Ken's IGA

KEN'S IGA 305 Loy Food Stores, Inc. d/b/a Ken's IGA and Food Stores, Inc. d/b/a Ken's IGA, Westville, Illinois, and Commercial Workers Union Local 550-R, its officers, agents, successors, and assigns, shall affiliated with the United Food and Commercial take the action set forth in the said recommended Workers International Union, AFL-CIO, CLC. Order, except that the attached notice is substituted Case 33-CA-4747 for that of the Administrative Law Judge. November 17, 1981 APPENDIX DECISION AND ORDER NOTICE To EMPLOYEES BY MEMBERS FANNING, JENKINS, AND POSTED BY ORDER OF THE ZIMMERMAN NATIONAL LABOR RELATIONS BOARD On June 22, 1981, Administrative Law Judge An Agency of the United States Government Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the Respondent filed After a hearing at which all sides had an opportu- exceptions and a supporting brief, and the General nity to present evidence and state their positions, Counsel filed limited exceptions and a brief in par- the National Labor Relations Board found that we tial support of the Administrative Law Judge's De- have violated the National Labor Relations Act, as cision. amended, and has ordered us to post this notice. Pursuant to the provisions of Section 3(b) of the WE WILL NOT interrogate our employees National Labor Relations Act, as amended, the Na- concerning their own or other employees' tional Labor Relations Board has delegated its au- union activities, sympathies, or desires. thority in this proceeding to a three-member panel. WE WILL NOT threaten our employees with The Board has considered the record and the at- discharge, layoff, shift cancellation, reduced tached Decision in light of the exceptions and working hours, changes, or other reprisals be- briefs' and has decided to affirm the rulings, 2 find- cause they join or assist a union or engaged in ings,3 and conclusions of the Administrative Law other union activities for the purpose of collec- Judge and to adopt his recommended Order. tive bargaining or other mutual aid or protec- tion, or because they selected the Union as ORDER their exclusive collective-bargaining agent. Pursuant to Section 10(c) of the National Labor WE WILL NOT threaten our employees that Relations Act, as amended, the National Labor Re- other employees have been discharged for lations Board adopts as its Order the recommended signing a union authorization card. Order of the Administrative Law Judge and WE WILL NOT threaten our employees that hereby orders that the Respondent, Loy Food we believe they started the union campaign. WE WILL NOT discharge, lay off, or other- ' The Respondent has requested that the record be reopened and/or wise discriminate against employees because of amended to include the averred facts that discharged employees Holy- cross and Harper accepted the Respondent's unconditional offers of rein- their union sympathies, activities, or protected statement in November 1980. We hereby deny this request. Even assum- concerted activities. ing that these two employees were reinstated, we note that the Respond- ent states that they were not given any backpay for the period between WE WILL NOT refuse to bargain collectively their discharges and their reinstatement, and as such we would find that concerning rates of pay, wages, hours of em- the reinstatements were insufficient to erase the effects of the Respond- ent's unfair labor practices or ensure a free and fair election among the ployment, and other terms and conditions of Respondent's employees. employment with Food and Commercial In accordance with his dissent in Olympic Medical Corporation, 250 Workers Union Local 550-R, affiliated with NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. the United Food and Commercial Workers In- 2 The General Counsel has excepted to the Administrative Law ternational Union, AFL-CIO, CLC, in the ap- Judge's refusal to compare signatures for the purpose of authenticating propriate unit described below: authorization cards and his failure to place the signature samples in the rejected exhibits file. We agree with the General Counsel that the Ad- All full-time and regular part-time employ- ministrative Law Judge erred by such actions, but we find that this error was not prejudicial. Although we do not endorse the conduct of he coun- ees employed by Loy Food Stores, Inc. sel for the General Counsel in attempting to resubmit the rejected materi- d/b/a Ken's IGA at its Westville, Illinois, al by attaching it to his brief to the Administrative Law Judge, we dis- facility; but excluding the store manager, as- avow the Administrative Law Judge's characterization of that conduct. I The Respondent has excepted to certain credibility findings made by sistant managers, confidential employees, the Administrative Law Judge. It is the Board's established policy not to guards and supervisors as defined in the Act overrule an administrative law judge's resolutions with respect to credi- and all other employees. bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We haveNOT in any other manner interfere carefully examined the record and find no basis for reversing his findings, with, restrain, or coerce our employees in the 259 NLRB No. 35 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise of their rights to self-organization, to The Respondent's answer, as amended, denies the alle- form, join, or assist labor organizations, to bar- gations of unfair labor practices alleged in the complaint. gain collectively through representatives of Upon the entire record in the case, including my ob- their own choosing, and to engage in other servation of the witnesses and consideration of the briefs, protected concerted activities for the purpose I make the following: of collective bargaining or other mutual aid or FINDINGS OF FACT protection, or to refrain from any and all such activities, except to the extent that such right I. JURISDICTION may be affected by an agreement requiring membership in a labor organization as a condi- The complaint alleges and the answer admits that at all times material herein the Respondent is and has been an lon) of employment, as authorized in Srection Illinois corporation with an office and place of business 8(a)(3) of the Act, as amended. located at Westville, Illinois, where it is engaged in the WE WILL recognize and, upon request, meet business of the retail selling of foodstuffs and related with and bargain collectively in good faith items. During the 12-month period preceding the issu- with Food and Commercial Workers Union ance of the complaint, a representative period, in the Local 550-R, affiliated with the United Food course and conduct of its business operations, the Re- and Commercial Workers International Union, spondent derived gross revenues in excess of $500,000, AFL-CIO, CLC, as the exclusive collective- and, in the course and conduct of its business operations, bargaining representative of all our employees the Respondent purchased and caused to be transferred in the appropriate unit; and, if any understand- and delivered to its Westville, Illinois, facility, goods and ing is reached, embody such understanding in materials valued in excess of $50,000 directly from points a written and signed agreement. outside the State of Illinois. I find that the Respondent is, WE WILL offer Brad Holycross and Phil and has been at all times material herein, an employer Harper immediate and full reinstatement to engaged in commerce within the meaning of Section their former positions or, if such positions no 2(2), (6), and (7) of the Act. longer exist, to substantially equivalent posi- II. THE LABOR ORGANIZATiON INVOLVED tions, without prejudice to their seniority or other rights and privileges, and make them The Union is, and has been at all times material herein, whole for any loss of earnings they may have a labor organization within the meaning of Section 2(5) suffered as a result of our discrimination of the Act. against them, plus interest. Ill. SUPERVISORY STATUS LoY FOOD STORES, INC. D/B/A Based on paragraph 4 of both the complaint and the KEN'S IGA answer, I find that at all times material herein, the fol- lowing named persons occupied the positions set oppo- DECISION site their respective names, and have been, and are, agents of the Respondent at its Westville, Illinois, facili- STATEMENT OF THE CASE ty, acting on its behalf, and are supervisors within the RICHARD L. DENISON, Administrative Law Judge: meaning of Section 2(11) of the Act: This case was heard in Champaign, Illinois, on October 20, 21, and 22, 1980, based on a charge filed by Food Kennard R. Davis President and Commercial Workers Union Local 550-R, affiliated Gene Engle Store Manager with the United Food and Commercial Workers Interna- Paul Baldwin Assistant Manager tional Union, AFL-CIO, CLC, at times referred to Michael Farmer Assistant Manager herein as the Union or the Charging Party, on March 5, William Delp Assistant Manager 1980.1 The complaint, issued April 29 and amended at the hearing, alleges violations of Section 8(a)(1), (3), and Iv. APPROPRIATE UNIT (5) of the Act. The General Counsel contends that imme- diately prior to the Respondent's rejection of the Union's Paragraph 7(a) of the complait, as amended, alleges, request for recognition, based on an asserted authoriza and the Respondent's answer, as amended, admits that all tion card majority, the Respondent discharged two em- full-time and regular part-time employees employed by ployees, and engaged in numerous acts of interference, the Respondent at its Westville, Illinois, facility; but ex- restraint, and coercion, which precluded the holding of a eluding the store manager, assistant managers, confiden- fair election in an appropriate unit of the Respondent's tial employees, guards, and supervisors as defined in the employees. Act and all other employees, constitute a unit appropri- ate for the purposes of collective bargaining within the The name of the Charging Party and the name of the Respondent meaning of Section 9(b) of the Act, and I so find. appear as amended at the hearing. All dates are in 1980, unless otherwise specified. KEN'S IGA 307 V. THE UNFAIR LABOR PRACTICES of these conversations was that Davis decided that Engle should hold a meeting with the employees to talk about A. A Union Campaign Begins at the Respondent's ways to improve the Company's economic circumstances Store and to give the Respondent's views concerning the The Respondent, a retail grocery store in Westville, Il- Union. linois, is affiliated with the Independent Grocers Associ- Pursuant to a posted notice, the meeting was held at ation, commonly known as IGA. As of late February the store at 7 p.m. on January 29.3 Only the checkers, 1980, utilizing a work force of 5 supervisors and 30 part- stockboys, Davis, Engle, and Assistant Manager Paul time and full-time employees, as stipulated, the Respond- Baldwin attended. Based on the estimates of Engle and ent operated its business on a 3-shift, 24-hour-per-day, 7- Davis, the meeting lasted between approximately I to 2 day-per-week basis. hours. Engle was the only person to speak on behalf of Terri Keller, a regular part-time checker, initiated the the store's management. Although the meeting was os- union activity at Ken's IGA by phoning Jim Newman, tensibly called mainly to discuss the store's unacceptable the Union's business agent, on January 17. After discuss- profit level, Engle, nevertheless, began by discussing the ing with Keller the methods and procedures for conduct- Union. He thanked the employees for attending, stated ing a card-signing drive, Newman asked for a list of em- he understood there were some cards being circulated by ployees' names and addresses and promised to send her a a union, and expressed the hope that the employees supply of authorization cards for her use in beginning the would reconsider before signing, since he would rather campaign. She received these cards on January 18, deal personally with each individual on a one-on-one signed one, returned it to the Union by mail together basis instead of involving a third party. The remainder of with the employee list, and gave the remaining cards to Engle's remarks about the Union were made in response employees at the store. to a question by Terri Keller, and a remark by cashier After receiving the list compiled by Keller, containing Margaret Valongeon. According to Engle and Davis, the names of 24 employees at the store including Meat Keller asked if the employees would be fired if they Manager Bill Delp and Assistant Manager Willie Delp, signed cards, and Engle answered no, that that was her on January 21 Business Agent David Kemp was assigned right as an individual and as an employee. Then Valon- the responsibility of conducting the drive to organize the geon interjected, "No, he can't fire you, because that Respondent. Immediately thereafter, he mailed two au- would be against our constitutional rights," to which thorization cards to each person whose name appeared Engle responded, "No, but the union recognizes that I on the list. At various times thereafter, as described in have a right to make a profit, even if it means reduced detail in the record, Kemp held union meetings at em- store hours causing employee layoff." Engle and Davis ployees' homes. He solicited and received signed authori- testified that the remainder of the meeting was devoted zation cards both at these meetings and through the mail. to a review of the Company's financial problem, and to The dated authorization cards in evidence show that as solicited suggestions from the employees as to how the of January 29, in addition to Keller, cashiers Myra adverse situation could be remedied. Nickle, Delores Nightlinger, and Rita Wynn, and check- Cashier Myra Nickle testified that the meeting was the er Diana Roberts had signed union authorization cards. first to be held in approximately a year and a half. It began shortly after 7 p.m. when Engle stated he had B. Store Manager Engle's January 29 Meeting With h eard the employees received union cards by mail. He Emnployees said that it did not matter if they were green, yellow, or Based on undisputed testimony by Owner Kennard R. blue, that the employees should make up their own Davis and Store Manager Gene H. Engle, the Respond- minds whether or sign them. He continued, however, by ent became concerned about its low gross profit and saying that if the Union did get in, there would be a sales per man-hour ratio after they received the profit- layoff. He said that the Union promised a lot of things, and-loss statement for the end of 1979 and a visit from but that they did not always come through. There was Zone Manager Lee Singleton emphasizing these deficien- also high cost and union dues. At approximately this cies. In the meantime, Assistant Manager Mike Farmer point Terri Keller came into the meeting, slightly late. told Engle and Davis that he had received the union She asked if they signed cards, would they be fired, and card through the mail, and that a union organizer had Engle answered that he had no way of knowing who stopped by his house while he was away. When Davis had signed cards, but that if a union did get in the hours advised Singleton of this development, he instructed would be cut. He said that he could not fire the employ- Davis not to accept the cards. Having all of these devel- ees, but he could lay them off. Then Engle talked about opments in mind, Davis and Engle had a number of in- the economic conditions at the store. He asked the em- formal talks in which they discussed what should be ployees to estimate how much profit they made from a done. In addition to the store's economic problems, they dollar. The employees were surprised to learn how small also discussed the subject of the Union.2 The end result the Company's margin of profit was. Engle explained that the store was losing $800 or $900 a week and asked 2 Engle could not remember what he said to Davis during these discus- sions although he recalled that the subject of the Union "came up in con- 3 Only Engle was uncertain of the date, which he believed to be Janu- versation quite often." Davis remembered discussing employees' voting ary 28, but had railed to write anything down about the meeting and, preferences with Engle, but could not remember when this topic was ex- consequently, could not remember. Other witnesses definitely fixed the plored. date as January 29, and they are credited. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for suggestions for improvement. Prices not being Assistant Manager William Delp. Engle said he knew the changed at the end of a sale, customer theft, and deposits Union was trying to get in. Then he stated that he did on soft drinks were the main areas mentioned. He em- not care whether employees signed cards, but that if the phasized that it was necessary for the store to make a Union got in they would have to shut down the third profit, and that in order to maintain that profit he could shift, because there was no way they could afford to lay people off. keep it open. Engle denied threatening employees that Terri Keller testified that she arrived at the point in their work hours would be reduced if the Union suc- Engle's remarks where he was saying that the Union ceeded in organizing the Respondent, but later qualified makes a lot of promises, charges dues, but does not that denial by stating generally that he did not remember always deliver. He said they could ask Rita Wynn. He ever talking about the Union to any employee. Third- said he could not afford to keep all of them if the Union Shift Assistant Manager Delp testified that he remem- came in. Then he began talking about the Company's bered the conversation in question, which occurred profits and losses and asked for a couple of the employ- about 7 a.m. as they were preparing to leave work at the ees to estimate what they thought he made on the dollar. end of the shift. Although Delp also had difficulty re- Their estimates were high, and he emphasized that he membering all that was said, he did recall Engle stating was not making as much as they thought. Then Keller that while there was not going to be a layoff, "We asked if they signed union cards, would they be fired, would be put down to the second or first shift if it closes and Engle answered no, because he did not know who down, the third shift." Delp could not recall precisely signed. But then he said, "I do have the power to lay whether Engle's remarks were made on the occasion of you off." Then Margaret Valongeon, another cashier, the conversation with Roberts, or on another occasion spoke up and said that he could not do that, because if around that time. Nevertheless, Delp's testimony clearly he laid them off he would have to bring them back tends to corroborate that of Roberts and refute Engle's before he hired anyone else. Engle answered that he qualified denial. I credit Roberts and find that the Re- spondent, through Engle, threatened an employee that hours if the Union came in. Engle said that the store was the third shift would be eliminated if the Union got in, as losing $800 or $900 a week and asked for the employees alleged in paragraph 5(e) of the complaint as amended. alleged in paragraph 5(e) of the complaint as amended.4 to make suggestions on how to improve profits. Sugges- tions by employeesuggestions on w ere made, including cpronsiderable Myra Nickle testified that on February 15 about 5 p.m. tions by employees were made, including considerable discussion about mismarked off-sale items and the failure the store, Assistant Manager Paul Baldwin began to to mark soft drinks. Keller also remembered Engle stat- talk to her about the Union No one else was present. He ing that it was up to each of the employees to decide for said that she should be ashamed of herself for starting themselves concerning the Union. the Union, and, when Nickle protested that she did not Engle denied threatening the assembled employees start the Union, Baldwin asked, "Well, then, who did?" with discharge or layoff if they signed cards or if the When Nickle answered that she did not know and if she Union came in. However, Engle found it impossible did would not tell him. Baldwin retorted, "You're hurt- while testifying to remember in any detail his actual re- ing me by doing this, you know." Nickle asked what he marks to the assembled workers. He emphasized that he meant, and Baldwin said, "Well, I had a talk with Gene had failed to make notes of anything he said. I was not and Ken, and they told me that I am going to lose my impressed with his memory. Likewise, Davis' testimony job. They said if they kept me I would be a stockboy, concerning Engle's remarks about the Union were and that would be lower pay." The conversation ended couched in general terms, and contained vague qualify- at this point, when a customer interrupted. ing phrases, e.g., "something of that nature," and "some- Baldwin did not testify at any point in the hearing. thing to the effect." Considering that the Company knew Nickle's testimony was not impaired by cross-examina- well in advance the message that it wished to communi- tion. I credit her testimony and find that the Respondent, cate to the employees, while the employees did not through Baldwin, unlawfully interrogated Nickle con- know, I find Nickle's and Keller's versions more detailed and precise concerning that area of the meeting in which William Delp's uncertainty in his testimony concerning whether he heard one or two conversations between Roberts and Engle about the the topic of the Union was discussed. I credit their ver- closing of the third shift caused counsel for the General Counsel to pro- sions and find that, in his January 29 address, Engle did pose a further amendment to the complaint, par. 5(f), alleging that on or in fact threaten the employees with reduced hours, with about February 4 Engle interrogated Roberts concerning her own and a layoff, and some of them would go, if the Union came other employees' union activities. A close reading of the record reveals a ., laoff, .f .hey 'igned union cards. Thus, the Respond that Delp's testimony contains no account of Engle's having asked any in, or if they signed union cards. Thus, the Respondent questions during the conversation. The only mention of Engle asking violated Section 8(a)(1) of the Act in this portion of anything about the Union is contained in a double question by counsel Engle's speech, as alleged in paragraphs 5(a)(1), (2), and for the General Counsel after Delp had completed telling what he re- (3) of the complaint, as amended. membered of the conversation. Q. (By Mr. Somers) Okay. Now, you testified that Mr. Engle C. Further Interrogation and Threats by the Store's asked you if the Union was trying to get in, and that he said he would have to close down the third shift, right? If it did? Supervision A. Yes. He wasn't sure but he said he might have to. According to Diana Roberts, a third-shift checker at On redirect examination Delp denied that Engle asked any questions, about February 4 she was and no further clarification of this segment of Delp's testimony appears in the Respondent's store, on or about February 4 she was the record. Under these circumstances, I find that the General Counsel in the dairy department when Gene Engle engaged her has failed to prove that Gene Engle engaged in unlawful interrogation on in conversation concerning the Union in the presence of or about February 4 as alleged in par. 5(f) of the complaint. KEN'S IGA 309 cerning who started the Union, and threatened her that the Union got in there would be a layoff and the store store employees' hours would be reduced if the Union hours would be cut. Baldwin did not testify. Harper ex- came in, in violation of Section 8(a)(1) of the Act, as al- hibited a reasonably good memory and was not ques- leged in paragraphs 5(c)(1) and (3). I also find that Bal- tioned about this incident on cross-examination. I credit dwin's remark that Nickle should be ashamed of herself his testimony and find that the Respondent, through for starting the Union is violative of Section 8(a)(1), in Baldwin, threatened Harper with a layoff if the Union that through this remark Baldwin coercively conveyed came in, as alleged in paragraph 5(c)(3) of the complaint. to Nickle the message that the Respondent believed she Based on undisputed and credited testimony by Myra had instigated the Union's organizational drive, as al- Nickle, I find that on February 29 in the store, about 11 leged in paragraph 5(c)(2) of the complaint. p.m., following the discharges of Holycross and Harper, Myra Nickle further testified that on February I As- Nickle approached Paul Baldwin and asked him why sistant Manager Mike Farmer approached her in the they had been fired. Baldwin answered that he did not store, alone, and asked, "Did you start this Union?" know what had happened to Brad Holycross or why he Upon receiving a negative answer Farmer asked, "Are was fired. Concerning Harper, Baldwin said he had been you sure," and Nickle said that she was sure. Farmer ac- told by Gene Engle that he intended to keep Harper be- knowledged that he might have told the investigating cause he was a no vote for the Union, but then Engle Board agent that he had several conversations with em- heard that he had signed a card and planned to release ployees about the Union during February 1980. He did Harper that evening after work. However, he said, when not deny having a conversation with Myra Nickle about Engle found a lot of outdated and spoiled cottage the Union around the time she specified, stating, instead, cheese, he released Harper that morning. In his testimo- that he could not remember having such a conversation, ny, Engle admitted talking with Davis about employees' Furthermore, although Farmer denied ever having asked voting preferences, and with Baldwin about the Union. I Nickle why she started the Union, he did not specifically find that the Respondent violated Section 8(a)(l) of the deny asking her if she started the Union-an entirely dif- Act by threatening Nickle that one of her fellow em- ferent question. Therefore, Nickle's testimony about the ployees had been fired because he signed a union card, as February I incident stands undenied and is credited. I alleged in paragraph 5(c)(4) of the complaint find that the Respondent violated Section 8(a)(1) of the Act, through Farmer, by interrogating Nickle concern- D. The Discharges of Brad Holycross and Phil Harper ing her union activities, as alleged in paragraph 5(d) of the complaint. Brad Allan Holycross worked as a part-time stockboy Alleged discriminatee Brad Holycross testified that at on Saturdays and Sundays on the second shift from June the outset of his discharge interview with Gene Engle, 1979 until his discharge on February 28. He signed a alone, on February 28 at the store, Engle began by stat- union card on February 18 at a union meeting at Myra ing that "[W]ith all the union getting in here, there's Nickle's home. Holycross' duties consisted of price mark- going to be a lot of changes and a lot of people laid off." ing items, stocking shelves, rotating products in the dairy Engle denied making this threat. However, Holycross' case, and bagging and carrying out groceries for custom- testimony concerning Engle's alleged remarks is consist- ers. Included within this general description of Holy- ent with the statements found to have been made by cross' duties was the specific task of changing the price Engle during his January 29 address to the assembled marking on items from a sale price back to the regular employees. I credit Holycross, who impressed me as an price after the expiration of the sale. Holycross was not honest witness, and find that the Respondent, through the only stockperson who worked Saturdays under the Engle, threatened him during Holycross' discharge inter- supervision of Gene Engle and Assistant Manager Mike view on February 28 as alleged in paragraph 5(b) of the Farmer, who conceded that the stockboys occasionally complaint. make mistakes in changing prices and also that the price Alleged discriminatee Phillip Harper testified that on lists from which they work are occasionally in error. February 28, in the grocery area of the store, he heard The Respondent's president, Ken Davis, described Holy- Paul Baldwin tell Michael Farmer that when the Union cross' work performance prior to the January 29 employ- got in there would be a layoff and many people would ee meeting, as neither good nor bad. be laid off. Shortly thereafter Harper, being concerned During that portion of the January 29 employee meet- about this statement, approached Baldwin, alone, in the ing which was devoted to receiving employees' sugges- area of the magazine rack and asked for more details. tions on how to improve profits, one of the topics dis- Baldwin responded they would cut back, and there cussed was mismarked off-sale items. Following the would be only one assistant manager, Farmer, because he meeting, according to Davis, he talked with Mike had more seniority than Baldwin, who would be reduced Farmer, the Saturday night supervisor, who told him to a full-time stockboy. Continuing, Baldwin pointed his that remarking the off-sale items was the responsibility of finger at Harper and said Harper would not have a job Brad Holycross. Farmer, on the other hand, remembered because he did not have enough seniority. Referring to Davis talking to him about profit and loss during the himself, Baldwin said he would not be able to make it as week after the meeting and stating that a lot of the price a full-time stockboy because it did not pay enough, and changes were not getting done. Farmer made no mention if the Union got in he would probably have to quit, be- of Davis having asked for the identity of the employee cause if they were cutting hours he would not get that responsible for changing the prices, or his having told many hours and it would not be worth it. Baldwin said if Davis that Holycross performed this function. Farmer 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did testify that he simply told Holycross "that Ken was a statement during his final interview with Holycross on little unhappy because of the pricing wasn't getting com- February 28 in the back room of the store that, "With all pletely done." Thereafter, according to Farmer, during the union getting in here, there's going to be a lot of the remainder of January and on into February, he "no- changes and a lot of people laid off." In the light of that ticed a few things" on occasion which had not been statement, Engle's further explanation to Holycross that changed back to the regular price, but was unable to he was doing the off-sale list wrong, his hair was too recall which items had not been changed. Farmer was long, and Holycross' parents had cheated his son on the unable to recall whether he ever discussed this problem sale of a used television set is simply incredible and only with Holycross again. When asked if he ever discussed serves to reinforce the conclusion that the Respondent the matter with Ken Davis again, Farmer hesitated and was groping for a pretext with which to rid itself of a answered, "I think I did." Farmer testified that he was union adherent it could operate without. It is little never consulted by Ken Davis or Gene Engle about dis- wonder that the interview ended with Engle failing to charging Holycross for failure to change back sale items answer Holycross' question about what he had done on Saturday night. He found out that Holycross had wrong with respect to the off-sale list. I find that the rea- been discharged after the fact, when Engle told him he sons espoused by the Respondent for Brad Holycross' had let Brad go. According to Farmer, Engle never told discharge are pretexts and that he was discharged be- him the reason for Holycross' discharge. He testified that him the reason for Holycross' discharge. He testified that cause of his known or suspected union sympathies and he did not know the reason Holycross was terminated, a activities in violation of Section 8(a)(l) and (3) of the but "I pretty well guessed." Farmer was never asked to Acti elaborate on this response.ct. Holycross was discharged on February 28 by Engle Phillip Harper worked as a full-time stockboy on the during a phone conversation with Holycross' mother, in first shift, Monday through Friday. His immediate super- which he stated that he was going to lay off her son and visor was Gene Engle. His duties were the same as those asked her to have Holycross contact him at the store. of Brad Holycross, and specifically included filling the According to Engle, he acted upon instructions from dairy case. Because of the relatively short spoilage time, Davis and fired Holycross solely because of his errone- dairy products are date coded. When they become out- ous work in connection with the off-sale list. Engle's as- dated they must eventually be removed. On February 29 serted reason for Holycross' discharge is consistent with Gene Engle telephoned the Harper home and told Phil- the Respondent's April 2 position letter, but partially in- lip Harper's mother that he did not need Phillip any consistent with Davis' testimony that Holycross was re- more, that he had been dissatisfied with his work because leased also for the purpose of reducing man-hours and he had found outdated cottage cheese in the dairy case. improving the store's sale-per-man-hour ratio. Thus, it is In both Engle's and Mrs. Harper's versions of this con- clear that there are numerous inconsistencies in the testi- versation Phillip Harper's discharge was attributed by monies of the Respondent's supervisors with respect to Engle to the discovery of the outdated cottage cheese. the events leading up to Holycross' termination. Further- Davis, on the other hand, testified that Engle had told more, Davis and Engle acknowledged that during a him Harper had failed to rotate milk on the evening of meeting on February 25, only 3 days before Holycross' February 28. This inconsistency remains unresolved. discharge (and 4 days before Harper's termination), the Harper received no warning or opportunity to improve two men discussed the voting preferences of store em- prior to his discharge. Furthermore, I find the Respond- ployees with respect to a possible union election, at a ent failed to prove that Harper was primarily responsible time when they knew through Assistant Manager for the dairy case since, at the least, the record reveals Farmer that almost all the employees had attended a that other stockboys on other shifts also had the same union meeting on February 18. Davis admitted that the duties as Harper, including the dairy case. These incon- voting preferences of Holycross and Harper were specifi- sistencies suggest that the asserted reason for Harper's cally discussed at the same time when they were discuss- discharge is a pretext. ing their dissatisfaction with Holycross' and Harper's There are other indicators which also point in this di- work. rection. Harper was hired in June 1979 and between that All of these circumstances discussed above strongly time and October performed the duties of a part-time suggest that the Respondent's expressed concern over stockboy on both days and nights. Although, according Holycross' alleged failure to remark unidentified off-sale to Engle, Harper could not keep up with the work and items is a pretext, and that the real reason for his termi- was removed from the night crew, he was not fired be- nation was that the Respondent suspected he favored cause, in Engle's words, "He was better than nothing." having the Union as his collective-bargaining representa- Nevertheless, despite this dim appraisal of Harper's per- tive. In my view, this perspective concerning the true formance, in late October 1979 when full-time stockboy reason for Holycross' discharge is confirmed by Engle's Paul Barber was fired and part-time stockboy Bart Atwood refused full-time work, Engle promoted Harper 5 Later in his testimony, on redirect examination, Farmer gave answers Atwood refused full-time work, Engle promoted Harper pursuant to strongly suggestive leading questions from counsel for the to the Job instead of looking elsewhere. Moreover, his Respondent which tended to show more communication between duties and responsibilities were increased. According to Farmer, Davis, and Engle with respect to the off-sale item pricing errors Engle and Davis, during the next 3 months Harper's de- allegedly involving Holycross and, in addition, tended to emphasize more ficiencies became readily apparent, and they discussed participation by Farmer in the process leading up to Holycross' release. Under all the circumstances, I am persuaded that Farmer's earlier version his poor attitude toward his job with him on a number of is the most reliable account. occasions. However, in contradiction of his contention, KEN'S IGA 311 they also stated that during this period Harper did not 7(d) and 8, respectively, allege that the Union requested commit any serious errors. Thus, the Respondent con- recognition on February 29, and since that time the Re- doned whatever shortcomings Harper may have pos- spondent has failed and refused to recognize the Union sessed, and Harper remained on the job until after it as the exclusive collective-bargaining representative of its learned of the Union's organizational drive and made the unit employees. The General Counsel alleges in para- previously discussed assessment of Harper's sympathies graph 12 of the complaint that the Respondent's unfair and activities concerning the Union. The extent of the labor practices constitute a course of conduct precluding Respondent's maintenance of an understanding attitude the holding of a fair election among the employees in the toward Harper, until the union question came upon the unit and are so serious and substantial in character and scene, is clearly revealed by its failure to discharge effect as to warrant the entry of a remedial order requir- Harper when he and stockboy Chad Fueyo drank 4 ing the Respondent as of February 21 to recognize and quarts of Busch beer in Harper's car in the store parking bargain with the Union. Counsel for the General Counsel lot, and then proceeded to drive the car in reverse argues that the Respondent's actions dissipated the through the store's front window.0 Union's support and dampened continued enthusiasm for As noted earlier in this Decision, in discussing the union activity so as to effectively preclude the filing of a events leading up to the termination of Brad Holycross, representation petition and the holding of a fair and free Engle and Davis met on February 25 and discussed election. Harper's and Holycross' voting preferences in the light The Respondent contends, apart from arguing that no of their knowledge of the union campaign, and the unfair labor practices were committed, that the General report of Assistant Manager Farmer that almost all the Counsel has failed to show that the unfair labor practices employees had attended a union meeting on February 18. were so coercive, pervasive, or extensive as to require a Engle also discussed the union situation with the assistant were so coercive, pervasive, or extensive a to require a managers. Nevertheless, Engle insisted that it was his bargaining order, or that the application of traditional managers. Nevertheless, Engle insisted that it was his remedies would not insure a fair election. The Respond- discovery of outdated Weight Watchers milk and cottage ent also argues that the conduct which comprises the ent also argues that the conduct which comprises the cheese in the dairy case which angered him and precipi- cheese in the dairy case which angered him and precipi- unfair labor practices did not affect the employees, that a tated Harper's termination. On cross-examination, how- ever, Engle conceded that he was unable to recall the large majority of the authorization cards wered, and that coded dates stamped on the containers and was even after the bulk of the illegal action had occurred, and that unable to explain how to interpret the coded numbers. the Union secured its last authorization cards and sent its unable to explain how to interpret the coded numbers. Having considered all of the evidence presented with re- bargaining demand to the Respondent after all of the al- spect to Harper's discharge, including the significant por- leged unlawful conduct had been committed. tions of testimony described above, I can only find and Joint Exhibit J-1, signed by a representative of each conclude, as I do, that the reason offered by the Re- party to this proceeding, shows that as of February 29, spondent for Harper's termination is a pretext, and that the date of the Union's letter, in evidence, lawfully re- he was actually discharged because of his known or sus- questing recognition, the appropriate collective-bargain- pected union activities and sympathies. The accuracy of ing unit consisted of 30 employees. On March 6 the Re- this assessment is further confirmed by the undisputed spondent rejected the Union's demand for recognition as- testimony of Myra Nickle concerning her conversation serting a good-faith doubt of its majority status. At the with Paul Baldwin in the store about 11 p.m. on Febru- hearing in this matter, the General Counsel introduced ary 29. On that occasion Baldwin told Nickle that Engle into evidence 19 authenticated authorization cards from had taken advantage of his discovery of the outdated bargaining unit employees, 16 of which were signed be- cottage cheese to fire Harper that morning, instead of tween January 18 and February 21. Of the remaining implementing his original plan to release Harper that cards, two were dated February 28, and the last card evening after work, because he had heard that Harper was dated February 29, the date of the Union's written had signed a union card. I find that the Respondent vio- demand for recognition. 7 Each of the 19 authorization lated Section 8(a)(1) and (3) of the Act by discharging cards was received into evidence without objection, Phillip Harper on February 29. except for General Counsel's Exhibit 22, the authoriza- tion card of Dorothy Wilson, dated February 29. This E. The Alleged Violation of Section 8(a)(5) of the Act Paragraph 7(b) of the complaint alleges that on or 'Counsel for the General Counsel also offered into evidence copies of signatures (G.C. Exhs. 23-26 and 30) for comparison by the Administra- about February 21 a majority of Respondent's employees tive Law Judge for the purpose of authenticity corroboration. I rejected in the admitted appropriate unit, set forth in section IV the exhibits on the basis of a lack of technical training as a handwriting of this Decision, designated and selected the Union as expert and refused to permit these exhibits to be placed in the rejected their collective-bargaining representative. Paragraphs exhibit file. Counsel for the General Counsel has attached photostatic copies of these rejected exhibits to his brief "for signature comparison, if necessary," and as "further evidence of the validity of four cards." These ' Neither employee was disciplined in any manner. Engle's explanation attachments to General Counsel's brief are stricken sua sponte and have for this exercise in leniency was that the employees were off duty at the not been considered. Regardless of whether my ruling was correct or in- time of the incident, and if he had discharged them he would not have correct, the sending of case related materials outside the record to the anyone to run the store since Westville was a small town. The contrast Administrative Law Judge by counsel for the General Counsel's attach- between the Respondent's inaction with respect to this incident, and its ment of these excluded documents to his brief, however well intentioned. swift application of the ultimate sanction of discharge following the is, to say the least, unprofessional and not to be encouraged. United advent of the union campaign, when Harper, or possibly someone else. Brotherhood of Carpenters and Joiners of America and Scott and Duncan. failed to rotate the cottage cheese, is striking, to say the least. Inc., 239 NLRB 1370. 1373, fn. I (1979). 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card was introduced into evidence through the testimony meeting with employees shortly after it learned of the of Delores Nightlinger who, after observing Wilson sign beginning of the Union's organizational drive, and stead- the card on that date, accepted it from Wilson and there- ily thereafter increased its antiunion activities in severity after turned it in to Union Representative Kemp. Under and number of occurrences, culminating with the dis- these circumstances, I find that Wilson's card has been charge of Phillip Harper on February 29, the date on properly authenticated and is valid, despite the fact that which the last authorization card in evidence was signed. Wilson did not fill in the blank spaces on the card pro- Thus, the Respondent's contentions, as set forth above, vided for the name of the company, the store address are not supported by the facts. After February 21, at and number, and her job title. which time the Union had obtained a one-card majority, The authorization cards are clear and unambiguous on only three additional authorization cards were obtained their face. They state, "I . . . hereby authorize United from the 30-employee unit during the period in which Food and Commercial Workers International Union, the Respondent's unlawful activity reached its climax, AFL-CIO, or its chartered local union to represent me and none following the discharge of one-fifthteenth of its for the purposes of collective bargaining, respecting rates work force. Thus, analysis of the increasing seriousness of pay, wages, hours of employment, or other conditions of the Respondent's unfair labor practices in correlation of employment, in accordance with applicable law." with the declining success of the Union's organizational There is no evidence in the record to show that any of activities persuades me that the application of traditional the cardsigners were told or assured that their card was Board remedies in the instant case would be insufficient, to be used solely for the purpose of obtaining an elec- and that the holding of a fair and free election under tion. Indeed, there is no evidence in the record from the such circumstances is highly unlikely. I therefore find card solicitors, the card signers, or anyone else, that any the issuance of a bargaining order, as part of an appropri- misrepresentation of any kind was made. I find that all of the cards introduced into evidence by the General Coun- essarye I find that the Respondent violated Section sel are valid, and, therefore, I further find that on Febru- 8(a)(1) and (5) of the Act on February 21 and thereafter ary 21, and thereafter, a majority of the Respondent's ary 21, and thereafter, a majority of the Respondent's by failing and refusing to bargain with the Union as the unit employees designated and selected the Union as exclusive representative of its employees in the appropri- their exclusive collective-bargaining representative. ate unit. In accordance with the principles enunciated by Thus, the sole remaining question to be resolved is the Board in Trading Port, Inc., 219 NLRB 298 (1975), I whether under the standards enunciated by the United find that the Respondent had an obligation to bargain States Supreme Court in N.L.R.B. v. Gissel Packing Co.. with the Union as of February 21 1980 by which date Inc., et al., 395 U.S. 575, 614-615 (1969), the Respond- the Respondent had clearly embarked on a clear course the Respondent had clearly embarked on a clear course ent's unfair labor practices warrant the issuance of a bar- of unlawful conduct which undermined the Union's ma- gaining order. In the Gissel decision the Court stated, in part (at 614-615): jority status and made the holding of a fair election im- part (at 614-615): probable. The only effect of our holding here is to approve the Board's use of the bargaining order in less ex- traordinary cases marked by less pervasive practices 1. The Respondent is an employer engaged in com- which nonetheless still have the tendency to under- merce within the meaning of Section 2(2), (6), and (7) of mine majority strength and impede the election the Act. processes. The Board's authority to issue such an 2. The Union is a labor organization within the mean- order on a lesser showing of employer misconduct ing of Section 2(5) of the Act. is appropriate, we should reemphasize, where there 3. By threatening employees with discharge, layoff, re- is also a showing that at one point the union had a duced hours, changes, or other reprisals if they signed majority; in such a case, of course, effectuating as- union cards, joined, engaged in union activities, or select- certainable employee free choice becomes as impor- ed the Union as their collective-bargaining representa- tant a goal as deterring employer misbehavior. In tive; by interrogating employees concerning their own or fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration by threatening an employett sympathies, or desires the extensiveness of an employer's unfair practices by threatening an employee that th e Respondent be- in terms of their past effect on election conditions lieved that employee Union; by threatening and the likelihood of their recurrence in the future. employees that another employee had been fired because If the Board finds that the possibility of erasing the he signed a unon card; and by threatening employees effects of past practices and of ensuring a fair elec- with the elimination of the third shift in the store, the tion (or a fair rerun) by the use of traditional reme- Respondent through its supervisors and agents violated dies, though present, is slight and that employee Section 8(a)(l) of the Act. sentiment once expressed through cards would, on 4. By discharging Brad Holycross on February 28 and balance, be better protected by a bargaining order, Phillip Harper on February 29 because of their known or then such an order should issue. suspected union sympathies and activities, the Respond- ent violated Section 8(a)(1) and (3) of the Act. The record shows that the Respondent began its 5. The collective-bargaining unit set forth in section course of unlawful conduct on January 29 during a store IV of this Decision constitutes a unit appropriate for the KEN'S IGA 313 purposes of collective bargaining within the meaning of ORDERS° Section 9(b) of the Act. The Respondent, Loy Food Stores, Inc. d/b/a Ken's 6. Beginning on February 21, 1980, and at all times IGA, Westville, Illinois, its officers, agents, successors, thereafter, the Union represented a majority of the em- and assigns, shall: ployees in the unit set forth in section IV of this Deci- i Cease and desist from: sion, and is, and has been the exclusive representative of said employees for the purposes of collective bargaining (a) Interrogating employees concerning their own or (of the Act. other employees' union activities, sympathies, or desires. (b) Threatening employees with discharge, layoff, re- 7. By refusing to recognize and bargain collectively duced hours, changes, or other reprisals if they signed with the Union with respect to the rates of pay, hours of with the Union with respect to the rates of pay, hours of union cards, joined, engaged in union activities, or select- employment, and other terms and conditions of employ- ed the Union as their collective-bargaining representa- ed the Union as their collective-bargaining representa- ment of the employees in the appropriate unit on and after February 21, 1980, by which date it had embarked other employees' union activities, sympathies, or desires; on a clear course of unlawful conduct which undermined threatening an employee that the Respondent believed the Union's majority status and made the holding of a that employee started the Union; threatening employees fair election improbable, the Respondent violated Section that another employee had been fired because he signed a union card; and threatening employees with the elimi- 8. The aforesaid unfair labor practices are unfair labor nation of the third shift in the store. practices affecting commerce within the meaning of Sec- (c) Discharging, laying off, or otherwise discriminating tion 2(6) and (7) of the Act. against employees in regard to hire and tenure of em- 9. The Respondent has not violated the Act in any re- ployment, or any term or condition of employment, be- spects other than those specifically found. cause they joined or assisted Food and Commercial Workers Union Local 550-R, affiliated with the United Food and Commercial Workers International Union, Having found that the Respondent has engaged in cer- AFL-CIO, CLC, or any other labor organization, or be- tain unfair labor practices, I find it necessary to order cause they engaged in union activities or protected con- that the Respondent cease and desist therefrom and take certed activities. certain affirmative action designed to effectuate the poli- (d) Refusing to bargain collectively concerning rates cies of the Act. of pay, wages, hours of employment, and other terms Having discriminatorily discharged Brad Holycross and conditions of employment, with Food and Commer- and Phillip Harper, I find it necessary to order that the cial Workers Union Local 550-R, affiliated with the Respondent offer them immediate and full reinstatement United Food and Commercial Workers International with backpay computed on a quarterly basis, plus inter- Union, AFL-CIO, CLC, as the exclusive representative est as prescribed in F W. Woolworth Company, 90 NLRB of all employees in the appropriate unit described in sec- 289 (1950), and Florida Steel Corporation, 231 NLRB 651 tion IV of this Decision. (1977). 9 (e) In any other manner interfering with, restraining, Since the Respondent unlawfully refused to bargain or coercing employees in the exercise of their rights to with the Union, I shall also order the Respondent to bar- self-organization, to form, join, or assist labor organiza- gain with Food and Commercial Workers Union Local tions, to bargain collectively through representatives of 550-R, affiliated with the United Food and Commercial their own choosing, and to engage in other protected Workers International Union, AFL-CIO, CLC, effective concerted activities for the purposes of collective bar- February 21, 1980, and to post an appropriate notice. gaining or other mutual aid or protection, or to refrain Moreover, since I find that the unfair labor practices from any and all such activities, except to the extent that committed by the Respondent were serious in nature and such right may be affected by an agreement requiring struck at the very heart of rights intended to be protect- membership in a labor organization as a condition of em- ed by the Act, I find a broad cease-and-desist order is ployment, as authorized in Section 8(a)(3) of the Act, as warranted. amended. Upon the foregoing findings of fact, conclusions of 2. Take the following affirmative action designed to ef- law, and the entire record, and pursuant to Section 10(c) fectuate the policies of the Act: of the Act, I hereby issue the following recommended: (a) Upon request, recognize, meet with and bargain collectively in good faith with the Food and Commercial sThe complaint, as amended at the hearing, contains no allegation and Workers Union Local 550-R, affiliated with the United the record contains no evidence which would support a finding that the Food and Commercial Workers International Union, Respondent conveyed to employees the impression that their union activ- AFL-CIO, CLC, as the exclusive collective-bargaining ities were under surveillance, which contention is raised for the first time on p. 46 of the General Counsel's brief. Nor do I make any finding con- representative of all our employees in the appropriate cerning the contentions which emerge for the first time in that document and were not fully litigated at the hearing, concerning the awarding of 'o In the event no exceptions are filed as provided by Sec. 102.46 of unilateral wage increases to employees without first notifying and bar- the Rules and Regulations of the National Labor Relations Board, the gaining with the Union. In any event, with respect to this latter conten- findings, conclusions, and recommended Order herein shall, as provided tion, a broad bargaining order found herein to be appropriate would en- in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and compass the complained of conduct. become its findings, conclusions, and Order, and all objections thereto I See, generally, Isis Plumbing & Heating Co., 318 NLRB 761 (1962) shall be deemed waived for all purposes. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit set forth in section IV of this Decision; and, if any notice, on forms provided by the Regional Director for understanding is reached, embody such understanding in Region 33, after being signed by Respondent's authorized a written and signed agreement. representative, shall be posted by the Respondent imme- (b) Offer Brad Holycross and Phillip Harper immedi- diately upon receipt thereof, and be maintained by it for ate and full reinstatement to their former positions or, if 60 consecutive days thereafter, in conspicuous places, in- such positions no longer exist, to substantially equivalent cluding all places where notices to employees are cus- positions, without prejudice to their seniority or other tomarily posted. Reasonable steps shall be taken by the rights and privileges, and make them whole for any loss Respondent to insure that said notices are not altered, of earnings, in the manner set forth in the section of this defaced, or covered by any other material. Decision entitled "The Remedy." (e) Notify the Regional Director for Region 33, in (c) Preserve and, upon request, make available to the writing, within 20 days from the date of this Order, what Board or its agents, for examination and copying, all r i , n steps the Respondent has taken to comply herewith. payroll records, social security payment records, time- cards, personnel records, and all other records necessary to analyze the amount of backpay due under the terms of be dismissed to the extent it alleges violations of the Act this Order. not found herein. (d) Post at its Westville, Illinois, store, copies of the at- tached notice marked "Appendix. " '" Copies of said Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an "In the event that this Order is enforced by a Judgment of a United Order of the National Labor Relations Board." States Court of Appeals, the words in the notice reading "Posted by