C & W Super Markets, Inc.

C & W SUPER MARKETS, INC. C & W Super Markets, Inc. and Retail Clerks Union Local 1354, Chartered by Retail Clerks Interna- tional Association, AFL-CIO. Cases 38-CA-2617 38-CA-2742, and 38-RC-1793 August 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 23, 1977, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 attached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, findings, and conclusions2 of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that the Respondent, C & W Super Markets, Inc., Rockford, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Chairman Fanning adopts the findings, conclusions, and recommenda- tions of the Administrative Law Judge for the reasons stated in his concurring opinion in Trading Port. Inc., 219 NLRB 298 (1975). He adheres to his interpretation of N.LR.B v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). as expressed in his dissenting opinion in Steel-Fab, Inc., 212 NLRB 363 (1974), that in the circumstances herein a violation of Sec. 8(a)(5) occurs as of the date the Respondent refused to recognize and bargain with the majority representative of its employees. Donelson Packing Co., Inc., 220 NLRB 1043 (1975). DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This consolidated proceeding was heard on April 19 and 20 and 231 NLRB No. 56 August 9, 10, and 11, 1976, at Rockford, Illinois. The original charge in Case 38-CA-2617 was filed on January 5 and amended on February 9 and 25, 1976. The complaint in Case 38-CA-2617, as amended, alleges violations of Section 8(aX)(), (3), (4), and (5) of the Act in that following the Respondent's refusal of the Union's demand for recognition, based on an authorization card majority, the Respondent engaged in unlawful coercive, retaliatory, and discriminatory conduct which undermined and destroyed the Union's majority status and made impossible the holding of a free and fair election. The charge in Case 38- CA-2742 was filed on April 26, 1976, and a complaint in that case issued on May 24, 1976, alleging a further violation of Section 8(aX)() and (3) of the Act with respect to employee Diane Asbury. Respondent's answers, as amended, deny the commission of the unfair labor practices alleged in the complaints, and allege that alleged discriminatees Terry Schabacker, Dennis King, and Larry Buchanan are supervisors within the meaning of the Act, and are not protected by its provisions. It is also contended that the participation of Schabacker and King in the union organizational drive taints the authorization cards upon which the Union's claim of majority status is based. The petition in Case 38-RC-1793 was filed on August 25, 1975. Pursuant to the Regional Director's Decision and Direction of Election, dated November 12, 1975, an election was held on December 11, 1975, among certain employees of the Respondent-Employer.' The Charging Party-Petitioner lost the election and thereafter filed timely objections to conduct affecting the results of the election. By a supplemental decision on objections, order authoriz- ing consolidation of cases, and direction of hearing, dated March 10, 1976, the Regional Director ordered that a hearing be held with respect to the Petitioner's Objections 1, 2, 5, and 6 alleging in substance unlawful coercive and discriminatory conduct which parallels certain aspects of the amended complaints herein; and that these matters might be the subject of the consolidated hearing before an Administrative Law Judge following which Case 38-RC- 1793 would be transferred to and continued before the Board and that the provisions of Section 102.46 and Section 102.69(e) of the Board's Rules and Regulations, Series 8, as amended, should govern the filing of excep- tions. On March 15, 1976, Cases 38-CA-2617 and 38-RC- 1793 were consolidated for hearing by the Acting Officer- In-Charge of Subregion 38. All parties were afforded a full opportunity to participate in the hearing. Oral argument was waived. The briefs, filed by all parties, have been carefully considered. Upon the ' All full-time and regular part-time employees employed by the Employer at its Rockford. Illinois facility, but excluding the store manager, meat department employees, guards and supervisors as defined in the Act. was found to be the appropriate collective-bargaining unit by the Regional Director. 403 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entire record in the case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION C & W Super Markets, Inc.,2 is, and has been at all times material herein, an Illinois corporation with an office and place of business located at Rockford, Illinois, where it is engaged in the business of retail sales of food and other supermarket items. During the past 12 months, a represen- tative period, in the course and conduct of its business operations Respondent purchased and caused to be transferred and delivered to its Rockford, Illinois, facility, goods and materials valued in excess of $50,000 directly from points outside the State of Illinois. During the same period of time Respondent's gross volume of sales exceeded $500,000. I find and conclude that the Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Retail Clerks Union 1354, Chartered by Retail Clerks International Association, AFL-CIO,3 is, now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Union Campaign Begins Following the termination of Store Manager Ken Dellenberg on August 4, 1975, 4 and the succession of Assistant Store Manager Duane Schmidt to the store managership, employees Terry Schabacker, Larry Buchan- an, Marilyn Palumino, and Dennis King expressed concern to one another about their job security. A suggestion by Buchanan that they try to get a union in the store culminated in Schabacker's requesting Palumino to phone the Union. On August 11 Palumino called. Organizer Velma Skarvan made two visits to the Palumino home that day, during which she obtained signed authorization cards from Marilyn and her son Dino, and gave a supply of blank cards to Marilyn and Larry Buchanan. During the remainder of the day Schabacker, King, and Marilyn Palumino solicited card signatures from employees at the store. Thus, Schabacker signed a card, and obtained signed cards from Russel Lester, Roger Wilson, Karen Brooks, and Mary L. Brooks. Marilyn Palumino obtained signed cards from Daniel Berton, Larry Buchanan, and his wife, Nancy. Dennis King signed a card and obtained signed cards from John Mattocks and Bruce Knutter. Katherine Erlandson signed a card for Larry Buchanan at her home. All of these cards were returned to Skarvan at a third 2 Hereafter referred to as the Respondent, or the Respondent-Employer. I Hereafter referred to as the Union, or the Charging Party-Petitioner. 4 Hereafter all dates are in 1975 unless otherwise specified. This finding is based on the admissions of Store Manager Schmidt and Respondent's president, Robert Q. Whitely, the admissions and omissions of Respondent s answer in Case 38-CA-2617, and Skarvan's testimony. 6 As set forth earlier in connection with the Union's demand for recognition. meeting that day at Schabacker's home about 8 p.m., at which time Schabacker and Skarvan also obtained signed cards from Leonard G. Thorsbakken III, Steven C. Leombruni, and Produce Manager Michael J. Cerroni, for a day's total of 17 cards. Terry Schabacker solicited and received a signed card from Susan Cary on August 12. Thereafter, Marilyn Palumino continued to solicit and receive signed cards from Vickie Ferguson on August 14, Brenda Heidel on August 18, and Brenda Kae Rose on August 19. On August 14 Respondent received a letter from the Union, sent August 12, claiming to represent a majority of its full-time and regular part-time employees at the Rockford, Illinois, facility, excluding the store manager, meat department employees, guards and supervisors as defined in the Act, and requesting recognition and collective bargaining.5 Respondent rejected this demand on August 22, refusing to bargain with the Union, and on August 25 the Union petitioned for an election. A representation hearing was held September 17 and 30. Terry Schabacker and Produce Manager Michael Cerroni testified at the September 30 session concerning their respective duties and authority. In addition, the alleged supervisory status of Bakery Department Head Sue Carey and Frozen Food Department Head Roger Wilson was also litigated. In a Decision and Direction of Election dated November 12, 1975, the Regional Director for Region 13 found that the unit petitioned for was appropri- ate.6 He also found that the two sons of Robert Q. Whitely should be excluded from the unit, and that Schabacker, Cerroni, Carey, and Wilson were not supervisors within the meaning of the Act, and thus eligible to vote in the election. The supervisory status of other employees in Respondent's store was not litigated. The Regional Director's Decision and Direction was upheld by the Board on a request for review, except that Schabacker's status was left for resolution by the challenge procedure. Since the number of challenges at the election were not determinative, his status was not resolved. Thus, the status of Schabacker, King, and Larry Buchanan, alleged discriminatees, is properly the subject of relitigation in the instant proceeding.' B. Whitely Questions Schabacker About Who Started the Union and Threatens to Close the Store On the evening of August 22 when Terry Schabacker went into the office to turn on some lights in the store, Respondent's president, Robert Q. Whitely, invited him to sit down and then asked who was behind the Union. When Schabacker replied that he did not know, Whitely persisted asking, "Larry Buchanan is behind it, isn't he?" When Schabacker failed to respond to this question Whitely became angry and said, "Terry, quit sh--- me, you know everything that goes on in this store." Then Whitely asked, "Are his initials L.B.?" Schabacker nodded his head I Amalgamnated Clothing Workers ofAmerica, A FL-CIO [Sagamore Shirt Co.] v. N.L.R.B., 365 F.2d 898 (C.A.D.C., 1966); Farm Fans, Inc., 174 NLRB 723, 724 (1969); Stanley Air Tools, Division of the Stanley Works, 171 NLRB 388, 389 (1968). The status of these employees is discussed in sec. III, J, of this Decision. 404 C & W SUPER MARKETS, INC. affirmatively, whereupon Whitely, whose agitation had increased, responded "Good, I knew it because he's worked in a union store before." Then Whitely added that the store had never made a dime as long as he had been there, and stated, "I will close the door before I ever let a union in here." 8 C. The Discharges of Larry and Nancy Buchanan on August 23 Nancy Buchanan worked as a part-time stocker and cashier, while her husband Larry was Respondent's frozen food manager. 9 On August 23, while they were away on vacation, Larry and Nancy Buchanan were discharged. Respondent's personnel records for these employees each contains as a final entry, "Terminate 8/23/75-fired d/n/r vacation pay to 8/30/75." These records also contain an entry showing that the Buchanans each received an increase in pay on August 4. The record shows that the Buchanans were first informed of their discharges upon their return from their vacation on August 30, at which time they were told the reason for their termination was their inability to get along with their fellow employees. Robert Q. Whitely testified that he and Duane Schmidt decided to discharge the Buchanans, upon Schmidt's recommendation, during a wage review conference with Schmidt on the last Sunday in July, a result of a talk Whitely had with Schmidt earlier that week concerning his intention to promote Schmdit to store manager. Although not all the employees were selected for raises, it was nevertheless decided to give the Buchanans a 15-cent "token" raise in order to ward off any questions they might ask. As Whitely put it in his affidavit to the Board, "it was the least [he] could do." Some employees did not receive a raise. Others also received a 15-cent increase. Concerning the reason advanced for the discharge of the Buchanans, Whitely testified that he based his decision on reports he had received during the summer of 1975, from persons whose names he could not recall, informing him about an altercation between Larry Buchanan and Michael Cerroni. Whitely was unable to relate any other specific examples of the Buchanans' alleged inability to get along with fellow employees. Instead he attributed their termination to an "accumulation of circumstances and my own observation." Whitely admitted that he conducted no investigation of any of these incidents, nor did he ever take the matter up with the Buchanans. The record reveals that none of the Respondent's employee witnesses, including Cerroni, testified to an inability to work with the Buchanans. The only evidence of any friction whatsoever was provided by the testimony of I I find. that at all times material herein. Whitely acted as an agent of the Respondent within the meaning of Sec. 2(13) of the Act. Whitely admitted having a conversation with Schabacker about the Union around August 22. and did not deny making the remarks which Schabacker attributed to him. Whitely testified that all he could recall about the incident was Schabacker's saying he was out of the union organizational attempt and was neutral. According to Whitely, during a second conversation with Schabacker at a slightly later time in August, Schabacker stated that if Whitely fired Larry Buchanan he would be in big trouble. Whitely could not remember anything else that either he or Schabacker said during this purported later conversation. I credit Schabacker's version. Throughout his testimony Whitely impressed me as a witness dedicated to telling a winning story. As Russel Lester, a part-time checker, who testified that in July or August 1975 he observed Larry Buchanan and Mary Loos had an argument concerning calling Nancy Buchanan away from her work station to check in the front of the store at a time when she had other work to do.10 Schmidt's testimony paralleled that of Whitely, but contradicted it and his own earlier testimony at one point when, after reviewing the affidavit he gave to the Board, he stated that the decision to grant the Buchanans a raise was made at a separate meeting prior to that at which it was decided to discharge them; i.e., the meeting at which he learned he would become store manager. Subsequently, Schmidt reversed his testimony again, and ultimately asserted that he didn't know in which conversation these events occurred, but remembered that it was at the end of July. Schmidt maintained that he had had a confrontation with Larry Buchanan in 1974, but nothing was done about this incident at the time. He also stated that the Buchanans had had disagreements with part-time cashier Olga Tehran and that both the Buchanans could not get along with a clerk named Jackson, Mary Loos, Betty Bogard, and Mike Cerroni. Of this group of employees only Bogard and Cerroni testified at the hearing, and both gave no evidence about having had any difficulties with the Buchanans. I find that Larry Buchanan was discharged because of his union activities, and that Nancy Buchanan was unlawfully terminated as a further retaliatory measure because she was his wife. The evidence, considered as a whole, supports no other logical conclusion. Thus, on the day after Whitely pressed Schabacker into admitting that Larry Buchanan was behind the Union, and at a time when the Buchanans were the recent recipients of a selective wage increase, they were discharged for a reason which is almost totally unsupported by the evidence in the record. These factors, considered in the context of the shifting, conflicting, and generally incredible testimony of Whitely and Schmidt, cause me to find, even in the absence of testimony by the Buchanans themselves, that their termina- tions were motivated by Larry Buchanan's activities on behalf of the Charging Party-Petitioner, and Respondent's desire to discourage such activities by other employees. D. The Alleged Violations of Section 8(a)(1) Associated with the Hiring of Greg Buban, Jeff Jaynes, and Rick Hale During Late August and Early September At some point described as being in "very late August," Greg S. Buban called Store Manager Schmidt, stated that he wanted to leave his present job, and asked how the employment situation looked at Super Foods. Schmidt exemplified by his testimony concerning the August 22 conversation with Schabacker, he frequently suffered from a convenient memory, recalling and embellishing points he considered to be in Respondent's favor while minimizing and frequently completely forgetting important events which he deemed detrimental to Respondent's case. Consequently, I credit his testimony only where specifically indicated. On the other hand, I found Schabacker to be. generally, an intelligent, honest. and forthright witness who frequently displayed an excellent memory for detail. 9 Respondent's contention that Larry Buchanan was a supervisor within the meaning of the Act will be discussed in a later section of this Decision. 'o Mary Loos, Larry Buchanan, and Nancy Buchanan did not testify. 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responded that he thought he could give Buban a job, and for him to contact him later." On a weekend near the beginning of September, Buban went to the store. Schmidt took him outside behind the meat market doors, stated that there was a union thing going on, and said he didn't want Buban signing a union card. Then Schmidt told Buban to come in at the beginning of the week and they would discuss his hours and rate. Buban did as he was instructed, and began work as a part-time stocker. 2 After about a week Schmidt had another conversation with him in the bakery. Schmidt stated that he wanted Buban to do whatever he thought was best, but to try and remain neutral through the whole thing and not have a side. Schmidt admitted having a conversation with Buban during the latter part of August in the area of the store behind the meat department, at which time he "made Mr. Buban aware" that an organizational drive was in progress and said he hoped Buban would remain neutral. Schmidt also agreed that he had a second conversation with Buban in the bakery, which he placed during the first half of October. According to Schmidt, he advised Buban that he had been informed Buban was feeling some pressure from other employees in the store over the Union, that he was satisfied with Buban's work, and that it made no difference whether Buban voted one way or the other. Buban impressed me as a somewhat frightened witness who was reluctantly telling the truth. Schmidt impressed me, here, as in other portions of his testimony in this case, as a person torn between a basic desire to be truthful and the overriding necessity of supporting his employer. As a result, Schmidt frequently admitted the occurrence of events in the context of which violations occurred, but then attempted to defuse the legal consequences arising from these events by distorting or embellishing what was said or what occurred. For example, it is beyond belief, in the context of this case, that it made no difference to him which way Buban voted. I credit Buban's testimony and find that Schmidt violated Section 8(a)(1) of the Act by interfering with his right to engage in lawful union activities when he instructed Buban not to sign a union card, and to try to remain neutral and not have a side. Gerbes Super Markets, Inc., 176 NLRB 11 (1969), enfd. 436 F.2d 19 (C.A. 8, 1971). Jeff Jaynes,'3 who had previously been employed by Respondent, was contacted in June concerning reemploy- ment by means of a telephone call from Whitely to Jaynes' mother. Later Jaynes received word from Whitley through his aunt, Donna Terrill, to apply for work at Super Foods in late August, when his seasonal job ended. Pursuant to these instructions, Jaynes went to the store sometime between August 20 and 23, where he met Schmidt who led him into the office. After discussing Jaynes' forthcoming work schedule, Schmidt asked if his aunt had told him about the Union, and if he was acquainted with what was happening at the store at the time concerning the Union. Jaynes replied that his aunt had talked to him about it. Then Jaynes, as a stockboy at Super Foods, testified that " Respondent's answer admits Schmidt is a supervisor within the meaning of the Act, but does not admit he acted as an agent of Respondent. I find at all times matenal herein he was an agent within the meaning of Sec. 2(13) of the Act. 2Z Respondent's records show Buban and Jaynes first listed on the week ending August 30. he performed the same duties as Dino Palumino, Greg Buban, Mark Powell, and Rick Hale. Following either the September 17 or the September 30 session of the represen- tation hearing, Jaynes was on his break in the break room with a few of the other employees when Mr. Whitely came to the door. Whitley had just returned from the hearing and began talking openly to one of the employees in the break room about the union matter. As the break period ended and Jaynes was leaving the room to return to work, Whitely looked in Jaynes' direction and stated, "Anyone who sticks with me through this thing will be justly rewarded." Whitely testified that he could not recall having a conversation with Jaynes following the September 17 session of the representation hearing. I credit Jaynes' testimony and find that Whitely violated Section 8(a)(1) of the Act by promising to reward employees who supported the Company against the Union. During the first part of September Duane Schmidt hired Richard Hale as a part-time stockclerk.14 As such, Hale was responsible for the soap aisle, and also worked with milk and glassware. When Hale arrived at the store for the purpose of setting up his work schedule, Schmidt talked with him about the Union in the backroom. He mentioned that the Union was trying to come in, and Hale replied that he could work with it or without it, it didn't matter to him. Then Schmidt answered that he didn't want to tell Hale how to go on it one way or the other, and that it was basically up to him, just to keep his nose clean. In his testimony Schmidt omitted any reference to this incident. On the other hand, Hale displayed a poor memory while testifying, requiring considerable prodding by the use of leading questions and the refreshment of his memory with his affidavit. I find his testimony concerning his conversa- tion with Schmidt to be unreliable and make no finding of any violation based upon it. Furthermore, I note that the remark attributed to Schmidt by Hale concerning keeping his nose clean was prefaced, in Hale's words, by the statement that Schmidt did not want to tell Hale how to go. Therefore, as phrased, the remark attributed to Schmidt by Hale is at most ambiguous, and thus I find it not violative of Section 8(aX)(1). E. Whitely Threatens Dennis King and Interrogates King's Wife Dennis King was one of the original employee organizers involved in the birth of the Union's campaign. During the first week in September Robert Whitely asked King to come to his office when he had time. The following day King went to the office. Whitely locked the door, and proceeded to talk to King about his job and about the Union. Whitely said that the store hadn't made a dollar since it had been in business, and that he thought King had been doing well for him. Whitely said that the reason he had been riding King was not his fault, it had been Dellenberg's fault, and that King didn't have any worries about being fired while he was on vacation. Then Whitely 3' Spelled Janes in Respondent's payroll records. 14 Hale's name, spelled "Haile," first appears in Respondent's payroll records for the week ending September 6. 406 C & W SUPER MARKETS, INC. stated that he had had one other store that had wanted a union, and that between the time the union had won the election and become installed in the store, the people that had voted for it were not there. Whitely admitted having a conversation with King in his office during mid-September, about 8 p.m. He conceded that he initiated the meeting which lasted for about 5 or 6 minutes. Whitely agreed discussing King's job perfor- mance, but in terms of a training program that they were inaugurating which Whitely thought might interest King. Whitely agreed, however, that he did discuss Respondent's vacation policy in the context of reassuring King that he should schedule his vacation whenever he wanted it without fear of termination, as had occurred recently with respect to others. Whitely did not deny talking to King about the Union. I credit King's version and find that Whitely's remark about what had transpired at his other store following an election, constituted a threat to dis- charge C & W employees who favored the Union. Tommie King, Dennis' wife, testified that while shopping at Respondent's store during the week of September 22 she was approached in aisle 4 by Whitely who asked her which her husband was for, him or the Union. Mrs. King replied that her husband hadn't made up his mind, and whichever way he decided, she would stand behind him. Later she repeated this conversation to her husband. In his direct testimony Whitely denied knowing Tommie King or having any conversation with her on or about September 22. On cross-examination he retreated from this position, stating that he had "greeted Mrs. King from time-to-time over the months, in the aisles if she might be shopping," but that he did not remember having a specific conversa- tion with her. Under these circumstances I credit the testimony of Tommie King. F. The Alleged Agency Status of Mary Loos and her Alleged Threats to Terri Mitchell Terri Mitchell had been previously employed by the Respondent from September 1972 to April 1973. On September 5 Mitchell went to the store and talked with Duane Schmidt concerning reemployment. Schmidt told her that he would not guarantee her hours, but would try to get her in. He said that she would receive a call later that afternoon from Mary Loos. That afternoon Loos called and told Mitchell that certain employees were trying to bring in the Union, that they really didn't want it in, and that those who valued their jobs would vote no against the Union. Mitchell responded, "Does that mean I vote no?" Loos answered, "Yes," and Mitchell responded, "Okay." Around September 17, while Mitchell was visiting at Loos' home, Loos repeated her remark that anyone who valued their job would vote no. After her talk at Loos' house, Mitchell returned home to prepare to go to work, but before leaving home she called Loos. Mitchell said that she had signed a union card, but that she valued Loos' friendship more than getting in the Union and asked if i~ I also find that her remarks to Mitchell a week pnor to the election violate Sec. 8(aXl). These statements constitute an unlawful threat to discharge employees, and an attempt to solicit the assistance of Mitchell in unlawful conduct. 16 Mitchell and Respondent's witness, Russel Lester, both testified, in there was some way she could make it up to her. Loos replied that she wasn't going to tell Mitchell what to do, but maybe she should go see Mr. Whitely, and he might tell her. Mitchell agreed, hung up, and called Whitely. Whitely responded that he would return her call on his private line, and when he did so Mitchell asked to speak with him when she came to work. Whitely agreed. At the store, during her break, Mitchell asked Whitely what she could do to make it up to him for writing a statement, which she testified she had voluntarily given, to the Union stating that she had been hired to vote against the Union. Whitely answered that she would have to act on her own, but added that she was on the right track, when Mitchell wrote out another statement for Whitely retracting the one she had written for the Union. Thereafter, Mitchell continued working as a cashier, and, as she testified, trained "for office duties to relieve Marilyn Palumino of her job." This training began around a week before Thanksgiving in accordance with instructions given her by head cashiers Mary Loos and Betty Bogard. The training consisted of learning to take over the courtesy counter on the day shift. One day, about a week before the NLRB election, Loos told Mitchell that they were trying to fire Terry Schabacker, Marilyn Palumino, Brenda Heidel, Kathy Erlandson, and Dennis King, and if she could help the cause along to go ahead, but stated, "It has to be a legit reason." The complaint, as amended, alleges that Mary Loos acted as an agent of the Respondent in threatening Mitchell on or about September 5 and November 19. Loos did not testify. Mitchell agreed on cross-examination that she considered Loos a close friend. However, she also said that while she had given a statement to the Union voluntarily, she had written a retraction for Whitely because she was afraid of losing her job. I am persuaded that Mitchell was telling the truth. She exhibited a good memory while testifying and did not attempt to hide the fact that she had wavered because of fear and conflicting loyalties. I credit her testimony and find that Mary Loos threatened Mitchell. I further find that Respondent is responsible for these threats, thereby violating Section 8(a)(1) of the Act, since the General Counsel has adduced through Mitchell undenied and credible evidence that Loos acted as an agent for Respondent within the meaning of Section 2(13) of the Act. Loos called Mitchell on Septem- ber 5 to question her about her sympathies and threaten her at a time when Schmidt had assured Mitchell, before agreeing to hire her, that she would be receiving a call from Loos.t 5 In this context, Loos' statement on the phone that those that valued their jobs would vote no against the Union was the type of information which, under the circumstances presented, could only have come to her from Schmidt.16 addition, that Loos and Lester were members of a group of antiunion employees who called themselves Concerned Action Clerks who used Whitely's office to prepare letters in support of their employer's position during the election campaign. 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. The Alleged Discriminatory Refusal to Hire Pamela Garrison in Late September Pamela Garrison had previously worked for Respondent as a cashier from July until December 1974. In late September she telephoned Schmidt and asked him if he would be needing any help. Schmidt replied that he could probably use her, and for her to come in and fill out an application. Garrison went to the store, either that same day or the following day, and obtained an application from Mary Loos. Garrison testified that while she was talking to Loos she noticed the employees in the store were not speaking to one another, and asked Loos what it was all about. Loos replied that an effort was being made to get a union in the store, and Garrison responded that she thought that was "Great." Loos asked, "Oh, you are for the Union?" and Garrison answered, "Yes, I am." Garrison finished filing out the application, gave it to Mary, and proceeded to where Schmidt was working. She stated that she had filled out an application, and asked, "What is going on around here?" Schmidt replied, "Oh, everybody is on their high horse about the Union. Nobody is more or less speaking to each other." Then Garrison said that she did not understand the situation because everyone had been so friendly before, and that she "thought the Union was great." Then Schmidt asked, "Oh, you are for the Union?" and Garrison said, "Yeah." Then Schmidt told Garrison he would get back to her about the job, or for her to call him later on in the week. About a week later, when Garrison had heard nothing from Schmidt, she went to the store where he told her there were no openings, but if one occurred he would let her know. Garrison heard nothing more from Respondent about a job. On December 11, while shopping in the store, she paused to talk with Marilyn Palumino. Schmidt approached her and asked what she was doing in the store. When Garrison answered that she had bought some cigarettes and used the phone, Schmidt asked her to leave. Schmidt testified that during Garrison's previous em- ployment with the Respondent while Dellenberg was store manager, he observed that she failed to report for work on several occasions. Schmidt did not specify when or under what circumstances these absences occurred. He testified that when Garrison called he told her he did not have any part-time cashier's jobs available, but that she could come in and fill out an application. Schmidt denied talking to her when she came to the store. He testified that he had known in the past that she was not a responsible person, and that he checked her personnel record card, verified his opinion of her as an employee, and decided that she would not be rehired. He testified that the only other time he saw Garrison in the store was in December at the courtesy counter with Marilyn Palumino, at which time he asked her to leave. He did not explain why he invited her to come to the store and fill out an application when he knew she had not been a satisfactory worker. 17 The most casual examination of these entries reveals, and I find, that they were written by different persons at different times. No explanation was given for this discrepancy in the exhibit. 18 The complaint alleges that the refusal to hire Garrison occurred on September 21. At one point in his brief counsel for General Counsel argues that this date was October 21. 1 find that the Respondent discriminated Garrison's personnel record, to which Schmidt referred, was introduced into evidence. It contains an entry, dated December 16, 1974, showing that Garrison terminated her employment on December 13, 1974. The word "terminate" appears in cursive writing. On the same line as this entry, in much darker characters and a mixture of different cursive writing and printing, appears a further entry "Quit-NG (Do not rehire)." 17 According to Schmidt his examination of this record confirmed his memory that Garrison had been a poor employee and should not be rehired. On cross- examination, Schmidt agreed to having given an affidavit to the Board, dated February 17, 1976, in which he stated that at the time Garrison filled out her application he told her she would be considered if a job came up, and that thereafter no cashier's job fell open so she was not hired. Schmidt ended his account of the Garrison incident in his statement with the words, "That is all there is to it." During cross-examination Schmidt admitted that on November 17, 1975, Evelyn Hale was hired as a part-time cashier, a time when Garrison's application was still on file. Finally, it is clear that the account of the Garrison incident which Schmidt gave to the Board in his affidavit entirely omitted any reference to the sole reason advanced for not hiring Garrison; i.e., that she was a poor worker and that the personnel record from her previous period of employment contained a notation that she should not be rehired. No explanation for these inconsistencies in Schmidt's testimo- ny was provided. I therefore credit Garrison's account and find that the reason advanced by the Respondent for failing to hire Garrison is a pretext, and that the real reason was her expression of her prounion sympathies, as she described. I find that the Respondent violated Section 8(aXl) and (3) of the Act by failing to hire Garrison in late September.18 H. The Alleged Discriminatory Reductions in Working House of Terry Schabacker, Dennis King, Marilyn Palumino, Katherine Erlandson, Brenda Heidel, and Diane Asbury; and Dino Palumino's Reduction in Hours and Discharge I. Terry Schabacker and Dennis King Following the September 17 session of the representation hearing at which he was the principal witness, Whitely returned to the store and approached Terry Schabacker stating, "I was with your friend Velma all day." Then Whitely drew Schabacker aside in the front of the store and began describing what had transpired at the hearing, including the fact that he was unhappy at having missed lunch and had had to testify concerning some personal matters. Schabacker described Whitely as frowning and speaking loudly. At this point, while poking Schabacker in the shoulder with his index finger, Whitely remarked, "Terry, we'll see how you do the next time. There will be a next time." Whitely admitted having a conversation with against Garrison on the date she informed Schmidt she favored the Union, on which date Schmidt fixed his intention not to hire her because of her union sympathies. The calendar date, from which point the Respondent will be required to make Garrison whole, is a matter for compliance. See Goodwater Nursing Hornme, Inc., 222 NLRB 149, AUD, fn. 12 (1976). 408 C & W SUPER MARKETS, INC. Schabacker on September 17 in which he said he had spent the day with Velma Skarvan and her friends, and had been asked many personal questions. Whitely could not recall saying anything else. Schabacker's version is credited. The second and final session of the representation hearing was held on September 30. The record of the representation proceeding shows that following the completion of White- ly's testimony, Schabacker contradicted portions of White- ly's testimony. Immediately following the completion of the hearing Whitely approached Schabacker in the hearing room and ordered him to go directly to work, observing that Schabacker was already late. Schabacker explained that he had no choice about being late, since he had not been released from his subpena until after the hearing. Then Whitely answered, "Well, you better be there when I get there." When Whitely arrived at the store and found Schabacker already working, he remarked, "I see you made it." After Schabacker answered, "Yes," he observed Whitely proceed to where Marilyn Palumino was working. Nothing else was said to Schabacker. Whitely remembered having a conversation with Schabacker at the courthouse following the hearing and asking Schabacker if he was scheduled to work that night. He could remember nothing else about this conversation, although he recalled that in addition to Schabacker, Duane Schmidt, Roger Wilson, Michael Cerroni, Sue Cary, Marilyn Palumino, Brenda Heidel, and several others attended the hearing.?9 Whitely also remembered that upon returning to the store that evening he commented to Schabacker that he had "made it." Thus, Whitely's testimony tends to corroborate that of Schabacker. Schabacker's more detailed version is credit- ed. The Company's records show, as summarized and graphically displayed in detail in the General Counsel's brief, that Schabacker and King's hours were drastically cut in early October, shortly after the closing of the representation hearing. When Schabacker first observed this drastic reduction on the posted work schedule, he questioned Schmidt about the matter. Schmidt responded that business was down. When the work schedule for the following week revealed a continued reduction in hours, Schabacker went to Schmidt again and asked when he could get his hours back. This time Schmidt replied, "Terry, you blew it, but, for the record, your hours were cut because business is down." A few days later Schabacker again approached Schmidt and asked what he would have to do to get the hours back. Schmidt answered, "Terry, the only way you're going to have a future with this company again is to talk to the old man." 20 According to Duane Schmidt he reduced the working hours of Schabacker and King because he had received reports from other employ- ees "that there was some fooling around going on; long break periods; other people had to cover for these break 19 Whitely testified that it was at the September 30 session of the heanng that he learned "specifically" who was involved in the Union. 20 Schmidt admitted having a conversation with Schabacker, in which he told him he'd have to talk to Whitely. He also agreed that there were probably other conversations in October with Schabacker concerning his reduction in hours. 21 Only Hale and Lester testified concerning having reported employees taking long breaks. Hale, who had been hired in September only shortly before the reduction, testified that he noticed Schabacker's and King's periods while these people were on these extended breaks; [and] certain duties weren't getting done." He identified the persons who had made these reports as part-time employees Dick Nortch, Jeff Jaynes, and Rick Hale, and full-time clerk Russel Lester. 21 Schmidt could not recall ever having had a conversation with Schabacker and King in which he confronted them with the reports he had received. Schmidt conceded that it was possible he might not have had any such conversation at all.22 Schmidt also testified, at another point, that he reduced Schabacker's and King's hours to bring them into line with his own, but that their duties and responsibilities did not change further until December when he relieved them of their night responsibilities. Schmidt conceded that in October he knew that Schabacker, King, Erlandson, Marilyn Palumino, and Brenda Heidel were union supporters. Robert Whitely testified that it was he who ordered the reduction of Schabacker's and King's hours based on reports from Roger Wilson, Lester, Jaynes, Nortch, and Hale over a period of 10 days at the end of September that Schabacker and King "had not been carrying out their responsibilities." Whitely admitted, however, that he never discussed these reports with Schabacker, nor did he testify that he had such a discussion with King. On the contrary, concerning Schabacker, Whitely testified that Schabacker had been a good conscientious employee, and that "from force of habit" he knew that Schabacker would continue to perform the type of service he had been doing before. Thus, in summary, it is clear that, immediately following the representation hearing at a time when the Respondent was acutely aware of the union activities of Schabacker and King, it sharply reduced their income by cutting their working hours. Credible testimony shows that, having been angered by learning at the hearing of the extent of his employees' organizational activities, Whitely retaliated immediately. Schmidt even informed Schabacker of the true reason for the reduction, telling him he "blew it," and only subsequently sought to hide it by the assertion that the cut occurred as a means of discipline for poor work performance. Finally, the Board has often held that the failure on the part of an employer to verify employees' reports that other employees have engaged in improper conduct, and the failure to give the accused employee an opportunity to deny or explain such accusations before disciplinary action is taken, is a strong indication that the assertion of such alleged misconduct as a reason for the employer's action is a pretext, and that the true reason lies elsewhere. Such is the case here, where the record specifically shows that the testimony of the Employer's witnesses, including those who allegedly made such reports, is inconsistent and conflicting. I am therefore persuaded by a preponderance of the evidence that Schabacker's and King's hours were reduced because of performance fell off near the end of September and that he took a number of long breaks with them during this period of time. He also noticed that Schabacker got his work done and stated that in his opinion Schabacker was a good worker. Lester testified that he could not recall Schabacker taking a long break. The record also shows that Lester had knowledge of the union activities of Schabacker, King. and Marilyn Palumino. 22 In view of this testimony by Schmidt. I find that he did not inform them of these accusations. 409 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their activities in support of the Union's organizational drive, and in the case of Schabacker also because he testified at the representation hearing. 2. Marilyn Palumino Marilyn Palumino worked in that portion of the front office of Respondent's store commonly known as the courtesy counter, where she cashed checks, performed customer service duties, and prepared a daily sales report each evening. In late September her normal working hours were from 5 to 10 p.m. According to Duane Schmidt, at some unspecified time, Whitely mentioned to him that he would like to have the sales report completed within a 3- hour time span in order that he could review it when he returned to the store in the evening.23 Whitely felt that the report could be completed in 2-1/2 to 3 hours and complained that this was not being done. On another unspecified occasion Whitely returned to the store and complained to Schmidt that the report was not on his desk at 9:30 in the evening. Because it was felt that Palumino was not completing the reports promptly, her hours were reduced to from 5 to 9 p.m. Later in October or November, according to Schmidt, Palumino's hours were further reduced because Respondent's volume of business, and consequently the check cashing activity, were down.24 Schmidt testified that Palumino's hours were reduced pursuant to a discussion with Mr. Whitely. Whitely's testimony supported that of Schmidt. He agreed that he made the decision to cut Palumino's hours based on his personal observations of her work "from time to time" during a number of weeks in September and October, during which he concluded that she was not completing her reports in a timely fashion. I do not credit the testimony of Whitely and Schmidt concerning the reasons they espoused for having reduced Palumino's hours. I am persuaded and conclude that the reasons they have advanced were designed to hide the fact that they were actually penalizing Palumino because of her union activities. There are several considerations, strongly supported by the record, which all point to this conclusion. First, reduction in Palumino's hours occurred contempora- neous with the discriminatory reduction of other prounion employees' working hours. Second, credible testimony on the part of Palumino shows that on September 30, following the representation hearing, Whitely approached Palumino at the courtesy counter, berated her for leaving the hearing early, and angrily complained about Terry Schabacker's testimony. Whitely continued, "By the way, don't you know that you run the store?" Palumino replied, "No, I didn't know that I run the store." Whitely: "Well, according to Terry Schabacker you do run the store." Palumino responded, "From what I was told no one runs this store but Smitty." 25 Third, in another portion of his 23 At this particular time the store was open until midnight. 24 The Company's payroll records show that commencing with the week ending September 27 Palumino's hours were reduced by 4 hours, and that a further reduction occurred beginning with the week of October I i. 25 Schmidt testified that he was nearby when Whitely talked to Palumino, and that Whitely did not raise his voice. Schabacker testified that immediately after his September 30 confrontation with Whitely at the store following the hearing, he saw Whitely proceed toward where Palumino was working. I credit Palumino. testimony, with Whitely's and Schmidt's inability to be specific concerning when Palumino allegedly took too long to prepare the reports, the lack of any documentary support for the assertion that Respondent's volume of business declined in October, and the absence of any evidence showing that the Respondent ever discussed with Palumino the alleged problem of her taking too long to prepare sales reports persuades me that the reasons Respondent has advanced for its action concerning Palumino are fabrications, and that a preponderance of the evidence showed that the reduction in her hours was motivated by her union activities, and I so find.26 3. Brenda Heidel and Kathy Erlandson Katherine Erlandson signed a union card on August 11. Brenda Heidel signed a card on August 18. Both were active in the Union's campaign and both attended the September 30 session of the representation hearing along with Tommie King and Marilyn Palumino. Duane Schmidt acknowledged that in October he became aware of the fact that they were union supporters. As stated earlier, Whitely acknowledged that at the September 30 hearing he became aware of who was involved in the Union. The General Counsel contends that as in the cases of Schabacker, King, and Marilyn Palumino, Heidel's and Erlandson's hours were drastically reduced immediately after the representa- tion hearing. Concerning Brenda Heidel, who did not testify, Respondent's payroll records show that during the week of October 4 she worked 38 hours, which represents her highest number of hours for the year. On only two other occasions had she worked more than 30 hours. Beginning with the pay period ending October 11 Respon- dent's records show some reduction in her hours worked. Betty Bogard testified that Heidel, a part-time employee with no guarantee of hours, came to her after school had started in the fall and asked to switch to days. Duane Schmidt testified that Heidel came to him in late Septem- ber or early October and complained of migraine headach- es and asked for time off, and that he promised to work it out for her. Payroll records show that Heidel did not work at all during the week of October 18. Bogard's and Schmidt's testimony is uncontradicted. Further examina- tion of Respondent's payroll records shows that for the pay period ending November I Heidel's hours per week rose to 29, a figure higher than most of the pay periods preceding October 4. Under all these circumstances I find that the General Counsel has adduced insufficient evidence to prove that the reduction in Heidel's hours was prompted by a retaliatory motive rather than her own request. I find that the Respondent has not violated Section 8(a)(3) and (1) of the Act with respect to any reduction in Heidel's hours. 26 Respondent's position with respect to Marilyn Palumino is not assisted by the testimony of Head Cashier Betty Bogard to the effect that from August through December she set up the "initial" schedule for part- time employees, including Palumino, and that during this time she received no instructions from management concerning Marilyn Palumino's schedule. The suggestion in Bogard's testimony that Palumino's hours were not cut during the period in question conflicts directly with the Respondent's payroll records and other testimony. 410 C & W SUPER MARKETS, INC. I likewise find that the General Counsel has not established that the Respondent discriminatorily reduced the hours of Katherine Erlandson. The payroll records show a reduction in Erlandson's hours beginning with the October 4 payroll period. Betty Bogard, who schedules the part-time employees, testified that during the summer, when full-time employees are away, part-time employees' hours are increased. An examination of her hours worked for the pay periods March 15 through September 27 reveals a rather dramatic increase in Erlandson's working hours following the payroll period ending July 5. Thus, Respon- dent's payroll records tend to substantiate Bogard's explanation. In addition, further examination of Respon- dent's payroll records with respect to Erlandson reveals considerable fluctuation in her working hours for the entire period March 15, 1975, through January 9, 1976. Erland- son was called to testify by the General Counsel only for the limited purpose of identifying her authorization card. Therefore, the record reveals simply that Erlandson, an active union adherent, had her temporarily inflated hours per week reduced shortly after the representation hearing beginning with payroll period ending October 11, support- ing Bogard's uncontradicted explanation. Under all these circumstances I find that the General Counsel has failed to prove that the reduction in Erlandson's hours was the result of a desire by Respondent to punish her for her union activities. 4. Diane Asbury Beginning with the Union's initial contacts with Respon- dent's employees at the homes of Marilyn Palumino and Terry Schabacker, regular weekly meetings were held every Wednesday, which was Palumino's and Schabacker's day off. One of the meetings was held at the King residence. The others were at either Marilyn Palumino's or Terry Schabacker's home. Schabacker, King, Marilyn Palumino, Kathy Erlandson, and Brenda Heidel were those who were active in arranging these meetings. In early October, as one of the meetings at Terry Schabacker's home was ending, Diane Asbury, a meat department employee, appeared at the Schabacker home to return some luggage she had borrowed. Pursuant to Schabacker's invitation she stayed to eat with the group. On the morning of October 18, when Asbury arrived at work, she was approached by Meat Department Head Orville Mahle who said that Whitely had called him and stated that he knew Asbury was attending union meetings and that he wanted her hours cut. Asbury denied attending the meetings but stated that she had gone to Terry Schabacker's home to return some suitcases. Mahle retorted that there was nothing he could do about it, but to see Schmidt if she wanted to talk to someone about the matter. Asbury did not work the following day, Saturday. When she came to work on Monday she discovered that her hours for the week had 27 I reject the suggestion in Respondent's brief that because Mahle was called as a witness by the General Counsel for the limited purpose of questioning him about his status, that Mahle became the General Counsel's witness for all purposes in this proceeding, and that counsel for General Counsel was obliged to question Mahle about his conversations with Asbury. To the contrary, once counsel for General Counsel had produced evidence that Mahle was a supervisor and had participated in unlawful been reduced from 40 to 32. Asbury went to talk to Schmidt about the matter. Asbury began the conversation by explaining the reason for her presence at Schabacker's home, and then stated that she did not think it was fair to have her hours cut for that reason because she wasn't doing anything. Schmidt answered that her hours were cut because of lack of work, and for her to keep her nose clean, watch her reputation, and stay out of stuff. Thereafter, Asbury talked to her union representative about the matter, and informed Mahle that she had done this. After lunch she noticed that her scheduled hours had been revised back to 40 hours per week. Respondent's answer in Case 38-CA-2742 admits that Diane Asbury did not work on October 25, as is confirmed by the Respondent's payroll record for that period. The complaint in Case 38-CA-2742 alleges that Orville Mahle is a supervisor within the meaning of the Act and that the Respondent, through its supervisors and agents Whitely, Schmidt, and Mahle, reduced the hours, and consequently the income, of Asbury on or about October 25 in order to discourage her from participating in union or concerted activity. Mahle was called as a witness for the General Counsel solely on the issue of his duties and status. He testified that he was Respondent's market manager and a head meatcutter under their Union's contract with Respon- dent. As such, he directed the activities of three other employees, did the purchasing, and scheduled the hours, days off, and vacations of those who worked for him. He is responsible for the general sales in the meat department. Mahle testified that Whitely hired one journeyman meat- cutter for the meat department upon Mahle's recommen- dation. The Board has frequently held that heads of supermarket meat departments having similar duties, responsibilities, and authority are supervisors. I find that Orville Mahle at all times material herein is a supervisor within the meaning of Section 2(1 1) of the Act. Mahle was not called as a witness for the Respondent and consequently did not deny any of the statements attributed to him by Asbury.27 Schmidt gave no testimony at all about the reduction in Asbury's hours or concerning the conversation she testified they had about this matter. Whitely denied having instructed Mahle by phone on October 18 to cut Diane Asbury's hours. 28 I credit Asbury's testimony and find that the Respondent violated Section 8(aXl) of the Act by Mahle's threat that Schmidt wanted to reduce her hours because she was attending union meetings, which created the impression that employ- ees' union activities were under surveillance, and by Schmidt's instruction, in the context of Asbury's efforts to explain her presence at the aftermath of the meeting, to "keep her nose clean" and to "stay out of stuff," as alleged respectively in paragraphs 5(g) and (h) of the complaint in Case 38-CA-2617. I also find that Asbury's hours were reduced on October 25 as alleged in paragraph 5(a) of the complaint in Case 38-CA-2742. conduct with respect to Asbury, it was Respondent's obligation to come forward with evidence to refute the General Counsel's contention. 28 Whitely testified that he was a bed patient in the hospital on October 25. There is no evidence concerning the duration of Whitely's confinement. I note, however, that Asbury's testimony indicates that Mahle began their conversation on October 18 by telling Asbury that Whitely had called him from the hospital. 411 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Dino Palumino Dino Palumino did not testify in this proceeding. He had been employed as a part-time stocker by Respondent for about 2 years. Respondent's payroll records show that he reached a peak in the number of hours worked when he worked 59 hours during the payroll period ending August 30. Between that time and the date of his discharge on October 31, his hours, with only one exception, steadily declined. This decline began around the time that the Respondent fired additional part-time employees Jaynes, Buban, Powell, and Hale, who performed the same duties as Palumino. Russel Lester, who often worked with Dino Palumino in the evening stocking the aisles, testified that the main problem he observed in Dino's work was that he was slow and that during the latter stages of Dino's employment at the store he did some "clowning around." Lester also testified that on one occasion 3 or 4 weeks prior to Palumino's termination he observed Palumino use a box cutter to damage a table in the break room. Richard Hale testified that he observed Palumino put his fist through a box accompanied by profane language. The record contains no testimony by Lester or Hale to the effect that they reported any of these matters to management. Lester also testified that, generally speaking, over the 2-year period he worked with Palumino, Dino's work habits were "pretty much" the same. Susan Cary, Respondent's bakery manager, testified similarly. In working with Dino Palumi- no during August, September, and October she noticed that he was slow, liked "to goof off and clown around a lot," and at times used profane language in front of customers. On cross-examination she admitted that Dino had been a slow worker "for quite some time," that other employees in the store from time to time used foul language, but insisted that on one particular unspecified occasion Palumino's remarks were especially foul. None of Cary's testimony indicated that she ever reported any of Dino's allegedly undesirable work habits to management. Store Manager Schmidt testified that Palumino "was a slow worker and liked to joke around quite a bit." Schmidt stated that he reduced Palumino's hours during the last half of August. When Palumino complained about the matter, stating, "Say man, I can't live on these hours," Schmidt considered this remark insubordinate and reduced Palumino's hours again. Thereafter, Schmidt found it necessary to talk to Dino about using foul language in the front of the store in the presence of a cashier. According to Schmidt when it was reported to him that Palumino had carved up one of the tables in the break area, a further reduction in hours ensued. Finally, Schmidt terminated Palumino for insubordination and unsatisfactory job performance. 2 9 Since Dino Palumino did not testify, the record lacks whatever evidence he might have provided to shed further light on the accuracy of Respondent's accusations concern- ing his conduct, which Respondent contends resulted in a reduction of his hours and, later, his discharge. There exists simply the testimony of Schmidt, supported to some extent 29 Company President Whitely did not participate in Dino Palumino's termination, and testified only that Schmidt "mentioned" his reasons for reducing Palumino's hours. by that of Lester, Cary, and Hale, concerning incidents that occurred throughout the time that Palumino worked for Respondent. On the other hand, there exists clear evidence of Palumino's union activities, and those of his mother, which when considered against a background of Respondent's vigorous and often times unlawful efforts to defeat the Union, tends to support the General Counsel's case. After carefully weighing all of these factors I am persuaded that the Respondent reduced Palumino's hours and later discharged him in violation of the Act. Dino Palumino, together with his mother, Marilyn, were the first union card signers at the initial union meeting. Although no direct evidence exists that the Respondent knew of Dino's union activities at any specific time prior to his discharge, there is an abundance of evidence that the Respondent was making every effort to learn the identity of the union activists, and there is clear evidence that the Respondent knew of Marilyn Palumino's union activities. As described in other portions of this Decision, the time period between the final days of August and Palumino's discharge in October witnessed a variable parade of discriminatory acts directed by the Respondent against union adherents. An examination of the evidence present- ed by the Respondent in support of its position concerning Palumino reveals that (consistent with its pattern of action as to other discriminatees), except for one undated instance where he criticized Palumino for foul language, over an extended period of time he was never counseled, warned, or otherwise confronted with the fact that Schmidt was dissatisfied with his work or deemed any of his remarks to be insubordinate. None of the employee witnesses testified concerning having made reports to the Respondent about Palumino. Schmidt's testimony concerning these matters was somewhat vague, in that he was able to provide only the faintest indications as to when they occurred, and failed to state from whence came the reports on which he relied. A close examination of Schmidt's testimony, as the General Counsel points out in his brief, reveals an inconsistency and shifting on the part of Schmidt in testifying concerning the sequence of the events on which he based his discipline of Palumino. Finally, and perhaps most significantly, Schmidt's testimony reveals that the "insubordination" which constituted part of the reason for Palumino's termination was the same remark for which Palumino allegedly had had his hours reduced earlier.30 The Board has frequently held that an employer's knowl- edge of an employee's union sympathies and activities may be inferred from a consideration of all the surrounding facts and circumstances, and that such inconsistencies in a respondent's asserted reasons for its actions, as described above, constitutes a strong indication that the motive behind its action was unlawful. I therefore find, on the basis of all of these factors and the record as a whole, that the Respondent reduced Dino Palumino's hours and then terminated him on October 31 because of his union's sympathies and activities, and those of his mother, in violation of Section 8(a)(1) and (3) of the Act.31 3' I note the testimony of Terry Schabacker to the effect that Schmidt told him that Dino Palumino was released for lack of work. '3 Par. 5(e) of the complaint in Case 38-CA-2617 alleges, as a 412 C & W SUPER MARKETS, INC. I. The Allegations That Michael Cerroni, as an Agent for the Respondent, Threatened Steven Leombruni With Discharge or Other Reprisals Because of his Union Activities on or About November 19 and December 6 Michael Cerroni, Respondent's produce manager, was one of the employees whose alleged supervisory status was specifically litigated in the representation proceeding. The Regional Director's finding that Cerroni was not a supervisor within the meaning of the Act was approved by virtue of the Board's sustaining of the Regional Director on a request for review. The complaint in Case 38-CA-2617 alleges that Cerroni, acting as an agent of the Respondent, threatened his first cousin, Steven Leombruni, a produce clerk who had signed a union card for Terry Schabacker on August II, as did Cerroni. According to Leombruni it was Cerroni who approached him together with Schabacker and encouraged him to sign a card. Later, around the beginning of November, after inviting Leombruni back into the cooler to talk, Cerroni observed that "this union thing . . . is causing a lot of trouble." He then stated that he was going to vote no, and that it would probably be best if Leombruni also voted no. Cerroni ended the conversa- tion by saying, "I am telling you this because you are my relative, and I don't want to see you get into trouble." The next conversation between the two men occurred around Thanksgiving at Cerroni's parents home. While watching TV in the den, Cerroni stated that he was going to vote no, and it would probably be better for Leombruni at work if he voted no because he would probably stand a better chance of keeping his job. Their final conversation occurred in December, once again in the produce cooler. At that time Cerroni repeated substantially the same remarks as he had made on the previous two occasions, except he added that he had talked to Mr. Whitely, but Cerroni did not state that Mr. Whitely had told him what to say. Cerroni recalled talking about the Union with Leombru- ni at the evening union meeting held on August 11 at Schabacker's home with Velma Skarvan present. Skarvan had produced a union contract from another store as an example of a typical contract from a store represented by the Charging Party-Petitioner. Both men reviewed the contract and Cerroni remembered asking Leombruni for his opinion. He further recalled that Leombruni liked the economic benefits in that agreement, but that he observed counterpart to par. 6(a). that Respondent rewarded employees who were known or believed to be antiunion by giving them additional hours of work to increase their income. The General Counsel views this conduct as, in effect, the alleged fulfillment of Whitely's promise to "justly reward" those employees who supported the Company against the Union. However, except for Schmidt's acknowledgment that he knew Hale was not in favor of the Union, and evidence, discussed elsewhere, that certain employees were hired in August and September after having expressed a lack of interest in the Union in response to interrogations, there is nothing to specifically identify what group of employees the General Counsel claims were rewarded. His brief is silent on this aspect of the case, although counsel for the General Counsel was placed on notice at the hearing that G.C. Exh. 9(a), 101 pages of payroll records for all Respondent's employees, as tentatively being received into evidence on the condition that the brief, would contain a specific statistical analysis demonstrating how these records proved discriminate treatment (which analysis was supplied in well-organized form concerning the reductions in the hours of prounion employees). Neverthe- that he was happy with things as they were and did not know how he was going to vote. Cerroni admitted talking to Leombruni on one other occasion prior to the election when Leombruni asked for his opinion. At that time Cerroni expressed his concern about strikes and picketing at other stores represented by the Union. Cerroni denied questioning Leombruni about his sympathies or threaten- ing him. I credit Leombruni's testimony which was more precise in detail than that of Cerroni who rambled and was uncertain. On cross-examination Cerroni admitted having five or six conversations with Leombruni, indicating that there were others than those concerning which he had testified. Thus, he admitted talking to Leombruni at his mother's home. However, there is no evidence in the record tending to prove that Cerroni was at any time an agent of the Respondent. I therefore find that the conversations between Cerroni and Leombruni were simply conversa- tions between two rank-and-file employees, for which Respondent is in no way responsible. Therefore, I find that the Respondent did not violate Section 8(a)(1) of the Act with respect to those allegations concerning Michael Cerroni set forth in paragraph 5(c) of the complaint in Case 38-CA-2617, as amended. J. The Status of Larry Buchanan, Dennis King, and Terry Schabacker and Resulting Findings and Conclusions The Respondent contends that Buchanan, King, and Schabacker are not protected by the Act, with respect to the violations relating to them alleged in the complaints, because they are supervisors within the meaning of Section 2(1 1) of the Act. This contention is also the keystone of the Respondent's defense to the alleged violation of Section 8(aX5) and the General Counsel's request for a bargaining order as an appropriate remedy, since the Respondent claims that these alleged supervisors' deep involvement in the card-signing campaign tainted the cards and resulted, at most, in a coerced majority. King's status was not specifically litigated in Case 38-RC-1793. The status of Schabacker was, as noted earlier, left open for further consideration by the Board in its denial of the Respon- dent's request for review. Concerning Buchanan, the record in the representation proceeding, in evidence, compared with that in the consolidated proceeding before me, shows that Buchanan occupied the position of frozen food department head. At the time of the representation less, an examination of these records does not reveal any distinct pattern of rewarding employees for their antiunion sympathies. In accordance with my ruling at the heanng I reject G.C. Exh. 9(a) as evidence of the violations alleged in par. 5(e). Moreover, those few employees who can reasonably be identified as antiunion, or apparently so, were for the most part newly hired. and thus little, if any, basis exists for statistical comparison to determine if their hours were increased as a reward. Nor does it necessarily follow, since there is no evidence that certain employees' hours were increased expressly as a reward, that increases in the hours of some, contemporaneous iwith decreases in the hours of others (and discharges of still others), were intended as rewards, rather than simply a means of restoring needed manpower to the depleted work schedule. Finally, there is no evidence of a design by Respondent to grant inflated Christmas bonuses to those who supported the Company in the campaign, as suggested by the General Counsel dunng the hearing. I find that the General Counsel has failed to prove the allegation in par. 5(e). 413 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeding, following Buchanan's discharge, this position was occupied by Roger Wilson. Wilson's duties were found to be nonsupervisory. Nevertheless, since Buchanan, King, and Schabacker are all named as discriminatees their status is subject to relitigation. At the time of the events which are the subject of this proceeding, it is undisputed that the Respondent's manage- ment hierarchy would include Company President White- ly, Store Manager Schmidt, and the assistant store manager, which position remained vacant during the time material herein. The Respondent contends, using a phrase utilized by Whitely in his testimony, that his "management troika" also included Terry Schabacker, in the capacity of "acting assistant manager," Dennis King, and Larry Buchanan as frozen food manager. The status of the Respondent's remaining grocery department heads, Bakery Manager Sue Cary and Produce Manager Michael Cerroni, found not to be supervisors in the representation proceed- ing, is not in issue. All department heads and the three employees whose status is contested occupy hourly paid positions, and receive benefits no different from other hourly employees. They punch a timeclock and fall within the provisions of the wage and hour law for purposes of computing overtime compensation. With respect to Frozen Food Manager Buchanan, whose position was later occupied by Wilson, the record discloses that he was the full-time employee responsible for the day- to-day ordering, pricing, stocking, and displaying of products in the frozen food area. Depending on the work schedules compiled by the store manager, Buchanan either worked alone or was alloted assistance, as was Cerroni who worked in produce. When physically working with others in his area in the daily routine of unpacking and stocking his counter, he would distribute tasks between himself and those assigned to assist him in accordance with the needs of the work routine. He had no authority to hire and fire, and any recommendations made by Buchanan require indepen- dent consideration by the store manager before action was taken. Whitely testified that he was unaware of any instance where the store manager had received a complaint from a department head about employee performance. In elaborating further he stated that he knew of no instances of the frozen food manager disciplining employees. On occasion Buchanan did close the store at night and sometimes opened it in the morning. The duties and responsibilities of Dennis King and Terry Schabacker must be discussed in the light of Former Manager Dellenberg's replacement by Schmidt and the conversation which Schmidt had with Schabacker and King shortly thereafter on August 4. On August 4, according to King and Schabacker, Duane Schmidt called them into the manager's office and informed them that Mr. Dellenberg had been terminated. He said he had been appointed store manager, he would operate without an assistant manager, and that King and Schabacker would not have the power to hire and fire. Schmidt also added that they were not to harass Mary Loos and Betty Bogard. Schmidt added that if it was necessary to discipline :12 These findings concerning the August 4 conversation are based on a composite of the testimonies of King. Schabacker, and Schmidt, including Schabacker's testimony at the representation heanng. someone, all King and Schabacker could do was send them home.32 Dennis King was employed as a stocker and was responsible for ordering, pricing, displaying, and otherwise maintaining the glassware and juice area of the store. He had no title. On his union authorization card, dated August II, King described his job as that of assistant manager. At the outset of his testimony he described his position as night manager. However, it is clear from subsequent portions of his testimony, and the testimonies of Schaback- er, Whitely, and Schmidt that the assistant manager's position was not occupied by King, and that the term night manager was coined by King as a means of describing his duties on occasions when he was left in charge of the store at night. At the time of the Union's campaign King had worked for Respondent approximately 4 years. He became a full-time employee during September 1973, and as such stocked shelves, mopped floors, and cleaned the backroom. At that time the Respondent's store was opened 24 hours a day. King worked the third shift. About a year later, when the Company curtailed its round the clock schedule his hours changed to from 4 p.m. until closing at midnight. Eventually, beginning in early 1975, King began working a varied schedule of days and nights, which practice continued at all times relevant in this proceeding. His regular duties continued, but at times, in addition, on certain evenings in the absence of the store manager, he was assigned the additional responsibility of being in charge of and closing the store. These additional duties were also assigned on different nights to stockers Terry Schabacker and Bruce Knutter. King worked 2 to 3 nights a week during August and September. On those evenings when he was placed in charge Schmidt, who was usually on duty when King reported for work, would issue either oral or written instructions concerning the work to be done. Later, as the evening progressed, while working an aisle himself, King would parcel out these items to others, working in the front of the store only when needed. The record discloses that on Saturdays and Sundays King was also in charge at times on a rotating schedule with Terry Schabacker. King also had the combination to the safe, signed drafts, and obtained money for the store from the bank. However, these activities were discontinued following Schmidt's appointment as store manager and his conversation with King and Schabacker on August 4. Thereafter, King continued his regular stocking duties, which occupied 75 percent of his time. He also continued to be placed in charge of closing the store at times as before but with more limited responsibilities, as described above. He still at times was responsible for reconciling sales reports, as were Terry Schabacker and Marilyn Palumino at other times. The record discloses that King was never actually told that he had any authority over other employees. He did not schedule their hours, grant time off, sign timecards, or send employees home for disciplinary reasons. He had access to the courtesy counter where the approval and cashing of customer checks was performed by King and a number of other employees. King summarized his job duties after August 4, in general, by stating that the only basic changes 414 C & W SUPER MARKETS, INC. were that he was relieved of his financial responsibilities and that Schmidt had expressly stated that he and Schabacker could not hire and fire. Terry Schabacker has had a long history of employment with the Respondent. He started working as a part-time stocker in 1962. Following a break in his employment while in the service, he returned, but left again in November 1974 by which time he had risen to the assistant manager's position with hiring and firing authority. After approxi- mately 4 months as the manager of a supermarket in Vermont, Schabacker returned to C & W in March 1975. By that time the assistant manager position had been awarded to Duane Schmidt, and consequently Store Manager Dellenberg told Schabacker that the best he could do at that time was reemploy him as a stocker at equivalent pay. Dellenberg assigned Schabacker the duties and responsibilities very similar to those described above with respect to Dennis King following King's switch to days and evenings in September 1974. Thus, Schabacker, the highest paid hourly employee in the store, was specifically told by Dellenberg that he would only be employed as a stocker, would be responsible for ordering and stocking the dairy area, and would closeup the store 1 to 2 nights a week. Dellenberg specifically admonished Schabacker that since he would be a stocker he could not hire or fire because it would not look good.33 As in the case of Dennis King, Schabacker's duties changed after August 4 only in the area of having the keys to the store and with respect to certain financial responsi- bilities. He continued to spend 90 percent of his time stocking his area. Following the conclusion of the represen- tation hearing on September 30, Schabacker was even assigned such duties as mopping floors and cleaning the restroom. He did not hire or fire anyone; no one was hired or fired on his recommendation.3 4 On those evenings when Schabacker was assigned to be in charge of and to close the store, Schmidt would either leave Schabacker a list of tasks to be performed or else would tour the store with him, during which Schabacker would make a list of these assignments. 35 Thereafter, during the course of the eve- ning, Schabacker would divide these tasks among himself and others. Following the curtailment of his financial responsibilities he continued to perform courtesy counter duties, including check cashing, until about September 30 when Schmidt told him not to go into the office anymore. He continued to reconcile sales reports, dispense instruc- tions as described above, and perform the other phases of his work, but exercised no disciplinary functions. Scha- ':' On cross-examination Schabacker was questioned about his testimony at the representation proceeding to the effect that pnor to August 4 Dennis King. Larry Buchanan, and he had hiring and finng authority and were part of management. A careful examination of all the available evidence concerning this area establishes that Schabacker's conclusion was erroneous and unfounded. Its basis with respect to Dennis King and Larry Buchanan was. simply, conjectural, based in part on King's somewhat inflated idea of his position in the store and on an assumption stemming from Schmidt's August 4 remark. With respect to his own authority, Schabacker's conclusion was based on both the August 4 conversation and his very close relationship with Dellenberg which led him to believe that his expression of an opinion would carry considerable influence. Thus, this aspect of Schabacker's testimony at the representation heanng is merely supposition and conjecture inconsistent with his otherwise credible testimony and with the record as a whole. :4 Respondent asserts that Schabacker recommended that Mark Powell, backer, King, Marilyn Palumino, and Betty Bogard from time-to-time called employees in to work as needed and sent them home if business in the store decreased or their duties were completed. The record clearly establishes that Schabacker, King, and Buchanan were hourly paid employees who received overtime compensation but were not afforded any benefits not provided to the rank-and-file. They spent the vast majority of their time performing the same duties in which the Respondent's other clerks and stockers were regularly engaged. In other respects referred to above, their duties coincided with those of Respondent's other department heads found not to be supervisors, and whose status is not contested. All the credible evidence concerning their authority negates the existence of any power to hire and discharge. The fact that they never effectively recommend- ed such action is supported by the lack of any credible evidence to the effect that they ever exercised such power. Finally, with respect to Schabacker and King, the routine assignment of tasks pursuant to a list left by the store manager and other routine functions performed in his absence is, in my view, not sufficient to establish their supervisory status, even considering the fact that Schmidt did confer upon Schabacker and King the authority to send employees home.36 As the Board has recently noted in a similar context, this authority was conferred only to insure that employees woutid not take advantage of them while they sought to carry out Schmidt's expressed instructions in his absence. Foote's Dixie Dandy, Inc., 223 NLRB 1363 (1976); and Luoma's Foods, Inc., d/b/a Valu King, 206 NLRB I (1973). See also Dorance J. Benzschawel and Terrence D. Swingen Co-Partners, d/b/a Parkwood IGA Foodliner, 210 NLRB 349 (1974). I find that Terry Schabacker, Dennis King, and Larry Buchanan, at all times material herein, were not supervisors within the meaning of Section 2(1 1) of the Act, but were rank-and-file employees entitled to the Act's protection. I therefore also find that the Respondent's conduct towards them, as discussed in earlier portions of this Decision, violated Section 8(a)(1), (3), and (4) of the Act as alleged in the complaint in Case 38-CA-2617. K. The Alleged Violation of Section 8(a)(5) of the Act Paragraph II of the complaint in Case 38-CA-2617 alleges that following a refusal to recognize and bargain with the Union on or about August 22, the Respondent Jerry Rice, and Dick Nortch be fired. Schabacker denied having ever made such recommendations. He testified that he may have made a derogatory remark to Schmidt concerning the work of Rice or Nortch, and that at the representation hearing he made a similar remark about Powell. Rice and Nortch were not fired. Respondent's payroll records show that Powell was employed through week #46, or November 8. Thereafter Schmidt told Schabacker he had stated at the hearing that Powell "should be let go." According to Schabacker he said that when he knew he was going to work with Powell, he took two aspirin and prepared for a rough night. I credit Schabacker's explanation. 3s Schabacker's testimony in this respect is confirmed by the testimony of Russel Lester and by that of Greg Buban who also testified that he was issued similar instructions from Produce Manager Cerroni 36 There is no evidence that this authority was ever exercised for a disciplinary reason. 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in serious unfair labor practices in order to undermine and destroy the Union's majority, which interfered with the election process and precludes the holding of a fair election thereby violating Section 8(a)(5) and (1) of the Act. Accordingly, the General Counsel has requested an order requiring the Employer to bargain with the Union in accordance with the United States Supreme Court's decision in N.LR.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575 (1969). As discussed earlier, the appropriate unit of the Respon- dent's employees herein was established by the Board in Case 38-RC-1793. On August 12 the day on which the Union requested recognition, it had obtained 18 valid authorization cards from rank-and-file employees in the appropriate unit. By August 14, the date on which Respondent received the Union's demand to bargain, an additional valid card had been obtained from employee Vicky Ferguson. On August 18 and 19, respectively, valid cards were obtained from Brenda Heidel and Brenda Kae Rose. At the hearing all parties stipulated that General Counsel's Exhibit 8(a) constituted a list of "all the full time and regular part-time persons on the payroll of C & W Super Foods facility located at 1417 Sandy Whollow Road, excluding the store manager and the prior store manager and the meat department employees, for the time period from August 9, 1975 up until August 20, 1975." Listed on General Counsel's Exhibit 8(a) are 33 individuals, of whom Thomas Whitely and Robert P. Whitely who were specifically excluded from the unit by the Board in Case 38-RC-1793. Thus the appropriate unit consists of 31 employees. It is, therefore, established that on August 14, the date on which the request for recognition was received, and at all times material thereafter, the Petitioner-Charging Party had obtained a sufficient number of valid authoriza- tion cards to demonstrate that it had been clearly designated the collective-bargaining representative of an uncoerced majority of Respondent's employees in an appropriate unit, and I so find.37 I have found that following the Union's request for recognition and continu- ing thereafter through a substantial portion of the preelec- tion campaign, Respondent engaged in extensive unfair labor practices through its supervisors and agents, begin- ning August 22. In the context of the events which transpired, no other purpose can exist for the commence- ment of such a program of unlawful activity immediately following the Union's demand for recognition, other than to sabotage the Union's organizational drive, and under- mine its majority status, and inhibit the election process. Therefore, consistent with the Board's decision in Trading Port, Inc., 219 NLRB 298 (1975), and The Kroger Co., 228 NLRB 149 (1977), I find that the Respondent violated Section 8(a)(5) and (1) of the Act on August 22. IV. THE OBJECTIONS TO THE ELECTION Finally, since the objections to the election in Case 38- RC-1793 are based on Respondent's promise of benefits, 37 Extensive cross-examination of Union Organizer Velma Skarvan, employee card solicitors. and some of the card signers shows that employees were asked to sign an authorization card for the purpose of union representation. Further examination also revealed that no assurances were made to prospective card signers to the effect that union initiation fees threat to close the store, discriminatory discharges, and reductions of hours, which were alleged in the complaint and found to be violations of the Act which occurred between the date of the filing of the petition and the date of the election, the critical objections period, the Union's objections have merit. I recommend that the election be set aside, that Case 38-RC-1793 be dismissed, and that all proceedings in connection therewith be vacated in view of my recommendation that a bargaining order issue.3 8 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party-Petitioner is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By interrogating employees and their relatives concerning their union activities and sympathies and those of other employees; by threatening employees with closure of the store, discharge, and other reprisals; by issuing instructions which restricted employees from engaging in union activities; by making statements which created the impression that their union activities were under surveil- lance; by soliciting employees to assist Respondent in unlawful antiunion activity; and by promising to reward employees who supported the Company against the Union, Respondent through its supervisors and agents violated Section 8(a)(1) of the Act. 4. By reducing the working hours and the income of the following named employees beginning on the date set opposite their names, because they or their relatives become members of the Union or engaged in union or protected concerted activities, the Respondent violated Section 8(aXl) and (3): Dino Palumino, September 7; Marilyn Palumino, September 21; Terry Schabacker, October 5; Dennis King, October 5; and Diane Asbury, October 25. 5. By reducing Terry Schabacker's working hours and income, beginning October 5, in part because he gave testimony at the representation hearing in Case 38-RC- 1793, the Respondent also violated Section 8(a)(4) of the Act. 6. By refusing to hire Pamela Garrison on September 21, by discharging Larry Buchanan and his wife Nancy on August 30, and by discharging Dino Palumino on October 31 because of his union sympathies and activities, and those of his mother, the Respondent further violated Section 8(a)(X) and (3) of the Act. 7. All full-time and regular part-time employees em- ployed by the Employer at its Rockford, Illinois facility, but excluding the store manager, meat department employ- ees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 8. On or about August 14, 1975, and at all times material thereafter, the Union represented a majority of the would be waived only for those who signed union cards. See N.LR.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). 38 The Ideal Electric and Manufacturing Company, 134 NLRB 1275 (%961); Trading Port, Inc., supra. 416 C & W SUPER MARKETS, INC. employees in the above-appropriate unit, and has been the exclusive representative of all said employees for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 9. By refusing to recognize and bargain collectively with the Union with respect to the employees in the appropriate unit on and after August 22, 1975, on which date it also embarked on a clear course of unlawful conduct which undermined the Petitioner's majority status and made the holding of a fair election improbable, Respondent violated Section 8(a)(5) and (1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. Respondent has not violated the Act in any respects other than those specifically found. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order that the Respondent cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged Larry Buchanan, Nancy Buchanan, and Dino Palumino, I find it necessary to order that Respondent offer them full reinstatement and make them whole with backpay comput- ed on a quarterly basis, plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of proper offer of reinstatement. Since the Respondent unlawfully refused to hire Pamela Garrison, I shall order the Respondent to offer her employment in the position which she was denied or, if that position no longer exists, a substantially equivalent position, and to make her whole for any loss of pay she incurred by reason of the discrimination practiced against her in accordance with the same formula. Likewise, having found that the Respondent discriminatorily reduced the working hours and income of Dino Palumino, Marilyn Palumino, Terry Schabacker, Dennis King, and Diane Asbury, I find it necessary to order that the Respondent make these employees whole according to this formula, for any loss of earnings they may have suffered as the result of the discriminatory reductions in their hours beginning on the dates listed in Conclusion of Law 4, above. Since the Respondent unlawfully refused to bargain with the Union. I shall also order Respondent to bargain with Retail Clerks Union Local 1354, Chartered by Retail Clerks International Association, AFL-CIO, the Charging Party-Petitioner herein, effective August 22, 1975, and to post an appropriate notice. Moreover, since I find that the unfair labor practices committed by Respondent were serious in nature and struck at the very heart of rights intended to be protected by the Act, I find a "broad" cease-and-desist order is warranted. :' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 39 The Respondent, C & W Super Markets, Inc., Rockford, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees and their relatives concern- ing their union activities and sympathies, and those of other employees. (b) Threatening employees with closure of the store, discharge, and other reprisals; issuing instructions which restrict employees from engaging in union activities; making statements which create the impression that employees' union activities are under surveillance; solicit- ing employees to assist in unlawful antiunion activities; or promising to reward employees who support the Company against the Union. (c) Reducing the working hours and the income of employees because they become members of or engage in union activities on behalf of Retail Clerks Union Local 1354, Chartered by Retail Clerks International Associa- tion, AFL-CIO, or any other labor organization, because they engage in protected concerted activities, or because they have given testimony under the Act. (d) Refusing to hire, discharging, or otherwise discrimi- nating against employees in regard to hire or tenure of employment, or any term or condition of employment, because they or their relatives have become members or supporters of Retail Clerks Union Local 1354, Chartered by Retail Clerks International Association, AFL-CIO, or any other labor organization, or because they engage in union activities or protected concerted activities. (e) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, with Retail Clerks Union Local 1354, Chartered by Retail Clerks International Associa- tion, AFL-CIO, as the exclusive representative of all employees in the appropriate unit described in Conclusion of Law 7, above. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Retail Clerks Union Local 1354, Chartered by Retail Clerks International Association, AFL-CIO, as the exclu- sive representative of the employees in the appropriate unit described in Conclusion of Law 7, above, and embody in a signed agreement any understanding reached. (b) Offer Pamela Garrison employment in the job which she was denied and offer Larry Buchanan, Nancy Buchan- an, and Dino Palumino immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. 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. 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Make whole Pamela Garrison, Larry Buchanan, Nancy Buchanan, Dino Palumino, Marilyn Palumino, Terry Schabacker, Dennis King, and Diane Asbury for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (d) 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 all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Rockford, Illinois, place of business, copies of the attached notice marked "Appendix." 40 Copies of said notice, on forms provided by the Officer-In-Charge for Subregion 38, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Officer-In-Charge for Subregion 38, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 40 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posled by Order of the National Labor Relations Board" shall 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 After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law, and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT interrogate our employees or their relatives concerning their union sympathies and activi- ties. WE WILL NOT issue instructions which restrict employees from engaging in union activities, make statements which create the impression that the union activities of our employees are under surveillance, or solicit employees to give assistance in unlawful antiun- ion activities. WE WILL NOT threaten employees with closure of the store, discharge, or other reprisals; nor will we promise to reward employees who support the Company against the Union, in order to discourage them from engaging in union membership or activities, or protected concert- ed activities. WE WILL NOT reduce the working hours and the income of our employees because they become mem- bers of or engage in activities on behalf of Retail Clerks Union Local 1354, Chartered by Retail Clerks Interna- tional Association, AFL-CIO, or any other labor organization, because they engage in concerted activi- ties, or because they gave testimony under the Act. WE WILL NOT refuse to hire, discharge, or otherwise discriminate against employees in regard to their hire or tenure, or any term or condition of employment, because they or their relatives become members of, engage in activities on behalf of, or otherwise support Retail Clerks Union Local 1354, Chartered by Retail Clerks International Association, AFL-CIO, or any other labor organization, or because they engage in protected concerted activities. WE WILL offer Pamela Garrison employment in the job which she was discriminatorily denied and WE WILL offer Larry Buchanan, Nancy Buchanan, and Dino Palumino immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. WE WILL make Pamela Garrison, Larry Buchanan, Nancy Buchanan, Dino Palumino, Marilyn Palumino, Terry Schabacker, Dennis King, and Diane Asbury whole for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL, upon request, recognize and bargain collectively in good faith with Retail Clerks Union Local 1354, Chartered by Retail Clerks International Association, AFL-CIO, for the unit described herein with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and WE WILL, upon request, embody in a signed agreement any understanding reached. The bargaining unit is: All full-time and regular part-time employees employed by the Employer at its Rockford, Illinois facility, but excluding the store manager, meat department employees, guards and supervi- sors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in union activities on behalf of the above-named labor organization, or any other labor organization, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(aX3) of the Act, as amended. C & W SUPER MARKETS, INC. 418