Union. There is no dispute that a conversation occurred between Owens and Shelkofsky in which both- the Union and Owens' opportunity for advancement were mentioned. However, their testimony is in substantial conflict as to, the material statements during that conversation, and once again the testimony of both witnesses raises problems. Owens' version was that Shelkofsky initiated the conversation, first offering him a coke or coffee and then asking him if he would like to make a career of working, for Respondent. Owens expressed doubt, indicating skepticism heard and there were no openings. 21 Shelkofsky, whose usualjob was comanager of the Cottage Hill Road store, served as relief store manager at the Springhill Avenue store for approximately 3 weeks starting March 28, 1970. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that there -were promotional opportunities for Negroes with Respondent.- 'Shelkofsky stated .that Negroes had been promoted 1h --other locations, but ,Owens continued to indicate his- d`o`ubts. Shelkofsky then asked him what he thought about the+ union election. Owens replied that as he was working for Respondent and it was kind enough to give him a job, he should 'respect its wishes. 'Shelkofsky commented that=' he' was` right about that because - if Respondent thought enough about him-to'give him a job, he should ' respect -Respondent's "wishes, and do what he thought wasbest. At this point Shelkofsky also stated that if Owens stayed with Respondent long enough and after "this mess" about the Union was over, he could probably get an advancement to assistant manager or higher position with ,the Company. Shelkofsky, on the other hand, portrayed Owens as the initiator of `the conversation and the one who raised' both the matter' of the "election and promotional opportunities. Shelkofsky's 'Version 'was that immediately after Area Superintendent, Robinson had visited the store, Owens approached .hair and said he would-be happy, when the election `was over because maybe Robinson and everyone would believe that he was not for the Union. Shelkofsky made no' reply, 'and Owens continued to say that Respondent was, a good, company, that he would like to make ,a career ofworking there,,and that he would have to .work up to a, manager's job to make a living. Shelkofsky said that he had the same chance as anyone else for advancement. Owens said that he did not know of any Negro managers in the area. Shelkof sky said that there were many Negro managers up North. Shelkofsky could recall nothing further that was said. On direct, examination Owens momentarily failed to recall Shelkofsky's alleged statement about-his chances for advancement after the election, and Owens' cross-examina- tion developed that he , had,,made no reference to, this statement in an affidavit he gave during the investigation of this case. However sincere his belief as to what Shelkofsky said, it is difficult to escape the conclusion that at the time Owens gave, his affidavit he did not construe anything Shelkofsky said as a promise of probable, promotion, but only later, read such a promise into Shelkofsky's remarks when he sought to reconstruct his recollection just prior to the hearing. In these circumstances, I credit Shelkofskythat he only -stated that Owens had the same opportunity for advancement as anyone else. With respect to the,-remainder of their conversation, one aspect of Owens' testimony does not fit well with either version.' Thus Owens testified that he believed he was -wearing union buttons at the time of this' conversation. Certainly if he' was, it is unlikely that he approached Shelkofsky^ to seek- to persuade him that,,others` should believe he was against the Union, but it is equally unlikely that =Shelkofsky 'would have questioned -him or that he would have sought to persuade Shelkof sky that he would respect -Respondent's wishes if he were wearing union buttons at the time. In these circumstances, I credit 22 I, note, in this connection, that Owens displayed considerable uncertainty as to when the conversation occurred, and his affidavit in which he made a correction in this regard differed from his initial Shelkofsky that, this conversation occurred before employ- ees started to wear union buttons in the, store.22 However, Shelkofsky's testimony also raises doubts. For not only, .may one wonder whether Owenss, -who, shortly thereafter. wore union buttons at work, was°likely.to have initiated an attempt to persuade Shelkofsky that he was opposed to the Union, but Shelkofsky's, testimony that Owens initiated the discussion of his chances for advance- ment by stating that he, wanted to make a career out of workingmith Respondent does not fit with his expression of skepticism, when Shelkofsky sought to assure him that he had the same chance as anyone else. Indeed, i€ Owens took the, ,initiative to curry favor, as Shelkofsky's version indicates„ itseems unlikely, that Owens would have taken issue with Shellcofsky's reassuring response. - While I have found reason to doubt the accuracy, of Owens' recollection, „ both as to, the timing of the conversation and the alleged promise of, advancement, I do not believe that Owens intentionally, sought to distort the facts in his testimony, and I am less than impressed with the accuracy of Shelkofsky's testimony that-Owens took the initiative in broaching, both the matter, of his feelings about the Union, to, which Shelkofsky alledgedly made no response, and his desire to make a career out of working for Respondent. In this regard I credit Owens that Shelkofsky raised both topics and asked Owens what he thought about the election after first -asking him how he would like to make a career of working for Respondent. 4. ' Goronway Owen III Based on the testimony . - of -Owen, the complaint, as amended at the hearing, alleges that Respondent threat- ened employees with a reduction of hours-for wearing union buttons. Goronway' Owen III was an assistant manager at the Springhill Avenue store, signed an authorization card for the Union, and testified as a- witnessI for-the General Counsel in this proceeding. Owen testified that on Tuesday or Wednesday, April 14 or 15, he spoke with employee Shirley Gardner, who he understood, had been 'wearing a union-button, and told her that he did not think it was wise for ' her` to continue` wearing a union button due to her financial condition.' According to- Owen, he mentioned specifically that she was a part-time employee, had no guarantee of hours, and could get her'hours cut for wearing the button. Owen testified that he believed he-had, a similar conversation with employee Iva Young before the election but could not remember when or where it occurred, Owen was the only'witness who testified as to these two conversations. Although Shirley Gardner -was in the hearing room when Owen testified, she was not called as a witness. An affidavit given by Owen during the investiga- tion of this case contains no mention of a statement by him to Mrs. Gardner that her.hours might be cut because she wore a button and no mention of any conversation with Iva Young, although Owen testified that . he ° thought he mentioned both to the investigator who tookhis statement. In addition, Owen conceded that when he was questioned testimony. It is clear, however, that the conversation occurred before the election and no more than 3 weeks before it. GREAT ATLANTIC & PACIFIC TEA CO. before the, hearing by Respondent's attorney, at a time when Respondent did not know that he was to appear as a witness for the General Counsel, Owen told Respondent's attorney that he told Mrs. Gardner that he felt enough hard feelings had been created and that he felt the button should be taken, off. At that time he indicated that he had not mentioned her financial situation and that Mrs. Gardner was the only employee to whom he spoke about removing a button. Owen explained that he had not wanted to admit all the facts to Respondent's attorney because several area supervisors were present at the time. Although Owen's explanation for his statements to Respondent's attorney might have been persuasive if his affidavit, supported his testimony, his affidavit lends more support to his statements to Respondent's counsel than to his testimony before me. I am aware that one in Owen's position does pot lightly give testimony in conflict with his employer's interests, and I am persuaded that insofar as supported by his affidavit Owen's testimony is both accurate and truthful. But in the absence of corroboration by Mrs. Gardner or Young, I do not credit Owen that he told Mrs.' Gardner explicitly that wearing a button might lead to a reductionin her hours or that he advised Young to remove his button before the election. I find only that Owen told Mrs. Gardner that he did not think it would be wise for her to continue wearing.a union button because enough hard feelings had been created. 5. Claude Robinson Based on the testimony of Riffit Reid, an employee at the Springhill Avenue store, the complaint alleges that on April 17, 1970, Robinson orally ordered and required an employee to remove his union button. Reid's testimony was corroborated by that of Daugherty and Owen and was not contradicted, by Robinson. I credit Reid- and find that on the day of the election Robinson told Reid that insofar as he was concerned the Union lost fair and square and there were no- hard feelings. Robinson then pointed to Reid's button And said, "Take that off and give us a good day's work. That's all I ask." Reid told other employees about the incident. Reid removed his button at the time but wore it again the next day and for about a week thereafter until he removed it, on his own accord. Some other employees also continued to wear-,buttons after Robinson's visit to -the store. 6. LaBron Walley and Howard Jernigan Based on the testimony of Robert Clark, the complaint alleges that on April 17, at the Michigan Avenue store, Assistant Manager LaBron Walley threatened an employee with unspecified reprisals and publicly ridiculed him because of his union activities and that Store Manager Howard Jernigan orally informed the employee that he should have expected the threats and ridicule because he was the only union adherent at the store. Clark's testimony was uncontradicted and is credited. Clark worked as a butcher at the Michigan Avenue store and served as an observer for the Union in the election. He 655 attended a preelection, conference on the night before the election. On the morning of the election when Clark entered the store, Jernigan said to him, ''Well, you made your move." Clark aanswered affirmatively and walked on. On the night of the election, 'Clark went to the Springhill Avenue, store for the ballot-count.- After- the count when Walley was in the store looking out and Clark was outside, Clark made a vulgar, gesture toward:Walley, Walley .said nothing but "kind of grinned." On the day after the election Clark reported for-work at 8 a.m. When he walked into the cutting room he noticed a sign stating "Good morning, Punk" on the block where he worked. He picked it upand carried it over to the timeclock where Jernigan and a few others were standing. He threw it on the floor and said, "At, least the- son-of-a-bitch-,can write" or something like that. Then he noticed another sign stretched across the back--wall written on-a large piece of paper from a roll of butcher paper. That sign said,, "The winner, A & P Tea Company, who cares, 73. The Losers, Bob Clark,' Jr., the punk and Old Tag, 42.1123 Clark made some similar comments about the sign- and went to. punch in. Then he noticed a third sign in the slot with his timecard which said "You are a union -punk" and also had the election score on it. He threw, that, sign on the floor. Jernigan picked it up. Clark said he wished he knew who the so-and-so ' was who - wrote it. An employee standing nearby said= that LaBron Walley, the assistant store manager, had done it. Clark went to Walley-and asked if he was "the son-of-a- bitch who wrote these signs." Walley asked, "What if I am? What are you going to do-about it?" Clark- said he was going to ?mock "the hell" out of him, pushed him, and was about to hit him, when Jernigan and another -employee interceded and broke it up. A little later, Jernigan came to him and told him he should have, been expecting something' like that. ' Clark asked why, and Jernigan said because he knew he was the only one for the Union in the store. Jernigan said he hoped Clark didn't hold him responsible and that he didn't have anything'to do with it. Clark asked him why he shouldn't, and Jernigan said something about Clark having gestured -to Walley the previous night. Clark told Jernigan that if he was a good store manager he wouldn't have let it happen. - - Later that day the meat market manager under whom Clark worked directly came in and spoke-with Clark. He said he'would speak to Walley about letting upon Clark. Clark said that there was no need to do that and that he would fight his own battles. The sign on the wall did not remain up for more than'an hour. Clark was never reprimanded' for pushing Walley or calling him names. There had been some kidding, and horseplay in the store before. Walley and Clark are both relatively young and had known each other for several years.- Before Clark- married, they had some social contacts away from the store. When Clark first started to work at the Springhill Avenue store, he- had a disagreement With Walley, but they had been:talking to each other before the election and were not as angry with each other by then. - - 28 'Old Tag" was an apparent reference to Union Representative Taggert. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Concluding Findings 1. The wage increases As the 'Board stated in The Gates Rubber Company, 182 NLRB No. 15, when an employer is faced with deciding whether to grant or withhold a wage increase pending an election, "It is well settled that the employer's legal duty is to proceed as he would have done had the union not been on the scene." The ' Charging Party and the General Counsel rely on Gates Rubber and this statement of principle in support of the: allegation of the complaint that Respondent violated the Act by withholding 'wage increases before the election, contending that the evidence leaves no question that increases would have been granted before April 16, 1970, if the Union had not beenon,the scene, Respondent, however, contends that Respondent stood in substantial risk of having to defend its conduct if it had granted a wage increase because of the outstanding court order against it, because it could not point to any specific date on which it gave-increases in past years, and because it could not point to a specific amount which it had granted in previous years. Respondent contends that it was entitled to defer the increases to avoid the appearance of interference with the election, relying principally , on the Board's, decision in UARCO Incorporated 169 NLRB No. 162. To a point, the facts before the Board in both Gates Rubber and UARCO were similar. In both cases the employers . , had established policies pursuant to which increases would have been granted to bargaining unit employees before a pending election. In both cases, increases were granted to employees outside the bargaining units, but were withheld from the bargaining unit employees until-after the election. In both cases it was clear that but for the election, increases would have been granted to the bargaining unit employees at the usual times. In Gates Rubber, bargaining unit employees expressed interest in; the timing of the. increase and asked about it. In response to their questions, employees were told that the increase was being withheld from them temporarily pending the election in order to avoid an appearance of any attempt to influence the election, and one, supervisor told an employee that the employer could not give a raise at that time because of-the posted, notice of election. In UARCO, the employer did not await employee questions, but at the time it put the increase into effect for other employees, it notified bargaining unit employees in writing that on advice of counsel their increases would have to be postponed,to avoid the, appearance of vote buying by the, employer. In a later campaign speech tol all employees, the employer repeated this reason and added that its policy was to -pay area rates and that it intended to, follow that policy with or without a union. It repeated this statement of policy in a letter to all employees 2 weeks before the election. In Gates Rubber, the Boardyfound that the withholding of the increase violated Section 8(a)(t) of the Act, stating: In these circumstances, neutrality is not maintained by an announced withholding of a wage increase because of a pending Board-conducted election. It is well settled that the employer's legal duty is to proceed as he would have done had the union not been on the scene. Here the Respondent withheld increases . which , would normally have been granted but for the presence of the Union and 'the pendency of the-election and advised employees that their wage increases were, being withheld for this reason . By such conduct the Respon- dent violated Section 8(a)(1) and "interfered with employee free choice. - In UARCO, the Board reached the opposite conclusion, stating: Under the facts and circumstances of this case, wedo not agree with the Regional Director's' conclusion that the ` Employer's announcement concerning the with- holding of its annual wage rate increases was coercive in nature or` created an atmosphere which prevented the exercise of free choice in the election . We are unable to conclude that the Employer, by its announcement of April '3 and its subsequent campaign statements ,.sought to shift to the Petitioner the onus for the postponement of adjustments in wages and benefits for employees it sought to- represent, or to disparage and undermine the Petitioner by creating the,impression that it stood in the way of their getting planned wage, increases . and benefits. The Employer made , cleai in its , campaign statements, as set forth above, that whether` not', its employees were represented .by a union, it planned to continue its established practice of adjusting wage rates in early April of each year, pursuant to its annual wage survey, to bring them into conformity with prevailing rates in the area; and that the sole purpose of its announcement postponing-the expected adjustnientsin wage rates and benefits for the employees involved was to avoid- the appearance that it sought to interfere with their free choice - in any - elections which might be directed. In the circumstances, we do not believe that the employees could reasonably have-concluded, nor, do we conclude, that the Employer's postponement of adjustments in their rates and benefits was'intended to influence their` decisibn`in the question concerning-their representation for purposes -'of collective bargaining. [Footnote omitted.] The critical distinction between these cases lies in the affirmative efforts of the employer in ' UARCO, unlike Gates, to'assure employees that regardless of the outcome of the election it intended to adhere to its wage policy and that the sole reason for deferring the increases was to avoid the appearance of an attempt ' to interfere with the employees' freedom of choice . In Gates, absent such assurances,, the Board found interference. In UARCO, with such assurances, the Board concluded that the employees could not reasonably have concluded that' postponement of the increases was intended to influence their decision. Thus, it appears that UARCO provides an exception to the principle that an employer must act as he would have absent the pendency of an election and permits, an employer some leeway in deciding whether to grant or withhold wage increases due, employees , pursuant to an established policy pending an election. However, under UARCO, if the employer determines not to follow its established policy, he has the burden of making it clear to employees that the future implementation of the policy is GREAT ATLANTIC & PACIFIC TEA CO. not dependent upon the outcome of the election and he must dispel the inherent tendency of the withholding of the increase to cause employees to believe that by seeking representation and an election they have placed in jeopardy an established condition of their employment 24 Here, Respondent points to the outstanding court order enforcing the Board's earlier decision involving the Mobile area stores and the fact that it acted pursuant to advice of counsel as special justification for its decision to withhold the increases. But the court order imposed no greater duty upon, Respondent to refrain from granting increases than imposed by the Act absent any order,25 and the fact that Respondent's decision was made on advice of counsel does not absolve Respondent from responsibility for its conduct, if it was in fact unlawful.26 Respondent also contends that it was entitled to withhold the increases because it could not point to any specific, date when it gave increases in the,past and could not point to any specific amount of increase that it normally granted. Although it is true that Respondent had not given increases on the same date- each year in the past, it had granted increases soon after they became effective under the National Food Stores' agreement in previous years. Respondent's increases had not lagged more than 5 weeks behind the National increases in the past, and in years when there were no National negotiations, as in 1970, the time lag was even, less. As I have found above, it is clear from the experience of the previous3 years that, but for the pendency of the election, increases would have been granted before the date of the election. There is more. substance to Respondent's contention that it could not point to any, specific amount of increase it would have granted in '1970. Its rates ' and progression schedules were not identical to those provided in the National agreement Over the previous 3 years it had eliminated a number of the differences and had narrowed the gaps between its rates and progression schedules and those provided in the National agreement. But there was no discernible automatic formula for the elimination or narrowing of the remaining differences. In addition, because the National agreement provided for a second round of increases on September 1970, unlike previous years, there was no ready way to determine from its past practice whether it would have granted a single increase in the spring based on the National rates then in effect, a pair of increases at 6-month intervals parallel to the National increases, a single increase in the spring based on the National - rates to be effective in September, or a single increase in the spring designed to take into account both increases due under the National contract, perhaps giving employees 'an annual wage roughly equivalent to what the National employees would receive in the following year with their two increases. However, but for the pendency of 24 In addition to Gates Rubber and UARCO, see also Dynatronics, An Operation of the Electronics Division of the General Dynamics Corporation, 186 NLRB No. 141; Montana Lumber Sales Inc., 185 NLRB No. 12; Marshall Durbin and Company of Jasper, Inc., 179 NLRB No. 170; The May Department Stores Company, d/b/a Famous-Barr Company, 174 NLRB No. 109; Louisiana Plastics, Inc., 173 NLRB No. 218. 25 As set forth above, the relevant portion of the order barred Respondent from promising or granting wage increases or other benefits to induce employees to abandon support of the Union or to work against the 657 the election, it is clear that it would have pursued one of these courses and granted an increase before the date of the election. - The circumstances . may well have made Respondent fearful that any increase it might have given would have been difficult to defend on the basis of its previous practice. Yet the question remains whether this difficulty justified the course of action it chose to pursue, While Respondent points to a dilemmatic choice between granting an increase despite uncertain precedent as to its amount and pursuing the course of conduct it followed, the Board's decision in UARCO pointed to a third course of conduct available to it. Thus, while Respondent elected to withhold the increases and pursue a' policy of silence with respect to increases, UARCO indicated that it could have withheld the increases whip affirmatively assuring employees that its -policy remained unchanged, .that it would be implemented after the election regardless of its outcome, and that deferral of the increases was caused solely by its' desire to avoid any appearance of interference-with the election. The policy ,which Respondent elected to- pursue left employees with awareness that under Respondent's policy wage increases were due but not granted and with the question unanswered whether the change in policy was permanent, temporary, or contingent uponthe outcome of the election: While it is true that Davis, Robinson, and Daugherty deviated from Respondent's policy of silence with respect to wage increases in conversation with individual employ- ees, these deviations fell far short of giving the employees who worked at eight separate locations the kind of assurance which was given in UARCO. Although Davis told Mrs. Innabnit that_Respondent intended to remain competitive-in paying wages as had been its policy in the past, he also attempted to avoid answering her questions about raises and plainly left her with the feeling that her question had not been authoritatively answered. Davis' statement to Clark appears to have come closer to an affirmative statement of intent to maintain existing practice, but even that statement was prefaced by a statement that Davis was not free to discuss wages, casting some doubt on the weight Clark might give to the later assurance. But in any event, these statements were exceptions to Respondent's policy not to discuss wages during the preelection period, and there is no evidence that any similar assurances were given to other employees. The only evidence otherwise of deviation from the policy of not discussing raises was the testimony of Owens that Robinson said he couldn't discuss, raises at that time because of the election and that it was against company policy to give a raise at that time, and the testimony of Riise as to discussion of raises by Davis and Daugherty in response to his questions before a small group of Union. 26 The Great Atlantic & Pacific Tea Company Inc., 166 NLRB 27, 28, enfd. 409 F.2d 296 (C.A. 5). While the fact that Respondent acted on advice of counsel might have bearing upon a determination of its motivation in decidingto withhold increases, a violation of Section 8(a)(1), as found in Gates Rubber, does not depend upon proof of an unlawful motive, but upon whether the conduct tended to interfere with employee rights. See Crown Central Petroleum Corporation. 430 F.2d 724 (C.A. 5). 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. In,neither of these cases was any attempt made by Robinson, Davis, or Daugherty to reassure employees that the pendency of the election or its outcome would not alter Respondent's basic policy as to wages. I am aware that there is evidence that Mrs. Innabnit and Riise told Davis - and Daugherty during the, preelection period that the withholding of the wage; increases would cause it to- lose some support in the election. However, the test in deciding whether Section 8(a)(1) has been violated is not how individual employees reacted to questioned conduct but whether that conduct tended to interfere with protected employee rights. Moreover, Mrs. Innabnit's and Riise's , statements and Personnel, Manager , Truxillo's testimony that he believed Respondent almost lost the election because it withheld the increases hardly establish that the withholding of the increases did 'not discourage employee support for the Union., In sum, this ii ,a casein which Respondent had a policy to grant increases in the spring of the, year which would have resulted in an increase for the Mobile area employees before the election but ,for the, pendency of the election. Respondent might have elected to grant the ,increase notwithstanding the election, albeit that course of action would have given rise to difficulties in justifying the amount of the increase based on its past practice., Respondent might also have elected to withhold the increases while at the same time assuring employees that it was not abandoning its policy because of the election or the possibility that they might choose union representation. However, Respondent instead elected to withhold the increase and pursue a policy of silence, ' leaving it to employees to infer whether the holding of the election or their possible choice of union representation might result in the loss of the increases'they would otherwise have received. Particularly in the light of Respondent's prior unlawful conduct at some of the Mobile area stores,, it is likely that employees would reasonably infer that the withholding of the increases was caused by the 'attempt to gain representation and the election and that the grant was contingent upon its outcome. Accordingly, I conclude that the Board's decision in the Gates Rubber case is controlling and that the withholding of the increases violated Section 8(a)(1) of the Act.27 As the remedy in any event would be the same, I find it unnecessary to decide whether the withholding of the wage increases also violated Section 8(a)(3) of the Act. 2. The alleged interrogation I have found that at the outset of his conversation with Mrs. Innabnit on April 1 or 2, Area Supervisor Davis asked her what she had on her mind, and that when Mrs. Innabnit repplied that she had illness in her family on her mind, Davis told her that she knew what he was talking about and pointed to an election notice posted nearby. A discussion, of alleged company promises, union claims, and Respondent's position with respect to wage increases followed. I have also 27 In Paradise Bowl-0-Mat, Inc, 180 NLRB No. 1100, and C & M Sportswear Manufacturing Corporation, 183 NLRB No. 29, cited by Respondent, there was no deviation from an established policy with respect to granting increases, and the employers in response to employee requests for increases simply stated that they could not do anything about their requests pending the election. The Court of Appeals for the Second Circuit found that within, a few weeks before. the election after asking Owens how he would like to make a career of working with Respondent and . discussing, Owens' prospects in that regard, Acting, Store Manager , ShelkofskyRaskedhim what he thought about the election. I find in both instances that the questions were more- than harmless passing inquiries, and that , they constituted., interrogation in violation of Section 8(a)(1) of the Act.28 3. The alleged promises of benefit I have found that from 2 to 3 weeks before the election Davis-made statements "to both Mrs. Innabnit and Clark that he was not free to discuss raises, but that Respondent's policy was to pay ' competitive wages and would continue without change. In the case of Mrs. Innabnit, when she expressed dissatisfaction for lack of a more direct answer, Davis told her to read between the lines.' In the case- of Clark, Davis conveyed to him that raises wouldbe granted as soon as the election was over. In neither^case"did<Davis indicate that future raises would be,dependent upon how the employees voted in the election. As I have found above, when Respondent decided to withhold increases due before the election, it became its obligation to reassure the employees that its wage, policy had not changedbecause-of the election:- I find accordinglyAhat.Davis' statements to Mrs. Innabnit and Clark concerningwage increases did not violate' the Act, and shall recommend that these allegations of the complaint-be dismissed. With respect to the alleged promises of a.transfer,to Riise, I have found the evidence does<, not establish, that Daugherty made any promise of ',transfer to Riise, in return for Iris efforts in opposing-the Union. Accordingly, I shall recommend that this allegation of the complaint be dismissed. With respect to, the alleged promise of a promotion to OwensS I have found that Shelkofsky asked Owens if he would like,to make a-career of working with Respondent, and,told him that he,had the same, chance as anyone else for advancement, I have also found that later in this conversation Shelkofsky asked him what ',he thought about the election. While I have , found, that the latter interrogation was, improper, and it, seems, likely that Shelkofsky's statement about Owens' chances, for, advancement was intended to make him view Respondent favorably, I do not find that any promise, was made or that., Shelkofsky indicated that Owens' chances for advancement depended upon his vote in the, election. Accordingly, I shall recommend that this allegation of the complaint be dismissed. 4. The instructions to employees to remove union buttons- I have found above that a day or two before the election, Assistant Store Manager Owen told Shirley Gardner to remove her union button because he thought enough hard in Dorn's Transportation Company, Inc v. N.L:,RB., 405 F.2d 706, 714-715, also cited by Respondent, evidently Viewed ,the facts before it as similar to those in Paradise and C & M Sportswear. See N.L.RB. v . Dothan Eagle, Inc., 434 F.2d 93 (C.A. 5)_ 2& J. J. Newberry, 183 NLRB No. 69., GREAT ATLANTIC & PACIFIC TEA CO. 659 feelings had been created. I have also found that, on the day after the election, District Supervisor Robinson told employee Riffit Reid to remove his button, at the same time telling him that as far as he was concerned the Union had lost the election fair and square -and there- were no hard feelings. There is no evidence or claim of any-special circumstances justifying a prohibition against the wearing of union buttons. There is no question in these circum- stances that the employees had the right to wear union buttons while at work. Although Owen was apparently sympathetic to the Union and its supporters and was concerned that others might take ,reprisal against Mrs. Gardner, I have found that he did not communicate the basis of his concern to her, and the record is silent as to whether Mrs. Gardner knew of his sympathy for the Union. Whatever Owen's uncommunicat- -ed- intent, his instruction to Mrs. Gardner interfered with protected employee rights. Although neither instruction to Mrs. Gardner nor Reid was accompanied by a threat of reprisal, the normal assumption is that instructions can be disobeyed only at an employee's peril, and an explicit threat of reprisal for failure to obey instructions is not essential to finding the violation. Accordingly, I -find that Respondent interfered with protected employee rights in violation of Section 8(a)(1) of the Act 29 5. The alleged harassment of Clark because he was the only one for the-Union in the store violated ,Section 8(a)(1) of the Act by holding Clark up to ridicule for- supporting the Union and -threatening that reprisals were in order for his union activities.30 6. The remaining allegations of the complaint ,The complaint also alleges that Davis solicited Mrs. Innabnit to inform other employees that they would receive everything they had been promised in order to induce them to vote against the Union and that Daugherty in conversation with Ruse created an impression of surveil- lance of union activities. As I have not credited the testimony on which these allegations are based, I shall recommend that they be dismissed. W. THE OBJECTIONS TO THE ELECTION As set forth above, the objections- to the election are based on the same conduct as the allegations of the complaint relating to preelection conduct. As I have found that Respondent violated Section 8(a)(l) of the Act during the period between the filing of the petition and the election by withholding wage increases, by interrogating Mrs. Innabnit and Owens concerning their union activities, and by instructing Mrs. Gardner to remove her union button, I find further that Respondent engaged in conduct which interfered with the election and I shall recommend that the election be set aside and that a new election be directed. There is no question that on the day after the election Clark was ridiculed before the other employees in the store as a "punk" and the only supporter of the Union in the Michigan Avenue store. There is evidence that Clark's prior relations with Assistant Store Manager Walley and his conduct the night before with respect to Walley contributed to Walley's conduct toward him. There is also evidence that Clark deemed it largely a personal matter between him and Walley, and that other supervisors disassociated themselves from Walley's conduct in statements to Clark, although Store Manager Jernigan at the same time told Clark he should have expected something like that. In addition, Clark's immediate supervisor offered to intercede with Walley in his behalf, and Clark was not disciplined for his own heated response to Walley's actions. If the matter had been confined to the two principals, there might be some merit in the contention that the incident should be left for private resolution between them. The difficulty, however, is that Walley did not keep his quarrel with Clark on a personal level, but sought to expose Clark to ridicule among the other store employees, not for any misconduct or personal offense to Walley, but for being the only union supporter in the store, thereby indicating to other employees that they also might be in for similar treatment if they chose to support the Union in the future. Moreover, Jernigan's statement that Clark should have expected something like that conveyed his approval of Walley's conduct despite his disclaimer of responsibility for it. Accordingly, I find that Walley's conduct in posting signs which labeled Clark as a "punk," and Jernigan's statement to Clark that he should have expected something like that 29 The Annin Company, etc., 151 NLRB 1512, 1518-19. 30 Bernhard Conrad Embroidery Company, 156 NLRB 1056; Elliott- V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Charging Party contends that as a further remedial measure Respondent should be required to reimburse the Mobile area employees for the monetary loss they incurred because of the withholding of their wage increases until after the election. As I have found above, it is not clear whether Respondent would have granted the same increase in March that it subsequently granted in July. The July increase, which largely followed the September wage schedule under the National agreement, brought the total wages received by employees during the period from March to September close to what they would have received if Respondent had granted wage increases equivalent to those due under the National agreement. In these circumstances, and as Respondent might have lawfully withheld the Williams Co., Inc, 149 NLRB 1242. DECISIONS OF NATIONAL, LABOR RELATIONS BOARD increases if it had given,employeesassurances that its wage policy would, not be changed because of the election, I, find that the requested reimbursement remedy is not appropri- ate in this case. The Charging Party contends further that in order to remedy the violations, found herein, in view of Respon- dent's past history of violations of the Act,31 Respondent should be `required to take additional specific, affirmative measures, sometimes deemed necessary by the Board, to dissipate-the effect of the unfair labor practices. See J. 'P Stevens & Co., 171 NLRB No. 163, enfd. 417 F.2d 533 (C.A. 5); John P. Krystyt iak d/h/a Red & White Super Markets, 172 NLRB No. 210, enfd. as modified 415 F.2d 125 (C.A. 3). However, the violations found herein substantially differ in character from those found in the cited cases, and I a' not persuaded that, the unusual remedial measures provided in those cases are warranted here, other than provision for a notice in simple and readily understandable language including, an introductory paragraph which explains, to employees the process by which their rights have been upheld. CoNCLusIONS OF LAW 1. The Great Atlantic & Pacific Tea Company, Inc, is an employer engaged, in, commerce within the meaning of Section 2(2), (6), and (7).of the Act. 2. -Retail Clerks International Association, Local 458, AFL-CIO, is, a labor,organization within the ., meaning; of Section 2(5)=of the Acts 3. By withholding wage increases which would other- wise have been granted its employees pursuant to past policy, because of the pendency of a Board election, without assuring its -employees that its policy remained unchanged and would be implemented after the election regardless of its outcome; by coercively interrogating employees with respect to their union 'sympathies; by instructing employees not to display union,buttons while at work; and by holding an employee -up, to ridicule by his fellow employees and threatening him with reprisal because of his union activities; Respondent has engaged-in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 31 In addition to the previous violations found at the Mobile area stores in The Great Atlantic & Pacific Tea Company, 167 NLRB 776, enfd 408 F.2d 374 (C.A. 5), see other cases in like name reported at 165 NLRB 989, enfd. 407 F.2d 387 (C.A. 5); 165 NL enfd. as modified 406 F.2d 1173 (C.A. 5); 166 NLRB 27, enfd. as modified 409 F.2d 296 (C.A. 5).