Warehouse Groceries Management, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 252 Warehouse Groceries Management, Inc. and United Food and Commercial Workers International Union, AFL-CIO, Local 4422 and Retail Clerks Local 1657, United Food and Commer- cial Workers International Union, AFL-CIO. 3 Cases 10-CA-14572, 10-CA-14573, and 10- CA-14854. January 14, 1981 DECISION, ORDER, AND REMAND BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On August 12, 1980, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in support of its limited cross- exceptions and answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,4 and conclusions of the Administrative Law Judge only to the extent consistent herewith, and to adopt his recommended Order as modified herein. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by threatening to discharge employees for their union activities, creating the impression of surveil- lance of employees' union activities, interrogating employees concerning union activities, threatening closure of the facility if the Union were voted in, and directing employees to avoid a prounion em- ployee. We also agree that Respondent violated Section 8(a)(3) of the Act by denying a wage in- crease to the principal employee organizer. How- ever, we agree with the General Counsel that the Administrative Law Judge was incorrect in dis- The name of Respondent appears as amended at the hearing. 2 The name of this Charging Party, formerly Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL-CIO, Local 442, has been changed in recognition of the June 7, 1979, merger between the Retail Clerks International Union and the Amalgamated Meatcutters and Butcher Workmen of North America. 3 The name of this Charging Party, formerly Retail Clerks, Local 1657, was amended at the hearing in recognition of the merger described in fn. 2. 4 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 254 NLRB No. 21 missing three allegations of the complaint, which concerned additional violations of Section 8(a)(1). 5 1. The complaint alleges that Respondent violat- ed Section 8(a)(1) of the Act when Vice President of Human Resources Mark Gregerson solicited grievances from employees. The Administrative Law Judge found that one of Gregerson's responsi- bilities was to travel to Respondent's stores and meet with employees in an attempt to resolve any problems, and that his participation in thislactivity was a continuation of an earlier practice and there- fore not unlawful. The Administrative Law Judge thus dismissed that allegation of the complaint. The record reveals that in mid-February 1979,6 after the union campaign began, Manager Stuart Pody called employee Carol Abdoo into his office, where Gregerson was seated. Gregerson told Abdoo he had heard that some employees felt they were being treated unfairly and asked Abdoo to elaborate on any unfairness that was going on in the store. We disagree with the Administrative Law Judge's characterization of this interview as a "continuation" of Gregerson's normal activities. Gregerson testified that his usual practice was to walk down the aisles of Respondent's stores, and chat with employees who were on the job. There was no evidence that he had ever called employees into an office on an individual basis, and he had never spoken to Abdoo before. It is also significant that it was Manager Pody who summoned Abdoo into the office. Shortly before this conversation, Pody had unlawfully interrogated Abdoo, who at that time admitted that she had signed an authori- zation card. It is clear that this interview was a de- viation from Gregerson's past practice of talking with employees on a casual basis and that Greger- son's solicitation of grievances from an admittedly prounion employee was calculated to undermine employee support for the Union. 7 Respondent thereby interfered with and restrained employees in the exercise of their statutory rights of self-organi- zation in violation of Section 8(a)(1) of the Act. 2. The complaint also alleges that Vice President Roger Dreyer threatened employees that Respon- dent would close the store if the employees desig- nated the Union as their collective-bargaining rep- resentative. The Administrative Law Judge found that Dreyer read a speech to a meeting of employ- B In the absence of exceptions thereto, we adopt proforma the Admin- istrative Law Judge's finding that Respondent did not violate Sec. 8(a)(1) by threatening that jobs for female employees would be eliminated if the employees selected the Union as their bargaining representative. a All dates herein are in 1979 unless otherwise indicated. 7 Flight Safety, Inc., 197 NLRB 223, 227-229 (1972). WAREHOUSE GROCERIES MANAGEMENT. INC. ees on March 16. A copy of the speech was ad- mitted into evidence, and it read, in pertinent part: After all, if the union does call a strike, we'll only be left with two choices. We can either close the store down, in which case everyone loses their job . . . or we can replace the strik- ers and try to operate the store. The Administrative Law Judge found that the speech did not threaten the closure of the store if the employees .selected the Union, and therefore dismissed the allegation of the complaint. We dis- agree with his dismissal. Although Dreyer did not actually threaten to close the store if the Union were selected as the employees' collective-bargaining representative, he clearly threatened plant closure in retaliation for another form of protected concerted activity, that of engaging in a strike. We find that Dreyer's de- scription of his "first alternative" in response to a strike, that of closing the store and thus causing all the employees to lose their jobs, was clearly coer- cive. Dreyer did not refer to any objective facts, such as economic necessity, which would cause the store to close,8 and thus the statement constitutes a threat of retaliation for engaging in a strike.9 We therefore find that the speech violated Section 8(a)(l) of the Act. 3. The General Counsel also alleges that Man- ager Randolph Kelley promised a wage increase if employees refrained from joining or engaging in activities on behalf of the Union. The Administra- tive Law Judge found that, immediately following the meeting in which Dreyer read the coercive speech discussed above, cashier LaTonia Jackson spoke to Kelley in an aisle of the store, complained to him about not being able to ask questions at the meeting, and commented, "I think we should be making more money." Kelley's response was, "Maybe when all this is over, everyone will get a raise." The Administrative Law Judge found that Kelley's remark was ambiguous and made in re- sponse to Jackson's unsolicited statements, and therefore did not constitute a promise of a wage in- crease in violation of Section 8(a)(1). We disagree. Kelley's remark could hardly be termed "am- biguous" under the circumstances. Only minutes before, Dreyer had made a coercive speech in an antiunion meeting of employees called by Respon- dent. The conversation was initiated by an employ- ee complaint that employees had not been able to discuss Dreyer's remarks in the meeting and ask questions about them, and a further complaint that employees were not making enough money. Kel- a See N.L.R.B. v. Gissel Packing Co., Inc.. 395 U.S. 575, 618 (1969). 9 Stumpf Motor Company. Inc., 208 NLRB 431, 432, 433 (1974). ley's reference to "when all this is over" clearly re- ferred to the union campaign. In this context, we find that Kelley's statement constituted an unlawful promise of a wage increase which would tend to interfere with employee exercise of Section 7 rights, and that it violated Section 8(a)(l) of the Act.' 4. The General Counsel contends that the Union obtained majority support in the bargaining unit as of March 13.1' In support of this contention, the General Counsel introduced 38 authorization cards for the unit of 72 employees. The Administrative Law Judge found that two of the cards, those signed by Linda Vincent and Mike Merchant, could not be counted, and therefore concluded that the Union did not achieve majority status. The Administrative Law Judge rejected the card purportedly signed by Mike Merchant on the ground that it was not properly identified, and no party has excepted to this finding. We conclude that the remaining 37 cards were properly authenti- cated and introduced into evidence. 2 With regard to the validity of the card of cashier Linda Vincent, the Administrative Law Judge found that she signed it on February 15 and gave it to Melinda Ziegler, the principal employee orga- nizer. At the time, Vincent said, "Melinda, swear to me that nobody will ever find out because I'm scared I'll lose my job." On February 16, Vincent said to Ziegler, "Melinda, I'm scared. Tear my card up." Zeigler told her that the card had al- ready been given to the Union. The Administrative Law Judge found that Vincent effectively revoked her authorization on February 16 by taking reason- able steps to retrieve her card, and that therefore her card could not be counted. We disagree. In TMT Trailer Ferry, Inc.,13 the case upon which the Administrative Law Judge relied, the 'o Sunset Coffee and Macadamia Nut Co-op of Kona, 225 NLRB 1021 (1976); Central Diagnostic Laboratory. 206 NLRB 754, 764 (1973). " The parties stipulated, and we find, that the following is an appro- priate bargaining unit: All full-time and regular part-time employees employed by the Re- spondent at its Birmingham, Alabama facility, including all cashiers. courtesy clerks, security receivers, night and day stock clerks, pro- duce clerks, floormen, non-food clerks, dairy and frozen food clerks, and head cashier, and the head stocker, but excluding the store man- ager. assistant store manager, the shift supervisors, the produce man- ager, the front end manager, the bookkeeper, all office clericals, guards and supervisors as defined in the Act, and all other employ- ees. 12 Respondent does not except to the authorization cards which were authenticated by their own signers. We find no merit in Respondent's contention that the testimony of the solicitors of other cards was insuffi- cient to effectively authenticate them. The Board has uniformly held, with court approval, that witnesses to the signing of authorization cards are competent to testify on the authenticity of such cards. See. e.g. .NL.R.B. v. Economy Food Center, 333 F.2d 468, 471 (7th Cir 1964), Ship Shape Maintenance Co., Inc., 189 NLRB 395 (1971); Don The Beachcomb- er, 163 NLRB 275 (1967). 1: 152 NLRB 1495. 1496 (1965). 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board found that two employees effectively re- voked their cards by seeking out the person who solicited their signatures and asking that their cards be returned. The Board noted specifically that there was no prompting or interference by the em- ployer in that case, and distinguished the situation from one in which the employees' revocations were induced by their employer's acts of threats and interrogation.' 4 We agree with the General Counsel that the Ad- ministrative Law Judge's reliance on TMT was misplaced. Where, as here, the employer has en- gaged in coercive conduct designed to undermine union support, the Board presumes that revocation is a result of the employer's unlawful conduct, and such revocation is therefore ineffective. 15 In this case, Respondent embarked on its campaign of in- terrogation and threats in the first week of Febru- ary. Vincent signed the card on February 15, and attempted to retrieve it on February 16; moreover, in both of her conversations with Ziegler, Vincent spoke of being afraid. It is clear that Respondent's course of coercive conduct was well underway when Vincent asked Ziegler to tear up her card.' 6 Thus we find that Vincent did not effectively revoke her authorization, and her card will be counted. Because the Administrative Law Judge found that 2 of the 38 cards could not be counted, he found it unnecessary to rule on Respondent's con- tentions that other authorization cards should be rejected. Because we find that Vincent's card should be counted, we must examine the remaining cards. Respondent questions the validity of the authori- zation card of Vicki Smitherman because Smither- man was allegedly told by Ziegler that the purpose of the card was to have the Union investigate and look around the store. Respondent correctly states the Board's standard for evaluating authorization cards when it is alleged that they were soliticted by misrepresentation: [E]mployees should be bound by the clear lan- guage of what they sign unless that language is deliberately cancelled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. [N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 606 (1969).] '4 Id. at fn. 2. See Abrasive Salvage Company, Inc., 127 NLRB 381, 392 (1960). 1S Quality Markets, Inc., 160 NLRB 44, 45-46 (1966), enfd. 387 F.2d 20 (3d Cir. 1967). 16 This case is thus distinguishable from Production Plating Company, 233 NLRB 116 (1977), cited by Respondent, where we did not count the card of an employee who revoked her authorization before the employer committed any unfair labor practices. However, we find that under this standard, Smith- erman's card constitutes a valid designation of the Union as her bargaining representative. Smitherman testified that Ziegler told her that, if a certain number of people signed the cards, the Union "would come in and investigate and . . . look around." Smitherman testified that Ziegler said nothing else about the card, and Smitherman immediately filled out the card and returned it to Ziegler. Ziegler denied that she told Smitherman that the purpose of the card was to have the Union investi- gate; she testified that she told Smitherman that, if 51 percent of the employees signed cards, the Union would come in and represent them. Examining the evidence in the light most favor- able to Respondent, there was no testimony that Ziegler "cancelled" the language on the card. The card's language is unambiguous in designating the Union as the signer's collective-bargaining repre- sentative, and Ziegler did not state that it was "solely" for another purpose or deny the clear lan- guage on the card. t 7 Therefore, we find that Smitherman's card constituted a valid designation of the Union, and it should be counted. Respondent also contends that the authorization cards of Karl Jones and Leta Dozier should not be counted because both employees revoked their au- thorizations. Karl Jones signed an authorization card on February 14. Jones testified that on or about February 29 he approached Melinda Ziegler, the principal employee organizer, and requested his card back. Jones' attempt to revoke his authoriza- tion occurred several weeks after Respondent's un- lawful activity began; therefore, we find that his at- tempted revocation was ineffective,' s and his au- thorization card should be counted. Leta Dozier executed an authorization card on February 5 in the presence of Melinda Ziegler. Dozier testified that she attempted to revoke her card a day or two later' 9 by telephoning Ziegler and asking for her card back. Ziegler denied that she and Dozier discussed the card at all after Dozier signed it. As mentioned above, the Admin- istrative Law Judge made no findings as to any cards other than those of Linda Vincent and Mike 17 See Tipton Electric Company v. N.L.R.B., 621 F2d 890, 895-896 (8th Cir. 1980). Respondent points out that Smitherman testified that she did not read the authorization card before she signed; this testimony was contradicted by a questionnaire she filled out for the Board in which she indicated that she did read the card. We find it unnecessary to reach the issue. As noted above, Smitherman's testimony did not indicate that Ziegler's statements about an investigation would direct her to forget the language on the card. Id. IR Quality Markets, Inc.. supra. See our discussion of Linda Vincent's attempted revocation, supra. 19 Dozier's testimony is unclear as to how much time elapsed between her signing of the card and her attempt to revoke. 254 WAREHOUSE GROCERIES MANAGEMENT. INC. Merchant; thus, the issue of credibility involved here was not resolved. Furthermore, the Administrative Law Judge did not make a specific finding as to when the unfair labor practices began.2 0 Thus we cannot determine whether Dozier's attempted revocation, if it indeed occurred, took place before Respondent began its coercive conduct, or was a product of that unlaw- ful activity. As Dozier's card is determinative of the issue of the Union's majority status,2' we shall remand the case to the Administrative Law Judge to make spe- cific findings as to () whether or not Dozier at- tempted to revoke her authorization card by call- ing Ziegler, and (2) whether this attempted revoca- tion, if it occurred, was subsequent to, and thus a result of, Respondent's unfair labor practices. If the Administrative Law Judge finds that Dozier's re- vocation was not effective, we conclude that the Union attained majority status on March 13. 5. The complaint alleges that on or about Febru- ary 20, the Union requested Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and that Respondent has re- fused and continues to refuse to bargain collective- ly with the Union. Respondent admitted in its answer that a request was made on February 20, but denies that it refused to bargain in violation of Section 8(a)(5). The Administrative Law Judge found that Respondent did not violate Section 8(a)(5) because the Union never attained majority support. He therefore dismissed that allegation of the complaint. We agree with the Administrative Law Judge that Respondent did not violate Section 8(a)(5) when Respondent failed to respond to the Union's February 20 bargaining request. However, we do not base this conclusion on the finding that the Union never obtained majority support. 2 2 Rather, we find that the February 20 request was not valid because the Union did not have a majority at that time, and there is no basis in the record for charac- terizing the demand as "continuing" until March 13 when, as discussed above, the Union may have ac- quired majority support.2 3 We therefore find that the General Counsel's allegation that Respondent 20 The Administrative Law Judge's reference to the earliest unfair labor practice is "about the first week in February. 21 If Dozier's revocation was valid, there are only 36 alid authoriza- tion cards for the 72-employee unit. 22 Thus we would not find a violation of Sec. 8(aHS) even if the Ad- ministrative Law Judge. on remand, finds that Leta Dozier's authoriza- tion card was valid and thus that the Union did attain majority status on March 13. 23 The facts surrounding the request and refusal were not brought out at the hearing unlawfully refused to bargain with the Union in violation of Section 8(a)(5) should be dismissed. 6. The General Counsel argues that Respondent's numerous unfair labor practices and the lingering effects of its past practices make the holding of a fair election unlikely, and that Respondent's con- duct may be remedied only by the imposition of a bargaining order. Respondent contends that we cannot issue a bargaining order in favor of the Retail Clerks Local 1657, United Food and Com- mercial Workers International Union, AFL-CIO, 24 because this Union was not designated as bargain- ing representative by the employees in the unit. The authorization cards read that the "under- signed hereby authorize(s) Retail Clerks Interna- tional Association, AFL-CIO,2 5 or its chartered local organization to represent me .... " Respon- dent contends that the cards do not authorize rep- resentation by the United Food and Commercial Workers International Union, AFL-CIO, and thus a bargaining order cannot issue in favor of that Union, or its Local 1657. Respondent also urges that the Union authorized by the cards, Retail Clerks International Association, ceased to exist on June 6, 1979. We find no merit in Respondent's contention. On June 6, 1979, the Retail Clerks International Association and the Amalgamated Meat Cutters and Butcher Workmen of North America 2 6 merged to become the United Food and Commer- cial Workers International Union, AFL-CIO.2 7 Under the terms of the merger agreement, neither the Retail Clerks nor the Meat Cutters has been dissolved, terminated, or discontinued, but both are continued as a single organization, the Food and Commercial Workers. The Food and Commercial Workers draws its International officers from both of the old Unions: the former International presi- dent of the Retail Clerks is now the International president of the new organization; the International secretary-treasurer of the Meat Cutters became the secretary-treasurer of the Food and Commercial Workers; and the International president of the Meat Cutters and the International secretary-trea- surer of the Retail Clerks are now executive vice presidents of the Food and Commercial Workers. The agreement also provides that International vice presidents of both organizations, 25 from the Retail Clerks and 23 from the Meat Cutters, shall be In- ternational vice presidents of the merged Union. All members of the Meat Cutters and the Retail 24 This name was changed at the hearing. over Respondent's objec- tion, from Retail Clerks. Local 1657. 2S Hereinafter referred to as the Retail Clerks. z2 Hereinafter referred to as the Meat Cutters. 27 Hereinafter referred to as the Food and Commercial Workers. 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clerks became members of the Food and Commer- cial Workers as of the date of their original mem- bership in the constituent Unions, by virtue of the merger agreement, and all employees of both groups remain employed by the merged Union. The agreement provides that all locals retain their charters and become chartered bodies of the Food and Commercial Workers. In recognition of the autonomy of the chartered bodies, the Food and Commercial Workers allows some discrepan- cies between the constitutions and bylaws of the locals and those of the merged organization. All property and all rights and obligations are trans- ferred to the Food and Commercial Workers as of the effective date of the merger. The agreement specifically provides that the merged organization assumes and is responsible for all debts, liabilities, contract obligations, and other obligations of the Retail Clerks and the Meat Cutters. We find that the Food and Commercial Workers succeeded to the representational rights of the Retail Clerks. In American Enka Company, a Divi- sion of Akzona Incorporated, 231 NLRB 1335, 1336- 37 (1977), the Board considered several factors of the merger agreement between the Textile Workers Union of America and the Amalgamated Clothing Workers of America, and concluded that the merged organization, the Amalgamated Clothing and Textile Workers Union, succeeded to the rep- resentational rights of the Textile Workers Union of America. All of these factors are present in the merger agreement forming the Food and Commer- cial Workers. It is clear that the merged organization has as- sumed all assets and liabilities, including contract obligations, of the two Unions. Furthermore, all ex- isting locals retain their personnel; thus, the local bargaining representatives of the Retail Clerks con- tinue to perform as local representatives of the Food and Commercial Workers, and day-to-day operations have remained as they were before the merger. We therefore find that the United Food and Commercial Workers International Union, AFL-CIO, is a continuation of the Retail Clerks International Association and the Amalgamated Meat Cutters and Butcher Workmen of North America and has succeeded to the representational rights of both Unions. 28 Having so found, we con- clude that, should the Administrative Law Judge find that a card majority exists herein, a bargaining order may issue in favor of Retail Clerks Local 1657, United Food and Commercial Workers Inter- national Union, AFL-CIO. 28 See also Pearl Bookbinding Company, Inc., 206 NLRB 834 (1973); Lloyd A. Fry Roofing Co., 118 NLRB 587 (1957); National Carbon Compa- ny, a Division of Union Carbide and Carbon Corporation (Edgewater Works), 116 NLRB 488 (1956). Should the Administrative Law Judge find that the Union attained majority status, we will agree with the General Counsel that a bargaining order is the appropriate remedy. The record reveals that Respondent confronted the employees' interest in organization soon after it started in early February with several instances of interrogation accompa- nied by threats of discharge and plant closure to in- dividual employees. These threats came from three management officials including Vice President of Human Resources Mark Gregerson, who told em- ployee Frances Wilson that the Company "had had the problem before and they had closed stores be- cause of this problem." Meat Market Manager Gene Taylor told employee Carol Abdoo that he had been involved in another organizational cam- paign where "things got rough," and the employ- ees "didn't last six weeks after we got it squashed." Management officials gave an employee the im- pression of surveillance of her union activity, and one instance of interrogation was followed by the solicitation of grievances. In March, Respondent stepped up its campaign. On March 16, General Manager Roger Dreyer read a speech to two separate groups of employees in which he threatened to close the plant. After one of the meetings, cashier LaTonia Jackson was told, "Maybe when all this is over, we'll all get a raise." On March 26, Melinda Ziegler, the principal employee organizer, was told, "[Y]ou would have been the highest paid cashier in the store, if it wasn't for this union business." An employee was instructed by management to avoid a prounion em- ployee. The coercive conduct culminated in an unfair labor practice strike on May 4. At least one employee, Melinda Ziegler, was still on strike at the time of the hearing. This coercive activity on the part of Respondent was intended to dissipate union support, and we find that it made the holding of a fair election an unlikely possibility. Respondent's constant refer- ence to its intention to close the store if the Union were selected was particularly destructive. The Board has long held that the threat of job loss through plant closure seriously interferes with the employees' ability to freely make choices in the election of a collective-bargaining representative. 29 Here, Respondent implied that it had closed stores before, and coupled these threats with the denial of a wage increase to the principal employee organiz- er because of her union activity. Respondent has thus demonstrated its willingness to penalize employees for their union support. This 29 See STE-MEL Signs. Inc., 246 NLRB 1110 (1979); General Stencils. Inc., 195 NLRB 1109 (1972) 256 WAREHOUSE GROCERIES MANAGEMENT, INC. kind of conduct renders slight the possibility of erasing its effects and ensuring a fair election through traditional remedies. We therefore con- clude that, should the Administrative Law Judge determine that the Union obtained majority status, employee sentiment once expressed through au- thorization cards can be best protected by a bar- gaining order. Having found that Respondent engaged in unfair labor practices, the Administrative Law Judge rec- ommended that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. Al- though we must await the Administrative Law Judge's Supplemental Decision to determine whether a bargaining order can issue in this case, we shall now issue an Order specifically remedying those violations found herein and by the Adminis- trative Law Judge. In view of the serious and egre- gious nature of the violations in this case, we shall issue a broad order to remedy the effects thereof.3 0 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as it Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Warehouse Groceries Management, Inc., Birming- ham, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph l(g) and insert the following as paragraphs l(g), (h), (i), and (j): "(g) Soliciting employee grievances in order to undermine support for a union. "(h) Threatening to close the store if employees engage in a strike. "(i) Promising employees economic benefits in order to undermine support for a union. "(j) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to Administrative Law Judge Marion C. Ladwig to reevaluate the record evidence in order to make credibility resolutions concerning the alleged revocation of an authoriza- tion card by Leta Dozier, and to make a finding whether that revocation, if it took place, occurred before Respondent began its campaign of unfair labor practices. 30 Cf. Hickmott Foods. Inc., 242 NLRB 1357 (1979). IT IS ALSO FURTHER ORDERED that the Adminis- trative Law Judge shall prepare and serve on the parties a Supplemental Decision containing credi- bility resolutions, findings of fact upon the entire record, conclusions of law, and recommendations; and that, following service of the Supplemental Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT deny you a wage increase or otherwise discriminate against any of you for supporting Retail Clerks Local 1657, United Food and Commercial Workers International Union, AFL-CIO, or any other union. WE WILL NOT coercively question you about union activities, union support, or union sympathies. WE WILL NOT threaten to discharge you if you support a union. WE WILL NOT threaten to close the store if you select a union. WE WILL NOT create the impression that we are keeping your union activities under surveil- lance. WE WILL NOT direct any of you to avoid any employee for organizing or supporting a union. WE WILL NOT solicit your grievances in an attempt to undermine your support for a union. WE WI.L NOT threaten to close the store if you engage in a strike. WE WILL NOT promise you economic bene- fits in order to undermine your support for a union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights mentioned above. 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL give Melinda Ziegler a wage in- crease, effective March 26, 1979, and pay her for the withheld increase, plus interest. WE WILL, upon application, reinstate strik- ing employees to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dis- missing persons hired on or after May 4, 1979, if necessary, to make room for them, and give them backpay and interest if they are not timely reinstated. WAREHOUSE GROCERIES MANAGE- MENT, INC. DECISION ST ATIMENT or THE CASI MARION C. LADWIG, Administrative Law Judge: These consolidated cases were heard at Birmingham, Al- abama, on January 14-16 and February 4-6, 1980. The charges were filed by Meatcutter Local 4421 on April 17, 1979,2 and by Retail Clerks Local 16573 (herein also called the Union) on April 17 and July 25, and consoli- dated complaints were issued on July 12 and September 14. The primary issues are whether Warehouse Groceries Management, 4 the Respondent, after the Union began an organizational drive at the Birmingham store: (a) coer- cively interrogated employees, (b) threatened to dis- charge employees, (c) threatened to close the store, (d) created the impression of surveillance, (e) threatened to eliminate female employees, (f) directed employees to avoid employee organizers, (g) discriminatorily denied a wage increase to the principal employee organizer, (h) discriminatorily denied a day off to another union sup- porter, (i) unlawfully solicited grievances, and (j) prom- ised employees a wage increase; whether the May 4 strike was an unfair labor practice strike; and whether a bargaining order is appropriate to remedy the alleged violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Upon the entire record,5 including my observation of the demeanor of the witnesses, and after due consider- ation of the briefs filed by the General Counsel and the Company, I make the following: I The name of this Meatcutters local is changed to reflect the new name resulting from the June 7, 1979, merger of Retail Clerks Interna- tional Union and Amalgamated Meatcutters and Butcher Workmen of North America. All dates are in 1979 unless otherwise indicated. : The name of this Retail Clerks local was amended at the hearing to reflect the new name. 4 The name of the Company appears as amended at the hearing. " The following documents from the International's office are received as Respondent exhibits: Resp. Exh. 13-1, cover and president's page from February 1979 "Butcher Workman"; Resp. Exh. 13 2. cover and presi- dent's comments from March 1979 "Advocate"; and Resp. Exh. 13-3, UFCW authorization card. FININCiS of FACT I. JURISI)ICIION The Company, an Alabama corporation, is engaged in the retail grocery business in Birmingham, Alabama, and other cities where it annually purchases goods valued in excess of $50,000 directly from outside the State and has a gross volume of business in excess of $500,000. The Company admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of the Act. II. AI.I.GI) UNIAIR ABOR PRACTICES A. Interrogation, Threats, and Other Coercion 1. By Gene Taylor Threats and impression of surveillance: Around the first of February, union organizing began at the Birmingham store on behalf of the Meatcutters local in the meat market and on behalf of the Union in other areas of the store. (The store had opened on August 27, 1978. The Company had 10 other nonunion stores; a 12th store, in La Grange, Georgia, had previously been closed.) About the first week in February, as meat merchandiser Carol Abdoo credibly testified, Meat Market Manager Gene Taylor called her into the market office. He told her, "I know there's been some union activity going on in this store. I know you and [meat market employees] Delores and Bo and Jimmy have already signed cards." Abdoo responded, "Yes, sir, that is right." Then Taylor said, "It won't work. I've seen it happen too many times. I was in La Grange, Georgia, when they tried to organize, and I can tell you that things do get rough, and I will tell you something else, the people that were working for me didn't last six weeks after we got it squashed." He added, "I can be a nice guy, but I can be nasty." (Taylor testi- fied that he had worked in the La Grange store, but he denied having the conversation with Abdoo. He did not impress me as being a candid witness, and I discredit his denial. Abdoo, on the other hand, impressed me as being an honest witness. She readily admitted on the stand-as well as at the time-that she had signed the name of meat market employee Gene Atkins to a Meatcutters au- thorization card, thinking that he had given her his verbal permission. I noted that she was reluctant at first to implicate another employee when asked who forged John McGraw's card and who forged Larry Bishop's card for the Meatcutters-testifying, "I don't know . . . I don't know whether I would like to be the person to tell." However, at my request, she did identify the em- ployee, Delores Hardisty.) Whether or not it was true that there had been a union campaign at the La Grange store, I find that Taylor's statements to Abdoo about things getting "rough," his being able to be "nasty," and employees not lasting 6 weeks after the union campaign was "squashed" constituted at least an implied threat of discharge if the employees supported a union and violat- ed Section 8(a)(1) of the Act. Particularly in this context, I find that his statements to Abdoo that he knew that 258 WAREHOUSE GROCERIES MANAGEMENT. INC. there was union activity in the store and that three of the meat market employees had signed authorization cards- giving the impression of surveillance of union activities- were coercive and tended to interfere with employee Section 7 rights, in violation of Section 8(a)(l) of the Act. Threat: According to meat wrapper Delores Hardisty, Market Manager Taylor talked to her in the office about the middle of February and told her that the Company would close the store before they let a union in. Howev- er, she did not impress me as being a trustworthy witness and I do not rely on the accuracy of her testimony. I therefore find that the allegation of this threat of closure must be dismissed. I note that, after the wrongful signing of one Meatcut- ters authorization card by Abdoo and three by Hardisty were revealed, the Meatcutters local abandoned the or- ganizing effort among the meat market employees. 2. By Stuart Pody Threat and interrogation. Also in early February, Di- rector of Perishables Stuart Pody spoke to employee Abdoo in the meat market office. As Abdoo credibly tes- tified, "Mr. Pody asked me if I knew anything about any of the union activity going on in the store." She admitted that she did and that she had signed one and passed out other authorization cards. "He asked me why did we want a union." After a long discussion, he finally stated, "Well, it really doesn't matter anyway. This company will never let a union in the store. They'll close it up first and they'll just take all the stock and the fixtures and move it to another location." (Pody testified that nobody gave him any guidelines for discussing the union with employees, and claimed that he was "not really" concerned about the union organizing, that it was Abdoo who raised the subject of unions, that she told him that she had signed a card, and that he responded that "that was up to her." He impressed me as being less than candid, and I discredit his denials of Abdoo's testimony.) Accordingly, I find that Pody threatened closure of the store if the employees supported a union, and further find, in this context, that his interrogation of Abdoo about the union activity and the reasons for wanting a union tended to be coercive, violating Section 8(a)(l) of the Act. Threats and interrogation: Pody also talked to employee Francis Wilson alone in the meat office. After telling her that she had been a good employee, Pody asked her "who was passing the union cards around through the store." When she refused to discuss it, as she credibly testified, Pody told her that "we've got a young . . . growing company here," and "because it creates prob- lems for the management . . . we're not going to have a union coming in here and telling us how to run our busi- ness." He then said, "I know that Mr. Pete Gregerson owns the company . .. I know him very well . . . he will close this store up first, and that's putting the guilty and the innocent out of a job." (I discredit Pody's den- ials, and specifically discredit his claim that he told Wilson, "We have no intentions of closing any store.") I find that Pody's statements to Wilson that "we're not going to have a union coming in here," that the owner would "close the store up first," and that that would be "putting the guilty and the innocent out of a job." consti- tuted both a threat to close the store if the employees se- lected a union and a threat to discharge employees for supporting a union, in violation of Section 8(a)(1) of the Act. I also find that in the context of these threats, the interrogation of Wilson about "who was passing the Union cards around through the store" tended also to be coercive and violated Section 8(a)(1) of the Act. Interrogation: In still another conversation about the union organizing with a meat market employee alone in the meat office in February, Pody spoke with meatwrap- per Betty Dunn. As she credibly testified, Pody "asked me if I thought I needed someone to represent me." She did not answer and they proceeded to talk about her se- niority, her rate of pay, and her shift. He told her she was a good worker, said he thought she should get top pay and a choice of shift, and promised that "when all the union stuff is over" she would get them. (I discredit, as fabrications, Pody's testimony that he did not know about the organizing campaign when he spoke to Dunn in February, and that when he asked her if there were anything that he could help her with "She asked me if I knew that there were some cards being signed." Dunn appeared to be an honest, forthright witness, and I dis- credit Pody's denials of her testimony.) Particularly in view of Pody's comment about what would happen "when all the union stuff is over," I find that he coer- cively interrogated Dunn about whether she "needed someone to represent" her, further violating Section 8(a)(l) of the Act. 3. By Randolph Kelley Interrogation: A few days after Perishables Director Pody coercively interrogated meatwrapper Dunn in the meat market office, Shift Manager Randolph Kelley in- terrogated her in the breakroom about the union organiz- ing in the market. As she credibly testified, Kelley "asked me what was all that union talk about in the market." When she answered that she did not know, he said, "Well, you know, I was going to try to talk you out of it." (From his demeanor on the stand, Kelley did not impress me favorably as a witness. I discredit his denials of this interrogation.) I find that this additional interrogation, in the absence of any justification, without assurances of nonreprisals, and in the context of the threats and other coercive conduct in the Company's an- tiunion campaign, was also coercive and violated Section 8(a)(1) of the Act. Interrogation: About the middle of February, Kelley also interrogated stocker Kelvin Perry. Kelley ap- proached Perry in the aisle and, as Perry credibly testified,"he asked me, did I know anything about the Union being formed in the store." Although Perry had signed an authorication card a few days earlier, he an- swered no. Then Kelley "asked me did I know anyone passing out union cards." Perry again said no, and Kelley said, "Some lady gave me your name." Perry denied knowing anything about it and Kelley, after a pause, said, "You're okay," and walked off. (Kelley claimed that he told Perry "that I had information that 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had signed a union card," and testified that he did so because he wanted to "find out was it true." Perry im- pressed me as being the more trustworthy witness, and I credit his version of the conversation.) In view of the at- mosphere of coercion created by the Company's threats and other unlawful conduct, I find that Kelley's interro- gation of Perry without justification or assurances of nonreprisals tended to be coercive and violated Section 8(a)(1) of the Act. Interrogation: Later in February, Kelley not only inter- rogated one of the employees, but attempted to force him-through intimidation-to reveal the identity of the union organizers. The employee was Charles "Eddie" White, who was assisting employee organizer Melinda Zeigler in getting authorization cards signed. Before White joined in the organizing, Kelley had talked about getting him promot- ed to management. In the latter part of February, as credibly testified by White (who impressed me by his demeanor on the stand as being a very sincere, forthright witness), Kelley called him into the store manager's office and asked, "Why are you all in this union mess?" White said he did not know much about it, and Kelley stated, "Well, what if I told you I could bring somebody in this room right now that would say that they gave you a card and you signed it?" When White said he thought Kelley was bluffing, Kelley said he knew that White and Operations Vice President Len Kulas were "real good friends" because of White's friendship with Kulas' son, and "that he would hate to have to tell them that I was fixed up in all this union stuff, when he didn't want me . . . to lose friends with him." (A short time before, White had stayed overnight in the Kulas' home.) Kelley mentioned how well he and White had "got along" together; said, "You are such a good kid . . . I don't see why you want to go and get into this," and kept talking about how White "could move up" because he was smart and "didn't need people to get" him "in this mess." Kelley asked if White had been offered a union authorization card, and White ad- mitted it but falsely denied signing the card (explaining on the stand, "I lied to him then because I didn't want to lose my job"). Kelley stated that, if White would tell who was passing out union cards, "he wouldn't say any- thing," but White responded, "I promised I wouldn't tell." Kelley then made the threat that he would call Human Resources Vice President Mark Gregerson "and Mr. Kulas and my manager, and several others, in there and they would all question me if I wouldn't tell who was passing out union cards; and I told him I was going to call his bluff. I still wouldn't tell him." (When called as a defense witness, Kelley denied knowing that White supported the Union. He admitted having a conversation with him in the manager's office, but claimed that he did so because White "was lacking in production." Concern- ing whether he asked White if he were involved with the Union, Kelley claimed, "No, I didn't directly ask him was he involved with the union. At that time, he told me that he wanted me to know that he wasn't a union orga- nizer, that he had nothing to do with organizing," and "I told him, "That's fine." Kelley further claimed, "I didn't ask Eddie White was he involved with the union," but "I told him that I had information that he signed a union card," and nothing else. The Company argues in its brief that "Mr. Kelley's testimony to his conversation is more credible that Mr. White's version." I disagree.) I find that Kelley's interrogation of White was clearly coer- cive, and violated Section 8(a)(l) of the Act. Promise. In March, after one of the Company's antiun- ion meetings, cashier La Tonia Jackson (as she credibly testified) spoke to Kelley in the aisle, complained about not being able to ask questions at the meeting, and com- mented, "I do think we should be making more money." Kelley responded, "Maybe when all this is over, every- one will get a raise." (Kelley did not concede making this statement to her.) In agreement with the Company, I find that this "ambiguous remark," made in response to the unsolicited statements of the employee, did not con- stitute the alleged promise to give a wage increase if the employees refrained from union activity. I therefore find that the allegation must be dismissed. 4. By Ed Swyner Direction to Avoid. Stocker Kelvin Perry credibly testi- fied that about the third week in March, Shift Manager Ed Swyner approached him at the front of the store and "told me that he didn't want me to hang around Eddie White" (the employee who was assisting cashier Zeigler in getting authorization cards signed), and "told me that Eddie just wanted to influence me to join the Union." Perry responded that he was not going to stop being White's friend just because of union activities. (Although admitting knowledge that White was an active union supporter, Swyner denied saying anything to Perry about a union. Swyner claimed that White had asked Perry to go with White to a party, and that he told Perry, "You don't want to go out with Eddie; he's bad news." From their demeanor on the stand, Perry im- pressed me as being the more trustworthy witness and I credit his version of the conversation.) Despite Perry's response, I find that Swyner's direction to Perry-that he did not want Perry "to hang around Eddie White" because "Eddie just wanted to influence" Perry to join the Union-tended to interfere with employee Section 7 rights and violated Section 8(a)(1) of the Act. 5. By Mark Gregerson Soliciting Grievances. The complaint alleges that Vice President of Human Resources Mark Gregerson unlaw- fully, about February 10 and 15, "solicited its employees concerning grievances" they had. However I agree with the Company that part of Gregerson's job, both before and after the beginning of the union organizing, was to travel to the Company's various stores, to meet with in- dividual employees, and to attempt to resolve their prob- lems. I find that his continuation of this practice was not unlawful, and therefore find that this allegation must be dismissed. Threat. About the middle of February, as employee Frances Wilson credibly testified, Gregerson met her in the office, said "he understood that there were union cards being passed around the store," said that "some companies needed a union" but that "this company did 260 WAREHOUSE GROCERIES MANAGEMENT. INC. not need a union and didn't intend to have one, and that they would be talking with me later on." Gregerson also told her "that they had had the problem before and they had closed stores because of this problem." (I discredit Gregerson's denial that he ever had a conversation with Wilson about the Union.) Whether or not it was true that the Company had closed stores because of the union problem. I find that Gregerson's statement that the Com- pany "didn't intend to have" a union and "they had closed stores because of this problem" constituted at least an implied threat to close the store if the employees designated a union and violated Section 8(a)(1) of the Act. Threat. According to cashier Linda Elrod, she talked to Gregerson in the breakroom about the middle of March, asked about borrowing money from the credit union to buy a car, asked him what would happen if the union came in, and "he said that it wouldn't, that the store would close and be opened under a different name." However, as credibly testified by cashier Melinda Zeigler (who impressed me most favorably as a witness), she was present when Elrod talked over the telephone to Gregerson about the car loan and about whether the store would be closed, and Gregerson assured her that the store was not going to close. I discredit, as a fabrica- tion, Elrod's testimony about the threat and find that the allegation of this closure threat must be dismissed. Having found that Elrod gave fabricated testimony, I do not rely on the accuracy of her disputed testimony in support of the allegation that Front End Manager Tim Franklin unlawfully interrogated her on April 3. Threat. According to cashier Beverly Willoughby, in the middle of March she attended a cashiers meeting in the breakroom in which Mark Gregerson told the cash- iers that if the Union went through, they would close the store and open it with new employees under the name "Super Value." She testified that La Tonia Jackson was one of the cashiers present. However, Jackson testified that, at the meeting she attended with various cashiers in March, Board Chairman Peter Gregerson said that they would not close the store. (Jackson appeared to be a credible witness.) I discredit Willoughby's claim that Mark Gregerson made the closure threat at the meeting, and also her claim that she later overheard him tell Store Manager Ray Kugler "that he would close the doors." I therefore find that the allegation that Mark Gregerson threatened store closure must be dismissed. Finding this testimony not to be credible, I do not rely on the accura- cy of her testimony that Store Manager Ray Kugler twice, in March and April, directed her to stay away from employee organizer Melinda Zeigler. Threat. Employee Wilson credibly testified that in a meeting of meat market employees in April, some of the men "brought it up that they had been down to some of the union stores here in town, and they didn't have many women working in the market." Mark Gregerson re- sponded that "they paid such high wages that they could use the men to run the machines and unload the truck and everything, so that was a good idea." The complaint alleges that Gregerson thereby "threatened its employees that jobs for female employees would be eliminated if they designated the Union as their bargaining representa- tive." However, in agreement with the Company, I find that Gregerson's statement is too ambiguous to support the allegation of such a threat. I therefore find that the allegation must be dismissed. 6. By Roger Dreyer Threat. On March 16, General Manager Roger Dreyer read a speech to two separate groups of employees. Cashier Zeigler, who attended one of these meetings, gave testimony in support of an allegation that Dreyer, in the speech, threatened employees with store closure if they selected the Union. Although Zeigler was able to recall much of the speech, I find that she was mistaken in recalling two parts of it. She recalled that when Dreyer referred to the February closing of the Foodway store in Sumiton, Alabama, after the union called a strike, Dreyer said that "The employees were fired and the store closed." The written speech instead read, "the store had closed-and all the employees had lost their jobs." She also recalled that later in the speech, Dreyer said that if the employees did strike, the Company would have two choices: "No. 1, close the store; No. 2, fire the employees and hire new workers." The speech, however, read: "if the union does call a strike, we'll only be left with two choices. We can either close the store down, in which case everyone loses their jobs like that happened up in Foodway in Sumiton, or we can replace the strik- ers and try to operate the store." I find that the speech, as read by Dreyer, does not threaten the closure of the store if the employees selected the Union. I therefore find that this allegation must be dismissed. B. Alleged Discrimination 1. Denial of wage increase Cashier Melinda Zeigler was the principal employee organizer in the store. Around March 26, as she credibly testified, she approached Shift Manager Kelley at the front office and asked to talk with him. At his sugges- tion, they went to the back office where she asked, "Randolph, why is there so much tension around? What is wrong?" Kelley answered, "It's because of all this union business," and asked, "Why can't we call this whole thing off? Why can't we go back and be like we were before?" Zeigler said it was too late, that she was determined to see the store become union, and that she was going to work hard at it. He asked why and she said they had been treated unfairly. "I was promised a raise. I worked hard for it. I did a lot of extra things that you asked me to do. And the promises weren't kept." Kelley then revealed: "There's been several managers' meetings held lately and your name was brought up in these meet- ings." He continued, "By now, you would have been the highest paid cashier in the store, if it wasn't for this union business." (Emphasis supplied.) She responded that if that was the way it was, then she would have to see it through and left the office. (Kelley denied telling Zeigler about the meetings and denied telling how she would have been the highest paid cashier if it had not been for her union activities. However, he impressed me unfavor- ably as a witness, appearing to be willing to give what- 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever testimony might help the Company's cause; whereas Zeigler impressed me as being a most sincere witness, doing her best to give an accurate account of what hap- pened. I credit her testimony and discredit his denials.) By his admission to her, Kelley revealed that by March 26, the Company had denied Zeigler a wage increase to that of the highest paid cashier because of her union ac- tivity. I therefore find, as alleged, that the Company un- lawfully discriminated against her in violation of Section 8(a)(3) and (1) of the Act. 2. Denial of day off According to cashier Linda Elrod (who, as found above, gave fabricated testimony about a closure threat by Vice President Gregerson), Shift Manager Swyner re- fused to permit her to leave work one evening in April when she said she was not feeling well. She claimed that Swyner said, "You ask Melinda or your other union bud- dies if you can have off. Ask them for any favors you want because I'm not doing you any favors." Swyner, on the other hand, testified that he had been having trouble with her giving false reasons for missing work, and that on this occasion he told her, "You are scheduled to work, and I need you, and I can't get anyone else at this time"-saying nothing about Melinda Zeigler or the Union. In view of the fabricated testimony she gave, I do not rely on the accuracy of Elrod's version of what occurred on this occasion. I therefore find that the allegation that she was discriminatorily denied a day off must be dis- missed. C. Unfair Labor Practice Strike As the leading union organizer in the store, cashier Zeigler was receiving complaints from employees in both the meat market and other areas of the store about the way they were being treated-particularly the repeated interrogation. Stocker Perry told her about Shift Man- ager Kelley interrogating him about his knowledge of union organizing in the store and of "anyone passing out union cards." Meat wrapper Dunn told her and other employees about Perishables Director Pody's interrogat- ing Dunn and making Dunn promises "when all the union stuff is over." Zeigler discussed with other employees the harass- ment, the questioning by management personnel about who signed cards and who were handing out cards, and the talk about the store closing. Finally on Wednesday evening, May 2, one of the employees she had been dis- cussing this with, cashier Shyrln Drawhorn, telephoned her from work and she told Drawborn, "If enough people are ready to go on strike, then I'll come into the store, and we'll all leave at the same time," Zeigler did on Friday morning, May 4, and she and six other em- ployees on duty (including four meat department em- ployees) immediately went on strike. That afternoon they began passing out handbills which asked customers not to patronize the store "DUE TO THE UNFAIR TREATMENT WE HAVE RECEIVED SINCE TRYING TO ORGANIZE A UNION," (At least Zeigler still remained on strike at the time of the hear- ing.) Apparently in reference to the evidence, discussed above, of repeated threats (by Meat Market Manager Taylor, Perishables Director Pody, and Vice President Gregerson) that the store would close and/or employees discharged, the Company argues in its brief that "any threat of store closure would have been de minimis in light of the Respondent's Chairman of Board, Mr. Peter Gregerson, telling all employees that the store would not close. This is not persuasive. Peter Gregerson's statement was not made at a storewide meeting. Although he did make such a statement at one of many group meetings held, and Vice President Mark Gregerson once made a similar statement to employee Elrod, the Company was not eliminating the fear of store closing from its antiun- ion campaign. The Company distributed to all employees a pamphlet which showed the picture of two closed A&P stores, stated that "The Retail Clerks Union was in both these stores . . . Nobody works at either of these stores anymore-They Closed!" and urging employees to vote no for "real job security." Mark Gregerson testified that he was probably averaging a couple of meetings with employees a week, and that when discussing the pamphlet with the employees, "It could have been tied in indirectly for union activity for their store closing." He also admitted discussing in group meetings the clos- ing of the unionized store in Sumiton (also discussed at length in General Manager Dreyer's prepared speech on March 16), and pointing out, "And the same thing could happen here." D. Refusal To Bargain I. Appropriate bargaining unit The parties agree that the following is an appropriate bargaining unit: All full-time and regular part-time employees em- ployed by the Respondent at its Birmingham, Ala- bama facility, including all cashiers, courtesy clerks, security receivers, night and day stock clerks, pro- duce clerks, floormen, non-food clerks, dairy and frozen food clerks, and head cashier, and the head stocker, but excluding the store manager, assistant store manager, the shift supervisors, the produce manager, the front end manager, the bookkeeper, all office clericals, guards and supervisors as defined in the Act, and all other employees. The parties stipulated that on March 13, the date the General Counsel contends the Union was able to estab- lish itself as the majority representative, the bargaining unit included 71 of the 72 persons on the March 9 voter eligibility list, General Counsel Exhibit 4. (Union Orga- nizer James Richardson recalled that the Union's election petition was "pulled" on March 14). They are in dispute over whether the 72d person on the list, Burt Russell, should be excluded as a supervisory employee. Until March 10, Russell was one of four or five pro- duce clerks working under Produce Manager Joe Lemons. Russell's employment application shows that he 262 WAREHOUSE GROCERIES MANAGEMENT, INC. had had 8 years of previous experience as a produce manager when he was hired in August 1979 at $4.75 an hour, about $1 more than any of the other produce clerks. His rate of pay was increased to $5 an hour on October 12, 1978, and to $325 a month on May 14, when he was promoted to produce manager, placed on salary, and covered by the supervisors' benefit plan. When Lemons left on March 10, according to Perishables Di- rector Stuart Pody, Produce Merchandiser Ted Crouch was temporarily placed in charge of produce at the Bir- mingham store, and Russell was not given any supervi- sory authority until his promotion over 2 months later. Neither Russell nor any of the produce clerks was called to testify about Russell's duties after Lemons' departure, and the General Counsel offered no evidence that Rus- sell was in fact supervising the other produce clerks in the meantime. I therefore find that the General Counsel has failed to prove that Russell either possessed or was exercising any supervisory authority on March 13. Ac- cordingly I find that Russell must be included in the bar- gaining unit, making a total of 72 employees in the unit on March 13. 2. Majority status not shown To prove that the Union on March 13 represented a majority of the employees in the appropriate bargaining unit, the General Counsel introduced into evidence 38 authorization cards (G.C. Exhs. 5-1 through 5-38)-I more than the 37 cards needed for a majority of the 72 employees. The cards are on the reverse sides of postage-paid postcards, addressed to "Retail Clerk's Union Local 1657, AFL-CIO." The cards contain clear and unambi- guous language, authorizing "Retail Clerks International Association, AFL-CIO, or its chartered Local Union" to represent the signers for the purpose of collective bar- gaining. A total of 12 of the cards were authenticated by the persons signing the cards (Elrod, Jackson, Latta, Mi- lazzo, Moore, Perry, Potts, Spann, White, Williams, Wil- loughby, and Zeigler). Cashier Zeigler authenticated 16 other cards (Anderson, Christine Carter, Robert Carter, Dozier, Drawhorn, Fitzgerald, Hallmark, Henry, Jen- kins, Merchant, Parker, Smitherman, Tarver, Thompson, Vincent, and Whitley). Employee White authenticated an additional four cards (Champion, Gilliland, Slater, and Mickey Smith). The remaining six cards were authenti- cated by Union Organizer Richardson (Crockrom, Cum- mings, Ellis, Jones, Mangina, and Sullivan). After reviewing the evidence and considering the posi- tions of the parties, I find it clear that two of the authori- zation cards were not shown to be valid designations of the Union on March 13. Cashier Linda Vincent, who signed a card on Febru- ary 15 (G.C. Exh. 5-38), had taken reasonable steps on February 16 to revoke her card. At the time Vincent signed the card on the job, as cashier Zeigler credibly testified, she told Zeigler, "Melinda, swear to me that nobody will ever find out because I'm scared I'll lose my job." The following evening, she told Zeigler, "Melinda, I'm scared. Tear my card up." Zeigler told her, "I don't have it any more. I've already turned it into Retail Clerks. You'll have to call them to get it back." (Vincent did not appear to have as good a recollection of what happened. The postal side of the card shows that Zeigler had turned in the card on February 16 to Organizer Richardson.) There is no evidence that anyone ever said anything to Vincent about cardsigners being discharged for signing cards. (Vincent testified, "I just changed my mind," and was not frightened.) In TMT Trailer Ferry, Inc., 152 NLRB 1495, 1496 (1965), where two employees attempted to revoke their authorization cards "on their own initiative without any prompting or interference" by the employer, the Board held that they effectively re- voked the authorization "by seeking to retrieve their cards from the employee who had solicited their signa- tures." Here, on the day after she signed the card, Vin- cent on her own initiative requested Zeigler, who had solicited her signature, to tear up the card. I find this re- quest was an effective revocation of her authorization of the Union to represent her, and therefore find that the card was not a valid designation of the Union on March 13. The other card, purportedly signed by Mike Merchant (G. C. Exh. 5-27), was not properly identified. Employ- ee organizer Zeigler recalled that she solicited Merchant to sign the card, that he brought the card back to her signed, and "I turned it over to Mr. Richardson the next time I saw him." She gave extensive testimony, and she impressed me most favorably as a sincere witness, with generally a good memory for details. However, I find that this was one of the instances in which her memory failed her and that she was mistaken in recalling that she received and turned in Merchant's card. The card on its face shows that the store address and store number were filled in with a different pen from the one used by the cardsigner, and in the same handwriting as the store ad- dress and number on an authorization card which em- ployee White solicited from employee Shayne Gilliland (G.C. Exh. 5-18)-not the handwriting for the store ad- dress and number which Zeigler filled in on such cards as those signed by cashier Lynn Anderson (G.C. Exhibit 5-37) and stocker Charles Moore (G.C. Exh. 5-3). More- over, the postal side of the card shows that "Eddie White" turned in the card to Organizer Richardson, not Zeigler. (The General Counsel failed to question White about this card when White was authenticating Gilli- land's and three other cards.) Thus there is no proof that Merchant placed the signature on the card. I therefore find that the card cannot be counted. Having found that two of the authorization cards cannot be counted as valid designations of the Union on March 13, leaving only 36 cards in a bargaining unit of 72 employees, I find that the General Counsel has failed to prove that the Union represented a majority of the employees on that date. 3. Bargaining order not appropriate In the absence of proof that the Union had achieved majority status, I find that the Company did not unlaw- fully refuse to bargain with the Union in violation of Section 8(a)(5) of the Act when the Company failed to respond to the Union's February 20 bargaining request. I also find that in these circumstances, the remedial bar- 263 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining order sought by the General Counsel is inappro- priate. United Dairy Farmers Cooperative Association, 242 NLRB 1026 (1979). In view of these findings, I find it unnecessary to rule on the Company's contentions that other authorizations should also not be counted; that the Company was enti- tled to see the affidavits given by cardsigners who did not testify; and that the alleged unfair labor practices, even if proved, were not so pervasive or outrageous as to preclude the holding of a fair and reliable election. CONCLUSIONS OF LAW 1. By coercively interrogating employees, by threaten- ing to discharge employees and to close the store if they supported or designated a union, by creating the impres- sion of surveillance of union activities, and by directing an employee to avoid an employee organizer, the Com- pany engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discriminatorily denying on or about March 26, 1979, cashier Zeigler a wage increase to the rate of the highest paid cashier, to discourage membership in the Union, the Company violated Section 8(a)(3) and (1) of the Act. 3. The May 4, 1979 strike, caused and prolonged by company unfair labor practices, was an unfair labor prac- tice strike. 4. The General Counsel has failed to prove that the Company unlawfully threatened to eliminate female em- ployees if they designated a union, discriminatorily denied a day off to an employee for supporting a union, solicited employee grievances in order to undercut the union organizing, or promised employees a wage in- crease if they refrained from union activities. 5. The General Counsel has failed to prove that the Union achieved majority status in the appropriate bar- gaining unit, or that the Company unlawfully refused to honor the Union's bargaining request. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order the Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily denied one of the cashiers a wage increase on or about March 26, 1979, 1 find it necessary to order Respondent to grant her the in- crease retroactive to that date and to compensate her for the amount of the increase withheld, with interest com- puted in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977). As found, the strike which began on May 4, 1979, was an unfair labor practice strike from its inception. The strikers therefore became unfair labor practice strikers as of that date. Accordingly, I find it necessary to order Respondent to offer the strikers, upon their uncondition- al applications to return to work, immediate and full re- instatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges, dismissing, if necessary, persons hired on or after May 4, 1979, and make the strikers whole for any loss of earnings they may suffer as a result of Respondent's re- fusal, if any, to reinstate them in a timely fashion, by paying to each of them a sum of money equal to that which each would have earned as wages during the period commencing 5 days after the date on which each unconditionally offers to return to work to the date of Respondent's proper offer of reinstatement, less any net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977). (See, gener- ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).) However, if the Respondent has already rejected, or hereafter rejects, unduly delays, or ignores any uncondi- tional offer to return to work, or attaches unlawful con- ditions to its offer of reinstatement, the backpay will commence on the date of the unconditional offer to return to work. Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637 (1978). Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER6 The Respondent, Warehouse Groceries Management, Inc., Birmingham, Alabama, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Denying a wage increase to or otherwise discrimin- ating against any employee for supporting Retail Clerks Local 1657, United Food and Commercial Workers In- ternational Union, AFL-CIO, or any other union. (b) Coercively interrogating any employee about union activity, union support, or union sympathies. (c) Threatening to discharge employees for supporting a union. (d) Threatening to close the store if the employees se- lected a union. (e) Creating the impression of surveillance of union ac- tivities. (f) Directing any employee to avoid any employee or- ganizing for a union. (g) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Grant Melinda Zeigler, retroactive to March 26, 1979, the wage increase discriminatorily denied her and make her whole for the amount of the increase withheld since that date in the manner set forth in the Remedy section. 6 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 find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 264 WAREHOUSE GROCERIES MANAGEMENT, INC. (b) Upon application, immediately reinstate the unfair labor practice strikers and make them whole for any loss of earnings that they may have incurred as a result of any refusal of timely reinstatement, in the manner set forth in the Remedy section. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its store in Birmingham, Alabama, copies of the attached notice marked "Appendix." ? Copies of the I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted Pursu- notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from tne date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 265