Progressive Supermarkets, Inc.

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Progressive Supermarkets, Inc. and Retail Store scheduled January increase because of the pend- Employees Union Local 1262, United Food and ency of the Union's petition. The Board and courts Commercial Workers International Union, have long held that the withholding of pay raises 2AFL-CI and CLC. Cases 22-CA-9686 and from employees who are awaiting the holding of a 22-RC-8060 Board election violates the Act if the employees December 4, 1981 otherwise would have been granted the pay raises in the normal course of the employer's business. 5 DECISION AND ORDER Unlike the situation in Uarco Inc.,6 the Respondent BY MEMBERS FANNING, JENKINS, ANDhere did not tell employees that the sole reason for BY MEMB ZIMMERMANG its action was to avoid the appearance that it sought to influence the election. More important, it On December 13, 1980, Administrative Law placed the onus for the postponement on the Judge Joel P. Biblowitz issued the attached Deci- Union. 7 We therefore find that the Respondent vio- sion in this proceeding. Thereafter, the General lated Section 8(a)(1) and (3) of the Act. Counsel and the Respondent filed exceptions and We also disagree with the Administrative Law supporting briefs.' Judge's conclusion that the Respondent's repeated Pursuant to the provisions of Section 3(b) of the references to the possibility of strikes and the fact National Labor Relations Act, as amended, the Na- that economic strikers can be permanently replaced tional Labor Relations Board has delegated its au- were protected by Section 8(c) of the Act. Rather, thority in this proceeding to a three-member panel. we view those references, when read in the context The Board has considered the record and the at- of certain other of the Respondent's campaign tached Decision in light of the exceptions and statements, to constitute implied threats violative of briefs and has decided to affirm the rulings, find- Section 8(a)(l). ings, 2 and conclusions of the Administrative Law A major theme of the Respondent's campaign lit- Judge, as modified below, 3 and to adopt his recom- erature and speeches was that unionization did not mended Order, as so modified. 4 guarantee automatic increases in wages and bene- 1. The General Counsel excepts to the Adminis- fits, or, specifically, that its office employees would trative Law Judge's failure to find that the Re- receive the wages and benefits enjoyed by its spondent unlawfully postponed the regularly unionized store employees. Thus, the Respondent scheduled January wage increase. The record repeatedly emphasized that the law did not require clearly demonstrates, and the Administrative Law it to agree to any union demand, only that it bar- Judge found, that the Respondent postponed the gain in good faith, that the only weapon a union The General Counsel's "Motion to Strike Respondent's Exceptions had to force agreem t was a trike, and that and Portions of Its Memorandum in Support Thereof" is hereby denied. nomic strikers could be permanently replaced. In 2 The Respondent has excepted to certain credibility findings made by conjunction with these points, Controller Cimini the Administrative Law Judge. It is the Board's established policy not to stated that the Respondent would do whatever it overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- had to do to keep the Union out, that the Respond- vinces us that the resolutions are incorrect. Standard Dry Wall Products ent "certainly would not agree" to pay the store Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. rates, and that, if the Union demanded those rates, Further, there is nothing in the record to indicate that the Administrative there would be a long strike. Vice President Gold Law Judge was biased or prejudiced against the Respondent or that the stated that the Respondent knew how to protect its Respondent was accorded less than a full and fair hearing. s In agreement with the General Counsel, we find that Vice President interests and, in both his speeches, stated that there Gold's statements to employee Evers, following the termination of em- was "no way in the world" that the Respondent ployee Medaska, are sufficient to establish the Respondent's knowledge would pay the store rates. of Medaska's union sympathies. In addition, we find it unnecessary to pass on whether the Respondent's campaign literature contained an un- In concluding that the Respondent's strike state- lawful solicitation of grievances since such would not affect the scope of ments were protected by Section 8(c), the Adminis- the remedy. Finally, we shall leave to the compliance stage of this pro- ceeding the determination of whether Medaska would have remained in trative Law Judge noted that the Respondent the Respondent's employ beyond January 28, 1980. never stated that it would not bargain or never ' In accordance with his dissent in Olympic Medical Corporation, 250 reach an agreement. To the contrary, he noted that NLRB 146 (1980), Member Jenkins would award interest on any backpay due Medaska based on the formula set forth therein. the Respondent stated that it was required to bar- Member Jenkins does not rely on Wright Line, a Division of Wright gain in good faith, that it spoke only of the possi- Line, Inc., 251 NLRB 1083 (1980), for finding Medaska's discharge un- bili of a str lawful. As the Administrative Law Judge found, the asserted lawful rea- ii a str ke, and that it never foreclosed the sons for her discharge were "incredible," so that no lawful reason exists and only the unlawful one remains. Wright Line is concerned only with See Florida Steel Corporation, 220 NLRB 1201 (1975), affd. 538 F.2d deciding between a genuine lawful and a genuine unlawful reason for a 324 (4th Cir. 1976), and cases cited therein. discharge, and it is misleading and inaccurate to apply it where only the 169 NLRB 1135 (1968). unlawful reason is genuine. 'See, generally, Centre Engineering, Inc., 253 NLRB 421 (1980). 259 NLRB No. 74 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Progressive Supermarkets, Inc. and Retail Store scheduled January increase because of the pend- Employees Union Local 1262, United Food and ency of the Union's petition. The Board and courts Commercial Workers International Union, have long held that the withholding of pay raises A2FL-I0 and CLC. Case s 2 2 - C A - 9 6 8 6 a n d from employees who are awaiting the holding of a 22-RC-8060 Board election violates the Act if the employees December 4, 1981 otherwise would have been granted the pay raises in the normal course of the employer's business. 5 DECISION AND ORDER Unlike the situation in Uarco Inc. the Respondent BY MEMBERS FANNING, JENKINS, AND h er e d i d n o t t ell employees that the sole reason for ZIMMERMAN its ac t io n w as to av o id the appearance that it sought to influence the election. More important, it On December 13, 1980, Administrative Law placed the onus for the postponement on the Judge Joel P. Biblowitz issued the attached Deci- Union.I We therefore find that the Respondent vio- sion in this proceeding. Thereafter, the General lated Section 8(a)(l) and (3) of the Act. Counsel and the Respondent filed exceptions and We also disagree with the Administrative Law supporting briefs.' Judge's conclusion that the Respondent's repeated Pursuant to the provisions of Section 3(b) of the references to the possibility of strikes and the fact National Labor Relations Act, as amended, the Na- that economic strikers can be permanently replaced tional Labor Relations Board has delegated its au- were protected by Section 8(c) of the Act. Rather, thority in this proceeding to a three-member panel. ,we view those references, when read in the context The Board has considered the record and the at- of certain other of the Respondent's campaign tached Decision in light of the exceptions and statements, to constitute implied threats violative of briefs and has decided to affirm the rulings, find- Section 8(a)(l). ings, 2 and conclusions of the Administrative Law A major theme of the Respondent's campaign lit- Judge, as modified below, 3 and to adopt his recom- erature and speeches was that unionization did not mended Order, as so modified. 4 guarantee automatic increases in wages and bene- 1. The General Counsel excepts to the Adminis- fits, or, specifically, that its office employees would trative Law Judge's failure to find that the Re- receive the wages and benefits enjoyed by its spondent unlawfully postponed the regularly unionized store employees. Thus, the Respondent scheduled January wage increase. The record repeatedly emphasized that the law did not require clearly demonstrates, and the Administrative Law it to agree to any union demand, only that it bar- Judge found, that the Respondent postponed the gain in good faith, that the only weapon a union I The General Counsel's "Motion to Strike Respondent's Exceptions h a d to f o r c e ar e m ent w a s a strike, and that eco- and Portions of Its Memorandum in Support Thereofr is hereby denied. nomic strikers could be permanently replaced. In 2 The Respondent has excepted to certain credibility findings made by conjunction with these points, Controller Cimini the Administrative Law Judge. It is the Board's established policy not to stated that the Respondent would do whatever it overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- had to do to keep the Union out, that the Respond- vinces us that the resolutions are incorrect. Standard Dry Wall Products ent "Certainly would not agree" to pay the Store Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. r a te s, a n d th a t, if th e Union demanded those rates, Further, there is nothing in the record to indicate that the Administrative there would be a long Strike. Vice President Gold Law Judge was biased or prejudiced against the Respondent or that the stated that the Respondent knew how to protect its Respondent was accorded less than a full and fair hearing. I In agreement with the General Counsel, we find that Vice President interests and, in both his Speeches, Stated that there Gold's statements to employee Evers, following the termination of em- was "no way in the world" that the Respondent ployee Medaska, are sufficient to establish the Respondent's knowledge would pay the store rates. of Medaska's union sympathies. In addition, we find it unnecessary to pass on whether the Respondent's campaign literature contained an un- In Concluding that the Respondent's Strike State- lawful solicitation of grievances since such would not affect the scope of ments were protected by Section 8(c), the Adminis- the remedy. Finally, we shall leave to the compliance stage of this pro- ceeding the determination of whether Medaska would have remained in trative Law Judge noted that the Respondent the Respondent's employ beyond January 28, 1980. never stated that it would not bargain or never IIn accordance with his dissent in Olympic Medical Corportion, 250 reach an agreement. To the contrary, he noted that NLRB 146 (1980), Member Jenkins would award interest on any backpay due Medaska based on the formula set forth therein. the Respondent stated that it was required to bar- Member Jenkins does not rely on Wright Line, a Division of Wright gain in good faith, that it Spoke Only of the possi- Line. Inc., 251 NLRB 1083 (1980), for finding Medaska's discharge un- bi;» r a -i j .1. . -1 r i th lawful. As the Administrative Law Judge found, the asserted lawful rea- biy of a s t r ik e , a n d t h a t it n e v e r foreclosed the sons for her discharge were "incredible," so that no lawful reason exists and only the unlawful one remains. Wright Line is concerned only with See Florida Steel Corporation, 220 NLRB 1201 (1975), affd. 538 F.2d deciding between a genuine lawful and a genuine unlawful reason for a 324 (4th Cir. 1976), and cases cited therein. discharge, and it is misleading and inaccurate to apply it where only the 1 169 NLRB 1135 (1968). unlawful reason is genuine.' See, generally, Centre Engineering, Inc., 253 NLRB 421 (1980). 259 NLRB No. 74 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Progressive Supermarkets, Inc. and Retail Store scheduled January increase because of the pend- Employees Union Local 1262, United Food and ency of the Union's petition. The Board and courts Commercial Workers International Union, have long held that the withholding of pay raises A2FL-I0 and CLC. Case s 2 2 - C A - 9 6 8 6 a n d from employees who are awaiting the holding of a 22-RC-8060 Board election violates the Act if the employees December 4, 1981 otherwise would have been granted the pay raises in the normal course of the employer's business. 5 DECISION AND ORDER Unlike the situation in Uarco Inc. the Respondent BY MEMBERS FANNING, JENKINS, AND h er e d i d n o t t ell employees that the sole reason for ZIMMERMAN its ac t io n w as to av o id the appearance that it sought to influence the election. More important, it On December 13, 1980, Administrative Law placed the onus for the postponement on the Judge Joel P. Biblowitz issued the attached Deci- Union.I We therefore find that the Respondent vio- sion in this proceeding. Thereafter, the General lated Section 8(a)(l) and (3) of the Act. Counsel and the Respondent filed exceptions and We also disagree with the Administrative Law supporting briefs.' Judge's conclusion that the Respondent's repeated Pursuant to the provisions of Section 3(b) of the references to the possibility of strikes and the fact National Labor Relations Act, as amended, the Na- that economic strikers can be permanently replaced tional Labor Relations Board has delegated its au- were protected by Section 8(c) of the Act. Rather, thority in this proceeding to a three-member panel. ,we view those references, when read in the context The Board has considered the record and the at- of certain other of the Respondent's campaign tached Decision in light of the exceptions and statements, to constitute implied threats violative of briefs and has decided to affirm the rulings, find- Section 8(a)(l). ings, 2 and conclusions of the Administrative Law A major theme of the Respondent's campaign lit- Judge, as modified below, 3 and to adopt his recom- erature and speeches was that unionization did not mended Order, as so modified. 4 guarantee automatic increases in wages and bene- 1. The General Counsel excepts to the Adminis- fits, or, specifically, that its office employees would trative Law Judge's failure to find that the Re- receive the wages and benefits enjoyed by its spondent unlawfully postponed the regularly unionized store employees. Thus, the Respondent scheduled January wage increase. The record repeatedly emphasized that the law did not require clearly demonstrates, and the Administrative Law it to agree to any union demand, only that it bar- Judge found, that the Respondent postponed the gain in good faith, that the only weapon a union I The General Counsel's "Motion to Strike Respondent's Exceptions h a d to f o r c e ar e m ent w a s a strike, and that eco- and Portions of Its Memorandum in Support Thereofr is hereby denied. nomic strikers could be permanently replaced. In 2 The Respondent has excepted to certain credibility findings made by conjunction with these points, Controller Cimini the Administrative Law Judge. It is the Board's established policy not to stated that the Respondent would do whatever it overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- had to do to keep the Union out, that the Respond- vinces us that the resolutions are incorrect. Standard Dry Wall Products ent "Certainly would not agree" to pay the Store Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. r a te s, a n d th a t, if th e Union demanded those rates, Further, there is nothing in the record to indicate that the Administrative there would be a long Strike. Vice President Gold Law Judge was biased or prejudiced against the Respondent or that the stated that the Respondent knew how to protect its Respondent was accorded less than a full and fair hearing. I In agreement with the General Counsel, we find that Vice President interests and, in both his Speeches, Stated that there Gold's statements to employee Evers, following the termination of em- was "no way in the world" that the Respondent ployee Medaska, are sufficient to establish the Respondent's knowledge would pay the store rates. of Medaska's union sympathies. In addition, we find it unnecessary to pass on whether the Respondent's campaign literature contained an un- In Concluding that the Respondent's Strike State- lawful solicitation of grievances since such would not affect the scope of ments were protected by Section 8(c), the Adminis- the remedy. Finally, we shall leave to the compliance stage of this pro- ceeding the determination of whether Medaska would have remained in trative Law Judge noted that the Respondent the Respondent's employ beyond January 28, 1980. never stated that it would not bargain or never IIn accordance with his dissent in Olympic Medical Corportion, 250 reach an agreement. To the contrary, he noted that NLRB 146 (1980), Member Jenkins would award interest on any backpay due Medaska based on the formula set forth therein. the Respondent stated that it was required to bar- Member Jenkins does not rely on Wright Line, a Division of Wright gain in good faith, that it Spoke Only of the possi- Line. Inc., 251 NLRB 1083 (1980), for finding Medaska's discharge un- bi;» r a -i j .1. . -1 r i th lawful. As the Administrative Law Judge found, the asserted lawful rea- biy of a s t r ik e , a n d t h a t it n e v e r foreclosed the sons for her discharge were "incredible," so that no lawful reason exists and only the unlawful one remains. Wright Line is concerned only with See Florida Steel Corporation, 220 NLRB 1201 (1975), affd. 538 F.2d deciding between a genuine lawful and a genuine unlawful reason for a 324 (4th Cir. 1976), and cases cited therein. discharge, and it is misleading and inaccurate to apply it where only the 1 169 NLRB 1135 (1968). unlawful reason is genuine.' See, generally, Centre Engineering, Inc., 253 NLRB 421 (1980). 259 NLRB No. 74 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Progressive Supermarkets, Inc. and Retail Store scheduled January increase because of the pend- Employees Union Local 1262, United Food and ency of the Union's petition. The Board and courts Commercial Workers International Union, have long held that the withholding of pay raises A2FL-I0 and CLC. Case s 2 2 - C A - 9 6 8 6 a n d from employees who are awaiting the holding of a 22-RC-8060 Board election violates the Act if the employees December 4, 1981 otherwise would have been granted the pay raises in the normal course of the employer's business. 5 DECISION AND ORDER Unlike the situation in Uarco Inc. the Respondent BY MEMBERS FANNING, JENKINS, AND h er e d i d n o t t ell employees that the sole reason for ZIMMERMAN its ac t io n w as to av o id the appearance that it sought to influence the election. More important, it On December 13, 1980, Administrative Law placed the onus for the postponement on the Judge Joel P. Biblowitz issued the attached Deci- Union.I We therefore find that the Respondent vio- sion in this proceeding. Thereafter, the General lated Section 8(a)(l) and (3) of the Act. Counsel and the Respondent filed exceptions and We also disagree with the Administrative Law supporting briefs.' Judge's conclusion that the Respondent's repeated Pursuant to the provisions of Section 3(b) of the references to the possibility of strikes and the fact National Labor Relations Act, as amended, the Na- that economic strikers can be permanently replaced tional Labor Relations Board has delegated its au- were protected by Section 8(c) of the Act. Rather, thority in this proceeding to a three-member panel. ,we view those references, when read in the context The Board has considered the record and the at- of certain other of the Respondent's campaign tached Decision in light of the exceptions and statements, to constitute implied threats violative of briefs and has decided to affirm the rulings, find- Section 8(a)(l). ings, 2 and conclusions of the Administrative Law A major theme of the Respondent's campaign lit- Judge, as modified below, 3 and to adopt his recom- erature and speeches was that unionization did not mended Order, as so modified. 4 guarantee automatic increases in wages and bene- 1. The General Counsel excepts to the Adminis- fits, or, specifically, that its office employees would trative Law Judge's failure to find that the Re- receive the wages and benefits enjoyed by its spondent unlawfully postponed the regularly unionized store employees. Thus, the Respondent scheduled January wage increase. The record repeatedly emphasized that the law did not require clearly demonstrates, and the Administrative Law it to agree to any union demand, only that it bar- Judge found, that the Respondent postponed the gain in good faith, that the only weapon a union I The General Counsel's "Motion to Strike Respondent's Exceptions h a d to f o r c e ar e m ent w a s a strike, and that eco- and Portions of Its Memorandum in Support Thereofr is hereby denied. nomic strikers could be permanently replaced. In 2 The Respondent has excepted to certain credibility findings made by conjunction with these points, Controller Cimini the Administrative Law Judge. It is the Board's established policy not to stated that the Respondent would do whatever it overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- had to do to keep the Union out, that the Respond- vinces us that the resolutions are incorrect. Standard Dry Wall Products ent "Certainly would not agree" to pay the Store Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. r a te s, a n d th a t, if th e Union demanded those rates, Further, there is nothing in the record to indicate that the Administrative there would be a long Strike. Vice President Gold Law Judge was biased or prejudiced against the Respondent or that the stated that the Respondent knew how to protect its Respondent was accorded less than a full and fair hearing. I In agreement with the General Counsel, we find that Vice President interests and, in both his Speeches, Stated that there Gold's statements to employee Evers, following the termination of em- was "no way in the world" that the Respondent ployee Medaska, are sufficient to establish the Respondent's knowledge would pay the store rates. of Medaska's union sympathies. In addition, we find it unnecessary to pass on whether the Respondent's campaign literature contained an un- In Concluding that the Respondent's Strike State- lawful solicitation of grievances since such would not affect the scope of ments were protected by Section 8(c), the Adminis- the remedy. Finally, we shall leave to the compliance stage of this pro- ceeding the determination of whether Medaska would have remained in trative Law Judge noted that the Respondent the Respondent's employ beyond January 28, 1980. never stated that it would not bargain or never IIn accordance with his dissent in Olympic Medical Corportion, 250 reach an agreement. To the contrary, he noted that NLRB 146 (1980), Member Jenkins would award interest on any backpay due Medaska based on the formula set forth therein. the Respondent stated that it was required to bar- Member Jenkins does not rely on Wright Line, a Division of Wright gain in good faith, that it Spoke Only of the possi- Line. Inc., 251 NLRB 1083 (1980), for finding Medaska's discharge un- bi;» r a -i j .1. . -1 r i th lawful. As the Administrative Law Judge found, the asserted lawful rea- biy of a s t r ik e , a n d t h a t it n e v e r foreclosed the sons for her discharge were "incredible," so that no lawful reason exists and only the unlawful one remains. Wright Line is concerned only with See Florida Steel Corporation, 220 NLRB 1201 (1975), affd. 538 F.2d deciding between a genuine lawful and a genuine unlawful reason for a 324 (4th Cir. 1976), and cases cited therein. discharge, and it is misleading and inaccurate to apply it where only the 1 169 NLRB 1135 (1968). unlawful reason is genuine.' See, generally, Centre Engineering, Inc., 253 NLRB 421 (1980). 259 NLRB No. 74 PROGRESSIVE SUPERMARKETS, INC. 513 possibility of reaching an agreement. He further Cimini told employees that the Respondent would noted that the statements regarding the replace- do whatever it had to do to keep the Union out. In ment of economic strikers were a correct descrip- this context, the Respondent's statements were not tion of the law. However, the Administrative Law limited to the "ifs" and "possibilities" of strikes and Judge apparently failed to consider the Respond- collective bargaining but contained a not so subtle ent's statements as they related to the Respondent's threat that, upon unionization, it too would force a descriptions of the Union's response to unionization strike, directly resulting in the permanent replace- by its own clerical employees. ment of strikers and the loss of jobs. 8 Accordingly, In a letter to employees dated December 28, those statements violate Section 8(al1). 1979, the Respondent referred to a 1970 strike by 2. The Respondent's threats to force a strike and the Union's office employees and made the follow- permanently replace strikers add to the necessity ing statements: for the bargaining order recommended by the Ad- You must think that Local 1262 would have ministrative Law Judge. Through its campaign some understanding for the needs and wants of statements and unfair labor practices, the Respond- its own office employees .... What Local ent made clear its opposition to its employees' 1262 did was to bargain the Office Employees unionization and, significantly, the dire conse- Union into the ground, get the employees out quences which would result. Thus, the Respondent on strike, and then permanently replaced all threatened more onerous working conditions and the strikers. The strike lasted for two months, told employees that, because of the union cam- and only one striker ever got her job back paign, wages and benefits would be frozen. It also ... . threatened that unionization would result in a loss What makes you think that things will be of current benefits which would then have to be any different here? This union has a track negotiated back. record of not treating office employees fairly. More important, the Respondent's threat to dis- Moreover, we know how to negotiate hard, iMoreover we know how to negotiate hardbu charge employee Plant, its threat that unionization just like the union does. And we know about . . rights regarding the replacement of economic would result in a strike and the replacement of em- strikers. ployees, and its unlawful discharge of employee Medaska underscored its resolve to do, as Control- In the speech given January 4, 1980, Vice Presi- ler Cimini threatened, "whatever it had to do" to dent Gold reiterated that the Union had perma- keep the Union out. As the Administrative Law nently replaced its own striking clerical employees Judge noted, no employer conduct is more serious and added: than the discharge of an employee because of So you can ask the union what it means to union affiliation, and such misconduct is particular- be permanently replaced, because Local 1262 ly effective where, as here, the employer explicitly really knows how to do it. And I can assure reveals to employees its unlawful motivation. Nor you that this company knows how to do it as was the Respondent's unlawful activity limited to well. threats and reprisals. For, on at least two occa- sions, the Respondent impliedly promised to Finally, Gold, in his last speech to employees, remedy employee grievances, thereby giving stated that the Union "broke" its own employees' addded and unlawful emphasis to its contentions union and, as to the Respondent's opposition to that the employees did not need a union to obtain paying its employees increased wages and benefits, the best that it could offer. added that it was in "pretty much the same posi- The Respondent's unfair labor practices were se- tion that Local 1262 was back in 1970." rious and accomplished their intended result-the The above statemeents demonstrate that the Re- dissipation of the Union's preelection majority. By spondent's strike references went beyond the mere its unfair labor practices, the Respondent vividly its unfair labor practices, the Respondent vividly expression of "views, argument or opinion" pro- demonstrated to employees the perils of unioniza- tected by Section 8(c). Rather, the Respondent told onad the s o i r i tion and the rewards of its rejection and, with the its employees that the Union had previously bar- .. gained its own employees "to the ground," forced employees so conditioned, the possibility of a fair them on strike, and permanently replaced them. It re-run election is, at best, slight. described its opposition to its employees' demands as similar to the Union's and assured employees as similar to the Union's and assured employees See St. Francis Hospital, 249 NLRB 180 (1980); Components Inc., 197 that, like the Union, it knew how to bargain NLRB 163 (1972). See also Georgetown Dress Corp.. 201 NLRB 102 "hard" and replace strikers. Moreover, Controller (1973). PROGRESSIVE SUPERMARKETS, INC. 513 possibility of reaching an agreement. He further Cimini told employees that the Respondent would noted that the statements regarding the replace- do whatever it had to do to keep the Union out. In ment of economic strikers were a correct descrip- this context, the Respondent's statements were not tion of the law. However, the Administrative Law limited to the "ifs" and "possibilities" of strikes and Judge apparently failed to consider the Respond- collective bargaining but contained a not so subtle ent's statements as they related to the Respondent's threat that, upon unionization, it too would force a descriptions of the Union's response to unionization strike, directly resulting in the permanent replace- by its own clerical employees. ment of strikers and the loss of jobs. 8 Accordingly, In a letter to employees dated December 28, those statements violate Section 8(a)l). 1979, the Respondent referred to a 1970 strike by 2. The Respondent's threats to force a strike and the Union's office employees and made the follow- permanently replace strikers add to the necessity ing statements: for the bargaining order recommended by the Ad- You must think that Local 1262 would have ministrative Law Judge. Through its campaign some understanding for the needs and wants of statements and unfair labor practices, the Respond- its own office employees .... What Local ent made clear its opposition to its employees' 1262 did was to bargain the Office Employees unionization and, significantly, the dire conse- Union into the ground, get the employees out quences which would result. Thus, the Respondent on strike, and then permanently replaced all threatened more onerous working conditions and the strikers. The strike lasted for two months, told employees that, because of the union cam- and only one striker ever got her job back paign, wages and benefits would be frozen. It also * . . . threatened that unionization would result in a loss What makes you think that things will be of current benefits which would then have to be any different here? This union has a track negotiated back. record of not treating office employees fairly. More important, the Respondent's threat to dis- Moreover, we know how to negotiate hard, charge employee Plant, its threat that unionization just like the union does. And we know about c - .. . , .- jushts liegardin the unio oeslanwementow abon w ou ld resu lt in a strik e and the replacement of em- rigsgd t rployees, and its unlawful discharge of employee Medaska underscored its resolve to do, as Control- In the speech given January 4, 1980, Vice Presi- ler Cimini threatened, "whatever it had to do" to dent Gold reiterated that the Union had perma- keep the Union out. As the Administrative Law nently replaced its own striking clerical employees Judge noted, no employer conduct is more serious and added: than the discharge of an employee because of So you can ask the union what it means to u n io n affiliation, and such misconduct is particular- be permanently replaced, because Local 1262 ly effective where, as here, the employer explicitly really knows how to do it. And I can assure reveals to employees its unlawful motivation. Nor you that this company knows how to do it as was the Respondent's unlawful activity limited to well. threats and reprisals. For, on at least two occa- sions, the Respondent impliedly promised to Finally, Gold, in his last speech to employees, remedy employee grievances, thereby giving stated that the Union "broke" its own employees' addded and unlawful emphasis to its contentions union and, as to the Respondent's opposition to that the employees did not need a union to obtain paying its employees increased wages and benefits, the best that it could offer. added that it was in "pretty much the same posi- The Respondent's unfair labor practices were se- tion that Local 1262 was back in 1970." rious and accomplished their intended result-the The above statements demonstrate that the Re- dissipation of the Union's preelection majority. By spondent's strike references went beyond the mere its unfair labor practices, the Respondent vividly expression of "views, argument or opinion" pro- demonstrated to employees the perils of unioniza- tected by Section 8(c). Rather, the Respondent told t a t r its employees that the Union had previously bar- e.e s , the p o a gained its own employees "to the ground," forcedemployees so conditioned, the possibility of a fair them on strike, and permanently replaced them. It r e-r un el ec ti0 " ls, at best, sligh t. described its opposition to its employees' demands as similar to the Union's and assured employees--- as,.simiart the Union' and asr employees See St. Francis Hospital, 249 NLRB 180 (1980); Components Inc., 197 that, like the Union, It knew how to bargain NLRB 163 (1972). See also Georgetown Dress Corp.. 201 NLRB 102 "hard" and replace strikers. Moreover, Controller (1973). PROGRESSIVE SUPERMARKETS, INC. 513 possibility of reaching an agreement. He further Cimini told employees that the Respondent would noted that the statements regarding the replace- do whatever it had to do to keep the Union out. In ment of economic strikers were a correct descrip- this context, the Respondent's statements were not tion of the law. However, the Administrative Law limited to the "ifs" and "possibilities" of strikes and Judge apparently failed to consider the Respond- collective bargaining but contained a not so subtle ent's statements as they related to the Respondent's threat that, upon unionization, it too would force a descriptions of the Union's response to unionization strike, directly resulting in the permanent replace- by its own clerical employees. ment of strikers and the loss of jobs. 8 Accordingly, In a letter to employees dated December 28, those statements violate Section 8(a)l). 1979, the Respondent referred to a 1970 strike by 2. The Respondent's threats to force a strike and the Union's office employees and made the follow- permanently replace strikers add to the necessity ing statements: for the bargaining order recommended by the Ad- You must think that Local 1262 would have ministrative Law Judge. Through its campaign some understanding for the needs and wants of statements and unfair labor practices, the Respond- its own office employees .... What Local ent made clear its opposition to its employees' 1262 did was to bargain the Office Employees unionization and, significantly, the dire conse- Union into the ground, get the employees out quences which would result. Thus, the Respondent on strike, and then permanently replaced all threatened more onerous working conditions and the strikers. The strike lasted for two months, told employees that, because of the union cam- and only one striker ever got her job back paign, wages and benefits would be frozen. It also * . . . threatened that unionization would result in a loss What makes you think that things will be of current benefits which would then have to be any different here? This union has a track negotiated back. record of not treating office employees fairly. More important, the Respondent's threat to dis- Moreover, we know how to negotiate hard, charge employee Plant, its threat that unionization just like the union does. And we know about c - .. ,, jushts liegardin the unio oeslanwementow abon w ou ld resu lt in a strik e and the replacement of em- rigsgd t rployees, and its unlawful discharge of employee Medaska underscored its resolve to do, as Control- In the speech given January 4, 1980, Vice Presi- ler Cimini threatened, "whatever it had to do" to dent Gold reiterated that the Union had perma- keep the Union out. As the Administrative Law nently replaced its own striking clerical employees Judge noted, no employer conduct is more serious and added: than the discharge of an employee because of So you can ask the union what it means to u n io n affiliation, and such misconduct is particular- be permanently replaced, because Local 1262 ly effective where, as here, the employer explicitly really knows how to do it. And I can assure reveals to employees its unlawful motivation. Nor you that this company knows how to do it as was the Respondent's unlawful activity limited to well. threats and reprisals. For, on at least two occa- sions, the Respondent impliedly promised to Finally, Gold, in his last speech to employees, remedy employee grievances, thereby giving stated that the Union "broke" its own employees' addded and unlawful emphasis to its contentions union and, as to the Respondent's opposition to that the employees did not need a union to obtain paying its employees increased wages and benefits, the best that it could offer. added that it was in "pretty much the same posi- The Respondent's unfair labor practices were se- tion that Local 1262 was back in 1970." rious and accomplished their intended result-the The above statements demonstrate that the Re- dissipation of the Union's preelection majority. By spondent's strike references went beyond the mere its unfair labor practices, the Respondent vividly expression of "views, argument or opinion" pro- demonstrated to employees the perils of unioniza- tected by Section 8(c). Rather, the Respondent told t a t r its employees that the Union had previously bar- e.e s , the p o a gained its own employees "to the ground," forcedemployees so conditioned, the possibility of a fair them on strike, and permanently replaced them. It r e-r un el ec ti0 " ls, at best, sligh t. described its opposition to its employees' demands as similar to the Union's and assured employees--- as,.simiart the Union' and asr employees See St. Francis Hospital, 249 NLRB 180 (1980); Components Inc., 197 that, like the Union, It knew how to bargain NLRB 163 (1972). See also Georgetown Dress Corp.. 201 NLRB 102 "hard" and replace strikers. Moreover, Controller (1973). PROGRESSIVE SUPERMARKETS, INC. 513 possibility of reaching an agreement. He further Cimini told employees that the Respondent would noted that the statements regarding the replace- do whatever it had to do to keep the Union out. In ment of economic strikers were a correct descrip- this context, the Respondent's statements were not tion of the law. However, the Administrative Law limited to the "ifs" and "possibilities" of strikes and Judge apparently failed to consider the Respond- collective bargaining but contained a not so subtle ent's statements as they related to the Respondent's threat that, upon unionization, it too would force a descriptions of the Union's response to unionization strike, directly resulting in the permanent replace- by its own clerical employees. ment of strikers and the loss of jobs. 8 Accordingly, In a letter to employees dated December 28, those statements violate Section 8(a)l). 1979, the Respondent referred to a 1970 strike by 2. The Respondent's threats to force a strike and the Union's office employees and made the follow- permanently replace strikers add to the necessity ing statements: for the bargaining order recommended by the Ad- You must think that Local 1262 would have ministrative Law Judge. Through its campaign some understanding for the needs and wants of statements and unfair labor practices, the Respond- its own office employees .... What Local ent made clear its opposition to its employees' 1262 did was to bargain the Office Employees unionization and, significantly, the dire conse- Union into the ground, get the employees out quences which would result. Thus, the Respondent on strike, and then permanently replaced all threatened more onerous working conditions and the strikers. The strike lasted for two months, told employees that, because of the union cam- and only one striker ever got her job back paign, wages and benefits would be frozen. It also * . . . threatened that unionization would result in a loss What makes you think that things will be of current benefits which would then have to be any different here? This union has a track negotiated back. record of not treating office employees fairly. More important, the Respondent's threat to dis- Moreover, we know how to negotiate hard, charge employee Plant, its threat that unionization just like the union does. And we know about c - .. ,, jushts liegardin the unio oeslanwementow abon w ou ld resu lt in a strik e and the replacement of em- rigsgd t rployees, and its unlawful discharge of employee Medaska underscored its resolve to do, as Control- In the speech given January 4, 1980, Vice Presi- ler Cimini threatened, "whatever it had to do" to dent Gold reiterated that the Union had perma- keep the Union out. As the Administrative Law nently replaced its own striking clerical employees Judge noted, no employer conduct is more serious and added: than the discharge of an employee because of So you can ask the union what it means to u n io n affiliation, and such misconduct is particular- be permanently replaced, because Local 1262 ly effective where, as here, the employer explicitly really knows how to do it. And I can assure reveals to employees its unlawful motivation. Nor you that this company knows how to do it as was the Respondent's unlawful activity limited to well. threats and reprisals. For, on at least two occa- sions, the Respondent impliedly promised to Finally, Gold, in his last speech to employees, remedy employee grievances, thereby giving stated that the Union "broke" its own employees' addded and unlawful emphasis to its contentions union and, as to the Respondent's opposition to that the employees did not need a union to obtain paying its employees increased wages and benefits, the best that it could offer. added that it was in "pretty much the same posi- The Respondent's unfair labor practices were se- tion that Local 1262 was back in 1970." rious and accomplished their intended result-the The above statements demonstrate that the Re- dissipation of the Union's preelection majority. By spondent's strike references went beyond the mere its unfair labor practices, the Respondent vividly expression of "views, argument or opinion" pro- demonstrated to employees the perils of unioniza- tected by Section 8(c). Rather, the Respondent told t a t r its employees that the Union had previously bar- e.e s , the p o a gained its own employees "to the ground," forcedemployees so conditioned, the possibility of a fair them on strike, and permanently replaced them. It r e-r un el ec ti0 " ls, at best, sligh t. described its opposition to its employees' demands as similar to the Union's and assured employees--- as,.simiart the Union' and asr employees See St. Francis Hospital, 249 NLRB 180 (1980); Components Inc., 197 that, like the Union, It knew how to bargain NLRB 163 (1972). See also Georgetown Dress Corp.. 201 NLRB 102 "hard" and replace strikers. Moreover, Controller (1973). 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER WE WILL NOT promise to correct the griev- ances of our employees in order to induce Pursuant to Section 10(c) of the National Labor ances of our employees in order to induce Relations Act, as amended, the National Labor Re- them to refrain from supporting Local 1262 or Relations Act, as amended, the National Labor Re- a oh l r a t any other labor organization. lations Board adopts as its Order the recommended any other labor or ation. WE WILL NOT threaten our employees with Order of the Administrative Law Judge, as modi- E W L N T h e e our o t fied below, and hereby orders that the Respondent, d hooe to be represent Progressive Supermarkets, Inc., Parsippany, New Local 1262 or ny other labor Jersey, its officers, agents, successors, and assigns, W W N t iii shall take the action set forth in the said recom-E L L th at nn a mended Order as so modified: will result in a strike, the permanent replace- ment of strikers, and the loss of jobs. 1. Add the following as paragraphs l(i) and 1(j), WE WIL NT th d we iceases be- relettering subsequent paragraphs accordingly: cae of or e loee io atiit "(i) Threatening that unionization would result in WE WL NT in ay le or related maner a strike, the permanent replacement of strikers, and WE WILL NOT in any like or related manner a strike, the permanent replacement of strikers, and interfere with, restrain, or coerce our employ- (jthe lWthg o ss ofreJseobs. b s o ees in the exercise of rights guaranteed in Sec- "(j) Withholding wage increases because of its tion 7 of the Act. employees' union activity." WE WILL offer Diane Medaska immediate 2. Substitute the attached notice for that of the and full reinstatement to her former position Administrative Law Judge. or, if that job no longer exists, to a substantial- APPENDIX ly equivalent position without prejudice to her seniority or other rights and privileges, and NOTICE To EMPLOYEES make her whole, with interest, for any loss of POSTED BY ORDER OF THE earnings she may have suffered because of our NATIONAL LABOR RELATIONS BOARD discriminatory conduct against her. An Agency of the United States Government WE WILL recognize and, upon request, bar- gain with Local 1262 as the exclusive repre- After a hearing at which all sides had an opportu- sentative of our employees in the appropriate nity to present evidence and state their positions, unit with respect to wages, hours, and other the National Labor Relations Board found that we terms and conditions of employment and, if an have violated the National Labor Relations Act, as understanding is reached, embody such under- amended, and has ordered us to post this notice. standing in a signed agreement. The appropri- ate unit is: WE WILL NOT threaten our employees with All full time and regular part time office the loss of benefits should they choose to be clericl emplee emled a ur Pa tm fi represented by Retail Store Employees Unionclercal employees employed at our Parsip- Local 1262, United Food and Commercial pany office, but excluding confidential em- Workers International Union, Local 1262, l employees, guards, all AFL-CIO and CLC, or any other labor orga-other employees and all supervisors as de- nization. fined in the Act. WE WILL NOT threaten to discontinue our employees' dental benefit plan should they choose to be represented by Local 1262 or any DECISION other labor organization. WE WILL NOT threaten to freeze the wages STATEMENT OF THE CASE or other benefits of our employees due to their JOEL P. BIBLOWITZ, Administrative Law Judge: This activities on behalf of Local 1262 or any other case was heard before me in Newark, New Jersey, on labor organization. June 23, 24, 25, July 1 and 2, 1980. The complaint was WE WILL NOT threaten to install a timeclock issued on February 22, 1980, based upon a charge and for our employees should they choose to be amended charge filed respectively on January 7 and Jan- represented by Local 1262 or any other labor uary 17, 1980, by Retail Store Employees Union Local Organization. 1262, United Food and Commercial Workers Interna- tional Union, AFL-CIO and CLC, herein called the WE WILL NOT interrogate our employees re- Union. Basically, the complaint alleges that Progressive garding their activities, and the activities of Supermarkets, Inc., herein called Respondent, violated other employees, on behalf of Local 1262 or Section 8(a)(X), (3), and (5) of the Act by the following any other labor organization. actions: (1) threatening its employees with loss of bene- 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER WE WILL NOT promise to correct the griev- Pursuant to Section 10(c) of the National Labor a ouemoyeioreto idc Relations Act, as amended, the National Labor Re-_the to refrain fm prg c12 ... -> ,,, *. /-» .1 .<_ j j~~iy other labor organization. lations Board adopts as its Order the recommended any ote l oraiain Order of the Administrative Law Judge, as modi- W E W I L L N OT h r ea t en o u r eploee w it h fied below, and hereby orders that the Respondent, discharge should they choose to be represent- Progressive Supermarkets, Inc., Parsippany, Newe L o c a l 12 6 2 o r an y o t h e r la b o r o rgan iza- Jersey, its officers, agents, successors, and assigns, tin . Ni- * . .. shall take the action set forth in the said recom- W E W IL L N O T t h r e at en t h a t unoizto mended Order as so modified: will r e su l t in a st rik e, t h e permanent replace- ,.,,,,.„ . , ,,.. , .,., ~~~ment of strikers, and the loss of jobs. 1. Add the following as paragraphs l(i) and 10j), m a t loss o jobs. relettering subsequent paragraphs accordingly: WE WL NOT withhold wage increases be `(i) Threatening that unionization would result in ca us of ou r e mplo yees'unio actvity a strike, the permanent replacement of strikers, and^ WE WIL NO in an lieo eatdmne the loss of jobs. epacmet f trkesan interfere with, restrain, or coerce our employ- ( t e g o ss 0 . w r bees in the exercise of rights guaranteed in Sec- "y) Withholding wage increases because of itsof the Act. employees' union activity." WE WILL offer Diane Medaska immediate 2. Substitute the attached notice for that of the and full reinstatement to her former position Administrative Law Judge. or, if that job no longer exists, to a substantial- APPENDIX ly equivalent position without prejudice to her seniority or other rights and privileges, and NOTICE To EMPLOYEES make her whole, with interest, for any loss of POSTED BY ORDER OF THE earnings she may have suffered because of our NATIONAL LABOR RELATIONS BOARD discriminatory conduct against her. An Agency of the United States Government W E W ILL recognize and, upon request, bar- gain with Local 1262 as the exclusive repre- After a hearing at which all sides had an opportu- sentative of our employees in the appropriate nity to present evidence and state their positions, u nit w it h respect t o wages, h o u r s, a n d o t h e r the National Labor Relations Board found that we te rm s a n d conditions of employment and, if an have violated the National Labor Relations Act, as understanding is reached, embody such under- amended, and has ordered us to post this notice. standing in a signed agreement. The appropri- ate unit is: WE WILL NOT threaten our employees with Al f t ar the loss of benefits should they choose to be clrifua te m e a n p l re e u la r ple tome office represented by Retail Store Employees Unioncleancal employees employed at our Parsip- Local 1262, United Food and Commercial pany office, but excluding confidential em- Workers International Union, Local 1262, o Professional employees, guards, all AFL-CIO and CLC, or any other labor orga-other employees and all supervisors as de- nization. f in e d ln t h e A c t. WE WILL NOT threaten to discontinue our P employees' dental benefit plan should theyPROGRESSIVE SUPERMARKETS, INC. choose to be represented by Local 1262 or any DECISION other labor organization. WE WILL NOT threaten to freeze the wages STATEMENT OF THE CASE or other benefits of our employees due to their JOEL P. BIBLOWITZ, Administrative Law Judge: This activities on behalf of Local 1262 or any other case was heard before me in Newark, New Jersey, on labor organization. June 23, 24, 25, July 1 and 2, 1980. The complaint was WE WILL NOT threaten to install a timeclock issued on February 22, 1980, based upon a charge and for our employees should they choose to be amended charge filed respectively on January 7 and Jan- represented by Local 1262 or any other labor uary 17, 1980, by Retail Store Employees Union Local organization. 1262, United Food and Commercial Workers Interna- tional Union, AFL-CIO and CLC, herein called the WE WILL NOT interrogate our employees re- Union. Basically, the complaint alleges that Progressive garding their activities, and the activities of Supermarkets, Inc., herein called Respondent, violated other employees, on behalf of Local 1262 or Section 8(a)(l), (3), and (5) of the Act by the following any other labor organization. actions: (1) threatening its employees with loss of bene- 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER WE WILL NOT promise to correct the griev- Pursuant to Section 10(c) of the National Labor acs oouemoyeioreto id Relations Act, as amended, the National Labor Re-_the to refrain fm prg c12 ... -> ,,, *. /-» .1 .<_ j j~~iy other labor organization. lations Board adopts as its Order the recommended any ote l oraiain Order of the Administrative Law Judge, as modi- W E W I L L N OT h r ea t en o u r eploee w it h fied below, and hereby orders that the Respondent, discharge should they choose to be represent- Progressive Supermarkets, Inc., Parsippany, Newe L o c a l 12 6 2 o r an y o t h e r la b o r o rgan iza- Jersey, its officers, agents, successors, and assigns, tin . .i- * . .. shall take the action set forth in the said recom- W E W IL L N O T t h r e at en t h a t unoizto mended Order as so modified: will r e su l t in a st rik e, t h e permanent replace- ,.,,,,.„ . , ,,.. , .,., ~~~ment of strikers, and the loss of jobs. 1. Add the following as paragraphs l(i) and 1(j), m a t loss o jobs. relettering subsequent paragraphs accordingly: WE WL NOT withhold wage increases be `(i) Threatening that unionization would result in ca us of ou r e mplo yees'unio actvity a strike, the permanent replacement of strikers, and^ WE WIL NO in an lieo eatdmne the loss of jobs. epacmet f trkesan interfere with, restrain, or coerce our employ- ( t e g o ss 0 . w r bees in the exercise of rights guaranteed in Sec- "y) Withholding wage increases because of itsof the Act. employees' union activity." WE WILL offer Diane Medaska immediate 2. Substitute the attached notice for that of the and full reinstatement to her former position Administrative Law Judge. or, if that job no longer exists, to a substantial- APPENDIX ly equivalent position without prejudice to her seniority or other rights and privileges, and NOTICE To EMPLOYEES make her whole, with interest, for any loss of POSTED BY ORDER OF THE earnings she may have suffered because of our NATIONAL LABOR RELATIONS BOARD discriminatory conduct against her. An Agency of the United States Government W E W ILL recognize and, upon request, bar- gain with Local 1262 as the exclusive repre- After a hearing at which all sides had an opportu- sentative of our employees in the appropriate nity to present evidence and state their positions, unit w it h respect t o wages, ho ur s, and other the National Labor Relations Board found that we term s and conditions of employment and, if an have violated the National Labor Relations Act, as understanding is reached, embody such under- amended, and has ordered us to post this notice. standing in a signed agreement. The appropri- ate unit is: WE WILL NOT threaten our employees with Al f t ar the loss of benefits should they choose to be clrifua te m e an p l re e ul ar ple tome office represented by Retail Store Employees Unioncleancal employees employed at our Parsip- Local 1262, United Food and Commercial pany office, but excluding confidential em- Workers International Union, Local 1262, o Professional employees, guards, all AFL-CIO and CLC, or any other labor orga-other employees and all supervisors as de- nization. n n ed l n t h e A c t. WE WILL NOT threaten to discontinue our P employees' dental benefit plan should theyPROGRESSIVE SUPERMARKETS, INC. choose to be represented by Local 1262 or any DECISION other labor organization. WE WILL NOT threaten to freeze the wages STATEMENT OF THE CASE or other benefits of our employees due to their JOEL P. BIBLOWITZ, Administrative Law Judge: This activities on behalf of Local 1262 or any other case was heard before me in Newark, New Jersey, on labor organization. June 23, 24, 25, July 1 and 2, 1980. The complaint was WE WILL NOT threaten to install a timeclock issued on February 22, 1980, based upon a charge and for our employees should they choose to be amended charge filed respectively on January 7 and Jan- represented by Local 1262 or any other labor uary 17, 1980, by Retail Store Employees Union Local organization. 1262, United Food and Commercial Workers Interna- tional Union, AFL-CIO and CLC, herein called the WE WILL NOT interrogate our employees re- Union. Basically, the complaint alleges that Progressive garding their activities, and the activities of Supermarkets, Inc., herein called Respondent, violated other employees, on behalf of Local 1262 or Section 8(a)(l), (3), and (5) of the Act by the following any other labor organization. actions: (1) threatening its employees with loss of bene- 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER WE WILL NOT promise to correct the griev- Pursuant to Section 10(c) of the National Labor acs oouemoyeioreto id Relations Act, as amended, the National Labor Re-_the to refrain fm prg c12 ... -> ,,, *. /-» .1 .<_ j j~~iy other labor organization. lations Board adopts as its Order the recommended any ote l ognztn Order of the Administrative Law Judge, as modi- W E W I L L N OT h r ea t en o u r eploee w it h fied below, and hereby orders that the Respondent, discharge should they choose to be represent- Progressive Supermarkets, Inc., Parsippany, Newe L o c a l 12 6 2 o r an y o t h e r la b o r o rgan iza- Jersey, its officers, agents, successors, and assigns, tin . .i- * . .. shall take the action set forth in the said recom- W E W IL L N O T t h r e at en t h a t unoizto mended Order as so modified: will r e su l t in a st rik e, t h e permanent replace- ,.,,,,.„ . , ,,.. , .,., ~~~ment of strikers, and the loss of jobs. 1. Add the following as paragraphs l(i) and l(i), m a t loss o jobs. relettering subsequent paragraphs accordingly: WE WL NOT withhold wage increases be `(i) Threatening that unionization would result in ca us of ou r e mplo yees'unio actvity a strike, the permanent replacement of strikers, and^ WE WIL NO in an lieo eatdmne the loss of jobs. epacmet f trkesan interfere with, restrain, or coerce our employ- ( t e g o ss 0 . w r bees in the exercise of rights guaranteed in Sec- "ej) Withholding wage increases because of itsof the Act. employees' union activity." WE WILL offer Diane Medaska immediate 2. Substitute the attached notice for that of the and full reinstatement to her former position Administrative Law Judge. or, if that job no longer exists, to a substantial- APPENDIX ly equivalent position without prejudice to her seniority or other rights and privileges, and NOTICE To EMPLOYEES make her whole, with interest, for any loss of POSTED BY ORDER OF THE earnings she may have suffered because of our NATIONAL LABOR RELATIONS BOARD discriminatory conduct against her. An Agency of the United States Government W E W ILL recognize and, upon request, bar- gain with Local 1262 as the exclusive repre- After a hearing at which all sides had an opportu- sentative of our employees in the appropriate nity to present evidence and state their positions, unit w it h respect t o wages, ho ur s, and other the National Labor Relations Board found that we term s and conditions of employment and, if an have violated the National Labor Relations Act, as understanding is reached, embody such under- amended, and has ordered us to post this notice. standing in a signed agreement. The appropri- ate unit is: WE WILL NOT threaten our employees with Al f t ar the loss of benefits should they choose to be clrifua t m e an m l re e ul ar ply time office represented by Retail Store Employees Unioncleancal employees employed at our Parsip- Local 1262, United Food and Commercial pany office, but excluding confidential em- Workers International Union, Local 1262, o Professional employees, guards, all AFL-CIO and CLC, or any other labor orga-other employees and all supervisors as de- nization. n n ed l n t h e A c t. WE WILL NOT threaten to discontinue our P employees' dental benefit plan should theyPROGRESSIVE SUPERMARKETS, INC. choose to be represented by Local 1262 or any DECISION other labor organization. WE WILL NOT threaten to freeze the wages STATEMENT OF THE CASE or other benefits of our employees due to their JOEL P. BIBLOWITZ, Administrative Law Judge: This activities on behalf of Local 1262 or any other case was heard before me in Newark, New Jersey, on labor organization. June 23, 24, 25, July 1 and 2, 1980. The complaint was WE WILL NOT threaten to install a timeclock issued on February 22, 1980, based upon a charge and for our employees should they choose to be amended charge filed respectively on January 7 and Jan- represented by Local 1262 or any other labor uary 17, 1980, by Retail Store Employees Union Local organization. 1262, United Food and Commercial Workers Interna- tional Union, AFL-CIO and CLC, herein called the WE WILL NOT interrogate our employees re- Union. Basically, the complaint alleges that Progressive garding their activities, and the activities of Supermarkets, Inc., herein called Respondent, violated other employees, on behalf of Local 1262 or Section 8(a)(l), (3), and (5) of the Act by the following any other labor organization. actions: (1) threatening its employees with loss of bene- PROGRESSIVE SUPERMARKETS, INC. 515 fits and more onerous working conditions, (2) threaten- $5,000 which were transported to its place of business in ing its employees with discharge if they selected the interstate commerce directly from points outside the Union as their collective-bargaining representative, (3) State of New Jersey and purchased goods valued in informing its employees of the futility of selecting the excess of $50,000 from suppliers located within the State Union as their collective-bargaining representative and of New Jersey, who, in turn, had received said goods di- impliedly promising its employees an improvement in rectly from points outside the State of New Jersey. Re- their wages and benefits if they rejected or refrained spondent admits, and I find, that it is an employer en- from supporting the Union, (4) soliciting employee com- gaged in commerce within the meaning of Section 2(2), plaints and grievances to encourage the employees to re- (6), and (7) of the Act. frain from supporting the Union, (5) discharging Diane Medaska due to her activities on behalf of the Union, (6) 1I. THE LABOR ORGANIZATION INVOLVED withholding an annual wage increase and then granting the annual wage increase in an amount greater than in Respondent admits, and I find, that the Union is, and previous years, due to its employees' activities on behalf has been at all times material herein, a labor organization of the Union, (7) providing its employees with a lounge within the meaning of Section 2(5) of the Act. and implementing split lunch breaks to discourage its em- ployees from engaging in further activities on behalf of II. THE APPROPRIATE UNIT the Union, and (8) refusing to bargain with the Union Respondent admits, and I find, that the appropriate which had been selected by a majority of Respondent's unit herein is all full-time and regular part-time office employees as their collective-bargaining representative in clerical employees employed at Respondent's Parsippany an appropriate unit. office, but excluding confidential employees, professional On February 22, 1980, the Regional Director for employees, guards, all other employees and all supervi- Region 22 issued a Report on Objections and Order Con- sors as defined in the Act. solidating Cases in Case 22-RC-8060 in which he found that the issues raised by the objections were coextensive IV. THE EMPLOYEES INVOLVED with those set forth in the complaint in Case 22-CA- 9686 and he therefore consolidated said objections with The unit involved in this proceeding is Respondent's the unfair labor practice matter, for decision by me. The office employees at its office in Parsippany, New Jersey. objections are as follows: On November 16, 1979, 1 the date the Union simulta- 1. The employer, by its officers and agents, did solicit neously made its request for recognition and filed its pe- grievances from employees and sought methods to cor- tition with the Board, the following 12 office employees rect them in an effort to discourage employees' support were employed by Respondent: Judy Edwards, Dorothy of the petitioning union. Evers, Christine Kelly, Diane Medaska, Linda Packard, 2. The employer, through its officers and agents, spoke Kathleen Piper, Katalin Plant, Nancy Rinaldo, Mary to employees individually on the day before and the day Salink, Rose Marie Scalfani, Bablir Jo Sedicavage, and of the election. During "those one on one" meetings, the Anne Shally. Between November 16 and November 30, employer intimidated, threatened, and coerced employ- Nancy Gerard was hired by Respondent as an office ees in an effort to discourage them from supporting the clerical employee. On December 7, when the parties en- petitioning union. tered into a consent election agreement, they listed these 3. The employer in remarks made at meetings of em- employees on a Norris Thermador list. Lee Cimini, Re- ployees, threatened employees with a loss of their fringe spondent's controller (and an admitted supervisor), to- benefits and dire consequences in the event that the gther with Deborah Huck and Diane Branca supervise Union succeeded in the election. the work of these employees. To a lesser degree, 4. The employer, on January 4, 1980, did discharge 4. The employer, on January 4, 1980, did discharge Edward Gold, Respondent's vice president, and to an Diana Medaska because of her support for the petition- even lesser degree William Margolis Respondent's ing union and in an effort to discourage others from Respondent voting for Local 1262. By these and other acts, the Em- president, spend some time in the office supervising the voting for Local 1262. By these and other acts, the Em- - ' - Ip*e- ployer destroyed the laboratory conditions required by work of these empoyees. the Board in the conduct of a fair election.. THE UNION'S AUTHORIZATION CARDS AND Upon the entire record, including my observation of AORIT AT the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following: The Union obtained a total of 11 authorization cards from these employees. Under the portion of the card the FINDINGS OF FACT~ employee fills in, and above the place for signature, the 1. JURISDICTION following legend appears: "hereby authorize United Food & Commercial Workers International Union, Respondent, a New Jersey corporation with its princi- AFL-CIO, CLC, or its chartered local union to repre- pal office located at 1279 Route 46, Parsippany, New sent me for the purposes of collective bargaining, re- Jersey, is engaged in the operation of retail supermarkets specting rates of pay, wages, hours of employment, or within the State of New Jersey. Annually, Respondent's gross revenues exceed $500,000 and, for the same period, X Unless otherwise stated, dates in November and December are in it purchased goods and supplies valued in excess of 1979, and dates in January, February, or thereafter are in 1980, PROGRESSIVE SUPERMARKETS, INC. 515 fits and more onerous working conditions, (2) threaten- $5,000 which were transported to its place of business in ing its employees with discharge if they selected the interstate commerce directly from points outside the Union as their collective-bargaining representative, (3) State of New Jersey and purchased goods valued in informing its employees of the futility of selecting the excess of $50,000 from suppliers located within the State Union as their collective-bargaining representative and of New Jersey, who, in turn, had received said goods di- impliedly promising its employees an improvement in rectly from points outside the State of New Jersey. Re- their wages and benefits if they rejected or refrained spondent admits, and I find, that it is an employer en- from supporting the Union, (4) soliciting employee com- gaged in commerce within the meaning of Section 2(2), plaints and grievances to encourage the employees to re- (6), and (7) of the Act. frain from supporting the Union, (5) discharging Diane Medaska due to her activities on behalf of the Union, (6) 11. THE LABOR ORGANIZATION INVOLVED withholding an annual wage increase and then granting the annual wage increase in an amount greater than in Respondent admits, and I find, that the Union is, and previous years, due to its employees' activities on behalf h a s been at all times material herein, a labor organization of the Union, (7) providing its employees with a lounge within the meaning of Section 2(5) of the Act. and implementing split lunch breaks to discourage its em- ployees from engaging in further activities on behalf of I Il T H E APPROPRIATE UNIT the Union, and (8) refusing to bargain with the Union Respondent admits, and I find, that the appropriate which had been selected by a majority of Respondent's unit herein is all full-time and regular part-time office employees as their collective-bargaining representative in clerical employees employed at Respondent's Parsippany an appropriate unit. office, but excluding confidential employees, professional On February 22, 1980, the Regional Director for employees, guards, all other employees and all supervi- Region 22 issued a Report on Objections and Order Con- sors as defined in the Act. solidating Cases in Case 22-RC-8060 in which he found that the issues raised by the objections were coextensive [V. THE EMPLOYEES INVOLVED with those set forth in the complaint in Case 22-CA- 9686 and he therefore consolidated said objections with The unit involved in this proceeding is Respondent's the unfair labor practice matter, for decision by me. The office employees at its office in Parsippany, New Jersey. objections are as follows: On November 16, 1979, 1 the date the Union simulta- 1. The employer, by its officers and agents, did solicit neously made its request for recognition and filed its pe- grievances from employees and sought methods to cor- tition with the Board, the following 12 office employees rect them in an effort to discourage employees' support were employed by Respondent: Judy Edwards, Dorothy of the petitioning union. Evers, Christine Kelly, Diane Medaska, Linda Packard, 2. The employer, through its officers and agents, spoke Kathleen Piper, Katalin Plant, Nancy Rinaldo, Mary to employees individually on the day before and the day Salink, Rose Marie Scalfani, Bablir Jo Sedicavage, and of the election. During "those one on one" meetings, the Anne Shally. Between November 16 and November 30, employer intimidated, threatened, and coerced employ- Nancy Gerard was hired by Respondent as an office ees in an effort to discourage them from supporting the clerical employee. On December 7, when the parties en- petitioning union. tered into a consent election agreement, they listed these 3. The employer in remarks made at meetings of em- employees on a Norris Thermador list. Lee Cimini, Re- ployees, threatened employees with a loss of their fringe spondent's controller (and an admitted supervisor), to- benefits and dire consequences in the event that the gether with Deborah Huck and Diane Branca, supervise Union succeeded in the election. the work of these employees. To a lesser degree, 4. The employer, on January 4, 1980, did discharge „. j ii i. j a 4. Te eploeron Jnuay 4 190, dd dschrge Edward Gold, Respondent's vice president, and to an Diana Medaska because of her support for the petition- e v ls r d e Wil la Mgi R n d et 's ing union and in an effort to discourage others from p e v e n le sse r d some Wt l l n a m theoflfe Respondenths voting for Local 1262. By these and other acts, the Em-President, spend some time in the office supervising the ployer destroyed the laboratory conditions required by w o r k o f ese employees. the Board in the conduct of a fair electionV. THE UNION'S AUTHORIZATION CARDS AND Upon the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following: The Union obtained a total of 11 authorization cards from these employees. Under the portion of the card the employee fills in, and above the place for signature, the 1. JURISDICTION following legend appears: "hereby authorize United Food & Commercial Workers International Union, Respondent, a New Jersey corporation with its princi- AFL-CIO, CLC, or its chartered local union to repre- pal office located at 1279 Route 46, Parsippany, New sent me for the purposes of collective bargaining, re- Jersey, is engaged in the operation of retail supermarkets specting rates of pay, wages, hours of employment, or within the State of New Jersey. Annually, Respondent's gross revenues exceed $500,000 and, for the same period, Unless otherwise stated, dates in November and December are in it purchased goods and Supplies valued in excess of 1979, and dates in January. February, or thereafter are in 1980, PROGRESSIVE SUPERMARKETS, INC. 515 fits and more onerous working conditions, (2) threaten- $5,000 which were transported to its place of business in ing its employees with discharge if they selected the interstate commerce directly from points outside the Union as their collective-bargaining representative, (3) State of New Jersey and purchased goods valued in informing its employees of the futility of selecting the excess of $50,000 from suppliers located within the State Union as their collective-bargaining representative and of New Jersey, who, in turn, had received said goods di- impliedly promising its employees an improvement in rectly from points outside the State of New Jersey. Re- their wages and benefits if they rejected or refrained spondent admits, and I find, that it is an employer en- from supporting the Union, (4) soliciting employee com- gaged in commerce within the meaning of Section 2(2), plaints and grievances to encourage the employees to re- (6), and (7) of the Act. frain from supporting the Union, (5) discharging Diane Medaska due to her activities on behalf of the Union, (6) 11. THE LABOR ORGANIZATION INVOLVED withholding an annual wage increase and then granting the annual wage increase in an amount greater than in Respondent admits, and I find, that the Union is, and previous years, due to its employees' activities on behalf h a s b e en a t a ll t i m e s material herein, a labor organization of the Union, (7) providing its employees with a lounge within the meaning of Section 2(5) of the Act. and implementing split lunch breaks to discourage its em- ployees from engaging in further activities on behalf of I Il T H E APPROPRIATE UNIT the Union, and (8) refusing to bargain with the Union Respondent admits, and I find, that the appropriate which had been selected by a majority of Respondent's unit herein is all full-time and regular part-time office employees as their collective-bargaining representative in clerical employees employed at Respondent's Parsippany an appropriate unit. office, but excluding confidential employees, professional On February 22, 1980, the Regional Director for employees, guards, all other employees and all supervi- Region 22 issued a Report on Objections and Order Con- sors as defined in the Act. solidating Cases in Case 22-RC-8060 in which he found that the issues raised by the objections were coextensive [V. THE EMPLOYEES INVOLVED with those set forth in the complaint in Case 22-CA- 9686 and he therefore consolidated said objections with The unit involved in this proceeding is Respondent's the unfair labor practice matter, for decision by me. The office employees at its office in Parsippany, New Jersey. objections are as follows: On November 16, 1979, 1 the date the Union simulta- 1. The employer, by its officers and agents, did solicit neously made its request for recognition and filed its pe- grievances from employees and sought methods to cor- tition with the Board, the following 12 office employees rect them in an effort to discourage employees' support were employed by Respondent: Judy Edwards, Dorothy of the petitioning union. Evers, Christine Kelly, Diane Medaska, Linda Packard, 2. The employer, through its officers and agents, spoke Kathleen Piper, Katalin Plant, Nancy Rinaldo, Mary to employees individually on the day before and the day Salink, Rose Marie Scalfani, Bablir Jo Sedicavage, and of the election. During "those one on one" meetings, the Anne Shally. Between November 16 and November 30, employer intimidated, threatened, and coerced employ- Nancy Gerard was hired by Respondent as an office ees in an effort to discourage them from supporting the clerical employee. On December 7, when the parties en- petitioning union. tered into a consent election agreement, they listed these 3. The employer in remarks made at meetings of em- employees on a Norris Thermador list. Lee Cimini, Re- ployees, threatened employees with a loss of their fringe spondent's controller (and an admitted supervisor), to- benefits and dire consequences in the event that the gether with Deborah Huck and Diane Branca, supervise Union succeeded in the election. the work of these employees. To a lesser degree, 4. The employer, on January 4, 1980, did discharge „. j ii a. . a 4. Te eploeron Jnuay 4 190, dd dschrge Edward Gold, Respondent's vice president, and to an Diana Medaska because of her support for the petition- e v ls r d e Wil la Mgi R n d et 's ing union and in an effort to discourage others from p e v e n le sse r d some Wt l l n a m theoflfe Respondenths voting for Local 1262. By these and other acts, the Em-President, spend some time in the office supervising the ployer destroyed the laboratory conditions required by w o r k o f ese employees. the Board in the conduct of a fair electionV. THE UNION'S AUTHORIZATION CARDS AND Upon the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following: The Union obtained a total of 11 authorization cards from these employees. Under the portion of the card the employee fills in, and above the place for signature, the 1. JURISDICTION following legend appears: "hereby authorize United Food & Commercial Workers International Union, Respondent, a New Jersey corporation with its princi- AFL-CIO, CLC, or its chartered local union to repre- pal office located at 1279 Route 46, Parsippany, New sent me for the purposes of collective bargaining, re- Jersey, is engaged in the operation of retail supermarkets specting rates of pay, wages, hours of employment, or within the State of New Jersey. Annually, Respondent's gross revenues exceed $500,000 and, for the same period, Unless otherwise stated, dates in November and December are in it purchased goods and Supplies valued in excess of 1979, and dates in January. February, or thereafter are in 1980, PROGRESSIVE SUPERMARKETS, INC. 515 fits and more onerous working conditions, (2) threaten- $5,000 which were transported to its place of business in ing its employees with discharge if they selected the interstate commerce directly from points outside the Union as their collective-bargaining representative, (3) State of New Jersey and purchased goods valued in informing its employees of the futility of selecting the excess of $50,000 from suppliers located within the State Union as their collective-bargaining representative and of New Jersey, who, in turn, had received said goods di- impliedly promising its employees an improvement in rectly from points outside the State of New Jersey. Re- their wages and benefits if they rejected or refrained spondent admits, and I find, that it is an employer en- from supporting the Union, (4) soliciting employee com- gaged in commerce within the meaning of Section 2(2), plaints and grievances to encourage the employees to re- (6), and (7) of the Act. frain from supporting the Union, (5) discharging Diane Medaska due to her activities on behalf of the Union, (6) 11. THE LABOR ORGANIZATION INVOLVED withholding an annual wage increase and then granting the annual wage increase in an amount greater than in Respondent admits, and I find, that the Union is, and previous years, due to its employees' activities on behalf h a s b e en a t a ll t i m e s material herein, a labor organization of the Union, (7) providing its employees with a lounge within the meaning of Section 2(5) of the Act. and implementing split lunch breaks to discourage its em- ployees from engaging in further activities on behalf of I Il T H E APPROPRIATE UNIT the Union, and (8) refusing to bargain with the Union Respondent admits, and I find, that the appropriate which had been selected by a majority of Respondent's unit herein is all full-time and regular part-time office employees as their collective-bargaining representative in clerical employees employed at Respondent's Parsippany an appropriate unit. office, but excluding confidential employees, professional On February 22, 1980, the Regional Director for employees, guards, all other employees and all supervi- Region 22 issued a Report on Objections and Order Con- sors as defined in the Act. solidating Cases in Case 22-RC-8060 in which he found that the issues raised by the objections were coextensive [V. THE EMPLOYEES INVOLVED with those set forth in the complaint in Case 22-CA- 9686 and he therefore consolidated said objections with The unit involved in this proceeding is Respondent's the unfair labor practice matter, for decision by me. The office employees at its office in Parsippany, New Jersey. objections are as follows: On November 16, 1979, 1 the date the Union simulta- 1. The employer, by its officers and agents, did solicit neously made its request for recognition and filed its pe- grievances from employees and sought methods to cor- tition with the Board, the following 12 office employees rect them in an effort to discourage employees' support were employed by Respondent: Judy Edwards, Dorothy of the petitioning union. Evers, Christine Kelly, Diane Medaska, Linda Packard, 2. The employer, through its officers and agents, spoke Kathleen Piper, Katalin Plant, Nancy Rinaldo, Mary to employees individually on the day before and the day Salink, Rose Marie Scalfani, Bablir Jo Sedicavage, and of the election. During "those one on one" meetings, the Anne Shally. Between November 16 and November 30, employer intimidated, threatened, and coerced employ- Nancy Gerard was hired by Respondent as an office ees in an effort to discourage them from supporting the clerical employee. On December 7, when the parties en- petitioning union. tered into a consent election agreement, they listed these 3. The employer in remarks made at meetings of em- employees on a Norris Thermador list. Lee Cimini, Re- ployees, threatened employees with a loss of their fringe spondent's controller (and an admitted supervisor), to- benefits and dire consequences in the event that the gether with Deborah Huck and Diane Branca, supervise Union succeeded in the election. the work of these employees. To a lesser degree, 4. The employer, on January 4, 1980, did discharge „. .~~n -. - -a a 4. Te eploeron Jnuay 4 190, dd dschrge Edward Gold, Respondent's vice president, and to an Diana Medaska because of her support for the petition- e v ls r d e Wil la Mgi R n d et 's ing union and in an effort to discourage others from p e v e n le sse r d some Wt l l n a m theoflfe Respondenths voting for Local 1262. By these and other acts, the Em-President, spend some time in the office supervising the ployer destroyed the laboratory conditions required by w o r k o f ese employees. the Board in the conduct of a fair electionV. THE UNION'S AUTHORIZATION CARDS AND Upon the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following: The Union obtained a total of 11 authorization cards from these employees. Under the portion of the card the employee fills in, and above the place for signature, the 1. JURISDICTION following legend appears: "hereby authorize United Food & Commercial Workers International Union, Respondent, a New Jersey corporation with its princi- AFL-CIO, CLC, or its chartered local union to repre- pal office located at 1279 Route 46, Parsippany, New sent me for the purposes of collective bargaining, re- Jersey, is engaged in the operation of retail supermarkets specting rates of pay, wages, hours of employment, or within the State of New Jersey. Annually, Respondent's gross revenues exceed $500,000 and, for the same period, Unless otherwise stated, dates in November and December are in it purchased goods and Supplies valued in excess of 1979, and dates in January. February, or thereafter are in 1980, 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other conditions of employment, in accordance with ap- the Union the authority to represent them in trying to plicable law." get a union into the office, that if a majority of the em- On or about November 12, Louis Marcucci, organiz- ployees signed the cards he would request that Cimini ing director for the Union, received a telephone call recognize the Union, but in all likelihood Cimini would from Evers who informed him that Respondent's office not agree to that, and they would then go to an election. employees were interested in being represented by a Edwards testified that Marcucci said that signing the union and would he meet with them. They arranged to cards showed that the employees wanted the Union to meet at a nearby motel after work on November 14. The represent them: employees who were present at this meeting were Evers, Edwards, Plant, Medaska, Packard, Piper, and Branca.2 A. When he gave the cards to us he said that we They spoke with Marcucci who handed out authoriza- needed a majority of the girls to sign the cards if tion cards to them all and each of them signed a card we wanted the union to represent us, that if we got and returned it at that time to Marcucci. a majority it could go into an election. Although acknowledging the existence of these signed Q. That if you got a majority it could go into an cards and others to be discussed infra, Respondent at- election; is that correct? tacks the validity of these cards on the ground that they A. Yes, if the company didn't want it, if they were signed as "election only" cards. Marcucci testified were going to fight it, that if they didn't accept the that he informed the employees that the Union "wanted union after the cards were shown to them, that it the cards so that we could prove to the company that could go possibly into an election. we did represent a majority of the employees. We had intentions of demanding recognition." He also testified Before the conclusion of the meeting the employees that he informed the employees that the first purpose of requested some additional cards from Marcucci to give the card was to use them to seek recognition from Re- to some of the employees who did not attend the meet- spondent and following a rejection of recognition the ing; Evers and Medaska took cards with them. On the Union would use the cards to petition the Labor Board next day, during working hours in the office, Evers gave for an election. Evers testified that Marcucci informed authorization cards to Rinaldo and Sedicavage; they read them that the purpose of the card was to authorize the the cards and returned them to Evers, who returned the Union to represent them and explained the election pro- cards to Marcucci at a luncheon meeting the Union held cedures before the Board. On cross-examination, Me- that day with the employees. Both Sedicavage and Rin- daska, who testified that she had read the authorization aldo were present at the meeting and Marcucci showed card, testified that Marcucci said that after the cards them their signed authorization cards and asked them if were signed a petition would be filed and a secret-ballot they had signed them and they said they had. election would be held. In answer to a question from me, On the same day, also during working hours in the she testified that she was informed that the signing of the office, Medaska handed authorization cards to Kelly and cards "showed that the majority of us in the office did Salink; she explained to them that the purpose of the want the union to represent us, and that this would bring cards was to get the Union to represent them and they about an election, and a final decision." On redirect, in would probably have to go to an election if the Compa- answer to the question: "Did he indicate to you under ny would not accept the cards. She also told them to what circumstances an election might be held?" She an- read the cards and return them to her. Kelly and Salink swered: "If the Company would not agree to just the took the cards into the back room of the office and re- cards." Plant testified as follows: "Mr. Marcucci ex- turned them signed to Medaska later in the day. Medaska plained to us that through the signing of the cards we then gave these cards to Evers who returned them to would be authorizing the union to represent us, and Marcucci about 5 p.m. that same day. That evening, using those cards they would have to go and make a Marcucci called Kelly and Salink at home, told them demand for recognition. But if that didn't work, then we that he had received their signed authorization cards, would have to go on to an election." Piper testified as and asked them if they had signed the cards and they follows: "He said that this would authorize the union to said that they had. go into the office to find out-to let them know that the Gerard began her employ with Respondent on No- girls wanted a union. This would authorize him to send vember 19. Medaska gave her an authorization card someone in to petition the company to get the union in, during a break and told her it was for the purpose of and if it got to the point where they would not accept having the Union represent them. Gerard read the card, the petition or the request, or whatever it's called, that it signed it, and returned it to Medaska who then gave it to would go into an election so many days after this partic- Evers. At a meeting the Union held with the employees ular presentation." Packard testified that Marcucci told on November 21, Evers gave the card to Marcucci; them that by signing the cards the employees would give Gerard was present at this meeting and Marcucci showed her the card and asked her whether she had 'Upon noticing that Branca set forth "accounts payable supervisor" as signed it and she said that she had. her position on the authorization card she signed, Marcucci had her In Cumberland Shoe Corporation, 144 NLRB 1268 speak to the Union's attorney and when he was satisfied that she was a (1963), the Board stated that unambiguous cards or supervisor within the meaning of the Act, he informed her not to come "single purpose cards" which state that the purpose of to the meetings between the Union and the employees and not to take an active part in the Union's organizational activities at Respondent. Branca the card is to authorize the union to represent them for did not solicit any union cards from employees. collective bargaining, and do not state that the purpose is 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other conditions of employment, in accordance with ap- the Union the authority to represent them in trying to plicable law." get a union into the office, that if a majority of the em- On or about November 12, Louis Marcucci, organiz- ployees signed the cards he would request that Cimini ing director for the Union, received a telephone call recognize the Union, but in all likelihood Cimini would from Evers who informed him that Respondent's office not agree to that, and they would then go to an election. employees were interested in being represented by a Edwards testified that Marcucci said that signing the union and would he meet with them. They arranged to cards showed that the employees wanted the Union to meet at a nearby motel after work on November 14. The represent them: employees who were present at this meeting were Evers, Edwards, Plant, Medaska, Packard, Piper, and Branca. 2'A. When he gave the cards to us he said that we They spoke with Marcucci who handed out authoriza- needed a majority of the girls to sign the cards if tion cards to them all and each of them signed a card we wanted the union to represent us, that if we got and returned it at that time to Marcucci. a majority it could go into an election. Although acknowledging the existence of these signed Q. That if you got a majority it could go into an cards and others to be discussed infra, Respondent at- election; is that correct? tacks the validity of these cards on the ground that they A. Yes, if the company didn't want it, if they were signed as "election only" cards. Marcucci testified were going to fight it, that if they didn't accept the that he informed the employees that the Union "wanted union after the cards were shown to them, that it the cards so that we could prove to the company that could go possibly into an election. we did represent a majority of the employees. We had intentions of demanding recognition." He also testified Before the conclusion of the meeting the employees that he informed the employees that the first purpose of requested some additional cards from Marcucci to give the card was to use them to seek recognition from Re- to some of the employees who did not attend the meet- spondent and following a rejection of recognition the ing; Evers and Medaska took cards with them. On the Union would use the cards to petition the Labor Board next day, during working hours in the office, Evers gave for an election. Evers testified that Marcucci informed authorization cards to Rinaldo and Sedicavage; they read them that the purpose of the card was to authorize the the cards and returned them to Evers, who returned the Union to represent them and explained the election pro- cards to Marcucci at a luncheon meeting the Union held cedures before the Board. On cross-examination, Me- that day with the employees. Both Sedicavage and Rin- daska, who testified that she had read the authorization aldo were present at the meeting and Marcucci showed card, testified that Marcucci said that after the cards th e m t h ei r signed authorization cards and asked them if were signed a petition would be filed and a secret-ballot they had signed them and they said they had. election would be held. In answer to a question from me, On the same day, also during working hours in the she testified that she was informed that the signing of the office, Medaska handed authorization cards to Kelly and cards "showed that the majority of us in the office did Salink; she explained to them that the purpose of the want the union to represent us, and that this would bring cards was to get the Union to represent them and they about an election, and a final decision." On redirect, in would probably have to go to an election if the Compa- answer to the question: "Did he indicate to you under ny would not accept the cards. She also told them to what circumstances an election might be held?" She an- read the cards and return them to her. Kelly and Salink swered: "If the Company would not agree to just the took the cards into the back room of the office and re- cards." Plant testified as follows: "Mr. Marcucci ex- turned them signed to Medaska later in the day. Medaska plained to us that through the signing of the cards we then gave these cards to Evers who returned them to would be authorizing the union to represent us, and Marcucci about 5 p.m. that same day. That evening, using those cards they would have to go and make a Marcucci called Kelly and Salink at home, told them demand for recognition. But if that didn't work, then we that he had received their signed authorization cards, would have to go on to an election." Piper testified as a nd asked them if they had signed the cards and they follows: "He said that this would authorize the union to said that they had. go into the office to find out-to let them know that the Gerard began her employ with Respondent on No- girls wanted a union. This would authorize him to send vember 19. Medaska gave her an authorization card someone in to petition the company to get the union in, during a break and told her it was for the purpose of and if it got to the point where they would not accept having the Union represent them. Gerard read the card, the petition or the request, or whatever it's called, that it signed it, and returned it to Medaska who then gave it to would go into an election so many days after this partic- Evers. At a meeting the Union held with the employees ular presentation." Packard testified that Marcucci told on November 21, Evers gave the card to Marcucci; them that by signing the cards the employees would give Gerard was present at this meeting and Marcucci showed her the card and asked her whether she had 'Upon noticing that Branca set forth "accounts payable supervisor" as signed it and she said that she had. her position on the authorization card she signed, Marcucci had her In Cumberland Shoe Corporation, 144 NLRB 1268 speak to the Union's attorney and when he was satisfied that she was a (1963), the Board Stated that Unambiguous Cards or supervisor within the meaning of the Act, he informed her not to come "single purpose cards" which state that the purpose of to the meetings between the Union and the employees and not to take an active part in the Union's organizational activities at Respondent. Branca the card is to authorize the union to represent them for did not solicit any union cards from employees. collective bargaining, and do not state that the purpose is 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other conditions of employment, in accordance with ap- the Union the authority to represent them in trying to plicable law." get a union into the office, that if a majority of the em- On or about November 12, Louis Marcucci, organiz- ployees signed the cards he would request that Cimini ing director for the Union, received a telephone call recognize the Union, but in all likelihood Cimini would from Evers who informed him that Respondent's office not agree to that, and they would then go to an election. employees were interested in being represented by a Edwards testified that Marcucci said that signing the union and would he meet with them. They arranged to cards showed that the employees wanted the Union to meet at a nearby motel after work on November 14. The represent them: employees who were present at this meeting were Evers, Edwards, Plant, Medaska, Packard, Piper, and Branca. 2'A. When he gave the cards to us he said that we They spoke with Marcucci who handed out authoriza- needed a majority of the girls to sign the cards if tion cards to them all and each of them signed a card we wanted the union to represent us, that if we got and returned it at that time to Marcucci. a majority it could go into an election. Although acknowledging the existence of these signed Q. That if you got a majority it could go into an cards and others to be discussed infra, Respondent at- election; is that correct? tacks the validity of these cards on the ground that they A. Yes, if the company didn't want it, if they were signed as "election only" cards. Marcucci testified were going to fight it, that if they didn't accept the that he informed the employees that the Union "wanted union after the cards were shown to them, that it the cards so that we could prove to the company that could go possibly into an election. we did represent a majority of the employees. We had intentions of demanding recognition." He also testified Before the conclusion of the meeting the employees that he informed the employees that the first purpose of requested some additional cards from Marcucci to give the card was to use them to seek recognition from Re- to some of the employees who did not attend the meet- spondent and following a rejection of recognition the ing; Evers and Medaska took cards with them. On the Union would use the cards to petition the Labor Board next day, during working hours in the office, Evers gave for an election. Evers testified that Marcucci informed authorization cards to Rinaldo and Sedicavage; they read them that the purpose of the card was to authorize the the cards and returned them to Evers, who returned the Union to represent them and explained the election pro- cards to Marcucci at a luncheon meeting the Union held cedures before the Board. On cross-examination, Me- that day with the employees. Both Sedicavage and Rin- daska, who testified that she had read the authorization aldo were present at the meeting and Marcucci showed card, testified that Marcucci said that after the cards th e m t h ei r signed authorization cards and asked them if were signed a petition would be filed and a secret-ballot they had signed them and they said they had. election would be held. In answer to a question from me, On the same day, also during working hours in the she testified that she was informed that the signing of the office, Medaska handed authorization cards to Kelly and cards "showed that the majority of us in the office did Salink; she explained to them that the purpose of the want the union to represent us, and that this would bring cards was to get the Union to represent them and they about an election, and a final decision." On redirect, in would probably have to go to an election if the Compa- answer to the question: "Did he indicate to you under ny would not accept the cards. She also told them to what circumstances an election might be held?" She an- read the cards and return them to her. Kelly and Salink swered: "If the Company would not agree to just the took the cards into the back room of the office and re- cards." Plant testified as follows: "Mr. Marcucci ex- turned them signed to Medaska later in the day. Medaska plained to us that through the signing of the cards we then gave these cards to Evers who returned them to would be authorizing the union to represent us, and Marcucci about 5 p.m. that same day. That evening, using those cards they would have to go and make a Marcucci called Kelly and Salink at home, told them demand for recognition. But if that didn't work, then we that he had received their signed authorization cards, would have to go on to an election." Piper testified as a nd asked them if they had signed the cards and they follows: "He said that this would authorize the union to said that they had. go into the office to find out-to let them know that the Gerard began her employ with Respondent on No- girls wanted a union. This would authorize him to send vember 19. Medaska gave her an authorization card someone in to petition the company to get the union in, during a break and told her it was for the purpose of and if it got to the point where they would not accept having the Union represent them. Gerard read the card, the petition or the request, or whatever it's called, that it signed it, and returned it to Medaska who then gave it to would go into an election so many days after this partic- Evers. At a meeting the Union held with the employees ular presentation." Packard testified that Marcucci told on November 21, Evers gave the card to Marcucci; them that by signing the cards the employees would give Gerard was present at this meeting and Marcucci showed her the card and asked her whether she had 'Upon noticing that Branca set forth "accounts payable supervisor" as signed it and she said that she had. her position on the authorization card she signed, Marcucci had her In Cumberland Shoe Corporation, 144 NLRB 1268 speak to the Union's attorney and when he was satisfied that she was a (1963), the Board Stated that Unambiguous Cards or supervisor within the meaning of the Act, he informed her not to come "single purpose cards" which state that the purpose of to the meetings between the Union and the employees and not to take an active part in the Union's organizational activities at Respondent. Branca the card is to authorize the union to represent them for did not solicit any union cards from employees. collective bargaining, and do not state that the purpose is 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other conditions of employment, in accordance with ap- the Union the authority to represent them in trying to plicable law." get a union into the office, that if a majority of the em- On or about November 12, Louis Marcucci, organiz- ployees signed the cards he would request that Cimini ing director for the Union, received a telephone call recognize the Union, but in all likelihood Cimini would from Evers who informed him that Respondent's office not agree to that, and they would then go to an election. employees were interested in being represented by a Edwards testified that Marcucci said that signing the union and would he meet with them. They arranged to cards showed that the employees wanted the Union to meet at a nearby motel after work on November 14. The represent them: employees who were present at this meeting were Evers, Edwards, Plant, Medaska, Packard, Piper, and Branca. 2'A. When he gave the cards to us he said that we They spoke with Marcucci who handed out authoriza- needed a majority of the girls to sign the cards if tion cards to them all and each of them signed a card we wanted the union to represent us, that if we got and returned it at that time to Marcucci. a majority it could go into an election. Although acknowledging the existence of these signed Q. That if you got a majority it could go into an cards and others to be discussed infra, Respondent at- election; is that correct? tacks the validity of these cards on the ground that they A. Yes, if the company didn't want it, if they were signed as "election only" cards. Marcucci testified were going to fight it, that if they didn't accept the that he informed the employees that the Union "wanted union after the cards were shown to them, that it the cards so that we could prove to the company that could go possibly into an election. we did represent a majority of the employees. We had intentions of demanding recognition." He also testified Before the conclusion of the meeting the employees that he informed the employees that the first purpose of requested some additional cards from Marcucci to give the card was to use them to seek recognition from Re- to some of the employees who did not attend the meet- spondent and following a rejection of recognition the ing; Evers and Medaska took cards with them. On the Union would use the cards to petition the Labor Board next day, during working hours in the office, Evers gave for an election. Evers testified that Marcucci informed authorization cards to Rinaldo and Sedicavage; they read them that the purpose of the card was to authorize the the cards and returned them to Evers, who returned the Union to represent them and explained the election pro- cards to Marcucci at a luncheon meeting the Union held cedures before the Board. On cross-examination, Me- that day with the employees. Both Sedicavage and Rin- daska, who testified that she had read the authorization aldo were present at the meeting and Marcucci showed card, testified that Marcucci said that after the cards th e m t h ei r signed authorization cards and asked them if were signed a petition would be filed and a secret-ballot they had signed them and they said they had. election would be held. In answer to a question from me, On the same day, also during working hours in the she testified that she was informed that the signing of the office, Medaska handed authorization cards to Kelly and cards "showed that the majority of us in the office did Salink; she explained to them that the purpose of the want the union to represent us, and that this would bring cards was to get the Union to represent them and they about an election, and a final decision." On redirect, in would probably have to go to an election if the Compa- answer to the question: "Did he indicate to you under ny would not accept the cards. She also told them to what circumstances an election might be held?" She an- read the cards and return them to her. Kelly and Salink swered: "If the Company would not agree to just the took the cards into the back room of the office and re- cards." Plant testified as follows: "Mr. Marcucci ex- turned them signed to Medaska later in the day. Medaska plained to us that through the signing of the cards we then gave these cards to Evers who returned them to would be authorizing the union to represent us, and Marcucci about 5 p.m. that same day. That evening, using those cards they would have to go and make a Marcucci called Kelly and Salink at home, told them demand for recognition. But if that didn't work, then we that he had received their signed authorization cards, would have to go on to an election." Piper testified as a nd asked them if they had signed the cards and they follows: "He said that this would authorize the union to said that they had. go into the office to find out-to let them know that the Gerard began her employ with Respondent on No- girls wanted a union. This would authorize him to send vember 19. Medaska gave her an authorization card someone in to petition the company to get the union in, during a break and told her it was for the purpose of and if it got to the point where they would not accept having the Union represent them. Gerard read the card, the petition or the request, or whatever it's called, that it signed it, and returned it to Medaska who then gave it to would go into an election so many days after this partic- Evers. At a meeting the Union held with the employees ular presentation." Packard testified that Marcucci told on November 21, Evers gave the card to Marcucci; them that by signing the cards the employees would give Gerard was present at this meeting and Marcucci showed her the card and asked her whether she had 'Upon noticing that Branca set forth "accounts payable supervisor" as signed it and she said that she had. her position on the authorization card she signed, Marcucci had her In Cumberland Shoe Corporation, 144 NLRB 1268 speak to the Union's attorney and when he was satisfied that she was a (1963), the Board Stated that Unambiguous Cards or supervisor within the meaning of the Act, he informed her not to come "single purpose cards" which state that the purpose of to the meetings between the Union and the employees and not to take an active part in the Union's organizational activities at Respondent. Branca the card is to authorize the union to represent them for did not solicit any union cards from employees. collective bargaining, and do not state that the purpose is PROGRESSIVE SUPERMARKETS, INC. 517 to seek an election, will be counted unless it is proven sents a majority of these employees and you are that the employee was told that the card was to be used hereby cautioned against entering into any contract solely for the purpose of obtaining an election. This ap- or negotiating with any person or organization pre- proach was approved by the Supreme Court for "single suming to act as agent for, or in behalf of, any such purpose cards" in N.LR.B. v. Gissel Packing Co., Inc., employees. 395 U.S. 575, 606 (1969) whence it stated that "employ- ees should be bound by the clear language of what they Cimini told Parente that he did not have the authority to sign unless that language is deliberately and clearly can- recognize the Union, that Gold would have to do that, celled by a union adherent with words calculated to but that Gold was not in the office. Cimini requested to direct the signer to disregard and forget the language see the authorization cards, but Parente declined the re- above his signature." quest. Parente left without making an appointment to see The authorization cards herein refer only to union rep- Gold. resentation and are therefore "single purpose cards." Al- At the same time, Marcucci was waiting at the Board's though the testimony of the card signers and solicitors office in Newark, petition in hand. Based upon arrange- was not as exact as a purist in labor law would desire, it ments previously made, Parente called the Union's office is clear that the employees were told that the purpose of and left a message at the switchboard that the Union's the card was to designate the Union to represent them emand for recognition had been denied. Marcucci then and that there would be an election only if Respondent called the Union's office, was informed of Parente's mes- refused to voluntarily recognize the Union on the basis sage and filed a petition with the Board covering the in- of these cards. The cards were therefore a valid designa- stant unit. On the same day, the Union sent a telegram to tion of the Union as their collective-bargaining repre- Respondent, to the attention of Cimini, demanding rec- sentative. basis of these cards the Union was desigognition in the unit involved herein. The telegram states On the basis of these cards the Union was designated that the Union was prepared to demonstrate its majority as the collective- bargaining representative of 10 out of that the Uion was petitio d todemonstrate its majority the 12 employees in the unit as of November 16; on No- status and that a petition had been filed that da The vember 21, when Gerard signed her card, the Union had elegram also requests an immediate response from Re- 11 designations out of 13 unit employees. Therefore, spondent. There was no response to the telegram until during this period, the Union was clearly designated as the parties entered into the consent election agreement the collective-bargaining representative of a majority of on December 7. the employees in appropriate unit-Respondent's office I find that the Union's actions on November 16 consti- employees. tute a valid request for recognition. Although Cimini was, in all probability, not the proper person from whom VI. THE REQUEST FOR RECOGNITION to demand recognition, he was, admittedly, an agent of Respondent and Parente left with him the Union's On November 16, Michael Parente, the Union's busi- and Parente left with him the Unions ness agent, went to Respondent's office. He met Cimini, demand for recognition. Even if that were not a suffi- informed him that the Union represented a majority of cient request (and I find that it was) the Union's telegram the employees and wanted to be recognized as their bar- to Respondent certainly was sufficient. gaining agent. He also handed Cimini a letter from the Union to Respondent, entitled "Demand For Recogni- tion" dated that day, stating: Between December 7 and January, Respondent sent four letters to its employees; in addition, Cimini made Dear Sir: one speech and Gold made two speeches to Respond- This is to advise you that a majority of your em- ent's employees, in addition to speaking to a number of ployees in an appropriate unit of clerical employees employees individually. As the General Counsel alleges located at Progressive Supermarkets, 1279 Route that the speeches and meetings with the employees, com- 46, Parsippany, New Jersey, have designated Retail bined with the contents of the letters, constitute the Store Employees Union, Local 1262 as their exclu- unfair labor practices and objectionable conduct herein sive representative for the purpose of collective bar- (together with the termination of Medaska) it is neces- gaining. The bargaining unit consists of all regular sary to set forth the letters verbatim. The letters are full-time and part-time employees except supervisors dated December 13, December 21, December 28, and and confidentials, as defined in the National Labor January 7, were all prepared by Respondent's counsel Relations Act of 1947, as amended. We accordingly and retyped on Respondent's stationery, were signed by demand recognition in behalf of such employees. Cimini, and end with a "Yes" and a "No" box, with an We offer to prove our majority status by submit- X in the "NO" box. ting signed authorization cards to be checked against your payroll by a mutually selected impar- A. The Letters tial person. It is the desire of this union to institute To Our Employees: negotiations with you immediately to work out an agreement on a contract which will set forth wages, ' At the election conducted on January 10, there were five votes for hours and other terms and conditions of employ- the Union and six votes against. One ballot (that of Medaska) was chal- ment. No other person or organization now repre- lenged, but was not determinative. PROGRESSIVE SUPERMARKETS, INC. 517 to seek an election, will be counted unless it is proven sents a majority of these employees and you are that the employee was told that the card was to be used hereby cautioned against entering into any contract solely for the purpose of obtaining an election. This ap- or negotiating with any person or organization pre- proach was approved by the Supreme Court for "single suming to act as agent for, or in behalf of, any such purpose cards" in N.L.R.B. v. Gissel Packing Co., Inc., employees. 395 U.S. 575, 606 (1969) whence it stated that "employ- ees should be bound by the clear language of what they Cimini told Parente that he did not have the authority to sign unless that language is deliberately and clearly can- recognize the Union, that Gold would have to do that, celled by a union adherent with words calculated to but that Gold was not in the office. Cimini requested to direct the signer to disregard and forget the language see the authorization cards, but Parente declined the re- above his signature." quest. Parente left without making an appointment to see The authorization cards herein refer only to union rep- Gold. resentation and are therefore "single purpose cards." Al- At the same time, Marcucci was waiting at the Board's though the testimony of the card signers and solicitors office in Newark, petition in hand. Based upon arrange- was not as exact as a purist in labor law would desire, it ments previously made, Parente called the Union's office is clear that the employees were told that the purpose of and left a message at the switchboard that the Union's the card was to designate the Union to represent them demand for recognition had been denied. Marcucci then and that there would be an election only if Respondent called the Union's office, was informed of Parente's mes- refused to voluntarily recognize the Union on the basis sage and filed a petition with the Board covering the in- of these cards. The cards were therefore a valid designa- s u On t s Union sent a telegram to settanve as ecollective-bargaining repre- Respondent, to the attention of Cimini, demanding rec- sentative. bssoteeadthUinwseint o g n it i o n in t h e u n it in v o l v ed h e r ei n . T h e t ele g r a m s t at es On the basis of these cards the Union was designated ththeUinwsppadtoemsrtetsajiy as the collective- bargaining representative of 10 out of st h at t h e U tao n w a s petition t o h d e m o n st r a t i lt s h m td o a. t y the 12 employees in the unit as of November 16; on No- s t at u s an d t h a t a prequest ha d b e en f d le d t h a t from T h e vember 21, when Gerard signed her card, the Union had elegram also requests an immediate response from Re- 11 designations out of 13 unit employees. Therefore, spondent. There was no response to the telegram until during this period, the Union was clearly designated as t h e parties e n t er ed in to t h e consent election agreement the collective-bargaining representative of a majority of o n December 7.3 the employees in appropriate unit-Respondent's office I fi nd th a t the Union's actions on November 16 consti- employees. t u t e a valid request for recognition. Although Cimini was, in all probability, not the proper person from whom VI. THE REQUEST FOR RECOGNITION to demand recognition, he was, admittedly, an agent of On November 16, Michael Parente, the Union's busi- Rponden an d Parente left with him the Unions ness agent, went to Respondent's office. He met Cimini, dem an d fo r r ec og n itio n . E v en if t h at w e r e n o t a s uf i - informed him that the Union represented a majority of cien t request (an d I fin d t h a t it w a s) t h e Uni o n 's telegram the employees and wanted to be recognized as their bar- t o Respondent certainly was sufficient. gaining agent. He also handed Cimini a letter from the Union to Respondent, entitled "Demand For Recogni- tion" dated that day, stating: Between December 7 and January, Respondent sent four letters to its employees; in addition, Cimini made Dear Sir: one speech and Gold made two speeches to Respond- This is to advise you that a majority of your em- en t's employees, in addition to speaking to a number of ployees in an appropriate unit of clerical employees employees individually. As the General Counsel alleges located at Progressive Supermarkets, 1279 Route t h at t h e speeches and meetings with the employees, com- 46, Parsippany, New Jersey, have designated Retail bined with the contents of the letters, constitute the Store Employees Union, Local 1262 as their exclu- unfair labor practices and objectionable conduct herein sive representative for the purpose of collective bar- (together with the termination of Medaska) it is neces- gaining. The bargaining unit consists of all regular sary to set forth the letters verbatim. The letters are full-time and part-time employees except supervisors dated December 13, December 21, December 28, and and confidentials, as defined in the National Labor January 7, were all prepared by Respondent's counsel Relations Act of 1947, as amended. We accordingly and retyped on Respondent's stationery, were signed by demand recognition in behalf of such employees. Cimini, and end with a "Yes" and a "No" box, with an We offer to prove our majority status by submit- X in the "NO" box. ting signed authorization cards to be checked against your payroll by a mutually selected impar- A. The Letters tial person. It is the desire of this union to instituteTO pI negotiations with you immediately to work out an agreement on a contract which will set forth wages, At the election conducted on January 10, there were rive votes for hours and Other terms and conditions Of employ- the Union and six votes against. One ballot (that of Medaska) was chal- ment. No other person or organization now repre- lenged, but was not determinative. PROGRESSIVE SUPERMARKETS, INC. 517 to seek an election, will be counted unless it is proven sents a majority of these employees and you are that the employee was told that the card was to be used hereby cautioned against entering into any contract solely for the purpose of obtaining an election. This ap- or negotiating with any person or organization pre- proach was approved by the Supreme Court for "single suming to act as agent for, or in behalf of, any such purpose cards" in N.L.R.B. v. Gissel Packing Co., Inc., employees. 395 U.S. 575, 606 (1969) whence it stated that "employ- ees should be bound by the clear language of what they Cimini told Parente that he did not have the authority to sign unless that language is deliberately and clearly can- recognize the Union, that Gold would have to do that, celled by a union adherent with words calculated to but that Gold was not in the office. Cimini requested to direct the signer to disregard and forget the language see the authorization cards, but Parente declined the re- above his signature." quest. Parente left without making an appointment to see The authorization cards herein refer only to union rep- Gold. resentation and are therefore "single purpose cards." Al- At the same time, Marcucci was waiting at the Board's though the testimony of the card signers and solicitors office in Newark, petition in hand. Based upon arrange- was not as exact as a purist in labor law would desire, it ments previously made, Parente called the Union's office is clear that the employees were told that the purpose of and left a message at the switchboard that the Union's the card was to designate the Union to represent them demand for recognition had been denied. Marcucci then and that there would be an election only if Respondent called the Union's office, was informed of Parente's mes- refused to voluntarily recognize the Union on the basis sage and filed a petition with the Board covering the in- of these cards. The cards were therefore a valid designa- s u On t s Union sent a telegram to settanve as ecollective-bargaining repre- Respondent, to the attention of Cimini, demanding rec- sentative. bssoteeadthUinwseint o g n it i o n in t h e u n it in v o l v ed h e r ei n . T h e t ele g r a m s t at es On the basis of these cards the Union was designated ththeUinwsppadtoemsrtetsajiy as the collective- bargaining representative of 10 out of st h at t h e U tao n w a s petition t o h d e m o n st r a t i it s h m aj o r d t y the 12 employees in the unit as of November 16; on No- s t at u s an d t h a t a prequest ha d b e en f d le d t h a t from T h e vember 21, when Gerard signed her card, the Union hadtelegram also requests an immediate response from Re- 11 designations out of 13 unit employees. Therefore, spondent. There was no response to the telegram until during this period, the Union was clearly designated as t h e parties e n t er ed in to t h e consent election agreement the collective-bargaining representative of a majority of o n December 7.3 the employees in appropriate unit-Respondent's office I fi nd th a t the Union's actions on November 16 consti- employees. tute a valid request for recognition. Although Cimini was, in all probability, not the proper person from whom VI. THE REQUEST FOR RECOGNITION to demand recognition, he was, admittedly, an agent of On November 16, Michael Parente, the Union's busi- Rponden an d Parente left with him the Unions ness agent, went to Respondent's office. He met Cimini, dem an d fo r r ec og n itio n . E v en if t h at w e r e n o t a s uf i - informed him that the Union represented a majority of cien t request (an d I fin d t h a t it w a s) t h e Uni o n 's telegram the employees and wanted to be recognized as their bar- t o Respondent certainly was sufficient. gaining agent. He also handed Cimini a letter from the Union to Respondent, entitled "Demand For Recogni- tion" dated that day, stating: Between December 7 and January, Respondent sent four letters to its employees; in addition, Cimini made Dear Sir: one speech and Gold made two speeches to Respond- This is to advise you that a majority of your em- en t's employees, in addition to speaking to a number of ployees in an appropriate unit of clerical employees employees individually. As the General Counsel alleges located at Progressive Supermarkets, 1279 Route that the speeches and meetings with the employees, com- 46, Parsippany, New Jersey, have designated Retail bined with the contents of the letters, constitute the Store Employees Union, Local 1262 as their exclu- unfair labor practices and objectionable conduct herein sive representative for the purpose of collective bar- (together with the termination of Medaska) it is neces- gaining. The bargaining unit consists of all regular sary to set forth the letters verbatim. The letters are full-time and part-time employees except supervisors dated December 13, December 21, December 28, and and confidentials, as defined in the National Labor January 7, were all prepared by Respondent's counsel Relations Act of 1947, as amended. We accordingly and retyped on Respondent's stationery, were signed by demand recognition in behalf of such employees. Cimini, and end with a "Yes" and a "No" box, with an We offer to prove our majority status by submit- X in the "NO" box. ting signed authorization cards to be checked against your payroll by a mutually selected impar- A. The Letters tial person. It is the desire of this union to instituteTO pI negotiations with you immediately to work out an agreement on a contract which will set forth wages, At the election conducted on January 10, there were rive votes for hours and Other terms and conditions Of employ- the Union and six votes against. One ballot (that of Medaska) was chal- ment. No other person or organization now repre- lenged, but was not determinative. PROGRESSIVE SUPERMARKETS, INC. 517 to seek an election, will be counted unless it is proven sents a majority of these employees and you are that the employee was told that the card was to be used hereby cautioned against entering into any contract solely for the purpose of obtaining an election. This ap- or negotiating with any person or organization pre- proach was approved by the Supreme Court for "single suming to act as agent for, or in behalf of, any such purpose cards" in N.L.R.B. v. Gissel Packing Co., Inc., employees. 395 U.S. 575, 606 (1969) whence it stated that "employ- ees should be bound by the clear language of what they Cimini told Parente that he did not have the authority to sign unless that language is deliberately and clearly can- recognize the Union, that Gold would have to do that, celled by a union adherent with words calculated to but that Gold was not in the office. Cimini requested to direct the signer to disregard and forget the language see the authorization cards, but Parente declined the re- above his signature." quest. Parente left without making an appointment to see The authorization cards herein refer only to union rep- Gold. resentation and are therefore "single purpose cards." Al- At the same time, Marcucci was waiting at the Board's though the testimony of the card signers and solicitors office in Newark, petition in hand. Based upon arrange- was not as exact as a purist in labor law would desire, it ments previously made, Parente called the Union's office is clear that the employees were told that the purpose of and left a message at the switchboard that the Union's the card was to designate the Union to represent them demand for recognition had been denied. Marcucci then and that there would be an election only if Respondent called the Union's office, was informed of Parente's mes- refused to voluntarily recognize the Union on the basis sage and filed a petition with the Board covering the in- of these cards. The cards were therefore a valid designa- s u On t s Union sent a telegram to settanve as ecollective-bargaining repre- Respondent, to the attention of Cimini, demanding rec- sentative. bssoteeadthUinwseint o g n it i o n in t h e u n it in v o l v ed h e r ei n . T h e t ele g r a m s t at es On the basis of these cards the Union was designated ththeUinwsppadtoemsrtetsajiy as the collective- bargaining representative of 10 out of st h at t h e U tao n w a s petition t o h d e m o n st r a t i lt s h m td o a. t y the 12 employees in the unit as of November 16; on No- s t at u s an d t h a t a prequest ha d b e en f d le d t h a t from T h e vember 21, when Gerard signed her card, the Union hadtelegram also requests an immediate response from Re- 11 designations out of 13 unit employees. Therefore, spondent. There was no response to the telegram until during this period, the Union was clearly designated as t h e parties e n t er ed in to t h e consent election agreement the collective-bargaining representative of a majority of o n December 7.3 the employees in appropriate unit-Respondent's office I fi nd that the Union's actions on November 16 consti- employees. tute a valid request for recognition. Although Cimini was, in all probability, not the proper person from whom VI. THE REQUEST FOR RECOGNITION to demand recognition, he was, admittedly, an agent of On November 16, Michael Parente, the Union's busi- Rponden an d Parente left with him the Unions ness agent, went to Respondent's office. He met Cimini, dem an d fo r r ec og n itio n . E v en if t h at w e r e n o t a s uf i - informed him that the Union represented a majority of cien t request (an d I fin d t h a t it w a s) t h e Uni o n 's telegram the employees and wanted to be recognized as their bar- t o Respondent certainly was sufficient. gaining agent. He also handed Cimini a letter from the Union to Respondent, entitled "Demand For Recogni- tion" dated that day, stating: Between December 7 and January, Respondent sent four letters to its employees; in addition, Cimini made Dear Sir: one speech and Gold made two speeches to Respond- This is to advise you that a majority of your em- en t's employees, in addition to speaking to a number of ployees in an appropriate unit of clerical employees employees individually. As the General Counsel alleges located at Progressive Supermarkets, 1279 Route that the speeches and meetings with the employees, com- 46, Parsippany, New Jersey, have designated Retail bined with the contents of the letters, constitute the Store Employees Union, Local 1262 as their exclu- unfair labor practices and objectionable conduct herein sive representative for the purpose of collective bar- (together with the termination of Medaska) it is neces- gaining. The bargaining unit consists of all regular sary to set forth the letters verbatim. The letters are full-time and part-time employees except supervisors dated December 13, December 21, December 28, and and confidentials, as defined in the National Labor January 7, were all prepared by Respondent's counsel Relations Act of 1947, as amended. We accordingly and retyped on Respondent's stationery, were signed by demand recognition in behalf of such employees. Cimini, and end with a "Yes" and a "No" box, with an We offer to prove our majority status by submit- X in the "NO" box. ting signed authorization cards to be checked against your payroll by a mutually selected impar- A. The Letters tial person. It is the desire of this union to instituteTO pI negotiations with you immediately to work out an agreement on a contract which will set forth wages, At the election conducted on January 10, there were rive votes for hours and Other terms and conditions Of employ- the Union and six votes against. One ballot (that of Medaska) was chal- ment. No other person or organization now repre- lenged, but was not determinative. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As you know, on Thursday, January 10, 1980, nity to vote in freedom and by secret ballot. No the National Labor Relations Board will hold a matter what commitment you may have made, ver- secret ballot election among the Company's office bally or in writing, to any union representative or employees. The purpose of this election is to deter- to any fellow employee, no matter what you may mine whether or not you want to be represented by have done or said in advance of the election, you Retail Clerks Local 1262. are entirely free to vote as you please. In a very real sense, you will be deciding wheth- er you want to turn over your most important af- 5. Q. Can the union guarantee me an increase in fairs to union officials about whom you know very wages or any other benefit? little and who represent primarily store employees. A. No. Only the Company can give you more I feel sure you want to make this vital decision money. It is the Company that furnishes your job based on the facts and not campaign talk or worth- and your paycheck-not a union. A union will less promises. The Company is sincerely convinced never furnish you a day's work or a cent of pay. that a union would not be in your best interests, and during the next few weeks we intend to submit to 6. Q. If the union wins the election, will the law you facts clearly showing the soundness of this po- compel the Company to reach an agreement with sition. the union? The following answers to questions often asked A. Absolutely not! The Company does not have by employees have been prepared to provide accu- to agree to a single thing the union proposes so rate information on which you can make a sound long as we bargain in good faith. The law itself pro- decision as to whether or not you want a union to vides that bargaining in good faith does not require act and speak for you. We want to be sure that you the Company to agree to any union demands or to are not misled by any false claims or empty prom- make any concessions to the union. Thus, we do not ises from union representatives. It is only right and have to sign any contract which we don't believe to fair that you should know the truth on the whole be in the Company's best interest. There is no law matter before you make up your mind. that forces us to agree with the views and demands 1. Q. Will I lose my job in the event the union is of the union. rejected and I may have signed a union authoriza- 7. Q. If the union wins the election, will we auto- tion card or was active in behalf of the union? matically get the things the union has been prom- A. Positively not! The Company will not penal- ising, such as the retail clerks store contract? ize, punish or discriminate against employees be- A. No. Even if the union wins an NLRB elec- cause they signed union cards. No matter how tion nothing happens automatically. The union unwise we think it is that you may have signed a could ask for anything, but as long as we bargain in card, no employee will suffer at the hands of the good faith, the Company does not have to give in Company because of his union activity. And if to any demand which we believe would not be anyone has told you anything contrary to this- good business practice or might be harmful to the whether he be a union organizer or a fellow em- Company or its employees. Thus, there is no way ployee working for the union-he has told you some- for the union to guarantee promises that they may thing that is absolutely untrue. have made. Ask yourself if you can guarantee to 2. Q. If I vote against the union, will I lose my job spend someone else's money. in the event the union wins the election? in the event the union wins the election? 8. Q. If the union wins the election, will we be A. Definitely not. Neither the law nor the Com- called out on strike? pany will permit or tolerate discrimination among employees. A. The only way that the union can try to force the Company to agree to what the union has been 3. Q. Will those who vote for the union get special promising is to call you out on strike. Promises are advantages if the union should win the election? cheap, but it is something else for the union to ful- A. No. In the first place the election is held in fill those promises. There is only one sure way to secret and how an individual votes is unknown by avoid the possibility of strikes and that is not to the Company or the union. Secondly, following the have a union. election employees will be treated alike. The Com- 9. Q. If the union calls us out on strike, will we get pany will not permit any discrimination whatever, paid while the strike is going on? Under no circumstances will union members get any special advantage over non-members. A. Nol If you strike, you lose your pay. The Company is not required to pay you while you are 4. Q. Do I have to vote for the union if I have on strike. Under New Jersey law, strikers are not on strike. Under New Jersey law, strikers are not sign ion uorti entitled a unemployment compensation card or paid moneover, to the union for dues or initial fees?your Company-paid insurance benefits might also be A. Certainly not. It doesn't make any difference stopped in the event you do go out on strike. The whether you have signed a union card or attended union might give you a handout, or pay you some union meetings. The election will be your opportu- limited benefits, but you also ought to know you 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As you know, on Thursday, January 10, 1980, nity to vote in freedom and by secret ballot. No the National Labor Relations Board will hold a matter what commitment you may have made, ver- secret ballot election among the Company's office bally or in writing, to any union representative or employees. The purpose of this election is to deter- to any fellow employee, no matter what you may mine whether or not you want to be represented by have done or said in advance of the election, you Retail Clerks Local 1262. are entirely free to vote as you please. In a very real sense, you will be deciding wheth- er you want to turn over your most important af- 5. Q. Ca n t h e unio n guarantee me an increase in fairs to union officials about whom you know very wages or any other benefit? little and who represent primarily store employees. A. No. Only the Company can give you more I feel sure you want to make this vital decision money. It is the Company that furnishes your job based on the facts and not campaign talk or worth- and your paycheck-not a union. A union will less promises. The Company is sincerely convinced never furnish you a day's work or a cent of pay. that a union would not be in your best interests, and during the next few weeks we intend to submit to 6. Q. If t h e u n io n w in s t h e election, will the law you facts clearly showing the soundness of this po- compel the Company to reach an agreement with sition. the union? The following answers to questions often asked A. Absolutely not! The Company does not have by employees have been prepared to provide accu- to agree to a single thing the union proposes so rate information on which you can make a sound long as we bargain in good faith. The law itself pro- decision as to whether or not you want a union to vides that bargaining in good faith does not require act and speak for you. We want to be sure that you the Company to agree to any union demands or to are not misled by any false claims or empty prom- make any concessions to the union. Thus, we do not ises from union representatives. It is only right and have to sign any contract which we don't believe to fair that you should know the truth on the whole be in the Company's best interest. There is no law matter before you make up your mind. that forces us to agree with the views and demands 1. Q. Will I lose my job in the event the union is of the union. rejected and I may have signed a union authoriza- 7. Q. If the union wins the election, will we auto- tion card or was active in behalf of the union? matically get the things the union has been prom- A. Positively not! The Company will not penal- ising, such as the retail clerks store contract? ize, punish or discriminate against employees be- A. No. Even if the union wins an NLRB elec- cause they signed union cards. No matter how tion, nothing happens automatically. The union unwise we think it is that you may have signed a could ask for anything, but as long as we bargain in card, no employee will suffer at the hands of the good faith, the Company does not have to give in Company because of his union activity. And if to any demand which we believe would not be anyone has told you anything contrary to this- good business practice or might be harmful to the whether he be a union organizer or a fellow em- Company or its employees. Thus, there is no way ployee working for the union-he has told you some- for the union to guarantee promises that they may thing that is absolutely untrue. have made. Ask yourself if you can guarantee to 2. Q. If I vote against the union, will I lose my job spend someone else's money. in the event the union wins the election?n - ,. 1 * -1 L 8. Q. If the union wins the election, will we be A. Definitely not. Neither the law nor the Com- called out on strike? pany will permit or tolerate discrimination among A T o w t emplovees. .Teol w ay tht * union can try to force the Company to agree to what the union has been 3. Q. Will those who vote for the union get special promising is to call you out on strike. Promises are advantages if the union should win the election? cheap, but it is something else for the union to ful- A. No. In the first place the election is held in fill those promises. There is only one sure way to secret and how an individual votes is unknown by avoid t h e possibility of strikes and that is not to the Company or the union. Secondly, following the have a union. election employees will be treated alike. The Com- 9. Q. If the union calls us out on strike, will we get pany will not permit any discrimination whatever,.paid while the strike is going on? Under no circumstances will union members get any special advantage over non-members. A. Nol If you strike, you lose your pay. The 4. , Q. Do I have to vote for the union if I haveCompany is not required to pay you while you are 4. Q. Do I have to vote for the union if I have^ ~rNwJre asrkr r o signd a nionauthriztioncardor pid mneyon strike. Under New Jersey law, strikers are not signed a union authorization card or paid moneyentited to unemployment compensation. Moreover, your Company-paid insurance benefits might also be A. Certainly not. It doesn't make any difference stopped in the event you do go out on strike. The whether you have signed a union card or attended union might give you a handout, or pay you some union meetings. The election will be your opportu- limited benefits, but you also ought to know you 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As you know, on Thursday, January 10, 1980, nity to vote in freedom and by secret ballot. No the National Labor Relations Board will hold a matter what commitment you may have made, ver- secret ballot election among the Company's office bally or in writing, to any union representative or employees. The purpose of this election is to deter- to any fellow employee, no matter what you may mine whether or not you want to be represented by have done or said in advance of the election, you Retail Clerks Local 1262. are entirely free to vote as you please. In a very real sense, you will be deciding wheth- er you want to turn over your most important af- 5. Q. Ca n t h e unio n guarantee me an increase in fairs to union officials about whom you know very wages or any other benefit? little and who represent primarily store employees. A. No. Only the Company can give you more I feel sure you want to make this vital decision money. It is the Company that furnishes your job based on the facts and not campaign talk or worth- and your paycheck-not a union. A union will less promises. The Company is sincerely convinced never furnish you a day's work or a cent of pay. that a union would not be in your best interests, and during the next few weeks we intend to submit to 6. Q. If t h e union wins the election, will the law you facts clearly showing the soundness of this po- compel the Company to reach an agreement with sition. the union? The following answers to questions often asked A. Absolutely not! The Company does not have by employees have been prepared to provide accu- to agree to a single thing the union proposes so rate information on which you can make a sound long as we bargain in good faith. The law itself pro- decision as to whether or not you want a union to vides that bargaining in good faith does not require act and speak for you. We want to be sure that you the Company to agree to any union demands or to are not misled by any false claims or empty prom- make any concessions to the union. Thus, we do not ises from union representatives. It is only right and have to sign any contract which we don't believe to fair that you should know the truth on the whole be in the Company's best interest. There is no law matter before you make up your mind. that forces us to agree with the views and demands 1. Q. Will I lose my job in the event the union is of the union. rejected and I may have signed a union authoriza- 7. Q. If the union wins the election, will we auto- tion card or was active in behalf of the union? matically get the things the union has been prom- A. Positively not! The Company will not penal- ising, such as the retail clerks store contract? ize, punish or discriminate against employees be- A. No. Even if the union wins an NLRB elec- cause they signed union cards. No matter how tion, nothing happens automatically. The union unwise we think it is that you may have signed a could ask for anything, but as long as we bargain in card, no employee will suffer at the hands of the good faith, the Company does not have to give in Company because of his union activity. And if to any demand which we believe would not be anyone has told you anything contrary to this- good business practice or might be harmful to the whether he be a union organizer or a fellow em- Company or its employees. Thus, there is no way ployee working for the union-he has told you some- for the union to guarantee promises that they may thing that is absolutely untrue. have made. Ask yourself if you can guarantee to 2. Q. If I vote against the union, will I lose my job spend someone else's money. in the event the union wins the election?n - ,. 1 * -1 L 8. Q. If the union wins the election, will we be A. Definitely not. Neither the law nor the Com- called out on strike? pany will permit or tolerate discrimination among A T o w t emplovees. .Teol w ay tha the union can try to force the Company to agree to what the union has been 3. Q. Will those who vote for the union get special promising is to call you out on strike. Promises are advantages if the union should win the election? cheap, but it is something else for the union to ful- A. No. In the first place the election is held in fill those promises. There is only one sure way to secret and how an individual votes is unknown by avoid the possibility of strikes and that is not to the Company or the union. Secondly, following the have a union. election employees will be treated alike. The Com- 9. Q. If the union calls us out on strike, will we get pany will not permit any discrimination whatever,.paid while the strike is going on? Under no circumstances will union members get any special advantage over non-members. A. Nol If you strike, you lose your pay. The 4. , Q. Do I have to vote for the union if I haveCompany is not required to pay you while you are 4. Q. Do I have to vote for the union if I have^ ~rNwJre asrkr r o signd a nionauthriztioncardor pid mneyon strike. Under New Jersey law, strikers are not signed a union authorization card or paid moneyentited to unemployment compensation. Moreover, your Company-paid insurance benefits might also be A. Certainly not. It doesn't make any difference stopped in the event you do go out on strike. The whether you have signed a union card or attended union might give you a handout, or pay you some union meetings. The election will be your opportu- limited benefits, but you also ought to know you 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As you know, on Thursday, January 10, 1980, nity to vote in freedom and by secret ballot. No the National Labor Relations Board will hold a matter what commitment you may have made, ver- secret ballot election among the Company's office bally or in writing, to any union representative or employees. The purpose of this election is to deter- to any fellow employee, no matter what you may mine whether or not you want to be represented by have done or said in advance of the election, you Retail Clerks Local 1262. are entirely free to vote as you please. In a very real sense, you will be deciding wheth- er you want to turn over your most important af- 5. Q. Ca n t h e unio n guarantee me an increase in fairs to union officials about whom you know very wages or any other benefit? little and who represent primarily store employees. A. No. Only the Company can give you more I feel sure you want to make this vital decision money. It is the Company that furnishes your job based on the facts and not campaign talk or worth- and your paycheck-not a union. A union will less promises. The Company is sincerely convinced never furnish you a day's work or a cent of pay. that a union would not be in your best interests, and during the next few weeks we intend to submit to 6. Q. If t h e u n io n w in s t h e election, will the law you facts clearly showing the soundness of this po- compel the Company to reach an agreement with sition. the union? The following answers to questions often asked A. Absolutely not! The Company does not have by employees have been prepared to provide accu- to agree to a single thing the union proposes so rate information on which you can make a sound long as we bargain in good faith. The law itself pro- decision as to whether or not you want a union to vides that bargaining in good faith does not require act and speak for you. We want to be sure that you the Company to agree to any union demands or to are not misled by any false claims or empty prom- make any concessions to the union. Thus, we do not ises from union representatives. It is only right and have to sign any contract which we don't believe to fair that you should know the truth on the whole be in the Company's best interest. There is no law matter before you make up your mind. that forces us to agree with the views and demands 1. Q. Will I lose my job in the event the union is of the union. rejected and I may have signed a union authoriza- 7. Q. If the union wins the election, will we auto- tion card or was active in behalf of the union? matically get the things the union has been prom- A. Positively not! The Company will not penal- ising, such as the retail clerks store contract? ize, punish or discriminate against employees be- A. No. Even if the union wins an NLRB elec- cause they signed union cards. No matter how tion, nothing happens automatically. The union unwise we think it is that you may have signed a could ask for anything, but as long as we bargain in card, no employee will suffer at the hands of the good faith, the Company does not have to give in Company because of his union activity. And if to any demand which we believe would not be anyone has told you anything contrary to this- good business practice or might be harmful to the whether he be a union organizer or a fellow em- Company or its employees. Thus, there is no way ployee working for the union-he has told you some- for the union to guarantee promises that they may thing that is absolutely untrue. have made. Ask yourself if you can guarantee to 2. Q. If I vote against the union, will I lose my job spend someone else's money. in the event the union wins the election?n - ,. 1 * -1 L 8. Q. If the union wins the election, will we be A. Definitely not. Neither the law nor the Com- called out on strike? pany will permit or tolerate discrimination among A T o w t emplovees. .Teol w ay tha the union can try to force the Company to agree to what the union has been 3. Q. Will those who vote for the union get special promising is to call you out on strike. Promises are advantages if the union should win the election? cheap, but it is something else for the union to ful- A. No. In the first place the election is held in fill those promises. There is only one sure way to secret and how an individual votes is unknown by avoid the possibility of strikes and that is not to the Company or the union. Secondly, following the have a union. election employees will be treated alike. The Com- 9. Q. If the union calls us out on strike, will we get pany will not permit any discrimination whatever,.paid while the strike is going on? Under no circumstances will union members get any special advantage over non-members. A. Nol If you strike, you lose your pay. The 4. , Q. Do I have to vote for the union if I haveCompany is not required to pay you while you are 4. Q. Do I have to vote for the union if I have^ ~rNwJre asrkr r o signd a nionauthriztioncardor pid mneyon strike. Under New Jersey law, strikers are not signed a union authorization card or paid moneyentited to unemployment compensation. Moreover, your Company-paid insurance benefits might also be A. Certainly not. It doesn't make any difference stopped in the event you do go out on strike. The whether you have signed a union card or attended union might give you a handout, or pay you some union meetings. The election will be your opportu- limited benefits, but you also ought to know you PROGRESSIVE SUPERMARKETS, INC. 519 can't even get unemployment benefits while you are In order to get an election, 30% of the employees striking. A good question to ask yourself here is would have to sign a petition or some other docu- who will pay your bills if you are walking in a ment. Voting a union in is easy. But when you find picket line. you made a mistake, it's a pretty hard job to get out 10. Q. If the union calls a strike and I go out on of it. You're best off not getting into it in the first strike, can I lose my job? place. A. Yes! Under the law, if the union calls a strike 15. Q. Why is the Company opposed to a union? to try to force the Company to agree to the union's A. The Company feels that a union will only economic demands, the Company is free to perma- cause dissension among our employees and bitter- nently replace the strikers. This means that if you ness between those who are for or against the are permanently replaced in such a strike, the law union. It feels that a union will try to generate trou- does not force the Company to rehire you immedi- ble between the management and its employees in ately after the strike is over. You might end up on a order to justify its own existence. preferential hiring list, having to wait weeks or We feel that we are able to work out our prob- months for a vacancy to occur. lems with our employees on a personal basis, with- 11. Q. Will I lose my right to discuss on my own out the interference of outsiders. The Company behalf with Company officials about my wages, does not feel that its employees have to pay their hours and working conditions if the union is voted good money to a union to get the best the company in? can give to its employees. And we think that we have done pretty well by our employees, both in A. Yes. If the union were to win the election, allrte nd n benefit is in the. esalary rates and in fringe benefits.It is my sincere the employees, even those who vote against thelpful to you in union, will absolutely lose their right to discuss these subjects individually with management. None making the important decision you will have an op- these subjects individually with management. None portunity to make on January 10. I would recom- of them will be able any longer to come to me or portunity to make on January 10. I would reco their and discuss privately their own . , . mend that you think seriously about them and if their supervisors and discuss privately their own pesupr casors regardn w s , further questions occur to you, please feel free to personal cases regarding wages, hours and working ask me about them. conditions. 12. Q. If the union wins, who will be the union shop To Our Employees: stewards and committeemen who will handle the affairs of everybody else? By now, you have had an opportunity to reflect on this union election that's going to be held here A. Look around you and see who is active in on January 10, 1980. pushing this union. In all probability, there is your We have tried to explain to you that even if the answer. union were to win the election, you would not They will be running things for you. They will automatically get any increases in your salary or be the ones working with the union negotiators and benefits. All a union wins, even if it wins an elec- officers in bargaining with the Company over your tion, is the right to sit down and negotiate with the pay, your working hours, and your employment Company about wages and benefits. benefits. They will be the ones handling your griev- But negotiation does not necessarily mean agree- ances. ~~~~~~ a n c e s ;~~~~~~. ,ment. The law provides quite clearly that the obli- Ask yourself this question: Are they people gation to bargain does not require the Company to whom you consider to be capable of handling your agree to any union proposal. The enclosed leaflet, agree to any union proposal. The enclosed leaflet, problems and into these hands you are now ready which is excerpted from an official National Labor to trust your affairs for the future? to trust your affairs for the future?Relations Board publication, explains what this bar- 13. Q. Does it cost money to belong to a union? gaining obligation means. What it does not mean is A. Yes! It could cost quite a bit, about $150.00 a that either party must agree to anything it feels is year. Unions collect monthly dues, and besides that, not in its best interests. there could be other charges such as initiation fees What happens if the Company and the union ne- and assessments. Unions can also fine members who gotiate but can't reach agreement? The only violate union rules. A union must have income to weapon the union would have would be to pull you keep going and to pay its officers and organizers, out on strike. Remember, strikers don't get paid and and its biggest source of income is dues. This ex- they are not eligible, under New Jersey law, for un- plains its interest in YOU-not as an individual but employment compensation. Moreover, the Compa- as a dues payer! ny would not have to pay insurance premiums for employees who are out on strike. 14. Q. What if we vote for the union just to try itll employees who strike for more money or Finally, employees who strike for more money or out; can't we get nrd of it if we don't like it? higher benefits are called "economic strikers" and A. Getting rid of a union once it is in, would be a are subject to being permanently replaced by other hard job. Once a union gets in, it normally remains employees. Remember, just because the union calls your bargaining agent until a new election is held. a strike, it doesn't mean that everybody has to go PROGRESSIVE SUPERMARKETS, INC. 519 can't even get unemployment benefits while you are In order to get an election, 30% of the employees striking. A good question to ask yourself here is would have to sign a petition or some other docu- who will pay your bills if you are walking in a ment. Voting a union in is easy. But when you find picket line. you made a mistake, it's a pretty hard job to get out 10. Q. If the union calls a strike and I go out on o f i t. You're b es t o f n o t getting in t o it i n th e f ir st strike, can I lose my job? place. A. Yes! Under the law, if the union calls a strike 1 5 . Q. Why is t h e Company opposed to a union? to try to force the Company to agree to the union's A. The Company feels that a union will only economic demands, the Company is free to perma- cause dissension among our employees and bitter- nently replace the strikers. This means that if you ness between those who are for or against the are permanently replaced in such a strike, the law union. It feels that a union will try to generate trou- does not force the Company to rehire you immedi- ble between the management and its employees in ately after the strike is over. You might end up on a order to justify its own existence. preferential hiring list, having to wait weeks or We feel that we are able to work out our prob- months for a vacancy to occur. lems with our employees on a personal basis, with- 11. Q. Will I lose my right to discuss on my own out the interference of outsiders. The Company behalf with Company officials about my wages, does not feel that its employees have to pay their hours and working conditions if the union is voted good money to a union to get the best the company in? can give to its employees. And we think that we ,.,,,,, . * i. i * i~ ~~~have done pretty well by our employees, both in A. Yes. If the union were to win the election, allrates ane p n well by iu my sin the eployes, evn thoe whovote gains thesalary rates and in fringe benefits.It is my sincere the employees, even those who vote against thehoeta hs at ilb epu oyui union, will absolutely lose their right to discussh t fact will be hell have in thes subectsindiidualy wth mnageent.Nonemaking the important decision you will have an op- these subjects individually with management. None. of them. will be able any longer to come to me orportunity to make on January 10. I would recom- of them wi 1 be ab e any bonger to come to me or* ,- ., .- .. , . ... . , - & . . , .. .~~~mend that you think seriously about them and if their supervisors and discuss privately their own mn ta y t s a t a personal cases regarding wages , hours and working further questions occur to you, please feel free to personal cases regarding wages, hours and working^ as me abutem. conditions. 12. Q. If the union wins, who will be the union shop To Our Employees: stewards and committeemen who will handle the affairs of everybody else? By n o w , yo u h a v e h a d a n opportunity to reflect on this union election that's going to be held here A. Look around you and see who is active in on January 10, 1980. pushing this union. In all probability, there is your We have tried to explain to you that even if the answer. union were to win the election, you would not They will be running things for you. They will automatically get any increases in your salary or be the ones working with the union negotiators and benefits. All a union wins, even if it wins an elec- officers in bargaining with the Company over your tion, is the right to sit down and negotiate with the pay, your working h o u rs, an d y o u r employment Company about wages and benefits. benefits. They will be the ones handling your griev- But negotiation does not necessarily mean agree- a nc es. ,, .. . . , ,ment. The law provides quite clearly that the obli- Ask yourself this question: Are they people gation to bargain does not require the Company to whom you consider to be capable of handling your agree to any union proposal. The enclosed leaflet, problems and into these hands you are now readywich i excerpted from an official National Labor to trust your affairs for the future?^Relations Board publication, explains what this bar- 13. Q. Does it cost money to belong to a union? gaining obligation means. What it does not mean is A. Yes! It could cost quite a bit, about $150.00 a t h a t e i t h e r party m u s t agree to anything it feels is year. Unions collect monthly dues, and besides that, n o t in it s b e s t int ere s t s. there could be other charges such as initiation fees Wh a t happens if the Company and the union ne- and assessments. Unions can also fine members who gotiate but can't reach agreement? The only violate union rules. A union must have income to weapon the union would have would be to pull you keep going and to pay its officers and organizers, out on strike. Remember, strikers don't get paid and and its biggest source of income is dues. This ex- they a r e not eligible, under New Jersey law, for un- plains its interest in YOU-not as an individual but employment compensation. Moreover, the Compa- as a dues payer! ny w ould not have to pay insurance premiums for 14. Q. What if wevote for the union just to try it employees who are out on strike. 14. Q. What if we vote for the union just to try it Finally, employees who strike for more money or out; can t we get nid of it if we don't like it? higher benefits are called "economic strikers" and A. Getting rid of a union once it is in, would be a are subject to being permanently replaced by other hard job. Once a union gets in, it normally remains employees. Remember, just because the union calls your bargaining agent until a new election is held. a strike, it doesn't mean that everybody has to go PROGRESSIVE SUPERMARKETS, INC. 519 can't even get unemployment benefits while you are In order to get an election, 30% of the employees striking. A good question to ask yourself here is would have to sign a petition or some other docu- who will pay your bills if you are walking in a ment. Voting a union in is easy. But when you find picket line. you made a mistake, it's a pretty hard job to get out 10. Q. If the union calls a strike and I go out on o f i t. You're b e s t o f not getting in t o it i n the first strike, can I lose my job? place. A. Yes! Under the law, if the union calls a strike 1 5 . Q. Why is t h e Company opposed to a union? to try to force the Company to agree to the union's A. The Company feels that a union will only economic demands, the Company is free to perma- cause dissension among our employees and bitter- nently replace the strikers. This means that if you ness between those who are for or against the are permanently replaced in such a strike, the law union. It feels that a union will try to generate trou- does not force the Company to rehire you immedi- ble between the management and its employees in ately after the strike is over. You might end up on a order to justify its own existence. preferential hiring list, having to wait weeks or We feel that we are able to work out our prob- months for a vacancy to occur. lems with our employees on a personal basis, with- 11. Q. Will I lose my right to discuss on my own out the interference of outsiders. The Company behalf with Company officials about my wages, does not feel that its employees have to pay their hours and working conditions if the union is voted good money to a union to get the best the company in? can give to its employees. And we think that we ,.,,,,, . * i. i * i~ ~~~have done pretty well by our employees, both in A. Yes. If the union were to win the election, allrates ane p n well by iu my sin the eployes, evn thoe whovote gains thesalary rates and in fringe benefits.It is my sincere the employees, even those who vote against thehoeta hs at ilb epu oyui union, will absolutely lose their right to discussh h e fact will be hell have in thes subectsindiidualy wth mnageent.Nonemaking the important decision you will have an op- these subjects individually with management. None. of them. will be able any longer to come to me orportunity to make on January 10. I would recom- of them wi 1 be ab e any bonger to come to me or* ,- ., .- .. , . ... . , - & . . , .. .~~~mend that you think seriously about them and if their supervisors and discuss privately their own mn ta y t s a t a personal cases regarding wages , hours and working further questions occur to you, please feel free to personal cases regarding wages, hours and working^ as me abutem. conditions. 12. Q. If the union wins, who will be the union shop To Our Employees: stewards and committeemen who will handle the affairs of everybody else? By n o w , yo u h a v e h a d a n opportunity to reflect on this union election that's going to be held here A. Look around you and see who is active in on January 10, 1980. pushing this union. In all probability, there is your We have tried to explain to you that even if the answer. union were to win the election, you would not They will be running things for you. They will automatically get any increases in your salary or be the ones working with the union negotiators and benefits. All a union wins, even if it wins an elec- officers in bargaining with the Company over your tion, is the right to sit down and negotiate with the pay, your working h o u rs, an d y o u r employment Company about wages and benefits. benefits. They will be the ones handling your griev- But negotiation does not necessarily mean agree- a nc es. ,, .. . . , ,ment. The law provides quite clearly that the obli- Ask yourself this question: Are they people gation to bargain does not require the Company to whom you consider to be capable of handling your agree to any union proposal. The enclosed leaflet, problems and into these hands you are now readywich is excerpted from an official National Labor to trust your affairs for the future?^Relations Board publication, explains what this bar- 13. Q. Does it cost money to belong to a union? gaining obligation means. What it does not mean is A. Yes! It could cost quite a bit, about $150.00 a t h a t e i t h e r party m u s t agree to anything it feels is year. Unions collect monthly dues, and besides that, n o t in it s b e s t int ere s t s. there could be other charges such as initiation fees Wh a t happens if the Company and the union ne- and assessments. Unions can also fine members who gotiate but can't reach agreement? The only violate union rules. A union must have income to weapon the union would have would be to pull you keep going and to pay its officers and organizers, out on strike. Remember, strikers don't get paid and and its biggest source of income is dues. This ex- they a r e not eligible, under New Jersey law, for un- plains its interest in YOU-not as an individual but employment compensation. Moreover, the Compa- as a dues payer! ny w ould not have to pay insurance premiums for 14. Q. What if wevote for the union just to try it employees who are out on strike. 14. Q. What if we vote for the union just to try it Finally, employees who strike for more money or out; can t we get nid of it if we don't like it? higher benefits are called "economic strikers" and A. Getting rid of a union once it is in, would be a are subject to being permanently replaced by other hard job. Once a union gets in, it normally remains employees. Remember, just because the union calls your bargaining agent until a new election is held. a strike, it doesn't mean that everybody has to go PROGRESSIVE SUPERMARKETS, INC. 519 can't even get unemployment benefits while you are In order to get an election, 30% of the employees striking. A good question to ask yourself here is would have to sign a petition or some other docu- who will pay your bills if you are walking in a ment. Voting a union in is easy. But when you find picket line. you made a mistake, it's a pretty hard job to get out 10. Q. If the union calls a strike and I go out on o f i t. You're b e s t o f not getting in t o it i n the first strike, can I lose my job? place. A. Yes! Under the law, if the union calls a strike 1 5 . Q. Why is t h e Company opposed to a union? to try to force the Company to agree to the union's A. The Company feels that a union will only economic demands, the Company is free to perma- cause dissension among our employees and bitter- nently replace the strikers. This means that if you ness between those who are for or against the are permanently replaced in such a strike, the law union. It feels that a union will try to generate trou- does not force the Company to rehire you immedi- ble between the management and its employees in ately after the strike is over. You might end up on a order to justify its own existence. preferential hiring list, having to wait weeks or We feel that we are able to work out our prob- months for a vacancy to occur. lems with our employees on a personal basis, with- 11. Q. Will I lose my right to discuss on my own out the interference of outsiders. The Company behalf with Company officials about my wages, does not feel that its employees have to pay their hours and working conditions if the union is voted good money to a union to get the best the company in? can give to its employees. And we think that we ,.,,,,, . * i. i * i~ ~~~have done pretty well by our employees, both in A. Yes. If the union were to win the election, allrates ane p n well by iu my sin the eployes, evn thoe whovote gains thesalary rates and in fringe benefits.It is my sincere the employees, even those who vote against thehoeta hs at ilb epu oyui union, will absolutely lose their right to discussh h e fact will be hell have in thes subectsindiidualy wth mnageent.Nonemaking the important decision you will have an op- these subjects individually with management. None. of them. will be able any longer to come to me orportunity to make on January 10. I would recom- of them wi 1 be ab e any bonger to come to me or* ,- ., .- .. , . ... . , - & . . , .. .~~~mend that you think seriously about them and if their supervisors and discuss privately their own mn ta y t s a t a personal cases regarding wages , hours and working further questions occur to you, please feel free to personal cases regarding wages, hours and working^ as me abutem. conditions. 12. Q. If the union wins, who will be the union shop To Our Employees: stewards and committeemen who will handle the affairs of everybody else? By n o w , yo u h a v e h a d a n opportunity to reflect on this union election that's going to be held here A. Look around you and see who is active in on January 10, 1980. pushing this union. In all probability, there is your We have tried to explain to you that even if the answer. union were to win the election, you would not They will be running things for you. They will automatically get any increases in your salary or be the ones working with the union negotiators and benefits. All a union wins, even if it wins an elec- officers in bargaining with the Company over your tion, is the right to sit down and negotiate with the pay, your working h o u rs, an d y o u r employment Company about wages and benefits. benefits. They will be the ones handling your griev- But negotiation does not necessarily mean agree- a nc es. ,, .. . . , ,ment. The law provides quite clearly that the obli- Ask yourself this question: Are they people gation to bargain does not require the Company to whom you consider to be capable of handling your agree to any union proposal. The enclosed leaflet, problems and into these hands you are now readywich is excerpted from an official National Labor to trust your affairs for the future?^Relations Board publication, explains what this bar- 13. Q. Does it cost money to belong to a union? gaining obligation means. What it does not mean is A. Yes! It could cost quite a bit, about $150.00 a t h a t e i t h e r party m u s t agree to anything it feels is year. Unions collect monthly dues, and besides that, n o t in it s b e s t int ere s t s. there could be other charges such as initiation fees Wh a t happens if the Company and the union ne- and assessments. Unions can also fine members who gotiate but can't reach agreement? The only violate union rules. A union must have income to weapon the union would have would be to pull you keep going and to pay its officers and organizers, out on strike. Remember, strikers don't get paid and and its biggest source of income is dues. This ex- they a r e not eligible, under New Jersey law, for un- plains its interest in YOU-not as an individual but employment compensation. Moreover, the Compa- as a dues payer! ny w ould not have to pay insurance premiums for 14. Q. What if wevote for the union just to try it employees who are out on strike. 14. Q. What if we vote for the union just to try it Finally, employees who strike for more money or out; can t we get nid of it if we don't like it? higher benefits are called "economic strikers" and A. Getting rid of a union once it is in, would be a are subject to being permanently replaced by other hard job. Once a union gets in, it normally remains employees. Remember, just because the union calls your bargaining agent until a new election is held. a strike, it doesn't mean that everybody has to go 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out on strike and it doesn't mean that the Company All of the office personnel, except for the two su- has to stop its operations. So if an employee goes pervisors, are eligible to vote. This election will be out on strike and gets permanently replaced, when decided by a majority of those who actually vote. If the strike ends she does not get her job back right you don't vote, your future could be decided by away but has to wait until a vacancy occurs. That someone else. could take weeks or even months. The first para- Here are a few things you should keep in mind graph of the enclosed leaflet gives you the official before you vote: word from the Labor Board on that subject. 1. Voting Procedure. The ballot you will receive You don't need a union to get the very best this will have two spaces, the one on the left marked Company has to offer. Vote for yourselves on Janu- "Yes" and the one on the right marked "NO." If ary 10; vote NO. you do not want the union, you should put an "X" in the "NO" space. Do not sign your ballot; if you To Our Employees: do, your vote will not count. I hope that none of you are being fooled into be- 2. Secrecy of the ballot. The election will be con- lieving that getting a union in here is a guarantee of ducted by an agent of the U.S. Government, who anything at all, except perhaps lots of trouble for all will insure that the election is conducted by secret of us. ballot. No one will ever know how you vote. There's something that you all ought to know 3. Freedom of choice. This is your election and about; and it deals with how this union treats its your choice to make. You owe it to yourself and own office employees. Some years ago, back in your family to vote strictly on the basis of FACTS, 1970, the Union's office employees organized, went and not on the basis of some vague union promises. to a Labor Board election and won. The Union was You are free to vote as you wish regardless of what forced to sit down and bargain with the Office Em- you may have said and done in the past. Even if ployees Union that represented its own office em- you signed a union card, you are 100% free to vote ployees. NO in the election. If anyone has told you that you You might think that Local 1262 would have are committed to vote for the union, he is telling You might think that Local 1262 would have some understanding for the needs and wants of its you a lie. You are free to vote as your conscience some understanding for the needs and wants of its t » own office employees. You might think that-but dictates. you'd be dead wrong. What Local 1262 did was to 4. Union promises. Don't be misled by empty bargain the Office Employees Union into the union promises. The union cannot guarantee you a ground, get the employees out on strike, and then single thing. Even if the union were to win the elec- permanently replaced all the strikers. The strike tion, the Company's only obligation would be to lasted for two months, and only one striker ever got bargain wth the union. But as we have pointed out her job back. That's how this union handled negoti- to you, the law does not require the Company to ations with the union of its own office employees. agree to any union demands or to make any conces- What makes you think that things will be any dif- sions to the unon Nor can the union guarantee you ferent here? This union has a track record of not job security. All a union can bring you is job inse- treating office employees fairly. Moreover, wecurity in the form of a strike. know how to negotiate hard, just like the union 5. The cost of a union. The only thing that a does. And we know about rights regarding the re- union victory will guarantee is that you will have to placement of economic strikers. pay union dues of $150.00 or more a year. Having a Ask the union how it treats its own office em- union would also subject you to union discipline, ployees. Ask the union if it's paying its own em- and the union could fine you for conduct unbe- ployees the same wages that the store employees coming a union member," for crossing a picket line, get. It doesn't. The Union's own office employeesor for some other silly charge. earn about the same as you do, and they don't get 6. What does joining a union mean? The U.S. Su- cost-of-living increases. There is no set time for in- preme Court put it this way: Joining a union "extin- creases, while you get reviewed twice a year. guishes the individual employee's power to order Your salary and benefit package is every bit as his own relations with his employer and creates a good as what the Union pays, and probably a lot power vested in the chosen representative to act in better. You don't need a union to get the best this the interests of all employees." What this means is Company has to offer. that you would lose your individual rights, and in return some stranger would do your talking--and Vote for yourselves on January 10. Vote NO. return some stranger would do your talking-and your thinking for you. To Our Employees: Be sure to vote. Some of you have said that you want no part of the union and that you don't want The Labor Board election will be held on Thurs- to vote. That's wrong. If you don't want the union day, January 10, 1980 in the vacant office across the but don't vote, you're really helping the union get hall. The polls will be open from 3:00 p.m. to 3:30 in here. You've got to cast your ballot while the p.m. and you may vote at anytime during that 30 polls are open. Otherwise, you'll be letting someone minute period. else decide your future. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out on strike and it doesn't mean that the Company All of the office personnel, except for the two su- has to stop its operations. So if an employee goes pervisors, are eligible to vote. This election will be out on strike and gets permanently replaced, when decided by a majority of those who actually vote. If the strike ends she does not get her job back right you don't vote, your future could be decided by away but has to wait until a vacancy occurs. That someone else. could take weeks or even months. The first para- Here are a few things you should keep in mind graph of the enclosed leaflet gives you the official before you vote: word from the Labor Board on that subject. 1. Voting Procedure. The ballot you will receive You don't need a union to get the very best this will have two spaces, the one on the left marked Company has to offer. Vote for yourselves on Janu- "Yes" and the one on the right marked "NO." If ary 10; vote NO. you do not want the union, you should put an "X" in the "NO" space. Do not sign your ballot; if you To Our Employees: do, your vote will not count. I hope that none of you are being fooled into be- 2. Secrecy o f th e ballot. The election will be con- lieving that getting a union in here is a guarantee of ducted by an agent of the U.S. Government, who anything at all, except perhaps lots of trouble for all will in su r e t ha t t h e el ec tio n is conducted by secret of us. ballot. No one will ever know how you vote. There's something that you all ought to know 3. F r e ed o m of choice. This is your election and about; and it deals with how this union treats its yo u r c h o ic e t o m ak e. Y o u o w e it t o y o ur se lf an d own office employees. Some years ago, back in yo u r f am il y t o v o t e strictly on t h e ba sis o f F A C T S, 1970, the Union's office employees organized, went and no t o n t h e basis of som e vague unio n Promises. to a Labor Board election and won. The Union was Y o u ar e f r ee t o v o te as you wish regardless of what forced to sit down and bargain with the Office Em- yo u may h av e said and done in the past. Even if ployees Union that represented its own office em- you signed a union card, you are 100% free to vote ployees. NO in the election. If anyone has told you that you You might think that Local 1262 would have are committed to vote for the union, he is telling You might think that Local 1262 would have, -. ° some°understandin fr~ the needs and wants of its you a lie. You are free to vote as your conscience some understanding for the needs and wants of itsr dit »e own office employees. You might think that-but d c a es . you'd be dead wrong. What Local 1262 did was to n U n o npromises. Don t be misled by empty bargain the Office Employees Union into theunion promises. The union cannot guarantee you a ground, get the employees out on strike, and then ^" - E v e n t f th e union were to win the elec- permanently replaced all the strikers. The strikeb t agn i t h e Companyt s only obligation would be to lasted for two months, and only one striker ever got g"" w l t h t n e union. B u t a s we have pointed out her job back. That's how this union handled negoti- t o you, the law does not require the Company to ations with the union of its own office employees. agree t o any union demands or to make any conces- What makes you think that things will be any dif- sio ns t o t h e u n io n . N o r c an t h e ni n guarantee you ferent here? This union has a track record of not job security. All a union can bring you is job inse- treating office employees fairly. Moreover, wecurityi the form of a strike. know how to negotiate hard, just like the union 5. The cost of a union. The only thing that a does. And we know about rights regarding the re- union victory will guarantee is that you will have to placement of economic strikers. pay union dues of $150.00 or more a year. Having a Ask the union how it treats its own office em- union would also subject you to union discipline, ployees. Ask the union if it's paying its own em- an d t h e u n ion could fine you for conduct unbe- ployees the same wages that the store employees c o m ing a un io n m em b e r," f o r crossing a picket lin e, get. It doesn't. The Union's own office employeesor for some other silly charge. earn about the same as you do, and they don't get 6 . W h at does joining a union mean? The U.S. Su- cost-of-living increases. There is no set time for in- preme Court put it this way: Joining a union "extin- creases, while you get reviewed twice a year. guishes t h e individual employee's power to order Your salary and benefit package is every bit as his o w n relations with his employer and creates a good as what the Union pays, and probably a lot poe v est e d in t h e c ho s en rprsti t o ac t in better. You don't need a union to get the best this t h e int e r e st s o f all employees." What this means is Company has to offer. t h at y o u w o u ld lo se yo u r individual rights, and in Vote for yourselves on January 10. Vote NO. return some stranger would do your talking-and Vote for yourselves on January 10. Vote NO.yuthnigfro. your thinking for you. To Our Employees: B e s u r e t o vote. Some of you have said that you want no part of the union and that you don't want The Labor Board election will be held on Thurs- to vote. That's wrong. If you don't want the union day, January 10, 1980 in the vacant office across the but don't vote, you're really helping the union get hall. The polls will be open from 3:00 p.m. to 3:30 in here. You've got to cast your ballot while the p.m. and you may vote at anytime during that 30 polls are open. Otherwise, you'll be letting someone minute period,.else decide your future. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out on strike and it doesn't mean that the Company All of the office personnel, except for the two su- has to stop its operations. So if an employee goes pervisors, are eligible to vote. This election will be out on strike and gets permanently replaced, when decided by a majority of those who actually vote. If the strike ends she does not get her job back right you don't vote, your future could be decided by away but has to wait until a vacancy occurs. That someone else. could take weeks or even months. The first para- Here are a few things you should keep in mind graph of the enclosed leaflet gives you the official before you vote: word from the Labor Board on that subject. 1. Voting Procedure. The ballot you will receive You don't need a union to get the very best this will have two spaces, the one on the left marked Company has to offer. Vote for yourselves on Janu- "Yes" and the one on the right marked "NO." If ary 10; vote NO. you do not want the union, you should put an "X" in the "NO" space. Do not sign your ballot; if you To Our Employees: do, your vote will not count. I hope that none of you are being fooled into be- 2 . Secrecy o f th e ballot. The election will be con- lieving that getting a union in here is a guarantee of ducted by an agent of the U.S. Government, who anything at all, except perhaps lots of trouble for all will in su r e t ha t t h e el ec tio n is conducted by secret of us. ballot. No one will ever know how you vote. There's something that you all ought to know 3. F r e ed o m o f ch o i c e . T h i s i s your el ec t i o n and about; and it deals with how this union treats its your c h o ic e t o m ak e. Y o u o w e it t o y o ur se lf an d own office employees. Some years ago, back in yo u r f am il y t o v o t e strictly on t h e ba sis o f F A C T S, 1970, the Union's office employees organized, went and no t o n t h e basis o f som e vague unio n promises. to a Labor Board election and won. The Union was Y o u ar e f r ee t o v o te as you wish regardless of what forced to sit down and bargain with the Office Em- yo u may h av e said and done in the past. Even if ployees Union that represented its own office em- you signed a union card, you are 100% free to vote ployees. NO in the election. If anyone has told you that you You might think that Local 1262 would have are committed to vote for the union, he is telling You might think that Local 1262 would have, -. ° some°understandin fr~ the needs and wants of its you a lie. You are free to vote as your conscience some understanding for the needs and wants of itsr dit »e own office employees. You might think that-but d c a es . you'd be dead wrong. What Local 1262 did was to uni U n on promises. Don t be misled by empty bargain the Office Employees Union into theunion promises. The union cannot guarantee you a ground, get the employees out on strike, and then ^" - E v e n t f th e union were to win the elec- permanently replaced all the strikers. The strikeb t agn i t h e Companyt s only obligation would be to lasted for two months, and only one striker ever got '-8"" w l t h t n e union. B u t a s we have pointed out her job back. That's how this union handled negoti- t o you, the law does not require the Company to ations with the union of its own office employees. agree t o any union demands or to make any conces- What makes you think that things will be any dif- sio ns t o t h e u n io n . N o r c an t h e ni n guarantee you ferent here? This union has a track record of not job security. All a union can bring you is job inse- treating office employees fairly. Moreover, wecurityi the form of a strike. know how to negotiate hard, just like the union 5. The cost of a union. The only thing that a does. And we know about rights regarding the re- union victory will guarantee is that you will have to placement of economic strikers. pay union dues of $150.00 or more a year. Having a Ask the union how it treats its own office em- union would also subject you to union discipline, ployees. Ask the union if it's paying its own em- an d t h e u n ion could fine you for conduct unbe- ployees the same wages that the store employees c o m ing a un io n m em b e r," f o r crossing a picket lin e, get. It doesn't. The Union's own office employeesor for some other silly charge. earn about the same as you do, and they don't get 6 . W h at does joining a union mean? The U.S. Su- cost-of-living increases. There is no set time for in- preme Court put it this way: Joining a union "extin- creases, while you get reviewed twice a year. guishes t h e individual employee's power to order Your salary and benefit package is every bit as his o w n relations with his employer and creates a good as what the Union pays, and probably a lot poe v est e d in t h e c ho s en rprsti t o ac t in better. You don't need a union to get the best this t h e int e r e st s o f all employees." What this means is Company has to offer. t h at you w o u ld lo se your individual rights, and in Vote for yourselves on January 10. Vote NO. return some stranger would do your talking-and Vote for yourselves on January 10. Vote NO.yuthnigfro. your thinking for you. To Our Employees: B e sure to vote. Some of you have said that you want no part of the union and that you don't want The Labor Board election will be held on Thurs- to vote. That's wrong. If you don't want the union day, January 10, 1980 in the vacant office across the but don't vote, you're really helping the union get hall. The polls will be open from 3:00 p.m. to 3:30 in here. You've got to cast your ballot while the p.m. and you may vote at anytime during that 30 polls are open. Otherwise, you'll be letting someone minute period,.else decide your future. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out on strike and it doesn't mean that the Company All of the office personnel, except for the two su- has to stop its operations. So if an employee goes pervisors, are eligible to vote. This election will be out on strike and gets permanently replaced, when decided by a majority of those who actually vote. If the strike ends she does not get her job back right you don't vote, your future could be decided by away but has to wait until a vacancy occurs. That someone else. could take weeks or even months. The first para- Here are a few things you should keep in mind graph of the enclosed leaflet gives you the official before you vote: word from the Labor Board on that subject. 1. Voting Procedure. The ballot you will receive You don't need a union to get the very best this will have two spaces, the one on the left marked Company has to offer. Vote for yourselves on Janu- "Yes" and the one on the right marked "NO." If ary 10; vote NO. you do not want the union, you should put an "X" in the "NO" space. Do not sign your ballot; if you To Our Employees: do, your vote will not count. I hope that none of you are being fooled into be- 2. Secrecy of the ballot. The election will be con- lieving that getting a union in here is a guarantee of ducted by an agent of the U.S. Government, who anything at all, except perhaps lots of trouble for all will in su r e that t h e el ec tio n is conducted by secret of us. ballot. No one will ever know how you vote. There's something that you all ought to know 3. F r e ed o m o f ch o i c e . T h i s i s your el ec t i o n and about; and it deals with how this union treats its your c h o ic e t o m ak e. Y o u o w e it t o y o ur se lf an d own office employees. Some years ago, back in yo u r f am il y t o v o t e strictly on t h e ba sis o f F A C T S, 1970, the Union's office employees organized, went and not o n t h e basis of som e vague unio n Promises. to a Labor Board election and won. The Union was Y o u are f r ee t o v o te as you wish regardless of what forced to sit down and bargain with the Office Em- yo u may h av e said and done in the past. Even if ployees Union that represented its own office em- you signed a union card, you are 100% free to vote ployees. NO in the election. If anyone has told you that you You might think that Local 1262 would have are committed to vote for the union, he is telling You might think that Local 1262 would have, -. ° some°understandin fr~ the needs and wants of its you a lie. You are free to vote as your conscience some understanding for the needs and wants of itsr dit »e own office employees. You might think that-but d c a es . you'd be dead wrong. What Local 1262 did was to uni U n on promises. Don t be misled by empty bargain the Office Employees Union into theunion promises. The union cannot guarantee you a ground, get the employees out on strike, and then ^" - E v e n t f th e union were to win the elec- permanently replaced all the strikers. The strikeb t agn i t h e Companyt s only obligation would be to lasted for two months, and only one striker ever got gam with the union. But as we have pointed out her job back. That's how this union handled negoti- t o you, the law does not require the Company to ations with the union of its own office employees. agree to any union demands or to make any conces- What makes you think that things will be any dif- sio ns t o t h e u n io n . N o r c an the union guarantee you ferent here? This union has a track record of not job security. All a union can bring you is job inse- treating office employees fairly. Moreover, wecurityi the form of a strike. know how to negotiate hard, just like the union 5. The cost of a union. The only thing that a does. And we know about rights regarding the re- union victory will guarantee is that you will have to placement of economic strikers. pay union dues of $150.00 or more a year. Having a Ask the union how it treats its own office em- union would also subject you to union discipline, ployees. Ask the union if it's paying its own em- an d t h e u n ion could fine you for conduct unbe- ployees the same wages that the store employees c o m ing a un io n m em b e r," f o r crossing a picket lin e, get. It doesn't. The Union's own office employeesor for some other silly charge. earn about the same as you do, and they don't get 6 . W h at does joining a union mean? The U.S. Su- cost-of-living increases. There is no set time for in- preme Court put it this way: Joining a union "extin- creases, while you get reviewed twice a year. guishes t h e individual employee's power to order Your salary and benefit package is every bit as his o w n relations with his employer and creates a good as what the Union pays, and probably a lot poe v est e d in t h e c ho s en rprsti t o ac t in better. You don't need a union to get the best this t h e int e r e st s o f all employees." What this means is Company has to offer. t h at you w o u ld lo se your individual rights, and in Vote for yourselves on January 10. Vote NO. return some stranger would do your talking-and Vote for yourselves on January 10. Vote NO.yuthnigfro. your thinking for you. To Our Employees: B e sure to vote. Some of you have said that you want no part of the union and that you don't want The Labor Board election will be held on Thurs- to vote. That's wrong. If you don't want the union day, January 10, 1980 in the vacant office across the but don't vote, you're really helping the union get hall. The polls will be open from 3:00 p.m. to 3:30 in here. You've got to cast your ballot while the p.m. and you may vote at anytime during that 30 polls are open. Otherwise, you'll be letting someone minute period,.else decide your future. PROGRESSIVE SUPERMARKETS, INC. 521 Before you vote, remember all the benefits you a small number of people involved, a total of about now enjoy, benefits that not only exceed what other 15. We see each other everyday, and if any of you office employees in this area get but are also as have any problems, you are free to bring them to us good as, if not better than, what the store employ- right away, directly without interference by anyone ees get. These benefits include 11 paid holidays a else. You don't need a union to do your talking for year; an excellent paid vacation schedule; 12 days of you as far as your relationship with us is concerned. sick leave per year; an excellent That makes it a bit different from the situation in medical/hospitalization/major medical policy; fu- the stores. In the stores, there are a number of neral leave; a pension plan; competitive salaries levels of management between Mr. Gold and the with regular reviews and regular increases; a com- employees. That doesn't hold true here in the office. fortable place to work; and steady work with no What I am saying is, if you have any problems layoffs. you can bring them directly to us, without having You didn't need a union to get these benefits, and to pay a union $10 or $12 a month in dues to do you don't need a union to keep them and to im- your talking for you. Unions tend to be devisive, prove upon them. and they cause problems simply to justify their ex- I hope that you'll give a lot of thought to this im- istence. We don't need that kind of aggravation portant election, and that you'll vote NO on Janu- here in the office, not you and not me. I had always ary 10. liked to think that we could resolve our problems B. The Speeches together. I really don't know what makes you think that you need an outside party to do that for you All the speeches were made to all the employees pres- now. ent on that particular day. The first speech was made by There is, however, one thing that I have heard Cimini on December 20 in the office. The prepared that distresses me because it demonstrates that the speech that Cimini had in his hand on this occasion, is as union is trying to sell you a bill of goods. I under- follows: stand that the union has been telling you that if it wins an election here, the employees in the office I'm sure all of you know what this meeting is all will get thetore rtes of pay. rnkly, I dont about. For reasons that I'm only now becoming blame emloees or wanting to make more mone aware of, a number of you have gone to the union T b am e the Ameesrica wa. nng to m ak e tore monefy and have asked for union representation. As youThat's he American way But I hope that none of know, there's going to be an election here on you will be fooled into believing that if the union Thursday, January 10, 1980, at which all of the gets in here, you will automatically get what the people in the office, with the exception of two su- food employees are getting in the stores. pervisors, will be able to vote by secret ballot about First of all, there is nothing automatic about any- whether or not you want a union to be your exclu- thing even if the union wins an election. If the sive bargaining representative. union were to win the election, all it would win The Company's position in all of this is pretty would be the right to sit down and negotiate with clear, and I want to make sure that all of you un- us about your wages and working conditions. That's derstand it. We do not think that you need a union all we would have to do. We would have to bar- to get the very best that this Company has to offer, gain with the union in good faith. The union would and we hope that you will vote No in the election be free to make certain demands, and we would be on January 10. free to make demands of our own. And if we could We think that a union would be a mistake, both not reach agreement, all the union could do would for the Company and for you. Between now and be to call you out on strike in an effort to try to January 10, we intend to explain our position to you force us to agree to its demands. I'll be talking more and we hope that you will agree with us, or that at about these bargaining obligations and the business least a majority of you will agree with us, that you of strikes at another meeting. don't need a union here. The most important thing I would like to get You may be asking yourselves why the Company across to you right now is that there is a major dis- is opposed to a union here in the office when it has tinction between the work done by the food em- the very same union representing its employees in ployees in the stores and the work done by non- its store in Northern New Jersey. Well, the reason food employees in the stores and by you people is pretty simple. We know what having a union here in the office. The food employees work long means. It means a lot of problems, both for the em- hours, standing on their feet, dealing face to face ployees and for the Company. We're stuck with it with customers, handling cash, and generally per- in the stores, and there's nothing we can really do forming work that is harder physically than the about it so we have learned to live with it. But the work that you do here in the office. I don't think stores are remote from the office. Mr. Gold and I that there's any reason in the world why you aren't out there on a regular basis, and we don't should expect to be paid more than, or even as know the people and we can't handle their prob- much as, the food employees in the stores. Your lems directly. But the office is another situation en- work is a great deal easier from a physical stand- tirely. Mr. Gold and I are here all the time. There's point. You sit in a nice office, you perform work at PROGRESSIVE SUPERMARKETS, INC. 521 Before you vote, remember all the benefits you a small number of people involved, a total of about now enjoy, benefits that not only exceed what other 15. We see each other everyday, and if any of you office employees in this area get but are also as have any problems, you are free to bring them to us good as, if not better than, what the store employ- right away, directly without interference by anyone ees get. These benefits include 11 paid holidays a else. You don't need a union to do your talking for year; an excellent paid vacation schedule; 12 days of you as far as your relationship with us is concerned. sick leave per year; an excellent That makes it a bit different from the situation in medical/hospitalization/major medical policy; fu- the stores. In the stores, there are a number of neral leave; a pension plan; competitive salaries levels of management between Mr. Gold and the with regular reviews and regular increases; a com- employees. That doesn't hold true here in the office. fortable place to work; and steady work with no What I am saying is, if you have any problems layoffs. you can bring them directly to us, without having You didn't need a union to get these benefits, and to pay a union $10 or $12 a month in dues to do you don't need a union to keep them and to im- your talking for you. Unions tend to be devisive, prove upon them. and they cause problems simply to justify their ex- I hope that you'll give a lot of thought to this im- istence. We don't need that kind of aggravation portant election, and that you'll vote NO on Janu- here in the office, not you and not me. I had always ar y 10. liked to think that we could resolve our problems B. The Speeches together. I really don't know what makes you think that you need an outside party to do that for you All the speeches were made to all the employees pres- now. ent on that particular day. The first speech was made by There is, however, one thing that I have heard Cimini on December 20 in the office. The prepared that distresses me because it demonstrates that the speech that Cimini had in his hand on this occasion, is as union is trying to sell you a bill of goods. I under- follows: stand that the union has been telling you that if it I'm sure all of you know what this meeting is all w in s an el ec t io n h er e, th employees in the office about. For reasons that I'm only now becoming w l l g et t h e st o r e r at es o f pay F raky, I do n t aware of, a number of you have gone to the union bl am e employees for wanting to make more money. and have asked for union representation. As you That's the American way. But I hope that none of know, there's going to be an election here on you w il l b e fo o l ed int o believing t h at if t he u nio n Thursday, January 10, 1980, at which all of the gets in h e re, you w ill automatically get what the people in the office, with the exception of two su- fo o d employees are getting in the stores. pervisors, will be able to vote by secret ballot about Firs t o f all, t h er e is nothing automatic about any- whether or not you want a union to be your exclu- thing e v en if th e u n i o n w in s an election. If the sive bargaining representative. un io n w er e to win the election, all it would win The Company's position in all of this is pretty w o ul d be the right to sit down and negotiate with clear, and I want to make sure that all of you un- u s ab o ut your wages and working conditions. That's derstand it. We do not think that you need a union all we would have to do. We would have to bar- to get the very best that this Company has to offer, gain with the union in good faith. The union would and we hope that you will vote No in the election b e free to m ake certain demands, and we would be on January 10. free to make demands of our own. And if we could We think that a union would be a mistake, both not reach agreement, all the union could do would for the Company and for you. Between now and b e to call you out on strike in an effort to try to January 10, we intend to explain our position to you force us to agree to its demands. I'll be talking more and we hope that you will agree with us, or that at about these bargaining obligations and the business least a majority of you will agree with us, that you of strikes at another meeting. don't need a union here. The most important thing I would like to get You may be asking yourselves why the Company across to you right now is that there is a major dis- is opposed to a union here in the office when it has tinction between the work done by the food em- the very same union representing its employees in ployees in the stores and the work done by non- its store in Northern New Jersey. Well, the reason food employees in the stores and by you people is pretty simple. We know what having a union here in the office. The food employees work long means. It means a lot of problems, both for the em- hours, standing on their feet, dealing face to face ployees and for the Company. We're stuck with it with customers, handling cash, and generally per- in the stores, and there's nothing we can really do forming work that is harder physically than the about it so we have learned to live with it. But the work that you do here in the office. I don't think stores are remote from the office. Mr. Gold and I that there's any reason in the world why you aren't out there on a regular basis, and we don't should expect to be paid more than, or even as know the people and we can't handle their prob- much as, the food employees in the stores. Your lems directly. But the office is another situation en- work is a great deal easier from a physical stand- tirely. Mr. Gold and I are here all the time. There's point. You sit in a nice office, you perform work at PROGRESSIVE SUPERMARKETS, INC. 521 Before you vote, remember all the benefits you a small number of people involved, a total of about now enjoy, benefits that not only exceed what other 15. We see each other everyday, and if any of you office employees in this area get but are also as have any problems, you are free to bring them to us good as, if not better than, what the store employ- right away, directly without interference by anyone ees get. These benefits include 11 paid holidays a else. You don't need a union to do your talking for year; an excellent paid vacation schedule; 12 days of you as far as your relationship with us is concerned. sick leave per year; an excellent That makes it a bit different from the situation in medical/hospitalization/major medical policy; fu- the stores. In the stores, there are a number of neral leave; a pension plan; competitive salaries levels of management between Mr. Gold and the with regular reviews and regular increases; a com- employees. That doesn't hold true here in the office. fortable place to work; and steady work with no What I am saying is, if you have any problems layoffs. you can bring them directly to us, without having You didn't need a union to get these benefits, and to pay a union $10 or $12 a month in dues to do you don't need a union to keep them and to im- your talking for you. Unions tend to be devisive, prove upon them. and they cause problems simply to justify their ex- I hope that you'll give a lot of thought to this im- istence. We don't need that kind of aggravation portant election, and that you'll vote NO on Janu- here in the office, not you and not me. I had always ar y 10. liked to think that we could resolve our problems B. The Speeches together. I really don't know what makes you think that you need an outside party to do that for you All the speeches were made to all the employees pres- now. ent on that particular day. The first speech was made by There is, however, one thing that I have heard Cimini on December 20 in the office. The prepared that distresses me because it demonstrates that the speech that Cimini had in his hand on this occasion, is as union is trying to sell you a bill of goods. I under- follows: stand that the union has been telling you that if it I'm sure all of you know what this meeting is all w in s an el ec t io n h er e, th employees in the office about. For reasons that I'm only now becoming w l l g et t h e st o r e r at es o f pay F raky, I do n t aware of, a number of you have gone to the union bl am e employees for wanting to make more money. and have asked for union representation. As you That's the American way. But I hope that none of know, there's going to be an election here on you w il l b e fo o l ed int o believing t h at if t he u nio n Thursday, January 10, 1980, at which all of the gets in h e re, you w ill automatically get what the people in the office, with the exception of two su- fo o d employees are getting in the stores. pervisors, will be able to vote by secret ballot about Firs t o f all, t h er e is nothing automatic about any- whether or not you want a union to be your exclu- thing e v en if th e u n i o n w in s an election. If the sive bargaining representative. un io n w er e to win the election, all it would win The Company's position in all of this is pretty w o ul d b e the right to sit down and negotiate with clear, and I want to make sure that all of you un- u s ab o ut your wages and working conditions. That's derstand it. We do not think that you need a union all we would have to do. We would have to bar- to get the very best that this Company has to offer, gain with the union in good faith. The union would and we hope that you will vote No in the election b e free to make certain demands, and we would be on January 10. free to make demands of our own. And if we could We think that a union would be a mistake, both not reach agreement, all the union could do would for the Company and for you. Between now and b e to call you out on strike in an effort to try to January 10, we intend to explain our position to you force us to agree to its demands. I'll be talking more and we hope that you will agree with us, or that at about these bargaining obligations and the business least a majority of you will agree with us, that you of strikes at another meeting. don't need a union here. The most important thing I would like to get You may be asking yourselves why the Company across to you right now is that there is a major dis- is opposed to a union here in the office when it has tinction between the work done by the food em- the very same union representing its employees in ployees in the stores and the work done by non- its store in Northern New Jersey. Well, the reason food employees in the stores and by you people is pretty simple. We know what having a union here in the office. The food employees work long means. It means a lot of problems, both for the em- hours, standing on their feet, dealing face to face ployees and for the Company. We're stuck with it with customers, handling cash, and generally per- in the stores, and there's nothing we can really do forming work that is harder physically than the about it so we have learned to live with it. But the work that you do here in the office. I don't think stores are remote from the office. Mr. Gold and I that there's any reason in the world why you aren't out there on a regular basis, and we don't should expect to be paid more than, or even as know the people and we can't handle their prob- much as, the food employees in the stores. Your lems directly. But the office is another situation en- work is a great deal easier from a physical stand- tirely. Mr. Gold and I are here all the time. There's point. You sit in a nice office, you perform work at PROGRESSIVE SUPERMARKETS, INC. 521 Before you vote, remember all the benefits you a small number of people involved, a total of about now enjoy, benefits that not only exceed what other 15. We see each other everyday, and if any of you office employees in this area get but are also as have any problems, you are free to bring them to us good as, if not better than, what the store employ- right away, directly without interference by anyone ees get. These benefits include 11 paid holidays a else. You don't need a union to do your talking for year; an excellent paid vacation schedule; 12 days of you as far as your relationship with us is concerned. sick leave per year; an excellent That makes it a bit different from the situation in medical/hospitalization/major medical policy; fu- the stores. In the stores, there are a number of neral leave; a pension plan; competitive salaries levels of management between Mr. Gold and the with regular reviews and regular increases; a com- employees. That doesn't hold true here in the office. fortable place to work; and steady work with no What I am saying is, if you have any problems layoffs. you can bring them directly to us, without having You didn't need a union to get these benefits, and to pay a union $10 or $12 a month in dues to do you don't need a union to keep them and to im- your talking for you. Unions tend to be devisive, prove upon them. and they cause problems simply to justify their ex- I hope that you'll give a lot of thought to this im- istence. We don't need that kind of aggravation portant election, and that you'll vote NO on Janu- here in the office, not you and not me. I had always ar y 10. liked to think that we could resolve our problems B. The Speeches together. I really don't know what makes you think that you need an outside party to do that for you All the speeches were made to all the employees pres- now. ent on that particular day. The first speech was made by There is, however, one thing that I have heard Cimini on December 20 in the office. The prepared that distresses me because it demonstrates that the speech that Cimini had in his hand on this occasion, is as union is trying to sell you a bill of goods. I under- follows: stand that the union has been telling you that if it I'm sure all of you know what this meeting is all w in s an el ec t io n h er e, th employees in the office about. For reasons that I'm only now becoming w l l g et t h e st o r e r at es o f pay Frankly I do n t aware of, a number of you have gone to the union bl am e employees for wanting to make more money. and have asked for union representation. As you That's the American way. But I hope that none of know, there's going to be an election here on you w il l b e fo o l ed int o believing t h at if t he u nio n Thursday, January 10, 1980, at which all of the gets in h e re, you w ill automatically get what the people in the office, with the exception of two su- fo o d employees are getting in the stores. pervisors, will be able to vote by secret ballot about Firs t o f all, t h er e is nothing automatic about any- whether or not you want a union to be your exclu- thing e v en if th e u n i o n w in s an election. If the sive bargaining representative. un io n w er e to win the election, all it would win The Company's position in all of this is pretty w o ul d b e the right to sit down and negotiate with clear, and I want to make sure that all of you un- u s ab o ut your wages and working conditions. That's derstand it. We do not think that you need a union all we would have to do. We would have to bar- to get the very best that this Company has to offer, gain with the union in good faith. The union would and we hope that you will vote No in the election b e free to make certain demands, and we would be on January 10. free to make demands of our own. And if we could We think that a union would be a mistake, both not reach agreement, all the union could do would for the Company and for you. Between now and b e to call you out on strike in an effort to try to January 10, we intend to explain our position to you force us to agree to its demands. I'll be talking more and we hope that you will agree with us, or that at about these bargaining obligations and the business least a majority of you will agree with us, that you of strikes at another meeting. don't need a union here. The most important thing I would like to get You may be asking yourselves why the Company across to you right now is that there is a major dis- is opposed to a union here in the office when it has tinction between the work done by the food em- the very same union representing its employees in ployees in the stores and the work done by non- its store in Northern New Jersey. Well, the reason food employees in the stores and by you people is pretty simple. We know what having a union here in the office. The food employees work long means. It means a lot of problems, both for the em- hours, standing on their feet, dealing face to face ployees and for the Company. We're stuck with it with customers, handling cash, and generally per- in the stores, and there's nothing we can really do forming work that is harder physically than the about it so we have learned to live with it. But the work that you do here in the office. I don't think stores are remote from the office. Mr. Gold and I that there's any reason in the world why you aren't out there on a regular basis, and we don't should expect to be paid more than, or even as know the people and we can't handle their prob- much as, the food employees in the stores. Your lems directly. But the office is another situation en- work is a great deal easier from a physical stand- tirely. Mr. Gold and I are here all the time. There's point. You sit in a nice office, you perform work at 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your own pace, you take breaks on a regular basis speech, he testified that he said everything that was in and whenever you want to, you work Monday the speech and said nothing that was not in the speech. through Friday only, and day shift hours only, and Later, in answer to a question from me as to whether he you generally have an easier time of it. Now, if any said anything that was not in the prepared speech, he tes- of you are really interested in doing store work, I'll tified: "Maybe one or two words as I took my eyes off be glad to do my best to get you a job in one of the the paper, that might have been changed." Cimini also stores. But you can't expect to get paid the very testified that he never said that Respondent would take same thing in an office that the food employees get whatever steps it had to in order to keep the Union out. in the stores. Evers testified that Cimini said that the Union was The union recognizes this. The union contracts trying to get into the office, and that the employees had that we have covering our store here in Northern great benefits and good salaries and that Respondent was New Jersey, our contract with Retail Clerks Local going to do everything it could to keep the Union out. 1262, has separate rates for full time food employees Plant testified that Cimini did not read from the speech, and for full time non-food employees. These non- but referred to it several times and elaborated on what it food employees earn considerably less than the food said. She also testified that Cimini said that the employ- employees, and they earn considerably less than you ees were all aware that the Union had made a demand do. For example, as of April 8, 1979 and continuing for recognition, but that he could not understand why until there is a raise of 20 cents an hour on April 6, the employees needed a union to get the best that Re- 1980, a non-food employee after six months will be spondent would have to offer. He then discussed the earning $3.35 an hour, going up to a high of $4.10 benefits they were receiving and how good they were an hour after two years of employment. That rate is and concluded by saying that Respondent would do any- significantly lower than the rates of pay you now thing it could to keep the Union out. Gerard testified enjoy. So don't kid yourselves into believing that that Cimini referred to the speech that he had in his the union is going to press for a food rate for office hand and said that there was going to be a secret-ballot people, or that if they do press for it, that we will election coming up and that he did not think the employ- ever agree to it. That's just not the way it works. Respondent had ees needed a union to get the best that Respondent had The union itself recognizes this. The Retail to offer and he could not understand why the employees Clerks Union, including Local 1262, have a contract tttt employees should have with Two Guys, and it provides for wage rates that u ta t e come to speak to him about it. Cimini then discussed the are just a little bit less than you people are now are just a little bit less than you people are now fact that Respondent's store employees are represented earning. Those are non-food rates, and the union re- alizes that rates of that nature are lower than the by unions, including the Union, but since he and Gold efood rates in the supermarketsae.loe tat were always available to the office employees they did I hopeod that none of you will be supermarket. not need a union to do their talking for them. He went lievig that f you vote the union in here, you will on to say that if the Union won the election all it would lieving that if you vote the union in here, you will automatically get the food store food rates. That's win was the right to sit dow and negotiate and the just not in the cards. The union might be promising company would be required to bargain in good faith and just not in the cards. The union might be promising if the parties could not reach an agreement all the Union it to you, and if it is it's not telling you the truth. I f the could not reach angreement all the Union can tell you here and now, however, that even if can tell you here and now, however, that even if could do would be to call a strike. He also said that Re- the union were to try to get that for you, we cer- spondent would do whatever they had to do to keep the tainly would not agree to it. Then, the only weapon union out. He then informed the employees of the differ- the union would have to try to force us to give in ence between the kind of work performed by Respond- would be to call you out on strike. I know that ent's store employees and its office employees and that none of you like that idea, and I know that I cer- the office employees could not expect the same rate of tainly don't either. But that's what it would take, a work as that received by its store employees. He in- long strike, if the union were to make the demand formed the employees that their fringe benefits were as for food employee rates in this office. good as those received by Respondent's store employees You don't need that kind of trouble, and neither and that their salaries were as good as that of other of- does the Company. We have a pretty good organi- fices employees in the area. zation here, and we do pretty well by you. Your Packard testified that Cimini told the employees that fringe benefits are every bit as good as the fringes they had good benefits and that he did not think they in the stores, and your salaries are every bit as good needed a union; if the Union did come in, everything as the salaries for other office employees in this would be negotiable. She testified that Cimini never said area. We compete pretty well in that regard, and that Respondent would do anything it had to keep the we shall continue to do so. Union out. Edwards testified that Cimini was holding Well, I've talked on a bit longer than I had in- papers in his hand reading from them; he informed them tended to, now, if any of you have any questions, of the upcoming election and that Respondent did not I'll be glad to answer them for you. think that they needed a union to get the best that Re- spondent had to offer; that the Union would be a mistake Cimini first testified that "I basically read it. I read the for the employees and Respondent. He said that the whole thing." He then testified," I would say ninety nine Union has represented its store employees, but he and percent of the speech I read." After looking over the Gold are not in the stores, but in the office and able to 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your own pace, you take breaks on a regular basis speech, he testified that he said everything that was in and whenever you want to, you work Monday the speech and said nothing that was not in the speech. through Friday only, and day shift hours only, and Later, in answer to a question from me as to whether he you generally have an easier time of it. Now, if any said anything that was not in the prepared speech, he tes- of you are really interested in doing store work, I'll tified: "Maybe one or two words as I took my eyes off be glad to do my best to get you a job in one of the the paper, that might have been changed." Cimini also stores. But you can't expect to get paid the very testified that he never said that Respondent would take same thing in an office that the food employees get whatever steps it had to in order to keep the Union out. in the stores. Evers testified that Cimini said that the Union was The union recognizes this. The union contracts trying to get into the office, and that the employees had that we have covering our store here in Northern great benefits and good salaries and that Respondent was New Jersey, our contract with Retail Clerks Local going to do everything it could to keep the Union out. 1262, has separate rates for full time food employees Plant testified that Cimini did not read from the speech, and for full time non-food employees. These non- but referred to it several times and elaborated on what it food employees earn considerably less than the food said. She also testified that Cimini said that the employ- employees, and they earn considerably less than you ees were all aware that the Union had made a demand do. For example, as of April 8, 1979 and continuing for recognition, but that he could not understand why until there is a raise of 20 cents an hour on April 6, the employees needed a union to get the best that Re- 1980, a non-food employee after six months will be spondent would have to offer. He then discussed the earning $3.35 an hour, going up to a high of $4.10 benefits they were receiving and how good they were an hour after two years of employment. That rate is and concluded by saying that Respondent would do any- significantly lower than the rates of pay you now thing it could to keep the Union out. Gerard testified enjoy. So don't kid yourselves into believing that that Cimini referred to the speech that he had in his the union is going to press for a food rate for office hand and said that there was going to be a secret-ballot people, or that if they do press for it, that we will election coming up and that he did not think the employ- ever agree to it. That's just not the way it works. ee n a u t g t Respondent had The union itself recognizes this. The Retail t o a he c understand why the employees Clerks Union, including Local 1262, have a contract w a employees should have with Two Guys, and it provides for wage rates that, .. , .<.'. . ,.. withTwo uys andit povies fr wae rtes hat come to speak to him about it. Cirnini then discussed the are just a little bit less than you people are now c o e o p a o l a o t l - Q l m t e l c s e h earen Those a arite bit -food thanesaeodleareuniow re fa c t t h at Respondent's store employees are represented earning. Those are non-food rates, and the union re- byuinncdngteUobtsneheadGl alizes that rates of that nature are lower than the b y un lo n s, in c l u din g the Union, but since he and Gold food rates in the supermarkets an w er e al w a y s a vail ab le t o th e o fi c e employees they did food ratesin the suprmarkets.not need a union to do their talking for them. He went I hope that none of you will be fooled into be- n t e d a l o o t h r t l k g f r t e m H w t I hope that noneiof you wthuillbefooiheed intou be- o n t o sa y th at if t h e Union won the election all it would lieving that if you vote the union in here, you will wiwathrgttostd nadnetaeadte automatically get the food store food rates. That's cw m n w as th e r e g h t t o s bra d o w n an d negotiate and the just not in the cards. The union might be promising iftepari w o u l d b e squired to bargain in good faith and it to you, and if it is it's not telling you the truth. I if t h e parie c o u l d " o t re ac h an agreement all the Union it o yu, nd f i isit' nt tllig yu te tuth I could do would be to call a strike. He also said that Re- can tell you here and now, however, that even if the union were to try to get that for you, we cer- spondent would do whatever they had to do to keep the tainly would not agree to it. Then, the only weapon union out. He then informed the employees of the differ- the union would have to try to force us to give in ence between the kind of work performed by Respond- would be to call you out on strike. I know that e nt' s s t o r e employees and its office employees and that none of you like that idea, and I know that I cer- t h e offic e employees could not expect the same rate of tainly don't either. But that's what it would take, a w o r k as t h at received by its store employees. He in- long strike, if the union were to make the demand f o r m ed the employees that their fringe benefits were as for food employee rates in this office. good as those received by Respondent's store employees You don't need that kind of trouble, and neither an d t h at their salaries were as good as that of other of- does the Company. We have a pretty good organi- fices employees in the area. zation here, and we do pretty well by you. Your Packard testified that Cimini told the employees that fringe benefits are every bit as good as the fringes they had good benefits and that he did not think they in the stores, and your salaries are every bit as good needed a union; if the Union did come in, everything as the salaries for other office employees in this would be negotiable. She testified that Cimini never said area. We compete pretty well in that regard, and that Respondent would do anything it had to keep the we shall continue to do so. Union out. Edwards testified that Cimini was holding Well, I've talked on a bit longer than I had in- papers in his hand reading from them; he informed them tended to, now, if any of you have any questions, of the upcoming election and that Respondent did not I'll be glad to answer them for you. think that they needed a union to get the best that Re- spondent had to offer; that the Union would be a mistake Cimini first testified that "I basically read it. I read the for the employees and Respondent. He said that the whole thing." He then testified," I would say ninety nine Union has represented its store employees, but he and percent of the speech I read." After looking over the Gold are not in the stores, but in the office and able to 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your own pace, you take breaks on a regular basis speech, he testified that he said everything that was in and whenever you want to, you work Monday the speech and said nothing that was not in the speech. through Friday only, and day shift hours only, and Later, in answer to a question from me as to whether he you generally have an easier time of it. Now, if any said anything that was not in the prepared speech, he tes- of you are really interested in doing store work, I'll tified: "Maybe one or two words as I took my eyes off be glad to do my best to get you a job in one of the the paper, that might have been changed." Cimini also stores. But you can't expect to get paid the very testified that he never said that Respondent would take same thing in an office that the food employees get whatever steps it had to in order to keep the Union out. in the stores. Evers testified that Cimini said that the Union was The union recognizes this. The union contracts trying to get into the office, and that the employees had that we have covering our store here in Northern great benefits and good salaries and that Respondent was New Jersey, our contract with Retail Clerks Local going to do everything it could to keep the Union out. 1262, has separate rates for full time food employees Plant testified that Cimini did not read from the speech, and for full time non-food employees. These non- but referred to it several times and elaborated on what it food employees earn considerably less than the food said. She also testified that Cimini said that the employ- employees, and they earn considerably less than you ees were all aware that the Union had made a demand do. For example, as of April 8, 1979 and continuing for recognition, but that he could not understand why until there is a raise of 20 cents an hour on April 6, the employees needed a union to get the best that Re- 1980, a non-food employee after six months will be spondent would have to offer. He then discussed the earning $3.35 an hour, going up to a high of $4.10 benefits they were receiving and how good they were an hour after two years of employment. That rate is and concluded by saying that Respondent would do any- significantly lower than the rates of pay you now thing it could to keep the Union out. Gerard testified enjoy. So don't kid yourselves into believing that that Cimini referred to the speech that he had in his the union is going to press for a food rate for office hand and said that there was going to be a secret-ballot people, or that if they do press for it, that we will election coming up and that he did not think the employ- ever agree to it. That's just not the way it works. ee n a u t g t Respondent had The union itself recognizes this. The Retail t o a he c understand why the employees Clerks Union, including Local 1262, have a contract w a employees should have with Two Guys, and it provides for wage rates that, .. , .<.'. . ,.. withTwo uys andit povies fr wae rtes hat come to speak to him about it. Cirnini then discussed the are just a little bit less than you people are now c m t s e k o h ab u Q l h n d s u s d th earen Those a arite bit -food thanesaeodleareuniow re fa c t t h at Respondent's store employees are represented earning. Those are non-food rates, and the union re- byuinncdngteUobtsneheadGl alizes that rates of that nature are lower than the b y un lo n s, including the Union, but since he and Gold food rates in the supermarkets an w er e al w a y s a vail ab le t o t h e o fi c e employees they did food ratesin the suprmarkets.not need a union to do their talking for them. He went I hope that none of you will be fooled into be- n t e d a l o o t h r t l k g f r t e m H w t I hope that noneiof you wthuillbefooiheed intou be- o n t o sa y th at if t h e Union won the election all it would lieving that if you vote the union in here, you will wiwathrgttostd nadnetaeadte automatically get the food store food rates. That's cw m n w as th e r e g h t t o s bra d o w n an d negotiate and the just not in the cards. The union might be promising iftepari w o u l d b e required to bargain in good faith and it to you, and if it is it's not telling you the truth. I if t h e parie c o u l d " o t re ac h an agreement all the Union it o yu, nd f i isit' nt tllig yu te tuth I could do would be to call a strike. He also said that Re- can tell you here and now, however, that even if the union were to try to get that for you, we cer- spondent would do whatever they had to do to keep the tainly would not agree to it. Then, the only weapon union out. He then informed the employees of the differ- the union would have to try to force us to give in ence between the kind of work performed by Respond- would be to call you out on strike. I know that e nt' s s t o r e employees and its office employees and that none of you like that idea, and I know that I cer- t h e office employees could not expect the same rate of tainly don't either. But that's what it would take, a w o r k as that received by its store employees. He in- long strike, if the union were to make the demand f o rmed the employees that their fringe benefits were as for food employee rates in this office. good as those received by Respondent's store employees You don't need that kind of trouble, and neither an d t h at their salaries were as good as that of other of- does the Company. We have a pretty good organi- fices employees in the area. zation here, and we do pretty well by you. Your Packard testified that Cimini told the employees that fringe benefits are every bit as good as the fringes they had good benefits and that he did not think they in the stores, and your salaries are every bit as good needed a union; if the Union did come in, everything as the salaries for other office employees in this would be negotiable. She testified that Cimini never said area. We compete pretty well in that regard, and that Respondent would do anything it had to keep the we shall continue to do so. Union out. Edwards testified that Cimini was holding Well, I've talked on a bit longer than I had in- papers in his hand reading from them; he informed them tended to, now, if any of you have any questions, of the upcoming election and that Respondent did not I'll be glad to answer them for you. think that they needed a union to get the best that Re- spondent had to offer; that the Union would be a mistake Cimini first testified that "I basically read it. I read the for the employees and Respondent. He said that the whole thing." He then testified," I would say ninety nine Union has represented its store employees, but he and percent of the speech I read." After looking over the Gold are not in the stores, but in the office and able to 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your own pace, you take breaks on a regular basis speech, he testified that he said everything that was in and whenever you want to, you work Monday the speech and said nothing that was not in the speech. through Friday only, and day shift hours only, and Later, in answer to a question from me as to whether he you generally have an easier time of it. Now, if any said anything that was not in the prepared speech, he tes- of you are really interested in doing store work, I'll tified: "Maybe one or two words as I took my eyes off be glad to do my best to get you a job in one of the the paper, that might have been changed." Cimini also stores. But you can't expect to get paid the very testified that he never said that Respondent would take same thing in an office that the food employees get whatever steps it had to in order to keep the Union out. in the stores. Evers testified that Cimini said that the Union was The union recognizes this. The union contracts trying to get into the office, and that the employees had that we have covering our store here in Northern great benefits and good salaries and that Respondent was New Jersey, our contract with Retail Clerks Local going to do everything it could to keep the Union out. 1262, has separate rates for full time food employees Plant testified that Cimini did not read from the speech, and for full time non-food employees. These non- but referred to it several times and elaborated on what it food employees earn considerably less than the food said. She also testified that Cimini said that the employ- employees, and they earn considerably less than you ees were all aware that the Union had made a demand do. For example, as of April 8, 1979 and continuing for recognition, but that he could not understand why until there is a raise of 20 cents an hour on April 6, the employees needed a union to get the best that Re- 1980, a non-food employee after six months will be spondent would have to offer. He then discussed the earning $3.35 an hour, going up to a high of $4.10 benefits they were receiving and how good they were an hour after two years of employment. That rate is and concluded by saying that Respondent would do any- significantly lower than the rates of pay you now thing it could to keep the Union out. Gerard testified enjoy. So don't kid yourselves into believing that that Cimini referred to the speech that he had in his the union is going to press for a food rate for office hand and said that there was going to be a secret-ballot people, or that if they do press for it, that we will election coming up and that he did not think the employ- ever agree to it. That's just not the way it works. ee n a u t g t Respondent had The union itself recognizes this. The Retail t o a he c understand why the employees Clerks Union, including Local 1262, have a contract w a employees should have with Two Guys, and it provides for wage rates that, .. , .<.'. . ,.. withTwo uys andit povies fr wae rtes hat come to speak to him about it. Cirnini then discussed the are just a little bit less than you people are now c m t s e k o h ab u Q l h n d s u s d th earen Those a arite bit -food thanesaeodleareuniow re fa c t t h at Respondent's store employees are represented earning. Those are non-food rates, and the union re- byuinncdngteUobtsneheadGl alizes that rates of that nature are lower than the b y un lo n s, including the Union, but since he and Gold food rates in the supermarkets an w er e al w a y s a vail ab le t o t h e o fi c e employees they did food ratesin the suprmarkets.not need a union to do their talking for them. He went I hope that none of you will be fooled into be- n t e d a l o o t h r t l k g f r t e m H w t I hope that noneiof you wthuillbefooiheed intou be- o n t o sa y th at if t h e Union won the election all it would lieving that if you vote the union in here, you will wiwathrgttostd nadnetaeadte automatically get the food store food rates. That's cw m n w as th e r e g h t t o s bra d o w n an d negotiate and the just not in the cards. The union might be promising iftepari w o u l d b e required to bargain in good faith and it to you, and if it is it's not telling you the truth. I if t h e parie c o u l d " o t re ac h an agreement all the Union it o yu, nd f i isit' nt tllig yu te tuth I could do would be to call a strike. He also said that Re- can tell you here and now, however, that even if the union were to try to get that for you, we cer- spondent would do whatever they had to do to keep the tainly would not agree to it. Then, the only weapon union out. He then informed the employees of the differ- the union would have to try to force us to give in ence between the kind of work performed by Respond- would be to call you out on strike. I know that e nt' s s t o r e employees and its office employees and that none of you like that idea, and I know that I cer- t h e office employees could not expect the same rate of tainly don't either. But that's what it would take, a w o r k as that received by its store employees. He in- long strike, if the union were to make the demand f o rmed the employees that their fringe benefits were as for food employee rates in this office. good as those received by Respondent's store employees You don't need that kind of trouble, and neither an d t h at their salaries were as good as that of other of- does the Company. We have a pretty good organi- fices employees in the area. zation here, and we do pretty well by you. Your Packard testified that Cimini told the employees that fringe benefits are every bit as good as the fringes they had good benefits and that he did not think they in the stores, and your salaries are every bit as good needed a union; if the Union did come in, everything as the salaries for other office employees in this would be negotiable. She testified that Cimini never said area. We compete pretty well in that regard, and that Respondent would do anything it had to keep the we shall continue to do so. Union out. Edwards testified that Cimini was holding Well, I've talked on a bit longer than I had in- papers in his hand reading from them; he informed them tended to, now, if any of you have any questions, of the upcoming election and that Respondent did not I'll be glad to answer them for you. think that they needed a union to get the best that Re- spondent had to offer; that the Union would be a mistake Cimini first testified that "I basically read it. I read the for the employees and Respondent. He said that the whole thing." He then testified," I would say ninety nine Union has represented its store employees, but he and percent of the speech I read." After looking over the Gold are not in the stores, but in the office and able to PROGRESSIVE SUPERMARKETS, INC. 523 deal directly with the office employees and that they did way things go in the political arena, and a Labor not need a union to do their talking for them. He said Board election is no less political than an election that they did not need to pay dues when you can discuss for presidents, for congressmen, or for mayor. any problems directly with Respondent. He then said In fact, a Labor Board election is probably a bit that even if the Union won the election, the office em- more important to each of you than is a political ployees would not get the store rates of pay, that all the election, because the Labor Board election will Union would win would be the right to negotiate with have a very direct, immediate and real impact upon Respondent. He informed them that their fringe benefits your working lives. What I mean is, if the Union were as good as that of the store employees. Edwards gets in here, your working lives are going to be testified on direct examination that Cimini said that Re- very radically affected. And when I talk about spondent would do anything to keep the Union out. being "radically affected," I don't mean affected for During a point-by-point questioning on cross-examination the good, but for the bad. I really believe that if about Cimini's speech, she did not again refer to this you vote a union in here, you'll be hurting the statement. Company but, most importantly, you'll be hurting Gold made his first speech on January 4. He testified yourselves. that on this occasion, and for his second speech on Janu- Why do I say this? As I have said before, we get ary 9, he had with him the speech that was prepared for along with Local 1262 in our store, and I don't him by Respondent's counsel. Gold testified in the fol- thing (sic) it is a bad union for the store employees. lowing manner of the use he made of the prepared text But I think it would (sic) an unmitigated disaster for in both of these speeches: you here in the office. Q. How did you use them? After all, what is it that you really hope to gain A. I read them to a great degree. I used some of by getting a union in here? It would be one thing if my own words, but I followed the content meaning you were badly treated on a personal basis here at of the speeches completely. the office. I could understand it if I or anyone else Q. Did you vary the content of the speeches at in the management of this Company treated you all? with disrespect, fired people without reason, or gen- A. Perhaps in one instance when I mentioned erally did bad things to you. But that's not the case. that there could be a time clock. We do our level best to treat you fairly and with Q. All right, but except for time clocks you fol- the respect and dignity to which you are entitled. lowed the speeches, is that correct? You don't need a union to get that, and I don't A. That is right. think that any of you should have any claim that we have not treated you fairly and with respect. If In answer to questions from the General Counsel, any of you think differently, I would really like to Gold testified as follows: hear about it. It would be another thing if your fringe benefits Q. And while you followed the text fairly close- were bad. But that's not the case. Your fringe bene- ly, you also deviated from the speech somewhat, fit package is an outstanding one, every bit is good did you not? as to what the employees have in the store and cer- A. Not to any great extent. tainly better than what the union itself provides to Q. But you did say things that were not in these its office employees. You've got 11 holidays a year, speeches themself? 8 of them fixed holidays and 3 personal days. A. A word here and a word there. You've got an outstanding vacation schedule, with Q. Are you saying that you read right from the one-week vacation after six months, two weeks text? N.after one year, and three weeks after five years. In ~~~~~~~A.' No" ,., * .~. ,fact, your vacation schedule is more favorable than Q. How did you give the speech then? In what what the employees in the store have. You've got fashion? If you didn't read from the text? funeral leave, whenever anyone is unfortunate A. I just used my own language. enough to need it. You've got twelve days a year of Gold testified that preceding these speeches he had sick leave, more than they have in the stores. learned that the Union had promised the employees that You've got medical, hospitalization and major medi- their wages would be increased to the level of Respond- cal insurance, including dental and optical insur- ent's store employees and that whatever benefits they ance. The Company pays for that for each of you. had could only increase in negotiations. The prepared You've got an outstanding pension plan, and you've text that Gold had in his hand for his first speech on Jan- got life insurance, paid for by the Company. That uary 4 is as follows: fringe benefit package is every bit as good as you would hope to get, and is a lot better than what the It's only a week now until the Labor election on union itself has for its own employees in this office. January 10. I'm sure that many of you are getting I'll talk a little bit more about that later. tired of hearing from the Company, and I'm sure As far as your wages are concerned, your salary you are hearing from the Union as well, about how rates are in line with what other people pay for you should vote in this election. Well, that's the office personnel in this area, and perhaps a little PROGRESSIVE SUPERMARKETS, INC. 523 deal directly with the office employees and that they did way things go in the political arena, and a Labor not need a union to do their talking for them. He said Board election is no less political than an election that they did not need to pay dues when you can discuss for presidents, for congressmen, or for mayor. any problems directly with Respondent. He then said In fact, a Labor Board election is probably a bit that even if the Union won the election, the office em- more important to each of you than is a political ployees would not get the store rates of pay, that all the election, because the Labor Board election will Union would win would be the right to negotiate with have a very direct, immediate and real impact upon Respondent. He informed them that their fringe benefits your working lives. What I mean is, if the Union were as good as that of the store employees. Edwards gets in here, your working lives are going to be testified on direct examination that Cimini said that Re- very radically affected. And when I talk about spondent would do anything to keep the Union out. being "radically affected," I don't mean affected for During a point-by-point questioning on cross-examination the good, but for the bad. I really believe that if about Cimini's speech, she did not again refer to this you vote a union in here, you'll be hurting the statement. Company but, most importantly, you'll be hurting Gold made his first speech on January 4. He testified yourselves. that on this occasion, and for his second speech on Janu- Why do I say this? As I have said before, we get ary 9, he had with him the speech that was prepared for along with Local 1262 in our store, and I don't him by Respondent's counsel. Gold testified in the fol- thing (sic) it is a bad union for the store employees. lowing manner of the use he made of the prepared text But I think it would (sic) an unmitigated disaster for in both of these speeches: you here in the office. Q. How did you use them? A f t er all, what is it that you really hope to gain A. I read them to a great degree. I used some of by getting a union in here? It would be one thing if my own words, but I followed the content meaning you w e re ba d ly treated on a personal basis here at of the speeches completely. the o ffi c e . I c o u l d understand it if I or anyone else Q. Did you vary the content of the speeches at in the management of this Company treated you all? with disrespect, fired people without reason, or gen- A. Perhaps in one instance when I mentioned erally did bad things to you. But that's not the case. that there could be a time clock. We do our level best to treat you fairly and with Q. All right, but except for time clocks you fol- the respect and dignity to which you are entitled. lowed the speeches, is that correct? You don't need a union to get that, and I don't A. That is right. think that any of you should have any claim that we have not treated you fairly and with respect. If In answer to questions from the General Counsel, any of you think differently, I would really like to Gold testified as follows: hear about it. It would be another thing if your fringe benefits Q. And while you followed the text fairly close- were bad. But that's not the case. Your fringe bene- ly, you also deviated from the speech somewhat, fit package is an outstanding one, every bit is good did you not? as to what the employees have in the store and cer- A. Not to any great extent. tainly better than what the union itself provides to Q. But you did say things that were not in these its office employees. You've got 11 holidays a year, speeches themself? 8 of them fixed holidays and 3 personal days. A. A word here and a word there. You've got an outstanding vacation schedule, with Q. Are you saying that you read right from the one-week vacation after six months, two weeks t e x t ? after one year, and three weeks after five years. In A . N o " ,., * . . , » , ,fact, your vacation schedule is more favorable than Q. H o w did you give the speech then? In what what the employees in the store have. You've got fashion? If you didn't read from the text? funeral leave, whenever anyone is unfortunate A. I just used my own language. enough to need it. You've got twelve days a year of Gold testified that preceding these speeches he had sick leave, more than they have in the stores. learned that the Union had promised the employees that Y o u'v e got medical, hospitalization and major medi- their wages would be increased to the level of Respond- cal insurance, including dental and optical insur- ent's store employees and that whatever benefits they ance. The Company pays for that for each of you. had could only increase in negotiations. The prepared You've got an outstanding pension plan, and you've text that Gold had in his hand for his first speech on Jan- got life insurance, paid for by the Company. That uary 4 is as follows: fringe benefit package is every bit as good as you would hope to get, and is a lot better than what the It's only a week now until the Labor election on union itself has for its own employees in this office. January 10. I'm sure that many of you are getting I'll talk a little bit more about that later. tired of hearing from the Company, and I'm sure As far as your wages are concerned, your salary you are hearing from the Union as well, about how rates are in line with what other people pay for you should vote in this election. Well, that's the office personnel in this area, and perhaps a little PROGRESSIVE SUPERMARKETS, INC. 523 deal directly with the office employees and that they did way things go in the political arena, and a Labor not need a union to do their talking for them. He said Board election is no less political than an election that they did not need to pay dues when you can discuss for presidents, for congressmen, or for mayor. any problems directly with Respondent. He then said In fact, a Labor Board election is probably a bit that even if the Union won the election, the office em- more important to each of you than is a political ployees would not get the store rates of pay, that all the election, because the Labor Board election will Union would win would be the right to negotiate with have a very direct, immediate and real impact upon Respondent. He informed them that their fringe benefits your working lives. What I mean is, if the Union were as good as that of the store employees. Edwards gets in here, your working lives are going to be testified on direct examination that Cimini said that Re- very radically affected. And when I talk about spondent would do anything to keep the Union out. being "radically affected," I don't mean affected for During a point-by-point questioning on cross-examination the good, but for the bad. I really believe that if about Cimini's speech, she did not again refer to this you vote a union in here, you'll be hurting the statement. Company but, most importantly, you'll be hurting Gold made his first speech on January 4. He testified yourselves. that on this occasion, and for his second speech on Janu- Why do I say this? As I have said before, we get ary 9, he had with him the speech that was prepared for along with Local 1262 in our store, and I don't him by Respondent's counsel. Gold testified in the fol- thing (sic) it is a bad union for the store employees. lowing manner of the use he made of the prepared text But I think it would (sic) an unmitigated disaster for in both of these speeches: you here in the office. Q. How did you use them? A f t er all, what is it that you really hope to gain A. I read them to a great degree. I used some of by getting a union in here? It would be one thing if my own words, but I followed the content meaning you were badly treated on a personal basis here at of the speeches completely. the office. I could understand it if I or anyone else Q. Did you vary the content of the speeches at in the management of this Company treated you all? with disrespect, fired people without reason, or gen- A. Perhaps in one instance when I mentioned erally did bad things to you. But that's not the case. that there could be a time clock. We do our level best to treat you fairly and with Q. All right, but except for time clocks you fol- the respect and dignity to which you are entitled. lowed the speeches, is that correct? Y o u don't need a union to get that, and I don't A. That is right. think that any of you should have any claim that we have not treated you fairly and with respect. If In answer to questions from the General Counsel, any of you think differently, I would really like to Gold testified as follows: hear about it. It would be another thing if your fringe benefits Q. And while you followed the text fairly close- were bad. But that's not the case. Your fringe bene- ly, you also deviated from the speech somewhat, fit package is an outstanding one, every bit is good did you not? as to what the employees have in the store and cer- A. Not to any great extent. tainly better than what the union itself provides to Q. But you did say things that were not in these its office employees. You've got 11 holidays a year, speeches themself? 8 of them fixed holidays and 3 personal days. A. A word here and a word there. You've got an outstanding vacation schedule, with Q. Are you saying that you read right from the one-week vacation after six months, two weeks t ex t ? after one year, and three weeks after five years. In A . N o " ,., * . . , » , ,fact, your vacation schedule is more favorable than Q. H o w did you give the speech then? In what what the employees in the store have. You've got fashion? If you didn't read from the text? funeral leave, whenever anyone is unfortunate A. I just used my own language. enough to need it. You've got twelve days a year of Gold testified that preceding these speeches he had sick leave, more than they have in the stores. learned that the Union had promised the employees that Y o u 'v e got medical, hospitalization and major medi- their wages would be increased to the level of Respond- cal insurance, including dental and optical insur- ent's store employees and that whatever benefits they ance. The Company pays for that for each of you. had could only increase in negotiations. The prepared You've got an outstanding pension plan, and you've text that Gold had in his hand for his first speech on Jan- got life insurance, paid for by the Company. That uary 4 is as follows: fringe benefit package is every bit as good as you would hope to get, and is a lot better than what the It's only a week now until the Labor election on union itself has for its own employees in this office. January 10. I'm sure that many of you are getting I'll talk a little bit more about that later. tired of hearing from the Company, and I'm sure As far as your wages are concerned, your salary you are hearing from the Union as well, about how rates are in line with what other people pay for you should vote in this election. Well, that's the office personnel in this area, and perhaps a little PROGRESSIVE SUPERMARKETS, INC. 523 deal directly with the office employees and that they did way things go in the political arena, and a Labor not need a union to do their talking for them. He said Board election is no less political than an election that they did not need to pay dues when you can discuss for presidents, for congressmen, or for mayor. any problems directly with Respondent. He then said In fact, a Labor Board election is probably a bit that even if the Union won the election, the office em- more important to each of you than is a political ployees would not get the store rates of pay, that all the election, because the Labor Board election will Union would win would be the right to negotiate with have a very direct, immediate and real impact upon Respondent. He informed them that their fringe benefits your working lives. What I mean is, if the Union were as good as that of the store employees. Edwards gets in here, your working lives are going to be testified on direct examination that Cimini said that Re- very radically affected. And when I talk about spondent would do anything to keep the Union out. being "radically affected," I don't mean affected for During a point-by-point questioning on cross-examination the good, but for the bad. I really believe that if about Cimini's speech, she did not again refer to this you vote a union in here, you'll be hurting the statement. Company but, most importantly, you'll be hurting Gold made his first speech on January 4. He testified yourselves. that on this occasion, and for his second speech on Janu- Why do I say this? As I have said before, we get ary 9, he had with him the speech that was prepared for along with Local 1262 in our store, and I don't him by Respondent's counsel. Gold testified in the fol- thing (sic) it is a bad union for the store employees. lowing manner of the use he made of the prepared text But I think it would (sic) an unmitigated disaster for in both of these speeches: you here in the office. Q. How did you use them? A f t er all, what is it that you really hope to gain A. I read them to a great degree. I used some of by getting a union in here? It would be one thing if my own words, but I followed the content meaning you were badly treated on a personal basis here at of the speeches completely. the office. I could understand it if I or anyone else Q. Did you vary the content of the speeches at in the management of this Company treated you all? with disrespect, fired people without reason, or gen- A. Perhaps in one instance when I mentioned erally did bad things to you. But that's not the case. that there could be a time clock. We do our level best to treat you fairly and with Q. All right, but except for time clocks you fol- the respect and dignity to which you are entitled. lowed the speeches, is that correct? Y o u don't need a union to get that, and I don't A. That is right. think that any of you should have any claim that we have not treated you fairly and with respect. If In answer to questions from the General Counsel, any of you think differently, I would really like to Gold testified as follows: hear about it. It would be another thing if your fringe benefits Q. And while you followed the text fairly close- were bad. But that's not the case. Your fringe bene- ly, you also deviated from the speech somewhat, fit package is an outstanding one, every bit is good did you not? as to what the employees have in the store and cer- A. Not to any great extent. tainly better than what the union itself provides to Q. But you did say things that were not in these its office employees. You've got 11 holidays a year, speeches themself? 8 of them fixed holidays and 3 personal days. A. A word here and a word there. You've got an outstanding vacation schedule, with Q. Are you saying that you read right from the one-week vacation after six months, two weeks t ex t ? after one year, and three weeks after five years. In A . N o " ,., * . . , » , ,fact, your vacation schedule is more favorable than Q. H o w did you give the speech then? In what what the employees in the store have. You've got fashion? If you didn't read from the text? funeral leave, whenever anyone is unfortunate A. I just used my own language. enough to need it. You've got twelve days a year of Gold testified that preceding these speeches he had sick leave, more than they have in the stores. learned that the Union had promised the employees that Y o u 'v e got medical, hospitalization and major medi- their wages would be increased to the level of Respond- cal insurance, including dental and optical insur- ent's store employees and that whatever benefits they ance. The Company pays for that for each of you. had could only increase in negotiations. The prepared You've got an outstanding pension plan, and you've text that Gold had in his hand for his first speech on Jan- got life insurance, paid for by the Company. That uary 4 is as follows: fringe benefit package is every bit as good as you would hope to get, and is a lot better than what the It's only a week now until the Labor election on union itself has for its own employees in this office. January 10. I'm sure that many of you are getting I'll talk a little bit more about that later. tired of hearing from the Company, and I'm sure As far as your wages are concerned, your salary you are hearing from the Union as well, about how rates are in line with what other people pay for you should vote in this election. Well, that's the office personnel in this area, and perhaps a little 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better. Employees start here at $140 a week, and you might as well hear it now, and from me, be- get a $10 a week increase after 90 days. Thereafter, cause I'm sure that the union isn't talking about all of you are reviewed twice a year, and increases strikes with you. The only economic weapon a are given as deserved. I don't think anyone can union has, to try to force an employer to give in to honestly say that she is being unfairly treated or un- the union's demands, is to call the employees out on derpaid for the work she is doing. If anyone thinks strike. Remember, strikers don't get paid, and they that, I would certainly like to hear it. are not eligible for unemployment compensation Now here is what it (sic) my understanding that benefits. Moreover, the Company is under no obli- the union is offering. The union appears to be prom- gation to pay insurance premiums for strikers, so if ising-or at least some of you think that the union is employees go off on strike they might find that they promising-that if the union wins the election you might have to pay their own medical insurance pre- will automatically get the store rate of pay. Let me miums in order to maintain their coverage. disabuse you of that right now. There is no way in But there is a more important problem with eco- the world that we are going to pay a store rate for nomic strikers. An economic striker is an employee office work. In fact, under the union contract for who goes out on strike for higher wages and more the stores, there is a non-food rate, which is a lot benefits. The Company is free to replace economic less than what you are now earning. As I told you strikers permanently, and to continue to operate its before, there's no way that we are going to pay a business during the strike. That's what this leaflet store rate for office personnel. The union doesn't do and this pamphlet say. If employees go out on strike that for its office employees, and we certainly won't and they are permanently replaced, they don't get either. their jobs back when the strike ends, but they have Now let's suppose the union were to get in here to wait until a vacancy occurs. and we would have to negotiate with it. Remember This is no idle statement. Ask Retail Clerks Local now, all the union wins if it wins an election is the 1262 about economic strikers, because that union right to sit down and negotiate with the Company knows first-hand how to replace strikers. Back in about your wages and working conditions. In that 1970, the Office Workers Union won an election letter I sent to you, I enclosed a copy of this leaflet among the employees of Local 1262's office. The [at this point, hold up a copy of the "Get the Real union was certified and negotiated with Local 1262 Facts" leaflet]. This leaflet is excerpted from this but couldn't reach an agreement. So the Office pamphlet [at this point, hold up a copy of the Workers Union called a strike against Local 1262. "Guide to Law and Procedure" pamphlet]. This That strike lasted for two months, from August to pamphlet is an official publication of the National October, 1970. By the time the strike had ended, the Labor Relations Board, and it explains what collec- union had replaced every one of the strikers. Out of tive bargaining means. It means that while the par- the goodness of its heart, the union took back only ties have to confer in good faith, the bargaining ob- one of the employees that went on strike; all of the ligation "does not, however, compel either party to others lost their jobs. agree to a proposal by the other, nor does it require So you can ask the union what it means to be either party to make a concession to the other." permanently replaced, because Local 1262 really This means that if we have to negotiate with the knows how to do it. And I can assure you that this union, we would do so but we would be under no company knows how to do it as well. obligation to agree to anything that we felt was not I really don't like to have to say such things to in your best interests or in the Company's best in- you, but I think it is important that you understand terests. I can assure you that we know how to pro- what it is you might be getting yourself into if you tect our interests. The union can make all sorts of vote this union in on January 10. All it would mean demands, and we would be entirely free to reject would be trouble, for the Company and for you. them. Incidently, we would be entirely free to make As I have said before, you don't need a union demands of our own, to trade off for certain other here to get the very best this Company has to offer. things the union would want by getting the union We have always been able to deal with each other, to concede away certain of the things that you now without outside interference, in the past and I am have. For example, if the union wanted a union- sure that we can continue to do so in the future. shop clause, which would mean that everyone Now, if you have any questions, I would be glad to would have to join the union and pay dues in order anwer them for you. to keep her job here, we might be willing to give that in return, for example, for a reduction of your Evers testified that Gold did not read from the speech sick leave. Those kinds of trade-offs are common in he was holding; once in a while he referred to it, but he collective bargaining, as I'm sure that most of you spoke mostly without reading from the speech. She testi- know. fled that Gold began by telling the employees that their Well, let's suppose we had to negotiate with the salaries were comparable to those of other office em- union and we could not reach an agreement. What ployees in the area; that they weren't as good as the would happen then? Well, the only weapon the store employees received, but they didn't do the same union would have would be to call you up on kind of work as store employees. She also testified that strike. I know that none of you like to hear that, but Gold said that some of the employees were going around 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better. Employees start here at $140 a week, and you might as well hear it now, and from me, be- get a $10 a week increase after 90 days. Thereafter, cause I'm sure that the union isn't talking about all of you are reviewed twice a year, and increases strikes with you. The only economic weapon a are given as deserved. I don't think anyone can union has, to try to force an employer to give in to honestly say that she is being unfairly treated or un- the union's demands, is to call the employees out on derpaid for the work she is doing. If anyone thinks strike. Remember, strikers don't get paid, and they that, I would certainly like to hear it. are not eligible for unemployment compensation Now here is what it (sic) my understanding that benefits. Moreover, the Company is under no obli- the union is offering. The union appears to be prom- gation to pay insurance premiums for strikers, so if ising-or at least some of you think that the union is employees go off on strike they might find that they promising-that if the union wins the election you might have to pay their own medical insurance pre- will automatically get the store rate of pay. Let me miums in order to maintain their coverage. disabuse you of that right now. There is no way in But there is a more important problem with eco- the world that we are going to pay a store rate for nomic strikers. An economic striker is an employee office work. In fact, under the union contract for who goes out on strike for higher wages and more the stores, there is a non-food rate, which is a lot benefits. The Company is free to replace economic less than what you are now earning. As I told you strikers permanently, and to continue to operate its before, there's no way that we are going to pay a business during the strike. That's what this leaflet store rate for office personnel. The union doesn't do and this pamphlet say. If employees go out on strike that for its office employees, and we certainly won't and they are permanently replaced, they don't get either. their jobs back when the strike ends, but they have Now let's suppose the union were to get in here to wait until a vacancy occurs. and we would have to negotiate with it. Remember This is no idle statement. Ask Retail Clerks Local now, all the union wins if it wins an election is the 1262 about economic strikers, because that union right to sit down and negotiate with the Company knows first-hand how to replace strikers. Back in about your wages and working conditions. In that 1970, the Office Workers Union won an election letter I sent to you, I enclosed a copy of this leaflet among the employees of Local 1262's office. The [at this point, hold up a copy of the "Get the Real union was certified and negotiated with Local 1262 Facts" leaflet]. This leaflet is excerpted from this but couldn't reach an agreement. So the Office pamphlet [at this point, hold up a copy of the Workers Union called a strike against Local 1262. "Guide to Law and Procedure" pamphlet]. This That strike lasted for two months, from August to pamphlet is an official publication of the National October, 1970. By the time the strike had ended, the Labor Relations Board, and it explains what collec- union had replaced every one of the strikers. Out of tive bargaining means. It means that while the par- the goodness of its heart, the union took back only ties have to confer in good faith, the bargaining ob- one of the employees that went on strike; all of the ligation "does not, however, compel either party to others lost their jobs. agree to a proposal by the other, nor does it require So you can ask the union what it means to be either party to make a concession to the other." permanently replaced, because Local 1262 really This means that if we have to negotiate with the knows how to do it. And I can assure you that this union, we would do so but we would be under no company knows how to do it as well. obligation to agree to anything that we felt was not I really don't like to have to say such things to in your best interests or in the Company's best in- you, but I think it is important that you understand terests. I can assure you that we know how to pro- what it is you might be getting yourself into if you tect our interests. The union can make all sorts of vote this union in on January 10. All it would mean demands, and we would be entirely free to reject would be trouble, for the Company and for you. them. Incidently, we would be entirely free to make As I have said before, you don't need a union demands of our own, to trade off for certain other here to get the very best this Company has to offer. things the union would want by getting the union We have always been able to deal with each other, to concede away certain of the things that you now without outside interference, in the past and I am have. For example, if the union wanted a union- sure that we can continue to do so in the future. shop clause, which would mean that everyone Now, if you have any questions, I would be glad to would have to join the union and pay dues in order anwer them for you. to keep her job here, we might be willing to give that in return, for example, for a reduction of your Evers testified that Gold did not read from the speech sick leave. Those kinds of trade-offs are common in he was holding; once in a while he referred to it, but he collective bargaining, as I'm sure that most of you spoke mostly without reading from the speech. She testi- know. fied that Gold began by telling the employees that their Well, let's suppose we had to negotiate with the salaries were comparable to those of other office em- union and we could not reach an agreement. What ployees in the area; that they weren't as good as the would happen then? Well, the only weapon the store employees received, but they didn't do the same union would have would be to call you up on kind of work as store employees. She also testified that strike. I know that none of you like to hear that, but Gold said that some of the employees were going around 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better. Employees start here at $140 a week, and you might as well hear it now, and from me, be- get a $10 a week increase after 90 days. Thereafter, cause I'm sure that the union isn't talking about all of you are reviewed twice a year, and increases strikes with you. The only economic weapon a are given as deserved. I don't think anyone can union has, to try to force an employer to give in to honestly say that she is being unfairly treated or un- the union's demands, is to call the employees out on derpaid for the work she is doing. If anyone thinks strike. Remember, strikers don't get paid, and they that, I would certainly like to hear it. are not eligible for unemployment compensation Now here is what it (sic) my understanding that benefits. Moreover, the Company is under no obli- the union is offering. The union appears to be prom- gation to pay insurance premiums for strikers, so if ising-or at least some of you think that the union is employees go off on strike they might find that they promising-that if the union wins the election you might have to pay their own medical insurance pre- will automatically get the store rate of pay. Let me miums in order to maintain their coverage. disabuse you of that right now. There is no way in But there is a more important problem with eco- the world that we are going to pay a store rate for nomic strikers. An economic striker is an employee office work. In fact, under the union contract for who goes out on strike for higher wages and more the stores, there is a non-food rate, which is a lot benefits. The Company is free to replace economic less than what you are now earning. As I told you strikers permanently, and to continue to operate its before, there's no way that we are going to pay a business during the strike. That's what this leaflet store rate for office personnel. The union doesn't do and this pamphlet say. If employees go out on strike that for its office employees, and we certainly won't and they are permanently replaced, they don't get either. their jobs back when the strike ends, but they have Now let's suppose the union were to get in here to wait until a vacancy occurs. and we would have to negotiate with it. Remember This is no idle statement. Ask Retail Clerks Local now, all the union wins if it wins an election is the 1262 about economic strikers, because that union right to sit down and negotiate with the Company knows first-hand how to replace strikers. Back in about your wages and working conditions. In that 1970, the Office Workers Union won an election letter I sent to you, I enclosed a copy of this leaflet among the employees of Local 1262's office. The [at this point, hold up a copy of the "Get the Real union was certified and negotiated with Local 1262 Facts" leaflet]. This leaflet is excerpted from this but couldn't reach an agreement. So the Office pamphlet [at this point, hold up a copy of the Workers Union called a strike against Local 1262. "Guide to Law and Procedure" pamphlet]. This That strike lasted for two months, from August to pamphlet is an official publication of the National October, 1970. By the time the strike had ended, the Labor Relations Board, and it explains what collec- union had replaced every one of the strikers. Out of tive bargaining means. It means that while the par- the goodness of its heart, the union took back only ties have to confer in good faith, the bargaining ob- one of the employees that went on strike; all of the ligation "does not, however, compel either party to others lost their jobs. agree to a proposal by the other, nor does it require So you can ask the union what it means to be either party to make a concession to the other." permanently replaced, because Local 1262 really This means that if we have to negotiate with the knows how to do it. And I can assure you that this union, we would do so but we would be under no company knows how to do it as well. obligation to agree to anything that we felt was not I really don't like to have to say such things to in your best interests or in the Company's best in- you, but I think it is important that you understand terests. I can assure you that we know how to pro- what it is you might be getting yourself into if you tect our interests. The union can make all sorts of vote this union in on January 10. All it would mean demands, and we would be entirely free to reject would be trouble, for the Company and for you. them. Incidently, we would be entirely free to make As I have said before, you don't need a union demands of our own, to trade off for certain other here to get the very best this Company has to offer. things the union would want by getting the union We have always been able to deal with each other, to concede away certain of the things that you now without outside interference, in the past and I am have. For example, if the union wanted a union- sure that we can continue to do so in the future. shop clause, which would mean that everyone Now, if you have any questions, I would be glad to would have to join the union and pay dues in order anwer them for you. to keep her job here, we might be willing to give that in return, for example, for a reduction of your Evers testified that Gold did not read from the speech sick leave. Those kinds of trade-offs are common in he was holding; once in a while he referred to it, but he collective bargaining, as I'm sure that most of you spoke mostly without reading from the speech. She testi- know. fied that Gold began by telling the employees that their Well, let's suppose we had to negotiate with the salaries were comparable to those of other office em- union and we could not reach an agreement. What ployees in the area; that they weren't as good as the would happen then? Well, the only weapon the store employees received, but they didn't do the same union would have would be to call you up on kind of work as store employees. She also testified that strike. I know that none of you like to hear that, but Gold said that some of the employees were going around 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better. Employees start here at $140 a week, and you might as well hear it now, and from me, be- get a $10 a week increase after 90 days. Thereafter, cause I'm sure that the union isn't talking about all of you are reviewed twice a year, and increases strikes with you. The only economic weapon a are given as deserved. I don't think anyone can union has, to try to force an employer to give in to honestly say that she is being unfairly treated or un- the union's demands, is to call the employees out on derpaid for the work she is doing. If anyone thinks strike. Remember, strikers don't get paid, and they that, I would certainly like to hear it. are not eligible for unemployment compensation Now here is what it (sic) my understanding that benefits. Moreover, the Company is under no obli- the union is offering. The union appears to be prom- gation to pay insurance premiums for strikers, so if ising-or at least some of you think that the union is employees go off on strike they might find that they promising-that if the union wins the election you might have to pay their own medical insurance pre- will automatically get the store rate of pay. Let me miums in order to maintain their coverage. disabuse you of that right now. There is no way in But there is a more important problem with eco- the world that we are going to pay a store rate for nomic strikers. An economic striker is an employee office work. In fact, under the union contract for who goes out on strike for higher wages and more the stores, there is a non-food rate, which is a lot benefits. The Company is free to replace economic less than what you are now earning. As I told you strikers permanently, and to continue to operate its before, there's no way that we are going to pay a business during the strike. That's what this leaflet store rate for office personnel. The union doesn't do and this pamphlet say. If employees go out on strike that for its office employees, and we certainly won't and they are permanently replaced, they don't get either. their jobs back when the strike ends, but they have Now let's suppose the union were to get in here to wait until a vacancy occurs. and we would have to negotiate with it. Remember This is no idle statement. Ask Retail Clerks Local now, all the union wins if it wins an election is the 1262 about economic strikers, because that union right to sit down and negotiate with the Company knows first-hand how to replace strikers. Back in about your wages and working conditions. In that 1970, the Office Workers Union won an election letter I sent to you, I enclosed a copy of this leaflet among the employees of Local 1262's office. The [at this point, hold up a copy of the "Get the Real union was certified and negotiated with Local 1262 Facts" leaflet]. This leaflet is excerpted from this but couldn't reach an agreement. So the Office pamphlet [at this point, hold up a copy of the Workers Union called a strike against Local 1262. "Guide to Law and Procedure" pamphlet]. This That strike lasted for two months, from August to pamphlet is an official publication of the National October, 1970. By the time the strike had ended, the Labor Relations Board, and it explains what collec- union had replaced every one of the strikers. Out of tive bargaining means. It means that while the par- the goodness of its heart, the union took back only ties have to confer in good faith, the bargaining ob- one of the employees that went on strike; all of the ligation "does not, however, compel either party to others lost their jobs. agree to a proposal by the other, nor does it require So you can ask the union what it means to be either party to make a concession to the other." permanently replaced, because Local 1262 really This means that if we have to negotiate with the knows how to do it. And I can assure you that this union, we would do so but we would be under no company knows how to do it as well. obligation to agree to anything that we felt was not I really don't like to have to say such things to in your best interests or in the Company's best in- you, but I think it is important that you understand terests. I can assure you that we know how to pro- what it is you might be getting yourself into if you tect our interests. The union can make all sorts of vote this union in on January 10. All it would mean demands, and we would be entirely free to reject would be trouble, for the Company and for you. them. Incidently, we would be entirely free to make As I have said before, you don't need a union demands of our own, to trade off for certain other here to get the very best this Company has to offer. things the union would want by getting the union We have always been able to deal with each other, to concede away certain of the things that you now without outside interference, in the past and I am have. For example, if the union wanted a union- sure that we can continue to do so in the future. shop clause, which would mean that everyone Now, if you have any questions, I would be glad to would have to join the union and pay dues in order anwer them for you. to keep her job here, we might be willing to give that in return, for example, for a reduction of your Evers testified that Gold did not read from the speech sick leave. Those kinds of trade-offs are common in he was holding; once in a while he referred to it, but he collective bargaining, as I'm sure that most of you spoke mostly without reading from the speech. She testi- know. fied that Gold began by telling the employees that their Well, let's suppose we had to negotiate with the salaries were comparable to those of other office em- union and we could not reach an agreement. What ployees in the area; that they weren't as good as the would happen then? Well, the only weapon the store employees received, but they didn't do the same union would have would be to call you up on kind of work as store employees. She also testified that strike. I know that none of you like to hear that, but Gold said that some of the employees were going around PROGRESSIVE SUPERMARKETS, INC. 525 the office discussing the Union and the employees knew the employees would not start from one step better, who they were. She testified that Gold said that if the "they would start from ground zero, scratch, and that Union won the election he would have to negotiate with everything would have to be renegotiated; he also said the Union and everything would be negotiable; you do that anyone who had incurred bills using their dental not start from where you are now. All the employees' plan, would have to pay these bills on their own because benefits would be frozen and the employees would have these benefits would be frozen." According to Gerard's nothing and would have to start at ground zero and re- testimony, Gold then informed the employees that if the negotiate everything; for example, that if they had $5,000 parties could not reach an agreement there was a possi- worth of dental bills' they better pay for it themselves bility that the Union would call a strike and, if this oc- because everything would be frozen and they would not curred, Respondent could hire permanent replacements be able to use their benefits. 5 According to Evers' testi- and, at the conclusion of the strike the striking employ- mony, Gold then told the employees that Respondent's ees would have to wait for a vacancy before being reem- policy of granting wage increases in January would be ployed by Respondent. Gerard testified that Gold con- frozen until everything was cleared up with the Union. cluded by saying that the employees do not need a union Evers also testified that Gold said that if the employees in order to get the best that Respondent could offer. went on strike, Respondent might not rehire them; that Rinaldo' testified that Gold began by telling the em- the Union had a strike of its employees and very few of ployees that they had good benefits, compared them them were rehired by the Union; he said that none of the with the benefits received by Respondent's store employ- other offices were unionized and that he was not going ees, and compared the work of the store employees with to be number one; that he can be very hard and he that of the office employees. She testified further that he would do everything he could and would use every said that if the Union won the election everything would means to keep out the Union. be negotiable; according to her testimony, Gold never Piper testified that Gold seemed to be using the speech used the term "ground zero" nor did he ever say that he was holding "as a guideline." She testified that he dental benefits or any benefits would be frozen; he dis- spoke about the upcoming election and that although the cussed dental benefits, but only along with the other Union represents some of Respondent's store employees, benefits Respondent provided its office employees. Rin- he did not think it would be a good idea for them to rep- aldo then testified about Gold's mention of a time clock resent the office employees; he also told them that if the in his speech: "There was a comparison being made Union won the election Respondent would be obligated about the store personnel, the different types of work to negotiate with the Union; that the Union would be that they did, the dealing with the public, the punching free to make demands and Respondent would also be of the time clock . . ." "There was not one there-we free to make demands and that he would be tough; ev- don't have to punch a clock now, but with the union erything would have to be negotiated from ground zero. coming in, there could be one installed" and "one could She further testified that he said that if the Union and possibly be installed." Respondent could not reach an agreement there was a Packard testified that Gold spoke about the benefits possibility that the Union would call a strike and that Respondent gave to its office employees (although she Respondent could hire employees to replace the strikers, did not remember any specific discussion of dental bene- and if that occurred, the strikers might not get their jobs fits) and said that if the Union won the election all the back immediately, but might have to wait until a vacan- employees' benefits would be negotiable. According to cy occurred; he then mentioned the strike by the Union's Packard's testimony, Gold never used the term "ground employees and said that the Union knows how to replace zero" nor did he say that the employees would lose any strikers. benefits if the Union won the election. Gerard testified that Gold began by speaking about the Shally testified that Gold discussed the benefits the election and said that the Union represented some of Re- employees were then receiving and that if the Union spondent's store employees and that it was a pretty good won the election, all the benefits would be negotiable. union in the stores, but he did not think it was good for According to Shally's testimony, Gold never said that if the office employees. He spoke about their wages and the Union won the election the benefits would be frozen other benefits and compared them to wages and benefits or that, if he had to negotiate, everything would start at paid to Respondent's store employees. He said that the ground zero, nor did he say that if the Union won the Union appeared to be promising that if it won the elec- election the employees might lose benefits. Other than tion the employees would automatically receive the that, Shally remembered very little of either of Gold's stores rate of pays but there was no way that Respond- speeches. ent would do that. Gerard also testified that Gold said if Cimi, who was present at Gold's speeche, testified the Union won the election, Respondent would have to that Gold told the employees of the benefits Respondent negotiate with the Union and everything was negotiable; gave them and said that if the Union won the election everything would be negotiable; "that they weren't auto- There was much testimony to the effect that Rinaldo had a lot of matically started from what we already had"; Gold dental work about that time, that Respondent's benefit plan covered a large part of the expense, and that the other employees were aware of never sad that benefits would be frozen and never used this. ' The employees' existing benefits with Respondent covered dental ' Rinaldo testified that the Union had informed the employees that in bills. negotiations benefits would start from where they were and go up from o Gerard testified that the Union never told her that, there; that they were not going to lose anything. PROGRESSIVE SUPERMARKETS, INC. 525 the office discussing the Union and the employees knew the employees would not start from one step better, who they were. She testified that Gold said that if the "they would start from ground zero, scratch, and that Union won the election he would have to negotiate with everything would have to be renegotiated; he also said the Union and everything would be negotiable; you do that anyone who had incurred bills using their dental not start from where you are now. All the employees' plan, would have to pay these bills on their own because benefits would be frozen and the employees would have these benefits would be frozen." According to Gerard's nothing and would have to start at ground zero and re- testimony, Gold then informed the employees that if the negotiate everything; for example, that if they had $5,000 parties could not reach an agreement there was a possi- worth of dental bills' they better pay for it themselves bility that the Union would call a strike and, if this oc- because everything would be frozen and they would not curred, Respondent could hire permanent replacements be able to use their benefits. 5 According to Evers' testi- and, at the conclusion of the strike the striking employ- mony, Gold then told the employees that Respondent's ees would have to wait for a vacancy before being reem- policy of granting wage increases in January would be ployed by Respondent. Gerard testified that Gold con- frozen until everything was cleared up with the Union. eluded by saying that the employees do not need a union Evers also testified that Gold said that if the employees in order to get the best that Respondent could offer. went on strike, Respondent might not rehire them; that Rinaldo 7 testified that Gold began by telling the em- the Union had a strike of its employees and very few of ployees that they had good benefits, compared them them were rehired by the Union; he said that none of the with the benefits received by Respondent's store employ- other offices were unionized and that he was not going ees, and compared the work of the store employees with to be number one; that he can be very hard and he that of the office employees. She testified further that he would do everything he could and would use every said that if the Union won the election everything would means to keep out the Union. be negotiable; according to her testimony, Gold never Piper testified that Gold seemed to be using the speech used the term "ground zero" nor did he ever say that he was holding "as a guideline." She testified that he dental benefits or any benefits would be frozen; he dis- spoke about the upcoming election and that although the cussed dental benefits, but only along with the other Union represents some of Respondent's store employees, benefits Respondent provided its office employees. Rin- he did not think it would be a good idea for them to rep- aldo then testified about Gold's mention of a time clock resent the office employees; he also told them that if the in his speech: "There was a comparison being made Union won the election Respondent would be obligated about the store personnel, the different types of work to negotiate with the Union; that the Union would be that they did, the dealing with the public, the punching free to make demands and Respondent would also be of the time clock . . ." "There was not one there-we free to make demands and that he would be tough; ev- don't have to punch a clock now, but with the union erything would have to be negotiated from ground zero. coming in, there could be one installed" and "one could She further testified that he said that if the Union and possibly be installed." Respondent could not reach an agreement there was a Packard testified that Gold spoke about the benefits possibility that the Union would call a strike and that Respondent gave to its office employees (although she Respondent could hire employees to replace the strikers, did not remember any specific discussion of dental bene- and if that occurred, the strikers might not get their jobs fits) and said that if the Union won the election all the back immediately, but might have to wait until a vacan- employees' benefits would be negotiable. According to cy occurred; he then mentioned the strike by the Union's Packard's testimony, Gold never used the term "ground employees and said that the Union knows how to replace zero" nor did he say that the employees would lose any strikers. benefits if the Union won the election. Gerard testified that Gold began by speaking about the Shally testified that Gold discussed the benefits the election and said that the Union represented some of Re- employees were then receiving and that if the Union spondent's store employees and that it was a pretty good won the election, all the benefits would be negotiable. union in the stores, but he did not think it was good for According to Shally's testimony, Gold never said that if the office employees. He spoke about their wages and the Union won the election the benefits would be frozen other benefits and compared them to wages and benefits or that, if he had to negotiate, everything would start at paid to Respondent's store employees. He said that the ground zero, nor did he say that if the Union won the Union appeared to be promising that if it won the elec- election the employees might lose benefits. Other than tion the employees would automatically receive the that, Shally remembered very little of either of Gold's stores rate of pay' but there was no way that Respond- speeches. ent would do that. Gerard also testified that Gold said if Cmin, who was present at Gold's speeches, testified the Union won the election, Respondent would have to that Gold told the employees of the benefits Respondent negotiate with the Union and everything was negotiable; gave them and said that if the Union won the election everything would be negotiable; "that they weren't auto- There was much testimony to the effect that Rinaldo had a lot of matically started from what we already had"; Gold dental work about that time, that Respondent's benefit plan covered a large part of the expense, and that the other employees were aware of n e v e r s aid t h a t benefits would be frozen and never used this. I The employees' existing benefits with Respondent covered dental Rinaldo testified that the Union had informed the employees that in bills,.negotiations benefits would start from where they were and go up from I Gerard testified that the Union never told her that. there; that they were not going to lose anything. PROGRESSIVE SUPERMARKETS, INC. 525 the office discussing the Union and the employees knew the employees would not start from one step better, who they were. She testified that Gold said that if the "they would start from ground zero, scratch, and that Union won the election he would have to negotiate with everything would have to be renegotiated; he also said the Union and everything would be negotiable; you do that anyone who had incurred bills using their dental not start from where you are now. All the employees' plan, would have to pay these bills on their own because benefits would be frozen and the employees would have these benefits would be frozen." According to Gerard's nothing and would have to start at ground zero and re- testimony, Gold then informed the employees that if the negotiate everything; for example, that if they had $5,000 parties could not reach an agreement there was a possi- worth of dental bills' they better pay for it themselves bility that the Union would call a strike and, if this oc- because everything would be frozen and they would not curred, Respondent could hire permanent replacements be able to use their benefits. 5 According to Evers' testi- and, at the conclusion of the strike the striking employ- mony, Gold then told the employees that Respondent's ees would have to wait for a vacancy before being reem- policy of granting wage increases in January would be ployed by Respondent. Gerard testified that Gold con- frozen until everything was cleared up with the Union. eluded by saying that the employees do not need a union Evers also testified that Gold said that if the employees in order to get the best that Respondent could offer. went on strike, Respondent might not rehire them; that Rinaldo 7 testified that Gold began by telling the em- the Union had a strike of its employees and very few of ployees that they had good benefits, compared them them were rehired by the Union; he said that none of the with the benefits received by Respondent's store employ- other offices were unionized and that he was not going ees, and compared the work of the store employees with to be number one; that he can be very hard and he that of the office employees. She testified further that he would do everything he could and would use every said that if the Union won the election everything would means to keep out the Union. be negotiable; according to her testimony, Gold never Piper testified that Gold seemed to be using the speech used the term "ground zero" nor did he ever say that he was holding "as a guideline." She testified that he dental benefits or any benefits would be frozen; he dis- spoke about the upcoming election and that although the cussed dental benefits, but only along with the other Union represents some of Respondent's store employees, benefits Respondent provided its office employees. Rin- he did not think it would be a good idea for them to rep- aldo then testified about Gold's mention of a time clock resent the office employees; he also told them that if the in his speech: "There was a comparison being made Union won the election Respondent would be obligated about the store personnel, the different types of work to negotiate with the Union; that the Union would be that they did, the dealing with the public, the punching free to make demands and Respondent would also be of the time clock . . ." "There was not one there-we free to make demands and that he would be tough; ev- don't have to punch a clock now, but with the union erything would have to be negotiated from ground zero. coming in, there could be one installed" and "one could She further testified that he said that if the Union and possibly be installed." Respondent could not reach an agreement there was a Packard testified that Gold spoke about the benefits possibility that the Union would call a strike and that Respondent gave to its office employees (although she Respondent could hire employees to replace the strikers, did not remember any specific discussion of dental bene- and if that occurred, the strikers might not get their jobs fits) and said that if the Union won the election all the back immediately, but might have to wait until a vacan- employees' benefits would be negotiable. According to cy occurred; he then mentioned the strike by the Union's Packard's testimony, Gold never used the term "ground employees and said that the Union knows how to replace zero" nor did he say that the employees would lose any strikers. benefits if the Union won the election. Gerard testified that Gold began by speaking about the Shally testified that Gold discussed the benefits the election and said that the Union represented some of Re- employees were then receiving and that if the Union spondent's store employees and that it was a pretty good won the election, all the benefits would be negotiable. union in the stores, but he did not think it was good for According to Shally's testimony, Gold never said that if the office employees. He spoke about their wages and the Union won the election the benefits would be frozen other benefits and compared them to wages and benefits or that, if he had to negotiate, everything would start at paid to Respondent's store employees. He said that the ground zero, nor did he say that if the Union won the Union appeared to be promising that if it won the elec- election the employees might lose benefits. Other than tion the employees would automatically receive the that, Shally remembered very little of either of Gold's stores rate of pay' but there was no way that Respond- speeches. ent would do that. Gerard also testified that Gold said if Cmin, who was present at Gold's speeches, testified the Union won the election, Respondent would have to that Gold told the employees of the benefits Respondent negotiate with the Union and everything was negotiable; gave them and said that if the Union won the election everything would be negotiable; "that they weren't auto- There was much testimony to the effect that Rinaldo had a lot of matically started from what we already had"; Gold dental work about that time, that Respondent's benefit plan covered a large part of the expense, and that the other employees were aware of n e v e r s aid t h a t benefits would be frozen and never used this. I The employees' existing benefits with Respondent covered dental Rinaldo testified that the Union had informed the employees that in bills,.negotiations benefits would start from where they were and go up from I Gerard testified that the Union never told her that. there; that they were not going to lose anything. PROGRESSIVE SUPERMARKETS, INC. 525 the office discussing the Union and the employees knew the employees would not start from one step better, who they were. She testified that Gold said that if the "they would start from ground zero, scratch, and that Union won the election he would have to negotiate with everything would have to be renegotiated; he also said the Union and everything would be negotiable; you do that anyone who had incurred bills using their dental not start from where you are now. All the employees' plan, would have to pay these bills on their own because benefits would be frozen and the employees would have these benefits would be frozen." According to Gerard's nothing and would have to start at ground zero and re- testimony, Gold then informed the employees that if the negotiate everything; for example, that if they had $5,000 parties could not reach an agreement there was a possi- worth of dental bills' they better pay for it themselves bility that the Union would call a strike and, if this oc- because everything would be frozen and they would not curred, Respondent could hire permanent replacements be able to use their benefits. 5 According to Evers' testi- and, at the conclusion of the strike the striking employ- mony, Gold then told the employees that Respondent's ees would have to wait for a vacancy before being reem- policy of granting wage increases in January would be ployed by Respondent. Gerard testified that Gold con- frozen until everything was cleared up with the Union. eluded by saying that the employees do not need a union Evers also testified that Gold said that if the employees in order to get the best that Respondent could offer. went on strike, Respondent might not rehire them; that Rinaldo 7 testified that Gold began by telling the em- the Union had a strike of its employees and very few of ployees that they had good benefits, compared them them were rehired by the Union; he said that none of the with the benefits received by Respondent's store employ- other offices were unionized and that he was not going ees, and compared the work of the store employees with to be number one; that he can be very hard and he that of the office employees. She testified further that he would do everything he could and would use every said that if the Union won the election everything would means to keep out the Union. be negotiable; according to her testimony, Gold never Piper testified that Gold seemed to be using the speech used the term "ground zero" nor did he ever say that he was holding "as a guideline." She testified that he dental benefits or any benefits would be frozen; he dis- spoke about the upcoming election and that although the cussed dental benefits, but only along with the other Union represents some of Respondent's store employees, benefits Respondent provided its office employees. Rin- he did not think it would be a good idea for them to rep- aldo then testified about Gold's mention of a time clock resent the office employees; he also told them that if the in his speech: "There was a comparison being made Union won the election Respondent would be obligated about the store personnel, the different types of work to negotiate with the Union; that the Union would be that they did, the dealing with the public, the punching free to make demands and Respondent would also be of the time clock . . ." "There was not one there-we free to make demands and that he would be tough; ev- don't have to punch a clock now, but with the union erything would have to be negotiated from ground zero. coming in, there could be one installed" and "one could She further testified that he said that if the Union and possibly be installed." Respondent could not reach an agreement there was a Packard testified that Gold spoke about the benefits possibility that the Union would call a strike and that Respondent gave to its office employees (although she Respondent could hire employees to replace the strikers, did not remember any specific discussion of dental bene- and if that occurred, the strikers might not get their jobs fits) and said that if the Union won the election all the back immediately, but might have to wait until a vacan- employees' benefits would be negotiable. According to cy occurred; he then mentioned the strike by the Union's Packard's testimony, Gold never used the term "ground employees and said that the Union knows how to replace zero" nor did he say that the employees would lose any strikers. benefits if the Union won the election. Gerard testified that Gold began by speaking about the Shally testified that Gold discussed the benefits the election and said that the Union represented some of Re- employees were then receiving and that if the Union spondent's store employees and that it was a pretty good won the election, all the benefits would be negotiable. union in the stores, but he did not think it was good for According to Shally's testimony, Gold never said that if the office employees. He spoke about their wages and the Union won the election the benefits would be frozen other benefits and compared them to wages and benefits or that, if he had to negotiate, everything would start at paid to Respondent's store employees. He said that the ground zero, nor did he say that if the Union won the Union appeared to be promising that if it won the elec- election the employees might lose benefits. Other than tion the employees would automatically receive the that, Shally remembered very little of either of Gold's stores rate of pay' but there was no way that Respond- speeches. ent would do that. Gerard also testified that Gold said if Cmin, who was present at Gold's speeches, testified the Union won the election, Respondent would have to that Gold told the employees of the benefits Respondent negotiate with the Union and everything was negotiable; gave them and said that if the Union won the election everything would be negotiable; "that they weren't auto- There was much testimony to the effect that Rinaldo had a lot of matically started from what we already had"; Gold dental work about that time, that Respondent's benefit plan covered a large part of the expense, and that the other employees were aware of n e v e r s aid t h a t benefits would be frozen and never used this. I The employees' existing benefits with Respondent covered dental Rinaldo testified that the Union had informed the employees that in bills,.negotiations benefits would start from where they were and go up from I Gerard testified that the Union never told her that. there; that they were not going to lose anything. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the term "ground zero"; in addition, according to Ci- employees that wages would be frozen if the Union won mini's testimony, Gold never said anything about dental the election. benefits being frozen, or that dental benefits would be The prepared text that Gold had in his hand for his adversely affected by the Union winning the election, second speech which took place in the empty office only that they would negotiable. across the hall from Respondent's office on January 9 is Edwards testified that Gold had the speech in his hand as follows: and, at times, appeared to be reading from the speech, and at other times spoke without looking at it. Edwards This is the last opportunity we're going to have testified that Gold began by stating that the Union repre- to get together as a group before this Labor Board sented some of Respondent's store employees, but he did election tomorrow. I would like to discuss the me- not think the office employees needed a union; he then chanics of the election with you, and then get into informed the employees of Respondent's fringe benefits some of the issues. for the office employees and said that they were good First of all, the election will be conducted here at benefits and that their wages were in line with other the office, in the vacant office across the hall, be- office employees in the area. Edwards testified that Gold tween 3:00 and 3:30 in the afternoon. It will be con- then said that he understood that the Union was promis- ducted by an official of the National Labor Rela- ing that if it won the election, the employees would tions Board, out of the Labor Board's Newark, automatically get the rates received by Respondent's New Jersey regional office. The Labor Board offi- store employees, but that was not so; the office employ- cial will conduct this election by secret ballot, ees would not receive the same wages as the store em- which means that no one will ever know how you ployees because of the job differences. Edwards also tes- voted. tified that Gold stated that if the Union won the election The election is going to be decided by a majority he would have to negotiate with the Union over the of those who actually show up at the polls and benefits; he said that the employees should not expect vote. There are no proxy ballots, and there are no the package plan they then had because bargaining absentee ballots. Therefore, if you want your voice would start from ground zero; he said that wasn't it nice to be heard, you have to show up in person at the that Respondent pays part of a $5,000 dental bill, "we o ad ote etween 3 and 3 p. on don't guarantee anything that we have now, that heTrsday, January 10. If you don't, your entire could be very hard and tough on the employees," and Thursday, January 10. If you don't, your entire "don't expect what we have now"; Gold also said that future might well be decided by someone else. all benefits would be negotiable. Edwards testified that When ou go to vote, there will be two em- Gold then said that if no agreement was reached the em- ployes present, one serving as an observer for he ployees could go out on strike, but there was no guaran-Company and one serving as an observer for the tee that they would all get their jobs back. He also said, Union. The purpose of these observers is simply to according to Edwards' testimony, that Respondent didn't identify the voters. There will also be a person from want to be the first one to have a union in their office the Labor Board. All you have to do is give your and that they would go to any measures to keep it out; name to the observers, who will check your name he also told the employees that although they were due off the list. Then, the Labor Board person will give for a raise, their wages would be frozen until after the you a ballot, which you will take into the voting election. He concluded the speech by saying that the em- booth and mark. Make an "X" in one of the boxes; ployees did not need a union to get the best Respondent do not sign your ballot or make any identifying had to offer. marks on it. Then fold the ballot, come out of the Medaska, who did not attend Gold's January 9 meet- voting booth, put the ballot in the ballot box and ing because she was terminated by Respondent later in leave. That's all you have to do. The ballots will be the day on January 4, does not remember the term counted just after 3:30, and we should all know the "ground zero" being used by Gold in his January 4 results at that time. speech. Now, let's talk a little bit about what this election Gold testified that at this speech he discussed the em- is all about. It seems that Progressive Supermarkets ployees' benefits, including dental benefits, but without is in the vanguard of the Union's organizational ef- any specific emphasis, but he never told the employees forts among office employees. What is happening is that they had better get their dental work done at that that Local 1262 has decided that it wants to expand time because they would have to pay for it themselves if its membership to include, not just employees in the the Union won the election, nor did he ever threaten to stores, but also office employees. What it has done freeze the employees benefits if the Union won the elec- is to send out letters to its stewards in the stores, tion. He testified that he informed the employees that all asking the stewards to help "talk up" the Union benefits were negotiable; he never said that benefits among the office employees of the companies that would be frozen or lost, and never used the phrase they work for. I have here a copy of just such a "ground zero." As regards the timeclocks, he testified letter [At this point, hold up a copy of the Union's that he informed the employees "that it was possible that "Stewards Newsletter"]. Enclosed with this letter if the Union won, the same as we had time clocks in the was this leaflet [At this point, hold up a copy of the stores, it could be possible that there would be time leaflet], which is what the Union has been distribut- clocks in the office." He testified that he never told the ing to office employees. I don't know whether any 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the term "ground zero"; in addition, according to Ci- employees that wages would be frozen if the Union won mini's testimony, Gold never said anything about dental the election. benefits being frozen, or that dental benefits would be The prepared text that Gold had in his hand for his adversely affected by the Union winning the election, second speech which took place in the empty office only that they would negotiable. across the hall from Respondent's office on January 9 is Edwards testified that Gold had the speech in his hand as follows: and, at times, appeared to be reading from the speech, and at other times spoke without looking at it. Edwards This is the last opportunity we're going to have testified that Gold began by stating that the Union repre- to get together as a group before this Labor Board sented some of Respondent's store employees, but he did election tomorrow. I would like to discuss the me- not think the office employees needed a union; he then chanics of the election with you, and then get into informed the employees of Respondent's fringe benefits some of the issues. for the office employees and said that they were good First of all, the election will be conducted here at benefits and that their wages were in line with other the office, in the vacant office across the hall, be- office employees in the area. Edwards testified that Gold tween 3:00 and 3:30 in the afternoon. It will be con- then said that he understood that the Union was promis- ducted by an official of the National Labor Rela- ing that if it won the election, the employees would tions Board, out of the Labor Board's Newark, automatically get the rates received by Respondent's New Jersey regional office. The Labor Board offi- store employees, but that was not so; the office employ- cial will conduct this election by secret ballot, ees would not receive the same wages as the store em- which means that no one will ever know how you ployees because of the job differences. Edwards also tes- voted. tified that Gold stated that if the Union won the election T e is going to be decided by a majority he would have to negotiate with the Union over the of those who actually show up at the polls and benefits; he said that the employees should not expect vote. There are no proxy ballots, and there are no the package plan they then had because bargaining absentee ballots. Therefore, if you want your voice would start from ground zero; he said that wasn't it nice to be heard, you have to show up in person at the that Respondent pays part of a $5,000 dental bill, "we ^ ^ ^ ^ ^ ^ ^ don't guarantee anything that we have now, that heThursday, January 10. If you don't, your entire could be very hard and tough on the employees," and Thursd , January 10 If yo don' entir "don't expect what we have now"; Gold also said that feig w b d by s n else all benefits would be negotiable. Edwards testified that W h en you go in to v there w il b e t w o em - Gold then said that if no agreement was reached the em- presnt o n e seri8 as an o b ser v er fo r h e ployees could go out on strike, but there was no guaran- Company and one serving as an observer for the tee that they would all get their jobs back. He also said, Union. T he purpose of these observers is simply to according to Edwards' testimony, that Respondent didn't identify the voters. There will also be a person from want to be the first one to have a union in their office t h e Labor Board. All you have to do is give your and that they would go to any measures to keep it out;- n am e t o the observers, who will check your name he also told the employees that although they were due o ff t h e list. Then, the Labor Board person will give for a raise, their wages would be frozen until after the yo u a b allo t, w hich y o u w ill t ak e in t o t he v o ting election. He concluded the speech by saying that the em- bo o t h a nd m ar k . M a k e an "X" in o ne o f t h e bo x es; ployees did not need a union to get the best Respondent d o n o t sign your bal lo t or m ak e an y identifying had to offer. marks on it. Then fold the ballot, come out of the Medaska, who did not attend Gold's January 9 meet- voting bo o t h, put the ballot in the ballot box and ing because she was terminated by Respondent later in le a v e. T h a t's a ll you h a v e t o do. T h e bal lo ts w ill b e the day on January 4, does not remember the term counted just after 3:30, and we should all know the "ground zero" being used by Gold in his January 4 results at that time. speech. Now, let's talk a little bit about what this election Gold testified that at this speech he discussed the em- is all about. It seems that Progressive Supermarkets ployees' benefits, including dental benefits, but without is in the vanguard of the Union's organizational ef- any specific emphasis, but he never told the employees forts among office employees. What is happening is that they had better get their dental work done at that that Local 1262 has decided that it wants to expand time because they would have to pay for it themselves if its membership to include, not just employees in the the Union won the election, nor did he ever threaten to stores, but also office employees. What it has done freeze the employees benefits if the Union won the elec- is to send out letters to its stewards in the stores, tion. He testified that he informed the employees that all asking the stewards to help "talk up" the Union benefits were negotiable; he never said that benefits among the office employees of the companies that would be frozen or lost, and never used the phrase they work for. I have here a copy of just such a "ground zero." As regards the timeclocks, he testified letter [At this point, hold up a copy of the Union's that he informed the employees "that it was possible that "Stewards Newsletter"]. Enclosed with this letter if the Union won, the same as we had time clocks in the was this leaflet [At this point, hold up a copy of the stores, it could be possible that there would be time leaflet], which is what the Union has been distribut- clocks in the office." He testified that he never told the ing to office employees. I don't know whether any 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the term "ground zero"; in addition, according to Ci- employees that wages would be frozen if the Union won mini's testimony, Gold never said anything about dental the election. benefits being frozen, or that dental benefits would be The prepared text that Gold had in his hand for his adversely affected by the Union winning the election, second speech which took place in the empty office only that they would negotiable. across the hall from Respondent's office on January 9 is Edwards testified that Gold had the speech in his hand as follows: and, at times, appeared to be reading from the speech, and at other times spoke without looking at it. Edwards This is the last opportunity we're going to have testified that Gold began by stating that the Union repre- to get together as a group before this Labor Board sented some of Respondent's store employees, but he did election tomorrow. I would like to discuss the me- not think the office employees needed a union; he then chanics of the election with you, and then get into informed the employees of Respondent's fringe benefits some of the issues. for the office employees and said that they were good First of all, the election will be conducted here at benefits and that their wages were in line with other the office, in the vacant office across the hall, be- office employees in the area. Edwards testified that Gold tween 3:00 and 3:30 in the afternoon. It will be con- then said that he understood that the Union was promis- ducted by an official of the National Labor Rela- ing that if it won the election, the employees would tions Board, out of the Labor Board's Newark, automatically get the rates received by Respondent's New Jersey regional office. The Labor Board offi- store employees, but that was not so; the office employ- cial will conduct this election by secret ballot, ees would not receive the same wages as the store em- which means that no one will ever know how you ployees because of the job differences. Edwards also tes- voted. tified that Gold stated that if the Union won the electionT etion is going to be decided by a majority he would have to negotiate with the Union over the of those who actually show up at the polls and benefits; he said that the employees should not expect vote. There are no proxy ballots, and there are no the package plan they then had because bargaining absentee ballots. Therefore, if you want your voice would start from ground zero; he said that wasn't it nice to be heard, you have to show up in person at the that Respondent pays part of a $5,000 dental bill, "we ^ ^ ^ ^ ^ ^ ^ don't guarantee anything that we have now, that heThursday, January 10. If you don't, your entire could be very hard and tough on the employees," and Thursd , January 10 If yo don' entir "don't expect what we have now"; Gold also said that feig w b d by s n else all benefits would be negotiable. Edwards testified that W h en y o u go in to vote, there will be two em- Gold then said that if no agreement was reached the em- presnt o n e seri8 as an o b ser v er fo r h e ployees could go out on strike, but there was no guaran- Company and one serving as an observer for the tee that they would all get their jobs back. He also said, Union. T he purpose of these observers is simply to according to Edwards' testimony, that Respondent didn't identify the voters. There will also be a person from want to be the first one to have a union in their office t h e Labor Board. All you have to do is give your and that they would go to any measures to keep it out;- n am e t o the observers, who will check your name he also told the employees that although they were due o ff the list. Then, the Labor Board person will give for a raise, their wages would be frozen until after the yo u a b allo t, which you w ill t ak e in t o t he v o ting election. He concluded the speech by saying that the em- bo o t h a nd m ar k . M a k e an "X" in o ne o f t h e b o x es; ployees did not need a union to get the best Respondent d o not sign your bal lo t or m ak e an y identifying had to offer. marks on it. Then fold the ballot, come out of the Medaska, who did not attend Gold's January 9 meet- voting booth, put the ballot in the ballot box and ing because she was terminated by Respondent later in le av e. T h a t's all you have to do. The ballots will be the day on January 4, does not remember the term counted just after 3:30, and we should all know the "ground zero" being used by Gold in his January 4 results at that time. speech. Now, let's talk a little bit about what this election Gold testified that at this speech he discussed the em- is all about. It seems that Progressive Supermarkets ployees' benefits, including dental benefits, but without is in the vanguard of the Union's organizational ef- any specific emphasis, but he never told the employees forts among office employees. What is happening is that they had better get their dental work done at that that Local 1262 has decided that it wants to expand time because they would have to pay for it themselves if its membership to include, not just employees in the the Union won the election, nor did he ever threaten to stores, but also office employees. What it has done freeze the employees benefits if the Union won the elec- is to send out letters to its stewards in the stores, tion. He testified that he informed the employees that all asking the stewards to help "talk up" the Union benefits were negotiable; he never said that benefits among the office employees of the companies that would be frozen or lost, and never used the phrase they work for. I have here a copy of just such a "ground zero." As regards the timeclocks, he testified letter [At this point, hold up a copy of the Union's that he informed the employees "that it was possible that "Stewards Newsletter"]. Enclosed with this letter if the Union won, the same as we had time clocks in the was this leaflet [At this point, hold up a copy of the stores, it could be possible that there would be time leaflet], which is what the Union has been distribut- clocks in the office." He testified that he never told the ing to office employees. I don't know whether any 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the term "ground zero"; in addition, according to Ci- employees that wages would be frozen if the Union won mini's testimony, Gold never said anything about dental the election. benefits being frozen, or that dental benefits would be The prepared text that Gold had in his hand for his adversely affected by the Union winning the election, second speech which took place in the empty office only that they would negotiable. across the hall from Respondent's office on January 9 is Edwards testified that Gold had the speech in his hand as follows: and, at times, appeared to be reading from the speech, and at other times spoke without looking at it. Edwards This is the last opportunity we're going to have testified that Gold began by stating that the Union repre- to get together as a group before this Labor Board sented some of Respondent's store employees, but he did election tomorrow. I would like to discuss the me- not think the office employees needed a union; he then chanics of the election with you, and then get into informed the employees of Respondent's fringe benefits some of the issues. for the office employees and said that they were good First of all, the election will be conducted here at benefits and that their wages were in line with other the office, in the vacant office across the hall, be- office employees in the area. Edwards testified that Gold tween 3:00 and 3:30 in the afternoon. It will be con- then said that he understood that the Union was promis- ducted by an official of the National Labor Rela- ing that if it won the election, the employees would tions Board, out of the Labor Board's Newark, automatically get the rates received by Respondent's New Jersey regional office. The Labor Board offi- store employees, but that was not so; the office employ- cial will conduct this election by secret ballot, ees would not receive the same wages as the store em- which means that no one will ever know how you ployees because of the job differences. Edwards also tes- voted. tified that Gold stated that if the Union won the electionT etion is going to be decided by a majority he would have to negotiate with the Union over the of those who actually show up at the polls and benefits; he said that the employees should not expect vote. There are no proxy ballots, and there are no the package plan they then had because bargaining absentee ballots. Therefore, if you want your voice would start from ground zero; he said that wasn't it nice to be heard, you have to show up in person at the that Respondent pays part of a $5,000 dental bill, "we ^ ^ ^ ^ ^ ^ ^ don't guarantee anything that we have now, that heThursday, January 10. If you don't, your entire could be very hard and tough on the employees," and Thursd , January 10 If yo don' entir "don't expect what we have now"; Gold also said that feig w b d by s n else all benefits would be negotiable. Edwards testified that W h en y o u go in to vote, there will be two em- Gold then said that if no agreement was reached the em- presnt o n e seri8 as an o b ser v er fo r h e ployees could go out on strike, but there was no guaran- Company and one serving as an observer for the tee that they would all get their jobs back. He also said, Union. T he purpose of these observers is simply to according to Edwards' testimony, that Respondent didn't identify the voters. There will also be a person from want to be the first one to have a union in their office t h e Labor Board. All you have to do is give your and that they would go to any measures to keep it out;- n am e t o the observers, who will check your name he also told the employees that although they were due o ff the list. Then, the Labor Board person will give for a raise, their wages would be frozen until after the yo u a b allo t, which you w ill t ak e in t o t he v o ting election. He concluded the speech by saying that the em- bo o t h a nd m ar k . M a k e an "X" in o ne o f t h e b o x es; ployees did not need a union to get the best Respondent do not sign your ballot or make any identifying had to offer. marks on it. Then fold the ballot, come out of the Medaska, who did not attend Gold's January 9 meet- voting booth, put the ballot in the ballot box and ing because she was terminated by Respondent later in le av e. That's all you have to do. The ballots will be the day on January 4, does not remember the term counted just after 3:30, and we should all know the "ground zero" being used by Gold in his January 4 results at that time. speech. Now, let's talk a little bit about what this election Gold testified that at this speech he discussed the em- is all about. It seems that Progressive Supermarkets ployees' benefits, including dental benefits, but without is in the vanguard of the Union's organizational ef- any specific emphasis, but he never told the employees forts among office employees. What is happening is that they had better get their dental work done at that that Local 1262 has decided that it wants to expand time because they would have to pay for it themselves if its membership to include, not just employees in the the Union won the election, nor did he ever threaten to stores, but also office employees. What it has done freeze the employees benefits if the Union won the elec- is to send out letters to its stewards in the stores, tion. He testified that he informed the employees that all asking the stewards to help "talk up" the Union benefits were negotiable; he never said that benefits among the office employees of the companies that would be frozen or lost, and never used the phrase they work for. I have here a copy of just such a "ground zero." As regards the timeclocks, he testified letter [At this point, hold up a copy of the Union's that he informed the employees "that it was possible that "Stewards Newsletter"]. Enclosed with this letter if the Union won, the same as we had time clocks in the was this leaflet [At this point, hold up a copy of the stores, it could be possible that there would be time leaflet], which is what the Union has been distribut- clocks in the office." He testified that he never told the ing to office employees. I don't know whether any PROGRESSIVE SUPERMARKETS, INC. 527 of you have gotten one of these leaflets, but if you store employees, by any stretch of the imagination. haven't, this is what it looks like. And if any of you are really interested in doing It's really sort of funny, and somewhat hypocriti- store work, I would certainly do my very best to cal, for Local 1262 to be telling office workers like accommodate any of you who would like to go out yourselves that it has the "strength, unity and bar- into a store. I'm sure, however, that there aren't gaining experience" to enable it to succeed as the many of you who would like to do that. bargaining agent for office workers where others It's just a bit unfair for you to expect that you have failed. Why have others failed? Well, the are going to get all the benefits of the store employ- Office and Professional Employees union failed in ees when you have none of the burdens of those New Jersey among office workers because Local employees. 1262 broke that union. You don't have to believe If the union is telling you that it will get you me; I have copies of a 1970 newspaper article all store pay in the office, it is really misrepresenting about the strike that occurred at Local 1262's head- the facts. There's no way in the world that we can quarters. Here are copies of that article [At this afford to pay store rates in the office, and there is point, distribute copies of the Star-Ledger article]. no way in the world that we would pay store rates This article tells how the strike began in August, in the office. 1970, but it doesn't tell how the strike ended. The As it has been explained to you before, if the strike ended in October, 1970 with the office work- union were to get in here, all we would have to do ers union giving up and offering to have the em- is to sit down and negotiate in good faith with the ployees abandon the strike and return to work. plHowever, Local 1262, which knows ho to dwork.union. We would be under no obligation to agree to any union demand; all we would have to do would things like this, had permanently replaced all the things like this, had permanently replaced all the be to negotiate in good faith. If we could not reach strikers. As a result, not all of the strikers got their agreement-if we refused to make any conces- jobs back; most of them were permanently replaced sions-like Local 1262 did in 1970 the same thing and had to wait a long time to get back to work. that haened tee cold haen her. e nin What was the strike over? Well, the article says t h ul d e ree cou l d h ap n strike, and we the office workers wanted more money and the would be free to permanently replace any employee Union wasn't about to give it to them, because wo u ld be fr ee t o srikaneny A the union how that is Local 1262 felt that it was paying its employees a fair wage. The last couple of paragraphs of the arti-done; the really know cle sum it up pretty well [At this point, read the last I don't want to spend a lot of time reviewing two paragraphs of the Star-Ledger article]. your fringe benefits, except to say that your fringe Now, we're in pretty much the same position benefits are every bit as good as the benefits the that Local 1262 was in back in 1970. We think that store emoloyees get, and in some cases they are we are treating our office employees just as fairly even better. For example, you start getting two and just as well as we possibly can. Your fringe weeks vacation after one year of service, while in benefits are every bit as good as what the store em- the stores employees have to work two years before ployees have, and in some instances your fringes are they get two weeks of vacation pay. In the stores even better. As far as your salaries are concerned, employees get ten days of sick leave; you get 12 those salary rates are competitive with what other days. Your medical insurance program, which in- employers pay office employees in this area. I'm not cludes dental and optical insurance, is better than going to kid any of you into saying that your salary the plan that the union has. And your pension plan rates are as good as the salaries for 40 hours for is every bit as good as the store employees pension store employees. But your rates are a lot better than plan. the union rates for non-food employees in the I'd like to talk about that pension plan for just a stores, and your pension is a lot better than the non- minute. Local 1262 has two pension plans, one for food pension that Local 1262 has for its non-food food employees and one for non-food employees. and store employees. The food employees pension plan provides $14.00 What I am saying to you is that Local 1262 itself to $16.00 a month of pension for each year of cred- recognizes that there is a distinction between food ited service. The non-food employees pension plan employees and non-food employees in the stores, provides $5.50 a month of pension for each year of and we agree. That distinction is equally true be- credited service. That's one third as much as the tween store employees and office employees. Work- food employees get. Remember, as far as the union ing in an office is a lot more pleasant than working is concerned, you are non-food employees. It could in a store. In a store, employees stand on their feet, be that if the union were to get in here, and it tried have to load and unload merchandise, have to stand to get a non-food contract for you, you might lose at cash registers, have to work nights and week- some of the benefits you now enjoy. I don't know ends, and generally have a far less pleasant job life that that would happen, but I can tell you that it's a than you here in the office. That distinction in job real possibility. requirements reflects itself in the rate of pay. Office You don't need a union here to get the very best employees generally earn less than blue collar store this Company has to offer. You don't have to pay employees. I'm not looking down my nose at those $12.00 or $14.00 a month in union dues in order to PROGRESSIVE SUPERMARKETS, INC. 527 of you have gotten one of these leaflets, but if you store employees, by any stretch of the imagination. haven't, this is what it looks like. And if any of you are really interested in doing It's really sort of funny, and somewhat hypocriti- store work, I would certainly do my very best to cal, for Local 1262 to be telling office workers like accommodate any of you who would like to go out yourselves that it has the "strength, unity and bar- into a store. I'm sure, however, that there aren't gaining experience" to enable it to succeed as the many of you who would like to do that. bargaining agent for office workers where others It's just a bit unfair for you to expect that you have failed. Why have others failed? Well, the are going to get all the benefits of the store employ- Office and Professional Employees union failed in ees when you have none of the burdens of those New Jersey among office workers because Local employees. 1262 broke that union. You don't have to believe If the union is telling you that it will get you me; I have copies of a 1970 newspaper article all store pay in the office, it is really misrepresenting about the strike that occurred at Local 1262's head- the facts. There's no way in the world that we can quarters. Here are copies of that article [At this afford to pay store rates in the office, and there is point, distribute copies of the Star-Ledger article]. no way in the world that we would pay store rates This article tells how the strike began in August, in the office. 1970, but it doesn't tell how the strike ended. TheA it has been explained to you before, if the strike ended in October, 1970 with the office work- u w to g i h a w have to do ers union giving up and offering to have the em- is to sit down and negotiate in good faith with the ployees abandon the strike and return to work.. We wu b und r no o However, Local 1262, which knows how to dounion. We would be under no obligation to agree o things like this, had permanently replaced all the an n o e n n ; a w w . thing lik thi, ha peranenly rplacd al thebe to negotiate in good faith. If we could not reach strikers. As a result, not all of the strikers got theira e emen t -i t e refuse d t o m e n o ne s- jobs back; most of them were permanently replaced sions-ik e L elu6ed in 17ke ame thng and had to wait a long time to get back to work. that happened ther could n happe there T e union What was the strike over? Well, the article says t h at h wou en ed t h ere c o u l d h ap p e n h e re i. T h e u a i dw the office workers wanted more money and the w o u ld be f r e e t o c a l n y o u o u t o n st rl k e a an d w e Union wasn't about to give it to them, because w o u ld be f r ee t o Permanently replace any employee Unionwasnt abut t giveit t the, beausewho went out on strike. Ask the union how that is Local 1262 felt that it was paying its employees a d o t e y ral o w. fair wage. The last couple of paragraphs of the arti- d o n e ; t h ^ re a ll y k n o w cle sum it up pretty well [At this point, read the last I d o n 't w a n t to spend a l o t o f time reviewing two paragraphs of the Star-Ledger article]. your fringe benefits, except to say that your fringe Now, we're in pretty much the same position benefits are every bit as good as the benefits the that Local 1262 was in back in 1970. We think that store emoloyees get, and in some cases they are we are treating our office employees just as fairly even better. For example, you start getting two and just as well as we possibly can. Your fringe weeks vacation after one year of service, while in benefits are every bit as good as what the store em- t h e s to r e s employees have to work two years before ployees have, and in some instances your fringes are they get two weeks of vacation pay. In the stores even better. As far as your salaries are concerned, employees get ten days of sick leave; you get 12 those salary rates are competitive with what other days. Your medical insurance program, which in- employers pay office employees in this area. I'm not eludes dental and optical insurance, is better than going to kid any of you into saying that your salary the plan that the union has. And your pension plan rates are as good as the salaries for 40 hours for is every bit as good as the store employees pension store employees. But your rates are a lot better than plan. the union rates for non-food employees in the I'd like to talk about that pension plan for just a stores, and your pension is a lot better than the non- minute. Local 1262 has two pension plans, one for food pension that Local 1262 has for its non-food food employees and one for non-food employees. and store employees. The food employees pension plan provides $14.00 What I am saying to you is that Local 1262 itself to $16.00 a month of pension for each year of cred- recognizes that there is a distinction between food ited service. The non-food employees pension plan employees and non-food employees in the stores, provides $5.50 a month of pension for each year of and we agree. That distinction is equally true be- credited service. That's one third as much as the tween store employees and office employees. Work- food employees get. Remember, as far as the union ing in an office is a lot more pleasant than working is concerned, you are non-food employees. It could in a store. In a store, employees stand on their feet, be that if the union were to get in here, and it tried have to load and unload merchandise, have to stand to get a non-food contract for you, you might lose at cash registers, have to work nights and week- some of the benefits you now enjoy. I don't know ends, and generally have a far less pleasant job life that that would happen, but I can tell you that it's a than you here in the office. That distinction in job real possibility. requirements reflects itself in the rate of pay. Office You don't need a union here to get the very best employees generally earn less than blue collar store this Company has to offer. You don't have to pay employees. I'm not looking down my nose at those$S12.00 or $14.00 a month in union dues in order to PROGRESSIVE SUPERMARKETS, INC. 527 of you have gotten one of these leaflets, but if you store employees, by any stretch of the imagination. haven't, this is what it looks like. And if any of you are really interested in doing It's really sort of funny, and somewhat hypocriti- store work, I would certainly do my very best to cal, for Local 1262 to be telling office workers like accommodate any of you who would like to go out yourselves that it has the "strength, unity and bar- into a store. I'm sure, however, that there aren't gaining experience" to enable it to succeed as the many of you who would like to do that. bargaining agent for office workers where others It's just a bit unfair for you to expect that you have failed. Why have others failed? Well, the are going to get all the benefits of the store employ- Office and Professional Employees union failed in ees when you have none of the burdens of those New Jersey among office workers because Local employees. 1262 broke that union. You don't have to believe If the union is telling you that it will get you me; I have copies of a 1970 newspaper article all store pay in the office, it is really misrepresenting about the strike that occurred at Local 1262's head- the facts. There's no way in the world that we can quarters. Here are copies of that article [At this afford to pay store rates in the office, and there is point, distribute copies of the Star-Ledger article]. no way in the world that we would pay store rates This article tells how the strike began in August, in the office. 1970, but it doesn't tell how the strike ended. TheA it has been explained to you before, if the strike ended in October, 1970 with the office work- u w to g i h a w have to do ers union giving up and offering to have the em- is to sit down and negotiate in good faith with the ployees abandon the strike and return to work.. We wu b und r no o However, Local 1262, which knows how to dounion. We would be under no obligation to agree o things like this, had permanently replaced all the an n o e n n ; a w w . thing lik thi, ha peranenly rplacd al thebe to negotiate in good faith. If we could not reach strikers. As a result, not all of the strikers got theira e emen t -i t e refuse d t o m e n o ne s- jobs back; most of them were permanently replaced sions-ik e L elu6ed in 17ke ame thng and had to wait a long time to get back to work. that happened ther could n happe there T e union What was the strike over? Well, the article says t h at h wou en ed t h ere c o u l d h ap p e n h e re i. T h e u a i dw the office workers wanted more money and the w o u ld be f r e e t o c a l n y o u o u t o n st rl k e a an d w e Union wasn't about to give it to them, because w o u ld be f r ee t o Permanently replace any employee Unionwasnt abut t giveit t the, beausewho went out on strike. Ask the union how that is Local 1262 felt that it was paying its employees a d o t e y ral o w. fair wage. The last couple of paragraphs of the arti- d o n e ; t h ^ re a ll y k n o w cle sum it up pretty well [At this point, read the last I d o n 't w a n t to spend a l o t o f time reviewing two paragraphs of the Star-Ledger article]. your fringe benefits, except to say that your fringe Now, we're in pretty much the same position benefits are every bit as good as the benefits the that Local 1262 was in back in 1970. We think that store emoloyees get, and in some cases they are we are treating our office employees just as fairly even better. For example, you start getting two and just as well as we possibly can. Your fringe weeks vacation after one year of service, while in benefits are every bit as good as what the store em- t h e s to res employees have to work two years before ployees have, and in some instances your fringes are they get two weeks of vacation pay. In the stores even better. As far as your salaries are concerned, employees get ten days of sick leave; you get 12 those salary rates are competitive with what other days. Your medical insurance program, which in- employers pay office employees in this area. I'm not eludes dental and optical insurance, is better than going to kid any of you into saying that your salary the plan that the union has. And your pension plan rates are as good as the salaries for 40 hours for is every bit as good as the store employees pension store employees. But your rates are a lot better than plan. the union rates for non-food employees in the I'd like to talk about that pension plan for just a stores, and your pension is a lot better than the non- minute. Local 1262 has two pension plans, one for food pension that Local 1262 has for its non-food food employees and one for non-food employees. and store employees. The food employees pension plan provides $14.00 What I am saying to you is that Local 1262 itself to $16.00 a month of pension for each year of cred- recognizes that there is a distinction between food ited service. The non-food employees pension plan employees and non-food employees in the stores, provides $5.50 a month of pension for each year of and we agree. That distinction is equally true be- credited service. That's one third as much as the tween store employees and office employees. Work- food employees get. Remember, as far as the union ing in an office is a lot more pleasant than working is concerned, you are non-food employees. It could in a store. In a store, employees stand on their feet, be that if the union were to get in here, and it tried have to load and unload merchandise, have to stand to get a non-food contract for you, you might lose at cash registers, have to work nights and week- some of the benefits you now enjoy. I don't know ends, and generally have a far less pleasant job life that that would happen, but I can tell you that it's a than you here in the office. That distinction in job real possibility. requirements reflects itself in the rate of pay. Office You don't need a union here to get the very best employees generally earn less than blue collar store this Company has to offer. You don't have to pay employees. I'm not looking down my nose at those$S12.00 or $14.00 a month in union dues in order to PROGRESSIVE SUPERMARKETS, INC. 527 of you have gotten one of these leaflets, but if you store employees, by any stretch of the imagination. haven't, this is what it looks like. And if any of you are really interested in doing It's really sort of funny, and somewhat hypocriti- store work, I would certainly do my very best to cal, for Local 1262 to be telling office workers like accommodate any of you who would like to go out yourselves that it has the "strength, unity and bar- into a store. I'm sure, however, that there aren't gaining experience" to enable it to succeed as the many of you who would like to do that. bargaining agent for office workers where others It's just a bit unfair for you to expect that you have failed. Why have others failed? Well, the are going to get all the benefits of the store employ- Office and Professional Employees union failed in ees when you have none of the burdens of those New Jersey among office workers because Local employees. 1262 broke that union. You don't have to believe If the union is telling you that it will get you me; I have copies of a 1970 newspaper article all store pay in the office, it is really misrepresenting about the strike that occurred at Local 1262's head- the facts. There's no way in the world that we can quarters. Here are copies of that article [At this afford to pay store rates in the office, and there is point, distribute copies of the Star-Ledger article]. no way in the world that we would pay store rates This article tells how the strike began in August, in the office. 1970, but it doesn't tell how the strike ended. TheA it has been explained to you before, if the strike ended in October, 1970 with the office work- u w to g i h a w have to do ers union giving up and offering to have the em- is to sit down and negotiate in good faith with the ployees abandon the strike and return to work.. We wu b und r no o However, Local 1262, which knows how to dounion. We would be under no obligation to agree o things like this, had permanently replaced all the an n o e n n ; a w w . thing lik thi, ha peranenly rplacd al thebe to negotiate in good faith. If we could not reach strikers. As a result, not all of the strikers got theira e emen t -i t e refuse d t o m e n o ne s- jobs back; most of them were permanently replacedagemnt-ife L elu6ed in 17ke ame thng and had to wait a long time to get back to work. that happened ther could n happe there T e union What was the strike over? Well, the article says t h at h wou en ed t h ere c o u l d h ap p e n h e re i. T h e u a i dw the office workers wanted more money and the w o u ld be f r e e t o c a l n y o u o u t o n st rl k e a an d w e Union wasn't about to give it to them, because w o u ld be f r ee t o Permanently replace any employee Unionwasnt abut t giveit t the, beausewho went out on strike. Ask the union how that is Local 1262 felt that it was paying its employees a d o t e y ral o w. fair wage. The last couple of paragraphs of the arti- d o n e ; t h ^ re a ll y k n o w cle sum it up pretty well [At this point, read the last I d o n 't w a n t to spend a l o t o f time reviewing two paragraphs of the Star-Ledger article]. your fringe benefits, except to say that your fringe Now, we're in pretty much the same position benefits are every bit as good as the benefits the that Local 1262 was in back in 1970. We think that store emoloyees get, and in some cases they are we are treating our office employees just as fairly even better. For example, you start getting two and just as well as we possibly can. Your fringe weeks vacation after one year of service, while in benefits are every bit as good as what the store em- t h e s to res employees have to work two years before ployees have, and in some instances your fringes are they get two weeks of vacation pay. In the stores even better. As far as your salaries are concerned, employees get ten days of sick leave; you get 12 those salary rates are competitive with what other days. Your medical insurance program, which in- employers pay office employees in this area. I'm not eludes dental and optical insurance, is better than going to kid any of you into saying that your salary the plan that the union has. And your pension plan rates are as good as the salaries for 40 hours for is every bit as good as the store employees pension store employees. But your rates are a lot better than plan. the union rates for non-food employees in the I'd like to talk about that pension plan for just a stores, and your pension is a lot better than the non- minute. Local 1262 has two pension plans, one for food pension that Local 1262 has for its non-food food employees and one for non-food employees. and store employees. The food employees pension plan provides $14.00 What I am saying to you is that Local 1262 itself to $16.00 a month of pension for each year of cred- recognizes that there is a distinction between food ited service. The non-food employees pension plan employees and non-food employees in the stores, provides $5.50 a month of pension for each year of and we agree. That distinction is equally true be- credited service. That's one third as much as the tween store employees and office employees. Work- food employees get. Remember, as far as the union ing in an office is a lot more pleasant than working is concerned, you are non-food employees. It could in a store. In a store, employees stand on their feet, be that if the union were to get in here, and it tried have to load and unload merchandise, have to stand to get a non-food contract for you, you might lose at cash registers, have to work nights and week- some of the benefits you now enjoy. I don't know ends, and generally have a far less pleasant job life that that would happen, but I can tell you that it's a than you here in the office. That distinction in job real possibility. requirements reflects itself in the rate of pay. Office You don't need a union here to get the very best employees generally earn less than blue collar store this Company has to offer. You don't have to pay employees. I'm not looking down my nose at those$S12.00 or $14.00 a month in union dues in order to 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work here or in order to keep your jobs here. You them and elaborated on what he read; he told the em- don't have to pay dues to a union in order to get ployees of the strike by the Union's employees; that at the very best this Company has to offer. the conclusion of the strike only a few of the striking I hope that none of you will be fooled into employees were rehired and he passed out copies of making yourselves parties to the union's grandiose newspaper articles about the strike. He then said that the schemes to increase its membership. We have election would be by secret ballot and to consider Re- always treated you fairly, and we hope to be able to spondent and vote no. He also told the employees that deal directly with you in the future and to continue they were receiving good salaries and benefits which to solve our problems together, without the inter- were comparable in the area. Plant further testified that vention of outside parties that could bring strikes Gold said that all a union wins in an election is the right and unpleasantness here. to sit down and negotiate with a company; that you do Now, if any of you have any questions, I'll be not necessarily start from where benefits are, but that the glad to answer them for you. Union would have to start from scratch, from ground There's one other thing I want to mention before zero to negotiate for the benefits the employees then we end this meeting. Last week, we replaced two of had, that all the benefits were negotiable. Gold then the employees here. We replaced Mary Salink be- mentioned dental benefits and "he said that if we were cause we needed someone full-time for her job, and having work done on our teeth, we would have to pay we hired someone. We also replaced Diane Me- for it ourselves, because that benefit would be frozen daska, who had resigned in December and had until the Union renegotiated for it." He also stated that if given us notice that she would be leaving the end of the employees went on strike they could be replaced. January. We had been looking for a replacement for Plant also testified that Gold said that members of the Diane and we found one who could start this past Union that worked in the store had a timeclock which Monday. So we called Diane in last Friday and told the office employees did not have, and if the Union won her that we were accepting her resignation as of the election that could be put into effect. that day. But because she had given us plenty of Piper testified that Gold said basically the same thing notice; we paid her through the end of the month, that he said in his first speech; he began this speech by In other words, we gave her 3 weeks paid vacation discussing the mechanics of the election and that it So Diane certainly wasn't hurt by what did. would be a secret-ballot election; that at one time the It's true that she told us last Friday that she was Union's employees went on strike and some of them had thinking of staying beyond the end of the month, been permanently replaced. He then spoke about their but unfortunately she didn't tell us that until after benefits, that Respondent's contract with the Union dif- we had hired a replacement for her, and there ferentiated between food and non-food employees, that simply wasn't anything we could do now. there was a distinction between the work that store em- I should tell you that the union is trying to make ployees perform as compared to non-store employees an issue out of this. It has gone to the Labor Board and Respondent could not afford to pay its office em- and has filed an unfair labor practice charge alleg- ployees the same as it paid its store employees. Accord- ing that we replaced Mary and Diane because of ing to Piper's testimony, Gold also spoke about Respond- their union activities. That's an outright lie, and the ent's obligation to bargain in good faith with the Union union knows it. But they're trying to use this as a if it won the election, the permanent replacement of campaign tactic. We don't plan to let them get strikers, the Union's dues that the employees would have away with it, and I hope that none of you will be to pay, that Respondent had always treated them fairly fooled by this union trick. and they did not need a union to bring strikes and un- Well, that's about all I have to say. I hope that pleasantness to the office. Piper also testified that Gold you'll vote NO tomorrow and keep this a good informed the employees "that the stores have a time place to work. Now, if any of you have a question, clock, and if we wanted to punch in, and punch out, '11 be glad to answer it for you. I'll be glad to answer it for you. then they could install a time clock if that's what it came Evers testified that Gold told the employees that the down to," although he did not connect the installation of salaries they received were fair and comparable for the timeclock with the Union winning the election. office work in the area and that even though it was less Gold ended his speech by saying that Respondent had let than Respondent paid its store employees, the work they Medaska go because she had given notice of her resigna- perform was different; he also informed them of the tion, that they had obtained somebody to replace her and strike by the Union's employees. Evers also testified that they had paid her through the time she had given notice Gold said that if the Union won the election "we'd have for, and they felt they had treated her fairly. to renegotiate everything. That we'd have to start from Gerard testified that Gold referred to, but did not read ground zero and renegotiate all our benefits . . . That he directly from the notes he had with him. He began by was the one who paid us our salaries and gave us our explaining the secret-ballot procedure for the Board elec- benefits and we would have to renegotiate everything." According to Ever's testimony, Gold also said "that we 'On direct examination, however. Piper testified that Gold said, "there may have a time clock if we got the union in." was no time clock now, but there was the possibility that if the Union came in there would be one installed." In answer to a question from me, Plant testified that Gold had some papers with him, she testified that Gold said that as the stores had a timeclock, there was a and he referred to these papers and read a few lines from possibility that they could have one installed. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work here or in order to keep your jobs here. You them and elaborated on what he read; he told the em- don't have to pay dues to a union in order to get ployees of the strike by the Union's employees; that at the very best this Company has to offer. the conclusion of the strike only a few of the striking I hope that none of you will be fooled into employees were rehired and he passed out copies of making yourselves parties to the union's grandiose newspaper articles about the strike. He then said that the schemes to increase its membership. We have election would be by secret ballot and to consider Re- always treated you fairly, and we hope to be able to spondent and vote no. He also told the employees that deal directly with you in the future and to continue they were receiving good salaries and benefits which to solve our problems together, without the inter- were comparable in the area. Plant further testified that vention of outside parties that could bring strikes Gold said that all a union wins in an election is the right and unpleasantness here. to sit down and negotiate with a company; that you do Now, if any of you have any questions, I'll be not necessarily start from where benefits are, but that the glad to answer them for you. Union would have to start from scratch, from ground There's one other thing I want to mention before zero to negotiate for the benefits the employees then we end this meeting. Last week, we replaced two of had, that all the benefits were negotiable. Gold then the employees here. We replaced Mary Salink be- mentioned dental benefits and "he said that if we were cause we needed someone full-time for her job, and having work done on our teeth, we would have to pay we hired someone. We also replaced Diane Me- for it ourselves, because that benefit would be frozen daska, who had resigned in December and had until the Union renegotiated for it." He also stated that if given us notice that she would be leaving the end of the employees went on strike they could be replaced. January. We had been looking for a replacement for Plant also testified that Gold said that members of the Diane and we found one who could start this past Union that worked in the store had a timeclock which Monday. So we called Diane in last Friday and told the office employees did not have, and if the Union won her that we were accepting her resignation as of the election that could be put into effect. that day. But because she had given us plenty of Piper testified that Gold said basically the same thing notice; we paid her through the end of the month, that he said in his first speech; he began this speech by In other words, we gave her 3 weeks paid vacation. discussing the mechanics of the election and that it So Diane certainly wasn't hurt by what did. would be a secret-ballot election; that at one time the It's true that she told us last Friday that she was Union's employees went on strike and some of them had thinking of staying beyond the end of the month, been permanently replaced. He then spoke about their but unfortunately she didn't tell us that until after benefits, that Respondent's contract with the Union dif- we had hired a replacement for her, and there ferentiated between food and non-food employees, that simply wasn't anything we could do now. there was a distinction between the work that store em- I should tell you that the union is trying to make ployees perform as compared to non-store employees an issue out of this. It has gone to the Labor Board and Respondent could not afford to pay its office em- and has filed an unfair labor practice charge alleg- ployees the same as it paid its store employees. Accord- ing that we replaced Mary and Diane because of ing to Piper's testimony, Gold also spoke about Respond- their union activities. That's an outright lie, and the ent's obligation to bargain in good faith with the Union union knows it. But they're trying to use this as a if it won the election, the permanent replacement of campaign tactic. We don't plan to let them get strikers, the Union's dues that the employees would have away with it, and I hope that none of you will be to pay, that Respondent had always treated them fairly fooled by this union trick. and they did not need a union to bring strikes and un- Well, that's about all I have to say. I hope that pleasantness to the office. Piper also testified that Gold you'll vote NO tomorrow and keep this a good informed the employees "that the stores have a time place to work. Now, if any of you have a question, clock, and if we wanted to punch in, and punch out, 1'11 be glad to answer it for you.^ y^ ^ I'll be gla to answer t for you.then they could install a time clock if that's what it came Evers testified that Gold told the employees that the d o w n t o," although he did not connect the installation of salaries they received were fair and comparable for t h e timeclock with the Union winning the election." office work in the area and that even though it was less G o l d e n d e d h is speech by saying that Respondent had let than Respondent paid its store employees, the work they Medaska go because she had given notice of her resigna- perform was different; he also informed them of the tion, that they had obtained somebody to replace her and strike by the Union's employees. Evers also testified that they had paid her through the time she had given notice Gold said that if the Union won the election "we'd have for, a n d they felt they had treated her fairly. to renegotiate everything. That we'd have to start from Gerard testified that Gold referred to, but did not read ground zero and renegotiate all our benefits . . . That he directly from the notes he had with him. He began by was the one who paid us our salaries and gave us our explaining the secret-ballot procedure for the Board elec- benefits and we would have to renegotiate everything." According to Ever's testimony, Gold also said "that we o n d ir ec t examination, however. Piper testified that Gold said, "there may have a time clock if we got the union in." was no time cloc k now, but ther e was the po! sibilit y that if the Union ca me in there would be one installed." In answer to a question from me, Plant testified that Gold had some papers With him, she testified that Gold said that as the stores had a timeclock, there was a and he referred to these papers and read a few lines from possibility that they could have one installed. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work here or in order to keep your jobs here. You them and elaborated on what he read; he told the em- don't have to pay dues to a union in order to get ployees of the strike by the Union's employees; that at the very best this Company has to offer. the conclusion of the strike only a few of the striking I hope that none of you will be fooled into employees were rehired and he passed out copies of making yourselves parties to the union's grandiose newspaper articles about the strike. He then said that the schemes to increase its membership. We have election would be by secret ballot and to consider Re- always treated you fairly, and we hope to be able to spondent and vote no. He also told the employees that deal directly with you in the future and to continue they were receiving good salaries and benefits which to solve our problems together, without the inter- were comparable in the area. Plant further testified that vention of outside parties that could bring strikes Gold said that all a union wins in an election is the right and unpleasantness here. to sit down and negotiate with a company; that you do Now, if any of you have any questions, I'll be not necessarily start from where benefits are, but that the glad to answer them for you. Union would have to start from scratch, from ground There's one other thing I want to mention before zero to negotiate for the benefits the employees then we end this meeting. Last week, we replaced two of had, that all the benefits were negotiable. Gold then the employees here. We replaced Mary Salink be- mentioned dental benefits and "he said that if we were cause we needed someone full-time for her job, and having work done on our teeth, we would have to pay we hired someone. We also replaced Diane Me- for it ourselves, because that benefit would be frozen daska, who had resigned in December and had until the Union renegotiated for it." He also stated that if given us notice that she would be leaving the end of the employees went on strike they could be replaced. January. We had been looking for a replacement for Plant also testified that Gold said that members of the Diane and we found one who could start this past Union that worked in the store had a timeclock which Monday. So we called Diane in last Friday and told the office employees did not have, and if the Union won her that we were accepting her resignation as of the election that could be put into effect. that day. But because she had given us plenty of Piper testified that Gold said basically the same thing notice; we paid her through the end of the month, that he said in his first speech; he began this speech by In other words, we gave her 3 weeks paid vacation. discussing the mechanics of the election and that it So Diane certainly wasn't hurt by what did. would be a secret-ballot election; that at one time the It's true that she told us last Friday that she was Union's employees went on strike and some of them had thinking of staying beyond the end of the month, been permanently replaced. He then spoke about their but unfortunately she didn't tell us that until after benefits, that Respondent's contract with the Union dif- we had hired a replacement for her, and there ferentiated between food and non-food employees, that simply wasn't anything we could do now. there was a distinction between the work that store em- I should tell you that the union is trying to make ployees perform as compared to non-store employees an issue out of this. It has gone to the Labor Board and Respondent could not afford to pay its office em- and has filed an unfair labor practice charge alleg- ployees the same as it paid its store employees. Accord- ing that we replaced Mary and Diane because of ing to Piper's testimony, Gold also spoke about Respond- their union activities. That's an outright lie, and the ent's obligation to bargain in good faith with the Union union knows it. But they're trying to use this as a if it won the election, the permanent replacement of campaign tactic. We don't plan to let them get strikers, the Union's dues that the employees would have away with it, and I hope that none of you will be to pay, that Respondent had always treated them fairly fooled by this union trick. a nd they did not need a union to bring strikes and un- Well, that's about all I have to say. I hope that pleasantness to the office. Piper also testified that Gold you'll vote NO tomorrow and keep this a good informed the employees "that the stores have a time place to work. Now, if any of you have a question, clock, and if we wanted to punch in, and punch out, 1'11 be glad to answer it for you.^ y^ ^ I'll be gla to answer t for you.then they could install a time clock if that's what it came Evers testified that Gold told the employees that the d o w n t o," although he did not connect the installation of salaries they received were fair and comparable for t h e timeclock with the Union winning the election." office work in the area and that even though it was less G o l d e n d e d his speech by saying that Respondent had let than Respondent paid its store employees, the work they Medaska go because she had given notice of her resigna- perform was different; he also informed them of the tion, that they had obtained somebody to replace her and strike by the Union's employees. Evers also testified that they had paid her through the time she had given notice Gold said that if the Union won the election "we'd have for, a n d they felt they had treated her fairly. to renegotiate everything. That we'd have to start from Gerard testified that Gold referred to, but did not read ground zero and renegotiate all our benefits . . . That he directly from the notes he had with him. He began by was the one who paid us our salaries and gave us our explaining the secret-ballot procedure for the Board elec- benefits and we would have to renegotiate everything." According to Ever's testimony, Gold also said "that we o n d ir ec t examination, however. Piper testified that Gold said, "there may have a time clock if we got the union in." was no time cloc k now, but ther e was the po! sibilit y that if the Union ca me in there would be one installed." In answer to a question from me, Plant testified that Gold had some papers With him, she testified that Gold said that as the stores had a timeclock, there was a and he referred to these papers and read a few lines from possibility that they could have one installed. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work here or in order to keep your jobs here. You them and elaborated on what he read; he told the em- don't have to pay dues to a union in order to get ployees of the strike by the Union's employees; that at the very best this Company has to offer. the conclusion of the strike only a few of the striking I hope that none of you will be fooled into employees were rehired and he passed out copies of making yourselves parties to the union's grandiose newspaper articles about the strike. He then said that the schemes to increase its membership. We have election would be by secret ballot and to consider Re- always treated you fairly, and we hope to be able to spondent and vote no. He also told the employees that deal directly with you in the future and to continue they were receiving good salaries and benefits which to solve our problems together, without the inter- were comparable in the area. Plant further testified that vention of outside parties that could bring strikes Gold said that all a union wins in an election is the right and unpleasantness here. to sit down and negotiate with a company; that you do Now, if any of you have any questions, I'll be not necessarily start from where benefits are, but that the glad to answer them for you. Union would have to start from scratch, from ground There's one other thing I want to mention before zero to negotiate for the benefits the employees then we end this meeting. Last week, we replaced two of had, that all the benefits were negotiable. Gold then the employees here. We replaced Mary Salink be- mentioned dental benefits and "he said that if we were cause we needed someone full-time for her job, and having work done on our teeth, we would have to pay we hired someone. We also replaced Diane Me- for it ourselves, because that benefit would be frozen daska, who had resigned in December and had until the Union renegotiated for it." He also stated that if given us notice that she would be leaving the end of the employees went on strike they could be replaced. January. We had been looking for a replacement for Plant also testified that Gold said that members of the Diane and we found one who could start this past Union that worked in the store had a timeclock which Monday. So we called Diane in last Friday and told the office employees did not have, and if the Union won her that we were accepting her resignation as of the election that could be put into effect. that day. But because she had given us plenty of Piper testified that Gold said basically the same thing notice; we paid her through the end of the month. that he said in his first speech; he began this speech by In other words, we gave her 3 weeks paid vacation. discussing the mechanics of the election and that it So Diane certainly wasn't hurt by what did. would be a secret-ballot election; that at one time the It's true that she told us last Friday that she was Union's employees went on strike and some of them had thinking of staying beyond the end of the month, been permanently replaced. He then spoke about their but unfortunately she didn't tell us that until after benefits, that Respondent's contract with the Union dif- we had hired a replacement for her, and there ferentiated between food and non-food employees, that simply wasn't anything we could do now. there was a distinction between the work that store em- I should tell you that the union is trying to make ployees perform as compared to non-store employees an issue out of this. It has gone to the Labor Board and Respondent could not afford to pay its office em- and has filed an unfair labor practice charge alleg- ployees the same as it paid its store employees. Accord- ing that we replaced Mary and Diane because of ing to Piper's testimony, Gold also spoke about Respond- their union activities. That's an outright lie, and the ent's obligation to bargain in good faith with the Union union knows it. But they're trying to use this as a if it won the election, the permanent replacement of campaign tactic. We don't plan to let them get strikers, the Union's dues that the employees would have away with it, and I hope that none of you will be to pay, that Respondent had always treated them fairly fooled by this union trick. a nd they did not need a union to bring strikes and un- Well, that's about all I have to say. I hope that pleasantness to the office. Piper also testified that Gold you'll vote NO tomorrow and keep this a good informed the employees "that the stores have a time place to work. Now, if any of you have a question, clock, and if we wanted to punch in, and punch out, 1'11 be glad to answer it for you.^ y^ ^ I'll be gla to answer t for you.then they could install a time clock if that's what it came Evers testified that Gold told the employees that the d o w n t o," although he did not connect the installation of salaries they received were fair and comparable for t h e timeclock with the Union winning the election." office work in the area and that even though it was less G o l d e n d e d his speech by saying that Respondent had let than Respondent paid its store employees, the work they Medaska go because she had given notice of her resigna- perform was different; he also informed them of the tion, that they had obtained somebody to replace her and strike by the Union's employees. Evers also testified that they had paid her through the time she had given notice Gold said that if the Union won the election "we'd have for, a n d they felt they had treated her fairly. to renegotiate everything. That we'd have to start from Gerard testified that Gold referred to, but did not read ground zero and renegotiate all our benefits . . . That he directly from the notes he had with him. He began by was the one who paid us our salaries and gave us our explaining the secret-ballot procedure for the Board elec- benefits and we would have to renegotiate everything." According to Ever's testimony, Gold also said "that we o n d ir ec t examination, however. Piper testified that Gold said, "there may have a time clock if we got the union in." was no time cloc k now, but ther e was the po! sibilit y that if the Union ca me in there would be one installed." In answer to a question from me, Plant testified that Gold had some papers With him, she testified that Gold said that as the stores had a timeclock, there was a and he referred to these papers and read a few lines from possibility that they could have one installed. PROGRESSIVE SUPERMARKETS, INC. 529 tion the next day. He then spoke about the Union and Rinaldo, Packard, and Shally, on direct examination in the strike in 1970 that Respondent's employees engaged answers to questions from counsel for Respondent, and in and that most of those striking employees did not get in cross-examination, referred to this speech and the ear- their jobs back immediately after the strike. He said that lier speech together. Therefore, for a discussion of their the employees salaries were comparable to that of other testimony see supra, re the January 4 speech. office employees in the area and their fringe benefits Edwards testified that Gold began the meeting by dis- were as good, or better, than those of the store employ- cussing the mechanics of the Board election to be con- ees; he told the employees of the differences between ducted the following day. He told the employees of their food and nonfood work and wages, and that the Union, excellent fringe benefits and the difference between store in its contract, recognized the difference. Gerard also and nonstore employees and, regardless of what the testified that Gold said that if the Union won the elec- Union was telling them, they should not expect the same tion Respondent would have to sit down and negotiate in rate of pay as the store employees receive because the good faith with the Union, but that any benefits they had office employees do not have to deal with the public. would be frozen. "They would start from ground zero to She testified that Gold said that if the Union won the be renegotiated for. And if, for example, we had any election, Respondent would have to sit down with the dental benefits, they-the amount incurred would have Union and try to come to an agreement, and if they to be paid for on our own, as they would be frozen . . could not reach an agreement, the employees could that benefits would start from ground zero . . . if the strike, but there was no guarantee that their jobs would union got in." Gold also said that the wages would be be available when they came back because they could be frozen until the matter was settled. As regards the use of permanently replaced. Gold then spoke about the fringe a timeclock, Gerard testified as follows regarding Gold's benefits the office employees were receiving and he said speech: ". .. was going over the fact that the people in that if the Union won9 the election "that they could be the stores do have to punch and that we did not have to frozen; that we'd have to start from ground zero as far as and that it could be arranged, and that we shouldn't vote negotiations go." He also said, "at this point you're not for the union because-so that the office would remain punching in the time clock but you could be in the on friendly and personal manner. He felt that the Union future." She also testified that Gold said that he knew coming in would change . . . I recall him saying that we that the employees were due for raises, but that they did not have a time clock now, but that could be ar- would be frozen until after the election. Gold ended the ranged-that we could have one should the union pre- speech by saying that all the employees knew that Me- daska was getting married and he felt that Respondent Q. Isn't it true that when he talked about a time gave her a fair shake by asking her to leave at that time clock, he talked about it coming in, or that it could and that her replacement would be in on Monday. come in, in connection with negotiations with the For the discussion of what Gold testified he said, and Union. did not say, in this speech, see the discussion, supra, re A. No. the January 4 speech. Q. He did not. It was totally apart from negotia- tions with the Union. Credibility Determination A. Yes. , , In determining what was said by Cimini and Gold in Q. But if the Union won the election. these three speeches, it has been necessary to carefully A. Yes. scrutinize the testimony of all the witnesses to, and par- In answer to a question from me as to what Gold said ticipants in, these speeches. After doing so, I have deter- regarding the circumstances under which a timeclock mined that the most credible witnesses in this regard would be installed, she testified: were Piper and Gerard; their testimony was the most direct, they were the least evasive on cross-examination A. Well we, right then, did not have to punch a and had the least amount of contradictory testimony. I time clock. And that we should consider the people would therefore find that in his speech, Cimini did say, that work in the stores do, and he said that that inter alia, that Respondent would do whatever it had to could be arranged for us. do in order to keep the Union out. JUDGE BIBLOWITZ: Did he say under what cir- As regards Gold's first speech, I would find that he cumstances? said, inter alia, that if the Union won the election, he A. No. He just said that that could be arranged. would have to negotiate with the Union; everything was negotiable and that he would be tough; that in negotia- Gerard also testified that Gold said that they were the tions the employees would start from ground zero and first office employees the Union was attempting to repre- everything would have to be renegotiated. There was a sent and he did not want to be first, and that they did possibility that the Union would call a strike and Re- not need a union and the payment of union dues to get spondent could hire strike replacements and, if that oc- the best Respondent had to offer. He ended by saying curred, the strikers might not get their jobs back immedi- that they had replaced Medaska because she had re- ately, but might have to wait until a vacancy occurred. I signed and they needed someone to replace her, that they had paid her through the end of January so she was Edwards testified that Gold, in both speeches, used the expression not hurt by their actions. "ground zero," but did not use the expression "start from scratch." PROGRESSIVE SUPERMARKETS, INC. 529 tion the next day. He then spoke about the Union and Rinaldo, Packard, and Shally, on direct examination in the strike in 1970 that Respondent's employees engaged answers to questions from counsel for Respondent, and in and that most of those striking employees did not get in cross-examination, referred to this speech and the ear- their jobs back immediately after the strike. He said that lier speech together. Therefore, for a discussion of their the employees salaries were comparable to that of other testimony see supra, re the January 4 speech. office employees in the area and their fringe benefits Edwards testified that Gold began the meeting by dis- were as good, or better, than those of the store employ- cussing the mechanics of the Board election to be con- ees; he told the employees of the differences between ducted the following day. He told the employees of their food and nonfood work and wages, and that the Union, excellent fringe benefits and the difference between store in its contract, recognized the difference. Gerard also and nonstore employees and, regardless of what the testified that Gold said that if the Union won the elec- Union was telling them, they should not expect the same tion Respondent would have to sit down and negotiate in rate of pay as the store employees receive because the good faith with the Union, but that any benefits they had office employees do not have to deal with the public. would be frozen. "They would start from ground zero to She testified that Gold said that if the Union won the be renegotiated for. And if, for example, we had any election, Respondent would have to sit down with the dental benefits, they-the amount incurred would have Union and try to come to an agreement, and if they to be paid for on our own, as they would be frozen . . could not reach an agreement, the employees could that benefits would start from ground zero ... if the strike, but there was no guarantee that their jobs would union got in." Gold also said that the wages would be be available when they came back because they could be frozen until the matter was settled. As regards the use of permanently replaced. Gold then spoke about the fringe a timeclock, Gerard testified as follows regarding Gold's benefits the office employees were receiving and he said speech: ". . was going over the fact that the people in that if the Union won" the election "that they could be the stores do have to punch and that we did not have to frozen; that we'd have to start from ground zero as far as and that it could be arranged, and that we shouldn't vote negotiations go." He also said, "at this point you're not for the union because-so that the office would remainhing in the time clock but you could be in the on friendly and personal manner. He felt that the Union future." She also testified that Gold said that he knew coming in would change ... I recall him saying that we that the employees were due for raises, but that they did not have a time clock now, but that could be ar- would be frozen until after the election. Gold ended the ranged-that we could have one should the union pre- speech by saying that all the employees knew that Me- daska was getting married and he felt that Respondent Q. Isn't it true that when he talked about a time gave her a fair shake by asking her to leave at that time clock, he talked about it coming in, or that it could a nd t h a t he r replacement would be in on Monday. come in, in connection with negotiations with the F o r the discussion of what Gold testified he said, and Union. did not say, in this speech, see the discussion, supra, re A. No. the January 4 speech. Q. He did not. It was totally apart from negotia- tions with the Union. Credibility Determination A . Y es"., , ,, .In determining what was said by Cimini and Gold in Q. But if the Union won the election. these three speeches, it has been necessary to carefully A. Yes. scrutinize the testimony of all the witnesses to, and par- In answer to a question from me as to what Gold said ticipants in, these speeches. After doing so, I have deter- regarding the circumstances under which a timeclock min ed t ha t the m o st cr ed ib le witnesses in this regard would be installed, she testified: w e r e Piper an d Gerard; their testimony was the most direct, they were the least evasive on cross-examination A. Well we, right then, did not have to punch a and had the least amount of contradictory testimony. I time clock. And that we should consider the people would therefore find that in his speech, Cimini did say, that work in the stores do, and he said that that inter alia, that Respondent would do whatever it had to could be arranged for us. do in order to keep the Union out. JUDGE BIBLOWITZ: Did he say under what cir- As regards Gold's first speech, I would find that he cumstances? said, inter alia, that if the Union won the election, he A. No. He just said that that could be arranged. would have to negotiate with the Union; everything was negotiable and that he would be tough; that in negotia- Gerard also testified that Gold said that they were the tions the employees would start from ground zero and first office employees the Union was attempting to repre- everything would have to be renegotiated. There was a sent and he did not want to be first, and that they did possibility that the Union would call a strike and Re- not need a union and the payment of union dues to get spondent could hire strike replacements and, if that oc- the best Respondent had to offer. He ended by saying curred, the strikers might not get their jobs back immedi- that they had replaced Medaska because she had re- ately, but might have to wait until a vacancy occurred. I signed and they needed someone to replace her, that they had paid her through the end of January so she was Edwards testified that Gold, in both speeches, used the expression not hurt by their actions. "ground zero," but did not use the expression "start from scratch." PROGRESSIVE SUPERMARKETS, INC. 529 tion the next day. He then spoke about the Union and Rinaldo, Packard, and Shally, on direct examination in the strike in 1970 that Respondent's employees engaged answers to questions from counsel for Respondent, and in and that most of those striking employees did not get in cross-examination, referred to this speech and the ear- their jobs back immediately after the strike. He said that lier speech together. Therefore, for a discussion of their the employees salaries were comparable to that of other testimony see supra, re the January 4 speech. office employees in the area and their fringe benefits Edwards testified that Gold began the meeting by dis- were as good, or better, than those of the store employ- cussing the mechanics of the Board election to be con- ees; he told the employees of the differences between ducted the following day. He told the employees of their food and nonfood work and wages, and that the Union, excellent fringe benefits and the difference between store in its contract, recognized the difference. Gerard also and nonstore employees and, regardless of what the testified that Gold said that if the Union won the elec- Union was telling them, they should not expect the same tion Respondent would have to sit down and negotiate in rate of pay as the store employees receive because the good faith with the Union, but that any benefits they had office employees do not have to deal with the public. would be frozen. "They would start from ground zero to She testified that Gold said that if the Union won the be renegotiated for. And if, for example, we had any election, Respondent would have to sit down with the dental benefits, they-the amount incurred would have Union and try to come to an agreement, and if they to be paid for on our own, as they would be frozen . . could not reach an agreement, the employees could that benefits would start from ground zero ... if the strike, but there was no guarantee that their jobs would union got in." Gold also said that the wages would be be available when they came back because they could be frozen until the matter was settled. As regards the use of permanently replaced. Gold then spoke about the fringe a timeclock, Gerard testified as follows regarding Gold's benefits the office employees were receiving and he said speech: ". . was going over the fact that the people in that if the Union won" the election "that they could be the stores do have to punch and that we did not have to frozen; that we'd have to start from ground zero as far as and that it could be arranged, and that we shouldn't vote negotiations go." He also said, "at this point you're not for the union because-so that the office would remainhing in the time clock but you could be in the on friendly and personal manner. He felt that the Union future." She also testified that Gold said that he knew coming in would change ... I recall him saying that we that the employees were due for raises, but that they did not have a time clock now, but that could be ar- would be frozen until after the election. Gold ended the ranged-that we could have one should the union pre- speech by saying that all the employees knew that Me- daska was getting married and he felt that Respondent Q. Isn't it true that when he talked about a time gave her a fair shake by asking her to leave at that time clock, he talked about it coming in, or that it could a nd t h a t he r replacement would be in on Monday. come in, in connection with negotiations with the F o r the discussion of what Gold testified he said, and Union. did not say, in this speech, see the discussion, supra, re A. No. the January 4 speech. Q. He did not. It was totally apart from negotia- tions with the Union. Credibility Determination A . Yes. I- TT n determining what was said by Cimini and Gold in Q. But if the Union won the election. these three speeches, it has been necessary to carefully A. Yes. scrutinize the testimony of all the witnesses to, and par- In answer to a question from me as to what Gold said ticipants in, these speeches. After doing so, I have deter- regarding the circumstances under which a timeclock min ed t ha t the m o st cr ed ib le witnesses in this regard would be installed, she testified: w e r e Piper an d Gerard; their testimony was the most direct, they were the least evasive on cross-examination A. Well we, right then, did not have to punch a and had the least amount of contradictory testimony. I time clock. And that we should consider the people would therefore find that in his speech, Cimini did say, that work in the stores do, and he said that that inter alia, that Respondent would do whatever it had to could be arranged for us. do in order to keep the Union out. JUDGE BIBLOWITZ: Did he say under what cir- As regards Gold's first speech, I would find that he cumstances? said, inter alia, that if the Union won the election, he A. No. He just said that that could be arranged. would have to negotiate with the Union; everything was negotiable and that he would be tough; that in negotia- Gerard also testified that Gold said that they were the tions the employees would start from ground zero and first office employees the Union was attempting to repre- everything would have to be renegotiated. There was a sent and he did not want to be first, and that they did possibility that the Union would call a strike and Re- not need a union and the payment of union dues to get spondent could hire strike replacements and, if that oc- the best Respondent had to offer. He ended by saying curred, the strikers might not get their jobs back immedi- that they had replaced Medaska because she had re- ately, but might have to wait until a vacancy occurred. I signed and they needed someone to replace her, that they had paid her through the end of January so she was Edwards testified that Gold, in both speeches, used the expression not hurt by their actions. "ground zero," but did not use the expression "start from scratch." PROGRESSIVE SUPERMARKETS, INC. 529 tion the next day. He then spoke about the Union and Rinaldo, Packard, and Shally, on direct examination in the strike in 1970 that Respondent's employees engaged answers to questions from counsel for Respondent, and in and that most of those striking employees did not get in cross-examination, referred to this speech and the ear- their jobs back immediately after the strike. He said that lier speech together. Therefore, for a discussion of their the employees salaries were comparable to that of other testimony see supra, re the January 4 speech. office employees in the area and their fringe benefits Edwards testified that Gold began the meeting by dis- were as good, or better, than those of the store employ- cussing the mechanics of the Board election to be con- ees; he told the employees of the differences between ducted the following day. He told the employees of their food and nonfood work and wages, and that the Union, excellent fringe benefits and the difference between store in its contract, recognized the difference. Gerard also and nonstore employees and, regardless of what the testified that Gold said that if the Union won the elec- Union was telling them, they should not expect the same tion Respondent would have to sit down and negotiate in rate of pay as the store employees receive because the good faith with the Union, but that any benefits they had office employees do not have to deal with the public. would be frozen. "They would start from ground zero to She testified that Gold said that if the Union won the be renegotiated for. And if, for example, we had any election, Respondent would have to sit down with the dental benefits, they-the amount incurred would have Union and try to come to an agreement, and if they to be paid for on our own, as they would be frozen . . could not reach an agreement, the employees could that benefits would start from ground zero ... if the strike, but there was no guarantee that their jobs would union got in." Gold also said that the wages would be be available when they came back because they could be frozen until the matter was settled. As regards the use of permanently replaced. Gold then spoke about the fringe a timeclock, Gerard testified as follows regarding Gold's benefits the office employees were receiving and he said speech: ". . was going over the fact that the people in that if the Union won" the election "that they could be the stores do have to punch and that we did not have to frozen; that we'd have to start from ground zero as far as and that it could be arranged, and that we shouldn't vote negotiations go." He also said, "at this point you're not for the union because-so that the office would remainhing in the time clock but you could be in the on friendly and personal manner. He felt that the Union future." She also testified that Gold said that he knew coming in would change ... I recall him saying that we that the employees were due for raises, but that they did not have a time clock now, but that could be ar- would be frozen until after the election. Gold ended the ranged-that we could have one should the union pre- speech by saying that all the employees knew that Me- daska was getting married and he felt that Respondent Q. Isn't it true that when he talked about a time gave her a fair shake by asking her to leave at that time clock, he talked about it coming in, or that it could a nd t h a t her replacement would be in on Monday. come in, in connection with negotiations with the F o r the discussion of what Gold testified he said, and Union. did not say, in this speech, see the discussion, supra, re A. No. the January 4 speech. Q. He did not. It was totally apart from negotia- tions with the Union. Credibility Determination A . Yes. I- TT n determining what was said by Cimini and Gold in Q. But if the Union won the election. these three speeches, it has been necessary to carefully A. Yes. scrutinize the testimony of all the witnesses to, and par- In answer to a question from me as to what Gold said ticipants in, these speeches. After doing so, I have deter- regarding the circumstances under which a timeclock min ed t ha t the m o st cr ed ib le witnesses in this regard would be installed, she testified: w e r e Piper an d Gerard; their testimony was the most direct, they were the least evasive on cross-examination A. Well we, right then, did not have to punch a and had the least amount of contradictory testimony. I time clock. And that we should consider the people would therefore find that in his speech, Cimini did say, that work in the stores do, and he said that that inter alia, that Respondent would do whatever it had to could be arranged for us. do in order to keep the Union out. JUDGE BIBLOWITZ: Did he say under what cir- As regards Gold's first speech, I would find that he cumstances? said, inter alia, that if the Union won the election, he A. No. He just said that that could be arranged. would have to negotiate with the Union; everything was negotiable and that he would be tough; that in negotia- Gerard also testified that Gold said that they were the tions the employees would start from ground zero and first office employees the Union was attempting to repre- everything would have to be renegotiated. There was a sent and he did not want to be first, and that they did possibility that the Union would call a strike and Re- not need a union and the payment of union dues to get spondent could hire strike replacements and, if that oc- the best Respondent had to offer. He ended by saying curred, the strikers might not get their jobs back immedi- that they had replaced Medaska because she had re- ately, but might have to wait until a vacancy occurred. I signed and they needed someone to replace her, that they had paid her through the end of January so she was Edwards testified that Gold, in both speeches, used the expression not hurt by their actions. "ground zero," but did not use the expression "start from scratch." 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would also find that Gold said that anyone who had in- her to see Gold in the office across the hall. Again, the curred bills using their dental plan would have to pay two were alone and Gold said that the reason he called these bills on their own because these benefits would be her back was that he had forgotten to mention the day frozen. before that nobody should worry about losing their jobs As regards Gold's second speech, I would find that because of the union matter. Plant then asked Gold to Gold said, inter alia, that if the Union won the election, explain what he meant by her benefits being frozen, Respondent would have to negotiate in good faith with which, she said, meant to her that she was losing them. the the Union, but that any benefits they had would be Gold's answer was that yes, she could say that she frozen, that they would start from ground zero to be re- would be losing them; they would have to renegotiate negotiated for; that if the employees incurred any ex- for those benefits-some you may get back and some penses for dental benefits they also would be frozen and yo you may not. would have to pay for it themselves. I would also find Folowng Gos ft s P that Gold said, inter alia, that the employees' wages Following Golds first speech, Piper was called into a would be frozen until the matter was settled, that the private meetrin w th Go. P testiab ed that Gold employees in the stores punch a timeclock and there was asked her if she had thought about what was takin a possibility that if the Union won the election they place and she had made up her mnd, she answered could have one installed, and that he also spoke about that she had been thinking about it, but not anything def- possible strike replacements as he had in his earlier inte- Gold then asked her if she would be afraid to dis- speech. cuss any problems she had with Cimini and she said that she would not. The following day, prior to the election, VIII. INDIVIDUAL MEETINGS WITH EMPLOYEES Piper was again called into a private meeting with Gold Gold conducted a number of individual meetings with in the new office space across the hall. Gold asked her if employees; with Evers on January 4, and with a number she made up her mind as to how she was going to vote; of other employees on January 9 and 10. he told her that he did not want her to tell him, he just Evers testified that after Gold's first speech he asked wanted to know if she had decided. Piper told Gold that her to have a cup of coffee with him in the back room. she had not decided; that she would weigh both sides The two of them went into the room and Gold said, and do what was right for herself. She also told Gold "Tell me now, what's going on? What's happened? Why that she and a lot of the other girls were afraid of losing did you go to the union?" Evers told Gold that she did their jobs whether or not the Union came in, and Gold not start it, that it was a group effort of the employees told her that everyone's job was secure, that they had who were dissatisfied with their working conditions. nothing to worry about. Gold then said that after the Gold asked why they did not go to Cimini, and Evers election there might be some unpleasantness in the office said that the employees will not go to Cimini because because one party would be unhappy that it lost the elec- they had tried in the past and gotten nowhere. Gold tion, but that would pass. Gold also told Piper that the asked her what the problem was, and she said that they election would be close, but he felt Respondent would were not concerned with their benefits, but they were win. dissatisfied with their salaries, the demands that they Shortly after Gold's second speech, Cimini asked work overtime, and the days they had to stay in the Gerard to go into a private meeting with Gold in the office during their lunch hour to answer the telephone. new office across the hall. He spoke about the employ- Gold mentioned that Evers had worked for Respondent ees' benefits and asked if she had been harassed or for a long time and asked: "Why can't you help me with pushed into making a decision about the Union and she the girls?" (Although he did not explain what he meant.) said she had not. Gold then informed her that their bene- Gold then said that it did not seem like a big problem to fits would start from ground zero and would have to be him, to go to the Union, that they could easily be taken negotiated for he also informed her that if the Union care of and "maybe we can have a meeting once a t month and discuss the problems of the office." lost the election he would try to hold meetings once a month and discuss the problems of the office." Plant testified that about a half hour after Gold's m o th to go over the problems the employees were second speech Cimini asked her to see Gold in the new having and see f he could work something ut. The next office across the hall, which she did. At this meeting, at- morng Gerard was again called into a private meeting tended only by her and Gold, he told her how good Re- with Gold in the new office across the hall. He reminded spondent's benefits were and that she should consider her that she was still employed on a trial period and he Respondent when she voted the following day; that she hoped that she would still be there when the trial period should not be fooled into believing that if the Union won was over; he discussed the employees' benefits, said that the election they would start from where they were and the employees did not need the Union, and that he go one step better; they would have to start from hoped that she would consider Respondent when she scratch, ground zero and renegotiate each one of the voted, so that the office would remain in a friendly and benefits they had. Gold then asked her why she thought personal manner. the Union had gotten involved in Respondent's office Gold testified that after his second speech he met indi- and Plant answered that the employees were unhappy vidually with most of the employees; he told them that because the increased amount of work had required the he thought Respondent had been treating them fairly and employees to work overtime. Plant testified that on the he hoped they would give Respondent consideration in following day, prior to the election, Cimini again asked the matter. He testified that he never asked the employ- 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would also find that Gold said that anyone who had in- her to see Gold in the office across the hall. Again, the curred bills using their dental plan would have to pay two were alone and Gold said that the reason he called these bills on their own because these benefits would be her back was that he had forgotten to mention the day frozen. before that nobody should worry about losing their jobs As regards Gold's second speech, I would find that because of the union matter. Plant then asked Gold to Gold said, inter alia, that if the Union won the election, explain what he meant by her benefits being frozen, Respondent would have to negotiate in good faith with which, she said, meant to her that she was losing them. the the Union, but that any benefits they had would be Gold's answer was that yes, she could say that she frozen, that they would start from ground zero to be re- would be losing them; they would have to renegotiate negotiated for; that if the employees incurred any ex- for those benefits-some you may get back and some penses for dental benefits they also would be frozen and y ma . v ,. . . - .. . * . , ,. , „ you may not. would have to pay for it themselves. I would also find Fli ,l, r s iper w cl i that Gold said, inter alia, that the employees' wages pFollowing Gold s first speech, Piper was called into a would be frozen until the matter was settled, that the pas v a t e d m e e t r 8 i w s t h Gold.uPper testified that Gold employees in the stores punch a timeclock and there was p a s k e d h e r i f sh e h a d t h o u gh t a b o u t w h a t w a snswere a possibility that if the Union won the election they p'B^ a n d " sh e h a d m a d e up her m m d' s h e answered could have one installed, and that he also spoke about t h a t s h e had been thinking about it, but not anything def- possible strike replacements as he had in his earlier init e . Gold then asked her if she would be afraid to dis- speech. c u ss any problems she had with Cimini and she said that she would not. The following day, prior to the election, VIII. INDIVIDUAL MEETINGS WITH EMPLOYEES Piper was again called into a private meeting with Gold Gold conducted a number of individual meetings with in t h e n e w o ffic e space a c r o ss t h e h a ll. Gold a s k e d h e r if employees; with Evers on January 4, and with a number sh e made up her m in d a s to how she was going to vote; of other employees on January 9 and 10. he told her that he did not want her to tell him, he just Evers testified that after Gold's first speech he asked wanted to know if she had decided. Piper told Gold that her to have a cup of coffee with him in the back room. she had not decided; that she would weigh both sides The two of them went into the room and Gold said, and do what was right for herself. She also told Gold "Tell me now, what's going on? What's happened? Why that she and a lot of the other girls were afraid of losing did you go to the union?" Evers told Gold that she did their jobs whether or not the Union came in, and Gold not start it, that it was a group effort of the employees told her that everyone's job was secure, that they had who were dissatisfied with their working conditions. nothing to worry about. Gold then said that after the Gold asked why they did not go to Cimini, and Evers election there might be some unpleasantness in the office said that the employees will not go to Cimini because because one party would be unhappy that it lost the elec- they had tried in the past and gotten nowhere. Gold tion, but that would pass. Gold also told Piper that the asked her what the problem was, and she said that they election would be close, but he felt Respondent would were not concerned with their benefits, but they were win. dissatisfied with their salaries, the demands that they Shortly after Gold's second speech, Cimini asked work overtime, and the days they had to stay in the Gerard to go into a private meeting with Gold in the office during their lunch hour to answer the telephone. new office across the hall. He spoke about the employ- Gold mentioned that Evers had worked for Respondent ees' benefits and asked if she had been harassed or for a long time and asked: "Why can't you help me with pushed into making a decision about the Union and she the girls?" (Although he did not explain what he meant.) said she had not. Gold then informed her that their bene- Gold then said that it did not seem like a big problem to ft w s f g z a him, to go to the Union, that they could easily be taken n f h as infor h t if t Union care of and "maybe we can have a meeting once a l o t t e o n h woul t t h m i o n month and discuss the problems of the office."m l o s t t h e el ec t g on h e w o u ld ems t o h o l d m e epl s once a Plant testified that about a half hour after Gold's h m o nt hg oan over the problems the employees were second speech Cimini asked her to see Gold in the new '"S a n d s e e l f he could work something out. The next office across the hall, which she did. At this meeting, at- iornmg Gerard was again called into a private meeting tended only by her and Gold, he told her how good Re- wi t h Gold in the new office across the hall. He reminded spondent's benefits were and that she should consider he r that she was still employed on a trial period and he Respondent when she voted the following day; that she hoped that she would still be there when the trial period should not be fooled into believing that if the Union won w a s over; he discussed the employees' benefits, said that the election they would start from where they were and the employees did not need the Union, and that he go one step better; they would have to start from hoped that she would consider Respondent when she scratch, ground zero and renegotiate each one of the voted, so that the office would remain in a friendly and benefits they had. Gold then asked her why she thought personal manner. the Union had gotten involved in Respondent's office Gold testified that after his second speech he met indi- and Plant answered that the employees were unhappy vidually with most of the employees; he told them that because the increased amount of work had required the he thought Respondent had been treating them fairly and employees to work overtime. Plant testified that on the he hoped they would give Respondent consideration in following day, prior to the election, Cimini again asked the matter. He testified that he never asked the employ- 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would also find that Gold said that anyone who had in- her to see Gold in the office across the hall. Again, the curred bills using their dental plan would have to pay two were alone and Gold said that the reason he called these bills on their own because these benefits would be her back was that he had forgotten to mention the day frozen. before that nobody should worry about losing their jobs As regards Gold's second speech, I would find that because of the union matter. Plant then asked Gold to Gold said, inter alia, that if the Union won the election, explain what he meant by her benefits being frozen, Respondent would have to negotiate in good faith with which, she said, meant to her that she was losing them. the the Union, but that any benefits they had would be Gold's answer was that yes, she could say that she frozen, that they would start from ground zero to be re- would be losing them; they would have to renegotiate negotiated for; that if the employees incurred any ex- for those benefits-some you may get back and some penses for dental benefits they also would be frozen and y ma . v ,. . . - .. . * . , ,. , „ you may not. would have to pay for it themselves. I would also find Fli ,l, r s iper w cl i that Gold said, inter alia, that the employees' wages pFollowing Gold s first speech, Piper was called into a would be frozen until the matter was settled, that the pas v a t e d m e e t r 8 i w s t h Goldu Ptper testified that Gold employees in the stores punch a timeclock and there was p a s k e d h e r i f sh e h a d t h o u gh t hbout what was taking a possibility that if the Union won the election they pla^ and if she had made up her mind, she answered could have one installed, and that he also spoke about that she had been thinking about it, but not anything def- possible strike replacements as he had in his earlier inite. Gold then asked her if she would be afraid to dis- speech. c u ss any problems she had with Cimini and she said that she would not. The following day, prior to the election, VIII. INDIVIDUAL MEETINGS WITH EMPLOYEES Piper was again called into a private meeting with Gold Gold conducted a number of individual meetings with in t h e n e w o ffic e space across the hall. Gold asked her if employees; with Evers on January 4, and with a number sh e made up her mind as to how she was going to vote; of other employees on January 9 and 10. he told her that he did not want her to tell him, he just Evers testified that after Gold's first speech he asked wanted to know if she had decided. Piper told Gold that her to have a cup of coffee with him in the back room. she had not decided; that she would weigh both sides The two of them went into the room and Gold said, a n d do what was right for herself. She also told Gold "Tell me now, what's going on? What's happened? Why that she and a lot of the other girls were afraid of losing did you go to the union?" Evers told Gold that she did their jobs whether or not the Union came in, and Gold not start it, that it was a group effort of the employees told her that everyone's job was secure, that they had who were dissatisfied with their working conditions. nothing to worry about. Gold then said that after the Gold asked why they did not go to Cimini, and Evers election there might be some unpleasantness in the office said that the employees will not go to Cimini because because one party would be unhappy that it lost the elec- they had tried in the past and gotten nowhere. Gold tion, but that would pass. Gold also told Piper that the asked her what the problem was, and she said that they election would be close, but he felt Respondent would were not concerned with their benefits, but they were win. dissatisfied with their salaries, the demands that they Shortly after Gold's second speech, Cimini asked work overtime, and the days they had to stay in the Gerard to go into a private meeting with Gold in the office during their lunch hour to answer the telephone. new office across the hall. He spoke about the employ- Gold mentioned that Evers had worked for Respondent ees' benefits and asked if she had been harassed or for a long time and asked: "Why can't you help me with pushed into making a decision about the Union and she the girls?" (Although he did not explain what he meant.) said she had not. Gold then informed her that their bene- Gold then said that it did not seem like a big problem to ft w s f g z a him, to go to the Union, that they could easily be taken n f h as infor h t if t Union care of and "maybe we can have a meeting once a l o t t e o n h woul t t h m i o n month and discuss the problems of the office."m l o s t t h e el ec t g on h e w o u ld ems t o h o l d m e epl s once a Plant testified that about a half hour after Gold's h m o nt hg oan over the problems the employees were second speech Cimini asked her to see Gold in the new '"S and see if he could work something out. The next office across the hall, which she did. At this meeting, at- nioming Gerard was again called into a private meeting tended only by her and Gold, he told her how good Re- wi t h G o ld in the new office across the hall. He reminded spondent's benefits were and that she should consider her that she was still employed on a trial period and he Respondent when she voted the following day; that she hoped that she would still be there when the trial period should not be fooled into believing that if the Union won w a s over; he discussed the employees' benefits, said that the election they would start from where they were and the employees did not need the Union, and that he go one step better; they would have to start from hoped that she would consider Respondent when she scratch, ground zero and renegotiate each one of the voted, so that the office would remain in a friendly and benefits they had. Gold then asked her why she thought personal manner. the Union had gotten involved in Respondent's office Gold testified that after his second speech he met indi- and Plant answered that the employees were unhappy vidually with most of the employees; he told them that because the increased amount of work had required the he thought Respondent had been treating them fairly and employees to work overtime. Plant testified that on the he hoped they would give Respondent consideration in following day, prior to the election, Cimini again asked the matter. He testified that he never asked the employ- 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would also find that Gold said that anyone who had in- her to see Gold in the office across the hall. Again, the curred bills using their dental plan would have to pay two were alone and Gold said that the reason he called these bills on their own because these benefits would be her back was that he had forgotten to mention the day frozen. before that nobody should worry about losing their jobs As regards Gold's second speech, I would find that because of the union matter. Plant then asked Gold to Gold said, inter alia, that if the Union won the election, explain what he meant by her benefits being frozen, Respondent would have to negotiate in good faith with which, she said, meant to her that she was losing them. the the Union, but that any benefits they had would be Gold's answer was that yes, she could say that she frozen, that they would start from ground zero to be re- would be losing them; they would have to renegotiate negotiated for; that if the employees incurred any ex- for those benefits-some you may get back and some penses for dental benefits they also would be frozen and y ma . v ,. . . - .. . * . , ,. , „ you may not. would have to pay for it themselves. I would also find Fli ,l, r s iper w cl i that Gold said, inter alia, that the employees' wages pFollowing Gold s first speech, Piper was called into a would be frozen until the matter was settled, that the pas v a t e d m e e t r 8 i w s t h Goldu Ptper testified that Gold employees in the stores punch a timeclock and there was p a s k e d h e r i f sh e h a d made up a b o u t w h a t w a s taking a possibility that if the Union won the election they pla^ a n d " sh e h a d made up her mind, she answered could have one installed, and that he also spoke about that she had been thinking about it, but not anything def- possible strike replacements as he had in his earlier inite. Gold then asked her if she would be afraid to dis- speech. cuss any problems she had with Cimini and she said that she would not. The following day, prior to the election, VIII. INDIVIDUAL MEETINGS WITH EMPLOYEES Piper was again called into a private meeting with Gold Gold conducted a number of individual meetings with in t h e n e w o ffic e space across the hall. Gold asked her if employees; with Evers on January 4, and with a number sh e made up her mind as to how she was going to vote; of other employees on January 9 and 10. he told her that he did not want her to tell him, he just Evers testified that after Gold's first speech he asked wanted to know if she had decided. Piper told Gold that her to have a cup of coffee with him in the back room. she had not decided; that she would weigh both sides The two of them went into the room and Gold said, and do what was right for herself. She also told Gold "Tell me now, what's going on? What's happened? Why that she and a lot of the other girls were afraid of losing did you go to the union?" Evers told Gold that she did their jobs whether or not the Union came in, and Gold not start it, that it was a group effort of the employees told her that everyone's job was secure, that they had who were dissatisfied with their working conditions. nothing to worry about. Gold then said that after the Gold asked why they did not go to Cimini, and Evers election there might be some unpleasantness in the office said that the employees will not go to Cimini because because one party would be unhappy that it lost the elec- they had tried in the past and gotten nowhere. Gold tion, but that would pass. Gold also told Piper that the asked her what the problem was, and she said that they election would be close, but he felt Respondent would were not concerned with their benefits, but they were win. dissatisfied with their salaries, the demands that they Shortly after Gold's second speech, Cimini asked work overtime, and the days they had to stay in the Gerard to go into a private meeting with Gold in the office during their lunch hour to answer the telephone. new office across the hall. He spoke about the employ- Gold mentioned that Evers had worked for Respondent ees' benefits and asked if she had been harassed or for a long time and asked: "Why can't you help me with pushed into making a decision about the Union and she the girls?" (Although he did not explain what he meant.) said she had not. Gold then informed her that their bene- Gold then said that it did not seem like a big problem to ft w s f g z a him, to go to the Union, that they could easily be taken n f h as infor h t if t Union care of and "maybe we can have a meeting once a l o t t e o n h woul t t h m i o n month and discuss the problems of the office."m l o s t t h e el ec t g o n h e w o u ldp t o h o l d m ee '"8S once a Plant testified that about a half hour after Gold's h m o nt hg oan over the problems the employees were second speech Cimini asked her to see Gold in the new '"S and see if he could work something out. The next office across the hall, which she did. At this meeting, at- nioming Gerard was again called into a private meeting tended only by her and Gold, he told her how good Re- wi t h G o ld in the new office across the hall. He reminded spondent's benefits were and that she should consider her that she was still employed on a trial period and he Respondent when she voted the following day; that she hoped that she would still be there when the trial period should not be fooled into believing that if the Union won w a s over; he discussed the employees' benefits, said that the election they would start from where they were and the employees did not need the Union, and that he go one step better; they would have to start from hoped that she would consider Respondent when she scratch, ground zero and renegotiate each one of the voted, so that the office would remain in a friendly and benefits they had. Gold then asked her why she thought personal manner. the Union had gotten involved in Respondent's office Gold testified that after his second speech he met indi- and Plant answered that the employees were unhappy vidually with most of the employees; he told them that because the increased amount of work had required the he thought Respondent had been treating them fairly and employees to work overtime. Plant testified that on the he hoped they would give Respondent consideration in following day, prior to the election, Cimini again asked the matter. He testified that he never asked the employ- PROGRESSIVE SUPERMARKETS, INC. 531 ees what their problems were, nor did he ask any em- phone day. The General Counsel, although conceding ployee how she was going to vote in the election. that the acquisition of the new office space preceded the As regards the above conversations, where there are advent of the attempted organization of Respondent's conflicts I would credit the employees' testimony over employees by the Union, alleges that Respondent did not that of Gold. As will be discussed further, infra, I do not definitely determine that this space was to be used as a find Gold to be a credible witness. His testimony is con- lounge for the employees until after the Union's appear- tradictary, in places, and he was extremely evasive ance, and was therefore a granting of a benefit to the during examination by the General Counsel. The em- employees to induce them to withdraw their support ployees, on the other hand, generally, testified in a direct from the Union. It is therefore necessary to examine the and straightforward manner on both direct and on cross- testimony of the employees as to what they were told re- examination. Although I may not have fully credited garding the lounge. their testimony in other situations, supra, I would credit Evers testified that Cimini informed her about Re- their testimony herein over Gold's denials. spondent's acquisition of this office space prior to the pe- tition having been filed in this matter, but that he had IX. SPLIT LUNCHES AND NEW LOUNGE not decided what would be done with the space-an em- Until January, Respondent had a system by which all ployee lounge was mentioned to her as one of the possi- employees, except one, would have their lunch hour ble uses of the space about a month prior to the election. from 12 to 1 p.m.; the employee who did not get her Branca testified that although she knew that Respondent lunch hour would spend that hour answering all tele- had acquired this space prior to the advent of the Union phone calls to Respondent's office. The employees alter- at Respondent's office, it was not until after the election nated on this "telephone day" so that each employee that Respondent decided to use this space as a lounge for performed this task about once every 2 weeks, and they its employees. In December, however, Cimini told her were not paid for this time spent in the office; not sur- that there would be a lounge for the employees and that prisingly, the employees were not happy with this proce- it would be taken care of when the auditors left Re- dure. In early 1979, an employee named Cindy Pisani spondent's premises at the end of January. Plant testified asked Cimini if he could institute a split lunch program that she first learned that Respondent had acquired the so that half the employees would take their lunch be- new office space in early fall of 1979, but that the alter- tween 12 and 1 p.m. and the other half between 1 and 2 native that Cimini listed for the use of this space was to p.m., thereby obviating the necessity of having one em- make it into a file room, installing the computer there, or ployee remaining, on her own time, to answer the phone. transferring accounts payable or payroll to the new Cimini informed her that he had previously tried split room; Plant does not recall Cimini saying anything about lunches, but that it did not work out well because some a lounge being there until January. of the employees ate lunch at their desks and spoke Piper testified that she was informed of Respondent's among themselves and the noise made it difficult for the acquisition of the space prior to November, but cannot other employees to work at their desk at the same time. recall any discussions by Gold or Cimini regarding the Shortly thereafter, Cimini discussed with the landlord uses of this room. Rinaldo testified at some length on this of Respondent's office location the possibility of Re- subject, but her testimony came down to this: spondent obtaining additional space in the building, but nothing was available at the time. About September Q. Prior to November 16, had Mr. Cimini said 1979, a room across the hall from Respondent's office there would be a lounge somewhere with tables and became available and Respondent entered into an oral chairs? agreement with the landlord to rent this office.'1 Cimini A. Yes. testified that, about that time, he made an announcement Q. And he wasn't sure whether it was going to to all the office employees that Respondent had obtained be across the hall or in the old room or where? this new office space and that either it would be used as A. Right. a lounge for the employees, or desks and machinery would be put in the new office space and an employee Packard testified that about September 1979 she was lounge would be set up in the original office. The em- nformed that Respondent had acquired the additional ployees had ts in office office space and thaeitr Christmas party in this new offan employee lounge would (albeit without any new furniture) and the election was be set up there or the machine-break room would be al- conducted in this new office. tered, expanded, and converted to a lounge for the em- In late January, after the election, the employees' ployees. Shally testified that about a week prior to No- vember 14 Cimini informed her that as soon as the audi- lounge was set up with the coffee machine from the old vember 14 C lmin informed her that assoonas the audi- tors (who were there at the time) left Respondent's machine-break room, couches, table, and chairs (together t o r s (w h o were there at the time) left Rpondent s with some office machines in the rear of the room sepa- Respondent would fix up the new office as a rated by a divider) in the new office space across the lounge for the employees hall, and the employees began using it at that time; at the As stated above, the parties stipulated that Respondent same time, Respondent instituted the split lunch pro- acquired the additional ofice space prior to the Unions gram, thereby obviating the need for the unpopular tele- attempt to organize Respondent's employees. On the gateeyovaig_____thenedfortheubasis of the above testimony, I would find that also prior '° The parties stipulated that this space was acquired by Respondent to the Union's appearance Respondent informed its em- long before the Union's appearance in November. ployees that it would set up a lounge for them (without PROGRESSIVE SUPERMARKETS, INC. 531 ees what their problems were, nor did he ask any em- phone day. The General Counsel, although conceding ployee how she was going to vote in the election. that the acquisition of the new office space preceded the As regards the above conversations, where there are advent of the attempted organization of Respondent's conflicts I would credit the employees' testimony over employees by the Union, alleges that Respondent did not that of Gold. As will be discussed further, infra, I do not definitely determine that this space was to be used as a find Gold to be a credible witness. His testimony is con- lounge for the employees until after the Union's appear- tradictary, in places, and he was extremely evasive ance, and was therefore a granting of a benefit to the during examination by the General Counsel. The em- employees to induce them to withdraw their support ployees, on the other hand, generally, testified in a direct from the Union. It is therefore necessary to examine the and straightforward manner on both direct and on cross- testimony of the employees as to what they were told re- examination. Although I may not have fully credited garding the lounge. their testimony in other situations, supra, I would credit Evers testified that Cimini informed her about Re- their testimony herein over Gold's denials,.spondent's acquisition of this office space prior to the pe- tition having been filed in this matter, but that he had IX. SPLIT LUNCHES AND NEW LOUNGE not decided what would be done with the space-an em- Until January, Respondent had a system by which all ployee lounge was mentioned to her as one of the possi- employees, except one, would have their lunch hour ble uses of the space about a month prior to the election. from 12 to 1 p.m.; the employee who did not get her Branca testified that although she knew that Respondent lunch hour would spend that hour answering all tele- had acquired this space prior to the advent of the Union phone calls to Respondent's office. The employees alter- at Respondent's office, it was not until after the election nated on this "telephone day" so that each employee that Respondent decided to use this space as a lounge for performed this task about once every 2 weeks, and they its employees. In December, however, Cimini told her were not paid for this time spent in the office; not sur- that there would be a lounge for the employees and that prisingly, the employees were not happy with this proce- it would be taken care of when the auditors left Re- dure. In early 1979, an employee named Cindy Pisani spondent's premises at the end of January. Plant testified asked Cimini if he could institute a split lunch program that she first learned that Respondent had acquired the so that half the employees would take their lunch be- n"ew office space in early fall of 1979, but that the alter- tween 12 and 1 p.m. and the other half between 1 and 2 native that Cimini listed for the use of this space was to p.m., thereby obviating the necessity of having one em- make it into a file room, installing the computer there, or ployee remaining, on her own time, to answer the phone. transferring accounts payable or payroll to the new Cimini informed her that he had previously tried split room; Plant does not recall Cimini saying anything about lunches, but that it did not work out well because some a lounge being there until January. of the employees ate lunch at their desks and spoke Piper testified that she was informed of Respondent's among themselves and the noise made it difficult for the acquisition of the space prior to November, but cannot other employees to work at their desk at the same time. recall any discussions by Gold or Cimini regarding the Shortly thereafter, Cimini discussed with the landlord uses of this room. Rinaldo testified at some length on this of Respondent's office location the possibility of Re- subject, but her testimony came down to this: spondent obtaining additional space in the building, but nothing was available at the time. About September Q. Prio r t o November 16, had Mr. Cimini said 1979, a room across the hall from Respondent's office t h e r e w o u l d b e a lo u n ge somewhere with tables and became available and Respondent entered into an oral chairs? agreement with the landlord to rent this office. 10 Cimini A. Ye s . testified that, about that time, he made an announcement Q. A n d h e w a sn' t su r e whether it was going to to all the office employees that Respondent had obtained b e across the hall or in the old room or where? this new office space and that either it would be used as A. Right. a lounge for the employees, or desks and machinery P testiied ta ao Speb 1 h would be put in the new office space and an employee Packard testified that about September 1979 she was lounge would be set up in the original office. The em- on f o r m ed t h at Respondent had acquired he additional ployees had their Christmas party in this new office off i ce s petu an d t ha t either an employee lounge would (albeit without any new furniture) and the election was be set up t h er < o r t h e machine-break room would be al- conducted in this new ofufice.w t er ed , expanded, and converted to a lounge for the em- In late January, after the election, the employees' ployees. Shally testified that about a week prior to No- In lte anury, fte th eletio, te emloyes' vember 14 Cimini informed her that as soon as the audi- lounge was set up with the coffee machine from the old to r (wh were th e r h e ti l t Respone nt's machine-break room, couches, table, and chairs (together pr s Resp o were fix up the new onde s with some office machines in the rear of the room sepa- ploue Respondent would fix up the new office as a rated by a divider) in the new office space across the A lo stee for the employees. hall, and the employees began using it at that time; at the A s sta te d ab o v e, t h e dioaofc sP pacted that Respondent same time, Respondent instituted the split lunch pro- acqi 1 ^ t he additional office space prior to the Union s gram, thereby obviating the need for the unpopular tele- attempt t o organize Respondent's employees. On the gram, thereby obviating the need for the unpopular tele- basis of the above testimony, I would find that also prior "' The parties stipulated that this space was acquired by Respondent to the Union's appearance Respondent informed its em- long before the Union's appearance in November. ployees that it would Set Up a lounge for them (without PROGRESSIVE SUPERMARKETS, INC. 531 ees what their problems were, nor did he ask any em- phone day. The General Counsel, although conceding ployee how she was going to vote in the election. that the acquisition of the new office space preceded the As regards the above conversations, where there are advent of the attempted organization of Respondent's conflicts I would credit the employees' testimony over employees by the Union, alleges that Respondent did not that of Gold. As will be discussed further, infra, I do not definitely determine that this space was to be used as a find Gold to be a credible witness. His testimony is con- lounge for the employees until after the Union's appear- tradictary, in places, and he was extremely evasive ance, and was therefore a granting of a benefit to the during examination by the General Counsel. The em- employees to induce them to withdraw their support ployees, on the other hand, generally, testified in a direct from the Union. It is therefore necessary to examine the and straightforward manner on both direct and on cross- testimony of the employees as to what they were told re- examination. Although I may not have fully credited garding the lounge. their testimony in other situations, supra, I would credit Evers testified that Cimini informed her about Re- their testimony herein over Gold's denials,.spondent's acquisition of this office space prior to the pe- tition having been filed in this matter, but that he had IX. SPLIT LUNCHES AND NEW LOUNGE not decided what would be done with the space-an em- Until January, Respondent had a system by which all ployee lounge was mentioned to her as one of the possi- employees, except one, would have their lunch hour ble uses of the space about a month prior to the election. from 12 to 1 p.m.; the employee who did not get her Branca testified that although she knew that Respondent lunch hour would spend that hour answering all tele- had acquired this space prior to the advent of the Union phone calls to Respondent's office. The employees alter- at Respondent's office, it was not until after the election nated on this "telephone day" so that each employee that Respondent decided to use this space as a lounge for performed this task about once every 2 weeks, and they its employees. In December, however, Cimini told her were not paid for this time spent in the office; not sur- that there would be a lounge for the employees and that prisingly, the employees were not happy with this proce- it would be taken care of when the auditors left Re- dure. In early 1979, an employee named Cindy Pisani spondent's premises at the end of January. Plant testified asked Cimini if he could institute a split lunch program that she first learned that Respondent had acquired the so that half the employees would take their lunch be- n"ew office space in early fall of 1979, but that the alter- tween 12 and 1 p.m. and the other half between 1 and 2 native that Cimini listed for the use of this space was to p.m., thereby obviating the necessity of having one em- make it into a file room, installing the computer there, or ployee remaining, on her own time, to answer the phone. transferring accounts payable or payroll to the new Cimini informed her that he had previously tried split room; Plant does not recall Cimini saying anything about lunches, but that it did not work out well because some a lounge being there until January. of the employees ate lunch at their desks and spoke Piper testified that she was informed of Respondent's among themselves and the noise made it difficult for the acquisition of the space prior to November, but cannot other employees to work at their desk at the same time. recall any discussions by Gold or Cimini regarding the Shortly thereafter, Cimini discussed with the landlord uses of this room. Rinaldo testified at some length on this of Respondent's office location the possibility of Re- subject, but her testimony came down to this: spondent obtaining additional space in the building, but nothing was available at the time. About September Q. Prio r t o November 16, had Mr. Cimini said 1979, a room across the hall from Respondent's office t h e r e w o u l d b e a lo u n ge somewhere with tables and became available and Respondent entered into an oral chairs? agreement with the landlord to rent this office. 10 Cimini A. Ye s . testified that, about that time, he made an announcement Q. A n d h e wasn't sure whether it was going to to all the office employees that Respondent had obtained b e across the hall or in the old room or where? this new office space and that either it would be used as A. Right. a lounge for the employees, or desks and machinery P testiied ta ao Speb 1 h would be put in the new office space and an employee Packard testified that about September 1979 she was lounge would be set up in the original office. The em- on f o r m ed t h at Respondent had acquired he additional ployees had their Christmas party in this new office off i ce s petu an d t ha t either an employee lounge would (albeit without any new furniture) and the election was be set up t h er < o r t h e machine-break room would be al- conducted in this new ofufice.w t er ed , expanded, and converted to a lounge for the em- In late January, after the election, the employees' ployees. Shally testified that about a week prior to No- In lte anury, fte th eletio, te emloyes' vember 14 Cimini informed her that as soon as the audi- lounge was set up with the coffee machine from the old to r (wh were th e r h e ti l t Respone nt's machine-break room, couches, table, and chairs (together pr s Resp o were fix up the new onde s with some office machines in the rear of the room sepa- ploue Respondent would fix up the new office as a rated by a divider) in the new office space across the A lo stae aor the employees. hall, and the employees began using it at that time; at the A s sta te d ab o v e, t h e dioaofc sP paced that Respondent same time, Respondent instituted the split lunch pro- acqire t he additional office space prior to the Union s gram, thereby obviating the need for the unpopular tele- attempt t o organize Respondent's employees. On the gram, thereby obviating the need for the unpopular tele- basis of the above testimony, I would find that also prior "' The parties stipulated that this space was acquired by Respondent to the Union's appearance Respondent informed its em- long before the Union's appearance in November. ployees that it would Set Up a lounge for them (without PROGRESSIVE SUPERMARKETS, INC. 531 ees what their problems were, nor did he ask any em- phone day. The General Counsel, although conceding ployee how she was going to vote in the election. that the acquisition of the new office space preceded the As regards the above conversations, where there are advent of the attempted organization of Respondent's conflicts I would credit the employees' testimony over employees by the Union, alleges that Respondent did not that of Gold. As will be discussed further, infra, I do not definitely determine that this space was to be used as a find Gold to be a credible witness. His testimony is con- lounge for the employees until after the Union's appear- tradictary, in places, and he was extremely evasive ance, and was therefore a granting of a benefit to the during examination by the General Counsel. The em- employees to induce them to withdraw their support ployees, on the other hand, generally, testified in a direct from the Union. It is therefore necessary to examine the and straightforward manner on both direct and on cross- testimony of the employees as to what they were told re- examination. Although I may not have fully credited garding the lounge. their testimony in other situations, supra, I would credit Evers testified that Cimini informed her about Re- their testimony herein over Gold's denials,.spondent's acquisition of this office space prior to the pe- tition having been filed in this matter, but that he had IX. SPLIT LUNCHES AND NEW LOUNGE not decided what would be done with the space-an em- Until January, Respondent had a system by which all ployee lounge was mentioned to her as one of the possi- employees, except one, would have their lunch hour ble uses of the space about a month prior to the election. from 12 to 1 p.m.; the employee who did not get her Branca testified that although she knew that Respondent lunch hour would spend that hour answering all tele- had acquired this space prior to the advent of the Union phone calls to Respondent's office. The employees alter- at Respondent's office, it was not until after the election nated on this "telephone day" so that each employee that Respondent decided to use this space as a lounge for performed this task about once every 2 weeks, and they its employees. In December, however, Cimini told her were not paid for this time spent in the office; not sur- that there would be a lounge for the employees and that prisingly, the employees were not happy with this proce- it would be taken care of when the auditors left Re- dure. In early 1979, an employee named Cindy Pisani spondent's premises at the end of January. Plant testified asked Cimini if he could institute a split lunch program that she first learned that Respondent had acquired the so that half the employees would take their lunch be- n"ew office space in early fall of 1979, but that the alter- tween 12 and 1 p.m. and the other half between 1 and 2 native that Cimini listed for the use of this space was to p.m., thereby obviating the necessity of having one em- make it into a file room, installing the computer there, or ployee remaining, on her own time, to answer the phone. transferring accounts payable or payroll to the new Cimini informed her that he had previously tried split room; Plant does not recall Cimini saying anything about lunches, but that it did not work out well because some a lounge being there until January. of the employees ate lunch at their desks and spoke Piper testified that she was informed of Respondent's among themselves and the noise made it difficult for the acquisition of the space prior to November, but cannot other employees to work at their desk at the same time. recall any discussions by Gold or Cimini regarding the Shortly thereafter, Cimini discussed with the landlord uses of this room. Rinaldo testified at some length on this of Respondent's office location the possibility of Re- subject, but her testimony came down to this: spondent obtaining additional space in the building, but nothing was available at the time. About September Q. Prio r t o November 16, had Mr. Cimini said 1979, a room across the hall from Respondent's office t h e r e w o u l d b e a lo u n ge somewhere with tables and became available and Respondent entered into an oral chairs? agreement with the landlord to rent this office. 10 Cimini A. Ye s . testified that, about that time, he made an announcement Q. A n d h e wasn't sure whether it was going to to all the office employees that Respondent had obtained b e across the hall or in the old room or where? this new office space and that either it would be used as A. Right. a lounge for the employees, or desks and machinery P testiied ta ao Speb 1 h would be put in the new office space and an employee Packard testified that about September 1979 she was lounge would be set up in the original office. The em- on f o r m ed t h at Respondent had acquired he additional ployees had their Christmas party in this new office off i ce s petu an d t ha t either an employee lounge would (albeit without any new furniture) and the election was be set up t h er < o r t h e machine-break room would be al- conducted in this new ofufice.w t er ed , expanded, and converted to a lounge for the em- In late January, after the election, the employees' ployees. Shally testified that about a week prior to No- In lte anury, fte th eletio, te emloyes' vember 14 Cimini informed her that as soon as the audi- lounge was set up with the coffee machine from the old to r (wh were th e r h e ti l t Respone nt's machine-break room, couches, table, and chairs (together pr s Resp o were fix up the new onde s with some office machines in the rear of the room sepa- ploue Respondent would fix up the new office as a rated by a divider) in the new office space across the A lo stee for the employees. hall, and the employees began using it at that time; at the A s sta te d ab o v e, t h e dioaofc sP pacted that Respondent same time, Respondent instituted the split lunch pro- acqire t he additional office space prior to the Union s gram, thereby obviating the need for the unpopular tele- attempt t o organize Respondent's employees. On the gram, thereby obviating the need for the unpopular tele- basis of the above testimony, I would find that also prior "' The parties stipulated that this space was acquired by Respondent to the Union's appearance Respondent informed its em- long before the Union's appearance in November. ployees that it would Set Up a lounge for them (without 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifying what furniture would be in the lounge) either the Regional Office of the Labor Board was investigat- in the newly acquired space or in the old machine-break ing the Union's unfair labor practice charge and objec- room, which would be expanded for the purpose. tions in this matter. According to counsel for Respond- ent (and stipulated to by the General Counsel), he met X. THE WAGE INCREASES with the Regional Office representative on two occasions regarding the investigation of this charge and the objec- The record establishes that Respondent has generally tions-the first time at the end of January, when Cimini granted wage increases to its employees in January. The was questioned, and again on February 8 when both election herein was conducted on January 10. In Febru- Cimini and Gold were questioned. As stated by counsel ary, Respondent announced and granted to all its em- for Respondent: ". . . it became readily apparent to me ployees a $20-a-week wage increase retroactive to Janu- that this matter was going to go to a hearing, because ary 14. The General Counsel alleges two violations in there were serious credibility issues. I also know, which this regard: one for withholding its annual increase from is common knowledge, of the backlog with the Adminis- January to February, and the other" for granting an in- trative Law Judges, and its going to take a few months crease in an amount significantly greater than those to get a hearing." granted in the past, all, allegedly, to discourage support On the basis of that, counsel for Respondent instructed of the Union. Respondent to grant the increases and make them retro- Respondent prepared a summary of the wage increases active to January, and on February 18 he wrote to coun- which were granted to its employees since 1975 (G.C. sel for the Union, informing him of the increases and the Exh. 11). Of the 11 employees listed as being employed reason, as stated above. in 1975, 1, who began her employment in April received Respondent explains that the increase was retroactive a $5 increase in that year, 4 received $10 increases, I re- to January because that is when the employees would ceived a $15 increase, and 5 received $20 wage increases. have received the increase, if not for this pending matter, In 1976, three employees received $10 increases, four re- and that everybody was given the same increase because ceived $15 increases, two received $20 increases, and Respondent did not have an opportunity to review the two received $25 increases. All of the above wage in- employees' performance and grant a corresponding merit creases were granted to the employees either in January increase, as they had done in the past. or 3 months after they began their employment with Re- XI. THE MEDASKA TERMINATION spondent. In 1977, the following wage increases were granted, together with the month in which they were Medaska began her employ with Respondent in No- granted: $15 and $20 in April and December; $10 in vember 1978; she was admittedly a good employee. June; $5 and $20 in May and December; $25 in July; $15 About the beginning of December, Medaska informed in April; $10 and $5 in April and July; $10 and $20 in Cimini that she would be leaving Respondent's employ April and July; and $10 and $5 in April and July. The at the end of January when she was to get married and wage increases in 1978 were: $20 in July; $20 in January; move to Florida About mid-December, Medaska told a $20 in July; $15 and $10 in January and July; $15 and nu m b e r o f t h e employees, including Supervisor Branca, that there was a possibility that she would not be getting $10 in January and September; 10, 10, and 10 in Janu- that there was a that she wouldnot be ary April, and July; in January and July; $10 in Januar; married and would be remaining at her job, but that she ary, April,n January and July; $10 in January; was not sure and would not know for sure until she re- and $20 in January. In 1979, the wage increases were turned from vacation, at which time she would inform generally granted in January and July; Shally received Branca one way or the other. While Medaska was on $15 and $20; Evers, $10 and $15; Rosemary Scalfani, $15 her vacation, Cimini informed Branca that he was look- and $20; Rinaldo, $10 and $15; Plant, $10 and $20; Pack- ing for someone to replace Medaska and Branca told him ard, $15 and $20; Piper, $10 and $25; and Medaska, $10 that before she left for her vacation Medaska was unsure and $15 (Piper's and Medaska's increases were granted in of what she would do and there was a possibility that March and July, presumably because they commenced she would be coming back. (Cimini admits that Branca their employment with Respondent in November and told him this and testified that he told Branca to inform December 1978, respectively). Edwards, who began her Medaska to speak to him because he was looking for her employ in May 1979, received $15, presumably 3 months replacement.) Cimini said that as far as he was concerned later. Medaska had told him that she was not coming back, Respondent's position is that the wage increases were and he had to plan for the future and look for another not granted in January because that was when the elec- employee. tion was conducted and their attorney informed them not Medaska returned from her vacation on Wednesday, to grant wage increases at that time because it might be January 2. Although Medaska had made up her mind to considered as a bribe to the employees. By February, however, some of the employees had become "edgy" Id Medaska testified that before she left for her vacation during the about the absence of the wage increase. At this time, Christmas to New Year's week she definitely decided that she would remain in Respondent's employ and informed Branca of this decision. Branca testified, however, that Medaska did not inform her that her mar- " Pursuant to an amendment of the complaint at the hearing. riage plans were off and that she would definitely remain in Respondent's " In fact, Evers testified that in her discussion with Gold on January employ until after she returned from her vacation. Although not crucial 4, she informed him that she was disturbed that she had not gotten a to the issue, I would credit Branca in this regard, as her memory appears raise. superior to that of Medaska. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifying what furniture would be in the lounge) either the Regional Office of the Labor Board was investigat- in the newly acquired space or in the old machine-break ing the Union's unfair labor practice charge and objec- room, which would be expanded for the purpose. tions in this matter. According to counsel for Respond- ent (and stipulated to by the General Counsel), he met X. THE WAGE INCREASES with the Regional Office representative on two occasions The record establishes that Respondent has generally regarding the investigation of this charge and the objec- The record establishes that Respondent has generary. tions-the first time at the end of January, when Cimini granted wage increases to its employees in January. Thewas questioned, and again on February 8 when both election herein was conducted on January 10. In Febru- Cimini and Gold were questioned. As stated by counsel ary, Respondent announced and granted to all its em- for Respondent: ". . . it became readily apparent to me ployees a $20-a-week wage increase retroactive to Janu- that this matter was going to go to a hearing, because ary 14. The General Counsel alleges two violations in there were serious credibility issues. I also know, which this regard: one for withholding its annual increase from is common knowledge, of the backlog with the Adminis- January to February, and the other" for granting an in- trative Law Judges, and its going to take a few months crease in an amount significantly greater than those to get a hearing." granted in the past, all, allegedly, to discourage support On the basis of that, counsel for Respondent instructed of the Union. Respondent to grant the increases and make them retro- Respondent prepared a summary of the wage increases active to January, and on February 18 he wrote to coun- which were granted to its employees since 1975 (G.C. sel for the Union, informing him of the increases and the Exh. 11). Of the 11 employees listed as being employed reason, as stated above. in 1975, 1, who began her employment in April received Respondent explains that the increase was retroactive a $5 increase in that year, 4 received $10 increases, 1 re- to January because that is when the employees would ceived a $15 increase, and 5 received $20 wage increases, have received the increase, if not for this pending matter, In 1976, three employees received $10 increases, four re- a nd t h at everybody was given the same increase because ceived $15 increases, two received $20 increases, and Respondent did not have an opportunity to review the two received $25 increases. All of the above wage in- employees' performance and grant a corresponding merit creases were granted to the employees either in January increase, as they had done in the past. or 3 months after they began their employment with Re- XI. THE MEDASKA TERMINATION spondent. In 1977, the following wage increases were granted, together with the month in which they were Medaska began her employ with Respondent in No- granted: $15 and $20 in April and December; $10 in vember 1978; she was admittedly a good employee. June; $5 and $20 in May and December; $25 in July; $15 A b o u t the beginning of December, Medaska informed in April; $10 and $5 in April and July; $10 and $20 in Cim in i t h at sh e w o u ld b e leaving Respondent's employ April and July; and $10 and $5 in April and July. The a t t h e e nd o f J an uar y w h en sh e w as t o get m ar r i ed an d wage increases in 1978 were: $20 in July; $20 in January; m o v e t o F l orida. A b o u t mid-December, Medaska told a $20 in July; $15 and $10 in January and July; $15 and nu m b e r o f t h e employees, including Supervisor Branca, $10 in January and September; $10, $10, and $10 in Janu- t ha t t h er e w as a possibility t h at sh e w o u l d n o t b e getting ary , Apri i*, and July; in JanuaryandJuly; in January; married and would be remaining at her job, but that she ary, April, and July; in January. In197, te wge icreseswer was not sure and would not know for sure until she re- and $20 in Januaryt n 1979, the wage increasesiv turned from vacation, at which time she would inform generally granted in January and July; Shally received^Branca one way or the other."3 While Medaska was on $15 and $20; Evers, $10 and $15; Rosemary Scalfani, $15 her vacation, Cimini informed Branca that he was look- and $20; Rinaldo, $10 and $15; Plant, $10 and $20; Pack- ing for someone to replace Medaska and Branca told him ard, $15 and $20; Piper, $10 and $25; and Medaska, $10 that before she left for her vacation Medaska was unsure and $15 (Piper's and Medaska's increases were granted in of what she would do and there was a possibility that March and July, presumably because they commenced she would be coming back. (Cimini admits that Branca their employment with Respondent in November and told him this and testified that he told Branca to inform December 1978, respectively). Edwards, who began her Medaska to speak to him because he was looking for her employ in May 1979, received $15, presumably 3 months replacement.) Cimini said that as far as he was concerned later. Medaska had told him that she was not coming back, Respondent's position is that the wage increases were and he had to plan for the future and look for another not granted in January because that was when the elec- employee. tion was conducted and their attorney informed them not Medaska returned from her vacation on Wednesday, to grant wage increases at that time because it might be January 2. Although Medaska had made up her mind to considered as a bribe to the employees. By February, however, some Of the employees had become "edgy" "3 Medaska testified that before she left for her vacation during the about he abence f thewage ncreae." A thistime, Christmas to New Year's week she definitely decided that she would about the absence of the wage increase."2 At this time, remain in Respondent's employ and informed Branca of this decision. Branca testified, however, that Medaska did not inform her that her mar- " Pursuant to an amendment of the complaint at the hearing. riage plans were off and that she would definitely remain in Respondent's " In fact, Evers testified that in her discussion with Gold on January employ until after she returned from her vacation. Although not crucial 4, she informed him that she was disturbed that she had not gotten a to the issue, I would credit Branca in this regard, as her memory appears raise. superior to that of Medaska. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifying what furniture would be in the lounge) either the Regional Office of the Labor Board was investigat- in the newly acquired space or in the old machine-break ing the Union's unfair labor practice charge and objec- room, which would be expanded for the purpose. tions in this matter. According to counsel for Respond- ent (and stipulated to by the General Counsel), he met X. THE WAGE INCREASES with the Regional Office representative on two occasions The record establishes that Respondent has generally regarding the investigation of this charge and the objec- The record establishes that Respondent has generary.h tions-the first time at the end of January, when Cimini granted wage increases to its employees in January. Thewas questioned, and again on February 8 when both election herein was conducted on January 10. In Febru- Cimini and Gold were questioned. As stated by counsel ary, Respondent announced and granted to all its em- for Respondent: ". . . it became readily apparent to me ployees a $20-a-week wage increase retroactive to Janu- that this matter was going to go to a hearing, because ary 14. The General Counsel alleges two violations in there were serious credibility issues. I also know, which this regard: one for withholding its annual increase from is common knowledge, of the backlog with the Adminis- January to February, and the other" for granting an in- trative Law Judges, and its going to take a few months crease in an amount significantly greater than those to get a hearing." granted in the past, all, allegedly, to discourage support On the basis of that, counsel for Respondent instructed of the Union. Respondent to grant the increases and make them retro- Respondent prepared a summary of the wage increases active to January, and on February 18 he wrote to coun- which were granted to its employees since 1975 (G.C. sel for the Union, informing him of the increases and the Exh. 11). Of the 11 employees listed as being employed reason, as stated above. in 1975, 1, who began her employment in April received Respondent explains that the increase was retroactive a $5 increase in that year, 4 received $10 increases, 1 re- to January because that is when the employees would ceived a $15 increase, and 5 received $20 wage increases, have received the increase, if not for this pending matter, In 1976, three employees received $10 increases, four re- a nd t h at everybody was given the same increase because ceived $15 increases, two received $20 increases, and Respondent did not have an opportunity to review the two received $25 increases. All of the above wage in- employees' performance and grant a corresponding merit creases were granted to the employees either in January increase, as they had done in the past. or 3 months after they began their employment with Re- XI. THE MEDASKA TERMINATION spondent. In 1977, the following wage increases were granted, together with the month in which they were Medaska began her employ with Respondent in No- granted: $15 and $20 in April and December; $10 in vember 1978; she was admittedly a good employee. June; $5 and $20 in May and December; $25 in July; $15 A b o u t the beginning of December, Medaska informed in April; $10 and $5 in April and July; $10 and $20 in Cim in i t h at sh e w o u ld b e leaving Respondent's employ April and July; and $10 and $5 in April and July. The a t t h e e nd o f J an uar y w h en sh e w as t o get m ar r i ed an d wage increases in 1978 were: $20 in July; $20 in January; m o v e t o F l orida. A b o u t mid-December, Medaska told a $20 in July; $15 and $10 in January and July; $15 and nu m b e r o f t h e employees, including Supervisor Branca, $10 in January and September; $10, $10, and $10 in Janu- t ha t t h er e w as a possibility t h at sh e w o u l d n o t b e getting ary , Ap 11ril , and July; in JanuaryandJuly; in January; married and would be remaining at her job, but that she ary, April, and July; in January. In197, te wge icreseswer was not sure and would not know for sure until she re- and $20 in Januaryt n 1979, the wage increasesiv turned from vacation, at which time she would inform generally granted in January and July; Shally received^Branca one way or the other."3 While Medaska was on $15 and $20; Evers, $10 and $15; Rosemary Scalfani, $15 her vacation, Cimini informed Branca that he was look- and $20; Rinaldo, $10 and $15; Plant, $10 and $20; Pack- ing for someone to replace Medaska and Branca told him ard, $15 and $20; Piper, $10 and $25; and Medaska, $10 that before she left for her vacation Medaska was unsure and $15 (Piper's and Medaska's increases were granted in of what she would do and there was a possibility that March and July, presumably because they commenced she would be coming back. (Cimini admits that Branca their employment with Respondent in November and told him this and testified that he told Branca to inform December 1978, respectively). Edwards, who began her Medaska to speak to him because he was looking for her employ in May 1979, received $15, presumably 3 months replacement.) Cimini said that as far as he was concerned later. Medaska had told him that she was not coming back, Respondent's position is that the wage increases were and he had to plan for the future and look for another not granted in January because that was when the elec- employee. tion was conducted and their attorney informed them not Medaska returned from her vacation on Wednesday, to grant wage increases at that time because it might be January 2. Although Medaska had made up her mind to considered as a bribe to the employees. By February, however, some Of the employees had become "edgy" "3 Medaska testified that before she left for her vacation during the about he abence f thewage ncreae." A thistime, Christmas to New Year's week she definitely decided that she would about the absence of the wage increase."2 At this time, remain in Respondent's employ and informed Branca of this decision. Branca testified, however, that Medaska did not inform her that her mar- " Pursuant to an amendment of the complaint at the hearing. riage plans were off and that she would definitely remain in Respondent's " In fact, Evers testified that in her discussion with Gold on January employ until after she returned from her vacation. Although not crucial 4, she informed him that she was disturbed that she had not gotten a to the issue, I would credit Branca in this regard, as her memory appears raise. superior to that of Medaska. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifying what furniture would be in the lounge) either the Regional Office of the Labor Board was investigat- in the newly acquired space or in the old machine-break ing the Union's unfair labor practice charge and objec- room, which would be expanded for the purpose. tions in this matter. According to counsel for Respond- ent (and stipulated to by the General Counsel), he met X. THE WAGE INCREASES with the Regional Office representative on two occasions The record establishes that Respondent has generally regarding the investigation of this charge and the objec- The record establishes that Respondent has generary.h tions-the first time at the end of January, when Cimini granted wage increases to its employees in January. Thewas questioned, and again on February 8 when both election herein was conducted on January 10. In Febru- Cimini and Gold were questioned. As stated by counsel ary, Respondent announced and granted to all its em- for Respondent: ". . . it became readily apparent to me ployees a $20-a-week wage increase retroactive to Janu- that this matter was going to go to a hearing, because ary 14. The General Counsel alleges two violations in there were serious credibility issues. I also know, which this regard: one for withholding its annual increase from is common knowledge, of the backlog with the Adminis- January to February, and the other" for granting an in- trative Law Judges, and its going to take a few months crease in an amount significantly greater than those to get a hearing." granted in the past, all, allegedly, to discourage support On the basis of that, counsel for Respondent instructed of the Union. Respondent to grant the increases and make them retro- Respondent prepared a summary of the wage increases active to January, and on February 18 he wrote to coun- which were granted to its employees since 1975 (G.C. sel for the Union, informing him of the increases and the Exh. 11). Of the 11 employees listed as being employed reason, as stated above. in 1975, 1, who began her employment in April received Respondent explains that the increase was retroactive a $5 increase in that year, 4 received $10 increases, 1 re- to January because that is when the employees would ceived a $15 increase, and 5 received $20 wage increases, have received the increase, if not for this pending matter, In 1976, three employees received $10 increases, four re- a nd t h at everybody was given the same increase because ceived $15 increases, two received $20 increases, and Respondent did not have an opportunity to review the two received $25 increases. All of the above wage in- employees' performance and grant a corresponding merit creases were granted to the employees either in January increase, as they had done in the past. or 3 months after they began their employment with Re- XI. THE MEDASKA TERMINATION spondent. In 1977, the following wage increases were granted, together with the month in which they were Medaska began her employ with Respondent in No- granted: $15 and $20 in April and December; $10 in vember 1978; she was admittedly a good employee. June; $5 and $20 in May and December; $25 in July; $15 A b o u t the beginning of December, Medaska informed in April; $10 and $5 in April and July; $10 and $20 in Cim in i t h at sh e w o u ld b e leaving Respondent's employ April and July; and $10 and $5 in April and July. The a t t h e e nd o f J an uar y w h en sh e w as t o get m ar r i ed an d wage increases in 1978 were: $20 in July; $20 in January; m o v e t o F l orida. A b o u t mid-December, Medaska told a $20 in July; $15 and $10 in January and July; $15 and nu m b e r o f t h e employees, including Supervisor Branca, $10 in January and September; $10, $10, and $10 in Janu- t ha t t h er e w as a possibility t h at sh e w o u l d n o t b e getting ary , Ap 11ril , and July; in JanuaryandJuly; in January; married and would be remaining at her job, but that she ary, April, and July; in January. In197, te wge icreseswer was not sure and would not know for sure until she re- and $20 in Januaryt n 1979, the wage increasesiv turned from vacation, at which time she would inform generally granted in January and July; Shally received^Branca one way or the other."3 While Medaska was on $15 and $20; Evers, $10 and $15; Rosemary Scalfani, $15 her vacation, Cimini informed Branca that he was look- and $20; Rinaldo, $10 and $15; Plant, $10 and $20; Pack- ing for someone to replace Medaska and Branca told him ard, $15 and $20; Piper, $10 and $25; and Medaska, $10 that before she left for her vacation Medaska was unsure and $15 (Piper's and Medaska's increases were granted in of what she would do and there was a possibility that March and July, presumably because they commenced she would be coming back. (Cimini admits that Branca their employment with Respondent in November and told him this and testified that he told Branca to inform December 1978, respectively). Edwards, who began her Medaska to speak to him because he was looking for her employ in May 1979, received $15, presumably 3 months replacement.) Cimini said that as far as he was concerned later. Medaska had told him that she was not coming back, Respondent's position is that the wage increases were and he had to plan for the future and look for another not granted in January because that was when the elec- employee. tion was conducted and their attorney informed them not Medaska returned from her vacation on Wednesday, to grant wage increases at that time because it might be January 2. Although Medaska had made up her mind to considered as a bribe to the employees. By February, however, some Of the employees had become "edgy" "3 Medaska testified that before she left for her vacation during the about he abence f thewage ncreae." A thistime, Christmas to New Year's week she definitely decided that she would about the absence of the wage increase."2 At this time, remain in Respondent's employ and informed Branca of this decision. Branca testified, however, that Medaska did not inform her that her mar- " Pursuant to an amendment of the complaint at the hearing. riage plans were off and that she would definitely remain in Respondent's " In fact, Evers testified that in her discussion with Gold on January employ until after she returned from her vacation. Although not crucial 4, she informed him that she was disturbed that she had not gotten a to the issue, I would credit Branca in this regard, as her memory appears raise. superior to that of Medaska. PROGRESSIVE SUPERMARKETS, INC. 533 remain in Respondent's employ, she was nervous about informed Cimini that Medaska was "up in the air" about informing Cimini of her decision and did not attempt to leaving) Gold contacted Joe Greenblatt, a man he knew, speak to him until late in the afternoon of Friday, Janu- who was the controller of Consolidated Supermarkets, ary 4, although Branca told her that she had told Cimini herein called Consolidated, and asked him if he could that she was unsure about leaving and encouraged Me- recommend any employee whom Gold could hire to re- daska to speak to Cimini. At that time, Medaska in- place Medaska. Greenblatt told him that he had employ- formed Cimini of her decision to stay and Cimini told ee Karen Gordon who performed the same type of work her that it was too late because he had already located as Medaska. Cimini went to Consolidated's office, inter- another employee who was capable of performing the viewed Gordon, and hired her to begin on January 7. work and did not want to let the opportunity pass. Gordon remained in Respondent's employ for about 2- Cimini then took out of his desk a prepared check for 1/2 weeks, left without any explanation to Respondent, Medaska's salary through January 28 (she had earlier and returned to her former position at Consolidated. that day received her regular paycheck for the week). While employed at Respondent, Gordon was paid $175 a Medaska said that she could not believe that he was week. going to let her leave since she wished to continue work- Consolidated's payroll records establish that just prior ing, and that it was quite a coincidence that he was let- to Gordon's brief employment at Progressive she was ting her go I week before the election. Cimini said that it paid $5 an hour by Consolidated. Gordon testified, and had nothing to do with it, Medaska told him that Branca Consolidated's payroll records further establish that, had informed him that she would not be leaving, and during her brief employment at Respondent, in the even- Cimini said that he knew nothing about it and would ings she voluntarily returned to Consolidated's office to continue with his previous plans. perform some of her regular work there; for the week Before leaving the office, Medaska met Respondent's ending January 12 she worked 5 hours at regular time president, Margolis, who asked if she were alright, she and 17.25 hours of overtime at Consolidated; for the said that she was, and he asked if he could do anything weeks ending January 19 and January 26 these figures for her. Medaska answered no, since the new employee were, respectively, 5 and 18.75, and 19 and 15.50. had already been hired. Margolis then said that she Gordon testified that just prior to the events in ques- should understand the position of Respondent, that they tion she had been employed by Consolidated for 2-1/2 were set up; Medaska asked him what he meant and he years. Shortly before she was interviewed by Cimini, said that the employees do not understand how much Greenblatt called her into his office and told her that Respondent pays for their benefits. Medaska then in- Progressive was short-handed and needed someone in formed Margolis that the employees were not upset the office and would she help out until they found some- about the benefits, but about their wages and Cimini. one else. Greenblatt told her what work she would be Medaska left this meeting and began clearing out her performing at Respondent, but she was not sure whether desk; Evers noticed that she was crying, asked her what he informed her of the wages she would be receiving or was wrong and Medaska said that Respondent had paid any other benefits. When asked on direct examination if her off until the end of the month and it was her last she were given any choice about going to Respondent, day. As Evers was leaving the office, she met Gold and Gordon answered: "I was asked to go. I don't question asked to speak to him. They went to Gold's office and what my boss asks me to do. If he asks me to go, I go." were joined by Cimini and Margolis. Evers' uncontra- dicted testimony is that she asked why they let Medaska Q. Did you apply for a job at Progressive? go when she wanted to stay and Cimini knew it. Gold A. No. said that she had told them that she would leave at the Q. Did you interview for the job in anyway, like end of the month and he paid her for that period; he you would for any other job you might apply? asked what she would do and Evers said she would have A. No. kept her. Gold said that he had already hired somebody Q. What did Mr. Cimini say to you? else. Evers answered, "but isn't it sensible to keep her? A. He asked if I was qualified, if I knew the She was a good employee, she was a very likeable girl, work. we liked her very much and it will cost money to hire Q. And what did you tell him? somebody else and train them." Gold then said, "Well, I A. Yes. have to do everything I can to save my company" and Evers said, "What you're saying then, is that you are Gordon later testified that she did not believe Cimini doing it for the vote" and Gold said, "do you blame asked her anything else during this interview, nor did me?" Evers then said, "Well, you do what you have to anybody ask her if she would be available for employ- do." They then began discussing the benefits Respondent ment at Respondent at the end of January, rather than was giving its employees and the meeting ended. the beginning of January; Cimini admits this. Respondent's position regarding the termination of After approximately 2-1/2 weeks' employment at Re- Medaska on January 4 is as follows: when she gave spondent, Gordon called in sick at Respondent because it Cimini the notice in early December that she would be was too long a trip from her home; she lived approxi- leaving Respondent's employ at the end of January they mately 5 minutes' distance from Consolidated, and ap- began to look for a replacement for her. Because it was proximately 45 minutes from Respondent, and Cimini the holiday season they could not locate a replacement. was aware of this. She then called Greenblatt and told Sometime during the week after Christmas (when Branca him that she could not travel anymore. Greenblatt told PROGRESSIVE SUPERMARKETS, INC. 533 remain in Respondent's employ, she was nervous about informed Cimini that Medaska was "up in the air" about informing Cimini of her decision and did not attempt to leaving) Gold contacted Joe Greenblatt, a man he knew, speak to him until late in the afternoon of Friday, Janu- who was the controller of Consolidated Supermarkets, ary 4, although Branca told her that she had told Cimini herein called Consolidated, and asked him if he could that she was unsure about leaving and encouraged Me- recommend any employee whom Gold could hire to re- daska to speak to Cimini. At that time, Medaska in- place Medaska. Greenblatt told him that he had employ- formed Cimini of her decision to stay and Cimini told ee Karen Gordon who performed the same type of work her that it was too late because he had already located as Medaska. Cimini went to Consolidated's office, inter- another employee who was capable of performing the viewed Gordon, and hired her to begin on January 7. work and did not want to let the opportunity pass. Gordon remained in Respondent's employ for about 2- Cimini then took out of his desk a prepared check for 1/2 weeks, left without any explanation to Respondent, Medaska's salary through January 28 (she had earlier and returned to her former position at Consolidated. that day received her regular paycheck for the week). While employed at Respondent, Gordon was paid $175 a Medaska said that she could not believe that he was week. going to let her leave since she wished to continue work- Consolidated's payroll records establish that just prior ing, and that it was quite a coincidence that he was let- to Gordon's brief employment at Progressive she was ting her go 1 week before the election. Cimini said that it paid $5 an hour by Consolidated. Gordon testified, and had nothing to do with it, Medaska told him that Branca Consolidated's payroll records further establish that, had informed him that she would not be leaving, and during her brief employment at Respondent, in the even- Cimini said that he knew nothing about it and would ings she voluntarily returned to Consolidated's office to continue with his previous plans,.perform some of her regular work there; for the week Before leaving the office, Medaska met Respondent's ending January 12 she worked 5 hours at regular time president, Margolis, who asked if she were alright, she and 17.25 hours of overtime at Consolidated; for the said that she was, and he asked if he could do anything weeks ending January 19 and January 26 these figures for her. Medaska answered no, since the new employee were, respectively, 5 and 18.75, and 19 and 15.50. had already been hired. Margolis then said that she Gordon testified that just prior to the events in ques- should understand the position of Respondent, that they tion she had been employed by Consolidated for 2-1/2 were set up; Medaska asked him what he meant and he years. Shortly before she was interviewed by Cimini, said that the employees do not understand how much Greenblatt called her into his office and told her that Respondent pays for their benefits. Medaska then in- Progressive was short-handed and needed someone in formed Margolis that the employees were not upset the office and would she help out until they found some- about the benefits, but about their wages and Cimini. one else. Greenblatt told her what work she would be Medaska left this meeting and began clearing out her performing at Respondent, but she was not sure whether desk; Evers noticed that she was crying, asked her what he informed her of the wages she would be receiving or was wrong and Medaska said that Respondent had paid any other benefits. When asked on direct examination if her off until the end of the month and it was her last she were given any choice about going to Respondent, day. As Evers was leaving the office, she met Gold and Gordon answered: "I was asked to go. I don't question asked to speak to him. They went to Gold's office and what my boss asks me to do. If he asks me to go, I go." were joined by Cimini and Margolis. Evers' uncontra- dicted testimony is that she asked why they let Medaska Q. Did you apply for a job at Progressive? go when she wanted to stay and Cimini knew it. Gold A. No. said that she had told them that she would leave at the Q. Did you interview for the job in anyway, like end of the month and he paid her for that period; he you would for any other job you might apply? asked what she would do and Evers said she would have A. No. kept her. Gold said that he had already hired somebody Q. What did Mr. Cimini say to you? else. Evers answered, "but isn't it sensible to keep her? A. He asked if I was qualified, if I knew the She was a good employee, she was a very likeable girl, work. we liked her very much and it will cost money to hire Q. And what did you tell him? somebody else and train them." Gold then said, "Well, I A. Yes. have to do everything I can to save my company" and Evers said, "What you're saying then, is that you are Gordon later testified that she did not believe Cimini doing it for the vote" and Gold said, "do you blame asked her anything else during this interview, nor did me?" Evers then said, "Well, you do what you have to anybody ask her if she would be available for employ- do." They then began discussing the benefits Respondent ment at Respondent at the end of January, rather than was giving its employees and the meeting ended. the beginning of January; Cimini admits this. Respondent's position regarding the termination of After approximately 2-1/2 weeks' employment at Re- Medaska on January 4 is as follows: when she gave spondent, Gordon called in sick at Respondent because it Cimini the notice in early December that she would be was too long a trip from her home; she lived approxi- leaving Respondent's employ at the end of January they mately 5 minutes' distance from Consolidated, and ap- began to look for a replacement for her. Because it was proximately 45 minutes from Respondent, and Cimini the holiday season they could not locate a replacement. was aware of this. She then called Greenblatt and told Sometime during the week after Christmas (when Branca him that she could not travel anymore. Greenblatt told PROGRESSIVE SUPERMARKETS, INC. 533 remain in Respondent's employ, she was nervous about informed Cimini that Medaska was "up in the air" about informing Cimini of her decision and did not attempt to leaving) Gold contacted Joe Greenblatt, a man he knew, speak to him until late in the afternoon of Friday, Janu- who was the controller of Consolidated Supermarkets, ary 4, although Branca told her that she had told Cimini herein called Consolidated, and asked him if he could that she was unsure about leaving and encouraged Me- recommend any employee whom Gold could hire to re- daska to speak to Cimini. At that time, Medaska in- place Medaska. Greenblatt told him that he had employ- formed Cimini of her decision to stay and Cimini told ee Karen Gordon who performed the same type of work her that it was too late because he had already located as Medaska. Cimini went to Consolidated's office, inter- another employee who was capable of performing the viewed Gordon, and hired her to begin on January 7. work and did not want to let the opportunity pass. Gordon remained in Respondent's employ for about 2- Cimini then took out of his desk a prepared check for 1/2 weeks, left without any explanation to Respondent, Medaska's salary through January 28 (she had earlier and returned to her former position at Consolidated. that day received her regular paycheck for the week). While employed at Respondent, Gordon was paid $175 a Medaska said that she could not believe that he was week. going to let her leave since she wished to continue work- Consolidated's payroll records establish that just prior ing, and that it was quite a coincidence that he was let- to Gordon's brief employment at Progressive she was ting her go 1 week before the election. Cimini said that it paid $5 an hour by Consolidated. Gordon testified, and had nothing to do with it, Medaska told him that Branca Consolidated's payroll records further establish that, had informed him that she would not be leaving, and during her brief employment at Respondent, in the even- Cimini said that he knew nothing about it and would ings she voluntarily returned to Consolidated's office to continue with his previous plans,.perform some of her regular work there; for the week Before leaving the office, Medaska met Respondent's ending January 12 she worked 5 hours at regular time president, Margolis, who asked if she were alright, she and 17.25 hours of overtime at Consolidated; for the said that she was, and he asked if he could do anything weeks ending January 19 and January 26 these figures for her. Medaska answered no, since the new employee were, respectively, 5 and 18.75, and 19 and 15.50. had already been hired. Margolis then said that she Gordon testified that just prior to the events in ques- should understand the position of Respondent, that they tion she had been employed by Consolidated for 2-1/2 were set up; Medaska asked him what he meant and he years. Shortly before she was interviewed by Cimini, said that the employees do not understand how much Greenblatt called her into his office and told her that Respondent pays for their benefits. Medaska then in- Progressive was short-handed and needed someone in formed Margolis that the employees were not upset the office and would she help out until they found some- about the benefits, but about their wages and Cimini. one else. Greenblatt told her what work she would be Medaska left this meeting and began clearing out her performing at Respondent, but she was not sure whether desk; Evers noticed that she was crying, asked her what he informed her of the wages she would be receiving or was wrong and Medaska said that Respondent had paid any other benefits. When asked on direct examination if her off until the end of the month and it was her last she were given any choice about going to Respondent, day. As Evers was leaving the office, she met Gold and Gordon answered: "I was asked to go. I don't question asked to speak to him. They went to Gold's office and what my boss asks me to do. If he asks me to go, I go." were joined by Cimini and Margolis. Evers' uncontra- dicted testimony is that she asked why they let Medaska Q. Did you apply for a job at Progressive? go when she wanted to stay and Cimini knew it. Gold A. No. said that she had told them that she would leave at the Q. Did you interview for the job in anyway, like end of the month and he paid her for that period; he you would for any other job you might apply? asked what she would do and Evers said she would have A. No. kept her. Gold said that he had already hired somebody Q. What did Mr. Cimini say to you? else. Evers answered, "but isn't it sensible to keep her? A. He asked if I was qualified, if I knew the She was a good employee, she was a very likeable girl, work. we liked her very much and it will cost money to hire Q. And what did you tell him? somebody else and train them." Gold then said, "Well, I A. Yes. have to do everything I can to save my company" and Evers said, "What you're saying then, is that you are Gordon later testified that she did not believe Cimini doing it for the vote" and Gold said, "do you blame asked her anything else during this interview, nor did me?" Evers then said, "Well, you do what you have to anybody ask her if she would be available for employ- do." They then began discussing the benefits Respondent ment at Respondent at the end of January, rather than was giving its employees and the meeting ended. the beginning of January; Cimini admits this. Respondent's position regarding the termination of After approximately 2-1/2 weeks' employment at Re- Medaska on January 4 is as follows: when she gave spondent, Gordon called in sick at Respondent because it Cimini the notice in early December that she would be was too long a trip from her home; she lived approxi- leaving Respondent's employ at the end of January they mately 5 minutes' distance from Consolidated, and ap- began to look for a replacement for her. Because it was proximately 45 minutes from Respondent, and Cimini the holiday season they could not locate a replacement. was aware of this. She then called Greenblatt and told Sometime during the week after Christmas (when Branca him that she could not travel anymore. Greenblatt told PROGRESSIVE SUPERMARKETS, INC. 533 remain in Respondent's employ, she was nervous about informed Cimini that Medaska was "up in the air" about informing Cimini of her decision and did not attempt to leaving) Gold contacted Joe Greenblatt, a man he knew, speak to him until late in the afternoon of Friday, Janu- who was the controller of Consolidated Supermarkets, ary 4, although Branca told her that she had told Cimini herein called Consolidated, and asked him if he could that she was unsure about leaving and encouraged Me- recommend any employee whom Gold could hire to re- daska to speak to Cimini. At that time, Medaska in- place Medaska. Greenblatt told him that he had employ- formed Cimini of her decision to stay and Cimini told ee Karen Gordon who performed the same type of work her that it was too late because he had already located as Medaska. Cimini went to Consolidated's office, inter- another employee who was capable of performing the viewed Gordon, and hired her to begin on January 7. work and did not want to let the opportunity pass. Gordon remained in Respondent's employ for about 2- Cimini then took out of his desk a prepared check for 1/2 weeks, left without any explanation to Respondent, Medaska's salary through January 28 (she had earlier and returned to her former position at Consolidated. that day received her regular paycheck for the week). While employed at Respondent, Gordon was paid $175 a Medaska said that she could not believe that he was week. going to let her leave since she wished to continue work- Consolidated's payroll records establish that just prior ing, and that it was quite a coincidence that he was let- to Gordon's brief employment at Progressive she was ting her go 1 week before the election. Cimini said that it paid $5 an hour by Consolidated. Gordon testified, and had nothing to do with it, Medaska told him that Branca Consolidated's payroll records further establish that, had informed him that she would not be leaving, and during her brief employment at Respondent, in the even- Cimini said that he knew nothing about it and would ings she voluntarily returned to Consolidated's office to continue with his previous plans,.perform some of her regular work there; for the week Before leaving the office, Medaska met Respondent's ending January 12 she worked 5 hours at regular time president, Margolis, who asked if she were alright, she and 17.25 hours of overtime at Consolidated; for the said that she was, and he asked if he could do anything weeks ending January 19 and January 26 these figures for her. Medaska answered no, since the new employee were, respectively, 5 and 18.75, and 19 and 15.50. had already been hired. Margolis then said that she Gordon testified that just prior to the events in ques- should understand the position of Respondent, that they tion she had been employed by Consolidated for 2-1/2 were set up; Medaska asked him what he meant and he years. Shortly before she was interviewed by Cimini, said that the employees do not understand how much Greenblatt called her into his office and told her that Respondent pays for their benefits. Medaska then in- Progressive was short-handed and needed someone in formed Margolis that the employees were not upset the office and would she help out until they found some- about the benefits, but about their wages and Cimini. one else. Greenblatt told her what work she would be Medaska left this meeting and began clearing out her performing at Respondent, but she was not sure whether desk; Evers noticed that she was crying, asked her what he informed her of the wages she would be receiving or was wrong and Medaska said that Respondent had paid any other benefits. When asked on direct examination if her off until the end of the month and it was her last she were given any choice about going to Respondent, day. As Evers was leaving the office, she met Gold and Gordon answered: "I was asked to go. I don't question asked to speak to him. They went to Gold's office and what my boss asks me to do. If he asks me to go, I go." were joined by Cimini and Margolis. Evers' uncontra- dicted testimony is that she asked why they let Medaska Q. Did you apply for a job at Progressive? go when she wanted to stay and Cimini knew it. Gold A. No. said that she had told them that she would leave at the Q. Did you interview for the job in anyway, like end of the month and he paid her for that period; he you would for any other job you might apply? asked what she would do and Evers said she would have A. No. kept her. Gold said that he had already hired somebody Q. What did Mr. Cimini say to you? else. Evers answered, "but isn't it sensible to keep her? A. He asked if I was qualified, if I knew the She was a good employee, she was a very likeable girl, work. we liked her very much and it will cost money to hire Q. And what did you tell him? somebody else and train them." Gold then said, "Well, I A. Yes. have to do everything I can to save my company" and Evers said, "What you're saying then, is that you are Gordon later testified that she did not believe Cimini doing it for the vote" and Gold said, "do you blame asked her anything else during this interview, nor did me?" Evers then said, "Well, you do what you have to anybody ask her if she would be available for employ- do." They then began discussing the benefits Respondent ment at Respondent at the end of January, rather than was giving its employees and the meeting ended. the beginning of January; Cimini admits this. Respondent's position regarding the termination of After approximately 2-1/2 weeks' employment at Re- Medaska on January 4 is as follows: when she gave spondent, Gordon called in sick at Respondent because it Cimini the notice in early December that she would be was too long a trip from her home; she lived approxi- leaving Respondent's employ at the end of January they mately 5 minutes' distance from Consolidated, and ap- began to look for a replacement for her. Because it was proximately 45 minutes from Respondent, and Cimini the holiday season they could not locate a replacement. was aware of this. She then called Greenblatt and told Sometime during the week after Christmas (when Branca him that she could not travel anymore. Greenblatt told 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her that he would find out about it and called her back contradictary, his answers to the General Counsel's ques- and told Gordon that she could continue her work at tions were often evasive and hostile, and, generally, his Consolidated. " testimony, and that of Cimini regarding Medaska's termi- On cross-examination, Cimini testified as follows re- nation, was implausible; for example, why was Respond- garding Gordon's sick leave absence from Respondent: ent in such a hurry to obtain a replacement for Medaska at the end of December after Branca had informed Q. . did you attempt to reach Karen Gordon Cimini that Medaska was "up in the air" about leaving? to find out what the problem was? Even if Medaska did leave, it would not be for another A. No, I did not. month, presumably when it would be easier to locate a Q. You had her home phone number, didn't you? replacement, being after the Christmas season; in addi- A. Right. tion, Medaska's replacement, Gordon, who had been em- Q. But you made no effort to contact her? She ployed by an acquaintance of Gold's, never applied for just didn't come to work for a few days. She called the job, but "was asked to go" to Respondent by her em- in sick one day, and yet you made-you just as- ployer, Consolidated, had only a pro forma interview by sumed that she didn't want to work there anymore, Cm, and ss at Respondent than she had been Cimini, earned less at Respondent than she had been correct? A Correc t. earning at Consolidated, continued to do substantial work in the evenings at Consolidated during the brief Cimini testified that during the period in which Gordon period of her employment at Respondent, had to travel was employed by Respondent he continued to look for a 45 minutes to her employ at Respondent rather than the replacement for Medaska. He also testified that he hired 5-minute commute to Consolidated (which Cimini was a new employee to replace Medaska and Gordon "right aware of), and was never asked if she would be available after Karen left." He also testified that the reason he did to begin working for Respondent at the end of January. not rehire Medaska after Gordon left (or keep her in Re- Also especially revealing is the fact that after Gordon spondent's employ on January 4) was because she was called in sick during the third week of her employ at Re- always changing her marriage plans and she therefore spondent, and never returned there without any explana- was not dependable enough, although he admitted that tion to Respondent, Cimini never attempted to contact Medaska's notice of leaving in December was the only her to find out if she would be returning, together with notice she had ever given Respondent. the fact that even during the brief period of Gordon's Probably the most interesting question in regard to employ at Respondent Cimini continued to look for a Medaska's termination is why, on January 4, when permanent replacement for Medaska. Additionally, as Cimini was informed by Medaska that she changed her Respondent's office was very busy at the time of Medas- plans and wished to remain in Respondent's employ, it ka's termination, it is difficult to understand why, even if did not cancel Gordon's employment or, at least cancel it had a "commitment" to Gordon, Respondent could it until January 28, her original notice date, especially not place Medaska in the new office across the hall, with since they paid Medaska up until January 28. Cimini and or without a telephone. (If Respondent was able to ar- Gold's answers were simply that they had a "commit- range an employee lounge shortly thereafter, it could ment" to Gordon. Cimini, on cross-examination, was certainly have arranged to have a telephone installed asked: there a few weeks earlier for Medaska or Gordon). Also puzzling is why Respondent never contacted Medaska to Q. You're telling me, then, that you thought that return when Gordon left its employ after only 2-1/2 because you had told Karen Gordon to start work- weeks. Finally, sealing this matter was Gold's answer to ing the following Monday, that there was no way Evers-"do you blame me?"-when she asked him if he that you could change that. That was irreversible? was terminating Medaska for her vote 6 days later? All A. No, it wasn't irreversible. of these factors lead to the inescapable conclusion that Respondent precipitously terminated Medaska to prevent The corollary question is why, since Respondent paid her from voting in the upcoming election." both Medaska and Gordon for the last 3 weeks in Janu- ary, it did not at least keep Medaska in its employ for XI. ANALYSIS that period. Respondent's answer to this was the lack of space at Respondent's premises; although the office was I have found that Gold, in his two speeches to the em- very busy at the time, there was no room for an addi- ployees on January 4 and January 9, said inter alia, that tional employee. When it was pointed out to Gold that if the Union won the election he would have to negoti- Respondent, at that time, had the new additional space ate with the Union and that he would be tough; every- across the hall, he testified that it was not proper for the thing was negotiable and that in the negotiations employ- purpose since new telephone lines would be needed if an ees would start from ground zero and everything would employee were placed there. have to be renegotiated; any benefits they had would be I do not credit Gold and Cimini's version of Medaska's frozen and that their wages would be frozen until the termination. I found Gold, and to a lesser degree Cimini, matter was settled. I would also credit Plant's testimony not to be credible witnesses. Gold's testimony was often regarding her private meeting with Gold on January 10 " One week after returning to Consolidated's employ, Gordon re- " I make this finding being aware that there was no definite proof that ceived a 7-1/2-percent wage increase. Respondent was aware that Medaska was one of the prounion employees. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her that he would find out about it and called her back contradictary, his answers to the General Counsel's ques- and told Gordon that she could continue her work at tions were often evasive and hostile, and, generally, his Consolidated. 1 testimony, and that of Cimini regarding Medaska's termi- On cross-examination, Cimini testified as follows re- nation, was implausible; for example, why was Respond- garding Gordon's sick leave absence from Respondent: ent in such a hurry to obtain a replacement for Medaska at the end of December after Branca had informed Q.... did you attempt to reach Karen Gordon Cimini that Medaska was "up in the air" about leaving? to find out what the problem was? Even if Medaska did leave, it would not be for another A. No, I did not. month, presumably when it would be easier to locate a Q. You had her home phone number, didn't you? replacement, being after the Christmas season; in addi- A. Right. tion, Medaska's replacement, Gordon, who had been em- Q. But you made no effort to contact her? She ployed by an acquaintance of Gold's, never applied for just didn't come to work for a few days. She called the job, but "was asked to go" to Respondent by her em- in sick one day, and yet you made-you just as- ployer, Consolidated, had only a pro forma interview by sumed that she didn't want to work there anymore, C i e l Respondent than she had been correct? earning at Consolidated, continued to do substantial A. Correct. work in the evenings at Consolidated during the brief Cimini testified that during the period in which Gordon period of her employment at Respondent, had to travel was employed by Respondent he continued to look for a 45 minutes to her employ at Respondent rather than the replacement for Medaska. He also testified that he hired 5-minute commute to Consolidated (which Cimini was a new employee to replace Medaska and Gordon "right aw ar e of), and was never asked if she would be available after Karen left." He also testified that the reason he did to begin working for Respondent at the end of January. not rehire Medaska after Gordon left (or keep her in Re- Also especially revealing is the fact that after Gordon spondent's employ on January 4) was because she was called in sick during the third week of her employ at Re- always changing her marriage plans and she therefore spondent, and never returned there without any explana- was not dependable enough, although he admitted that tion to Respondent, Cimini never attempted to contact Medaska's notice of leaving in December was the only her to find out if she would be returning, together with notice she had ever given Respondent. the fact that even during the brief period of Gordon's Probably the most interesting question in regard to employ at Respondent Cimini continued to look for a Medaska's termination is why, on January 4, when permanent replacement for Medaska. Additionally, as Cimini was informed by Medaska that she changed her Respondent's office was very busy at the time of Medas- plans and wished to remain in Respondent's employ, it ka's termination, it is difficult to understand why, even if did not cancel Gordon's employment or, at least cancel it had a "commitment" to Gordon, Respondent could it until January 28, her original notice date, especially not place Medaska in the new office across the hall, with since they paid Medaska up until January 28. Cimini and or without a telephone. (If Respondent was able to ar- Gold's answers were simply that they had a "commit- range an employee lounge shortly thereafter, it could ment" to Gordon. Cimini, on cross-examination, was certainly have arranged to have a telephone installed asked: there a few weeks earlier for Medaska or Gordon). Also puzzling is why Respondent never contacted Medaska to Q. You're telling me, then, that you thought that return when Gordon left its employ after only 2-1/2 because you had told Karen Gordon to start work- weeks. Finally, sealing this matter was Gold's answer to ing the following Monday, that there was no way Evers-"do you blame me?"-when she asked him if he that you could change that. That was irreversible? was terminating Medaska for her vote 6 days later? All A. No, it wasn't irreversible. of these factors lead to the inescapable conclusion that The corollary question is why, since Respondent paid Respondent precipitously terminated Medaska to prevent The coro lary question is why, since Respondent paid her from voting in the upcoming election." both Medaska and Gordon for the last 3 weeks in Janu- ary, it did not at least keep Medaska in its employ for xII. ANALYSIS that period. Respondent's answer to this was the lack of space at Respondent's premises; although the office was I have found that Gold, in his two speeches to the em- very busy at the time, there was no room for an addi- ployees on January 4 and January 9, said inter alia, that tional employee. When it was pointed out to Gold that if the Union won the election he would have to negoti- Respondent, at that time, had the new additional space ate with the Union and that he would be tough; every- across the hall, he testified that it was not proper for the thing was negotiable and that in the negotiations employ- purpose since new telephone lines would be needed if an ees would start from ground zero and everything would employee were placed there. have to be renegotiated; any benefits they had would be I do not credit Gold and Cimini's version of Medaska's frozen and that their wages would be frozen until the termination. I found Gold, and to a lesser degree Cimini, matter was settled. I would also credit Plant's testimony not to be credible witnesses. Gold's testimony was often regarding her private meeting with Gold on January 10 " One week after returning to Consolidated's employ, Gordon re- "1 I make this finding being aware that there was no definite proof that ceived a 7-1/2-percent wage increase. Respondent was aware that Medaska was one of the prounion employees. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her that he would find out about it and called her back contradictary, his answers to the General Counsel's ques- and told Gordon that she could continue her work at tions were often evasive and hostile, and, generally, his Consolidated. 1 testimony, and that of Cimini regarding Medaska's termi- On cross-examination, Cimini testified as follows re- nation, was implausible; for example, why was Respond- garding Gordon's sick leave absence from Respondent: ent in such a hurry to obtain a replacement for Medaska at the end of December after Branca had informed Q.... did you attempt to reach Karen Gordon Cimini that Medaska was "up in the air" about leaving? to find out what the problem was? Even if Medaska did leave, it would not be for another A. No, I did not. month, presumably when it would be easier to locate a Q. You had her home phone number, didn't you? replacement, being after the Christmas season; in addi- A. Right. tion, Medaska's replacement, Gordon, who had been em- Q. But you made no effort to contact her? She ployed by an acquaintance of Gold's, never applied for just didn't come to work for a few days. She called the job, but "was asked to go" to Respondent by her em- in sick one day, and yet you made-you just as- ployer, Consolidated, had only a pro forma interview by sumed that she didn't want to work there anymore, C i e l Respondent than she had been correct? earning at Consolidated, continued to do substantial A. Correct. work in the evenings at Consolidated during the brief Cimini testified that during the period in which Gordon period of her employment at Respondent, had to travel was employed by Respondent he continued to look for a 45 minutes to her employ at Respondent rather than the replacement for Medaska. He also testified that he hired 5-minute commute to Consolidated (which Cimini was a new employee to replace Medaska and Gordon "right aw ar e of), a n d w as n ev er asked if she would be available after Karen left." He also testified that the reason he did to begin working for Respondent at the end of January. not rehire Medaska after Gordon left (or keep her in Re- Also especially revealing is the fact that after Gordon spondent's employ on January 4) was because she was called in sick during the third week of her employ at Re- always changing her marriage plans and she therefore spondent, and never returned there without any explana- was not dependable enough, although he admitted that tion to Respondent, Cimini never attempted to contact Medaska's notice of leaving in December was the only her to find out if she would be returning, together with notice she had ever given Respondent. the fact that even during the brief period of Gordon's Probably the most interesting question in regard to employ at Respondent Cimini continued to look for a Medaska's termination is why, on January 4, when permanent replacement for Medaska. Additionally, as Cimini was informed by Medaska that she changed her Respondent's office was very busy at the time of Medas- plans and wished to remain in Respondent's employ, it ka's termination, it is difficult to understand why, even if did not cancel Gordon's employment or, at least cancel it had a "commitment" to Gordon, Respondent could it until January 28, her original notice date, especially not place Medaska in the new office across the hall, with since they paid Medaska up until January 28. Cimini and or without a telephone. (If Respondent was able to ar- Gold's answers were simply that they had a "commit- range an employee lounge shortly thereafter, it could ment" to Gordon. Cimini, on cross-examination, was certainly have arranged to have a telephone installed asked: there a few weeks earlier for Medaska or Gordon). Also puzzling is why Respondent never contacted Medaska to Q. You're telling me, then, that you thought that return when Gordon left its employ after only 2-1/2 because you had told Karen Gordon to start work- weeks. Finally, sealing this matter was Gold's answer to ing the following Monday, that there was no way Evers-"do you blame me?"-when she asked him if he that you could change that. That was irreversible? was terminating Medaska for her vote 6 days later? All A. No, it wasn't irreversible. of these factors lead to the inescapable conclusion that The corollary question is why, since Respondent paid Respondent precipitously terminated Medaska to prevent The coro lary question is why, since Respondent paid her from voting in the upcoming election." both Medaska and Gordon for the last 3 weeks in Janu- ary, it did not at least keep Medaska in its employ for xII. ANALYSIS that period. Respondent's answer to this was the lack of space at Respondent's premises; although the office was I have found that Gold, in his two speeches to the em- very busy at the time, there was no room for an addi- ployees on January 4 and January 9, said inter alia, that tional employee. When it was pointed out to Gold that if the Union won the election he would have to negoti- Respondent, at that time, had the new additional space ate with the Union and that he would be tough; every- across the hall, he testified that it was not proper for the thing was negotiable and that in the negotiations employ- purpose since new telephone lines would be needed if an ees would start from ground zero and everything would employee were placed there. have to be renegotiated; any benefits they had would be I do not credit Gold and Cimini's version of Medaska's frozen and that their wages would be frozen until the termination. I found Gold, and to a lesser degree Cimini, matter was settled. I would also credit Plant's testimony not to be credible witnesses. Gold's testimony was often regarding her private meeting with Gold on January 10 " One week after returning to Consolidated's employ, Gordon re- "1 I make this finding being aware that there was no definite proof that ceived a 7-1/2-percent wage increase. Respondent was aware that Medaska was one of the prounion employees. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her that he would find out about it and called her back contradictary, his answers to the General Counsel's ques- and told Gordon that she could continue her work at tions were often evasive and hostile, and, generally, his Consolidated. 1 testimony, and that of Cimini regarding Medaska's termi- On cross-examination, Cimini testified as follows re- nation, was implausible; for example, why was Respond- garding Gordon's sick leave absence from Respondent: ent in such a hurry to obtain a replacement for Medaska at the end of December after Branca had informed Q.... did you attempt to reach Karen Gordon Cimini that Medaska was "up in the air" about leaving? to find out what the problem was? Even if Medaska did leave, it would not be for another A. No, I did not. month, presumably when it would be easier to locate a Q. You had her home phone number, didn't you? replacement, being after the Christmas season; in addi- A. Right. tion, Medaska's replacement, Gordon, who had been em- Q. But you made no effort to contact her? She ployed by an acquaintance of Gold's, never applied for just didn't come to work for a few days. She called the job, but "was asked to go" to Respondent by her em- in sick one day, and yet you made-you just as- ployer, Consolidated, had only a pro forma interview by sumed that she didn't want to work there anymore, C i e l Respondent than she had been correct? earning at Consolidated, continued to do substantial A. Correct. work in the evenings at Consolidated during the brief Cimini testified that during the period in which Gordon period of her employment at Respondent, had to travel was employed by Respondent he continued to look for a 45 minutes to her employ at Respondent rather than the replacement for Medaska. He also testified that he hired 5-minute commute to Consolidated (which Cimini was a new employee to replace Medaska and Gordon "right aw ar e of), and was never asked if she would be available after Karen left." He also testified that the reason he did to begin working for Respondent at the end of January. not rehire Medaska after Gordon left (or keep her in Re- Also especially revealing is the fact that after Gordon spondent's employ on January 4) was because she was called in sick during the third week of her employ at Re- always changing her marriage plans and she therefore spondent, and never returned there without any explana- was not dependable enough, although he admitted that tion to Respondent, Cimini never attempted to contact Medaska's notice of leaving in December was the only her to find out if she would be returning, together with notice she had ever given Respondent. the fact that even during the brief period of Gordon's Probably the most interesting question in regard to employ at Respondent Cimini continued to look for a Medaska's termination is why, on January 4, when permanent replacement for Medaska. Additionally, as Cimini was informed by Medaska that she changed her Respondent's office was very busy at the time of Medas- plans and wished to remain in Respondent's employ, it ka's termination, it is difficult to understand why, even if did not cancel Gordon's employment or, at least cancel it had a "commitment" to Gordon, Respondent could it until January 28, her original notice date, especially not place Medaska in the new office across the hall, with since they paid Medaska up until January 28. Cimini and or without a telephone. (If Respondent was able to ar- Gold's answers were simply that they had a "commit- range an employee lounge shortly thereafter, it could ment" to Gordon. Cimini, on cross-examination, was certainly have arranged to have a telephone installed asked: there a few weeks earlier for Medaska or Gordon). Also puzzling is why Respondent never contacted Medaska to Q. You're telling me, then, that you thought that return when Gordon left its employ after only 2-1/2 because you had told Karen Gordon to start work- weeks. Finally, sealing this matter was Gold's answer to ing the following Monday, that there was no way Evers-"do you blame me?"-when she asked him if he that you could change that. That was irreversible? was terminating Medaska for her vote 6 days later? All A. No, it wasn't irreversible. of these factors lead to the inescapable conclusion that The corollary question is why, since Respondent paid Respondent precipitously terminated Medaska to prevent The coro lary question is why, since Respondent paid her from voting in the upcoming election." both Medaska and Gordon for the last 3 weeks in Janu- ary, it did not at least keep Medaska in its employ for xII. ANALYSIS that period. Respondent's answer to this was the lack of space at Respondent's premises; although the office was I have found that Gold, in his two speeches to the em- very busy at the time, there was no room for an addi- ployees on January 4 and January 9, said inter alia, that tional employee. When it was pointed out to Gold that if the Union won the election he would have to negoti- Respondent, at that time, had the new additional space ate with the Union and that he would be tough; every- across the hall, he testified that it was not proper for the thing was negotiable and that in the negotiations employ- purpose since new telephone lines would be needed if an ees would start from ground zero and everything would employee were placed there. have to be renegotiated; any benefits they had would be I do not credit Gold and Cimini's version of Medaska's frozen and that their wages would be frozen until the termination. I found Gold, and to a lesser degree Cimini, matter was settled. I would also credit Plant's testimony not to be credible witnesses. Gold's testimony was often regarding her private meeting with Gold on January 10 " One week after returning to Consolidated's employ, Gordon re- "1 I make this finding being aware that there was no definite proof that ceived a 7-1/2-percent wage increase. Respondent was aware that Medaska was one of the prounion employees. PROGRESSIVE SUPERMARKETS, INC. 535 where he informed her of what he meant by saying that result of the normal give and take of collective bar- the employees' benefits would be frozen, which, to her, gaining. meant that she was losing them; that yes, she could say that she would be losing them; that they would have to Gold's statements to the employees herein regarding renegotiate for those benefits-some they may get back negotiations went beyond the permissible limits. Prior to and some they may not. these speeches Cimini, in his speech, informed the em- There have been numerous cases recently on the legal- ployees that Respondent would do whatever it had to do ity of statements such as Gold's "ground zero" state- in order to keep the Union out. In addition to Gold's ments herein. The question is whether, under Section statements regarding negotiations starting from "ground 8(c) of the Act, they are lawful statements explaining to zero" he informed the employees that if he had to nego- the employees the mechanics of bargaining or are unlaw- tiate with the Union, the employees' benefits would be ful threats of withdrawal of benefits should the employ- frozen, and that their dental benefits would be frozen ees choose the Union as their collective-bargaining repre- and they would have to pay for any dental expenses on sentative. In Coach and Equipment Sales Corp., 228 their own. He also informed the employees that their NLRB 440 (1977), the Board stated: wages would be frozen until the matter was settled. This, together with his above-mentioned statement to Plant "Bargaining from scratch" 16 is a dangerous and Respondent's numerous comments to the employees phrase which carries within it the seed of a threat in its letters and speeches about strikes and strike re- the employer will become punitively intransigent in placements" and the other 8(aXl) and (3) violations dis- the event the union wins the election. The Board cussed and found, infra, convince me that Gold's refer- has held that such "hard bargaining" statements ences to negotiations beginning from "ground zero" may or may not be coercive, depending on the con- were more than simply an explanation of the processes of text in which they are uttered. Thus, where a bar- collective bargaining; rather they were threats to take gaining-from-scratch statement can reasonably be action detrimental to the employees should they choose read in context as a threat by the employer to uni- to be represented by the Union, and thereby violated laterally discontinue existing benefits prior to nego- Section 8(aXl) of the Act. s8 I would likewise find that tiations, or to adopt a regressive bargaining posture Gold's statements regarding the employees' wages and designed to force a reduction of existing benefits for benefits being frozen were unlawful threats within the the purpose of penalizing the employees for choos- meaning of Section 8(aXl). ing collective representation, the Board will find a Additionally, I find that Gold's statements in his violation. Where, on the other hand, the clearly ar- speeches that anyone who incurred bills using Respond- ticulated thrust of the bargaining-from-scratch state- ent's dental plan would have to pay these bills on their ment is that the mere designation of a union will own because these benefits would be frozen, and that not automatically secure increases in wages and there was a possibility that if the Union won the election benefits, and that all such items are subject to bar- a timeclock could be installed both violate Section gaining, no violation will be found. A close question 8(a)X) of the Act. Both statements were made in the sometimes exists whether bargaining-from-scratch context that all benefits would have to be renegotiated, statements constitute a threat of economic reprisal would be frozen, and would start at ground zero, if the or instead constitute an attempt to portray the possi- Union won the election and Respondent had to negotiate ble pitfalls for employees of the collective-bargain- with the Union. As stated in N.LR.B. v. Gissel Packing ing process. The presence of contemporaneous Co, Inc, 395 U.S. 575, 618 (1969): threats or unfair labor practices is often a critical factor in determining whether there is a threatening If there is any implication that an employer may or color to the employer's remarks. may not take action solely on his own initiative for In Plastronics Inc., 233 NLRB 155 (1979), the Board reasons unrelated to economic necessities and stated that statements which indicate that collective bar- known only to him, the statement is no longer a gaining "begins from scratch" or "starts at zero:" reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and . . . are objectionable when, in context, they effec- coercion, and as such without the protection of the tively threaten employees with the loss of existing First Amendment . . . [As] stated elsewhere, an benefits and leave them with the impression that employer is free only to tell "what he reasonably what they may ultimately receive depends in large believes will be the likely economic consequences measure upon what the Union can induce the em- of unionization that are outside his control," and ployer to restore. On the other hand, such state- not "threats of economic reprisal to be taken solely ments are not objectionable when additional com- on his own volition." NLRB v. River Togs Inc., 382 munication to the employees dispels any implication F.2d 198, 202 (2d Cir. 1967). that wages and/or benefits will be reduced during the course of bargaining and establishes that any re- I have found, infra, that Respondent's numerous references to strikes duction in wages or benefits will occur only as a and strike replacements in its letters and speeches do not, in themselves constitute a violation of Sec. 8(aXI) of the Act. s" South Hills Health System, 240 NLRB 69 (1979); Buckeye Tempo " I consider "bargaining from scratch" and "start from ground zero" Gamble-Skogmo. Inc., 240 NLRB 723 (1979); TRW-.United Greenfeld Di- to be synonymous. vision, 245 NLRB 1135 (1979). PROGRESSIVE SUPERMARKETS, INC. 535 where he informed her of what he meant by saying that result of the normal give and take of collective bar- the employees' benefits would be frozen, which, to her, gaining. meant that she was losing them; that yes, she could say that she would be losing them; that they would have to Gold's statements to the employees herein regarding renegotiate for those benefits-some they may get back negotiations went beyond the permissible limits. Prior to and some they may not. these speeches Cimini, in his speech, informed the em- There have been numerous cases recently on the legal- ployees that Respondent would do whatever it had to do ity of statements such as Gold's "ground zero" state- in order to keep the Union out. In addition to Gold's ments herein. The question is whether, under Section statements regarding negotiations starting from "ground 8(c) of the Act, they are lawful statements explaining to zero" he informed the employees that if he had to nego- the employees the mechanics of bargaining or are unlaw- tiate with the Union, the employees' benefits would be ful threats of withdrawal of benefits should the employ- frozen, and that their dental benefits would be frozen ees choose the Union as their collective-bargaining repre- and they would have to pay for any dental expenses on sentative. In Coach and Equipment Sales Corp., 228 their own. He also informed the employees that their NLRB 440 (1977), the Board stated: wages would be frozen until the matter was settled. This, together with his above-mentioned statement to Plant "Bargaining from scratch" 16 is a dangerous and Respondent's numerous comments to the employees phrase which carries within it the seed of a threat in its letters and speeches about strikes and strike re- the employer will become punitively intransigent in placements" and the other 8(aXl) and (3) violations dis- the event the union wins the election. The Board cussed and found, infra, convince me that Gold's refer- has held that such "hard bargaining" statements ences to negotiations beginning from "ground zero" may or may not be coercive, depending on the con- were more than simply an explanation of the processes of text in which they are uttered. Thus, where a bar- collective bargaining; rather they were threats to take gaining-from-scratch statement can reasonably be action detrimental to the employees should they choose read in context as a threat by the employer to uni- to be represented by the Union, and thereby violated laterally discontinue existing benefits prior to nego- Section 8(a)l) of the Act." I would likewise find that tiations, or to adopt a regressive bargaining posture Gold's statements regarding the employees' wages and designed to force a reduction of existing benefits for benefits being frozen were unlawful threats within the the purpose of penalizing the employees for choos- meaning of Section 8(aXI). ing collective representation, the Board will find a Additionally, I find that Gold's statements in his violation. Where, on the other hand, the clearly ar- speeches that anyone who incurred bills using Respond- ticulated thrust of the bargaining-from-scratch state- ent's dental plan would have to pay these bills on their ment is that the mere designation of a union will own because these benefits would be frozen, and that not automatically secure increases in wages and there was a possibility that if the Union won the election benefits, and that all such items are subject to bar- a timeclock could be installed both violate Section gaining, no violation will be found. A close question 8(a)(1) of the Act. Both statements were made in the sometimes exists whether bargaining-from-scratch context that all benefits would have to be renegotiated, statements constitute a threat of economic reprisal would be frozen, and would start at ground zero, if the or instead constitute an attempt to portray the possi- Union won the election and Respondent had to negotiate ble pitfalls for employees of the collective-bargain- with the Union. As stated in N.LR.B. v. Gissel Packing ing process. The presence of contemporaneous Coa, Inc, 395 U.S. 575, 618 (1969): threats or unfair labor practices is often a critical factor in determining whether there is a threatening If there is any implication that an employer may or color to the employer's remarks,.may not take action solely on his own initiative for In Plastronics, Inc., 233 NLRB 155 (1979), the Board reasons unrelated to economic necessities and stated that statements which indicate that collective bar- known only to him, the statement is no longer a gaining "begins from scratch" or "starts at zero:" reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and ... are objectionable when, in context, they effec- coercion, and as such without the protection of the tively threaten employees with the loss of existing First Amendment. . . . [As] stated elsewhere, an benefits and leave them with the impression that employer is free only to tell "what he reasonably what they may ultimately receive depends in large believes will be the likely economic consequences measure upon what the Union can induce the em- of unionization that are outside his control," and ployer to restore. On the other hand, such state- not "threats of economic reprisal to be taken solely ments are not objectionable when additional com- on his own volition." NLRB v. River Togs, Inc., 382 munication to the employees dispels any implication F.2d 198, 202 (2d Cir. 1967). that wages and/or benefits will be reduced during the course of bargaining and establishes that any re- " I have found, infra, that Respondent's numerous references to strikes duction in wages or benefits will occur only as a an d strike replacements in its letters and speeches do not, in themselves constitute a violation of Sec. 8(aXI) of the Act. -" South Hills Health System, 240 NLRB 69 (1979); Buckeye Tempo " I consider "bargaining from scratch" and "start from ground zero" Gamble-Skoimo. Inc., 240 NLRB 723 (1979); TRW-LUnited Gmnfield Di- to be synonymous. vision, 245 NLRB 1135 (1979). PROGRESSIVE SUPERMARKETS, INC. 535 where he informed her of what he meant by saying that result of the normal give and take of collective bar- the employees' benefits would be frozen, which, to her, gaining. meant that she was losing them; that yes, she could say that she would be losing them; that they would have to Gold's statements to the employees herein regarding renegotiate for those benefits-some they may get back negotiations went beyond the permissible limits. Prior to and some they may not. these speeches Cimini, in his speech, informed the em- There have been numerous cases recently on the legal- ployees that Respondent would do whatever it had to do ity of statements such as Gold's "ground zero" state- in order to keep the Union out. In addition to Gold's ments herein. The question is whether, under Section statements regarding negotiations starting from "ground 8(c) of the Act, they are lawful statements explaining to zero" he informed the employees that if he had to nego- the employees the mechanics of bargaining or are unlaw- tiate with the Union, the employees' benefits would be ful threats of withdrawal of benefits should the employ- frozen, and that their dental benefits would be frozen ees choose the Union as their collective-bargaining repre- and they would have to pay for any dental expenses on sentative. In Coach and Equipment Sales Corp., 228 their own. He also informed the employees that their NLRB 440 (1977), the Board stated: wages would be frozen until the matter was settled. This, together with his above-mentioned statement to Plant "Bargaining from scratch'" 6 is a dangerous and Respondent's numerous comments to the employees phrase which carries within it the seed of a threat in its letters and speeches about strikes and strike re- the employer will become punitively intransigent in placements" and the other 8(aXl) and (3) violations dis- the event the union wins the election. The Board cussed and found, infra, convince me that Gold's refer- has held that such "hard bargaining" statements ences to negotiations beginning from "ground zero" may or may not be coercive, depending on the con- were more than simply an explanation of the processes of text in which they are uttered. Thus, where a bar- collective bargaining; rather they were threats to take gaining-from-scratch statement can reasonably be action detrimental to the employees should they choose read in context as a threat by the employer to uni- to be represented by the Union, and thereby violated laterally discontinue existing benefits prior to nego- Section 8(a)l) of the Act." I would likewise find that tiations, or to adopt a regressive bargaining posture Gold's statements regarding the employees' wages and designed to force a reduction of existing benefits for benefits being frozen were unlawful threats within the the purpose of penalizing the employees for choos- meaning of Section 8(aXI). ing collective representation, the Board will find a Additionally, I find that Gold's statements in his violation. Where, on the other hand, the clearly ar- speeches that anyone who incurred bills using Respond- ticulated thrust of the bargaining-from-scratch state- ent's dental plan would have to pay these bills on their ment is that the mere designation of a union will own because these benefits would be frozen, and that not automatically secure increases in wages and there was a possibility that if the Union won the election benefits, and that all such items are subject to bar- a timeclock could be installed both violate Section gaining, no violation will be found. A close question 8(a)(1) of the Act. Both statements were made in the sometimes exists whether bargaining-from-scratch context that all benefits would have to be renegotiated, statements constitute a threat of economic reprisal would be frozen, and would start at ground zero, if the or instead constitute an attempt to portray the possi- Union won the election and Respondent had to negotiate ble pitfalls for employees of the collective-bargain- with the Union. As stated in N.LR.B. v. Gissel Packing ing process. The presence of contemporaneous Coa, Inc, 395 U.S. 575, 618 (1969): threats or unfair labor practices is often a critical factor in determining whether there is a threatening If there is any implication that an employer may or color to the employer's remarks,.may not take action solely on his own initiative for In Plastronics, Inc., 233 NLRB 155 (1979), the Board reasons unrelated to economic necessities and stated that statements which indicate that collective bar- known only to him, the statement is no longer a gaining "begins from scratch" or "starts at zero:" reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and ... are objectionable when, in context, they effec- coercion, and as such without the protection of the tively threaten employees with the loss of existing First Amendment. . . . [As] stated elsewhere, an benefits and leave them with the impression that employer is free only to tell "what he reasonably what they may ultimately receive depends in large believes will be the likely economic consequences measure upon what the Union can induce the em- of unionization that are outside his control," and ployer to restore. On the other hand, such state- not "threats of economic reprisal to be taken solely ments are not objectionable when additional com- on his own volition." NLRB v. River Togs, Inc., 382 munication to the employees dispels any implication F.2d 198, 202 (2d Cir. 1967). that wages and/or benefits will be reduced during the course of bargaining and establishes that any re- " I have found, infra, that Respondent's numerous references to strikes duction in wages or benefits will occur only as a an d strike replacements in its letters and speeches do not, in themselves constitute a violation of Sec. 8(aXI) of the Act. -" South Hills Health System, 240 NLRB 69 (1979); Buckeye Tempo " I consider "bargaining from scratch" and "start from ground zero" Gamble-Skoimo. Inc., 240 NLRB 723 (1979); TRW-LUnited Gmnfield Di- to be synonymous. vision, 245 NLRB 1135 (1979). PROGRESSIVE SUPERMARKETS, INC. 535 where he informed her of what he meant by saying that result of the normal give and take of collective bar- the employees' benefits would be frozen, which, to her, gaining. meant that she was losing them; that yes, she could say that she would be losing them; that they would have to Gold's statements to the employees herein regarding renegotiate for those benefits-some they may get back negotiations went beyond the permissible limits. Prior to and some they may not. these speeches Cimini, in his speech, informed the em- There have been numerous cases recently on the legal- ployees that Respondent would do whatever it had to do ity of statements such as Gold's "ground zero" state- in order to keep the Union out. In addition to Gold's ments herein. The question is whether, under Section statements regarding negotiations starting from "ground 8(c) of the Act, they are lawful statements explaining to zero" he informed the employees that if he had to nego- the employees the mechanics of bargaining or are unlaw- tiate with the Union, the employees' benefits would be ful threats of withdrawal of benefits should the employ- frozen, and that their dental benefits would be frozen ees choose the Union as their collective-bargaining repre- and they would have to pay for any dental expenses on sentative. In Coach and Equipment Sales Corp., 228 their own. He also informed the employees that their NLRB 440 (1977), the Board stated: wages would be frozen until the matter was settled. This, together with his above-mentioned statement to Plant "Bargaining from scratch'" 6 is a dangerous and Respondent's numerous comments to the employees phrase which carries within it the seed of a threat in its letters and speeches about strikes and strike re- the employer will become punitively intransigent in placements" and the other 8(aXl) and (3) violations dis- the event the union wins the election. The Board cussed and found, infra, convince me that Gold's refer- has held that such "hard bargaining" statements ences to negotiations beginning from "ground zero" may or may not be coercive, depending on the con- were more than simply an explanation of the processes of text in which they are uttered. Thus, where a bar- collective bargaining; rather they were threats to take gaining-from-scratch statement can reasonably be action detrimental to the employees should they choose read in context as a threat by the employer to uni- to be represented by the Union, and thereby violated laterally discontinue existing benefits prior to nego- Section 8(aXl) of the Act." I would likewise find that tiations, or to adopt a regressive bargaining posture Gold's statements regarding the employees' wages and designed to force a reduction of existing benefits for benefits being frozen were unlawful threats within the the purpose of penalizing the employees for choos- meaning of Section 8(aXI). ing collective representation, the Board will find a Additionally, I find that Gold's statements in his violation. Where, on the other hand, the clearly ar- speeches that anyone who incurred bills using Respond- ticulated thrust of the bargaining-from-scratch state- ent's dental plan would have to pay these bills on their ment is that the mere designation of a union will own because these benefits would be frozen, and that not automatically secure increases in wages and there was a possibility that if the Union won the election benefits, and that all such items are subject to bar- a timeclock could be installed both violate Section gaining, no violation will be found. A close question 8(a)(1) of the Act. Both statements were made in the sometimes exists whether bargaining-from-scratch context that all benefits would have to be renegotiated, statements constitute a threat of economic reprisal would be frozen, and would start at ground zero, if the or instead constitute an attempt to portray the possi- Union won the election and Respondent had to negotiate ble pitfalls for employees of the collective-bargain- with the Union. As stated in N.LR.B. v. Gissel Packing ing process. The presence of contemporaneous Coa, Inc, 395 U.S. 575, 618 (1969): threats or unfair labor practices is often a critical factor in determining whether there is a threatening If there is any implication that an employer may or color to the employer's remarks,.may not take action solely on his own initiative for In Plastronics, Inc., 233 NLRB 155 (1979), the Board reasons unrelated to economic necessities and stated that statements which indicate that collective bar- known only to him, the statement is no longer a gaining "begins from scratch" or "starts at zero:" reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and ... are objectionable when, in context, they effec- coercion, and as such without the protection of the tively threaten employees with the loss of existing First Amendment. . . . [As] stated elsewhere, an benefits and leave them with the impression that employer is free only to tell "what he reasonably what they may ultimately receive depends in large believes will be the likely economic consequences measure upon what the Union can induce the em- of unionization that are outside his control," and ployer to restore. On the other hand, such state- not "threats of economic reprisal to be taken solely ments are not objectionable when additional com- on his own volition." NLRB v. River Togs, Inc., 382 munication to the employees dispels any implication F.2d 198, 202 (2d Cir. 1967). that wages and/or benefits will be reduced during the course of bargaining and establishes that any re- " I have found, infra, that Respondent's numerous references to strikes duction in wages or benefits will occur only as a an d strike replacements in its letters and speeches do not, in themselves constitute a violation of Sec. 8(aXI) of the Act. -" South Hills Health System, 240 NLRB 69 (1979); Buckeye Tempo " I consider "bargaining from scratch" and "start from ground zero" Gamble-Skoimo. Inc., 240 NLRB 723 (1979); TRW-LUnited Gmnfield Di- to be synonymous. vision, 245 NLRB 1135 (1979). 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That is the situation herein; it was the threat to take plicitly promising to correct those inequities it dis- action solely on its own initiative should the employees covers as a result of its inquiries. Thus, the Board choose the Union as their collective-bargaining repre- has found unlawful interference with employee sentative in the upcoming election. It was not a predic- rights by an employer's solicitation of grievances tion ". . . carefully phrased on the basis of objective fact during an organizational campaign although the em- to convey an employer's belief as to demonstrably prob- ployer merely stated it would look into or review able consequences beyond his control .... " Gissel, the problem but did not commit itself to specific supra. Both statements therefore violate Section 8(a)(l) corrective action; the Board reasoned that employ- of the Act. ees would tend to anticipate improved conditions of Although I have found, supra, that Gold's references employment which might make union representa- to negotiations starting from "ground zero" violate Sec- tion unnecessary. However, it is not the solicitation tion 8(a)(1) of the Act, I would find that Respondent's of grievances itself that is coercive and violative of statements about strikes and strike replacements in its let- Section 8(a)(l), but the promise to correct griev- ters and speeches do not violate Section 8(a)(l) of the ances or a concurrent interrogation or polling about Act. All Respondent's letters, except the last, and both of union sympathies that is unlawful; the solicitation of Gold's speeches clearly refer to Respondent's right to grievances merely raises an inference that the em- hire permanent replacements for employees who engage ployer is making such a promise, which inference is in a strike. But this is not a situation where Respondent rebuttable by the employer. informed its employees that it would not bargain with the Union or would never sign a contract with the In Uarco, supra, the Board found no violation because Union. Gold informed the employees that if the Union the employer rebutted the inference by repeatedly in- won the election he would have to negotiate in good forming the employees that it could make no promises faith with the Union. Although he did say he would be regarding the grievances raised.22 Additionally, the tough, he said that he would negotiate.' Additionally, Board found the record devoid of any showing of union he never foreclosed the possibility of reaching an agree- animus or concurrent unfair labor practices on the part ment with the Union; he referred to the possibility of the of the employer. Union calling a strike.2 Further, Respondent's reference In Merle Lindsey Chevrolet, Inc., 231 NLRB 478 (1977), to the fact that economic strikers can be permanently re- the employer, a few days after the Union began its orga- placed is a correct description of the law. Although the nization drive, informed his employees that he "wanted speeches and letters repeated this message on numerous to find out what kind of problems they were having" occasions during the preelection period, I would find and that he "would talk to them concerning such prob- that these statements are lawful under Section 8(c) of the lems." The Board, quoting the above-mentioned lan- Act and therefore do not violate Section 8(a)(1) of the guage from Uarco, supra, found a violation of Section Act. 8(a)(l), stating: "In the instant case, there is no evidence As regards Gold's individual meetings with the em- that Respondent made any statement or took any action ployees, I would find his questioning of Evers-"tell me to establish that it was not promising to remedy griev- now, what's going on? What's happened? Why did you ances and we therefore find that Respondent did not go to the Union?"-to be interrogation in violation of meet its burden of rebutting the inference." Section 8(a)(1) of the Act. There could have been no In the situation herein Gold asked Evers what the lawful purpose to the inquiry with the election only 6 problems were and after she informed him of them he days away, Evers was given no assurances aglainst repr said that it did not seem like a big problem and that they sals, there was as is true with all interrogation of this could easily be taken care of he then suggested the sort, a lack of anonymity, and Respondent engaged in monthly meetings to discuss the office problems (without numerero ohr unfair labor practices during this making any "no promises" statement.) This was clearly period.211 an implied promise to correct the employees' grievances I would also find that Gold by his statement to Evers n the future in exchange or the defeat of the Union, a on January 4, "maybe we can have a meeting once a v o S 1 month and discuss the problems of the office" impliedly A r egar Gold individal meeting it lant promised to correct grievances in the future if the Union Asregards Gold's individual meetigs with Plant, I ere deeted i te coming election, in violation of would find that his statements to her regarding benefits were defeated io the upcoming electi violstarting from ground zero and being renegotiated if the Section 8(a)(1ro ) of the Act.216 NLRB 1 Union won the election, together with his statement that stated: she would be losing some benefits-some she may get back and some she may not-violate Section 8(a)(l) of the solicitation of grievances at preelection meetings the Act for the reasons stated, supra. During the individ- carries with it an inference that an employer is im- ual meeting with Plant on January 9, Gold also asked her why she thought the Union had gotten involved in " The Tappan Company, 228 NLRB 1389 (1977). Respondent's office. Although this interrogation did not " Richard Tischler, et al. d/b/a Devon Gables Nursing Home, 237 NLRB 775 (1978). 22 See also Tiffin Division of Hayes-Albion Corporation, 237 NLRB 20 " Struksnes Construction Co., Inc., 165 NLRB 1062 (1967); Solboro (1978), where the Board found no violation in the employer's soliciting Knitting Millsk Inc., 227 NLRB 738 (1977), enfd. as modified 572 F.2d 936 grievances and questions at meetings with employees, since the employer (2d Cir. 1978); Bourne Ca v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964). took a no "promises" position at these meetings. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That is the situation herein; it was the threat to take plicitly promising to correct those inequities it dis- action solely on its own initiative should the employees covers as a result of its inquiries. Thus, the Board choose the Union as their collective-bargaining repre- has found unlawful interference with employee sentative in the upcoming election. It was not a predic- rights by an employer's solicitation of grievances tion ". . . carefully phrased on the basis of objective fact during an organizational campaign although the em- to convey an employer's belief as to demonstrably prob- ployer merely stated it would look into or review able consequences beyond his control . . . ." Gissel, the problem but did not commit itself to specific supra. Both statements therefore violate Section 8(a)(l) corrective action; the Board reasoned that employ- of the Act. ees would tend to anticipate improved conditions of Although I have found, supra, that Gold's references employment which might make union representa- to negotiations starting from "ground zero" violate Sec- tion unnecessary. However, it is not the solicitation tion 8(a)(l) of the Act, I would find that Respondent's of grievances itself that is coercive and violative of statements about strikes and strike replacements in its let- Section 8(a)(l), but the promise to correct griev- ters and speeches do not violate Section 8(a)(l) of the ances or a concurrent interrogation or polling about Act. All Respondent's letters, except the last, and both of union sympathies that is unlawful; the solicitation of Gold's speeches clearly refer to Respondent's right to grievances merely raises an inference that the em- hire permanent replacements for employees who engage ployer is making such a promise, which inference is in a strike. But this is not a situation where Respondent rebuttable by the employer. informed its employees that it would not bargain with the Union or would never sign a contract with the In Uarco, supra, the Board found no violation because Union. Gold informed the employees that if the Union the employer rebutted the inference by repeatedly in- won the election he would have to negotiate in good forming the employees that it could make no promises faith with the Union. Although he did say he would be regarding the grievances raised." Additionally, the tough, he said that he would negotiate. 1 Additionally, Board found the record devoid of any showing of union he never foreclosed the possibility of reaching an agree- animus or concurrent unfair labor practices on the part ment with the Union; he referred to the possibility of the of the employer. Union calling a strike.' Further, Respondent's reference In Merle Lindsey Chevrolet, Inc., 231 NLRB 478 (1977), to the fact that economic strikers can be permanently re- the employer, a few days after the Union began its orga- placed is a correct description of the law. Although the nization drive, informed his employees that he "wanted speeches and letters repeated this message on numerous to find out what kind of problems they were having" occasions during the preelection period, I would find and that he "would talk to them concerning such prob- that these statements are lawful under Section 8(c) of the lems." The Board, quoting the above-mentioned lan- Act and therefore do not violate Section 8(a)(l) of the guage from Uarco, supra, found a violation of Section Act. 8(a)(l), stating: "In the instant case, there is no evidence As regards Gold's individual meetings with the em- that Respondent made any statement or took any action ployees, I would find his questioning of Evers-"tell me to establish that it was not promising to remedy griev- now, what's going on? What's happened? Why did you ances and we therefore find that Respondent did not go to the Union?"-to be interrogation in violation of meet its burden of rebutting the inference." Section 8(a)(l) of the Act. There could have been no I e situation herein, Gold asked Evers what the lawful purpose to the inquiry with the election only 6 problems were, and after she informed him of them he days away, Evers was given no assurances against repri- that it did not seem like a big problem and that they sals, there was, as is true with all interrogation of this c e b t ce t suggested the sort, a lack of anonymity, and Respondent engaged in m t m to dsu t o numero hr unfair labor practices during this aking any "no promises" statement.) This was clearly period. 11 ~~~~~~~~~an implied promise to correct the employees' grievances I would also find that Gold by his statement to Evers i n the f tu ieh e for the eatloyee Uniova on January 4, "maybe we can have a meeting once a v o month and discuss the problems of the office" impliedly v A o e a rds of in m(a)(lg of Plantt. promised to correct grievances in the future if the Union wA s f r eg a r d s G o l d s n d iv id ua ltheetmgs with Plant, I were defeated in the upcoming election, in violation of w o u l d f rm d th a t hs statements to her regarding benefits Section 8(a)(l) of the Act. starting from ground zero and being renegotiated if the In Uarco. Incorporated, 216 NLRB 1 (1974), the Board U n i o n w o n th e ele c t i o n ' together with his statement that stated: she would be losing some benefits-some she may get back and some she may not-violate Section 8(a)(l) of the solicitation of grievances at preelection meetings t h e Act for the reasons stated, supra. During the individ- carries with it an inference that an employer is im- u a l meeting with Plant on January 9, Gold also asked her why she thought the Union had gotten involved in " The Tappan Company, 228 NLRB 1389 (1977). Respondent's office. Although this interrogation did not » Richard Tischler, et at. d/b/a Devon Gables Nursing Home, 237 NLRB 775 (1978). " See also Tiffin Division of Hayes-Albion Corporation, 237 NLRB 20 " Struksnes Construction Co., Inc., 165 NLRB 1062 (1967); Solboro (1978), where the Board found no violation in the employer's soliciting Knitting Mills, Inc., 227 NLRB 738 (1977), enfd. as modified 572 F.2d 936 grievances and questions at meetings with employees, since the employer (2d Cir. 1978); Bourne Ca v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964). took a no "promises" position at these meetings. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That is the situation herein; it was the threat to take plicitly promising to correct those inequities it dis- action solely on its own initiative should the employees covers as a result of its inquiries. Thus, the Board choose the Union as their collective-bargaining repre- has found unlawful interference with employee sentative in the upcoming election. It was not a predic- rights by an employer's solicitation of grievances tion ". . . carefully phrased on the basis of objective fact during an organizational campaign although the em- to convey an employer's belief as to demonstrably prob- ployer merely stated it would look into or review able consequences beyond his control . . . ." Gissel, the problem but did not commit itself to specific supra. Both statements therefore violate Section 8(a)(l) corrective action; the Board reasoned that employ- of the Act. ees would tend to anticipate improved conditions of Although I have found, supra, that Gold's references employment which might make union representa- to negotiations starting from "ground zero" violate Sec- tion unnecessary. However, it is not the solicitation tion 8(a)(l) of the Act, I would find that Respondent's of grievances itself that is coercive and violative of statements about strikes and strike replacements in its let- Section 8(a)(l), but the promise to correct griev- ters and speeches do not violate Section 8(a)(l) of the ances or a concurrent interrogation or polling about Act. All Respondent's letters, except the last, and both of union sympathies that is unlawful; the solicitation of Gold's speeches clearly refer to Respondent's right to grievances merely raises an inference that the em- hire permanent replacements for employees who engage ployer is making such a promise, which inference is in a strike. But this is not a situation where Respondent rebuttable by the employer. informed its employees that it would not bargain with the Union or would never sign a contract with the In Uarco, supra, the Board found no violation because Union. Gold informed the employees that if the Union the employer rebutted the inference by repeatedly in- won the election he would have to negotiate in good forming the employees that it could make no promises faith with the Union. Although he did say he would be regarding the grievances raised." Additionally, the tough, he said that he would negotiate.' Additionally, Board found the record devoid of any showing of union he never foreclosed the possibility of reaching an agree- animus or concurrent unfair labor practices on the part ment with the Union; he referred to the possibility of the of the employer. Union calling a strike.' Further, Respondent's reference In Merle Lindsey Chevrolet, Inc., 231 NLRB 478 (1977), to the fact that economic strikers can be permanently re- the employer, a few days after the Union began its orga- placed is a correct description of the law. Although the nization drive, informed his employees that he "wanted speeches and letters repeated this message on numerous to find out what kind of problems they were having" occasions during the preelection period, I would find and that he "would talk to them concerning such prob- that these statements are lawful under Section 8(c) of the lems." The Board, quoting the above-mentioned lan- Act and therefore do not violate Section 8(a)(l) of the guage from Uarco, supra, found a violation of Section Act. 8(a)(l), stating: "In the instant case, there is no evidence As regards Gold's individual meetings with the em- that Respondent made any statement or took any action ployees, I would find his questioning of Evers-"tell me to establish that it was not promising to remedy griev- now, what's going on? What's happened? Why did you ances and we therefore find that Respondent did not go to the Union?"-to be interrogation in violation of meet its burden of rebutting the inference." Section 8(a)(l) of the Act. There could have been no I e situation herein, Gold asked Evers what the lawful purpose to the inquiry with the election only 6 problems were, and after she informed him of them he days away, Evers was given no assurances against repri- that it did not seem like a big problem and that they sals, there was, as is true with all interrogation of this c e b t ce t suggested the sort, a lack of anonymity, and Respondent engaged in m t m to dsu t o numero hr unfair labor practices during this aking any "no promises" statement.) This was clearly period. 11 ~~~~~~~~~an implied promise to correct the employees' grievances I would also find that Gold by his statement to Evers i n the f tu ieh e for the eatloyee Uniova on January 4, "maybe we can have a meeting once a v o month and discuss the problems of the office" impliedly v A o e a rds of in m(a)(lg of Plantt. promised to correct grievances in the future if the Union wA s f r eg a r d s G o l d s n d iv id ua ltheetmgs with Plant, I were defeated in the upcoming election, in violation of w o u l d f rm d th a t hs statements to her regarding benefits Section 8(a)(l) of the Act. starting from ground zero and being renegotiated if the In Uarco. Incorporated, 216 NLRB 1 (1974), the Board U n i o n w o n th e ele c t i o n ' together with his statement that stated: she would be losing some benefits-some she may get back and some she may not-violate Section 8(a)(l) of the solicitation of grievances at preelection meetings t h e Act for the reasons stated, supra. During the individ- carries with it an inference that an employer is im- u a l meeting with Plant on January 9, Gold also asked her why she thought the Union had gotten involved in " The Tappan Company, 228 NLRB 1389 (1977). Respondent's office. Although this interrogation did not » Richard Tischler, et at. d/b/a Devon Gables Nursing Home, 237 NLRB 775 (1978). " See also Tiffin Division of Hayes-Albion Corporation, 237 NLRB 20 " Struksnes Construction Co., Inc., 165 NLRB 1062 (1967); Solboro (1978), where the Board found no violation in the employer's soliciting Knitting Mills, Inc., 227 NLRB 738 (1977), enfd. as modified 572 F.2d 936 grievances and questions at meetings with employees, since the employer (2d Cir. 1978); Bourne Ca v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964). took a no "promises" position at these meetings. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That is the situation herein; it was the threat to take plicitly promising to correct those inequities it dis- action solely on its own initiative should the employees covers as a result of its inquiries. Thus, the Board choose the Union as their collective-bargaining repre- has found unlawful interference with employee sentative in the upcoming election. It was not a predic- rights by an employer's solicitation of grievances tion ". . . carefully phrased on the basis of objective fact during an organizational campaign although the em- to convey an employer's belief as to demonstrably prob- ployer merely stated it would look into or review able consequences beyond his control . . . ." Gissel, the problem but did not commit itself to specific supra. Both statements therefore violate Section 8(a)(l) corrective action; the Board reasoned that employ- of the Act. ees would tend to anticipate improved conditions of Although I have found, supra, that Gold's references employment which might make union representa- to negotiations starting from "ground zero" violate Sec- tion unnecessary. However, it is not the solicitation tion 8(a)(l) of the Act, I would find that Respondent's of grievances itself that is coercive and violative of statements about strikes and strike replacements in its let- Section 8(a)(l), but the promise to correct griev- ters and speeches do not violate Section 8(a)(l) of the ances or a concurrent interrogation or polling about Act. All Respondent's letters, except the last, and both of union sympathies that is unlawful; the solicitation of Gold's speeches clearly refer to Respondent's right to grievances merely raises an inference that the em- hire permanent replacements for employees who engage ployer is making such a promise, which inference is in a strike. But this is not a situation where Respondent rebuttable by the employer. informed its employees that it would not bargain with the Union or would never sign a contract with the In Uarco, supra, the Board found no violation because Union. Gold informed the employees that if the Union the employer rebutted the inference by repeatedly in- won the election he would have to negotiate in good forming the employees that it could make no promises faith with the Union. Although he did say he would be regarding the grievances raised." Additionally, the tough, he said that he would negotiate. 1 Additionally, Board found the record devoid of any showing of union he never foreclosed the possibility of reaching an agree- animus or concurrent unfair labor practices on the part ment with the Union; he referred to the possibility of the of the employer. Union calling a strike.' Further, Respondent's reference In Merle Lindsey Chevrolet, Inc., 231 NLRB 478 (1977), to the fact that economic strikers can be permanently re- the employer, a few days after the Union began its orga- placed is a correct description of the law. Although the nization drive, informed his employees that he "wanted speeches and letters repeated this message on numerous to find out what kind of problems they were having" occasions during the preelection period, I would find and that he "would talk to them concerning such prob- that these statements are lawful under Section 8(c) of the lems." The Board, quoting the above-mentioned lan- Act and therefore do not violate Section 8(a)(l) of the guage from Uarco, supra, found a violation of Section Act. 8(a)(l), stating: "In the instant case, there is no evidence As regards Gold's individual meetings with the em- that Respondent made any statement or took any action ployees, I would find his questioning of Evers-"tell me to establish that it was not promising to remedy griev- now, what's going on? What's happened? Why did you ances and we therefore find that Respondent did not go to the Union?"-to be interrogation in violation of meet its burden of rebutting the inference." Section 8(a)(l) of the Act. There could have been no I e situation herein, Gold asked Evers what the lawful purpose to the inquiry with the election only 6 problems were, and after she informed him of them he days away, Evers was given no assurances against repri- that it did not seem like a big problem and that they sals, there was, as is true with all interrogation of this c e b t ce t suggested the sort, a lack of anonymity, and Respondent engaged in m t m to dsu t o numero hr unfair labor practices during this aking any "no promises" statement.) This was clearly period. 11 ~~~~~~~~~an implied promise to correct the employees' grievances I would also find that Gold by his statement to Evers i n the f tu ieh e for the eatloyee Uniova on January 4, "maybe we can have a meeting once a v o month and discuss the problems of the office" impliedly v A o e a rds of in m(a)(lg of Plantt. promised to correct grievances in the future if the Union wA s f r eg a r d s G o l d s n d iv id ua ltheetmgs with Plant, I were defeated in the upcoming election, in violation of w o u l d f rm d th a t hs statements to her regarding benefits Section 8(a)(l) of the Act. starting from ground zero and being renegotiated if the In Uarco. Incorporated, 216 NLRB 1 (1974), the Board U n i o n w o n th e ele c t i o n ' together with his statement that stated: she would be losing some benefits-some she may get back and some she may not-violate Section 8(a)(l) of the solicitation of grievances at preelection meetings t h e Act for the reasons stated, supra. During the individ- carries with it an inference that an employer is im- u a l meeting with Plant on January 9, Gold also asked her why she thought the Union had gotten involved in " The Tappan Company, 228 NLRB 1389 (1977). Respondent's office. Although this interrogation did not » Richard Tischler, et at. d/b/a Devon Gables Nursing Home, 237 NLRB 775 (1978). " See also Tiffin Division of Hayes-Albion Corporation, 237 NLRB 20 " Struksnes Construction Co., Inc., 165 NLRB 1062 (1967); Solboro (1978), where the Board found no violation in the employer's soliciting Knitting Mills, Inc., 227 NLRB 738 (1977), enfd. as modified 572 F.2d 936 grievances and questions at meetings with employees, since the employer (2d Cir. 1978); Bourne Ca v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964). took a no "promises" position at these meetings. PROGRESSIVE SUPERMARKETS, INC. 537 directly question Plant's union sympathies, I would find have a new expanded lounge (and correspondingly a that it violated Section 8(aX1) of the Act as the question split lunch system) and this was decided prior to the served no valid purpose with the election only I day Union's appearance in November. I would therefore dis- away and took place in the context of other unlawful miss this 8(aXl) allegation. statements made by Gold to Plant.3 I would likewise dismiss the allegation that Respond- I find that Gold's statements to Piper came within the ent violated Section 8(aXl) of the Act by withholding its protection of Section 8(c) of the Act. annual wage increases from January to February and the Gold's statement to Gerard on January 9 regarding allegation that it violated Section 8(aXl) of the Act by benefits starting from ground zero is a violation of Sec- granting a wage increase in Feburary that was signifi- tion 8(aXl) for the reasons stated, supra. In addition, his cantly greater than those granted in the past. As regards statement to Gerard that if the Union lost the election he the first allegation, Respondent was clearly in a bind; the would try to hold meetings once a month to go over the records establish that Respondent generally granted problems the employees were having and see if he could wage increases to its employees, at least, in January of work something out is an implied promise to correct the each year. Presumably because of the election conducted employees' grievances in the future if the Union lost the on January 10, Respondent delayed granting its usual election, in violation of Section 8(aXl) of the Act, Uarco, wage increase to the employees at that time. In fact, Re- supra. On the next morning (the day of the election) spondent may well have placed itself in a precarious Gerard was again called in to speak to Gold and he re- legal situation if it had granted the increase in the first 10 minded her that she was still employed in her trial days of January (why could not it wait until after the period and he hoped that she would still be there when election?) or if it had granted the increase during the last the trial period was over. It requires no case citation to 20 days of January (why could not it wait until the Re- find (as I do) that an employer violates Section 8(a)(l) of gional Office issued a determination on the Union's ob- the Act when he makes such a statement which could jections to the election?) I would therefore find that Re- have no other purpose than to serve as a threat to the spondent's action in withholding the regular wage in- employee. crease for a 1-month period did not violate Section I find that the General Counsel has not sustained his 8(a)(1) of the Act 24 burden of establishing that Respondent instituted the split Whether the amount of the increase given to the em- lunch program and established the lounge for the em- ployees in February, retroactive to January, violates the ployees in the new office in answer to the Union's orga- Act is a more difficult issue. All employees were granted nizational drive. Although I did not credit Cimini's testi- w inre . r r i mony regarding Medaska's termination, I would credit te Janay wee wage ireaores ranted t tha his testimony regarding the split lunch program and the em ye raned r 15, and that the weekly new lounge; his testimony on these matters was clear and wage ines ranged from $ to and that the e eekly concise, believable, and generally supported by the testi- in Jly 19 varied from 15 to 2 In aditions in 1 mony of other witnesses. It appeared to me that, on this fou r employees received $20 incrn adtheir weekly subject, Cimini, knowing that he was testifying truthful- four employees eceied $20 increases in their weekly ly, was open and direct in his testimony. wages at one point in the year. This establishes that in ly, was open and direct in his testimony. the past Respondent had occasionally granted $20 wage It is reasonable to assume that a change in Respond- the as espondent had occasionally granted $20 wage increases to its employees; however, Respondent never ent's "telephone day" system required a separate lounge adequately explained why it granted all employees where the other employees could have their lunch with- aeq ely expained why it granted all employees 2 out disturbing the employees who were answering the weekly wagerit increases where it s employees. Cimini's had granteti- telephones. The evidence herein establishes that prior to varyg met ".creases to its employees. Cimish testi- mony that "... we didn't have a chance for the re- September Respondent had no such place available to it, doe not rn tre f anthn e .although Respondent had been receiving numerous com- views" does not ring true; if anything, Respondent had although Respondent had been receiving numerous corm an additional month in which to evaluate the work of its plaints from its employees regarding "telephone day." employe in order to determine the amount of increase The parties stipulated that Respondent acquired new to grant each of them. However, as the amount of the office space across the hall from its existing office long increase granted in February 1980 was not greatly in before the Union's appearance in November. The testi- excess of the increase granted in 1979, with the increas- mony also establishes that prior to the Union's appear- excess of the increases granted in 979, with the mcreas- mony also establish i that pinor to the Union's appear- ing rate of inflation during this period, and the arithmetic ance in November Cimini informed the employees that fact that a higher rate of salary requires a larger actual Respondent had acquired this space and that Respondent increase to maintain the same percentage rate of increase would establish a lounge for the employees either in the in th m e p e r al ounel a not et i uren new office space or that desks and machinery would be fnd that the General ounsel hasno eh placed in the new office space and an expanded lounge herein; and I will therefore dismiss this 8(aXl) allegation. would be established in the existing office space. As Re- In Wright Line, a Division of Wright Line, Inc, 251 would be established in the existing office space. As Re- NLRB 1083, (1980), the Board set forth the rule it will spondent had therefore decided to create a lounge for its NLRB 1083, (980), the Board set forth the rule it will employees prior to the appearance of the Union, I find it henceforth apply in dual motive or pretextual cases such unnecessary to make a determination as to when Re- as the instant matter: "First, we shall require that the spondent made its final decision as to which location the In making this determination, I am cognizant of the fact that Gold, lounge would be at; either way the employees would in his second speech, stated that the employees' wages would be frozen until the matter was settled and that I have found that statement, in the Baker Manufacturing Co., Inc.. 218 NLRB 1295 (1975). context in which it was made, violated Sec. 8(aXi) of the Act. PROGRESSIVE SUPERMARKETS, INC. 537 directly question Plant's union sympathies, I would find have a new expanded lounge (and correspondingly a that it violated Section 8(aXl) of the Act as the question split lunch system) and this was decided prior to the served no valid purpose with the election only 1 day Union's appearance in November. I would therefore dis- away and took place in the context of other unlawful miss this 8(aX1) allegation. statements made by Gold to Plant."2I would likewise dismiss the allegation that Respond- I find that Gold's statements to Piper came within the ent violated Section 8(aXO) of the Act by withholding its protection of Section 8(c) of the Act. annual wage increases from January to February and the Gold's statement to Gerard on January 9 regarding allegation that it violated Section 8(aX1) of the Act by benefits starting from ground zero is a violation of Sec- granting a wage increase in Feburary that was signifi- tion 8(aXl) for the reasons stated, supra. In addition, his cantly greater than those granted in the past. As regards statement to Gerard that if the Union lost the election he the first allegation, Respondent was clearly in a bind; the would try to hold meetings once a month to go over the records establish that Respondent generally granted problems the employees were having and see if he could wage increases to its employees, at least, in January of work something out is an implied promise to correct the each year. Presumably because of the election conducted employees' grievances in the future if the Union lost the on January 10, Respondent delayed granting its usual election, in violation of Section 8(aX1) of the Act, Uarco, wage increase to the employees at that time. In fact, Re- supra. On the next morning (the day of the election) spondent may well have placed itself in a precarious Gerard was again called in to speak to Gold and he re- legal situation if it had granted the increase in the first 10 minded her that she was still employed in her trial days of January (why could not it wait until after the period and he hoped that she would still be there when election?) or if it had granted the increase during the last the trial period was over. It requires no case citation to 20 days of January (why could not it wait until the Re- find (as I do) that an employer violates Section 8(a)(l) of gional Office issued a determination on the Union's ob- the Act when he makes such a statement which could jections to the election?) I would therefore find that Re- have no other purpose than to serve as a threat to the spondent's action in withholding the regular wage in- employee. crease for a 1-month period did not violate Section I find that the General Counsel has not sustained his 8(a)(1) of the Act. 24 burden of establishing that Respondent instituted the split Whether the amount of the increase given to the em- lunch program and established the lounge for the em- ployees in February, retroactive to January, violates the ployees in the new office in answer to the Union's orga- Act is a more difficult issue. All employees were granted nizational drive. Although I did not credit Cimini's testi- a n2 i- w ices. T r ea1 that mony regarding Medaska's termination, I would credit thJau y 1979weeky wa e r e as es t ed to t h e his testimony regarding the split lunch program and the e r a ne from T to a new lounge; his testimony on these matters was clear and wgp1 icees grantd f ro m Resp t o ne n t to its h e e yees concise, believable, and generally supported by the testi- in J ly19 a ri edfro 0 $1 t o 2 ti 1978 0 mony of other witnesses. It appeared to me that, on this f u l oyees re c $ 20 ices i n their l y subject, Cimini, knowing that he was testifying truthful- f o u r w paes a e c ew o e d p 2 0 *n c r ease s tal th e s r that y ly, was open and direct in his testimony, w a g es at o n e p0 1" 1 ln t h e y ear . T h ls establishes that in It is reasonable to assume that a change in Respond- t h e past Respondent had occasionally granted $20 wage It i resonbleto ssue tat chngein espnd- increases to its employees; however, Respondent never ent's "telephone day" system required a separate lounge ad e a te ly l an why it gowed Rempoyees ne0 where the other employees could have their lunch with- weekly apgeinced why it granted all employees $20 out disturbing the employees who were answering the v w e ek ly w ag e in c r eas es w h ereit Previously had granted telephones. The evidence herein establishes that prfor to varying menit increases to its employees. Qimimis testi- telphoes Th evdece erin stalihestha piorto mony that ". .. we didn't have a chance for the re- September Respondent had no such place available to it, views" .. e we ring t if anching espon had although Respondent had been receiving numerous con- views" does not ning true, if anything, Respondent had althugh espodenthad eenrecevingnumeous om- an additional month in which to evaluate the work of its plaints from its employees regarding "telephone day." e e in or t o de t ermin e the wmrktof in s The parties stipulated that Respondent acquired new to*gra n t o r d er m t o d et e r m ,a e t h e a m o u n t o f th c e ase office space across the hall from its existing office long t o g r an t ea c hn o f t he m d H o w ev e ir 1 as t h e a m o u n t o f t h e before the Union's appearance in November. The testi- e s tiease granted in February 1980 was not greatly in mony also establishes that prior to the Union's appear- excess of the increases granted in 1979, with the mncreas- ance in November Cimini informed the employees aper ing r at e o f inflation d u ri ng t h is pe r io d , an d th e ar it h m e t ic ancein Nvembr Cminiinfomed he mploees hat fact that a higher rate of salary requires a larger actual Respondent had acquired this space and that Respondent i a s t mai t a tsmpc a r a te o f in r e a se, would establish a lounge for the employees either in the 'T 0 T ^res to manantes m e p er c enau ge r a te o f ln c r eas e, woul esablsh longefortheempoyes ethe inthe I find that the General Counsel has not met his burden new office space or that desks and machinery would be h i nd th e d t h is 8(aXI) al e gain placed in the new office space and an expanded lounge V I w ih t h er ef o r e a d D sm v ss sosf8(aXrg alegationn would be established in the existing office space. As Re- n W r1g ht (190 a D t v h s e o n of W r tg ht L ther I n c t 2 5 w spondent had therefore decided to create a lounge for its N LR B 108 3 h (980), the Board set forth the rule it will employees prior to the appearance of the Union, I find it ahenceforth apply in dual motive or pretextual cases such unnecessary to make a determination as to when Re- as t h e ln i ta n t m at t er : F lr st, w e s h a11 "^"^ t h a t t h e spondent made its final decision as to which location the------- lounge would be at; either way the employees would /in his second speech, stated that the employees' wages would be frozen until the matter was settled and that I have found that statement, in the " Baker Manufacturing Co.. Inc., 218 NLRB 1295 (1975). context in which it was made, violated Sec. 8(aX I) of the Act. PROGRESSIVE SUPERMARKETS, INC. 537 directly question Plant's union sympathies, I would find have a new expanded lounge (and correspondingly a that it violated Section 8(aXl) of the Act as the question split lunch system) and this was decided prior to the served no valid purpose with the election only 1 day Union's appearance in November. I would therefore dis- away and took place in the context of other unlawful miss this 8(aX1) allegation. statements made by Gold to Plant."2I would likewise dismiss the allegation that Respond- I find that Gold's statements to Piper came within the ent violated Section 8(aXO) of the Act by withholding its protection of Section 8(c) of the Act. annual wage increases from January to February and the Gold's statement to Gerard on January 9 regarding allegation that it violated Section 8(aX1) of the Act by benefits starting from ground zero is a violation of Sec- granting a wage increase in Feburary that was signifi- tion 8(aXl) for the reasons stated, supra. In addition, his cantly greater than those granted in the past. As regards statement to Gerard that if the Union lost the election he the first allegation, Respondent was clearly in a bind; the would try to hold meetings once a month to go over the records establish that Respondent generally granted problems the employees were having and see if he could wage increases to its employees, at least, in January of work something out is an implied promise to correct the each year. Presumably because of the election conducted employees' grievances in the future if the Union lost the on January 10, Respondent delayed granting its usual election, in violation of Section 8(aX1) of the Act, Uarco, wage increase to the employees at that time. In fact, Re- supra. On the next morning (the day of the election) spondent may well have placed itself in a precarious Gerard was again called in to speak to Gold and he re- legal situation if it had granted the increase in the first 10 minded her that she was still employed in her trial days of January (why could not it wait until after the period and he hoped that she would still be there when election?) or if it had granted the increase during the last the trial period was over. It requires no case citation to 20 days of January (why could not it wait until the Re- find (as I do) that an employer violates Section 8(a)(l) of gional Office issued a determination on the Union's ob- the Act when he makes such a statement which could jections to the election?) I would therefore find that Re- have no other purpose than to serve as a threat to the spondent's action in withholding the regular wage in- employee. crease for a 1-month period did not violate Section I find that the General Counsel has not sustained his 8(a)(1) of the Act. 24 burden of establishing that Respondent instituted the split Whether the amount of the increase given to the em- lunch program and established the lounge for the em- ployees in February, retroactive to January, violates the ployees in the new office in answer to the Union's orga- A i a m d, employees were granted nizational drive. Although I did not credit Cimini's testi- a n2 i- w ices. T r ea1 that mony regarding Medaska's termination, I would credit teJnay 1 979 l y w a g e incr e as es t ed to t h e his testimony regarding the split lunch program and the e r a ne from T to a new lounge; his testimony on these matters was clear and wgp1 icees grantd from b10 to Rp andet to itshe weekly concise, believable, and generally supported by the testi- in J ly19 a ri edfro 0 $1 t o 2 ti 1978 0 mony of other witnesses. It appeared to me that, on this f u l oyees re c $ 20 ices i n their l y subject, Cimini, knowing that he was testifying truthful- f o u r emploes received $20 increases in their weekly ly, was open and direct in his testimony i t w a g es at o n e point in t h e y ear .T h is establishes that in It is reasonable to assume that a change in Respond- t h e past Respondent had occasionally granted $20 wage It i resonbleto ssue tat chngein espnd- increases to its employees; however, Respondent never ent's "telephone day" system required a separate lounge ad e a te ly l an why it gowed Rempoyees ne0 where the other employees could have their lunch with- wdequately explained why it granted all employees $20 out disturbing the employees who were answering the v w e ek ly w ag e in c r eas es w h ereit Previously had granted telephones. The evidence herein establishes that prfor to varying menit increases to its employees. Qimimis testi- telphoes Th evdece erin stalihestha piorto mony that ". .. we didn't have a chance for the re- September Respondent had no such place available to it, views" .. e we ring t if anching espon had although Respondent had been receiving numerous con- views" does not ning true, if anything, Respondent had althugh espodenthad eenrecevingnumeous om- an additional month in which to evaluate the work of its plaints from its employees regarding "telephone day." employees in order to evalrate the wmrktof in s The parties stipulated that Respondent acquired new to*gra n t o r d er m t o d et e r m ,a e t h e a m o u n t o f th c e ase office space across the hall from its existing office long t o g r an t ea c hn o f t he m d H o w ev e ir 1 as t h e a m o u n t o f t h e before the Union's appearance in November. The testi- e s tiease granted in February 1980 was not greatly in mony also establishes that prior to the Union's appear- excess of the increases granted in 1979, with the mncreas- ance in November Cimini informed the employees aper ing r at e o f inflation d u ri ng t h is pe r io d , an d th e ar it h m e t ic ancein Nvembr Cminiinfomed he mploees hat fact that a higher rate of salary requires a larger actual Respondent had acquired this space and that Respondent i a s t mai t a tsmpc a r a te o f in r e a se, would establish a lounge for the employees either in the '^ 0 inT "as to manante m e p er c enau ge r a te, o f ln c r eas e, woul esablsh longefortheempoyes ethe inthe I find that the General Counsel has not met his burden new office space or that desks and machinery would be h i nd th e d t h is 8(aXI) al e gain placed in the new office space and an expanded lounge InWrt wLn t h er ef o r e disisss oWisr8(ag ) al egationn would be established in the existing office space. As Re- n W r1g ht (190 a D t v h s e o n of W r tg ht L ther I n c t 2 5 w spondent had therefore decided to create a lounge for its N LR B 108 3 h (980), the Board set forth the rule it will employees prior to the appearance of the Union, I find it ahenceforth apply in dual motive or pretextual cases such unnecessary to make a determination as to when Re- as t h e ln i ta n t m at t er : F lr st, w e s h a11 "^"^ t h a t t h e spondent made its final decision as to which location the------- lounge would be at; either way the employees would /in his second speech, stated that the employees' wages would be frozen until the matter was settled and that I have found that statement, in the " Baker Manufacturing Co.. Inc., 218 NLRB 1295 (1975). context in which it was made, violated Sec. 8(aX I) of the Act. PROGRESSIVE SUPERMARKETS, INC. 537 directly question Plant's union sympathies, I would find have a new expanded lounge (and correspondingly a that it violated Section 8(aXl) of the Act as the question split lunch system) and this was decided prior to the served no valid purpose with the election only 1 day Union's appearance in November. I would therefore dis- away and took place in the context of other unlawful miss this 8(aX1) allegation. statements made by Gold to Plant."2I would likewise dismiss the allegation that Respond- I find that Gold's statements to Piper came within the ent violated Section 8(aXO) of the Act by withholding its protection of Section 8(c) of the Act. annual wage increases from January to February and the Gold's statement to Gerard on January 9 regarding allegation that it violated Section 8(aX1) of the Act by benefits starting from ground zero is a violation of Sec- granting a wage increase in Feburary that was signifi- tion 8(aXl) for the reasons stated, supra. In addition, his cantly greater than those granted in the past. As regards statement to Gerard that if the Union lost the election he the first allegation, Respondent was clearly in a bind; the would try to hold meetings once a month to go over the records establish that Respondent generally granted problems the employees were having and see if he could wage increases to its employees, at least, in January of work something out is an implied promise to correct the each year. Presumably because of the election conducted employees' grievances in the future if the Union lost the on January 10, Respondent delayed granting its usual election, in violation of Section 8(aX1) of the Act, Uarco, wage increase to the employees at that time. In fact, Re- supra. On the next morning (the day of the election) spondent may well have placed itself in a precarious Gerard was again called in to speak to Gold and he re- legal situation if it had granted the increase in the first 10 minded her that she was still employed in her trial days of January (why could not it wait until after the period and he hoped that she would still be there when election?) or if it had granted the increase during the last the trial period was over. It requires no case citation to 20 days of January (why could not it wait until the Re- find (as I do) that an employer violates Section 8(a)(l) of gional Office issued a determination on the Union's ob- the Act when he makes such a statement which could jections to the election?) I would therefore find that Re- have no other purpose than to serve as a threat to the spondent's action in withholding the regular wage in- employee. crease for a 1-month period did not violate Section I find that the General Counsel has not sustained his 8(a)(1) of the Act. 24 burden of establishing that Respondent instituted the split Whether the amount of the increase given to the em- lunch program and established the lounge for the em- ployees in February, retroactive to January, violates the ployees in the new office in answer to the Union's orga- A i a m d, employees were granted nizational drive. Although I did not credit Cimini's testi- a n2 i- w ices. T r ea1 that mony regarding Medaska's termination, I would credit thJau y 1979weeky wa e r e asested to t h e his testimony regarding the split lunch program and the e r a ne from T to a new lounge; his testimony on these matters was clear and wemployees grantd from R10 to $5 andet to itshe weekly concise, believable, and generally supported by the testi- in J ly19 a ri edfro 0 $1 t o 2 ti 1978 0 mony of other witnesses. It appeared to me that, on this f u l oyees re c $ 20 ices i n their weekly subject, Cimini, knowing that he was testifying truthful- f o u r emploes received $20 increases in their weekly ly, was open and direct in his testimony i t w a g es at o n e point in t h e y ear .T h is establishes that in It is reasonable to assume that a change in Respond- t h e past Respondent had occasionally granted $20 wage It i resonbleto ssue tat chngein espnd- increases to its employees; however, Respondent never ent's "telephone day" system required a separate lounge ad e a te l wh ir d employees on t where the other employees could have their lunch with- weekly explained why it granted all employees $20 out disturbing the employees who were answering the v w e ek ly w ag e in c r eas es w h ereit Previously had granted telephones. The evidence herein establishes that pnior to varying menit increases to its employees. Qimimis testi- telphoes Th evdece erin stalihestha piorto mony that ". .. we didn't have a chance for the re- September Respondent had no such place available to it, views" .. e we ring t if anching espon had although Respondent had been receiving numerous con- views" does not ning true, if anything, Respondent had althugh espodenthad eenrecevingnumeous om- an additional month in which to evaluate the work of its plaints from its employees regarding "telephone day." employees in order to evalrate the wmrktof in s The parties stipulated that Respondent acquired new temployees *n t o r d e r f t o d et e r m ,a e t h e a m o u n t o f th c e ase office space across the hall from its existing office long it o g r an t ea c h o f t h em b H o w ev e1w as t h e a m o u n t o f t h e before the Union's appearance in November. The testi- e s tiease granted in February 1980 was not greatly in mony also establishes that prior to the Union's appear- excess of the increases granted in 1979, with the mncreas- ance in November Cimini informed the employees aper ing r at e o f inflation d u ri ng t h is pe r io d , an d th e ar it h m e t ic ancein Nvembr Cminiinfomed he mploees hat fact that a higher rate of salary requires a larger actual Respondent had acquired this space and that Respondent i a s t mai t a tsmpc a r a te o f in r e a se, would establish a lounge for the employees either in the '^ 0 inT "as to manante m e p er c enau ge r a te, o f ln c r eas e, woul esablsh longefortheempoyes ethe inthe I find that the General Counsel has not met his burden new office space or that desks and machinery would be h i nd th erefore G dismis thi n 8 e X. allgaio placed in the new office space and an expanded lounge InWrt wLn t h er ef o r e disisss oWisr8(ag ) al egationn would be established in the existing office space. As Re- n W r1g ht (190 a D t v h s e o n of W r tg ht L ther I n c t 2 5 w spondent had therefore decided to create a lounge for its h N LR B 108 3a (l980), the Board set forth the rule it will employees prior to the appearance of the Union, I find it ahenceforth apply in dual motive or pretextual cases such unnecessary to make a determination as to when Re- as t h e ln i ta n t m att er: F lr st, ^ shall require that the spondent made its final decision as to which location the------- lounge would be at; either way the employees would /in his second speech, stated that the employees' wages would be frozen until the matter was settled and that I have found that statement, in the " Baker Manufacturing Co.. Inc., 218 NLRB 1295 (1975). context in which it was made, violated Sec. 8(aX I) of the Act. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel make a prima facie showing sufficient to violated Section 8(a)(l) and (3) of the Act sustains Ob- support the inference that protected conduct was a 'mo- jection 4. In view of the bargaining order found applica- tivating factor' in the employer's decision. Once this is ble herein, infra, it is recommended that that election established, the burden will shift to the employer to dem- conducted on January 10, 1980, in Case 22-RC-8060 be onstrate that the same action would have taken place set aside and that the representation proceeding be dis- even in the absence of the protected conduct." missed. The General Counsel has made such a prima facie showing herein. Respondent's explanation for Medaska's Xiv. THE REFUSAL TO BARGAIN termination (as discussed, supra) is so incredible as to lead to the inescapable conclusion that she was terminat- The Supreme Court, in N.LR.B. v. Gissel Packing Co., ed to prevent her from voting in the upcoming Board Inc. supra, set forth the situations where bargaining election. Although there was no clear evidence of Re- orders would be appropriate relief: the first were those spondent's knowledge of Medaska's union activities or situations where an employer had committed "outra- preference, I believe this knowledge can be imputed to geous and pervasive" unfair labor practices which elimi- Respondent under the small-plant doctrine.2 This doc- nate the possibility of holding a fair election; the second trine is applicable here in that, during the period in ques- were the "less extraordinary cases marked by less perva- tion, there were only 12 or 13 employees in the unit sive practices" where there is a showing at one point working within an enclosed office area. In addition, that the Union had authorization cards from a majority Cimini had a view of this area from his office. There was of the unit employees, and the Board concludes that the also testimony that after the Union began organizing extensiveness of the unfair labor practices "have the these employees Medaska spent a lot of time during her tendency to undermine majority strength and impede the breaks speaking with Evers, the employee known by Re- election processes." spondent to be the leading adherent on behalf of the As of November 15, the Union represented a majority Union. of the employees in the unit herein; therefore, the only That being established, the remaining question is remaining question is whether the extensiveness of the whether Respondent has satisfied its burden to demon- unfair labor practices committed by Respondent warrant strate that it would have terminated Medaska on January the imposition of a bargaining order under the tests es- 4 even if not for the election taking place 6 days later. On the basis of all the evidence herein, the answer is tablished by Gissel, supra. The events herein took place On the basis of all the evidence herein, the answer is o clearly that it has not. As stated above, there was no og a unt conisting of 12 to 3 employees working valid business reason (as compared to an antiunion together in I office. The unfair labor practices found, reason) for terminating Medaska on January 4. The evi- which immediately affected all the employees, were the dence leaves no doubt that, if it were not for the elec- threats made b Gold in his speeches that negotiations tion, Medaska would not have been terminated at all, or would start at ground zero and that their benefits would at least not until January 28; Medaska was a good em- be frozen if the Union won the election and he had to ployee, Respondent's office was busy during this period, negotiate with the Union, that their wages would be and Respondent was not able to locate a permanent re- frozen until the matter was settled, that any employee placement for her until the end of January, long after she who incurred dental bills would have to pay for them on informed Cimini, on January 4, that her wedding plans their own because these benefits would be frozen, and had been terminated and that she wished to remain in that there was a possibility that if the Union won the Respondent's employ. I therefore conclude that Re- election a timeclock could be installed. These threats rate spondent terminated the employment of Medaska in vio- high on the "Gissel scale of seriousness" because they lation of Section 8(a)(l) and (3) of the Act. were to all of the employees. The Board also considers 8(a)(3) terminations as serious in determining whether a XIII. THE EFFECT OF SUCH CONDUCT ON THE bargaining order is warranted. As the Board stated in ELECTION Armcor Industries, Inc., 227 NLRB 1543 (1977): The objections include certain of the allegations con- tained in the complaint herein. The finding that Re-The Board i wel aware that no employer conduct spondent promised Evers and Gerard to correct the em- is more serious or has consequences more crippling ployees' grievances in the future, in violation of Section to the free exercise of Section 7 rights than the dis- 8(aXl) of the Act, sustains Objection 1. The finding that charge of an employee because of the employee's Respondent interrogated Evers in violation of Section union affiliation. Indeed, both the Board and the 8(aXl) of the Act, threatened and interrogated Plant in courts have frequently pointed out that such con- violation of Section 8(a)(l) of the Act, and threatened duct "goes to the very heart of the Act." . . . The Gerard in violation of Section 8(aX1) of the Act sustains effect of such a discharge is particularly pro- Objection 2. The finding that Respondent, by Gold's nounced when, as is true of the instant case, one of speeches of January 4 and January 9, threatened employ- the victims is well known as the instigator of the ees with the loss of benefits in violation of Section Union's drive. In such circumstances, only the most 8(a)(1) of the Act sustains Objection 3, and the finding remarkably obtuse employee would fail to perceive that Respondent's termination of Medaska on January 4 and to heed the employer's message that any em- ployee who advocates the Union is embarking on a 2 Wiese Plow Welding Co.. Inc., 123 NLRB 616 (1959). perilous venture. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel make a primafacie showing sufficient to violated Section 8(a&l) and (3) of the Act sustains Ob- support the inference that protected conduct was a 'mo- jection 4. In view of the bargaining order found applica- tivating factor' in the employer's decision. Once this is ble herein, infra, it is recommended that that election established, the burden will shift to the employer to dem- conducted on January 10, 1980, in Case 22-RC-8060 be onstrate that the same action would have taken place set aside and that the representation proceeding be dis- even in the absence of the protected conduct." missed. The General Counsel has made such a prima facie showing herein. Respondent's explanation for Medaska's XIV. THE REFUSAL TO BARGAIN termination (as discussed, supra) is so incredible as to lead to the inescapable conclusion that she was terminat- The Supreme Court, in N.LR.B. v. Gissel Packing Co., ed to prevent her from voting in the upcoming Board In c , supra, set forth the situations where bargaining election. Although there was no clear evidence of Re- orders would be appropriate relief: the first were those spondent's knowledge of Medaska's union activities or situations where an employer had committed "outra- preference, I believe this knowledge can be imputed to geous and pervasive" unfair labor practices which elimi- Respondent under the small-plant doctrine.2" This doc- nate the possibility of holding a fair election; the second trine is applicable here in that, during the period in ques- were the "less extraordinary cases marked by less perva- tion, there were only 12 or 13 employees in the unit sive practices" where there is a showing at one point working within an enclosed office area. In addition, that the Union had authorization cards from a majority Cimini had a view of this area from his office. There was of the unit employees, and the Board concludes that the also testimony that after the Union began organizing extensiveness of the unfair labor practices "have the these employees Medaska spent a lot of time during her tendency to undermine majority strength and impede the breaks speaking with Evers, the employee known by Re- election processes." spondent to be the leading adherent on behalf of the As of November 15, the Union represented a majority Union. of the employees in the unit herein; therefore, the only That being established, the remaining question is remaining question is whether the extensiveness of the whether Respondent has satisfied its burden to demon- unfair labor practices committed by Respondent warrant strate that it would have terminated Medaska on January the imposition of a bargaining order under the tests es- 4 even if not for the election taking place 6 days later. ti b Gs sr T On the basis of all the evidence herein, the answer is a a u c of 1 t 1 e w clearly that it has not. As stated above, there was no togethe in I of 12 lor ployees found valid business reason (as compared to an antiunion which im office. The unfair labor practices found, reason) for terminating Medaska on January 4. The evi- tw h c h immediately affected all the employees, were the dence leaves no doubt that, if it were not for the elec- th rea ts m ad e ^ G ol d l n h ls spe ech es t h a t negotiations tion, Medaska would not have been terminated at all, or would start at ground zero and that their benefits would at least not until January 28; Medaska was a good em- be fro zen if the Union won the election and he had to ployee, Respondent's office was busy during this period, negotiate with the Union, that their wages would be and Respondent was not able to locate a permanent re- fr o zen until the matter was settled, that any employee placement for her until the end of January, long after she who incurred dental bills would have to pay for them on informed Cimini, on January 4, that her wedding plans their own because these benefits would be frozen, and had been terminated and that she wished to remain in that there was a possibility that if the Union won the Respondent's employ. I therefore conclude that Re- election a timeclock could be installed. These threats rate spondent terminated the employment of Medaska in vio- high on the "Gissel scale of seriousness" because they lation of Section 8(a)(l) and (3) of the Act. were to all of the employees. The Board also considers 8(a)(3) terminations as serious in determining whether a XIII. THE EFFECT OF SUCH CONDUCT ON THE bargaining order is warranted. As the Board stated in ELECTION Armcor Industries, Inc., 227 NLRB 1543 (1977): The objections include certain of the allegations con- T B i w tained in the complaint herein. The finding that Re- T h e B o ard K w eu aware that no employer conduct spondent promised Evers and Gerard to correct the em- is more serious or has consequences more crippling ployees' grievances in the future, in violation of Section to the free exercise of Section 7 rights than the dis- 8(aXl) of the Act, sustains Objection 1. The finding that charge of an employee because of the employee's Respondent interrogated Evers in violation of Section union affiliation. Indeed, both the Board and the 8(aXl) of the Act, threatened and interrogated Plant in courts have frequently pointed out that such con- violation of Section 8(a)(l) of the Act, and threatened duct "goes to the very heart of the Act." ... The Gerard in violation of Section 8(aX1) of the Act sustains effect of such a discharge is particularly pro- Objection 2. The finding that Respondent, by Gold's nounced when, as is true of the instant case, one of speeches of January 4 and January 9, threatened employ- the victims is well known as the instigator of the ees with the loss of benefits in violation of Section Union's drive. In such circumstances, only the most 8(a)(l) of the Act sustains Objection 3, and the finding remarkably obtuse employee would fail to perceive that Respondent's termination of Medaska on January 4 and to heed the employer's message that any em- ployee who advocates the Union is embarking on a » Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959). perilous venture. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel make a primafacie showing sufficient to violated Section 8(a&l) and (3) of the Act sustains Ob- support the inference that protected conduct was a 'mo- jection 4. In view of the bargaining order found applica- tivating factor' in the employer's decision. Once this is ble herein, infra, it is recommended that that election established, the burden will shift to the employer to dem- conducted on January 10, 1980, in Case 22-RC-8060 be onstrate that the same action would have taken place set aside and that the representation proceeding be dis- even in the absence of the protected conduct." missed. The General Counsel has made such a prima facie showing herein. Respondent's explanation for Medaska's XIV. THE REFUSAL TO BARGAIN termination (as discussed, supra) is so incredible as to lead to the inescapable conclusion that she was terminat- The Supreme Court, in N.LR.B. v. Gissel Packing Co., ed to prevent her from voting in the upcoming Board In c , supra, set forth the situations where bargaining election. Although there was no clear evidence of Re- orders would be appropriate relief: the first were those spondent's knowledge of Medaska's union activities or situations where an employer had committed "outra- preference, I believe this knowledge can be imputed to geous and pervasive" unfair labor practices which elimi- Respondent under the small-plant doctrine.2" This doc- nate the possibility of holding a fair election; the second trine is applicable here in that, during the period in ques- were the "less extraordinary cases marked by less perva- tion, there were only 12 or 13 employees in the unit sive practices" where there is a showing at one point working within an enclosed office area. In addition, that the Union had authorization cards from a majority Cimini had a view of this area from his office. There was of the unit employees, and the Board concludes that the also testimony that after the Union began organizing extensiveness of the unfair labor practices "have the these employees Medaska spent a lot of time during her tendency to undermine majority strength and impede the breaks speaking with Evers, the employee known by Re- election processes." spondent to be the leading adherent on behalf of the As of November 15, the Union represented a majority Union. of the employees in the unit herein; therefore, the only That being established, the remaining question is remaining question is whether the extensiveness of the whether Respondent has satisfied its burden to demon- unfair labor practices committed by Respondent warrant strate that it would have terminated Medaska on January the imposition of a bargaining order under the tests es- 4 even if not for the election taking place 6 days later. ti b Gs sr T On the basis of all the evidence herein, the answer is a a u c of 1 t 1 e w clearly that it has not. As stated above, there was no togethe in I of 12 lor ployees found valid business reason (as compared to an antiunion which im office. The unfair labor practices found, reason) for terminating Medaska on January 4. The evi- tw h c h immediately affected all the employees, were the dence leaves no doubt that, if it were not for the elec- th rea ts m ad e ^ G ol d l n h ls spe ech es t h a t negotiations tion, Medaska would not have been terminated at all, or would start at ground zero and that their benefits would at least not until January 28; Medaska was a good em- be fro zen if the Union won the election and he had to ployee, Respondent's office was busy during this period, negotiate with the Union, that their wages would be and Respondent was not able to locate a permanent re- fr o zen until the matter was settled, that any employee placement for her until the end of January, long after she who incurred dental bills would have to pay for them on informed Cimini, on January 4, that her wedding plans their own because these benefits would be frozen, and had been terminated and that she wished to remain in that there was a possibility that if the Union won the Respondent's employ. I therefore conclude that Re- election a timeclock could be installed. These threats rate spondent terminated the employment of Medaska in vio- high on the "Gissel scale of seriousness" because they lation of Section 8(a)(l) and (3) of the Act. were to all of the employees. The Board also considers 8(a)(3) terminations as serious in determining whether a XIII. THE EFFECT OF SUCH CONDUCT ON THE bargaining order is warranted. As the Board stated in ELECTION Armcor Industries, Inc., 227 NLRB 1543 (1977): The objections include certain of the allegations con- T B i w tained in the complaint herein. The finding that Re- T h e B o ard K w eu aware that no employer conduct spondent promised Evers and Gerard to correct the em- is more serious or has consequences more crippling ployees' grievances in the future, in violation of Section to the free exercise of Section 7 rights than the dis- 8(aXl) of the Act, sustains Objection 1. The finding that charge of an employee because of the employee's Respondent interrogated Evers in violation of Section union affiliation. Indeed, both the Board and the 8(aXl) of the Act, threatened and interrogated Plant in courts have frequently pointed out that such con- violation of Section 8(a)(l) of the Act, and threatened duct "goes to the very heart of the Act." ... The Gerard in violation of Section 8(aX1) of the Act sustains effect of such a discharge is particularly pro- Objection 2. The finding that Respondent, by Gold's nounced when, as is true of the instant case, one of speeches of January 4 and January 9, threatened employ- the victims is well known as the instigator of the ees with the loss of benefits in violation of Section Union's drive. In such circumstances, only the most 8(a)(l) of the Act sustains Objection 3, and the finding remarkably obtuse employee would fail to perceive that Respondent's termination of Medaska on January 4 and to heed the employer's message that any em- ployee who advocates the Union is embarking on a » Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959). perilous venture. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel make a primafacie showing sufficient to violated Section 8(a&l) and (3) of the Act sustains Ob- support the inference that protected conduct was a 'mo- jection 4. In view of the bargaining order found applica- tivating factor' in the employer's decision. Once this is ble herein, infra, it is recommended that that election established, the burden will shift to the employer to dem- conducted on January 10, 1980, in Case 22-RC-8060 be onstrate that the same action would have taken place set aside and that the representation proceeding be dis- even in the absence of the protected conduct." missed. The General Counsel has made such a prima facie showing herein. Respondent's explanation for Medaska's XIV. THE REFUSAL TO BARGAIN termination (as discussed, supra) is so incredible as to lead to the inescapable conclusion that she was terminat- The Supreme Court, in N.LR.B. v. Gissel Packing Co., ed to prevent her from voting in the upcoming Board In c , supra, set forth the situations where bargaining election. Although there was no clear evidence of Re- orders would be appropriate relief: the first were those spondent's knowledge of Medaska's union activities or situations where an employer had committed "outra- preference, I believe this knowledge can be imputed to geous and pervasive" unfair labor practices which elimi- Respondent under the small-plant doctrine.2" This doc- nate the possibility of holding a fair election; the second trine is applicable here in that, during the period in ques- were the "less extraordinary cases marked by less perva- tion, there were only 12 or 13 employees in the unit sive practices" where there is a showing at one point working within an enclosed office area. In addition, that the Union had authorization cards from a majority Cimini had a view of this area from his office. There was of the unit employees, and the Board concludes that the also testimony that after the Union began organizing extensiveness of the unfair labor practices "have the these employees Medaska spent a lot of time during her tendency to undermine majority strength and impede the breaks speaking with Evers, the employee known by Re- election processes." spondent to be the leading adherent on behalf of the As of November 15, the Union represented a majority Union. of the employees in the unit herein; therefore, the only That being established, the remaining question is remaining question is whether the extensiveness of the whether Respondent has satisfied its burden to demon- unfair labor practices committed by Respondent warrant strate that it would have terminated Medaska on January the imposition of a bargaining order under the tests es- 4 even if not for the election taking place 6 days later. ti b Gs sr T On the basis of all the evidence herein, the answer is a a u c of 1 t 1 e w clearly that it has not. As stated above, there was no togethe in I of 12 lor ployees found valid business reason (as compared to an antiunion which im office. The unfair labor practices found, reason) for terminating Medaska on January 4. The evi- tw h c h immediately affected all the employees, were the dence leaves no doubt that, if it were not for the elec- th rea ts m ad e ^ G ol d l n h ls spe ech es t h a t negotiations tion, Medaska would not have been terminated at all, or would start at ground zero and that their benefits would at least not until January 28; Medaska was a good em- be fro zen if the Union won the election and he had to ployee, Respondent's office was busy during this period, negotiate with the Union, that their wages would be and Respondent was not able to locate a permanent re- fr o zen until the matter was settled, that any employee placement for her until the end of January, long after she who incurred dental bills would have to pay for them on informed Cimini, on January 4, that her wedding plans their own because these benefits would be frozen, and had been terminated and that she wished to remain in that there was a possibility that if the Union won the Respondent's employ. I therefore conclude that Re- election a timeclock could be installed. These threats rate spondent terminated the employment of Medaska in vio- high on the "Gissel scale of seriousness" because they lation of Section 8(a)(l) and (3) of the Act. were to all of the employees. The Board also considers 8(a)(3) terminations as serious in determining whether a XIII. THE EFFECT OF SUCH CONDUCT ON THE bargaining order is warranted. As the Board stated in ELECTION Armcor Industries, Inc., 227 NLRB 1543 (1977): The objections include certain of the allegations con- T B i w tained in the complaint herein. The finding that Re- T h e B o ard K w eu aware that no employer conduct spondent promised Evers and Gerard to correct the em- is more serious or has consequences more crippling ployees' grievances in the future, in violation of Section to the free exercise of Section 7 rights than the dis- 8(aXl) of the Act, sustains Objection 1. The finding that charge of an employee because of the employee's Respondent interrogated Evers in violation of Section union affiliation. Indeed, both the Board and the 8(aXl) of the Act, threatened and interrogated Plant in courts have frequently pointed out that such con- violation of Section 8(a)(l) of the Act, and threatened duct "goes to the very heart of the Act." ... The Gerard in violation of Section 8(aXl) of the Act sustains effect of such a discharge is particularly pro- Objection 2. The finding that Respondent, by Gold's nounced when, as is true of the instant case, one of speeches of January 4 and January 9, threatened employ- the victims is well known as the instigator of the ees with the loss of benefits in violation of Section Union's drive. In such circumstances, only the most 8(a)(l) of the Act sustains Objection 3, and the finding remarkably obtuse employee would fail to perceive that Respondent's termination of Medaska on January 4 and to heed the employer's message that any em- ployee who advocates the Union is embarking on a » Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959). perilous venture. PROGRESSIVE SUPERMARKETS, INC. 539 Although Medaska did not initiate the drive to have 4. Respondent violated Section 8(aXl) and (3) of the the Union represent Respondent's employees, she solicit- Act by terminating the employment of Diane Medaska ed authorization cards from three employees. When she because she engaged in activities on behalf of the Union. was terminated by Respondent 6 days before the elec- 5. The following unit is appropriate for purposes of tion, the message was clear to all the employees that sup- collective bargaining within the meaning of Section 9(b) porting the Union can be dangerous. of the Act: All full-time and regular part-time office I have also found 8(aXl) violations by Gold directed clerical employees employed at Respondent's Parsippany at three employees individually: interrogation of Evers office, but excluding confidential employees, professional and Plant, the promise of the future corrections of griev- employees, guards, all other employees and all supervi- ances to Evers and Gerard, and threats to Gerard and sors as defined in the Act. Plant. 6. Since November 15, 1979, and at all times material Considering the small size of the unit involved herein, thereafter, the Union herein represented a majority of the number and seriousness of the violations referred to, the employees in the above-described appropriate unit, supra, and that they were committed not by a low level and has been the exclusive representative of all said em- supervisor, but by Gold, Respondent's vice president, I ployees for purposes of collective bargaining within the find that a bargaining order is warranted herein under meaning of Section 9(a) of the Act. the "less extraordinary" test of Gissel, supra,2 6 and that 7. By refusing to recognize and bargain with the the duty to bargain commenced on November 16, 1979, Union as the exclusive collective-bargaining representa- the date the Union requested recognition after it had at- tive of its employees in the above-described unit since on tained majority status the previous day. or about November 16, 1979, Respondent has engaged in unfair labor practices within the meaning of Section XV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 8(a)(1) and (5) of the Act. 8(a)(l) and (5) of the Act. UPON COMMERCE 8. The aforesaid unfair labor practices are unfair labor The activities of Respondent set forth in sections VII practices affecting commerce within the meaning of Sec- through XI, above, occurring in connection with Re- tion 2(6) and (7) of the Act. spondent's operations described in section I, above, have 9. Respondent's unlawful conduct interfered with the a close, intimate, and substantial relationship to trade, representation election conducted on January 10, 1980. traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- THE REMEDY merce and the free flow thereof. lHaving found that Respondent has engaged in certain CONCLUSIONS OF LAW unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and take certain af- 1. Respondent is an employer engaged in commerce firmative action designed to effectuate the policies of the within the meaning of Section 2(2), (6), and (7) of the Act. Act. As I have found that Respondent unlawfully terminat- 2. The Union is a labor organization within the mean- ed Diane Medaska, I shall recommend that Respondent ing of Section 2(5) of the Act. be ordered to offer her immediate and full reinstatement 3. Respondent violated Section 8(aX1) of the Act by: to her former position or, if that position no longer (a) Threatening its employees with the loss of benefits exists, to a substantially equivalent job, without prejudice should they choose to be represented by the Union as to her seniority or other rights and privileges, and to their collective-bargaining representative. make her whole for any loss of earnings suffered as a (b) Threatening to discontinue the employees dental result of the discrimination by payment of a sum equal to benefits should they choose to be represented by the that which she would have earned, absent the discrimina- Union as their collective-bargaining representative. tion, with backpay and interest computed in accordance (c) Threatening to freeze the employees' wages and with F. W. Woolworth Company," and Florida Steel Cor- other benefits due to their activities on behalf of the poration.2s Union. For the reasons set forth above, I shall recommend (d) Threatening to install a timeclock if the employees that Respondent be ordered to recognize and, upon re- chose to be represented by the Union as their collective- quest, to bargain collectively with the Union as the ex- bargaining representative. clusive bargaining representative of the employees in the (e) Interrogating its employees regarding their activi- above- described unit. As a bargaining order has been ties, and the activities of other employees, on behalf of found appropriate, it would be consistent that the elec- the Union. tion in Case 22-RC-8060 be set aside and that the peti- (f) Promising to correct the grievances of the employ- tion in that matter be dismissed. 29 ees in order to induce them to withdraw their support from the Union. " 90 NLRB 289 (1950). (g) Threatening employees with discharge in order to 1" 231 NLRB 651 (1977). See generally Isis Plumbing & Heating Co., induce them to withdraw their support from the Union. 138 NLRB 716(1962). induce them to withdraw their support from the UnionAlthough I have found that the unfair labor practices committed herein warrant the imposition of a bargaining order, I would find that mAmerican National Stores, Inc., 195 NLRB 127 (1972); Armcor Indus- they were not so egregious or widespread as to warrant a broad order. tries Inc.. supra. Hickmot Foods. Inc., 242 NLRB 1357 (1979). PROGRESSIVE SUPERMARKETS, INC. 539 Although Medaska did not initiate the drive to have 4. Respondent violated Section 8(a(l) and (3) of the the Union represent Respondent's employees, she solicit- Act by terminating the employment of Diane Medaska ed authorization cards from three employees. When she because she engaged in activities on behalf of the Union. was terminated by Respondent 6 days before the elec- 5. The following unit is appropriate for purposes of tion, the message was clear to all the employees that sup- collective bargaining within the meaning of Section 9(b) porting the Union can be dangerous. of the Act: All full-time and regular part-time office I have also found 8(aXI) violations by Gold directed clerical employees employed at Respondent's Parsippany at three employees individually: interrogation of Evers office, but excluding confidential employees, professional and Plant, the promise of the future corrections of griev- employees, guards, all other employees and all supervi- ances to Evers and Gerard, and threats to Gerard and sors as defined in the Act. Plant. 6. Since November 15, 1979, and at all times material Considering the small size of the unit involved herein, thereafter, the Union herein represented a majority of the number and seriousness of the violations referred to, the employees in the above-described appropriate unit, supra, and that they were committed not by a low level and has been the exclusive representative of all said em- supervisor, but by Gold, Respondent's vice president, I ployees for purposes of collective bargaining within the find that a bargaining order is warranted herein under meaning of Section 9(a) of the Act. the "less extraordinary" test of Gissel, supra 2w and that 7. By refusing to recognize and bargain with the the duty to bargain commenced on November 16, 1979, Union as the exclusive collective-bargaining representa- the date the Union requested recognition after it had at- tive of its employees in the above-described unit since on tained majority status the previous day. or about November 16, 1979, Respondent has engaged in XV. THE EFFECT OF THE UNFAIR LABOR PRACTICES u bc t h e m e a n i n g o f S e c t i o n UPON COMMERCE ~~~~8(a)(1) and (5) of the Act. UPON COMMERCE*" . , .,.,, 8. The aforesaid unfair labor practices are unfair labor The activities of Respondent set forth in sections VII practices affecting commerce within the meaning of Sec- through XI, above, occurring in connection with Re- tion 2(6) and (7) of the Act. spondent's operations described in section I, above, have 9. Respondent's unlawful conduct interfered with the a close, intimate, and substantial relationship to trade, representation election conducted on January 10, 1980. traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- THE REMEDY merce and the free flow thereof.n r ii. -*-- Having found that Respondent has engaged in certain CONCLUSIONS OF LAW unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and take certain af- 1. Respondent is an employer engaged in commerce firmative action designed to effectuate the policies of the within the meaning of Section 2(2), (6), and (7) of the Act. A c t. As I have found that Respondent unlawfully terminat- 2. The Union is a labor organization within the mean- ed Diane Medaska, I shall recommend that Respondent ing of Section 2(5) of the Act. be ordered to offer her immediate and full reinstatement 3. Respondent violated Section 8(aXl) of the Act by: to her former position or, if that position no longer (a) Threatening its employees with the loss of benefits exists, to a substantially equivalent job, without prejudice should they choose to be represented by the Union as to her seniority or other rights and privileges, and to their collective-bargaining representative. make her whole for any loss of earnings suffered as a (b) Threatening to discontinue the employees dental result of the discrimination by payment of a sum equal to benefits should they choose to be represented by the that which she would have earned, absent the discrimina- Union as their collective-bargaining representative. tion, with backpay and interest computed in accordance (c) Threatening to freeze the employees' wages and with F. W. Woolworth Company," and Florida Steel Cor- other benefits due to their activities on behalf of the poration.28 Union. For the reasons set forth above, I shall recommend (d) Threatening to install a timeclock if the employees that Respondent be ordered to recognize and, upon re- chose to be represented by the Union as their collective- quest, to bargain collectively with the Union as the ex- bargaining representative. elusive bargaining representative of the employees in the (e) Interrogating its employees regarding their activi- above- described unit. As a bargaining order has been ties, and the activities of other employees, on behalf of found appropriate, it would be consistent that the elec- the Union. tion in Case 22-RC-8060 be set aside and that the peti- (f) Promising to correct the grievances of the employ- tion in that matter be dismissed. 2 9 ees in order to induce them to withdraw their support from the Union. 27 90 NLRB 289 (1950). (g) Threatening employees with discharge in order to 1" 2 3 1 N L R B 6 5 1 (1 9 7 7). S e e generally Isis Plumbing & Heating Co., induce hem to ithdrawtheir spport fom the nion 1 18 NLRB 716 (1962). induce them to withdraw their support from the Union. '" Although I have found that the unfair labor practices committed herein warrant the imposition of a bargaining order, I would find that M American National Storesr Inc., 195 NLRB 127 (1972); Armcor Indus- they were not so egregious or widespread as to warrant a broad order. tries Inc., supra. Hickmoll Foods, Inc., 242 NLRB 1357 (1979). PROGRESSIVE SUPERMARKETS, INC. 539 Although Medaska did not initiate the drive to have 4. Respondent violated Section 8(a(l) and (3) of the the Union represent Respondent's employees, she solicit- Act by terminating the employment of Diane Medaska ed authorization cards from three employees. When she because she engaged in activities on behalf of the Union. was terminated by Respondent 6 days before the elec- 5. The following unit is appropriate for purposes of tion, the message was clear to all the employees that sup- collective bargaining within the meaning of Section 9(b) porting the Union can be dangerous. of the Act: All full-time and regular part-time office I have also found 8(aXI) violations by Gold directed clerical employees employed at Respondent's Parsippany at three employees individually: interrogation of Evers office, but excluding confidential employees, professional and Plant, the promise of the future corrections of griev- employees, guards, all other employees and all supervi- ances to Evers and Gerard, and threats to Gerard and sors as defined in the Act. Plant. 6. Since November 15, 1979, and at all times material Considering the small size of the unit involved herein, thereafter, the Union herein represented a majority of the number and seriousness of the violations referred to, the employees in the above-described appropriate unit, supra, and that they were committed not by a low level and has been the exclusive representative of all said em- supervisor, but by Gold, Respondent's vice president, I ployees for purposes of collective bargaining within the find that a bargaining order is warranted herein under meaning of Section 9(a) of the Act. the "less extraordinary" test of Gissel, supra 2w and that 7. By refusing to recognize and bargain with the the duty to bargain commenced on November 16, 1979, Union as the exclusive collective-bargaining representa- the date the Union requested recognition after it had at- tive of its employees in the above-described unit since on tained majority status the previous day. or about November 16, 1979, Respondent has engaged in XV. THE EFFECT OF THE UNFAIR LABOR PRACTICES u bc t h e m e a n i n g o f S e c t i o n UPON COMMERCE ~~~~8(a)(1) and (5) of the Act. UPON COMMERCE*" . , .,.,, 8. The aforesaid unfair labor practices are unfair labor The activities of Respondent set forth in sections VII practices affecting commerce within the meaning of Sec- through XI, above, occurring in connection with Re- tion 2(6) and (7) of the Act. spondent's operations described in section I, above, have 9. Respondent's unlawful conduct interfered with the a close, intimate, and substantial relationship to trade, representation election conducted on January 10, 1980. traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- THE REMEDY merce and the free flow thereof.n r ii. -*-- Having found that Respondent has engaged in certain CONCLUSIONS OF LAW unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and take certain af- 1. Respondent is an employer engaged in commerce firmative action designed to effectuate the policies of the within the meaning of Section 2(2), (6), and (7) of the Act. A c t. As I have found that Respondent unlawfully terminat- 2. The Union is a labor organization within the mean- ed Diane Medaska, I shall recommend that Respondent ing of Section 2(5) of the Act. be ordered to offer her immediate and full reinstatement 3. Respondent violated Section 8(aXl) of the Act by: to her former position or, if that position no longer (a) Threatening its employees with the loss of benefits exists, to a substantially equivalent job, without prejudice should they choose to be represented by the Union as to her seniority or other rights and privileges, and to their collective-bargaining representative. make her whole for any loss of earnings suffered as a (b) Threatening to discontinue the employees dental result of the discrimination by payment of a sum equal to benefits should they choose to be represented by the that which she would have earned, absent the discrimina- Union as their collective-bargaining representative. tion, with backpay and interest computed in accordance (c) Threatening to freeze the employees' wages and with F. W. Woolworth Company," and Florida Steel Cor- other benefits due to their activities on behalf of the poration.28 Union. For the reasons set forth above, I shall recommend (d) Threatening to install a timeclock if the employees that Respondent be ordered to recognize and, upon re- chose to be represented by the Union as their collective- quest, to bargain collectively with the Union as the ex- bargaining representative. elusive bargaining representative of the employees in the (e) Interrogating its employees regarding their activi- above- described unit. As a bargaining order has been ties, and the activities of other employees, on behalf of found appropriate, it would be consistent that the elec- the Union. tion in Case 22-RC-8060 be set aside and that the peti- (f) Promising to correct the grievances of the employ- tion in that matter be dismissed. 2 9 ees in order to induce them to withdraw their support from the Union. 27 90 NLRB 289 (1950). (g) Threatening employees with discharge in order to 1" 2 3 1 N L R B 6 5 1 (1 9 7 7). S e e generally Isis Plumbing & Heating Co., induce hem to ithdrawtheir spport fom the nion 1 18 NLRB 716 (1962). induce them to withdraw their support from the Union. '" Although I have found that the unfair labor practices committed herein warrant the imposition of a bargaining order, I would find that M American National Storesr Inc., 195 NLRB 127 (1972); Armcor Indus- they were not so egregious or widespread as to warrant a broad order. tries Inc., supra. Hickmoll Foods, Inc., 242 NLRB 1357 (1979). PROGRESSIVE SUPERMARKETS, INC. 539 Although Medaska did not initiate the drive to have 4. Respondent violated Section 8(a(l) and (3) of the the Union represent Respondent's employees, she solicit- Act by terminating the employment of Diane Medaska ed authorization cards from three employees. When she because she engaged in activities on behalf of the Union. was terminated by Respondent 6 days before the elec- 5. The following unit is appropriate for purposes of tion, the message was clear to all the employees that sup- collective bargaining within the meaning of Section 9(b) porting the Union can be dangerous. of the Act: All full-time and regular part-time office I have also found 8(aXI) violations by Gold directed clerical employees employed at Respondent's Parsippany at three employees individually: interrogation of Evers office, but excluding confidential employees, professional and Plant, the promise of the future corrections of griev- employees, guards, all other employees and all supervi- ances to Evers and Gerard, and threats to Gerard and sors as defined in the Act. Plant. 6. Since November 15, 1979, and at all times material Considering the small size of the unit involved herein, thereafter, the Union herein represented a majority of the number and seriousness of the violations referred to, the employees in the above-described appropriate unit, supra, and that they were committed not by a low level and has been the exclusive representative of all said em- supervisor, but by Gold, Respondent's vice president, I ployees for purposes of collective bargaining within the find that a bargaining order is warranted herein under meaning of Section 9(a) of the Act. the "less extraordinary" test of Gissel, supra 2w and that 7. By refusing to recognize and bargain with the the duty to bargain commenced on November 16, 1979, Union as the exclusive collective-bargaining representa- the date the Union requested recognition after it had at- tive of its employees in the above-described unit since on tained majority status the previous day. or about November 16, 1979, Respondent has engaged in XV. THE EFFECT OF THE UNFAIR LABOR PRACTICES u bc t h e m e a n i n g o f S e c t i o n UPON COMMERCE ~~~~8(a)(1) and (5) of the Act. UPON COMMERCE*" . , .,.,, 8. The aforesaid unfair labor practices are unfair labor The activities of Respondent set forth in sections VII practices affecting commerce within the meaning of Sec- through XI, above, occurring in connection with Re- tion 2(6) and (7) of the Act. spondent's operations described in section I, above, have 9. Respondent's unlawful conduct interfered with the a close, intimate, and substantial relationship to trade, representation election conducted on January 10, 1980. traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- THE REMEDY merce and the free flow thereof.n r ii. -*-- Having found that Respondent has engaged in certain CONCLUSIONS OF LAW unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and take certain af- 1. Respondent is an employer engaged in commerce firmative action designed to effectuate the policies of the within the meaning of Section 2(2), (6), and (7) of the Act. A c t. As I have found that Respondent unlawfully terminat- 2. The Union is a labor organization within the mean- ed Diane Medaska, I shall recommend that Respondent ing of Section 2(5) of the Act. be ordered to offer her immediate and full reinstatement 3. Respondent violated Section 8(aXl) of the Act by: to her former position or, if that position no longer (a) Threatening its employees with the loss of benefits exists, to a substantially equivalent job, without prejudice should they choose to be represented by the Union as to her seniority or other rights and privileges, and to their collective-bargaining representative. make her whole for any loss of earnings suffered as a (b) Threatening to discontinue the employees dental result of the discrimination by payment of a sum equal to benefits should they choose to be represented by the that which she would have earned, absent the discrimina- Union as their collective-bargaining representative. tion, with backpay and interest computed in accordance (c) Threatening to freeze the employees' wages and with F. W. Woolworth Company," and Florida Steel Cor- other benefits due to their activities on behalf of the poration.28 Union. For the reasons set forth above, I shall recommend (d) Threatening to install a timeclock if the employees that Respondent be ordered to recognize and, upon re- chose to be represented by the Union as their collective- quest, to bargain collectively with the Union as the ex- bargaining representative. elusive bargaining representative of the employees in the (e) Interrogating its employees regarding their activi- above- described unit. As a bargaining order has been ties, and the activities of other employees, on behalf of found appropriate, it would be consistent that the elec- the Union. tion in Case 22-RC-8060 be set aside and that the peti- (f) Promising to correct the grievances of the employ- tion in that matter be dismissed. 2 9 ees in order to induce them to withdraw their support from the Union. 27 90 NLRB 289 (1950). (g) Threatening employees with discharge in order to 1" 2 3 1 N L R B 6 5 1 (1 9 7 7). S e e generally Isis Plumbing & Heating Co., induce hem to ithdrawtheir spport fom the nion 1 18 NLRB 716 (1962). induce them to withdraw their support from the Union. '" Although I have found that the unfair labor practices committed herein warrant the imposition of a bargaining order, I would find that M American National Storesr Inc., 195 NLRB 127 (1972); Armcor Indus- they were not so egregious or widespread as to warrant a broad order. tries Inc., supra. Hickmoll Foods, Inc., 242 NLRB 1357 (1979). 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of (j) In any like or related manner, interfering with, re- law, and the entire record, and pursuant to Section 10(c) straining, or coercing employees in the exercise of rights of the Act, I hereby issue the following recommended: guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ORDER30 effectuate the policies of the Act: The Respondent, Progressive Supermarkets, Inc., its (a) Offer Diane Medaska full and immediate reinstate- officers, agents, successors, and assigns, shall: ment to her former job or, if that job no longer exists, to 1. Cease and desist from: a substantially equivalent position, without prejudice to (a) Threatening its employees with the loss of benefits her seniority or other rights and privileges, and make her should they choose to be represented by the Union as whole for any loss of pay suffered as a result of the dis- their collective-bargaining representative. crimination against her in the manner set forth above in (b) Threatening to discontinue its dental benefit plan if the section entitled "The Remedy." its employees choose to be represented by the Union as (b) Recognize and, upon request, bargain with the their collective-bargaining representative. Union as the exclusive collective-bargaining representa- (c) Threatening to freeze the employees' wages and tive of its employees in the bargaining unit set forth other benefits because of their activities on behalf of the above with respect to wages, hours, and other terms and Union. conditions of employment and, if an agreement is (d) Threatening to install a timeclock if the employees reached, embody such understanding in a signed agree- selected the Union as their collective-bargaining repre- ment. sentative. (e) Interrogating its employees regarding their activi- (c) Post at its Parsippany, New Jersey, location, copies ties, and the activities of other employees, on behalf of of the attached notice marked "Appendix." 31 Copies of the Union. said notice, on forms provided by the Regional Director (f) Promising to correct the grievances of its employ- for Region 22, after being duly signed by Respondent's ees to induce them to withdraw their support from the authorized representative, shall be posted by Respondent Union. immediately upon receipt thereof, and be maintained by (g) Threatening its employees with discharge should it for 60 consecutive days thereafter, in conspicuous they choose to be represented by the Union. places, including all places where notices to employees (h) Discharging or otherwise discriminating against are customarily posted. Reasonable steps shall be taken employees because of their union activities or sympa- by Respondent to insure that said notices are not altered, thies. defaced, or covered by any other material. (i) Refusing to recognize, and, upon request, bargain (d) Notify the Regional Director for Region 22, in with the Union as the exclusive bargaining representative writing, within 20 days from the date of this Order, what of its employees in the following unit: steps Respondent has taken to comply herewith. A flti office clerical IT IS FURTHER ORDERED that the complaint herein be All full-time and regular part-time office clerical empleAll full-time and regular part-time Parsippany dismissed insofar as it alleges violations of the Act not employees employed at Respondent's Parsippany office, but excluding confidential employees, profes- specifically found herein. sional employees, guards, all other employees and sIT IS FURTHER ORDERED that the election in Case 22- all supervisors as defined in the Act. RC-8060 be set aside and that the petition in that matter be dismissed. 30 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 ' In the event that this Order is enforced by a judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board." 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of j) In any like or related manner, interfering with, re- law, and the entire record, and pursuant to Section 10(c) straining, or coercing employees in the exercise of rights of the Act, I hereby issue the following recommended: guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ORDER30 effectuate the policies of the Act: The Respondent, Progressive Supermarkets, Inc., its (a) Offer Diane Medaska full and immediate reinstate- officers, agents, successors, and assigns, shall: ment to her former job or, if that job no longer exists, to 1. Cease and desist from: a substantially equivalent position, without prejudice to (a) Threatening its employees with the loss of benefits her seniority or other rights and privileges, and make her should they choose to be represented by the Union as whole for any loss of pay suffered as a result of the dis- their collective-bargaining representative. crimination against her in the manner set forth above in (b) Threatening to discontinue its dental benefit plan if the section entitled "The Remedy." its employees choose to be represented by the Union as (b) Recognize and, upon request, bargain with the their collective-bargaining representative. Union as the exclusive collective-bargaining representa- (c) Threatening to freeze the employees' wages and tive of its employees in the bargaining unit set forth other benefits because of their activities on behalf of the a wt r wages, hours, and other terms and Union. conditions of employment and, if an agreement is (d) Threatening to install a timeclock if the employees r e understanding in a signed agree- selected the Union as their collective-bargaining repre- ment. sentative. (e) Interrogating its employees regarding their activi- (c) Post at its Parsippany, New Jersey, location, copies ties, and the activities of other employees, on behalf of o f t h e attached notice marked "Appendix." 3 1 Copies of the Union. said notice, on forms provided by the Regional Director (f) Promising to correct the grievances of its employ- for Region 22, after being duly signed by Respondent's ees to induce them to withdraw their support from the authorized representative, shall be posted by Respondent Union. immediately upon receipt thereof, and be maintained by (g) Threatening its employees with discharge should it for 60 consecutive days thereafter, in conspicuous they choose to be represented by the Union. places, including all places where notices to employees (h) Discharging or otherwise discriminating against are customarily posted. Reasonable steps shall be taken employees because of their union activities or sympa- by Respondent to insure that said notices are not altered, thies. defaced, or covered by any other material. (i) Refusing to recognize, and, upon request, bargain (d) Notify the Regional Director for Region 22, in with the Union as the exclusive bargaining representative writing, within 20 days from the date of this Order, what of its employees in the following unit: steps Respondent has taken to comply herewith. . „ - „ . , , . „ , . ,~~IT IS FURTHER ORDERED that the complaint herein be All full-time and regular part-time office clerical IT I F O thations of herein no emploees mploed a Resondet's arsipany dismissed insofar as it alleges violations of the Act not employees employed at Respondent s Parsippany.-„, office, but excluding confidential employees, profes- specifically found herein. sional employees, guards, all other employees and I T IS FURT HE R ORDERED that the election in Case 22- all supervisors as defined in the Act. RC-8060 be set aside and that the petition in that matter be dismissed. 10 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 In the event that this Order is enforced by a judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board." 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of j) In any like or related manner, interfering with, re- law, and the entire record, and pursuant to Section 10(c) straining, or coercing employees in the exercise of rights of the Act, I hereby issue the following recommended: guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ORDER30 effectuate the policies of the Act: The Respondent, Progressive Supermarkets, Inc., its (a) Offer Diane Medaska full and immediate reinstate- officers, agents, successors, and assigns, shall: ment to her former job or, if that job no longer exists, to 1. Cease and desist from: a substantially equivalent position, without prejudice to (a) Threatening its employees with the loss of benefits her seniority or other rights and privileges, and make her should they choose to be represented by the Union as whole for any loss of pay suffered as a result of the dis- their collective-bargaining representative. crimination against her in the manner set forth above in (b) Threatening to discontinue its dental benefit plan if the section entitled "The Remedy." its employees choose to be represented by the Union as (b) Recognize and, upon request, bargain with the their collective-bargaining representative. Union as the exclusive collective-bargaining representa- (c) Threatening to freeze the employees' wages and tive of its employees in the bargaining unit set forth other benefits because of their activities on behalf of the a wt r wages, hours, and other terms and Union. conditions of employment and, if an agreement is (d) Threatening to install a timeclock if the employees r e understanding in a signed agree- selected the Union as their collective-bargaining repre- ment. sentative. (e) Interrogating its employees regarding their activi- (c) Post at its Parsippany, New Jersey, location, copies ties, and the activities of other employees, on behalf of o f t h e attached notice marked "Appendix." 3' Copies of the Union. said notice, on forms provided by the Regional Director (f) Promising to correct the grievances of its employ- for Region 22, after being duly signed by Respondent's ees to induce them to withdraw their support from the authorized representative, shall be posted by Respondent Union. immediately upon receipt thereof, and be maintained by (g) Threatening its employees with discharge should it for 60 consecutive days thereafter, in conspicuous they choose to be represented by the Union. places, including all places where notices to employees (h) Discharging or otherwise discriminating against are customarily posted. Reasonable steps shall be taken employees because of their union activities or sympa- by Respondent to insure that said notices are not altered, thies. defaced, or covered by any other material. (i) Refusing to recognize, and, upon request, bargain (d) Notify the Regional Director for Region 22, in with the Union as the exclusive bargaining representative writing, within 20 days from the date of this Order, what of its employees in the following unit: steps Respondent has taken to comply herewith. . „ - „ . , , . „ , . ,~~IT IS FURTHER ORDERED that the complaint herein be All full-time and regular part-time office clerical IT I F O thations of herein no emploees mploed a Resondet's arsipany dismissed insofar as it alleges violations of the Act not employees employed at Respondent s Parsippany.-„, office, but excluding confidential employees, profes- specifically found herein. sional employees, guards, all other employees and I T IS FURT HE R ORDERED that the election in Case 22- all supervisors as defined in the Act. RC-8060 be set aside and that the petition in that matter be dismissed. 10 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 In the event that this Order is enforced by a judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board." 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of j) In any like or related manner, interfering with, re- law, and the entire record, and pursuant to Section 10(c) straining, or coercing employees in the exercise of rights of the Act, I hereby issue the following recommended: guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ORDER30 effectuate the policies of the Act: The Respondent, Progressive Supermarkets, Inc., its (a) Offer Diane Medaska full and immediate reinstate- officers, agents, successors, and assigns, shall: ment to her former job or, if that job no longer exists, to 1. Cease and desist from: a substantially equivalent position, without prejudice to (a) Threatening its employees with the loss of benefits her seniority or other rights and privileges, and make her should they choose to be represented by the Union as whole for any loss of pay suffered as a result of the dis- their collective-bargaining representative. crimination against her in the manner set forth above in (b) Threatening to discontinue its dental benefit plan if the section entitled "The Remedy." its employees choose to be represented by the Union as (b) Recognize and, upon request, bargain with the their collective-bargaining representative. Union as the exclusive collective-bargaining representa- (c) Threatening to freeze the employees' wages and tive of its employees in the bargaining unit set forth other benefits because of their activities on behalf of the a wt r wages, hours, and other terms and Union. conditions of employment and, if an agreement is (d) Threatening to install a timeclock if the employees r e understanding in a signed agree- selected the Union as their collective-bargaining repre- ment. sentative. (e) Interrogating its employees regarding their activi- (c) Post at its Parsippany, New Jersey, location, copies ties, and the activities of other employees, on behalf of o f t h e attached notice marked "Appendix." 3' Copies of the Union. said notice, on forms provided by the Regional Director (f) Promising to correct the grievances of its employ- for Region 22, after being duly signed by Respondent's ees to induce them to withdraw their support from the authorized representative, shall be posted by Respondent Union. immediately upon receipt thereof, and be maintained by (g) Threatening its employees with discharge should it for 60 consecutive days thereafter, in conspicuous they choose to be represented by the Union. places, including all places where notices to employees (h) Discharging or otherwise discriminating against are customarily posted. Reasonable steps shall be taken employees because of their union activities or sympa- by Respondent to insure that said notices are not altered, thies. defaced, or covered by any other material. (i) Refusing to recognize, and, upon request, bargain (d) Notify the Regional Director for Region 22, in with the Union as the exclusive bargaining representative writing, within 20 days from the date of this Order, what of its employees in the following unit: steps Respondent has taken to comply herewith. . „ - „ . , , . „ , . ,~~IT IS FURTHER ORDERED that the complaint herein be All full-time and regular part-time office clerical IT I F O thations of herein no emploees mploed a Resondet's arsipany dismissed insofar as it alleges violations of the Act not employees employed at Respondent s Parsippany.-„, office, but excluding confidential employees, profes- specifically found herein. sional employees, guards, all other employees and I T IS FURT HE R ORDERED that the election in Case 22- all supervisors as defined in the Act. RC-8060 be set aside and that the petition in that matter be dismissed. 10 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 In the event that this Order is enforced by a judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by by Sec. 102.48 of the Rules and Regulations, be adopted by the Board Order of the National Labor Relations Board" shall read "Posted Pursu- and become its findings, conclusions, and Order, and all objections there- ant to a Judgment of the United States Court of Appeals Enforcing an to shall be deemed waived for all purposes. Order of the National Labor Relations Board."