Shop-Rite Supermarket, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shop-Rite Supermarket, Inc. and Amalgamated Meat- cutters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated Meatcut- ters and Butcher Workmen of North America, AFL-CIO. Case 5-CA-8190 August 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 24, 1977, Administrative Law Judge Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. General Counsel filed cross- exceptions and a supporting brief and a brief in response to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.3 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, Shop-Rite Supermarket, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 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 Watt 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. I General Counsel has excepted to the Administrative Law Judge's failure to find that Respondent on September 18, 1976, through Supervisor Constantine Chrysovergis, unlawfully created the impression of surveillance of employees' union activities. We find it unnecessary to pass on this allegation since an additional violation finding to this effect would be cumulative 3 In accordance with Trading Porn, Inc., 219 NLRB 298 (1975), and The Kroger Co., 228 NLRB 149 (1977), we date the bargaining order from September 13, 1976. the date the unfair labor practice campaign com- menced. Chairman Fanning would find that the bargaining obligation arose on September 10, 1976, the date the Union requested Respondent to recognize and bargain with it and was refused. DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The hearing in this proceeding, with all parties represented, was held before me in Baltimore, Maryland, on January 19 and 20, 1977, upon the General Counsel's complaint dated November 4, 1976,1 and Respondent's answer.2 In general, the issues litigated were whether Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (Act). 3 More particularly, the questions for decision are as follows: The complaint was issued pursuant to an amended charge filed on lOctober 22, 1976. : During the hearing the answer was amended to admit par. 4 of the complaint insofar as it relates to Bernard Geher. 3 Set forth below are the relevant provisions of the sections of the Act to which reference has been made in the text: Sec. 8(a) It shall be an unfair labor practice for an employer- (I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7: (3) by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a). Insofar as pertinent. Secs. 7 and 9(a) are as follows: Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.... Sec. 9(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment .... 231 NLRB No. 72 500 SHOP-RITE SUPERMARKET 1. Is Constantinos Chrysovergis (Gus) 4 a supervisor within the meaning of Section 2(1 1) of the Act? 5 2. Did Respondent violate Section 8(a)(1) of the Act by, as the complaint alleges, interrogating and threatening employees; creating the impression that their union activity was under surveillance; and offering them wage increases to induce them to cease supporting Amalgamated Meatcut- ters and Butcher Workmen of North America, Local 117 (Union)? 6 3. Did Respondent violate Section 8(a)(3) of the Act by discharging Lillian Gauger? 4. Did the Union represent a majority of Respondent's meat department employees when it requested recognition and bargaining on their behalf? 5. Assuming an affirmative answer to question 4, did Respondent violate Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union? 6. Assuming an affirmative answer to question 5, should a bargaining order issue? Upon the entire record,7 upon my observation of the witnesses and their demeanor while testifying, and having taken into account the arguments made and the briefs submitted,R I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Maryland corporation, is engaged at Baltimore, Maryland, in the retail grocery business. During the year ending on November 3, 1976, a representative period, Respondent's gross volume of business exceeded $500,000. During the same period, Respondent purchased, from vendors located outside the State of Maryland, merchandise valued in excess of $50,000. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (Board) is warranted. Having been repeatedly referred to at the heanng as "Gus." Constanti- nos Chrysovergis will be similarly referred to in this Decision. I Sec. 2(11 I) of the Act is as follows: Sec. 2. When used in this Act- (I11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. INTRODUCTION Briefly, this case is concerned with the Union's request for recognition as the collective-balgaining representative of Respondent's meat department employees and for bargaining on their behalf, to which Respondent did not accede, and certain subsequent events. Included among the latter, the complaint alleges, were violations of Section 8(a)(1) of the Act9 engaged in by Bernard Geher, Respondent's president, and Gus, its meat department manager, who, the complaint avers, is a supervisor. Also among the events following the Union's bargaining request was the discharge of employee Lillian Gauger, assertedly in violation of Section 8(aX3 ). The General Counsel contends ' that Respondent's refusal to recognize and bargain with the Union consti- tuted an infraction of Section 8(aX5) of the Act. To remedy this, as well as Respondent's claimed violation of Section 8(a)(1) and (3), set forth in the complaint as having been undertaken "to undermine the Union's status as collective- bargaining representative" and as having been "so exten- sive and pervasive . . . as to render impossible . . . a free and fair election," the General Counsel urges that, in addition to the usual cease-and-desist order, a bargaining order issue. Respondent has denied the commission of the unfair labor practices alleged in the complaint and has also denied that Gus is a supervisor. Respecting the General Counsel's plea that a bargaining order be entered, Respondent's position is that, even were it to be found that it violated the Act, the violations would not warrant the imposition of such a remedy, nor would they, as Respon- dent states on brief, "preclude the holding of a fair, reliable election." of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 6 The Union's full designation appears in the caption. 7 Issued simultaneously is a separate order [omitted from publication] correcting inadvertent errors in the stenographic transcript of this proceed- ing. I Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the hearing, may not be discussed, each has been carefully weighed and considered. 9 The nature of these claimed violations appears above in my statement of the principal questions for decision. i' Although represented, the Union made no opening statement at the hearing, nor did it submit a brief. I assume, however, that its position is the same as the General Counsel's. 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. PRELIMINARY FINDINGS AND CONCLUSIONS11 A. Respondent's Business Respondent operates a retail supermarket in Baltimore, Maryland, in which meats, groceries, and related merchan- dise are sold. Its store is departmentalized and consists of grocery and meat departments, each having a separate manager. In the meat department there is a meat room in which fresh meat is cut, wrapped, and prepared for sale; a lunch meat case; and a delicatessen section, referred to at hearing as the "deli." The delicatessen section, located in the rear of the store, is not a self-service unit. A clerk is stationed behind a counter over which orders are given by customers for merchandise sold in that section. When necessary in filling orders for sliced meat, the clerk operates an electric slicing machine. The slicing machine poses a danger to its operator. Unless care and attention is given to its operation, the operator's fingers may be cut. As Bernard Geher, Respondent's president, testified in this regard, "You have to concentrate when you are slicing the meat otherwise your fingers are going to go with it." Confirming this, Debra Botler, who at all material times was a deli clerk, related that it is "dangerous . .. to operate the machine while . . . talking to someone"; that in operating the machine, the operator had "to give it ... undivided attention"; that while operating the machine she had "cut [herself] quite a few times when [she] was talking and not paying attention to what [she] was doing"; and that on one such occasion, Geher "told [her] to watch it [and] to put [her] mind on the machine." Injuries to operators of the slicing machine have occurred in the past. In some cases, these injuries were so serious as to require the injured deli clerk to obtain treatment at a hospital. As plaintively put by Geher, "the problem of taking [the injured worker] to the hospital, stitching the fingers" is one which he did not want to experience again. B. Respondent's Meat Department Employee Classifications Constantinos Chrysovergis (Gus) is the manager of Respondent's meat department. The other people working in the meat department are classified as meatcutters, meat wrappers, and delicatessen clerks. C. The Status of Constantinos Chrysovergis (Gus) The General Counsel and Respondent are sharply divided on the question of Gus' status. The former contends that he is a supervisor and the latter that he is an employee. Attributing them to Gus' conduct, the complaint alleges several violations of Section 8(a)(1) of the Act by Respondent. If Gus is a supervisor then, on well-settled " The purpose of these findings and conclusions is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and to the conclusions to which they may give rise. To the extent that the contentions of the parties relate to the findings and conclusions made here, they will be treated here, although they, as well as the findings and conclusions, may again be considered in other contexts. principles, Respondent is liable for his activity in this regard. As already noted, Gus is the manager of Respondent's meat department. He referred to himself as "the head man on the place." In like vein, Bernard Geher, Respondent's president, described Gus as being "in charge of the whole [meat] department" and the person who "keep[s] ... the meat department running." Gus, alone, orders all the meat for the department. Bernard Geher, Respondent's president, sets the prices at which the meat ordered by Gus is to be sold. However, Gus has the "authority," as Geher testified, to inform him when particular cuts of meat are not selling well. Geher further testified, upon receiving such information from Gus, he, without more, "lower[s] the price." Gus directs the meat department employees in their day- to-day duties. He has told an employee which day was to be her day off and grants employees permission to leave work early for sickness or other reasons. Gus also selects employees for overtime work when, in his judgment, such work is necessary.1 2 Gus' authority to hire or discharge employees was not shown by a preponderance of the evidence. However, the evidence does establish that, in at least two instances when employees were hired on a trial basis, during which they were required to demonstrate their ability to work in the meat department, Gus determined that they were suffi- ciently competent to be continued in Respondent's employ. Accordingly, Gus recommended to Geher that this be done and Geher adopted his recommendation. Like all people who work in the meat department, Gus wears a white uniform, punches a timeclock, and is hourly rated. However, his rate of pay is substantially higher than the other people in the department. Thus, he is paid $6.90 an hour whereas the rank-and-file meatcutters receive $5 an hour and the meat wrappers $3. Gus performs work also performed by other people who work in the meat department. In this regard, as Geher, Respondent's president, related, Gus spends "60 to 65 percent of [his] time" cutting meat and putting the cut meat in trays. Gus also participates in cleaning the meat room. In doing this, however, Gus selects other employees to work with him. On the basis of the foregoing, it is my opinion that Gus possesses sufficient indicia of supervisory authority to be classified as a supervisor. In many similar situations meat department managers having attributes and authority possessed by Gus have been held to be supervisors. See, for -example, Bedford Discounters, Inc., 204 NLRB 509, 511- 512 (1973); Angeli's Super Valu, 197 NLRB 85, 86 (1972); John H. Scheidel, Inc., 193 NLRB 489, 490-491 (1971); Agawam Food Market, Inc., d/b/a The Food Mart, 162 NLRB 1420, 1424 (1967); and Nitro Super Market, Inc., 161 NLRB 505, 506, 509-511 (1966). Accordingly, I conclude that Gus is a supervisor within the meaning of the Act. 12 Regarding overtime, Gus testified that before directing employees to work overtime he "walkls] up ... and [tells) the boss (Geher) 'I think we can say tonight a couple hours ... to .. catch up for tomorrow.' [Geher] says to go ahead. [Geher does ] that all the time when I ask him." 502 SHOP-RITE SUPERMARKET In support of its contrary position-that Gus is an employee-Respondent places principal reliance on three factors-the Union's inclusion of meat department manag- ers in contracts it has with other supermarkets; 13 Gus' lack of authority to hire or discharge employees; and his performance of rank-and-file work, at which, I have found, he spends about 65 percent of his time. These are not detractive of Gus' supervisory status. Thus, the Union's inclusion of meat department manag- ers in contracts with supermarkets does not preclude a finding that a meat department manager is a supervisor, if warranted by the facts, anymore than such a finding would be precluded by a union's consent, in a representation proceeding, to the inclusion of a supervisor in a bargaining unit. That there is no preclusion in such a situation is well settled. Furr's Inc. v. N.L.R.B., 381 F.2d 562, 566 (C.A. 10, 1967), cert. denied 389 U.S. 480 (1967), N.LR.B. v. Elliot- Williams Co., Inc., 345 F.2d 460, 463 (C.A. 7, 1965); N. L R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 501 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957). The second factor on which Respondent relies to bolster its argument that Gus is not a supervisor is his spending more than half his time in the performance of rank-and-file work. Concerning this, the Board has held that "the mere fact. . . that a supervisor spends a large part of his time in the performance of manual labor does not necessarily affect his status as a supervisor." The Wilson Transit Company, 80 NLRB 1476, 1478 (1948).14 The final factor relied on by Respondent, in disputing Gus' status as a supervisor, is his lack of authority to hire or discharge employees. However, as was stated in Maxam Buffalo, Inc., d/b/a Maxam, 139 NLRB 1040, 1041, 1053 (1962), "authority to hire and discharge . . . is not a sine qua non of a supervisor." D. The Appropriate Unit and its Complement The complaint alleges that "a unit consisting of all meat department employees, including fish and delicatessen clerks, cutters, weighers, and wrappers employed by respondent . . ., but excluding all other employees, guards, and supervisors as defined in the Act, is appropri- ate for the purpose of collective-bargaining." At the hearing, Respondent conceded that the foregoing unit would be appropriate if it "included [the meat department manager] by specific references." The meat department manager, having been found to be a supervi- sor, cannot, as is well settled, be included in the unit. In addition to Respondent's concession as to the appropriateness of the unit set forth in the complaint, the parties stipulated that at all material times there were eight people working in Respondent's meat department. ':' In this regard. it seems to be the case that the Union represents employees in units which include meat department managers. " In this connection, the Board found individuals to be supervisors notwithstanding that they spent "the major .. portion of their time [in one case 90 percent I in manual work." Steetleld Equipment Cotnpa.v, Inc.. 76 NLRB 831. 833 (1948). is All dates hereinafter mentioned without stating a year fall within 1976. E. The Union's Majority and Its Bargaining Request At a meeting conducted by Sam Pitarra, an organizer for the Union, on August 30, 1976,' 5 four employees who worked in Respondent's meat department, Josephine Shaw, Dorothy Maddox, Debra Botler, and Lillian Gau- ger,' 6 signed cards authorizing the Union to act as their collective-bargaining agent. A fifth employee, Robert Hicks, did so on September 8. There being, as I have earlier found, a total of eight employees working in Respondent's meat department, the union at this point, and at all other material times, represented a majority of those employees. On September 10, Pitarra informed Bernard Geher, Respondent's president, that a majority of Respondent's meat department employees had signed authorization cards and requested that Respondent bargain with the Union. Geher refused to do so in the absence of a victory by the Union in a Board-conducted representation elec- tion. Following Geher's refusal to bargain with the Union, Pitarra sought assistance in obtaining the Union's recogni- tion by Respondent from Gilbert Feldman, the vice president of the Retail Store Employees Union (Retail Union).'7 Feldman agreed to intercede with Geher on the Union's behalf. Accordingly, about 11 a.m. on September 13, Feldman went to Respondent's premises to talk to Geher about recognizing the Union. However, Geher was not in the store, having earlier departed to appear as a witness in a legal proceeding. Upon learning this, Feldman left his name and telephone number with a man in Geher's office. About an hour later, Geher returned to Respondent's store and called Feldman. Feldman informed Geher that he had been asked by Pitarra, an organizer for the Union, to speak to him about recognizing the Union and, in essence, he requested Geher to recognize the Union. Responding to this request, Geher, in effect, reiterated what he had earlier said to Pitarra concerning the circumstances under which Respondent would recognize and bargain with the Union; i.e., that Respondent would do so upon the Union's victory in a Board-conducted election. V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts, Contentions, and Conclusions Concerning Respondent's Alleged Violations of Section 8(a)(3) of the Act i. Contentions The complaint alleges, and the answer denies, that Respondent's discharge of Lillian Gauger was violative of Section 8 (aX3) of the Act. The facts concerning Gauger's discharge are substantially undisputed. What is in dispute 16 As already noted, Gauger's later discharge is alleged in the complaint as having been violative of Sec. 8(aX3). 7 On January 1. 1976, Respcndent and the Retail Union entered into a collective agreement, negotiated in part by Feldman. covering the employ- ees in Respondent's grocery department. Feldman and Geher are well known to each other and. apparently. they enjo) a good relationship. 503 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is Respondent's motive for the discharge. The General Counsel contends that Gauger was discharged because of her membership in the Union. Respondent, on the other hand, argues that it did not know, until a few days after her dismissal, that Gauger was an adherent of the Union and that she was discharged because she interfered with the work of the deli clerk. 2. Facts Gauger was hired as a meat wrapper in 1975. She was discharged on September 13, 1976, and rehired some 3 weeks later. At the time of the hearing in this proceeding, which was held on January 19 and 20, 1977, Gauger was still in Respondent's employ. On August 30, Gauger, Debra Botler, Respondent's deli clerk, and other employees of Respondent attended a union meeting and there she and Botler signed union authorization cards. Gauger and Botler also attended the union meeting held on September 8. As earlier found, Bernard Geher, Respondent's presi- dent, left the store during the morning of September 13. Upon his return about noon, he saw Gilbert Feldman's message. 18 Before calling Feldman, however, Geher saw Dorothy Maddox, a meat department employee, leave the lunch meat case she was stocking, enter the deli section, and engage Botler, the deli clerk, in conversation. While talking to Maddox, Botler was waiting on customers and operating the slicing machine. After watching this for several minutes, Geher went to the deli section and reprimanded Botler and Maddox for talking to each other while the slicing machine was in operation and while customers were waiting to be served. In this connection, as Geher testified, he told them that employees could "not hang around in the deli room while [the slicing] machine is being operated" because the operator "might hurt" herself, as had happened under similar circumstances in the past. Geher also told Botler and Maddox that their talking to each other in the deli section while customers were waiting to be served was "not polite" and was "obstructing the [customers'] view" of what Botler was doing. Finally, Geher said that they would be discharged "if [he] ever [saw] them again ... just hanging around in [the] deli room." Gauger, who was near the deli section at the time, heard the discharge warning given by Geher to Botler and Maddox. Following this, Geher returned to his office and called Feldman, the vice president of the Retail Union. Findings concerning their conversation have already been made. In brief recapitulation, Feldman asked Respondent to recog- nize the Union and Geher replied, as he had earlier informed Sam Pitarra, an organizer for the Union, that that would not be done in the absence of a union victory in a Board-conducted election. About 10 minutes later Gauger went into the deli section. It was her intention to eat lunch there with Botler, the deli clerk, as she had done from time to time. When Gauger 'I It will be remembered that Feldman is the vice president of the Retail Union and had been asked by Sam Pitarra. an organizer for the Union, to help it obtain recognition from Respondent. 9' The findings in this paragraph are based upon, and the quotations entered the deli section, Botler was again waiting on customers and operating the slicing machine. Notwith- standing the discharge warning given a short time earlier by Geher to Botler and Maddox, which, as I have found, she overheard, Gauger asked Botler, as the former testified "if she wanted a soda." Botler replied that she did and asked Gauger "to wait a minute for the money." Shortly after Gauger went into the deli, Geher walked by that section. He saw Gauger there talking to Botler while Botler was waiting on customers and operating the slicing machine. About 10 minutes later, Geher again walked by the deli section and again saw Gauger there while Botler was waiting on a customer. Seeing this for the second time in 10 minutes, Geher asked Gauger what she was doing in the deli section. Gauger said that, although she had not yet punched her timecard, she was on her way to lunch and was waiting to ask Botler if she wanted a soda. That being the case, Geher told Gauger, as he related, that she had "no business being [in the deli section]"; that he had "just told the girls . . . that if[he saw] anyone hanging around the deli [he would] discharge them"; and that "therefore I am discharging you." Geher then turned to Botler and warned her, as he further testified, that the "next time [she was] going to be discharged too." After discharging Gauger, Geher informed Constantinos Chrysovergis (Gus), Respondent's meat manager, that he had "just fired . . . Gauger." Upon being asked by Gus why he had done so, Geher replied that Gauger had been "in conference with [Botler ]." 19 On September 15, upon instructions from the Union, Gauger filed an unfair labor practice charge against Respondent, alleging that her discharge had been violative of Section 8(a)(3) of the Act. This charge was later withdrawn. Although the date of the withdrawal does not appear in the record, the General Counsel represents, on brief, that Gauger withdrew her charge before, as will appear below, she sought reemployment from Respondent. A few days after Gauger's discharge, Botler quit her job. On September 24, the Union filed a charge alleging that Respondent had constructively discharged Botler in viola- tion of Section 8(aX3) of the Act and alleging further that Respondent had also violated Section 8(aX)(1) and (5). This charge was amended on October 22. As amended, the Union's charge retained the 8(a)(l) and (5) allegations of its original charge, eliminated the first charge's reference to the termination of Botler's employment, and alleged in its stead that by discharging Gauger Respondent violated Section 8(a)(3). As set forth above (fn. I) the instant complaint was issued pursuant to this charge. On about October 4, during the pendency of the Union's original charge alleging that Botler's quitting constituted a constructive discharge violative of Section 8(a)(3) of the Act, but after Gauger had withdrawn her charge, Gauger and Botler together asked Geher, Respondent's president, to return them to their jobs. Notwithstanding that he knew at this time that Gauger and Botler were members of the appearing in the text are taken from, testimony given by Josephine Shaw, a meat wrapper in Respondent's employ who was present during Geher's conversation with Gus. 504 SHOP-RITE SUPERMARKET Union and his awareness of the Union's outstanding charge against Respondent, based in part upon Botler's quitting some weeks earlier, Geher acceded to their request. Like Gauger, Botler was still in Respondent's employ at the time of the hearing. 3. Conclusions Although guiding principles are not in doubt, "Section 8(a)(3) cases are difficult cases." N.LRB. v. Atlanta Coca- Cola Bottling Company, Inc., Atlanta, Georgia, 293 F.2d 300, 308 (C.A. 5, 1961). Almost always present in such cases, and the instant one is no exception, are vexatious questions of motive. I will assume, despite its denial, that Respondent had knowledge, at the time of her discharge, that Lillian Gauger was a member of the Union. If, therefore, she was discharged because she supported the Union, obviously the termination of her employment was violative of Section 8(aX3) of the Act. But the facts indicate that this was not the case. Respondent argues that Gauger's discharge was not motivated by a purpose interdicted by the Act. Gauger was dismissed, Respondent contends, not because of her union membership or activity, but because she interfered with the work of Debra Botler, its deli clerk, while Botler was waiting on customers and operating the slicing machine, a dangerous procedure under the best of circumstances. Respondent's position appears to be well taken. Unlike the explanation for a discharge offered by an employer in another case 20 which "fail[ed] to stand under scrutiny," the reason given by Respondent for discharging Gauger is supported by the evidence. Thus, minutes before Gauger's discharge, Bernard Geher, Respondent's presi- dent, warned another employee that she would be discharged if she again entered the deli section and engaged in a conversation with Botler while Botler was waiting on customers and operating the slicing machine, a dangerous procedure when the operator's attention is diverted. 21 Despite overhearing this warning, Gauger did exactly what the other employee had done. She entered the deli section and spoke to Botler while Botler was waiting on customers and operating the slicing machine. For doing so, Gauger was discharged. Botler quit her job several days after Gauger's employ- ment was terminated. Botler's quitting does not appear to have been related to Gauger's discharge. Even if, as Respondent argues, it did not know of Gauger's union membership at the time of her discharge, Respondent learned this a few days later when Gauger filed a charge alleging that her dismissal was violative of Section 8(a)(3) of the Act. If it did not do so in any other way, Respondent became aware of Botler's union member- ship upon the filing of the Union's charge asserting that Botler had been constructively discharged. "2 N.L.R.B, v. Dant el al. d/b./a Dant & Russell, Ltd., 207 F.2d 165, 167 (C.A. 9, 1953). Z1 In this regard. note should be taken of Botler's testimony, earlier set forth. that the operator of the machine had "to give it . . . undivided attention" and that while operating the machine she had "cut [herself] quite a few times when Ishe was talking and not paying attention to what Ishe I was doing." 2! Geher denied putting these questions to Boiler. However. Botler. as Despite the foregoing and the pendency of the Union's charge against Respondent dealing with Botler's alleged constructive discharge and Respondent's claimed viola- tions of Section 8(aX 1) and (5) of the Act, within weeks of the termination of their employment, Botler and Gauger were rehired upon their request and were still in Respon- dent's employ at the time of the hearing. Such a course of conduct does not bespeak an employer bent on destroying its employees' interest in a union by ridding itself of the Union's supporters. It seems to me that, if this had been Respondent's object, it would have discharged Botler when it discharged Gauger. And Re- spondent certainly would not have rehired them. "An unlawful purpose [in discharging an employee] is not lightly to be inferred. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one." N.LR.B. v. T.A. McGahey et al, 233 F.2d 406, 413 (C.A. 5, 1956). Upon careful consideration of the record, I do not find such a "substantial basis" to be present in connection with Gauger's discharge. Accordingly, upon consideration of the entire record, I conclude that the General Counsel has not established by a preponderance of the evidence, that Respondent violated Section 8(a)(3) of the Act by discharging Gauger. My order will, therefore, provide for the dismissal of paragraph 8 and the relating portions of paragraphs II and 12 of the complaint. B. Facts, Contentions, and Conclusions Concerning Respondent's Alleged Violations of Section 8(a)(l) of the Act The complaint alleges that Respondent engaged in "extensive and pervasive" violations of Section 8(a)(I) of the Act. These, the complaint asserts, consisted of interro- gating and threatening employees, promising them benefits to induce them to reject the Union, and creating the impression that their union activity was under surveillance. I. Interrogation On September 13, 1976, Bernard Geher, Respondent's president, interrogated Debra Botler, the deli clerk, and Robert Hicks, then employed as a meatcutter, about the Union. In both cases, Geher called the employees away from the place where they normally worked and he offered neither assurances against reprisal for answering his questions. Concerning Hicks, Geher asked him, as Hicks testified and Geher admitted, "if [he] knew anything about the Union [and] if [he] signed [a] union card." Regarding Botler, Geher asked her, as she related, "what is going on . . . who is trying to organize the Union." 22 has already been noted, was in Respondent's employ at the time of the hearing. Her testimony, adverse to Respondent. was therefore given at considerable risk of economic reprisal, including loss of employment. Thus. having much to lose, her testimony, damaging to Respondent, was in a sense contrary to her own interest and for this reason not likely to be false. Georgia Rug Mill, 131 NLRB 1304. 1305 (1961), modified on other grounds 308 F.2d 89 (C.A. 5, 1962). Accordingly, I credit Botler and not Geher. For the same reason I will make similar credibility resolutions in all other (Continued) 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Constantinos Chrysovergis (Gus), the manager of Re- spondent's meat department, who I have found to be a supervisor, also interrogated Respondent's employees. Thus, as Gus admitted, on about September 13, he asked Dorothy Maddox, then employed in the meat department, whether she had signed a union card. As Gus further admitted, he put a similar question to Hicks on about September 20. On September 16, Gus questioned a third employee, Josephine Shaw, a meat wrapper, concerning her relation- ship to the Union. He inquired of Shaw, as she testified without contradiction, if she "was for the Union" and whether she knew "anything about the Union." In none of the foregoing situations did either Geher, Respondent's president, or Gus offer assurance against reprisal to the employees they questioned. And, as found regarding Geher's questioning of Hicks and Botler, he called them away from their normal places of work. Both circumstances imparted a coercive nature to the interroga- tion. Blackman-Uhler Chemical Division-Synalloy Corpora- tion, 220 NLRB 52, 57 (1975). By such interrogation Respondent violated Section 8(a)(1) of the Act. 2. Threats On September 13, in a conversation with Debra Botler, Respondent's deli clerk, Bernard Geher, Respondent's president, said to her, as Botler recounted and Geher denied,2 3 "I thought you needed a job." Following this, Geher stated "the Union [won't] get in." I construe this as a not too thinly veiled threat that if the Union did "get in" Botler would lose her job. On September 18, while Constantinos Chrysovergis (Gus), the supervisor of Respondent's meat department, Robert Hicks, a meatcutter, and Josephine Shaw, a meat wrapper, were talking about the Union, Gus stated, as Shaw testified, again without contradiction, that "when the stock clerks got their union24 . . . some of them got a drop in pay . . . like if they were $3.50, they went back to $2.30." On the same day, Gus, Hicks, and Shaw discussed wage increases for employees in the meat department. In this connection, Gus told Hicks and Shaw, as the latter further testified, that they "deserved a raise [but that Geher, respondent's president,] wasn't going to give [them] a raise because the Union was coming in." 25 It thus appears that, on September 13 and 18, Respon- dent's employees were threatened with reprisals upon the Union's advent, including loss of jobs, reduction in wages, and denials of deserved wage increases. Such threats, being situations where the testimony of an employee witness is denied by either Geher or Constantinos Chrysovergis who, I have found, is a supervisor. In making these credibility resolutions, I am mindful, as was the court in L S. A ires & Co. v. N. L. R.B. 551 F.2d 586 (C.A. 4, 1977), that Sec. 8(a)(4) of the Act proscribes "discrimination against an employee because he has . . . given testimony under 1thel Act." This protection, however, is of small consolation to an employee who is out of a job because he testified against his employer in a proceeding brought under the Act. Furthermore. Sec. 8(aX4) is of little significance here in assisting me to determine credibility in the situation set forth above because it was not shown that the employee witnesses in question were aware of its provisions. :23 For the reasons set forth in fn. 22 1 discredit Geher's denial. 24 The stock clerks in Respondent's employ are represented by the Retail inherently coercive, are violative of Section 8(a)(1) of the Act. 3. Promises of benefit On September 18, Gus, the meat department supervisor, and Dorothy Maddox, then employed in the meat department, were working together in Respondent's refrig- erator. While they were so engaged, Gus informed Maddox, as she related without contradiction, that he had "told [Bernard Geher, Respondent's president,] to give [the] people [in the meat department] a raise and . . . a contract." Upon Maddox's inquiry as to what Gus meant "by contract," Gus explained, "you know ... after [you] drop the Union [Geher] couldn't back out if [there was] a contract that all the people signed." Gus' foregoing statement to Maddox was clearly a promise on Respondent's part to increase the wages of the meat department employees, provided, as Gus put it, they "drop[ped] the Union." Promises of this nature are clearly violative of Section 8(a)(1) of the Act. Free-Flow Packaging Corporation, 219 NLRB 925, 928 (1975); cf. N.LR.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964). 4. Creating the impression of surveillance On a day in September 26 while Josephine Shaw, a meat wrapper, was at work in the meat room, Gus told her, as Shaw testified, that Bernard Geher, Respondent's presi- dent, "knows that there [are) four people that signed for the Union." Gus then named the people known to Geher as having "signed for the Union." 27 For an employer to tell an employee during a union's campaign to obtain recognition that the identity of the employees supporting the Union is known is to create the impression that the employees' union activity is under surveillance. Rafael, Igartua, Aguadilla Children's Wear Plant, 174 NLRB 615, 618 (1969). Conduct of this type on the part of an employer is violative of Section 8(a)(1) of the Act because it "tend[s] to restrain and interfere with ... employees in the exercise of their rights guaranteed under the Act." Mitchell Plastics, Incorporated, 159 NLRB 1574, 1576 (1966). Upon all of the foregoing, I conclude that Respondent violated Section 8(a)(1) of the Act by coercively interrogat- ing employees concerning the Union; threatening employ- ees with reprisals for supporting the Union, including discharge, reduction of wages, and the denial of benefits; promising employees wage increases and the denial of benefits; promising employees wage increases to dissuade them from supporting the Union; and creating the Union with which, it will be remembered, Respondent entered into a contract on January 1, 1976. 25 Gus denied having said this. Shaw, however, was in Respondent's employ at the time of the hearing. Because of this, and for reasons already explicated, I do not credit Gus' denial. 26 The record is not very clear as to the date on which the incident here to be recounted occurred, but it appears to have been on about September 16. 27 Gus denied telling this to Shaw but, as I have several times stated, in cases of conflict between the testimony of a witness in the employ of respondent at the time of the hearing, as Shaw was, and Gus, I will credit the employee witness. 506 SHOP-RITE SUPERMARKET impression that employees' union activity was under surveillance. C. Facts, Contentions, and Conclusions Concerning Respondent's Alleged Violation of Section 8(a)(5) of the Act Insofar as is here pertinent, the complaint alleges that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union. The complaint further alleges, as an integral part of this unfair labor practice, Respon- dent's independent violations of Section 8(a)(1). As I have already found, on September 10 and 13, 1976, after a majority of the employees in Respondent's meat department2 8 had signed cards authorizing the Union to act as their bargaining representative, the Union requested that Respondent bargain with it. Respondent refused to do so in the absence of a victory by the Union in a Board- conducted election. In determining whether an employer unlawfully refused to bargain by an outright refusal to recognize a union representing a majority of its employees in an appropriate unit, as is the case here, the employer's conduct when faced with the union's bargaining request must be assessed. If, in such a situation, the employer engages in serious unfair labor practices, it also violates Section 8(aX5) of the Act. Trading Port, Inc., 219 NLRB 298, 301 (1975). "The serious character and lasting impact on employees of. . . unfair labor practices [including coercive interroga- tion, threatening employees with discharge, and other reprisals to discourage their union membership and support, and engaging in surveillance of employees' union activity] cannot . . . be too strongly emphasized." Olson Bodies, Inc., 206 NLRB 779 (1973). To promise employees benefits to induce them to reject a union has also been held to be a serious unfair labor practice. De Luca Brothers, Inc., 201 NLRB 327, 333 (1973). As has been found, Respondent engaged in all of the serious unfair labor practices just enumerated. Further- more, Respondent did so within a period of 5 days after the Union requested that Respondent bargain with it as the representative of the meat department employees. Accordingly, in consideration of the foregoing and taking into account the fact that Respondent's serious unfair labor practices were committed almost immediately following the Union's request for bargaining, I conclude that Respondent violated Section 8(aX5) of the Act by refusing to bargain with the Union. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices occurring in connec- tion with its operations set forth in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. -" As has also been found. the meat department employees constitute an appropriate collective-bargaining unit. VII. THE REMEDY Having found that respondent engaged in unfair labor practices within the meaning of Section 8(aX)(1) and (5) of the Act, my order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act. Concerning the latter, the General Counsel urges, and Respondent resists, the entry of a bargaining order. In support of its position Respondent argues on brief that, "if any violations are found ... they be remedied by the application of traditional measures, as they could not have been so coercive as to preclude the holding of a fair, reliable election." I do not agree. Although "a bargaining order ... is strong medicine,"29 it should be prescribed as the Supreme Court held in N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 610 (1969), "as a remedy for a § 8(a)(5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority .... " The Court went on to say, quoting in part from Franks Bros. Company v. N.LR.B., 231 U.S. 702, 704 (1944), that in such cases if the Board were to "enter only a cease-and-desist order and direct an election . . . it would in effect be rewarding the employer and allowing him to 'profit from [his] own wrongful refusal to bargain.' " Finally, and by way of summarizing its lengthy discussion on this point, the Court stated 30 that where "the possibility of erasing the effects of past [unfair labor] practices, and of ensuring a fair election . . . is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue." The foregoing principles indicate that a bargaining order should issue here. Respondent's threats to discharge a union adherent, to deprive employees of merited wage increases "because the Union was coming in," and to reduce the wages of meat department employees should the Union succeed in becoming their bargaining representative would, if carried out, result in loss of work and income. It is well settled that such threats have an enduring quality, cause defections from unions, and tend to destroy a union's majority status. In discussing the effect of threats of the nature here under consideration the Board stated, even before Gissel, that they are "likely to have the most substantial impact upon employee attitudes and reactions [and] may well be sufficiently pervasive in their impact to prevent a fair election and to undermine a union's support". Cohen Bros. Fruit Company, 166 NLRB 88, 90 (1967). In Cohen the Board's conclusion was based on threats "directed at no more than 2 employees in a unit of 15." In the instant case the "impact" of threats in preventing a fair election and in undermining the Union is deeper, having been directed at three employees in a unit of eight. In deciding that an order requiring Respondent to bargain with the Union is warranted, I have also taken into account the statement made by Respondent's meat 29 N.L.R. B. v. Flomatic Corporation, 347 F.2d 74. 78 (C.A. 2, 1%965). 30 395 U.S. 614-615. 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department manager to a meat department employee that he had told Respondent's president to give the employees in the department "a raise" if they would "drop the Union." The lingering effect of such a statement makes slight the possibility of conducting a fair election. Cf. C. & G. Electric, Inc., 180 NLRB 427 (1969). Accordingly, my order will require Respondent to bargain with the Union upon request. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Constantinos Chrysovergis, the manager of Respon- dent's meat department, is a supervisor within the meaning of Section 2(11) of the Act. 4. By the following conduct Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. (a) Coercively interrogating employees concerning their attitudes toward, knowledge of, and activities on behalf of the Union. (b) Threatening, upon the Union's advent, to discharge an employee and to deny wage increases to employees. (c) Threatening to reduce the wages of meat department employees upon the Union's becoming their bargaining agent. (d) Promising wage increases to meat department employees to dissuade them from supporting the Union. (e) Creating the impression that employees' union activity was under surveillance. 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) or (1) of the Act by discharging Lillian Gauger. 6. All meat department employees, including fish and delicatessen clerks, cutters, weighers, and wrappers, but excluding all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining. 7. At all material times, the Union has represented a majority of the employees in the unit set forth in Conclusion of Law 6, above. 8. By failing and refusing since September 13, 1976, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit set forth in Conclusion of Law 6, above, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 9. The unfair labor practices engaged in by Respon- dent, as set forth in Conclusions of Law 4 and 8 above, affect commerce within the meaning of Section 2(6) and (7) of the Act. :" 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 Order herein shall, as provided in Sec. 102.48 of the Rules 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: ORDER31 The Respondent, Shop-Rite Supermarket, Inc., Balti- more, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their attitudes toward, knowledge of, activities on behalf of, or as to any other matter relating to Amalgamated Meatcut- ters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. (b) Threatening employees with discharge, denial of wage increases, or with any other form of reprisal, or effectuating any such threats, for joining, assisting, or in any manner supporting Amalgamated Meatcutters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, or any other labor organiza- tion. (c) Threatening employees with wage reductions, denial of wage increases, or with any other form of reprisal, or effectuating any such threats, should Amalgamated Meat- cutters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, become the collective-bargaining repre- sentative of any of its employees. (d) Promising or granting wage increases or any other form of benefits to dissuade employees from joining, assisting, or in any manner supporting Amalgamated Meatcutters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. (e) Engaging, attempting to engage, or giving employees the impression that it is engaging in surveillance of employees' union activity. (f) Failing or refusing to recognize or bargain with Amalgamated Meatcutters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, as the exclusive collective-bargaining represent- ative of its employees in the following appropriate unit: All meat department employees, including fish and delicatessen clerks, cutters, weighers, and wrappers, but excluding all other employees, guards and supervisors as defined in the National Labor Relations Act, as amended, or failing or refusing, upon request, to bargain with Amalgamated Meatcutters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated 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. 508 SHOP-RITE SUPERMARKET Meatcutters and Butcher Workmen of North America, AFL-CIO, respecting rates of pay, wages, hours, or other terms or conditions of employment of its employees in the aforesaid appropriate unit. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in conformity with Section 8(aX3) of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Upon request, bargain with Amalgamated Meatcut- ters and Butcher Workmen of North America, Local 117, affiliated with Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the aforesaid appropriate unit respecting rates of pay, wages, hours, or other terms or conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its premises copies of the attached notice marked "Appendix."3 2 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representa- tive, shall be posted by it 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. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that paragraph 8 and the relating portions of paragraphs 11 and 12 of the complaint be, and they hereby are, dismissed. :1 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 "Posted 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 before an Administrative Law Judge, at which all parties had the opportunity to present evidence and arguments, it has been decided that we, Shop-Rite Supermarket, Inc., have violated the National Labor Relations Act. We have therefore been ordered to post this notice and carry out its terms. WE WILL NOT question you about anything con- nected with Amalgamated Meatcutters Union, Local 117, or any other union. WE WILL NOT discharge you, refuse to give you pay raises, or do anything else to your disadvantage, and WE WILL NOT threaten to do any of these things because you signed a card for, joined, helped, or supported Amalgamated Meatcutters Union, Local 117, or any other union. WE WILL NOT reduce your wages, refuse to give you pay raises, or do anything else to your disadvantage, and WE WILL NOT threaten to do any of these things, if Amalgamated Meatcutters Union, Local 117, or any other union, becomes, or has become, your bargaining representative. WE WILL NOT give you, and WE WILL NOT promise to give you, pay raises or anything else to make you want to reject, or refuse to join, support, or help Amalga- mated Meatcutters Union, Local 117, or any other union. WE WILL NOT spy on your union activity or make you believe that we have spied, or are spying, on your union activity. WE WILL NOT in any other way interfere with any right given you by the National Labor Relations Act. WE WILL recognize Amalgamated Meatcutters Union, Local 117, as the union of our meat department employees. WE WILL, if we are asked to do so, bargain with Amalgamated Meatcutters Union, Local 117, about our meat department employees' rates of pay, wages, working hours, and other matters relating to the work of our meat department employees. If we come to an agreement about any of these things with Amalgamated Meatcutters Union, Local 117, WE WILL put that agreement in writing and sign it. SHOP-RITE SUPERMARKET, INC. 509