Sentry Food Store

SENTRY FOOD STORE 879 Metcalfe, Inc., d/b/a Sentry Food Store and Retail Store Employees Union, Local No. 444, AFL-CIO. Case 30-CA-1753 August 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO charge filed by Retail Store Employees Union, Local No. 444, AFL-CIO, herein called the Union, and a complaint dated December 17, 1971. The complaint alleges, and Metcalfe, Inc., d/b/a Sentry Food Store, herein called the Respondent, denies that Respondent committed unfair labor practices. Both General Counsel and Respondent have filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS On April 20, 1972, Trial Examiner Arnold Ordman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed excep- tions and a supporting brief and an accompanying brief in support of certain portions of the Trial Examiner's Decision, the Respondent filed a reply to the General Counsel's exceptions and brief, and the General Counsel 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Metcalfe Inc., d/b/a Sentry Food Store, Brookfield, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. ' We are satisfied that the evidence does not preponderate in favor of a finding that Dittle's hours were unlawfully reduced even if the Five employees in the grocery department had their hours reduced early in January, as claimed by the General Counsel, rather than during the week before the hearing, as found by the Trial Examiner We also agree with the Trial Examiner that Sec 8(a)(5) was violated herein and that a bargaining order to remedy that violation is warranted TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Trial Examiner: This case was heard before me on January 25 and 26, 1972, pursuant to a 1. THE BUSINESS OF THE EMPLOYER Respondent is a Wisconsin corporation doing business under the trade name Sentry Food Store. It has stores in Monona and Brookfield, Wisconsin, where it sells at retail meat, groceries, and other commodities. During the year 1970, a representative period, Respondent's gross sales were in excess of $500,000, and during the same period, Respondent received goods valued in excess of $50,000 from points outside the State of Wisconsin. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Statement of Issues The events here relevant relate only to Respondent's Brookfield store. By way of background, it appears that the Union in 1969 made an unsuccessful effort to organize Respondent's employees at the Brookfield store. Respondent's conduct during that period became the subject matter of an unfair labor practice proceeding before the Board, and on June 30, 1969, the Board issued a Decision and Order finding that Respondent had discharged its employee, Frank Peck, because of his activities in support of the Union, thereby violating Section 8(a)(3) and (1) of the Act. Metcalfe, Inc., d/b/a Sentry Food Store, 184 NLRB No. 40. A renewed effort to bring in the Union as the representative of Respondent's Brookfield store employees began 2 years later, about October 1971. The issues in this case arise out of this effort. On October 13, 1971, Ross Richardson, an employee in the produce department, called the Union and then visited the union offices to seek union representation for the Brookfield store employees. The union representative with whom Richardson spoke explained organizational proce- dures and gave him about 20 authorization cards to distribute to his fellow employees. The printed portion of the authorization cards provided simply that the employee signing the card authorized the Union to represent him as 198 NLRB No. 127 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining representative with the named Em- ployer. Ross Richardson signed a union authorization card while he was at the union office and within the next few days spoke to a dozen of his fellow employees to solicit their signatures to the cards. As of October 15, about eight union authorization cards had been signed designating the Union as bargaining representative for Respondent's employees. On that day Ross Richardson was informed by George Weis,' Respondent's assistant store manager, that he was laid off. By October 22, at least 21 union authorization cards had been signed. On that day, the Union wrote to Respondent stating that a majority of Respondent's Brookfield store employees in a unit excluding supervisors and meat department employees had designated the Union as their bargaining representative, and that the Union requested recognition and bargaining negotiations in their behalf. During the period between October 15 and 22, Respondent converted Ross Richardson's layoff to a discharge. On October 28, 1971, Respondent replied to the Union's letter of October 22, stating that the best way to resolve the question "whether our employees want your union or don't want your union as bargaining agent is to have a U.S. Government supervised election, by secret ballot, right here at our place." The letter continued: Experience has shown that a Union's claim that its represents a majority of the employees is more often wrong than right. Some employees sign union authori- zation cards because they are threatened or pressured, and they want to get the pressure off their backs. Time after time, however, in the privacy of the election booth, where there is a secret ballot election, the employees no longer feel pressure and'overwhelmingly vote against a union. They know what union fines and union bossism mean and they don't want that to happen to them. I would suggest that you contact the National Labor Relations Board to arrange for an election to be held, or, if you prefer, let me know and I will contact the Board. Following its letter of October 22 to Respondent, the Union continued its organizational effort. On October 27, the Union filed an unfair labor practice charge alleging that Respondent had engaged in conduct violative of Section 8(a)(1), (3), and (5) of the Act. On December 17, 1971, General Counsel issued a complaint specifically alleging such violations and, at the opening of the hearing, amended the complaint to allege an additional violation of Section 8(a)(3), (4), and (1) of the Act with respect to Respondent's treatment of its employee, Michael Dittle. As already noted, Respondent denied generally the commis- sion of any unfair labor practices. The issues as alleged in the complaint and presented for resolution in this proceeding are: (1) Whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Ross Richardson because of his union sympathies and activities. (2) Whether Respondent violated Section 8(a)(1) of the Act by interrogating employee James Wellinghof about union activities. (3) Whether Respondent violated Section 8(a)(3), (4), and (1) of the Act by reducing the working hours of employee Michael Dittle because of his union sympathies and because of his action with respect to furnishing information in connection with the instant hearing. (4) Whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the exclusive representative of its employees and by engaging instead in the conduct previously alleged. These issues will now be considered seriatim. B. The Discharge of Ross Richardson Ross Richardson, age 20, was hired by the Respondent as a full-time employee around the middle of May 1971. He was assigned to the produce department where he remained for the duration of his employment. However, beginning in the latter part of September, contemporane- ous with a decline in produce department sales which occurs annually in the months of September and October, Richardson's working hours were substantially reduced.2 Immediately upon his cut in hours, Richardson com- plained to Jerome Metcalfe, manager of Respondent and owner with his brother of all the corporate stock. Richardson told Metcalfe that he would like more hours, that he was getting married soon, and asked whether he could supplement his hours in the produce department by working part time in the grocery department. Metcalfe rejected the suggestion but told Richardson a few days later that Metcalfe was referring him to the Godfrey Company, from which Respondent held a franchise and did much of its purchasing, for possible employment. Metcalfe admittedly had given Richardson at most a lukewarm recommendation, if not a negative recommenda- tion, and nothing came of the referral. Richardson later complained to Assistant Store Manager George Weis about his cut in hours, pointing out that he would be better off if he were laid off and drawing unemployment compensation than he was on his reduced hour schedule. Weis replied that he would see what he could do but that only Metcalfe had the authority to lay people off. Richardson's last appeal, also unsuccessful, was to Robert Hiltsley, his immediate supervisor in the produce department. Admittedly very angry by this time, Richard- son, in the course of his talk with Hiltsley, interjected the comment, "Why the hell don't you assholes either lay me off or give me more hours." No criticism was made to Richardson for this outburst. Richardson's dissatisfaction with what he regarded as this unfair treatment prompted his call and visit to the Union on October 13 and his ensuing organizational activity as already related.3 Two days later, on Friday, October 15, at 8 p.m., after Richardson had completed his working day, George Weis came to Richardson and told i Identified in the complaint as George Weiss reported further that Richardson had the least seniority in the produce 2 Respondent's records show that beginning with the week which ended department and was the only one affected by the reduced amount of September 25, 1971, Richardson's hours dropped from an average of 38 available work hours to 22 hours For the remaining 3 weeks of his employment I Richardson initially testified that this visit took place a couple of days Richardson worked 21 5, 24 0, and 16 3 hours, respectively Respondent after his layoff. He corrected this testimony when shown the authorization SENTRY FOOD STORE 881 him that he was being laid off. Weis said the reason for the layoff was because Richardson was an unhappy employee and because produce sales were going down. Richardson made an offhand comment in reply to the effect that he might go to Florida. Richardson did not work the following Saturday or Sunday. Early Monday morning, October 18, George Weis called Richardson on the telephone to tell him that Weis had no intention of recalling him to work and that Richardson was fired. Weis repeated on this occasion that Richardson was unhappy, that produce sales had been going down, and made a further reference to the fact that Richardson had reported to work late.4 During the period of the layoff and discharge of Richardson, Weis did not consult with Metcalfe who was on a 2-week vacation trip in Canada. Metcalfe did not return to the store until Monday, October 25, and his only prior conversation with Weis during that period was by telephone on Saturday night, October 23. Immediately upon his discharge, Richardson informed the Union what had occurred. In the interview which followed, the Union informed Richardson that it would file unfair labor practice charges with the Board and suggested that Richardson himself file for unemployment compensa- tion. Richardson did file for unemployment compensation with the state authorities, reporting that he had been discharged. Metcalfe, who had returned from vacation in the meantime and had familiarized himself with the situation, opposed the claim. Metcalfe informed the state authorities that work was available, that Richardson was not laid off for lack of work, but that, because of insufficient working hours, Richardson had himself "decid- ed to leave." At a meeting on November 2, 1971, Richardson and Metcalfe presented their respective posi- tions to the state representative. Metcalfe reiterated that Richardson was not entitled to unemployment compensa- tion because his termination was not really a discharge but merely a recognition of the fact that Richardson had already quit his employment. In due course, the matter was resolved in favor of Richardson and adversely to Respon- dent's claim that Richardson was not eligible for compen- sation. Richardson was awarded unemployment compen- sation. In this frame of, reference, the critical question to be decided is whether Richardson was discharged because of his union activities and sympathies, and in order to discourage adherence to the Union, as alleged in the complaint, or whether, as Respondent insists, the termina- tion of Richardson's employment was for cause. The burden of establishing a discriminatory discharge is, of course, upon the General Counsel. Respondent's aversion to the Union is apparent on the record. As the earlier decision of the Board against this Respondent established, Respondent regarded an employee who card which he had signed at the union office on the day of his visit The card was dated October 13 as was the card of Robert Pitz whose signature Richardson solicited that same day at Respondent's store following his return from the union office 4 Weis was even more confused than Richardson concerning dates, and his testimony varied as to whether the discharge occurred on October 18 or October 19, or on Monday or Tuesday Weis' final version was that the supported this very same Union in 1969 as a "Judas" (184 NLRB No. 40). Quite apart from this quite recent history which is cited here only as background, Respondent's letter of October 28, 1971, rejecting the Union's current claim for recognition , was larded with references to union pressures, threats, union fines, and union "bossism."5 These same considerations would seem to suggest Respondent's recep- tivity to the utilization of whatever techniques might serve to exclude the Union including discharge of union adherents. More, however, is required than mere suspicion and Respondent asserts that, in the case of Richardson, it was wholly unaware at the time of the discharge that Richard- son was a union advocates According to Respondent, it did not become aware of Richardson's union activity until after it had discharged him. The defense is suspect. Respondent was not a novice in the matter of a union organizational campaign, having experienced such a campaign by the same Union only 2 years earlier; union discussion and solicitation in which Richardson was a prominent participant was quite preva- lent among the employees in the store beginning no later than October 13; and, as will presently be shown, conversations about the Union took place not only among the employees in the store, but also between the employees and Respondent's supervisory hierarchy. To assume under these circumstances that Respondent was unaware of the organizational activity in the store and of Richardson's role therein puts credulity to the test. Moreover, these circumstances do not stand alone. This is peculiarily a case where the observations in Shattuck Den Mining Corporation v. N. L. R. B., 362 F.2d 466 (C.A. 3, 1966) are pertinent. Judge Duniway, with the concurrence of his two colleagues, had this to say at 470: Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved; otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact-here the trial examiner-required to be more naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that t}ie motive is one that the employer desires to conceal-an unlawful mo- tive-at least where, as in this case, the surrounding facts tend to reinforce that inference. Accord: N. L R. B. v. Hartsell Mills Company, Ill F.2d 291, 293 (C.A. 4, 1940); see also Angwell Curtain Company, Inc. v. N. L R. B., 192 F.2d 899, 903 (C.A. 7, 1951). Here, even more than in Shattuck, the proffered grounds for the discharge do not withstand scrutiny in that they are not only without foundation in the record but they are telephone message of discharge was made on Tuesday On the basis of all the testimony, I believe that the discharge occurred on Monday and that Weis' recollection , plainly not too certain in this regard , was in error 5 Neither the decision in 184 NLRB No 40 nor the present record lays any foundation to warrant such references 6 Respondent advanced an identical contention in the earlier proceeding with respect to Frank Peck . 184 NLRB No 40 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constantly shifting, thereby making the "claim of 'non- discrimination the less convincing.' " N.L.R.B. v. Schill Steel Products, Inc., 340 F.2d 568, 573 (C.A. 5, 1965). Thus, the record is less than clear-indeed, quite the contrary-as to what Respondent's asserted cause was. As already noted, Metcalfe's position in the unemployment compensation proceeding was that Richardson had not been discharged at all but had voluntarily quit his employment. On the other hand, George Weis, who in Metcalfe's absence was the operative head of the establish- ment during the time the relevant events occurred, made no such claim and acknowledged that both the March 15 lay off and the discharge which occurred a few days later were in his determinations. In both instances, Weis informed Richardson that the reason for the actions was because Richardson was unhappy and because produce sales were going down. In the discharge conversation, Weis also alluded to the fact that Richardson had been late for work. None of these several assertions stands up upon examination. There is no credible or probative evidence that Richardson had voluntarily quit his employment. Richardson's comment, when he was laid off on March 15, that he might go to Florida certainly does not warrant the inference that he was quitting nor did George Weis so assume. On the contrary, only a few days later, Weis called Richardson to inform Richardson that Respondent had no intention of calling him back to work and that he was fired. I am satisfied that Metcalfe's contention that Richardson had quit, a contention which Weis, so far as appears, did not endorse or even suggest, was improvised by Metcalfe as a stratagem to obfuscate the real situation. Weis' reference to Richardson's tardiness as a reason for the discharge would also seem to fall in the category of an afterthought. The record support for this contention would appear to flow from Weis' testimony that he believed he had mentioned something to Richardson about coming in on time when the latter came in "a minute or so" late. However, Weis acknowledged that he had made the same comment to other employees and could not recall any occasion when Richardson was ever seriously late. Tardi- ness was obviously not a significant factor in Richardson's work record. Respondent's claim that it took the action it did because Richardson was unhappy and because produce sales had fallen off might appear to be a more plausible justification. There can be no question that Richardson, a young man planning on marriage, was disappointed when his hours and earnings were cut and when his efforts to ameliorate that situation were unavailing. Arguably, Weis could have felt that he was doing Richardson a favor when he laid him off. Moreover, it is also true that work was slow in the produce department during September and October. Yet while work was admittedly slow in the produce depart- ment, there was enough so that a substantial number of hours which Richardson could or would have worked had to be taken care of by detailing employees from other departments to fill in for Richardson. The short answer, however, is that it need not be determined whether the October 15 layoff was economical- ly justified. The complaint does not put the lawfulness of the layoff in issue; it puts in issue the lawfulness of the discharge which occurred a few days later on October 18. The real question is whether Respondent, as it asserts, had valid cause for converting Richardson's layoff to a discharge, or whether, as General Counsel contends, that conversion was the product of a disciminatory and antiunion motivation. As to this aspect of the case, it is clear that the end of the slow season in the produce department was rapidly approaching and no present exigency existed because Richardson was already in layoff status. Moreover, it could fairly be anticipated that with the approaching holiday season, Richardson's services would soon be needed on a full-time basis, thus serving Respondent's needs and at the same time obviating the basis for Richardson's dissatisfac- tion. In this context, the lack-of-work justification for the discharge is likewise wanting in persuasiveness. This is especially so in the light of undisputed evidence that despite the annual decrease in production sales during September and October, no one had ever been discharged from the produce department in prior years. Respondent at the hearing invoked still another ground for its action, namely, Richardson's incompetence, a, ground never communicated to Richardson at the time the action was taken. Yet here, too, the facts of record fail to support Respondent. Weis himself discounted any sugges- tion that tardiness was a factor in Richardson's work performance. Similarly, Weis testified that while he had on occasion criticized Richardson for other reasons, this was standard practice for him with respect to other employees in the produce department, all of whom with the exception of Richardson were still working in that department. Respondent also adduced testimony that Produce Supervi- sor Hiltsley had complained to Respondent about Richard- son's work, that Wendt, a fellow employee, had made similar complaints to Respondent, and that Richardson generally did not carry out his assigned duties. Yet, significantly, Respondent did not call Hiltsley, Richard- son's immediate superior, to testify nor did Respondent question Wendt, who did testify as witness for General Counsel, concerning Wendt's criticism of Richardson. Even more significantly, Respondent did not produce any of Richardson's work cards in evidence although Respon- dent testified that it was its practice to note reprimands on these cards. These omissions are significant and furnish a basis for an inference that evidentiary support for Respondent's claims was lacking. Finally, Respondent offered even another and different explanation for the discharge. Thus, Weis, at one point in his extensive testimony in this regard, stated: That the discharge really came about because following Richard- son's layoff, an employee in the nightcrew quit; that Weis anticipated legal complications if he replaced that employ- ee while another employee (Richardson) was on layoff; that he communicated this concern to an employee of Godfrey Company; that this employee, unidentified, advised him to solve his problem by discharging Richard- son; and that he, Weis, decided to follow that advice. I find this explanation, viewed against the others proffered by Metcalfe and Weis, equally implausible. In sum, I conclude that the total inadequacies and SENTRY FOOD STORE shifting bases proferred to justify Respondent's action fortify the conclusion drawn from the other evidence of record that Respondent's real motivation for the discharge of Richardson was to punish him for his activity in behalf of the Union and to discourage the union adherence which he was promoting. I find that Respondent by this conduct violated Section 8(a)(3) and (1) of the Act. C. The Interrogation of James Wellinghof As already noted, the complaint alleges that Respondent, acting through its agent , George Weis, on or before October 15, 1971, interrogated an employee about his knowledge of a union campaign at Respondent 's Brook- field store. The relevant evidence can be quickly summarized. The incident in question arose in the course of a conversation between George Weis and employee James Wellinghof. According to Wellinghof, Weis approached him in the store on a Tuesday night-Wellinghof could not specify the date nor state whether the conversation occurred before or after Richardson's discharge. Weis asked Wellinghof whether there was any talk about unions and Wellinghof replied that he didn't know. Weis then said, according to Wellinghof, that unions have a perfect right to try to unionize a store as long as they do not do it on the premises. Weis admitted that he had talked to Wellinghof and fixed the time of the conversation as being after Richard- son's discharge. He testified further that he had either asked Wellinghof if anybody had contacted him or had suggested that there might be people over to contact him. Wellinghof replied, according to Weis, that this had already happened. Weis' testimony on this aspect of the case was forthright. He volunteered that as soon as he learned of the union campaign, he initiated conversations with a number of employees whom he named. In each instance the tenor of his message was that they might be visited by union representatives, they should listen if they wanted to but they should remember there were two sides to every story, and "if you have any questions, ask me." It may well be, and the record does not preclude a finding, that Weis in this regard questioned other employ- ees, as he did Wellinghof, as to whether they had been approached. But there is neither an allegation nor evidence that there were threats or promises fairly be regarded as intimidating or coercive of having that tendency. In an effort to strengthen the case in respect to the interrogation of Wellinghof, General Counsel in his brief cites other instances of alleged questioning and surveillance . Without detailing these instances which were not, in any event, alleged as violations, I find a lack of probative evidence to support an allegation that Respondent engaged in interro- gation in violation of Section 8(a)(1) of the Act as alleged in the complaint. D. The Reduction in Dittle's Working Hours Michael Dittle, a college student, was a part-time employee of Respondent, hired as a packer at $1.77 an 883 hour. On October 15, 1971, Dittle obtained a union authorization card from Richardson, signed it, and distributed a few more union authorization cards among his fellow employees . The record is silent as to whether Respondent was aware of these activities. In any event, about a month later on November 27, 1971, Respondent made Dittle a stocker, a job which carried a wage rate of $2.55 an hour, a higher rate that he had previously earned. The next event of significance here occurred when Respondent's counsel, James C. Mallien, was preparing the instant case for trial . Dittle, who was called as a witness for General Counsel, testified extensively on both direct examination and on cross-examination as to his involve- ment in this pretnal preparation . On direct examination, Dittle testified that on a Monday after New Year's Day, either January 3 or 10, 1972 , while he was at work, he was asked to speak to Respondent's counsel who was in an upstairs office of the store . Dittle stated that he complied with the request. According to Dittle's direct testimony, Respondent's counsel neither advised Dittle of his right to remain silent, nor advised him that no reprisals would be taken if he did remain silent. Rather, Respondent's counsel merely introduced himself and asked whether Dittle had been interrogated. Dittle mentioned the name of employee Bentrup in that connection . The questioning then turned to the discharge of Ross Richardson at which point Dittle refused to answer any further questions. Thereupon Dittle said counsel warned him that if questioned at the Board hearing Dittle's answers had better be true because counsel had recorded his conversation with Dittle on a tape recorder. On cross-examination by Respondent's counsel at the instant hearing, Dittle's memory was refreshed in several particulars . He acknowledged that the interview in ques- tion could not have occurred on January 3 or 10 as he had previously testified, but probably did occur on December 27. Dittle acknowledged further being told at the outset of the interview that the questions he would be asked would relate to the allegations of interrogation and discharge set forth in the complaint. Generally , Dittle confirmed, a little more fully than he had on direct examination, the subject matter of the interview, although in both direct and cross- examination he could not recall much of the conversation that took place. He agreed, however, that the interview ended with the participants on good terms and shaking hands.? General Counsel does not allege-indeed in his brief he specifically disavows-that this pretrial interview was violative of the Act. Nor does the record appear to warrant such a finding. But General Counsel does argue that because Dittle did not cooperate fully at the interview, Respondent thereafter discriminatorily reduced Dittle's working hours, thereby violating Section 8(a)(3), (4), and (1) of the Act. The evidence as to Dittle's working hours is not in dispute. As already noted, Dittle, a college student, was always a part-time employee except for the summer of 1971 when he did not have school sessions . Omitting the first few weeks of his employment, Dittle's working hours ranged between 17 to 22 hours per week . On the week 7 Respondent's counsel did not testify 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ending January 1, 1972, Dittle worked 32.2 hours; January 8, 20.7 hours; January 15, 20.7 hours; January 22, 12 hours; and January 29, 11 hours. The record is also clear that during the holiday season from before Thanksgiving through New Year's, the increase in business calls for more working hours, that thereafter business declines, and that after the holiday season, working hours throughout the store are cut. It also appeared that during the week before the hearing in the grocery department in which Mike Dittle worked, five employees had their hours cut, and the cut in hours in the case of two of these employees was greater than it was in the case of Dittle. In the light of these facts, a claim that Respondent's action in cutting Dittle's hours was discriminatonly motivated is somewhat suspect. General Counsel seeks to discount the overall cut in hours on the ground that the record does not show that, with respect to the employees other than Dittle, the cut in hours was involuntary and that the other employees may have sought the cuts. General Counsel argues also that Respondent did not produce business records to document that these cuts were actually made. The latter suggestion would appear to be only an afterthought; no issue as to these cuts was made at the hearing, and General Counsel did not seek the production of the records. The first contention that, except for Dittle, the other employees whose hours were cut may have sought the cuts is sheer speculation without any support in the record. Under all the circumstances, I find that there is no basis for a finding that the cut in Dittle's working hours was discriminatorily motivated, or that Respondent violated Section 8(a)(3), (4), or (1) of the Act in that regard. E. The Refusal To Bargain The complaint alleges, and Respondent denies, that Respondent has failed and refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. As already noted, the Union wrote to Respondent on October 22, 1971, asking for recognition and bargaining for a unit of employees described as follows: All employees employed at Metcalfe Sentry Food Store, 13255 W. Hampton Ave., Brookfield, Wisconsin, but excluding these employees employed in the meat department, store manager, and supervisor as defined in the LMRA Act as amended. On October 28, 1971, Respondent countered the Union's request for recognition and bargaining with a proposal for a Board-conducted election. 8 G C Exh 5 lists 44 individuals who were,workmg for Respondent at the time of the Union's demand for recognition No meat department employees are included in this list General Counsel urges, and I agree, that, of the 44 individuals, the following should be excluded from the appropriate unit because of their relationship to Jerome Metcalfe and/or because of their supervisory status E Metcalfe-father of Jerome Metcalfe and chairman of the board M Metcalfe-mother of Jerome Metcalfe and secretary-treasurer George Weis-assistant manager of the store H Kapelke-head checker R Hiltsley-produce manager H Vatsatkio-deli-bakery manager R Riley-assistant store manager (under Weis) Omitting these 7 individuals, the appropriate unit consists of 37 employees General Counsel urges that Joe Laundry whose job is making pizzas and Respondent does not question that the unit of employees sought by the Union is appropriate. I find that it is. I find further that the Union at all times relevant here enjoyed majority status among the employees in that unit. On the basis of the evidence adduced at the hearing, I find that the unit consisted of either 36 or 37 employees.8 As of October 22, 1971, the date of the Union's request for recognition, 21 valid union authorization cards had been signed. One more was signed on October 24, another on October 26, and still another on November 11 .9 However, the existence of majority status does not without more establish that Respondent's refusal to bargain was wrongful or justify the imposition of a bargaining order. Rather, the question then becomes, as framed by N.L.R.B. v. Gissel Packing Company, 395 U.S. 595 (1969), whether Respondent's course of conduct was such as to justify a bargaining order without resort to an election. Such an order would obviously be appropriate, under Gissel, in "exceptional" cases marked by "outra- geous" and "pervasive" unfair labor practices. This is not such a case. However, the Supreme Court in Gissel also approved the Board's use of a bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes . . . . In fashioning a remedy in the exercise of its discretion, the Board can properly take into consideration the extensiveness of an employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is a slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. [395 U.S. at 614-615.] The Supreme Court then made reference (p. 615) to still a third category of cases "which, because of their minimal impact on the election machinery, will not sustain a bargaining order." At first blush this case would appear to fall in the third category. Of the several allegations of unfair labor practices made by General Counsel in this case, I have found adequate support for only one, the discriminatory discharge of Ross Richardson. To be sure, the discharge of a leading union adherent for discriminatory reasons cannot be regarded as trivial. Yet in the total context of this case, whose work station is in the meat department should also be excluded On this basis there would be 36 employees in the unit However, I am unable to determine on the basis of this record whether or not Laundry should be excluded 9 Respondent, in its brief to the Trial Examiner, does not challenge the validity of any of these cards as valid designations of the Union as bargaining representative for the employees concerned On this aspect of the case, Respondent contends merely that it had a good-faith doubt of the Union's majority and that it has engaged in no conduct which would preclude an election to determine the majority issue In any event, the record would provide a possible basis-which I do not find adequate-to challenge the validity of cards signed by employees O'Hearn and Wojoiechowski Even assuming arguendo the invalidity of these two cards majority is nonetheless clearly established SENTRY FOOD STORE 885 standing alone, it would not appear that the discharge of Ross Richardson would so "undermine majority strength and impede the election processes" as to warrant a bargaining order. Indeed, the record shows, that even after the discharge the Union was able to obtain a few more authorization cards. Yet this case does not stand alone. It has a history. Less than 2 years earlier Respondent had frustrated an organizational effort by this same Union when, as the Board found, Respondent discriminatorily discharged Frank Peck, a leading union adherent. Respondent was directed at that time to cease and desist, inter aha, from "[d]iscouraging membership in Retail Store Employees Union, Local No. 444, AFL-CIO [the Union herein], or any other labor organization, by discriminating in regard to the hire and tenure of employees or any term or condition of their employment." 184 NLRB No. 40. Yet, as soon as the employees renewed their effort, as they did in this case, to bring the Union in as their bargaining representative, Respondent in the teeth of the order issued against it only 16 months earlier utilized the same discharge technique to subvert the renewed organizational effort. The traditional remedy imposed by the Board in the first case did not operate to prevent Respondent from resorting to the same unlawful technique in the current situation. There is no reason to suppose that a like remedy imposed in the instant case would be more effective.10 In view of Respondent's demonstrated proclivity to frustrate the organizational efforts of its employees, "the possibility of erasing the effects of past practices and ensuing a fair election-by the use of traditional remedies is slight" (Gissel, supra at 615). Although singled unfair labor practice was found in each case, the cumulative impact is no less than that which would have been created by a broader pattern of unfair labor practices. More particularly, the likelihood of "recurrence" to which Gissel also makes reference, is markedly pertinent here. In sum, I find that Respondent's conduct here amounted to an unlawful refusal to recognize and bargain with the Union in violation of Section 8(a)(1) and (5) of the Act. I find further that the remedy of a bargaining order is appropriate either for an 8(a)(5) or an 8(a)(1) violation. The conduct of Respondent in this case viewed against the background of its conduct in the earlier case emphasizes the likelihood of its recurrence in the future. Gissel, supra. the meat department and guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining. 3. At all material times, the Union has been the designated representative of the majority of the employees in the aforesaid unit. 4. By refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid unit Respondent has violated Section 8(a)(1) and (5) of the Act. 5. Respondent has not violated the Act in the other respects alleged in the complaint. REMEDY In order to effectuate the policies of the Act and enforce its mandate, I will direct Respondent to cease and desist from engaging in the unfair labor practices found and from like or related unfair labor practices. Affirmative relief is likewise appropriate and necessary in the circumstances. Accordingly, I will direct Respondent to reinstate Ross Richardson to his former position or, if such position no longer exists, to a substantially equivalent position, and to make Ross Richardson whole for earnings lost as a result of his discharge by paying him an amount of money equal to that which he would normally have earned, absent the unlawful discrimination, from the date of his discharge to the date of Respondent's offer of reinstate- ment, less his net earnings, if any , during such period. Backpay shall be computed on a quarterly basis, and interest at 6 percent shall be added. See F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, I shall direct Respondent to bargain collectively, upon request, with the Union as the exclusive bargaining representative of the employees constituting the unit found appropriate here, and to embody any understanding reached in a signed agreement. To facilitate these ends, the remedial order will include the customary record-keeping and notice-posting provi- sions. Upon the foregoing findings of fact, conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER ii CONCLUSIONS OF LAW 1. By discharging Ross Richardson to discourage union activities Respondent has violated Section 8(a)(3) and (1) of the Act. 2. All employees employed at Metcalfe, Inc., d/b/a Sentry Food Store, 13255 West Hampton Avenue, Brook- field, Wisconsin, excluding those employees employed in 10 The Respondent may feel that the cost of reinstatement and backpay and the requirement to post notices are small price to pay for keeping the Union out Moreover, it is a distinct likelihood that repeated rebuffs to the employees will chill , if not destroy, their legitimate efforts to select a collective-bargaining representative A possible answer, of course, is to obtain court enforcement of a Board order and thus set the stage for contempt proceedings against a recalcitrant respondent While this may serve to rectify the recalcitrance, it is in its very nature a time-consuming Respondent, Metcalfe, Inc., d/b/a Sentry Food Store, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Retail Store Employees Union, Local No. 444, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating against any person in regard to the hire or tenure of his employment or any term or condition of his employment. procedure which will do little to vindicate the statutory rights of the employees, the real victims of the misconduct 11 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations . be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with the above-named Union as the exclusive bargaining representative of all employees employed at its Brookfield, Wisconsin, store, excluding those employees employed in the meat department and guards and supervisors as defined in the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the rights guaranteed under Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the National Labor Relations Act, as amended: (a) Offer Ross Richardson immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for lost earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "Reme- dy„ (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (d) Upon request, bargain collectively in good faith with the above-named Union as the exclusive bargaining representative of the employees in the above-described unit, and embody in a signed agreement any understanding reached. (e) Post at its store in Brookfield, Wisconsin, copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 30, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 12 In the event that the Board 's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, or otherwise discriminate against any employee to discourage activities in support of Retail Store Employees Union, Local No. 444, AFL-CIO, or any other union. WE WILL offer to take back Ross Richardson to his old job and pay him for earnings he lost as a result of his discharge. WE WILL, upon request, bargain collectively and in good faith with the above-named Union as the exclusive bargaining representative of all the employees described below about their wages, hours, and working conditions, and, if agreement is reached, we will sign such an agreement. The employees are: All employees employed at Metcalfe, Inc., d/b/a Sentry Food Store, 13255 W. Hampton Ave., Brookfield, Wisconsin, excluding those employ- ees employed in the meat department and guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with the right of employees to engage in self-organiza- tion or collective bargaining or to refrain from such activities. METCALFE, INC., D/B/A SENTRY FOOD STORE (Employer) Dated By (Representative) (Title) WE WILL NOTIFY immediately Ross Richardson, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon applica- tion after discharge from the Armed Services, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3870.