Davis Supermarkets

426 306 NLRB No. 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Respondent’s request for oral argument is denied as the record, the exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 In finding that the Respondent unlawfully rendered assistance to the Steelworkers by urging its employees to join the Steelworkers and by permitting the Steelworkers to utilize its facility, the judge inadvertently stated that the Respondent violated Sec. 8(a)(5) of the Act. The complaint alleges, and it is clear from his discussion, that the judge intended to find that the Respondent violated Sec. 8(a)(2). 4 All subsequent dates are in 1986 unless indicated otherwise. Davis Supermarkets, Inc. and United Food and Commercial Workers International Union, Local Union 23, AFL–CIO–CLC. Cases 6–CA– 19076, 6–CA–19159, 6–CA–19428, and 6–CA– 19388 February 27, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH On March 28, 1990, Administrative Law Judge John H. West issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings,2 and conclusions3 as modified and to adopt the remedy and recommended Order as modified. 1. The judge found that the Respondent unlawfully discharged six employees on April 19, 1986.4 The Re- spondent excepts to the judge’s finding that the Com- pany had knowledge of the employees’ union activity. In agreeing with the judge’s finding that the discharges were part of a scheme to thwart the employees’ orga- nizing drive, we also rely on ACTIV Industries, 277 NLRB 356 fn. 3 (1985), in which the Board stated: [W]e emphasize that it is the Respondent’s mass discharge, and not its selection of employees for the discharge, that is unlawful. Accordingly, the General Counsel was not required to show a cor- relation between each employee’s union activity and his or her discharge. Pyro Mining Co., 230 NLRB 782 fn. 2 (1977); see Birch Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985). Instead, the General Counsel’s burden was to establish that the mass discharge was or- dered to discourage union activity or in retaliation for the protected activity of some. 2. The complaint in Case 6–CA–19159 alleges that the Respondent ‘‘discriminatorily refused to permit the Union to picket and handbill on its Hempfield Town- ship, Pennsylvania property, while permitting other or- ganizations access to its property for purposes of solic- iting its customers and related activities.’’ For the fol- lowing reasons, we find merit to the complaint allega- tion. On May 23, the Union established a picket line at the Respondent’s Hempfield store to protest the Re- spondent’s unfair labor practices. The pickets, sta- tioned on the sidewalk in front of the store, carried signs and distributed handbills to the Respondent’s customers. The Respondent’s president, Robert Davis, told the pickets they were not allowed on the sidewalk and threatened to call the police. On May 24, as a re- sult of an injunction against the picketing obtained by the Respondent, the pickets were advised they could not picket on the sidewalk in front of the store. The pickets moved to the two parking lot entrances. On the same day that the Respondent refused to allow the pickets to remain in front of the store, it per- mitted a charitable organization to set up a table on the sidewalk and sell raffle tickets for a car, which was parked in the lot in front of the store. Several employ- ees testified that they have seen church and school or- ganizations in front of the store selling items to the Respondent’s customers. The Respondent asserts in its brief that the car raffle was only an isolated incident. The record evidence, however, is that the Respondent has allowed other or- ganizations to solicit customers on the sidewalk imme- diately in front of the store. This testimony was not re- futed by the Respondent at the hearing. The judge found that the Respondent was enforcing its property rights selectively. The judge also, citing Jean Country, 291 NLRB 11 (1988), found that the Union’s Section 7 right outweighed the private prop- erty rights of the Respondent. The judge concluded that, by forcing the handbillers and pickets to leave the sidewalk, the Respondent violated Section 8(a)(1) of the Act. We agree with the judge that the Respondent vio- lated the Act by denying access to the Union, but we reach that conclusion solely because of the Respond- ent’s disparate treatment of protected union activity. Although the Supreme Court in Lechmere v. NLRB, 111 S.Ct. 1305 (1992), rejected the Board’s holding in Jean Country, the Lechmere decision does not disturb the Court’s statement in NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956), that ‘‘an employer may val- idly post his property . . . if [it] does not discriminate against the union by allowing other distribution.’’ See also Sears, Roebuck & Co. v. San Diego County Dis- 427 DAVIS SUPERMARKETS 5 In addition to unrebutted testimony that the Respondent had per- mitted church and school organizations access to its property, we also rely on the fact that the Respondent permitted the Steelworkers to utilize its facility for union organizing purposes. See fn. 3, supra. 6 There is no evidence that the Respondent has a policy barring access to its premises by outside organizations. In Lechmere, by con- trast, the Court observed that the respondent had established and consistently enforced a policy several years prior to the union’s or- ganizing efforts prohibiting solicitation or handbill distribution of any kind on its property. 7 We therefore find it unnecessary to engage in an accommodation analysis of the Sec. 7 and property rights. The judge’s conclusions of law and recommended Order and notice accurately reflect the dis- criminatory nature of the violation we have found. 8 If it takes this action within 7 days, the Board will not find a violation. Loehmann’s Plaza, supra at 667. 9 Under Loehmann’s Plaza, supra, the Respondent’s filing of the lawsuit and maintenance of the lawsuit up until the time the General Counsel issued a complaint did not constitute a violation of the Act, since no evidence has been presented that the Respondent’s purpose in pursuing the lawsuit prior to the time the General Counsel issued his complaint was other than to protect, or at least to have adju- dicated, its property rights. In order to place the Union in the position it would have been in absent the Respondent’s unlawful conduct, we shall order the Re- spondent to make the Union whole for all legal expenses, plus inter- est, incurred in defending against the Respondent’s lawsuit after the July 25 issuance of the complaint in this proceeding. We also agree with the judge that the Respondent violated Sec. 8(a)(1) by threatening to have persons engaged in handbilling on be- half of the Union arrested and causing the state police to visit the store. trict Council of Carpenters, 436 U.S. 180, 205 (1978). Here there is sufficient evidence that both before and during the time that the Union sought to picket in front of the Respondent’s store, the Respondent allowed other organizations unlimited access to its property for sales and solicitations.5 At the same time, the Re- spondent has denied the Union the use of the same premises for handbilling and picketing purposes.6 Under these circumstances, we find the Respondent’s conduct constituted unlawful disparate treatment of protected union activity in violation of Section 8(a)(1) of the Act.7 3. As previously noted, the Union engaged in pick- eting and handbilling on May 23 on Respondent’s property. On that same day, the Respondent filed a civil trespass complaint against the Union in the Court of Common Pleas of Westmoreland County, Pennsyl- vania. On May 28, the court enjoined the Union from picketing except for three pickets who were allowed at each entrance to the store parking lot. The Union ceased picketing, and in June the Union filed an unfair labor practice charge. On July 25, the General Counsel issued a complaint alleging that the Respondent vio- lated Section 8(a)(1) by denying the Union access to the premises and by maintaining a civil trespass suit enjoining the Union from picketing. On July 22, the Union again picketed at the parking lot entrances. The Respondent threatened to have the pickets arrested and caused the Pennsylvania State Po- lice to come to the store premises. On August 2, a sheriff’s deputy handed the pickets a document indi- cating they were no longer allowed in the parking lot. On October 3, the General Counsel issued a complaint in Case 6–CA–19428 alleging that the Respondent, since on or about July 2, violated the Act by threat- ening to have persons engaged in handbilling arrested; causing the police to come to the store; and, through the assistance of the county sheriff, enforcing the in- junction the Respondent had previously obtained. On November 24, the Court of Common Pleas issued a decision dismissing the Union’s claim that the court’s action was preempted by the Board’s pro- ceedings. On November 26, the court, granting the Re- spondent’s motion, ordered the Union and four former employees to show cause why they should not be held in contempt for allegedly violating the terms of the court’s May 28 order. We agree with the judge that the Respondent vio- lated Section 8(a)(1) of the Act by maintaining its civil trespass suit against the Union, but we do so solely for the reasons stated in our recent decision in Loehmann’s Plaza, 305 NLRB 663 (1991). In that case, the Board held that once a complaint issues alleging the unlawful exclusion of employees or union representatives from an employer’s property, any state court lawsuit con- cerning the question is preempted by the Board’s pro- ceedings and the continued pursuit of such a lawsuit violates Section 8(a)(1). As we stated in Loehmann’s Plaza, a respondent has an affirmative duty to take ac- tion to stay the state court proceeding following issuance of the Board complaint.8 There is no evidence that the Respondent took any action to stay the court proceeding. On the contrary, the Respondent sought a contempt citation against the Union and the individ- uals. We find that the Respondent violated Section 8(a)(1) by continuing to maintain the lawsuit, enforcing the in- junction through the assistance of the county sheriff, and filing and maintaining a motion for an order to show cause and for civil contempt against the Union and four employees and seeking to enforce by fines and other penalties the aforementioned injunction after the General Counsel issued a complaint alleging that the Respondent unlawfully denied the Union access to its premises.9 4. The judge found that the Union represented a ma- jority of unit employees at the Hempfield store when the Union requested bargaining. The Respondent excepts. The Respondent argues that the judge erred by excluding 23 employees and that including them in the unit would negate the Union’s majority status. For the 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 On May 13, there were 108 employees in the bargaining unit. The judge found there were 107, but he inadvertently excluded em- ployees Christner and Vallozzi, who were still employed on May 13, and included Michele Benson, who did not begin work until May 21. On May 24, there were 109 employees in the unit—Vallozzi had ceased working on May 16; Benson began work on May 21 and Hart on May 19. The judge found that the Union represented a ma- jority (58 of 109) on May 24. The Union’s request for bargaining was made on May 13, but it was a continuing demand, still viable as of May 24; and, particularly in the context of the Respondent’s unfair labor practices, it did not have to be renewed. See Jimmy-Richard Co., 210 NLRB 802, 807– 808 (1974); Ed’s Foodland of Springfield, 159 NLRB 1256, 1262– 1263 (1966). 11 See Otasco, Inc., 278 NLRB 376 (1986). We find it unnecessary to determine the unit placement of the five Greensburg employees who were not Steelworkers members. It is unclear from the record, including the questions framed by examining counsel, whether wit- nesses’ use of the term ‘‘Steelworker members’’ was meant to refer to employees covered by the Steelworkers collective-bargaining agreement and whether the witnesses regarded nonmembers as indi- viduals not covered by the agreement. We also find it unnecessary to determine the unit placement of Thomas Howard. Even assuming that these six individuals should be included in the unit, the Union still would have represented a majority on May 24. 12 The judge found that Sheridan’s work pattern ‘‘corresponds’’ to that of a college student and excluded him from the unit. 13 See Crest Wine & Spirits, 168 NLRB 754 (1967). 14 283 NLRB 1173 (1987). following reasons, we agree with the judge’s finding of majority status.10 The judge excluded from the Hempfield unit 11 em- ployees employed at the Respondent’s Greensburg store who were members of the Steelworkers, which represented a bargaining unit at the Greensburg facil- ity. Although these employees worked for certain peri- ods of time at the Hempfield store, where they per- formed the same work as they performed at Greens- burg, they remained under the primary supervision of their Greensburg store supervisors and spent the major- ity of their working hours at the Greensburg store. These employees are in the Greensburg unit the Steel- workers represent and they are expressly covered by the existing collective-bargaining agreement between the Respondent and the Steelworkers. Under these cir- cumstances, we agree with the judge that these em- ployees should not be included in the Hempfield unit represented by the United Food and Commercial Workers Union.11 The judge excluded five college students and Tim Sheridan from the unit.12 These employees worked al- most exclusively during time periods traditionally asso- ciated with summer vacation and holidays. Their em- ployment at other times during the school year was sporadic and intermittent, at best. We agree with the judge that, based on Board precedent, these employees should be excluded from the unit.13 AMENDED REMEDY To remedy the Respondent’s violation of Section 8(a)(1) in maintaining a civil trespass suit against the Union after the Board issued a complaint, we shall order the Respondent to make the Union whole for all legal expenses, with interest as computed in New Hori- zons for the Retarded,14 incurred after the July 25, 1986 issuance of the complaint in this proceeding in the defense of the Respondent’s suit against the Union. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Davis Supermarkets, Inc., Hempfield Township, Pennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(s) and reletter the subsequent paragraph. ‘‘(s) Refusing to recognize and bargain with United Food and Commercial Workers International Union, Local Union 23, AFL–CIO–CLC, as the exclusive bar- gaining representative of the employees in the appro- priate unit.’’ 2. Insert the following paragraph as 2(d) and reletter the subsequent paragraphs. ‘‘(d) Reimburse the Union for all legal expenses, plus interest, incurred after the July 25, 1986 issuance of the complaint in Case 6–CA–19159 in the defense of the Respondent’s lawsuit against the Union.’’ 3. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT interrogate an employee regarding the employee’s union membership, activities, and sym- pathies and the union membership, activities, and sym- pathies of fellow employees. 429 DAVIS SUPERMARKETS WE WILL NOT create an impression among our em- ployees that their union activities are under surveil- lance by us. WE WILL NOT solicit employee complaints and grievances thereby promising our employees increased benefits and improved terms and conditions of employ- ment. WE WILL NOT threaten employees with store closure if they select the Union as their collective-bargaining representative. WE WILL NOT threaten employees with unspecified reprisals if they support the Union. WE WILL NOT threaten employees that their union organizational activity is futile. WE WILL NOT threaten employees by accusing them of disloyalty for supporting the Union. WE WILL NOT make verbal announcements and, through the assistance of the Pennsylvania State Police, discriminatorily refuse to permit the Union to picket and handbill on our Hempfield Township, Pennsyl- vania property while permitting other organizations ac- cess to our property for purposes of soliciting our cus- tomers and related activities. WE WILL NOT maintain a civil trespass suit against the Union in the Court of Common Pleas of West- moreland County, Pennsylvania, which enjoins the Union from picketing on our Hempfield Township premises. WE WILL NOT threaten to have persons engaged in handbilling on behalf of the Union arrested. WE WILL NOT cause the Pennsylvania State Police to visit our above-described facility. WE WILL NOT enforce, through the assistance of the Westmoreland County, Pennsylvania sheriff, the in- junction we obtained as a result of the above-described civil trespass suit. WE WILL NOT file and maintain a motion for an Order to Show Cause and for Civil Contempt against the Union and our employees and seek to enforce, by fines and other penalties, the aforementioned injunc- tion. WE WILL NOT urge our employees to join the United Steelworkers of America, AFL–CIO–CLC and permit the Steelworkers to utilize our facility, thereby ren- dering aid and assistance to the Steelworkers. WE WILL NOT change the work schedule of an em- ployee thereby causing the employee’s termination. WE WILL NOT impose onerous terms and conditions of employment on an employee thereby causing the employee’s termination. WE WILL NOT unlawfully lay off our employees and refuse to recall the employees in retaliation for their exercising rights protected by the National Labor Rela- tions Act. WE WILL NOT unlawfully discharge an employee and refuse to recall that employee in retaliation for his exercising rights protected by the National Labor Rela- tions Board. WE WILL NOT refuse to recognize and bargain with United Food and Commercial Workers International Union, Local Union 23, AFL–CIO–CLC, as the exclu- sive bargaining representative of the employees in the unit described below. WE WILL NOT in any manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Deborah Defibaugh, Charlene Garris, Lance Good, Jennifer Hilty, Sharlane Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and Linda Kunkle immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges and make them whole for any loss of pay they may have suffered by reason of our discrimination against them with backpay and interest thereon. WE WILL remove and expunge from the personnel files of Deborah Defibaugh, Charlene Garris, Lance Good, Jennifer Hilty, Sharlane Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and Linda Kunkle all documents which relate to our actions which have been found to be unfair labor practices, and make whatever record changes are necessary to negate the effect of these documents and our unlawful actions. WE WILL reimburse the Union for all legal expenses, plus interest, incurred after the July 25, 1986 issuance of the complaint in the instant proceeding in the de- fense of the lawsuit we brought against the Union. WE WILL, on request, recognize and bargain collec- tively with United Food and Commercial Workers International Union, Local 23, AFL–CIO–CLC as the exclusive representative of all employees in the appro- priate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate bar- gaining unit is: All full-time and regular part-time employees em- ployed by Davis Supermarkets, Inc. at its Hemp- field Township, Pennsylvania, location; excluding confidential employees, students employed pursu- ant to cooperative education programs and guards, professional employees and supervisors as defined in the Act. DAVIS SUPERMARKETS, INC. Barton A. Meyers, Esq. and Patricia J. Scott, Esq., for the General Counsel. Peter J. Ennis, Esq., John C. Pekar, Esq., and Stuart A. Wil- liams, Esq. (Eckert, Seamans, Cherin & Mellott), of Pitts- burgh, Pennsylvania, for the Respondent. 430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 All dates are in 1986 unless stated otherwise. 2 The charge in Case 6–CA–19076 was filed on April 29 and amended on June 12. The charge in Case 6–CA–19159 was filed on June 2. The charge in Case 6–CA–19428 was filed on August 18. And the charge in Case 6–CA–19388 was filed on August 4 and amended on August 13. 3 The complaint in Case 6–CA–19076 was issued on June 13. The complaint in Case 6–CA– 19159 was issued on July 25. The com- plaint in Case 6–CA–19428 was issued on October 3 and amended on January 12, 1987. And the complaint in Case 6–CA–19388 was issued on October 24 and amended on May 6, 1987, and on Decem- ber 18, 1987. 4 The unit set forth in the above-described complaint dated Decem- ber 18, 1987, consists of the following employees: All full-time and regular part-time employees employed by Re- spondent at its Hempfield Township, Pennsylvania, location; ex- cluding confidential employees, students employed pursuant to cooperative education programs and guards, professional em- ployees and supervisors as defined in the Act. 5 Charlene Garris, Jennifer Hilty, Charelene Shotts, Sonja Welsh, Deborah Defibaugh, and Lance Good. 6 Roy Biedrycki, Defibaugh, Randy Harshall, and Shotts. 7 It is alleged in complaint Case 6–CA–19388, by amendment dated December 18, 1987, that from on or about May 31 to on or about June 14, a majority of the unit designated and selected the Union as their representative for the purposes of collective bar- gaining. 8 General Counsel’s unopposed motion, dated June 7, 1989, to cor- rect the transcript is granted. [Omitted from publication.] Mr. Ronald Kean and James R. Reehl, Esq., of Pittsburgh, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE JOHN H. WEST, Administrative Law Judge. On charges filed by the United Food and Commercial Workers Inter- national Union, Local Union 23, AFL–CIO–CLC (the Union or UFCW), beginning on April 29, 1986,1 and as subse- quently amended and supplemented,2 complaints in the above-numbered proceedings were issued beginning on June 13, with the final amended complaint issued on December 18, 1987.3 The complaints allege, collectively, that Davis Su- permarkets, Inc. (Respondent) violated Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act (Act) by (1) interrogating its employees regarding their union member- ship, activities, and sympathies and the union membership, activities, and sympathies of their fellow employees, (2) cre- ating an impression among its employees that their union ac- tivities were under surveillance by Respondent, (3) soliciting employee complaints and grievances thereby promising its employees increased benefits and improved terms and condi- tions of employment, (4) threatening employees with store closure if they selected the Union as their collective-bargain- ing representative, (5) urging its employees to join the United Steelworkers of America, AFL–CIO–CLC (Steel- workers) and by permitting the Steelworkers to utilize Re- spondent’s facility, rendered aid and assistance to the Steel- workers, (6) changing the work schedule of employee Charles Miscovich thereby causing his termination, (7) im- posing onerous terms and conditions of employment upon employee Linda Kunkle thereby causing her termination, (8) failing and refusing to recognize or bargain with the Union as the exclusive collective-bargaining representative of the involved unit,4 (9) threatening employees with unspecified reprisals if they supported the Union, (10) informing employ- ees that their recall rights depended upon their refraining from activity on behalf of the Union, (11) threatening em- ployees that their union organizational activity was futile, (12) threatening employees by accusing them of disloyalty for supporting the Union, (13) laying off six named employ- ees and refusing to recall the employees,5 (14) discharging employee Larry Miller and refusing to recall him, (15) refus- ing to recall its employee Charlene Shotts to her former or substantially equivalent position of employment, (16) making verbal announcements and through the assistance of the Pennsylvania State Police discriminatorily refusing to permit the Union to picket and handbill on Respondent’s Hempfield Township, Pennsylvania property while permitting other or- ganizations access to its property for purposes of soliciting its customers and related activities, (17) maintaining a civil trespass suit against the Union in the Court of Common Pleas of Westmoreland County, Pennsylvania, Civil Division No. 3622 of 1986, which enjoins the Union from picketing on Respondent’s Hempfield Township premises, (18) threat- ening to have persons engaged in handbilling on behalf of the Union arrested, (19) causing the Pennsylvania State Po- lice to visit Respondent’s above-described facility, (20) en- forcing, through the assistance of the Westmoreland County Sheriff, the injunction it obtained as the result of the above- described civil trespass suit, and (21) filing and maintaining a motion for an Order to Show Cause and for Civil Con- tempt against the Union and four named employees6 and seeking to enforce, by fines and other penalties, the afore- mentioned injunction. It is asserted that the alleged unfair labor practices are so serious and substantial in character that the possibility of erasing the effects of these unfair labor practices and of con- ducting a fair election by the use of traditional remedies is slight, and the employees’ sentiments regarding representa- tion, having been expressed through representation cards, would, on balance, be protected better by issuance of a bar- gaining order than by traditional remedies alone.7 Respondent denies that it committed any unfair labor prac- tices. A hearing on these consolidated cases was held before me in Greensburg, Pennsylvania, on October 31, November 1– 4 and 7–9, 1988, and January 9–12, 1989. On the entire record8 in this proceeding, including the demeanor of the witnesses, and after due consideration of the briefs filed by General Counsel and the Respondent in June 1989, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Pennsylvania corporation with its principal office and place of business located in Greensburg and with a place of business located in Hempfield Township, Pennsyl- vania, is engaged in the retail sale of groceries. The com- plaints allege, the Respondent admits, and I find that at all times material herein, Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and UFCW and the Steelworkers have 431 DAVIS SUPERMARKETS 9 The number of employees at the facility will be treated more fully below. The Greensburg store is approximately 65,000 square feet and, according to Respondent’s witnesses, it has between 150 and 175 employees. The two stores are 3 miles apart. Jim Davis, who is the president of Respondent, testified that between 12 and 24 employees have worked at both stores since the Hempfield store opened. By letter dated July 10, 1984, Respondent, at the UFCW’s behest, provided it with the name and home address of each of its Hempfield employees (R. Exh. 19). Respondent also operated a store at Mount Pleasant, Pennsylvania, and a store at Frostburg, Maryland. The employees at those stores were represented by the Steelworkers and another Local of the UFCW, respectively. According to the tes- timony of Jim Davis, neither the Mount Pleasant nor the Frostburg stores was closed because of labor costs. 10 Porter testified that he also asked Shotts to attend this meeting. Shotts corroborated Porter. 11 Porter testified that he told Welsh and Curry that by signing the cards they could have Local 23 represent them at collective bar- gaining if they reached a majority; and that he did not threaten or pressure them to sign the cards. He sponsored Curry’s UFCW au- thorization card (G.C. Exh. 27) dated March 26, testifying that she read the card, filled it out and signed it in his presence. Porter also testified that he told Curry that if the UFCW had a majority of the cards it could demand recognition from the Respondent, and if it was denied, other avenues could be pursued, such as an election. As indicated below, Porter obtained a number of UFCW authorization cards. Regarding these, he testified that he never told an employee (1) that the only purpose of the authorization card was to obtain an election, (2) that they should not read the card, or (3) that they should ignore what was written on the card. Also he asserted that he never threatened or promised anything in return for signing a UFCW authorization card. Included in the printed portion of the card is the following: ‘‘I hereby authorize the United Food & Commer- cial Workers, Local Union 23, AFL–CIO–CLC, to represent me for the purpose of collective bargaining.’’ 12 Welsh testified that during a break or while she was out of the store after work, she would put the UFCW authorization cards in a plain piece of paper and hand them to the employees and she told them to read them and if they wanted the Union to sign them and hand them back to Porter or her. 13 Since Defibaugh was laid off on April 19, apparently this prac- tice began sometime in March. 14 Hilty also testified that it could have been around April 7. been labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Facts Respondent is a family owned corporation which at the time of the hearing herein operated a total of two grocery stores in Pennsylvania. The Hempfield facility was opened by Respondent in 1984. It is approximately 45,000 square feet and in 1986 there were, according to the testimony of Respondent’s witnesses, about 120 to 150 employees on the payroll at this facility.9 Donald Porter, who at the time worked at a Shop and Save grocery store and was a volunteer organizer for the UFCW, started the involved organizing campaign by contacting Patty Pomaibo in the meat department of Respondent’s Hempfield store in March. She gave him the names of Welsh and Shotts and their telephone numbers. Welsh, who worked in the delicatessen (deli) department of Respondent’s Hempfield store from April 1984 to April 1986, received a phone call at home in March 1986 from Porter. He asked her to attend a meeting at a McDonalds res- taurant on March 24 regarding an attempt to organize Re- spondent’s Hempfield store employees. Welsh went but she did not see Porter that evening.10 The following day he called her and asked her to talk to other employees about the Union and to attend a meeting the next day at his house. Welsh went with fellow employee Shari Curry and she and Welsh signed UFCW authorization cards at this meeting General Counsel’s Exhibits 27 and 13, respectively, dated March 26. Regarding the card, Welsh testified that she read it before signing it; and that Porter did not tell her that the only purpose of the card was to obtain an election.11 Porter gave Welsh and Curry some UFCW authorization cards and told them what to tell other of Respondent’s employees when they tried to get them to sign the cards. He emphasized that they should make sure the employees read the cards. Also, he asked them to get a list of names of Respondent’s em- ployees who might be interested. Welsh subsequently pro- vided such a list. According to Welsh’s testimony, on March 25 her imme- diate supervisor, Sandy Reich, asked her if she heard any- thing about a union meeting that was supposed to take place at McDonalds the night before. Welsh assertedly said that she had heard about it but it did not have anything to do with her. Welsh testified that this conversation took place by the stove in the kitchen in the deli department; and that Rich seemed to be a good friend. Subsequently, Welsh talked with other employees about the UFCW and she distributed authorization cards to the fol- lowing of Respondent’s Hempfield employees: Anita Mattucci, Good, Cathy Vesco, Judy Barbrow, Ken Buhl, Shotts, Mary Olshefsky, Pam Barnes, Gail (Welsh could not recall her last name but remembered that she was from the post office) and Patty (from the meat department).12 Welsh received Mattucci’s signed UFCW authorization card from her in the deli (G.C. Exh. 14). Barbrow also gave Welsh her signed UFCW authorization card (G.C. Exh. 15). And Welsh received signed UFCW authorization cards from Shotts, who also gave Welsh Olshefsky’s card, and Good, who also gave Vesco’s card to Welsh. Welsh testified that she did not be- lieve that anyone in management saw her distribute or collect the cards and she never discussed the Union with anyone in management. In the beginning of April, John Shumaker, a baker at Re- spondent’s Greensburg store, came to the Hempfield store to bake. Defibaugh was told that he was coming to Hempfield so that she could go on daylight. Janet Barbour, who was a cake decorator at Greensburg, came to the Hempfield store about once a week beginning in early April or in March. This practice was discontinued, according to Defibaugh, after about a month.13 Hilty, who worked at Respondent’s Hempfield store from February 19 until April, testified that another employee at the store, Curry, gave her a UFCW authorization card which Hilty signed. Assertedly, Curry told her to read the card. The date on the card is as follows: ‘‘April 1986.’’ Hilty testified that she signed the card in early April14 and that she read it prior to signing it. On April 7 Porter entered Respondent’s Hempfield store, went to the meat department and spoke with Garris. She had been employed at Respondent’s Hempfield store since Feb- 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 15 Porter testified that one time when he was in the Respondent’s Hempfield store Mowery, who was the store manager, came up to him and asked him if he needed any help and he said ‘‘no’’; that Mowery followed him while he was in the store and eventually Mowery said: ‘‘Well maybe you might need some help getting your ass the hell out of this store. I know what you are up to. Local 23 is trying to get into this store and the Davis’ would do anything to prevent this even if it meant kicking your ass.’’ At one point on cross-examination, Porter testified that he believed that this occurred sometime after he met with certain of Respondent’s employees on May 6, as described below. At another point he testified that he had no idea of the date when this occurred. And finally, on redirect Por- ter, after refreshing his recollection with his affidavit to the National Labor Relations Board (Board), testified that this occurred early in the campaign in either April or May. 16 About 1 year before she signed the UFCW authorization card, she asked Dick Shibilsky, who assertedly was her manager in the meat department, and Jeff Toffolo what they thought about getting a union into the store. Allegedly they said, ‘‘Don’t even think about getting a union in the store. We don’t want a union in here. Don’t even talk to anybody about it or you won’t be employed here any- more.’’ At that time Shotts had the Steelworkers in mind but she did not find any support among her fellow employees. Regarding Shibilsky and Toffolo, Shotts testified that Shibilsky ordered meat, prepared meat to be wrapped, cut meat, and checked the meat inven- tory in the case when he decided which meats had to be stocked; that Toffolo cut meat, ordered meat, ground meat, made hot sau- sages, made out the schedules (according to Shott’s testimony, some- time early in 1985 Shibilsky told Toffolo that he should handle the scheduling), hired employees for the meat department, handled em- ployee problems in the meat department, and handled the day-to-day direction of the employees in the meat department; and that the two attended the regular department managers’ meetings on a rotating basis, and neither to her knowledge punched a timeclock. Toffolo testified that he did not recall having a conversation with Shotts about the possibility of a union organizing the Hempfield store. 17 Reich testified that it was her policy to have employees discuss switching assignments with her before they made the switch. While Rich has issued written warnings to employees, she never issued written warnings to Hilty or Smith. 18 Reich testified that she did receive customer complaints about Hilty’s attitude. 19 Reich testified that she had fired an employee in the past with- out consulting with anyone else. 20 Garris testified that she did not engage in any other union activ- ity and she did not discuss the UFCW with anyone in management. ruary 10. Porter asked her to meet him after work.15 Garris testified that Jim Davis’ second-floor office was located across from the meat department on the other side of the store; and that someone in the office could see the meat de- partment through one-way glass. Garris did not know if there was someone in the office at the time. She and Porter even- tually met on April 16. Shotts signed her UFCW authorization card on April 9, after reading it (G.C. Exh. 60). Welsh gave her the card. Shotts returned the card to Welsh along with a card Shotts solicited from Olshefsky, dated April 3 (G.C. Exh. 61).16 Shotts testified that she told Olshefsky to read the UFCW au- thorization card before signing it and that it was ‘‘for getting a union in.’’ Shotts also asked employee Melanie Valozzi if she was interested in signing a UFCW authorization card. Valozzi declined. On April 14, Respondent’s employee Jody Cusano signed a UFCW authorization card (G.C. Exh. 28). Porter testified that he told Cusano that she would be authorizing the Union to represent her in collective bargaining; and that she read the card, filled it out, and signed it in his presence. Hilty’s last day of work at Respondent’s Hempfield store was April 15. She testified that on Tuesday, April 15, she filled in for someone else who was sick; that she was off the next 2 days; that she was supposed to work on Friday, April 18, but she was sick; that she called in and spoke to Mattucci who said that she would speak to another employee about filling in for her; that later she telephoned her depart- ment, the delicatessen, but there was no answer; that subse- quently her supervisor, Sandy Reich, telephoned her and told her that she had been taken off the schedule because she sup- posedly had said something to a customer; that Reich refused to tell her what it was she said; that Reich said that it had nothing to do with calling off sick; that Reich said that she ‘‘was not going all out for it’’; and that Reich said that she would give her a reference in the future if she needed it. As- sertedly, when she was hired in February, Hilty was told that there would be a 30-day probationary period. After signing the UFCW authorization card, Hilty did not wear anything which would indicate that she supported the Union and she did not attend union meetings. On cross-examination, Hilty testified that she did not remember any conversation with Reich around the first of April about Hilty’s performance; that Reich never indicated to her that she called off to many days; that Reich never told her about a customer who wanted fresh cut meat and not the meat in the counter near closing time; and that Reich never told her that certain meats and cheeses were left unwrapped and the counter was not cleaned the way Reich expected it to be cleaned. Louise Elda, who is a manager at the Hempfield store, Toffolo, Sandy Reich, Mowery, and Jim Davis testified that they did not know that Hilty signed a UFCW authorization card or supported the UFCW or engaged in union activities on behalf of UFCW prior to the end of April 1986. Sandy Reich testified that Hilty did fairly well for up to 6 weeks after she was hired. Subsequently, according to Reich’s testimony, Hilty’s work deteriorated in that she left things undone and she left the counter area messy and dirty. Assertedly, Reich discussed these problems with Hilty. Also, Hilty, according to Reich, had a problem with calling in sick. Assertedly, Reich also discussed this with Hilty. Reich termi- nated Darla Smith at the same time. Reich could not remem- ber if Hilty and Smith had switched assignments or if both of them had called off.17 Reich testified that she was un- happy with their performance at the beginning of the week and she decided at the end of the week that she was going to terminate the two of them.18 Allegedly, Smith was a slow learner. Reich testified that she did not discuss these termi- nations with any other manager in the store, including Mowery and Jim Davis.19 Garris signed a UFCW authorization card on April 16 at her home and gave it to Porter (G.C. Exh. 23). She read the card before signing it. Porter testified that he told her by signing the card she was authorizing Local 23 to represent her in collective bargaining. She told coworker Shotts, either the next day or the following day, that she had signed an au- thorization card.20 Defibaugh, who worked in Respondent’s Hempfield store from April 1984 until April 19, signed a UFCW authoriza- tion card on April 16. Defibaugh testified that she read the 433 DAVIS SUPERMARKETS 21 Her duties consisted of baking from 3 until about 8 a.m. Then she would order frozen product and cakes from Respondent’s Greensburg store. Basically, the same amount of product was used every week, except for increases during holidays and the summer. Defibaugh decided how much product had to be ordered. She checked off what she needed on a printed list. When she was not working, Good did the ordering. Good testified that a lot of times he and Defibaugh did the ordering together with one of them taking the inventory and the other one writing the items down. If an order came in that day from Greensburg, Defibaugh and Good would put the frozen food away in the freezer. Starting at about 5 a.m. the em- ployees who worked in the bakery would start to arrive at work. Each employee would have a set job. Once a week, toward the end of her workday, she would make up the work schedule for the ap- proximately 15 bakery employees for the following week, ‘‘a very routine matter.’’ Mowery or Elda would tell her how many total hours she could schedule for the following week. Each employee in the bakery department worked basically the same hours, except around holidays and Sundays would be rotated. Defibaugh also would attempt to accommodate requests from employees regarding days off, etc. Mowery only reviewed the schedule she made up around holidays. If she believed she needed more hours she had to ask Mowery or Elda. If she believed that she needed more help in the bakery she would tell Garlits or Mowery and they would have someone temporarily transferred into the bakery. Defibaugh inter- viewed a couple of applicants and she recommended whether they should be hired. She participated in one interview with Elda, and she conducted the other interview by herself. Regarding the former, both agreed that the applicant should not be hired. With respect to the latter, she recommended that the applicant be hired and she was not. Once, in January or February 1986, Defibaugh was told by Mowery to write up a bakery employee for not doing her job. Also, Defibaugh complained to Mowery about an employee who was tak- ing to much time off. This was the extent of Defibaugh’s discipli- nary actions. She did not have authority to change the assignment of bakery employees. Usually she discussed such matters with Bak- ery Manager Garlits. While she talked to outside salesmen, she could not order any new product but rather she referred the salesmen to Garlits. Additionally, she did not select the bakery items to go on special for the week but rather Garlits told her which items to put on special. Other than what Mowery told her about how the bakery was doing financially, she had no access to financial information re- garding the bakery department. Defibaugh testified that she had overall responsibility for the bakery department at the Hempfield store. Good testified that around the end of 1985 Defibaugh told him and John Dick that she was made bakery manager ; that he did not recall Defibaugh giving directions to bakery workers; that she did the scheduling in the department; and that when he called off he spoke with whoever answered the telephone. Elda, Toffolo, and Mowery included Defibaugh in naming the managers at the Hempfield store. 22 James Blaser, who worked for the Respondent since 1984, testi- fied that the affidavit he gave to the Board in 1987 correctly indi- cates that he works in Hempfield on Wednesdays for 4 or 5 hours to replace managers who attend the managers meetings in Greens- burg. Elda testified that between January and August 1986 there were no weekly or monthly meetings of all managers; that during this period of time she did attend meetings where more than one manager was present but such meetings were rare. Toffolo testified that between January and August 1986 there were no regularly scheduled weekly or monthly meetings of the store managers; and that he did attend meetings, perhaps once a month where there was more than one manager present. He testified that such meetings oc- curred ‘‘[v]ery rarely’’; and that the meetings he attended related to ads and only Jim Davis was present. Sandy Reich testified that while in 1985 there were no weekly or monthly meetings of managers, she did attend meetings during this period when more than one manager was present; that such meetings occurred once a week or every 2 weeks and advertising and competition were discussed; that the meetings were held in the Hempfield store and Jim Davis and Mowery were present; that sometimes there were managers from other departments at these meetings; and that she did not remember Defibaugh ever attending these meetings. Mowery testified that there were no weekly or monthly meetings scheduled for all managers to attend during this period of time; that between January 1986 and the Friday of Memorial Day weekend, he attended a total of 10 meetings at which other managers in the store were present; that these meet- ings concerned advertising; that Jim Davis and Sandy Reich also at- tended all of the meetings; that other department heads who some- times attended these meetings included John Panichella, who is the produce manager at the Greensburg store (Allen Barber, the produce manager at Hempfield, did not attend), Jeff Toffolo was at one met- ing and Elda was at one meeting; and that Garlits would represent the bakery department at these meetings. In comparing the duties of Defibaugh and Civiccio, an admitted supervisor, Mowery testified that she made out the schedule for the cashiers and packers, the front end people, she granted requests for days off, she did not purchase anything for the store, and she did not hire but she did advertise for job applicants, conduct initial interviews, and refer applicants to Mowery with her comments on the individual. Also, when Mowery and Elda were not present Civiccio would be responsible for the whole store. card before signing it and no one told her not to read it or to disregard what was written on the card. She gave her signed card to Porter, who came to her house. Defibaugh spoke about the Union with employees Good, John Dick, Steve Napolean, and Buhl, indicating that if they wanted the Union to represent them they could sign a card. Buhl subse- quently told her that he had been offered a comanager’s job in the store so he was not going to sign a UFCW authoriza- tion card. Defibaugh was hired at the involved store as a baker. In September 1984 the bakery manager in the depart- ment was let go. Defibaugh assumed his responsibilities but she did not receive any title or additional pay. She mentioned this to Jim Davis and Pat Garlits, who is the manager of the bakery department and who worked out of the Greensburg store, in November 1984. They agreed to give her the title and a 30-cent-an-hour raise. So while the other employees in the bakery were making $3.70 an hour, she was making $4 an hour.21 Defibaugh never held meetings of the bakery em- ployees, she did not receive a salary but rather was paid on an hourly basis and she punched a timeclock. She testified that she never attended the regular management meetings22 and she did not believe that the managers who did punched a timeclock. On April 16 Defibaugh attended a meeting in Mowery’s office. Garlits and Shumaker were there also. Mowery and Garlits asked Shumaker how the employees in the Hempfield store bakery were doing. Shumaker indicated that Barbrow was slow at her job; that Tami Roadman was not doing her job; and that Good had a bad attitude. Defibaugh indicated that Barbrow was nervous about doing the cake decorating in front of a window where customers could see her, and that Good did not have a bad attitude but he thought he should be paid more for the job he was doing. Good testified that Defibaugh told him about the meeting and the fact that Shumaker said something about him having an attitude prob- lem. Good had never been warned by anyone in management about having an attitude problem. On April 17 Respondent’s employee Gail Horsley signed a UFCW authorization card (G.C. Exh. 30). Porter testified 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 23 As noted above, Welsh gave Vesco the card but Good returned the Vesco card to Welsh. 24 Subsequently Defibaugh testified that at this meeting Mowery and she settled on what to do regarding Roadman but they did not settle anything about Barbrow. 25 As noted above, Napolean was one of the employees Defibaugh spoke to, indicating that if they wanted the UFCW to represent them they could sign a UFCW authorization card. And as noted below, Napolean was one of the individuals who photographed picketers. 26 Regarding her union activities, Defibaugh testified that before she was laid off she did not (1) distribute union literature, (2) wear any union buttons, or (3) wear anything which would identify her as a UFCW supporter. Regarding customer complaints concerning the Hempfield bakery, she testified that they did have cakes coming down from Greensburg and in the transportation the decorations were damaged; that she complained to Greensburg that the frozen donuts they sent down had thawed and been refrozen; that she com- plained to Garlits about the fact that there was a surplus of stale cookies, which were being saved to make cookie dough; and that the surplus existed because she was told by Jim Davis not to allow the shelves to be empty. that he told Horsley that she would be authorizing the Union to represent her in collective bargaining; and that she read the card, filled it out, and signed it in his presence. Good, who worked in the bakery department at Respond- ent’s Hempfield store since 1984, signed a UFCW authoriza- tion card on April 17 (G.C. Exh. 58). He read it before sign- ing it. He also solicited the card of another bakery employee, Vesco, dated April 17 (G.C. Exh. 59).23 Good testified that he told Vesco that if a majority of the employees at the store signed UFCW cards, than the Union could bargain for them, and if not, there could be a possible election. He also testi- fied that Shumaker was in the area when he handed the cards to Welsh but he did not know if Shumaker saw what was going on; that the employees in the bakery talked about the Union in Shumaker’s presence but Shumaker never partici- pated in the conversations; that Defibaugh ‘‘talked pro union a lot’’; and that he never wore any insignia that indicated that he supported the UFCW. According to her testimony, on April 17 Shotts asked Mowery if she could take a leave of absence during the sum- mer months since her children were getting out of school for the summer and she could not afford a baby sitter. Assert- edly, Mowery said that he would speak to Jim Davis. Jim Davis told Shotts on April 18 that he could not grant her request since he could not grant a leave of absence to everyone who wanted one. Defibaugh received a telephone call from Garlits on the morning of April 18. He told her to take Good, Barbrow, and Roadman off the schedule. Defibaugh went to Mowery and told him that she thought that it was too many people to lay off at one time. Mowery said that Roadman would be laid off, and that he was surprised about Good but he had been told that Good was being laid off because of his attitude. Mowery indicated that Good had never been warned or writ- ten up about his attitude. Mowery said to leave Barbrow on the schedule and the following week they would let her go, and to leave Roadman on the schedule until Tuesday so that she could be told about being laid off.24 Later that afternoon, Defibaugh went to Greensburg to speak to Garlits about the layoffs. Garlits said that he was surprised about Good be- cause no one had ever told him that Good had a bad attitude. Garlits also said that ‘‘they said to . . . take those three peo- ple off the schedule, that he was told that they were to be taken off.’’ Defibaugh testified that Garlits did not say who directed him to take this action other than specifying ‘‘they.’’ Assertedly, around 8 a.m. on April 19 Defibaugh asked Elda why they were letting Good go. Defibaugh testified that Elda said: Well I guess I can tell you. Jim wants him laid off, not fired. That they heard the union was getting close to the number they needed for an election and they were get- ting rid of the troublemakers and people with attitude problems. Defibaugh also testified that the only ‘‘Jim’’ Elda could have been referring to was Jim Davis; that when Elda asked her if she knew about the Union, she said ‘‘no’’; and that she was friendly with Elda. Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi- fied that they did not know that Good signed a UFCW au- thorization card, supported the UFCW or engaged in union activity on behalf of the UFCW up to the time he was laid off. Elda testified that at no time prior to Good’s discharge did she have a conversation with Defibaugh about the dis- charge. According to Defibaugh’s testimony, after she talked to Elda on April 19, Defibaugh told Good that he was being laid off. Good testified that Defibaugh told him the following: ‘‘I can’t believe I have to do this but they told me to get rid of you’’; that Defibaugh told him that he wasn’t fired but that he was laid off; and that the reason Davis had to get rid of him was that he assertedly had an attitude problem. Around 9:30 a.m. on April 19 Defibaugh spoke with Mowery indicating that she had told Good about the layoff. She testified that Mowery understood that she felt bad about letting Good go because he always did his job, and that no one could understand why he was being let go. Later that morning Defibaugh went to Mowery to discuss the employees scheduling. Mowery was talking with Napolean, who stocked shelves, and Mowery would not let Defibaugh into his office so she asked him to call her when he finished talking with Napolean.25 About 1 p.m. on April 19, as she was getting ready to leave work, Defibaugh received a telephone call from Elda who told her that Mowery wanted to see her before she left. Mowery, with Elda present, told Defibaugh that business was slow and that they were going to try to combine the two stores and make it one unit and that was the reason that she was being laid off. Defibaugh testified that she told Mowery that she did not believe that they would lay off somebody with more seniority than other employees in the bakery de- partment, especially when some of these other employees caused problems and did not do their work. Also, she told Mowery that in the springtime business starts picking up and it did not seem like the right time to be laying people off.26 Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi- fied that they did not know that Defibaugh signed a UFCW authorization card, supported the UFCW, or engaged in union activity on behalf of the UFCW before she was laid off. 435 DAVIS SUPERMARKETS 27 Welsh, who was primarily the deli cook, testified that she was never criticized about her work performance, she never received a verbal or written warning, and she was never suspended. Welsh did not recall any discussions with Sandy Reich regarding problems with the preparation of food in the deli and she did not recall Reich indi- cating that customers were complaining. When she checked the schedule that morning, the names of Darla Smith and Hilty were not on it. Welsh testified that Hilty missed a lot of work and Reich was upset with her because it was difficult to get someone to replace her. Pauline Wigfield, from Respondent’s Greensburg store, was on the schedule. Welsh testified that before she was laid off she was not aware of anyone from the Greensburg store working in the Hempfield deli. When she later returned to the store to shop, Welsh noted that at first Wigfield was doing her job and than Mattucci, who signed a UFCW authorization card and gave it to Welsh, did Welsh’s job. 28 More specifically, Jim Davis told her that customers complained that the chicken noodle soup was too salty and that the pieces of potato in the potato salad were not uniform in size. Reich testified that there might be two such complaints a month and Welsh made an attempt to conform to the requests Reich made. When Jim Davis told her to let Welsh go he indicated that Welsh was not preparing the food the way it should be prepared and he had given Welsh long enough to do it correctly. Reich testified that she disagreed with Jim Davis’ assessment and told him so at that time. She told Davis that Welsh was carrying most of the workload herself and she tried very hard to complete her jobs as quickly as she could, she was a good employee, she never called off work, she never complained, and she tried very hard to do everything that Reich asked her to do. 29 Reich testified that prior to Jim Davis telling her to let Welsh go, she had heard nothing about a consolidation or a merger plan between the Greensburg and Hempfield stores, and she was not questioned about which employees she thought she could do without. Reich testified that Ann Howard, Eileen Hribal (Orange), Robin Myers, Carol Pyle, Sandra Wilkinson, and Wigfield worked in the deli departments at both of Respondent’s stores. Howard, Wilkinson and Wigfield, along with Reich, did the cooking after Welsh left. 30 Reich testified that before this she had heard nothing about the Union and while she discussed Welsh with Jim Davis after she left, Reich did not tell Davis about Welsh’s comment regarding the Union. Also, Reich testified that when Jim Davis said that Welsh was not following the recipes she told him that she did not agree with him. Between April 19 and Memorial Day 1986, Reich asked Jim Davis every time she had the opportunity, to bring Welsh back. Reich testified that she told Jim Davis that she wanted Welsh back and that Welsh was a good employee and given the opportunity Welsh could do what she was supposed to do. When she arrived home on April 19, Defibaugh tele- phoned Garlits and asked him why she was being laid off. She testified that he said that he did not know. Later that afternoon, Shumaker called Defibaugh at home indicating that he had been told to work on Sunday, April 20 and that Garlits said that she had walked off the job. Mowery testified that he first learned of Defibaugh’s lay- off when Jim Davis telephoned him and told him that he was going to consolidate the bakeries at the Greensburg and Hempfield stores and he should lay off Defibaugh; that he was not aware at that time that there were other layoffs in the bakery department; that this was the first he heard of a consolidation involving a layoff of Defibaugh; that Jim Davis said we are merging the bakeries, tell Defibaugh we are going to lay her off; that Jim Davis did not tell him how the merger was going to come about, what it would mean, whether it would involve other departments, or how to re- place Defibaugh regarding her nonmanager functions; and that normally department managers handle layoffs. Jim Davis testified that he made the decision to let Defibaugh and Good go; and that he did it ‘‘[b]ecause we had problems in the bakery.’’ On April 19, after she had returned home from work, Welsh was telephoned by Sandy Reich who asked Welsh to come back to the store. Reich told Welsh that she was being laid off. Welsh testified that when she asked Reich why, Reich said, ‘‘I really don’t have a reason. I can’t tell you. When you are a manager, you are kind of like a puppet, you do whatever they tell you to. I really don’t want to do this, but I have to do it.’’ Reich also told Welsh that if she need- ed a recommendation for a job she would give Welsh the highest recommendation and if she could get Welsh back, she would. When Welsh asked Reich if it had anything to do with the Union, Reich assertedly answered, ‘‘I really can’t tell you.’’ Welsh could not recall Reich saying anything about the consolidation of the Greensburg and Hempfield delicatessens. Welsh testified that she was the most senior of the 10 employees in the deli department.27 She also testified that up to the time of her layoff, she had not worn any union button identifying her as a UFCW supporter and she never wore any other insignia which would indicate that she sup- ported the Union. Also, she had not distributed any union material other than the cards. Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi- fied that they did not know that Welsh signed a UFCW au- thorization card, supported the UFCW, or engaged in union activity on behalf of the UFCW before she was laid off. Sandy Reich testified that she and Welsh prepared food in the deli kitchen until about October 1985; that to her knowl- edge there were no complaints about the food prepared in the deli kitchen up to that point in time; that in October 1985 she assumed more responsibility and ceased cooking in the deli kitchen; that thereafter Welsh did about 95 percent of the cooking; that in November 1985 she began receiving nu- merous complaints that customers were upset that items were not of the same consistency as at the Greensburg store;28 that she told Welsh that she was laying her off because Respond- ent was consolidating the Greensburg and Hempfield stores and people from Greensburg would be coming to the Hemp- field store to do part of the cooking;29 that Welsh said that she did not believe the reason Reich gave; that Welsh asked her if it had anything to do with the Union and she told Welsh that she did not know what she was talking about;30 and that she did not ask Welsh anything about the Union or about her union activities. Jim Davis testified that he decided to let Welsh go because Respondent was having problems in the deli with the food being prepared; and that he later agreed to let Reich recall Welsh. On April 19 Garris was told to telephone her supervisor, Toffolo, later since the schedule was not yet posted when she left work. When she telephoned Toffolo, he said that Davis was having some money problems and they had to lay off some people, including her. When she asked if the layoff was temporary or permanent he told her to call back on Monday. She did not. Garris had the least seniority of the people who worked in the meat department. Garris testified that Shotts was also laid off at that time; that prior to that time there were no employees from Respondent’s Greens- burg store who worked in the Hempfield meat department; 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 31 Toffolo also testified that he has the authority to hire people for the meat department but he usually clears it with Jim Davis or Vir- ginia Brady, the personnel supervisor at the Greensburg store. 32 There is no documentation to demonstrate that she was not doing her work properly or adequately. Toffolo testified that Garris had completed her 90-day probationary period and she was pricing meat wrong on a regular basis. Assertedly, he had talked to her three or four times about the problem. 33 Toffolo testified that he punched out a tape himself from the computer which showed, on a weekly basis, his sales for the meat department; and that from the end of March through the first few weeks of April the meat department had too many hours. With the departure of Garris and Shotts, the meat department employee hours were reduced by about 20 to 25 hours because some of Garris’ and Shotts’ hours were redistributed among other employees in the meat department. 34 In an affidavit she gave to the Board on May 16, Defibaugh in- dicated that when she telephoned Jim Davis at Hempfield and asked him why she was laid off, he told her to call Garlits because he knew. She then told Davis that she had just talked to Garlits and he did not know the reason. It was then that Davis said that he was having difficulty hearing her. and that at the time, a coworker had given 2 weeks notice that she was quitting. While Garris conceded that she has priced meat incorrectly and that possibly Toffolo may have discussed this with her, she asserted that Toffolo would also have discussed this with the other women in the meat depart- ment since they all priced the meat. Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi- fied that they did not know that Garris signed a UFCW au- thorization card or supported the UFCW or engaged in union activities on behalf of UFCW prior to the end of April 1986. Toffolo testified that Respondent was having a slow period in the meat department at the Hempfield store and he did not have enough payroll hours to go around; that he decided that he would have to let two people go;31 that he chose Garris because she was the newest hire in the department and she was having a tough time catching on to the system;32 that Garris was not laid off but rather she was discharged; that he did not believe that the Respondent kept the type of records at that time as to the alleged slowness; that he told Jim Davis that he, Toffolo, had to cut back on his work force;33 and that part of the reason was that the meat depart- ment had become more efficient because the systems were becoming more streamlined throughout. Shotts testified that Toffolo told her on April 19 that he heard that she wanted a leave of absence; that he then asked her if she would consider a layoff and she said that she would have to talk to her husband; that Toffolo said that he had to know then because he was ‘‘getting rid’’ of two fe- male employees in the meat department; that she said that the only way she would consider a layoff would be if she would be able to come back to work, and he said that there would be no problem with that; that after work that day she returned to the store at the behest of Toffolo to meet with Mowery, Shibilsky, Toffolo, and Elda; that Mowery told her that instead of giving her a leave of absence it was decided to give her a layoff which would help her over the summer to get extra money; that Mowery said that she was a good worker and it would be no problem for her to come back to work when her children went back to school at the end of the summer; that the layoff was to start immediately; and that before her layoff she did not wear any union buttons or insignia which would indicate that she supported the UFCW, and she did not discuss the union drive with anyone in man- agement. Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi- fied that they did not know that Shotts signed a UFCW au- thorization card, supported the UFCW or engaged in union activities on behalf of the UFCW before she was laid off. Toffolo testified that he told Shotts that he could let her go so she could collect unemployment; that Shotts said that she would check it out with her husband and get back to him; that when she got back with him she said that it sound- ed like a good idea; that when she and he met with Mowery regarding this matter, Shotts asked if it would be permanent ‘‘and we told her that there was no guarantee of a job being here at some later point in time’’; and that Shotts was not laid off but rather she was ‘‘discharged’’; and that after the terminations in the meat department some employees in Re- spondent’s Greensburg store came to work in his department. Mowery testified that he was present with Jim Davis when Shotts asked him if she could take a leave of absence so she could be home with her children because her husband was called back to his job; that Davis told her that he could not do it; that subsequently Toffolo told him that he had to ‘‘lay off’’ two people from the meat department and Shotts agreed to be laid off; that he and Toffolo met with Shotts and he and Toffolo explained that she would be granted a ‘‘lay off’’ but under no circumstances would she be guaranteed her job back anytime she wanted and there would have to be a need for her to come back; and that as she was leaving, Shotts said that if the meat department needed help or the store needed help, they should feel free to call her. On April 21 Defibaugh telephoned Garlits and asked him if he had found out why she had been laid off. When he said ‘‘no,’’ she told him that she was going to call Jim Davis. Defibaugh telephoned Jim Davis at the Hempfield store. She told him who she was and asked him why she was being laid off. Defibaugh testified that Davis said that he could not hear her since the phone was not any good, and he asked her to give him her telephone number and he would get to an- other phone and call her right back. He did not. Defibaugh did not have to repeat the telephone number more than once to Davis. Defibaugh then telephoned both the Hempfield and Greensburg stores and was told each time that Jim Davis was at the other store.34 Around noon Garlits telephoned her and first asked her if she knew why she had been laid off. When she said no, he said that business was slow and apparently they are going to consolidate the two stores and they are just laying some people off right now. She told him that she did not believe that and that he should tell Jim Davis that she did not believe it. Garlits agreed with her that he could not understand why she was being laid off. He told her that he would give her a reference. On or about the evening of April 23, Shotts telephoned Shibilsky at home. She had received a telephone call from Pomaibo who wanted to know what was going on since as- sertedly 12 employees left the Hempfield store on April 19. Shotts said that she did not know what was happening. Sub- sequently, she received a telephone call from Defibaugh who asked her if she would sign a deposition since a number of Respondent’s employees were laid off assertedly because they signed union authorization cards. She refused, indicating 437 DAVIS SUPERMARKETS 35 While Harshall testified that he gave his UFCW card back to Porter in the parking lot in front of Respondent’s Hempfield store, the affidavit he gave to the Board indicates that he gave the card to Porter at his, Harshall’s, house. Harshall testified that the affidavit was wrong. Also, assertedly the affidavit is wrong where it indicates that on April 23 he gave Porter cards he, Harshall, solicited since he did not obtain signatures on the cards until April 25. Harshall ob- tain the cards from Porter in the parking lot in front of Respondent’s Hempfield store and he returned the signed cards to Porter at his, Harshall’s, house. 36 Roy Biedrycki, Scott Bunner, Robert Jupena, Edward Homchak, and Michael Streussing. G.C. Exhs. 63–67, respectively. 37 A copy of the charge was sent by the Board to the Davis Hemp- field store by letter dated April 29, G.C. Exh. 1(b). The receipt at- tached thereto indicates that it was received at the store on April 30. 38 According to the testimony of Miller, while he spoke with Por- ter on an unspecified date in the parking lot of Respondent’s Hemp- field store when he was off duty, Mowery approached and told Por- ter to leave the employees alone. Miller testified that he began meet- ing with Porter in Respondent’s parking lot a couple of weeks before he signed the UFCW authorization card. In his affidavit to the Board, Miller indicated, as here pertinent, ‘‘I do not know if any management officials saw me talking to Porter.’’ Miller gave the af- fidavit on May 16. 39 Miller testified that Corsaro was a high school friend. Miller was not sure whether Corsaro signed an authorization card on April 30 in his trailer. In his affidavit to the Board, Miller mistakenly indi- cated that he signed the UFCW authorization card on April 20. Also, Miller apparently could not recall Corsaro’s name when he gave the affidavit. And he could not explain why he indicated in the affidavit that he told Kevin that he had signed the card when this assertedly occurred in Kevin’s trailer in his presence. Porter testified that he told Miller that by signing the card he was authorizing the Union to represent him in collective bargaining. Also, Miller and Porter testified that one point Mowery saw him, Porter, talking to Miller in the parking lot of Respondent’s Hemp- field store and Mowery came out of the store and told Porter to leave the employees alone. 40 She started in the produce department, became a cashier in Oc- tober 1984 and was moved into the office in January or February Continued that that was not the reason for her layoff. Shotts asked Shibilsky if she got laid off because she signed a Union card. He said, ‘‘[n]o, I don’t know anything about what is going on.’’ Assertedly, he also said that she should not sign the deposition or she would never get her job back. Harshall, who worked for Respondent at its Hempfield store on its night crew stocking shelves from January 1985 until July 1986, signed a UFCW authorization card on April 23 (G.C. Exh. 62). He testified that he read the card before signing it and that when Porter gave it to him he just said it was to have Local 23 represent the employees at the store and that it would benefit the employees with respect to better working conditions ‘‘and stuff like that.’’35 On April 25 Harshall solicited the signatures on five UFCW authorization cards during a meeting of some of the night crew before their shift began.36 Harshall testified that he told the employees that they should sign the cards if they wanted Local 23 to represent them at the store, and that all of the involved employees read the cards before signing them. Each of the involved employees gave his signed card back to Harshall at that time and he subsequently gave them to Porter. Harshall did not believe that anyone in manage- ment saw the gathering. On April 29 Respondent’s employee Terry Jackson signed a UFCW authorization card. Porter testified that he told Jack- son that by signing the card he would be authorizing Local 23 to represent him in collective bargaining; and that Jackson filled the card out and signed it in his presence. Margaret Black, who had worked as a cashier at Respond- ent’s Hempfield store from September 1984 to July 1986, signed a UFCW authorization card (G.C. Exh. 20) on April 29. She testified that she read the card before signing it; that she was never told to ignore what was written on the card or not to read it; and that she signed the card in her house and gave it to Porter. Respondent’s employee John Dick signed a UFCW author- ization card on April 29. (G.C. Exh. 39.) Porter testified that he told Dick that he would be authorizing the Union to rep- resent him for the purposes of collective bargaining; and that Dick signed the card in his presence. In answering Dick’s questions, Porter told him that he did not become a member of Local 23 merely by signing the card and that regarding dues he could not make a commitment with respect to how much they would be if Respondent ever had a contract with the Union. On April 29 UFCW filed a charge (G.C. Exh. 1(a)) against Davis in Case 6–CA–19076 alleging as follows: Since on or about April 19, 1986, the above-named Employer by its officers, agents and representatives, terminated the employment of various employees be- cause of their membership in and activities on behalf of the United Food & Commercial Workers Union, Local 23, AFL–CIO & CLC, a labor organization, because they engaged in concerted activities with other employ- ees of said employer for the purpose of collective bar- gaining and other mutual aid and protection and in order to discourage membership in said labor organiza- tion. At all times since said date, and for the aforesaid reasons, the said employer has refused, and does now refuse, to employ the above mentioned employees.37 Larry Miller, who worked for Respondent at its Hempfield store as a bagger and stockboy from September 1985 to May 14, signed a UFCW authorization card on April 30 (G.C. Exh. 22).38 He testified that he signed the card at a meeting at Kevin Corsaro’s house with Porter present; that he gave the signed card to Porter; and that he read the card before signing it.39 On April 30 Harshall solicited a signature on a UFCW au- thorization card from David Biedrycki (G.C. Exh. 68). He was not at work on April 25 when Harshall solicited the aforementioned signatures. Harshall testified that he asked David Biedrycki if he wanted Local 23 to represent the em- ployees at the store and Biedrycki signed the card after read- ing it. Elda testified that she did not know about the organizing drive until sometime in May when Respondent received something from the Board; that she was aware that a number of employees were laid off in April; that she never had any conversation with any of the managers concerning the lay- offs; that she was surprised about the layoffs; that she did not know about the layoffs before they occurred; and that next to Mowery, she was the number two person in the store. Kunkle, who was employed at Respondent’s Hempfield store from April 1984 to July 25, 1986,40 attended a meeting 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1985. In the office, she handled the Lotto machine, the telephone, check cashing, customer complaints, the money in the store, the vault, and the closing of the store. Also, she testified that ‘‘she was the head of the cashiers watching the front of the store.’’ Kunkle had also worked for Respondent beginning in 1961 for 4 years. 41 He left in May 1987. 42 Pekar, at the outset of the meeting, asked him if it was true that he had signed a card and he wanted to revoke it. Werry was not sure if Pekar first read a statement which, among other things, indi- cated that Werry did not have to participate in the meeting and no action would be taken against him. Mowery told him about the meeting after Werry told employee Luwanna Shoemaker that he was interested in revoking his card. Werry testified that the fact that a number of people had been discharged and there were a number of delays in the election were factors he considered in deciding to re- voke his card and that he worried about job security if he did not attempt to revoke his UFCW card. Werry signed a petition to revoke his UFCW authorization card on July 24. R. Exh. 4. 43 Subsequently Werry testified that at some point in time Miller did say ‘‘[i]f you don’t sign this card, you are going to lose your job.’’ 44 As here pertinent, the card reads: on May 1 in the back of the deli department. Other employ- ees attending included Black, Bonnie Tompkins, Laura Em- manuel, Tom Grozik, and other employees who she could not remember. Bob Davis and perhaps Mowery were there. Kunkle testified that Bob Davis said that he wanted all ‘‘of us’’ to be one big happy family and to sign the Steelworkers cards; that Davis said that the employees would be happy with the decision to sign the Steelworkers cards; that Davis said that he was going to bring employees from the Greens- burg store down to the Hempfield store to train them; that when she asked Davis why, he said it was because the store was different and he wanted each employee to know each others job so that they could ‘‘go from store to store if need be’’; that Tompkins asked Davis what the Steelworkers had to offer the employees and Davis got very irate and started hollering to just sign the cards ‘‘we are here to make money and not get on the issues’’; that the employees then went to Mowery’s office where Kathy Donahue and a man who Kunkle believed was an official with the Steelworkers hand- ed out Steelworkers contracts and authorization cards; that after they had been in the room for about 5 minutes, Bob Davis put his head in the door and said’’ to make sure that ‘‘we signed the cards [and] that we will all be happy’’; that she signed the Steelworkers authorization card; and that sub- sequently she signed a ‘‘paper’’ retracting her Steelworkers authorization card. Black testified that Bob Davis held a meeting of employ- ees on May 1; that Civiccio told her to attend; that other em- ployees present included Debbie Grieco, Napolean, and An- gelo and Mike from the night crew; that Bob Davis said that he would like everybody to be under one big umbrella and be one big happy family; that Bob Davis said that joining the Steelworkers would be in the employees’ best interest and there were a couple of people upstairs that represented the Steelworkers and they were there to talk to the employ- ees; that Bob Davis said that he would be very upset if the employees did not join the Steelworkers; that Davis said that he wanted them to sign the green cards; that Davis did not ask anybody if there was anything he could do for them; that the employees did not ask Davis questions in the meeting held downstairs; that Donahue and Don Miller of Respond- ent’s Greensburg store told the assembled employees that they represented the Steelworkers; that the Steelworkers con- tract was given to the employees to read; that questions were asked at the meeting held upstairs; that she did not sign the authorization card; and that Kunkle did not attend the same meeting on May 1. Also, on May 1 Kunkle’s immediate supervisor, Civiccio, said, according to Kunkle’s testimony, that Davis would close the store for a month and rehire all new people if Local 23 got in. Kunkle testified that no one other than she and Civiccio were present during this conversation which took place in the office in the front of the store. Kunkle described this conversation as a friendly chat. Kunkle testified that after the May 1 employees meeting, employees who normally worked in Respondent’s Greens- burg store began to work in the Hempfield store. In her posi- tion she was only aware of two or three Greensburg cashiers, one bagger and Kim Reich, who worked in systems putting prices in the computer. She testified that before this she was not aware of any such transfers of Greensburg employees. Black testified that after the above-described May 1 employ- ees meeting with Bob Davis, certain of Respondent’s em- ployee in the Greensburg store began working in the Hemp- field store; and that the transfers involved at least one cash- ier, two or three people in the deli, two or three people in the bakery, one person in the meat department, and one in the produce department. Ruben Lee Werry started as a bagger at Respondent’s Hempfield store in April.41 He signed a UFCW authorization card on May 1 after reading it (G.C. Exh. 4), and he testified that no one ever told him that the only thing the card would be used for was to obtain an election. On cross-examination, Werry testified that he was not active in the campaign; that he thought fellow employee Larry Miller, who was a former employee of Respondent, solicited his card; that he was not told anything by any union representative about his job secu- rity if he did not sign the card; that a statement he gave to Respondent’s counsel on December 18 (R. Exh. 3) indicates that [p]rior to receiving the card, Miller told me that I would be out of a job if I did not sign the card because it was Davis’ policy to terminate students at the time of graduation. Miller told me that if the union was [in], I could keep my job. Miller also said that the only pur- pose of the card was to get an election; that one of Respondent’s attorneys, John Pekar, who met with Werry, said that this attempt to try to revoke the author- ization card ‘‘might work’’;42 that Miller did not make the statement about possibly being out of a job when he gave him the card;43 that about a week before he signed the card he heard rumors about what would happen when he finished school; that he did not recall when he testified herein wheth- er Miller said anything about an election at the time the card was signed; that he believed that when the card was given to him nothing was said by Miller other than if he wanted the Union to go ahead and sign the card; and that he gave a statement to counsel for General Counsel the day before he testified herein, which statement indicates (a) no one told him not to read the card or ignore what was written on it,44 439 DAVIS SUPERMARKETS AUTHORIZATION FOR REPRESENTATION I hereby au- thorize the United Food & Commercial Workers, Local 23, AFL-CIO, CLC, to represent me for the purpose of collective bargaining. 45 Robert Davis also testified that he held a meeting later in May for the high school students who were going to graduate, encour- aging them to further their education. 46 Kaskie testified that the card was already signed and all of the ‘‘important stuff’’ was already completed; and that she did not have any contact with William’s parents when he signed the card. 47 Kaskie corroborated Porter. (b) no one threatened or pressured him to sign, and (c) no one told him that the purpose of the card was to obtain an election. Respondent’s employee Kevin Corsaro signed a union au- thorization card on May 1. (G.C. Exh. 42.) Porter testified that he gave Corsaro the card in Respondent’s Hempfield parking lot and that he explained to Corsaro that he would be authorizing the Union to represent him in collective bar- gaining. Corsaro went into the store for about 5 minutes and when he returned the card was filled out and signed. He gave the card to Porter. Robert Davis, who has been chairman of the board of Re- spondent since 1981, testified that he goes to the Hempfield store about once a week when he is in town; that usually he is there for about 20 or 30 minutes; that he conducted a meeting with Hempfield employees on May 1;45 that on May 1 he saw Sam Picallo, who was a Steelworkers representative who dealt with Davis in the early 1980s at the Greensburg store; that Picallo told him that he was having a problem with the transfer of employees from Greensburg, that he was allowed to be in the Hempfield store and that he was not going to make a problem; that Picallo asked if it would be alright to speak to some of the employees at the Hempfield store; that Picallo did not ask to speak to just the Greensburg employees; that Picallo asked him to call some of the em- ployees together; that he called some of the employees to- gether and said: ‘‘This is Mr. Picallo from the Steelworkers . . . he has a few questions to talk to you about and it is okay to talk to him’’; that the 12 employees he gathered went with Picallo; that he thought they went upstairs but he was not sure; that he then left the store; that he did not see Donahue and Don Miller with Picallo; that he did not recall talking to the 12 employees other than to introduce Picallo; that he said nothing about signing a card or about being one big happy family; and that he did not know that UFCW was trying to organize the Hempfield store until the 1986 Memo- rial Day weekend, which is treated below. Picallo testified that he is an organizer for the Steel- workers; that his boss, Jim Poole, had received some calls from some of the employees of Respondent who were con- cerned about transfers; that Poole told him the involved em- ployees would be permanently working at the other store of Respondent and Poole thought that it was a violation of the labor agreement between the Steelworkers and Respondent since these employees would be working in a nonunion store, ‘‘they would be considered scabbing or whatever’’; that Poole asked him if he would take a ride up to the store and see what was going on; that he went to the Hempfield store, the Greensburg store, and back to the Hempfield store; that Jim Davis agreed that some Steelworkers dues paying mem- bers at the Greensburg store were working at the Hempfield store; that he went down to the Hempfield store ‘‘to try to secure some cards for organizing that store’’; that he saw Robert Davis at the Hempfield store; that before this he had been to the Hempfield store talking to employees trying to get them to sign up to belong to the Steelworkers; that he had succeeded in getting some authorization cards signed; that he had asked Donahue and Don Miller, both of whom were in the Steelworkers at the Greensburg store, to get Steelworker authorization cards signed; that he talked with Robert Davis, I said Bob I said I got some complaints on transfers. I am here and I am talking to these people which I feel I have a right to do. I said I hope nobody gets in a jam because they are talking to me because I didn’t know any of the managers of the store or anybody. I want to question the employes on transfers. I said I would ap- preciate it if you would let these people know that that is what I am here for; that he did not meet with the employees as a group but rath- er he met with them individually; that he had asked Donahue and Miller to meet him at the Hempfield store on that day to try to get employees to sign Steelworker authorization cards; that he did not recall whether Donahue and Miller were standing with him when he spoke with Robert Davis but he did not believe that the two were standing there; that he did not go upstairs and he did not know whether Donahue and Miller went upstairs to try and get employees to sign Steelworker authorization cards; and that subsequently he made five or six trips to the Hempfield store within the next month or two. On May 2 Porter, accompanied by Robin Kaskie, who was employed as an organizer by the UFCW and who was as- signed to this organizing drive in the first half of April, ob- tained a UFCW authorization card from Respondent’s em- ployee Paul Williams (G.C. Exh. 32). Porter testified that Williams had partially filled out the card when they met with him and when Kaskie gave him a pen he filled out the re- mainder of the card; and that he told Williams he would be authorizing the UFCW to represent him in collective bar- gaining. On cross-examination, Porter testified that Kaskie told Williams that the reason for signing the card was to au- thorize the UFCW to represent him in collective bargaining. Kaskie testified that she gave Williams a pen to fill out a portion of the card which was not already filled out, namely, the Employer’s name and address, and his hire date, depart- ment, and hourly rate;46 and that she explained to Williams that collective bargaining meant getting a contract for wages, benefits, and work conditions. Pam Barnes, an employee of Respondent, signed a UFCW authorization card on May 2 (G.C. Exh. 31). Porter testified that when he met with Pam Barnes and her husband Porter was accompanied by Kaskie; that he told Barnes that she would be authorizing the Union to represent her in collective bargaining; and that that she read the card, filled it out and signed it in their presence.47 Respondent’s employee Mary Kissell signed a UFCW au- thorization card on May 2 (G.C. Exh. 40). Porter testified that he and Kaskie met Kissell at a restaurant in Greensburg; that Kissell was told that she would be authorizing the Union 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48 Kaskie testified that she put a star in the upper left corner of the card to note that Kissell was ‘‘real gung ho’’ and Kaskie thought Kissell might be a ‘‘key.’’ 49 Respondent stipulated to the authenticity and validity of the fol- lowing six UFCW authorization cards: a card signed by Ingeborg Kunz on May 16, one signed by Craig Steiner on May 1, Sam Grace on May 7, Joe Phillips on May 6, Marjory Sullenberger on May 10, and Staci O’Brien on May 10. G.C. Exhs. 5–10, respectively. 50 About 1 month after he signed the UFCW card, Kula signed a Steelworkers authorization card. He did not recall ever signing a form for UFCW revoking his Steelworkers card. 51 She testified that she left Respondent’s employ because a new manager had her doing a lot of different things in the store and very rarely did she work on her cash register; and that while she was angry then and when she testified herein, she was not angry enough to perjure herself herein. 52 Sarsfield testified that when she was given the card to sign she did not believe that the solicitor said anything but later she heard from employees in the store that the purpose of the card was to get an election. She met with Pekar on January 26, 1987. Regarding this meeting, Sarsfield testified that she did not believe that she had a choice but rather she had to meet with Pekar; that she was afraid when she went upstairs to meet with Pekar; that she did sign a state- ment, R. Exh. 6, which indicated that she could refuse to participate and no action would be taken against her; and that Pekar drafted a statement but she refused to sign it. 53 According to Porter, the meeting was attended by Black, Eman- uel, Lisa Crivella, Tompkins, Theresa Colosimo, Defibaugh, and ei- ther Kunkle or Welsh. Kaskie testified that she, Porter, Kunkle, Black, Brian Marchetti, Thompkins, Emanuel, Colosimo, Missy Moore, and Crivella were there. 54 Emanuel, Crivella, Tompkins, and Colosimo. (G.C. Exhs. 33, 34, 36, 37, respectively.) Kaskie corroborated Porter’s testimony re- garding these cards. 55 Subsequently he testified that he asked both of them if they un- derstood the reason for signing the card and they said that Jeff Ritison had told them. Both Marchetti’s and Moore’s card had ‘‘5- 5-86 from Jeff at Don’s house’’ written on the front. Porter ex- to represent her for purposes of collective bargaining; and that Kissell filled the card out and signed it in his presence.48 On May 2 UFCW filed a petition for election covering Davis’ Hempfield employees (Jt. Exh. 12). Kunkle signed a UFCW authorization card on May 3, General Counsel’s Exhibit 16. She testified that she read the card before signing it; that she was never told not to read the card before signing it; and that she gave the card to Por- ter after signing it. Defibaugh obtained a signature on a UFCW authorization card from Cheryl Goodlin on May 3, 1986 (G.C. Exh. 25). Defibaugh testified that she gave the card to Goodlin who read it and signed it in her presence and then returned it to her; and that regarding the card, she told Goodlin that the Union would represent her if she wanted to sign it. Defibaugh gave the signed card to Kaskie. On May 3, according to her testimony, Shotts told Mowery that her husband was laid off the day before and she wanted to come back to work. Assertedly, Mowery said that Bob and Jim Davis were out of town at a convention and he would have to speak to them and get back to her on May 8. Toffolo testified that a few weeks after she left, Shotts asked him if she could come back to work and he told her that there was nothing available at that time. Corinne Greaves, who is a cashier at Respondent’s Hemp- field store, signed an authorization card on May 4. (G.C. Exh. 44.) Kaskie testified that she explained to Greaves what collective bargaining meant at one of the employee meetings at the Mountain View Hotel, and that Greaves filled the card out in Kaskie’s presence. Miscovich, who was a bagger at Respondent’s Hempfield store, signed a UFCW authorization card on May 5 at a 7- Eleven store up the road from Respondent’s Hempfield store. (G.C. Exh. 3.)49 Prior to this he had no involvement with the UFCW and after this he did not engage in an union activity, except picketing. John Kula, a meat clerk at Respondent’s Hempfield store began working for Respondent in 1984. On May 5 he signed a UFCW authorization card which he read prior to signing (G.C. Exh. 12). Kula testified that he was not told that the only purpose of the card was for obtaining an election. When Shotts gave him the card, she merely said to read it before he signed it.50 Respondent’s employee Scott Graham signed a union au- thorization card on May 5. (G.C. Exh. 41.) Porter testified that he told Scott the he would be authorizing the Union to represent him in collective bargaining; and that Scott filled out the card and signed it in his presence. Valozzi, an employee of Respondent, signed a union au- thorization card on May 5. (G.C. Exh. 43.) Porter testified that he told her that she would be authorizing the Union to represent her in collective bargaining; and that she filled out the card and signed it in his presence. Counsel for General Counsel sponsored General Counsel’s Exhibit 56 which purports to be a UFCW authorization card signed by Tammy Traister on May 5. For purposes of com- parison, an employment application signed by this individual was also introduced (G.C. Exh. 57). Wendy Sarsfield was employed as a cashier at Respond- ent’s Hempfield store from September 1985 to May 1988.51 She signed a UFCW authorization card on May 6 (G.C. Exh. 11). With respect to signing the card, she testified that she read the card prior to signing it; that she was not told that the card was only for the purpose of obtaining an election;52 that she was not told to disregard the language on the card; and that she was not threatened in any way. Defibaugh obtained a signature on a UFCW authorization card from Angela Sherrow on May 6 (G.C. Exh. 26). Defibaugh testified that Sherrow read the card and signed it in her presence; and that she told Sherrow that the card was to have the Union represent her. Defibaugh gave the signed card to Kaskie. On May 6, Porter and Kaskie held a meeting of certain of Respondent’s employees at Black’s house.53 Certain of the employees who attended the meeting signed UFCW author- ization cards while they were at the meeting.54 Porter testi- fied that the employees present were told that by signing the union authorization cards they were authorizing Local 23 to represent them in collective bargaining. Moore and Marchetti arrived at the meeting after it had started. Moore gave the union representatives her union authorization card which she had already signed and which was dated May 5. (G.C. Exh. 35.) Marchetti also gave Porter his union authorization card which was already signed and dated May 5. (G.C. Exh. 38.) Porter believed that he explained to Moore and Marchetti that by signing the cards they were authorizing the union to represent them in collective bargaining.55 441 DAVIS SUPERMARKETS plained that Kaskie gave the two cards, at his trailer, to Ritison, who was a former employee of Respondent, to give to Marchetti and Moore. Kaskie testified that she explained to Moore that the purpose of the card was for collective bargaining to get the employees a con- tract or wages and benefits and working conditions; and that Ritison passed out cards and he must have given them to Marchetti and Moore who brought cards to Black’s house, which cards were al- ready filled out. Kaskie did not give them the cards at Blacks. She had no idea why she wrote ‘‘5-5-86 from Jeff at Don’s house’’ on the reverse side of Moore’s card. Kaskie also testified that the employees present asked about revok- ing the Steelworkers cards, indicating that they felt like they were forced to sign them; and that at the meetings the employees were told that there would be an initiation fee. Marchetti, Tompkins, Emanuel, Crivella and Kunkle signed letters dated May 6 revoking their Steelworkers authorization cards, C.P. Exhs. 1–5, respectively. 56 The reverse side of the card has the following notation: ‘‘5-06- 86 from Brian M. at Peggy’s RK.’’ Apparently this notation refers to the above-described meeting at Black’s house. 57 While she was in the Hempfield store shopping, Shotts saw em- ployees she did not recognize. Pomaibo told her that one was Lisa who was from the Greensburg store and another was Bonnie, who Shotts did not believe was from the Greensburg store but rather re- cently hired. Prior to Shotts’ layoff, an employee from the Greens- burg store came to the Hempfield store to help set up a fish case in the meat department. According to Shotts’ testimony, the Greens- burg employee stayed at the store for a couple of hours at a time and her visits ended before the involved organizing drive. 58 At the time she testified herein, Shotts had not been recalled by Respondent. 59 The following employees signed and returned the authorization cards to Kunkle: Becky Mascolo, Jean Ann Bennett, and Chris Goodman. G.C. Exhs. 17, 18, 19, respectively. 60 Kunkle testified that when she solicited these cards none of Re- spondent’s managers were around. 61 Miscovich testified that Bob Davis held meetings with the em- ployees before May but he, Miscovich, could not remember when the meetings took place or who was present. He did remember that the meetings dealt with work procedures. Counsel for General Counsel sponsored General Counsel’s Exhibit 49 which purports to be a UFCW authorization card signed by Jennifer Thomas on May 6, and General Counsel’s Exhibit 53 which purports to be a UFCW authorization card signed by John Rusnica on May 6.56 For purposes of com- parison, W-4 forms and employment applications signed by these individuals were also introduced (G.C. Exhs. 50–52, 54–55, respectively). According to her testimony, when she did not receive a telephone call from Mowery on May 8, Shotts telephoned him, asking him if he had heard anything about her returning to work. Shotts testified that Mowery said that he had spoken to Jim Davis and he said that it would not be a good time for her to come back to work then and Respondent did not really need her; that Mowery said that it was because of the union situation with the Steelworkers; that she told Mowery that Davis has employees coming down from the Greensburg store taking her job57 and they were hiring people, and she had been told that she could come back; and that Mowery said that he could not say anything until the union business was settled.58 Mowery testified that he was not aware that Shotts ever wanted to come back to work at the store. Kunkle obtained the signatures on three UFCW authoriza- tion cards. All are dated May 10.59 Kunkle told each of the employees that the card was to get Local 23 to represent them. When the employees gave them back to her she gave them to Porter.60 She also attended UFCW meetings which were held at a specified restaurant and at Black’s home. Pomaibo, who is employed by Respondent at its Hemp- field facility, signed a UFCW authorization card on May 12 (G.C. Exh. 45). Kaskie testified that Pomaibo attended one of the Union’s meetings at the Mountain View Inn and signed the card afterwards; that during the meeting collective bargaining was explained and it was indicated that the card could be used for a recognition demand or election; and that she witnessed Pomaibo sign the card. On or about May 12, according to the testimony of Miscovich, Bob and Jim Davis called a meeting at the store. Assertedly eight employees went upstairs to the store man- ager’s office where they were told by Bob Davis that he knew that all of the employees there had signed UFCW au- thorization cards and he wanted to know what the problem was and why had they signed the cards. Also, assertedly Bob Davis said that if there was any kind of a problem, if there was anything he could help the employes with, they should just ask. Miscovich remembered that Buhl and a Linda from the office were there but he could not recall who the other five employees were. According to Miscovich, Bob Davis also spoke about how he helped people get a job.61 On May 12 or 13, Kunkle had a conversation with Mowery in the office in the front of the store, during which Mowery assertedly said that Davis would close the store and rehire all new people if Local 23 got in. Kunkle could not recall whether she or Mowery brought up the topic of the Union. She testified that she and Mowery were friendly; and that neither he nor any other of Respondent’s managers ever asked her about her role in the union campaign. Kunkle be- lieved that she might have mentioned Mowery’s and Civiccio’s statements about the store closing to the other women who worked in the front office at the time; Bennett and Mascolo. But she was sure that she did not mention these statements to other employees before she solicited au- thorization cards for the Union. Mowery testified that Kunkle brought up the Union asking him what he thought about it; and that he told Kunkle that the Union did not bother him in that Respondent had a union at its Mount Pleasant store where Mowery formerly worked, and he also belonged to a union when he worked for Volkswagon. Kaskie testified that on May 13 she, Ron Kean, who was Kaskie’s boss, and Tom McNutt, who is a UFCW business agent, went to Respondent’s Hempfield store and met with Bob Davis in the store’s snack bar or cafeteria. Kean told Davis that they were demanding recognition because they represented a majority of the employees and Bob Davis said, ‘‘No,’’ he could not do that. When Larry Miller punched in on May 14 he allegedly was told by Elda to attend an employee meeting being held upstairs in the store. Miller testified that he did not know the last names of other employees present, namely, Ed, Scott, Tami, Glena, Lina, and Cheryl. According to Miller’s testi- mony, Bob Davis spoke about the people from the Union talking to the employees. Davis assertedly indicated that those people were trying to push things down the employees throats; that those people were pushing the employees around 442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62 On cross-examination, Miller, when asked about his testimony on direct that he purchased the material that he was eating, initially testified ‘‘Yes, mostly [sic] likely we did.’’ Later, he testified, ‘‘We did purchase it.’’ Also, Miller testified that he told Mowery that he, Miller, bought the item in question. Two days after the firing, when he gave his affidavit to the Board, Miller did not have the Board agent include in the affidavit a statement that he, Miller, did buy the corn curls. And he testified herein that he did not tell the Board agent that he told Mowery that he bought the items in question. Fi- nally, on redirect he testified that he told Mowery ‘‘[t]hat I could very well bought them or somebody else would have bought them. And we shared our items in the back room, in receiving. And I did not steal.’’ Miller did not give to Mowery and Mowery did not ask for a receipt for the items which were consumed 2 or 3 days before this meeting. 63 The night crew included Harshall, Scott Bunner, Rob Japena, Roy and Dave Biedrycki, Graham, and John Hart. 64 The picket signs read: Davis Market Unfair We want the public to know that this company has committed unfair labor practices designed to deny employees their rights under the NLRB. Please do not patronize. United Food and Commercial Workers Union, Local 23 AFL–CIO There is some indication that an ‘‘A’’ is in the sign but this is not clear. The sign measured about 24 inches by 18 inches. And the word ‘‘Unfair’’ was about 2 inches high and the remainder of the letters in the sign were about 1-inch high, except ‘‘Please don’t pa- tronize’’ which was about 1.5-inches high. saying that they could help us; that nobody could help the employees except Davis and his family; and that he had heard terrible rumors about people speaking to the employees in the parking lot. Miller testified that Davis also spoke about how he helped certain employees like Cheryl with her schedule because she attended college; and that Davis did not ask the employees during this meeting to sign a card for the Steelworkers. Later during his shift on May 14, Miller was told by Elda to go upstairs to the office to meet with Mowery. Elda ac- companied Miller to the office and remained there during the meeting. Miller was told by Mowery that he had observed him clowning around and eating and drinking in the receiv- ing area. Mowery had a box with a number of items which were opened. Miller testified that he told Mowery that he did not steal the items: that a lot of times . . . we have a soda machine in the receiving area and we would buy things on break. They might be laying around back there and we would eat them or whatever, share them with fellow employees.62 Mowery told Miller that he was fired. According to Miller, the two other employees with him at the time, B. J. Campana and Corsaro, were not discharged. Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi- fied that they did not know that Miller signed a UFCW au- thorization card or supported UFCW or engaged in union ac- tivities on behalf of the UFCW prior to mid-May 1986. Mowery asked Elda to sit in when he spoke to Miller. She testified that when Mowery asked Miller if he consumed any of the items without paying for them, Miller admitted to it; that she was not present when Mowery spoke with Campana before he spoke to Miller; and that Campana was not fired. Mowery testified that the store was experiencing a pilferage problem in the stockroom of the warehouse; that the store had experienced pilferage problems in the past; that a lot of empty soda cans and opened packages of chips, cookies and peanuts were found in the stock room; that two employees worked in the room as pullers, namely, Miller and Campana; that he talked to Campana who denied eating or drinking any of the involved items; that no one else was present when he spoke to Campana; that Elda was present, at his request, when he spoke to Miller; that he asked Miller if he had eaten the contents of the packages he had in front of him or drank any of the soda; that Miller said yes he did; that he told Mil- ler that he had no choice and he had to fire him; that he did not first ask Miller if he had paid for what he consumed or if he just took them; and that store policy requires that the employee keep a receipt for goods while he or she is con- suming them but there is no requirement that the employee keep the receipt for some indefinite period of time; that it is the policy that anytime there is going to be a reprimand of an employee, another person should be present; that that day Campana was at the store before Elda; that she came in at 4 p.m.; that he spoke to Miller 30 to 45 minutes after he spoke with Campana; that ‘‘it had to be one of them . . . [and] Miller admitted to it’’; that Miller did not indicate that either he or someone else paid for the goods consumed; that at that time there was a night crew on duty at the Hempfield store overnight; that they had access to the involved store- room; that Miller was not the first person discharged for pil- fering at the Hempfield store; that before Miller was dis- charged three other employees were discharged for pilferage; and that after Miller was discharged, two night crews were discharged for the same reason.63 On May 15 while Kunkle was in the office in the front of the store she heard Bob Davis tell a cashier that he was very upset that his employees would go behind his back to go to Local 23. Black testified that around May 15 Bob Davis approached her register. Assertedly it was a very slow day and there was no one else around her register. Black testified that Bob Davis told her that he was very unhappy and upset that some of his people were going behind his back to join with Local 23; that she told Davis that Respondent’s Hempfield employ- ees were unhappy with the fact that Greensburg employees were being transferred to the Hempfield store; that Davis said that he wanted his Greensburg people to train us as to the operation of his Greensburg store; that Davis said that his door was always open anytime we wanted to talk and we were welcome to come in; that Davis said that he took care of his own; that Davis said that he would not have Local 23 in his store; and that at the time Kunkle was in the front of- fice about 10 feet from her, Black’s, register. On May 23, Helen Aalborn, who is employed by Respond- ent at its Hempfield facility, signed a UFCW authorization card (G.C. Exh. 46). Kaskie testified that Aalborn read, filled out and signed the card in her presence; and that she told Aalborn what collective bargaining meant. The Union began picketing at Respondent’s Hempfield store on May 23. Kaskie arrived at the store at about 8 a.m. She testified that the pickets had unfair labor practice signs64 443 DAVIS SUPERMARKETS 65 Kaskie estimated that at most there were 12 picketers in front of the store; and that some of them moved away from the doors. She recalled some of the picketers, namely Defibaugh, Shotts, and Good. 66 Black corroborated Kunkle, adding that Buhl also took their photographs. A couple of weeks after she picketed, Black’s hours were reduced and she was given a steady 7 a.m. to 1 p.m. shift. Be- fore that she worked during the evening with her hours fluctuating. Her total hours per week varied between 36 and 39. After picketing they were reduced to 26 to 30 hours. They remained at the lower level for about a month. Black testified that Jim Davis never talked to her after she walked the picket line. 67 Assertedly, four stood by the side of the entrance door and four stood by the side of the exit door. Defibaugh testified that the pick- ets were not in front of the doors but rather were usually off to the side; and that while she was there she never saw anyone unable to get into or out of the store because of a picket. She conceded that occasionally it did get congested in the area when people stopped to talk to the picketers. 68 One or two people were involved in selling the raffle tickets. Harshall testified that on Memorial Day he saw the pickets and also two people selling raffle tickets for a car at a card table set up on the sidewalk in front of the store. He also testified that occasionally there were people in front of the store selling tickets for different things. 69 The complaint, as here pertinent, alleges as follows: ‘‘6. Commencing at about 8:00 a.m. on May 23, 1986, ap- proximately six (6) individuals holding signs bearing the name of the Union Defendant entered onto the property of Plaintiff and remained positioned at the main entrance of Plaintiff’s Hempfield Township store. 7. Defendants were requested and directed by Plaintiff to leave the premises but refused to do so. 8. Defendants continue to persist in their unlawful conduct of trespass. 9. The trespass by Defendants places in jeopardy Plaintiff’s good will and business relationships.’’ and they handed out handbills which spoke to the alleged un- fair labor practices of Respondent; that she and the other pickets stationed themselves on the sidewalk in front of the store;65 that the two entrances to the parking lot of this store are wide enough to accommodate one car entering and one car exiting at the same time; that when the pickets took up their position on the sidewalk in front of the store, Bob Davis came out of the store and told them that they were not allowed to be there and he was going to call the police; that she informed Bob Davis that she had already telephoned the State Police to tell them what the picketers were going to be doing; that the State Police did arrive later that day; that that same day there was an older man selling raffle tickets for a car which was parked in the lot in front of the store; and that Napolean, Steve Davis, and Buhl took photographs of the picketers. On May 24 the picketers were advised that as a result of a legal action they could not picket on the sidewalk in the front of the store. Kaskie testified that on May 24 her boss, Kean, showed her the injunction and told her that the pick- eters had to get off the sidewalk; that neither the Davises nor the police told the picketers to get off the sidewalk on May 24; that three picketers were allowed at both of the two en- trances to the involved parking lot and two picketers were allowed to handbill in the parking lot up to the third row of cars in the lot nearest the store; that the people handbilling in the lot were not allowed to wear signs and the people who wore signs at the entrances to the parking lot were not al- lowed to handbill; and that the picketers by the entrances to the parking lot stood in grassy areas. Welsh picketed at Respondent’s Hempfield store during the Memorial Day weekend in 1986. She was stationed by an entrance to Respondent’s parking lot passing out informa- tion on what Respondent was doing and she saw the Davis’ come and go. She picketed for some time after that whenever she could. Kunkle engaged in informational picketing at Respond- ent’s Hempfield store on May 23, 24, and 25 with Black and some UFCW officials. While she was picketing, mostly at the driveway entrance to the parking lot, she saw Bob and Jim Davis and Mowery. Kunkle testified that Mowery di- rected Napolean to take pictures of her and Black while they picketed.66 Defibaugh also engaged in picketing at Respondent’s Hempfield store over the 1986 Memorial Day weekend, May 23–25. She arrived at the site at 8 a.m. on May 23. Regard- ing the picketing, she testified that there were eight people on the sidewalk near the front doors;67 that they carried signs which read ‘‘Unfair Labor Practices. Do Not Patronize This Store, Davis Supermarket. Local 23, UFCW’’; that the pick- eters distributed handbills which covered unfair labor prac- tices and people being laid off; that the Hempfield store is located on Highway 136 and Janice drive; that there is a parking lot in front of the store with a driveway on both of the aforementioned streets; that the involved store is the only business located on this property; that at various times during the picketing various managers, including Bob Davis, Mowery, and Elda entered and left the store; that Napolean took pictures of the picketers; that on May 23 some organi- zation had a table set up on the sidewalk by the front door and they were selling raffle tickets for a car which was parked nearby;68 that usually around holidays there were church groups or school organizations in front of the store selling tickets and other things; and that a public relations representative from the Pennsylvania State Police appeared at the store and he spoke to Respondent’s management on May 23. Davis filed a complaint in Equity in the Court of Common Pleas of Westmoreland County, Pennsylvania, on May 23 wherein it sought to have the UFCW temporarily and perpet- ually enjoined from entering onto Davis’ premises located at Route 136 and Janyce Drive, Hempfield Township. (Jt. Exh. 1.)69 On May 24 the court entered an order which indicates that the order was entered by agreement of the parties; that the UFCW agrees that during the term of the order picketing of Davis’ store would be limited to (1) two pickets stationed at each entrance to the premises who would remain off Davis’ property and carry informational signs but not pass out leaflets or stop cars and (2) two female pickets who shall be allowed on Davis’ premises to handbill but shall approach no closer to the store building than the third row of painted parking stalls closest to the building. (Jt. Exh. 2.) The order remained in effect until May 28. Elda testified that on the first day of picketing there were at least 8 to 12 pickets on the sidewalk by the front door; that there were many in the parking lot; that the ones in the parking lot handbilled customers; that customers complained to her; that she saw Jim and Bob Davis on the sidewalk talk- 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70 Subsequently Toffolo testified that the person saying this was a ‘‘she.’’ 71 She described the individual as being a very large man, 6 feet 5 inches, and weighing about 250 pounds. She could not remember the color of his hair or what he was wearing. 72 The order states that Defendants are hereby enjoined. The De- fendants in the case were UFCW, Local 23, and its officers, rep- resentatives, agents, and employees, individually and or acting in concert with UFCW, Local 23. ing to the customers or the pickets and that Mowery was out on the sidewalk also. Toffolo testified that during the picketing over Memorial Day weekend he was called to the front of the store to assist in getting some shopping carts off the sidewalk and bring them into the store. He testified that the picketers ‘‘were sort of in the way of the doorway. You would have to swing wide, with three or four shopping carts, like a matter of con- stantly having to move people to get around them’’; that there were between 12 and 15 picketers on the sidewalk in front of the store, 3 or 4 out in the parking lot and several at each entrance to the parking lot; that one of the picketers spoke to Bob Davis and ‘‘[h]e said, I’m going to get you, Bob Davis’’;70 and that he heard the picketers tell customers to not shop there because ‘‘[t]his guy’s a criminal’’ and they should shop somewhere else like the Giant Eagle. Reich testified that one of the picketers who was standing by the front of the store said, ‘‘Get out of here bitch’’ to her, which scared her half to death;71 and that she saw Welsh on the picket line over the Memorial Day weekend. Robert Davis testified that the picketers blocked the front of the store and customers had to squeeze around them; that the picketers were telling people not to shop here but to go to Giant Eagle; that he went out and spoke to the customers assuring them that the picketers would not harm them; and that he saw a lot of the leaflets on the ground and he picked them up. Mowery testified that the picketing by UFCW was the first he heard of a union organizing campaign being carried on by Local 23; and that he did not know that UFCW had filed a petition with the Board concerning the involved employees. Jim Davis also testified that prior to the picketing over the Memorial Day weekend he was not aware of any union ac- tivity by Respondent’s employees in support of Local 23 or of an organizing campaign. In early May both Mowery and Jim Davis saw UFCW’s petition for an election, which was forwarded to Respondent by the Board. On May 24, Nancy Matson, who is employed by Respond- ent at its Hempfield store, signed a union authorization card. Kaskie testified that she explained to Matson what the card was for and told her that if she was interested in union rep- resentation she should sign the card; and that Matson signed the card in her presence. Kaskie also testified that with re- spect to the cards she witnessed, she never told any of the signers not to read the card, she never told the signers to ig- nore what was written on the card, she never told the signers that the sole purpose of the cared was to obtain an election, she never threatened employees in order to obtain a signature on a card, and she never promised employees anything to ob- tain a signature on an authorization card. Elda testified that there was a management meeting on May 24, the second day of the picketing, at which it was in- dicated that the picketers were only allowed at the entrances to the parking lot with two of the picketers in the parking lot. Toffolo testified that on the second day of picketing in May there was a meeting of the managers at the Hempfield store; that there was no discussion of which employees did or did not support the Union; that they were told not to speak to the pickets; and that he did not recall Elda being at the meeting. Mowery testified that the managers were told at this meeting that they should make sure that the rules were being followed and any violations of the rules should be noted and reported to Jim Davis. Mowery saw Kunkle pick- eting over the Memorial Day weekend. When Kunkle went to work on May 25 after picketing, she was sent to the produce department to wrap strawberries by Elda, who, as noted above, is the assistant store manager. As she left the store to go home, she asked Elda why she was sent to produce and Elda told her that she was replacing somebody. When Kunkle asked who the person was Elda as- sertedly did not reply. Elda testified that she did refer Kunkle to the produce de- partment to wrap strawberries because Kunkle had experi- ence in the produce department, someone had called off in the produce department, and while she, Elda, does not nor- mally get involved in produce department matters, there were no other managers in the store at that time on Sunday. On May 28 the above-described Pennsylvania court en- tered an order enjoining UFCW72 from picketing Davis’ place of business except for three pickets who may be sta- tioned at each entrance to the parking lot of the premises, off the property of Davis, which pickets may carry informa- tional signs and pass out leaflets but shall not physically im- pede or stop the movement of the traffic to and from the parking lot. (Jt. Exh. 4.) Also, on May 28, Davis’ attorney, in a letter (Jt. Exh. 3) to Robert Davis, stated: As you recall, we tentatively agreed, on a trial basis,that notwithstanding the Order of the court, we would permit two pickets in the parking lot and two pickets at each entrance. The two pickets at each en- trance will do nothing but carry signs, and the two pickets in the parking lot, three rows from the drive- way, may merely pass leaflets as long as they behave themselves! I believe this is an excellent result, and in the event the parking lot people need to be removed, we have an order to do so. On June 2 UFCW filed a charge in Case 6–CA–19159 (G.C. Exh. 1(j)) alleging as follows: Since on or about May 23, 1986, the above-named Employer [Respondent], by its officers, agents and rep- resentatives, restrained and coerced its employees in their exercise of the rights guaranteed by Section 7 of the Act, by demanding that employees cease picketing and other concerted activities in the store parking lot. On June 3 a Board hearing was held on UFCW’s petition for an election in Case 6–RC–9693 (Jt. Exh. 12). Shortly after he signed the UFCW authorization card, Miscovich’s work schedule changed in that while his normal schedule called for him to work in the store during the day- 445 DAVIS SUPERMARKETS 73 R. Exh. 8 is a note Welsh wrote to Reich indicating that she could not come back to work ‘‘[m]ostly because I can’t trust your employer.’’ (Emphasis in original.) Welsh testified that she was con- cerned that Respondent just needed people for a holiday or two and that she was going to have to leave her other job. 74 Kunkle testified that Mowery did not telephone her prior to going to the meat department to ask her if she minded the assign- ment. Rather, she noted the change when she saw the schedule. Kunkle testified that Pomaibo did not take her vacation until July 25. 75 Kunkle testified that normally meat wrappers wrap meat, price it, take it out and fill up the counters and wait on customers at the counter. This was corroborated by Garris, who also testified that it would take 3 weeks to train a person to price and to stock in the meat department. On the other hand, Garris testified that a person could learn how to put meat in the case and straighten up the case in a day. Garris also testified that wrapping was the hardest part of the job for her to learn because it took her a couple of months to develop ‘‘the flick of the wrist.’’ 76 Opening is described as opening the vault, giving each cashier their drawer, opening the machines and opening the computer. Clos- ing is described as closing the computer, all of the registers, count- ing the money in the vault and making deposits. Previously, Grieco ran the lottery machine in the office one time for about 30 minutes. 77 About six times a day Kunkle would do nothing for periods of up to 10 and sometimes 15 minutes waiting for meat to wrap. Garris testified that while she experienced periods of inactivity, she gen- erally spent the time straightening up the cases. Garris also testified that she had never seen a wrapper just stand around for a period of Continued time so that he could work at a gas station at night, his schedule was changed so that he was slated to work a couple of evenings. His immediate supervisor, Civiccio, who is the front end manager, had originally told him that there would be no problem with scheduling him to work during the day. And Mowery, the Hempfield store manager, asked him if he had a night job and Miscovich told Mowery that he, Miscovich, pumped gas at night. When his schedule was changed, Miscovich asked Civiccio why she was scheduling him for evenings and assertedly she replied that she sched- uled him for days and Mowery changed the schedule and was scheduling him for a couple of evenings. When Miscovich asked Mowery about the schedule changes Mowery assertedly acted as if he did not know that Miscovich worked a second job at night. Allegedly, Mowery told Miscovich that if he could not follow the schedule than ‘‘you can’t work.’’ At first Miscovich telephoned Respond- ent indicating that he would not be able to work that evening. Assertedly he kept telling Mowery that he knew that he, Miscovich, had to work evenings and after a few weeks Miscovich just did not go in to work after a fellow employee told him that he was not on the schedule. Elda, Toffolo, Sandy Reich, Robert Davis, Mowery, and Jim Davis testified that they did not know that Miscovich signed a UFCW authorization card, or supported the UFCW or engaged in union activities on behalf of UFCW prior to June 1986. Mowery testified that in May 1986 there were complaints from customers that there were not enough pack- ers on duty at night; that there were a lot of high school graduations and high school students were studying for finals; that he told Civiccio to schedule more night time packers; that Civiccio told him that Chuck had another job at a gas station; that he told her to schedule him when she needed him; that she did schedule him to pack bags at night; that after the schedule was posted, Miscovich told him that he could not work at night because he had this other job; and that he told Miscovich that whenever he is scheduled to work that is when he is expected to work. On June 27 the Board issued a Decision and Direction of Election (Jt. Exh. 13). It was concluded therein that the fol- lowing unit was appropriate for purposes of collective bar- gaining: All full-time and regular part-time employees employed by the Employer at its Hempfield Township, Pennsyl- vania, location; excluding confidential employees, stu- dents employed pursuant to cooperative education pro- grams and guards, professional employees and super- visors as defined in the Act. According to Welsh, sometime during the week before July 4, Sandy Reich telephoned Welsh at home and offered Welsh her job back. Welsh asked if she would be able to keep her job or if she would be laid off in a while. When Reich said that she could not guarantee anything, Welsh indi- cated that she had to turn the job down.73 Reich testified that in mid-June Jim Davis told her that he trusted her judgement and that she could bring Welsh back; that when she asked Welsh to come back Welsh told her that she could not because she did not feel comfortable with Re- spondent’s management; and that she told Welsh that she, Reich, was sorry to hear that but she understood and she wished Welsh well. When Kunkle returned from vacation on July 5 she was assigned to work in the meat department. She asked Mowery what was going on. Assertedly, Mowery told her that Jim Davis wanted her back in the meat department since there were people going on vacation and she knew how to wrap.74 Kunkle told Mowery that she thought the transfer was unfair. She testified that she probably asked Mowery if the transfer was permanent or temporary but she did not remember what Mowery said in this regard. Kunkle testified that when she asked Mowery if she would be going back to the front of- fice, Mowery did not reply. Kunkle had never worked in the meat department before but she indicated that the wrapping procedure and machine are the same. She was told to just stand there and wrap meat.75 Her job in the front office was assertedly taken by Grieco, who was a cashier and who had no experience opening and closing.76 On one occasion while Kunkle worked in the meat depart- ment she spoke with the wrapper who stood across from her, Bonnie Duncan. Jim Davis approached and told Duncan that she was not allowed to talk to Kunkle other than regarding meat. Assertedly, Duncan looked at Davis and laughed. Kunkle testified that Respondent, before that, did not have a rule about talking between employees. On another occasion, 3 or 4 days after she started in the meat department, Kunkle was putting out hot dogs in the meat counter and Jim Davis told her that she was not al- lowed to be out in front; she had to stay in the back and wrap. Consequently, since Kunkle wrapped faster than the butchers could cut, she would just sit there when she was finished her wrapping.77 On one occasion she indicated to 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time waiting for meat to wrap. All of the people she worked with, however, were permanent; none were temporary. 78 Garris, who worked in the meat department for about 10 weeks, testified that there was blood in the meat department but that the meat department was ‘‘not really’’ dirty. Garris enjoyed working in the meat department and preferred it to any other area in the store. 79 Black corroborated Kunkle, adding that there were 30 to 40 peo- ple in the room. Sandy Reich testified that she attended a meeting of employees in mid-July regarding the upcoming union election; that she never directed any employees from the deli to attend any other employee meetings held by Jim Davis between January 1 and May 30; and that the meeting she attended was held in a small up- stairs office which would only hold about 10 people. Reich testified that she was not directed to bring the employees in her department with her to the meeting. Mowery testified that he attended a meeting of employes in July; that Jim Davis presided at the meeting telling employees about the upcoming Union election; that there were about 10 employees present; and that he was called away from the meet- ing. Mowery also testified that during the 2- to 3-month period he did not hear Jim Davis state how he felt about Local 23, the union campaign or the election. 80 Defibaugh estimated that the driveway off Route 136 is two car widths wide; and that the driveway off Janice Drive is a little wider. There is no sidewalk out by the driveway off Route 136. The pick- eters stood in the grassy area by the driveway. the other wrapper that she had to find something to do dur- ing the slack periods and the other wrapper, Pomaibo, gave her some meat to put out. Kunkle saw Jim Davis get Mowery. Both men came back to the meat department and spoke to Pomaibo who, in turn, told Kunkle that she was not allowed to put meat out front and that she should go back to wrapping. Kunkle asserted that working in the back as a wrapper limited her contact with other employees and cus- tomers. While Kunkle normally worked 36 or 38 hours in the front office, she was only allowed to work from 8 a.m. to 1 p.m. and her total hours a week were reduced to about 20. She could not recall whether she complained to Mowery about the reduction in her hours. Kunkle described the working conditions in the meat department as smelly, dirty and bloody.78 Elda testified that she took no part in the decision to trans- fer Kunkle to the meat department; and that Kunkle per- formed satisfactorily in the office. Regarding Kunkle’s transfer to the meat department, Toffolo testified that it was in the summer and he was hav- ing a problem with coverage due to vacations that were com- ing up and he needed some temporary help; that he asked Mowery for help; that Mowery told him to put Kunkle on the schedule since she had experience wrapping; that it turned out that Kunkle was probably better than anyone in the meat department at wrapping; that it takes 3 to 6 months minimum to train an employee to perform all the functions in the meat department; that Kunkle never complained to him about (a) conditions in the meat department, (b) not hav- ing enough to do, and (c) the number of hours being sched- uled; and that Kunkle did not request a transfer. Mowery testified that Toffolo came up to him and said that he needed someone to cover vacations in the meat de- partment; that Toffolo did not give him a specific duration but he was sure it was only couple of weeks; that he was using a lot of employee hours to run the store and he did not want to hire someone; that he contacted Kunkle and asked her if she would go back to the meat department as a wrapper to cover vacations; that she agreed to do it; that Kunkle never complained to him about anything while she was in the meat department; that Kunkle’s job was not given to Grieco since although Grieco started working in the office about the same time as Kunkle went back to the meat depart- ment, Grieco was replacing Mascola who gave her notice on June 19 that she was going to leave on June 27; that the managers in the office took over Kunkle’s office duties; and that Kunkle was not replaced in the office by Karen McFar- land until after she, Kunkle, quit in late July or early August. Harshall was terminated on July 14. He was told he was being terminated for taking and eating food and not paying for it. He testified that Respondent has a rule that employees must pay for any food before they consume it. Harshall did not attend any union organizing meetings before his termi- nation. Between July 14 and 19 Kunkle attended a meeting of em- ployees in the upstairs lunchroom in the Hempfield store. Jim Davis, Mowery, and Elda were present. Bob Davis may have been present, according to Kunkle. Kunkle estimated that there were about 50 people in the room. During the meeting, Jim Davis said that he did not want his employees to be intimidated by bullies or ring leaders of Local 23. Ac- cording to Kunkle, Jim Davis was looking at her and Black when he made this statement.79 Jim Davis testified that a week or two before the election was to be held, which was the end of July, he held 3 meet- ings with Respondent’s Hempfield employees on the same day; that at each meeting he told the employees that the elec- tion was upcoming; that he asked the employees to come and vote indicating that it was important to Respondent that they voted and they could choose whatever it was that they want- ed; and that there were 30 to 40 employees at each of the 3 meetings. On July 22 the Union’s picket line went back up. Kaskie testified that at first the picketers were allowed in the parking lot up until some time in August when they were told they could no longer be in the lot; that sometime in July Steve Davis told her that he was going to have the police come and a State Police representative who came to the store told her that he was called; that between July 22 and the time they were prohibited from distributing handbills in the park- ing lot, between 2000 and 2500 handbills were distributed by the pickets; that from the time they were limited to the en- trances to the parking lots, August to November or Thanks- giving, the pickets distributed a total of about 100 handbills; and that the picketing continued from July to November. Defibaugh picketed at Respondent’s Hempfield store on July 22. She testified that 3 pickets were located at both of the 2 aforementioned driveways80 and 2 pickets were al- lowed to handbill in the parking lot from the eighth row from the front of the store to the street; that no one picketed on the sidewalk in front of the store; that the police came and they indicated that they had been called by Respondent; that, she estimated, for every 50 handbills they were able to distribute in the parking lot, they only distributed 1 handbill at the driveways; and that people pulling into the entrances would not stop, especially if there was a car behind them. Harshall also picketed Respondent’s Hempfield store on July 22 and on almost every day thereafter when there was picketing. He testified that for every 10 handbills handed out in the parking lot, only one was handed out at the entrances 447 DAVIS SUPERMARKETS 81 Harshall corroborated Defibaugh’s testimony on this point. to the parking lot; that on the first day of handbilling, which occurred within 2 or 3 days of July 22, Steve Davis told the people passing out handbills in the parking lot that they should get out of the lot or he would call the police and have the people who were handing out handbills arrested; that Steve Davis was in charge of the specialty food in the store, ‘‘[h]e was considered a manager’’; and that when Steve Davis brought the specialty foods to the store, he would tell the clerks to put it on the shelves without going through the clerks’ supervisor. On cross-examination, Harshall testified that Steve Davis is in the Hempfield store about once a week for 30 minutes to 1 hour. Toffolo testified that after the picket line went up he had to cut back the hours of the employees in the meat depart- ment somewhat but he did not terminate anyone. On July 25 Kunkle quit. She testified that she could not take the harassment any longer. Two other of Respondent’s employees who were friends with her, Tompkins and Eman- uel, told her that they were afraid to talk with her because they might be fired. On July 25 the Board issued a complaint in Case 6–CA– 19159 alleging that since on or about June 2 Respondent Davis has maintained a civil trespass suit against the Union in the Court of Common Pleas of Westmoreland County, Pennsylvania, Civil Division, No. 3622 of 1986, which en- joins the Union from picketing on Respondent’s Hempfield Township premises; and that Respondent engaged in this conduct to discourage its emoployees from joining, sup- porting or assisting the Union and engaging in concerted ac- tivities for the purposes of colective bargaining or other mu- tual aid and protection. On August 2, according to the testimony of Harshall, a sheriff’s deputy handed the pickets a document which indi- cated that they were no longer allowed on in the parking lot. Subsequently, Harshall testified that this may have been the time that the deputy said that if they stayed in the parking lot they could be arrested. The pickets then took up stations at the entrances to the parking lot. On October 25, 1988, Kula was interviewed by P. F. Kilker, who is an attorney with the firm which represents Respondent herein. Kula signed a statement which indicated that he had been assured that he would not be subject to any reprisals for anything he did or did not say and that he could terminate the interview at any time. (R. Exh. 7.) On November 24, the Court of Common Pleas of West- moreland County, Pennsylvania, in Davis Supermarkets, Inc., Civil Action No. 3622 of 1986, issued a decision. As here pertinent, it reads in part as follows: On May 23, 1986 discharged former employees of the store, and other representatives of the Defendant Union, began picketing and handbilling activities at the supermarket for purposes of informing the consumer public that the employer was engaged in unfair labor practices. The number of pickets and their activities ef- fectively impeded access to the store by customers. . . . . On May 28, 1986, following the evidentiary hearing, the Court issued an order limiting the pickets to three in number, as well as prohibiting picketing on the em- ployer’s private property. Following the issuance of the Court’s Order on May 28, 1986, the Defendant Union filed an unfair labor practice charge against the Plaintiff with the National Labor Relations Board. Acording to Defendant’s brief, this was done on June 2, 1986. Acording to Defend- ant’s brief, on July 25, 1986 the NLRB issued a com- plaint charging the employer with engaging in unfair labor practices. The Defendant’s brief indicates that the charge was that the Plaintiff violated Section 8(a)(1) of the National Labor Relations Act by denying the De- fendant the right to peacefully picket the employer’s premises for the purpose of informing the public of the employer’s unfair labor practices. These charges are presently pending. On July 29, 1986 the Defendants filed Preliminary Objections with the Court in which the claim is made that the Court’s action is preempted by the NLRB and/or that the Court failed to take into account the proper accomodation principles with respect to the loca- tion of the pickets, pursuant to Federal Labor Law. . . . . This Court has no knowledge of any pro- ceedings before the National Labor Relations Board other than as represented by counsel for the Defendants. If the effect of Federal Law is to preempt this Court’s action, then such preemption should be pursued through the Federal system. With regard to the claim that this Court failed to take into account the proper accomodation principles with respect to the location of the pickets, in Sears Roebuck & Co. v. San Diego District Council of Carpenters, 436 U.S. 180 (1978), the Supreme Court noted that the union has a heavy burden in establishing a right to enter private property for trespassory union activity. In this case the evidence showed that the only store at that location is that of the Plaintiff and that the property is not quasi public as would be the case in a multiple ten- ant shopping center. The Defendants have not been en- joined from peacefully disseminating information by handbills, placards, or other means at the two entrances to the parking lot. The Defendants have not met thier burden of establishing that it is necessary to go upon Plaintiff’s property in order to effectively communicate their messages. Accordingly, the Preliminary Objections must be dis- missed. Around Thanksgiving 1986 Kaskie assertedly was in- formed that some pickets who were former employees were allowed back up on the sidewalk in the front of the store. Kaskie sent Defibaugh, Hershell, Shotts, and Roy Biedrycki. A day or two later the pickets gave Kaskie notices they re- ceived which assertedly indicated that they were in contempt. The pickets were then moved to the entrances to the parking lot. On November 24, the Monday before Thanksgiving, Defibaugh was picketing at Respondent’s Hempfield store. She testified that Kaskie came to the site and told her that people who had been laid off were now allowed to go back up on the sidewalk in front of the store and picket;81 that when she picketed on the sidewalk by the front door of the 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82 Harshall corroborated this testimony. 83 The others were Harshall, Shotts, and Roy Biedrycki. Harshall corroborated Defibaugh’s testimony. 84 The motion, which is dated November 25, alleges that Roy Biedrycki, Defibaugh, Harshall, and Shotts, representatives, agents and employees of defendant union and acting individually or in con- cert with defendant union, failed and refused to comply with and have disregarded the provisions of the Order of Court of May 28 by entering onto Plaintiffs property located at Route 136 and Janyce Drive, Hempfield, and distributing handbills at the doors of Plain- tiff’s facility, by exceeding the number of pickets (three) permitted at each entrance to the Plaintiff’s property (emphasis added); by parking their cars on Plaintiff’s property and thereby depriving cus- tomers of the use of such parking spaces; and by harassing store em- ployees and customers. Davis asked the court to enter an order di- recting the defendants to show cause why, among other things, they should not be fined an amount equal to the cost of Plaintiff’s loses incurred as a result of defendant’s failure to comply with the order of the court. The court left this language out of its show cause order but included all of the other language included by Davis in the pray- er portion of its motion. Defendant’s response to the motion (Jt. Exh. 11) indicates that em- ployees and former empoyees of Davis who were unlawfully dis- charged have been instructed by counsel for the Union that they have the right to peacfully distribute handbills and literature on the sidewalk area in front of the store publicizing the nature of their ap- peal directly to customers entering or leaving the store; that defend- ants deny that they have harassed employees or customers of the store; that defendants admit that they have stationed, at any one time, no more than two persons on the sidewalk area in front of the plaintiff’s store, for the express and limited purpose of distributing literature and handbills to customers and prospective customers aproaching the store facility; that defendants admit that on occassion they have parked their cars on plaintiff’s property and are willing to remove the same assuming plaintiff directs a request to said em- ployees to do so; that picket signs are displayed on the bodies of pickets who are stationed at the entrances and exits of the employ- er’s premises, not exceeding three in number at any one entrance or exit; and that since the order of said court, by the admission of plaintiff’s counsel and its representatives, does not apply to employ- ees or former employees of plaintiff, the conduct by these individ- uals does not constitute a deliberate and willful violation of the court’s order. 85 Jt. Exh. 9. 86 He also worked at the Hempfield store just before the hearing herein. store, Jim Davis came out and asked her what she was doing there; that the following day she again picketed by the front door of the store, along with others who had been laid off ‘‘probably like . . . Shotz [sic], Randy Hersel [sic], . . . Good [sic] . . . . [and] . . . a few others’’; that they were allowed to have three people at each entrance to the parking lot; and that when one group was leaving for the day and another group was coming in and there was, therefore, six people there at the time, someone from the store would come out and take pictures.82 While Defibaugh picketed on November 26 at the entrance to the parking lot she was given a paper by the Sheriff’s de- partment which, according to Defibaugh, indicated that she and others83 were in contempt of court and were no longer supposed to be in the parking lot. After that they picketed only at the entrances to the parking lot. The above-described Pennsylvania court, upon consider- ation of Davis’ Motion for Rule to Show Cause,84 entered an Order (Jt. Exh. 10) on November 26 granting the motion and ordering UFCW and Roy Bierdycki, Defibaugh, Harshall, and Shotts to show cause why they should not be held in contempt for violation of that court’s above-described order of May 28. On November 23, 1987, the Superior Court of Pennsyl- vania issued a decision in Davis Supermarkets, Inc., No. 1736 Pittsburgh, 1986,85 which reads, in part as follows: On May 23, 1986, appellants, employees and dis- charged former employees of the store, in conjunction with the United Food and Commercail Workers, Local 23 (‘‘Union’’), began peaceful picketing and distrib- uting handbills at the store, alleging that Davis was en- gaged in unfair labor practices. On May 27, 1986, Davis filed a compalint in equity, alleging that the Union had trespassed and continued to trespass on its property, and seeking a preliminary and permanent injunction. The Superior Court ruled that the order appealed from, the dismissal of Appellant’s preliminary objections, neither effec- tively ended the litigation nor ended the entire case. There- fore, the order was not final and the court ruled that it did not have jurisdiction to consider the merits of appellant’s ap- peal in the posture presented there. Blaser started with Respondent as a security guard at its Mount Pleasant store in 1984. When that store was sold, he helped the night stock crews at the Greensburg and Hemp- field stores on a part-time basis, recommending changes to get it more organized. He did not discipline employees but rather reported them to their manager. As noted above, one of Blaser’s duties is to relieve the Hempfield store manager when he attends the managers meeting, along with other managers at the Hempfield store, on Wednesday mornings in Greensburg. Also, if a member of the night crew was ill, he would fill in for a while. This happened rarely. In 1986 Blaser received minimum wage and no fringe benefits. Neil Vario, who has worked as a bagger at Respondent’s Greensburg store for the last 14 years, testified that in 1986 he worked for 3 or 4 months or longer at the Hempfield store. While he worked there, he punched the timeclock at the Hempfield store but he used the same timeclock number he used at Respondent’s Greensburg store. Vario is a mem- ber of the Steelworkers and he did not notice any difference in his pay when he worked at Hempfield.86 He testified that he did not know whether Steelworkers’ dues were deducted from his paycheck while he worked at the Hempfield store. Wigfield was hired by Respondent at its Greensburg store in 1975. She worked in the deli and her supervisor was Donahue. In 1984 she trained employees and waited on the counter in the deli department when the Hempfield store first opened. She testified that there came a time when the amount of time she spent at the Hempfield store decreased. While she worked at Hempfield she punched a timeclock at the Greensburgh store. In the spring of 1986 her hours at Hempfield increased but she claimed that she did not know the reason. She claimed that she did not know how long she had been a member of the Steelworkers, and was not sure if she was a member of the Steelworkers in 1986. She re- corded her Hempfield hours with her Greensburg supervisor up to a point in time when she began punching a timeclock 449 DAVIS SUPERMARKETS 87 At the time of the hearing she was spending 6 to 8 hours, 1 day a week at Hempfield. 88 In fact he ordered a $5000 compressor without first discussing it with the Davis’. Normally though he would make a recommenda- tion before the purchase is made. And in dealing with contractors, he would get an estimate if it involved more than a couple of hun- dred dollars and Jim or Bob Davis would make the decision. 89 Before the produce is unloaded at Greensburg, the bills are re- viewed by Respondent’s produce manager. at Hempfield. She claimed that she could not recall when she began punching a timeclock at Hempfield. On cross-exam- ination, she answered ‘‘Yes’’ to each of the following ques- tions: ‘‘is it your testimony that from 1984 even until today, you are spending some part of your work week at Hemp- field,’’ ‘‘[s]ometime it is a day and sometime it is more than a day,’’ and ‘‘[s]ometimes it is 3 or 4 days.’’87 Wilbur Albright has worked for Respondent since 1981 or 1982 generally as a heating, refrigeration, and air condi- tioning maintenance man. He works at whichever store needs maintenance or repair work. Normally he reports to Greens- burg at the beginning of his workday. He keeps his own hours in a book and then transfers them to a timecard, and he reports to Jim and Bob Davis. He is paid an hourly wage and he is not a member of the Steelworkers.He testified that he makes purchases of equipment of up to $1000 on his own authority.88 He decides how many hours he will work. And he decides, depending on the problems, whether he would be working at Greensburg or Hempfield. Jim Davis does play a role in deciding the priority of Albright’s work. Between 1984 and 1986 Albright worked basically 40 hours a week spending about a third of this time at Hempfield with the re- mainder of the time being spent at Greensburg. Ann Howard was hired by Respondent at its Greensburg store in 1977. She worked in the deli department. In 1984 she began working at the Hempfield store periodically for a month when it opened. Subsequently she worked at Hemp- field two or three times a week helping in the deli and train- ing new employees. During one summer she worked at Hempfield for all of July and August. She could not recall if it was in 1986. She testified that in 1986 she worked in Hempfield 2 or 3 days a week between 6 and 8 hours a day. Up to some point in time she punched a timeclock at Greens- burg even on days she worked in Hempfield. She could not recall when she began punching a timeclock at Hempfield. Howard has been a member of the Steelworkers for over 10 years and she is not paid a different wage when she works at Hempfield. At the time of the hearing herein she put in 6 to 8 hours maybe twice a week at Hempfield, and her total work week consists of 38 to 40 hours. Stanley White was hired by Respondent in April 1986 to drive a truck used to pickup produce from a broker in Pitts- burgh, Pennsylvania, and transport it to Respondent’s Greensburg89 and Hempfield stores. The truck is parked at the Greensburg store. White’s supervisor works at the Greensburg store but he is also in charge of the produce de- partment at the Hempfield store. White testified that he only has slight contact with the employees in the Hempfield store aside from his conversations with Allen Barber, who is in charge of produce at Hempfield; and that he never does any work at Hempfield other than unload the truck. White is a member of the Steelworkers at the Greensburg store. Dues are deducted from his paycheck and his wage is determined in accordance with the collective-bargaining agreement be- tween Respondent and the Steelworkers. Shumaker was hired by Respondent in 1980 to work in its Greensburg store. He worked at that location until 1986. He is a member of the Steelworkers and has been since before 1986. In March or April 1986 his supervisor, Garlits, told him to go to the Hempfield store to retrain the employees who were working there on how to bake from scratch. Shumaker testified that Garlits said that he would be there temporarily until the training process was over. When he ar- rived, he took over the ordering of products in the depart- ment. He testified that he was at the Hempfield store when Defibaugh and Good were laid off; that he did not even know that Defibaugh had the title of manager; that no one was named a new manager at Hempfield after she left; that he stayed at Hempfield for 1 year and 6 months; that he never heard her refer to herself or anyone refer to her as bak- ery manager; that he never referred to Defibaugh as bakery manager; that when he went to Hempfield he was under the impression that he would be in charge because he was going to be doing the training; and that he viewed Defibaugh as an employee working under him. There was no change in his wages or benefits while he worked at Hempfield and during that period he continued to have dues deducted from his pay- check for the Steelworkers. Janet Barbour was hired by Respondent in 1971 to work in the Greensburg store. She worked as a bakery icer at Re- spondent’s Mount Pleasant store for 1 month before it closed. In January 1986 Garlits assigned her temporarily to work at the Hempfield store until she got someone trained to do her job. In the first 3 months of 1986 she worked 4 or 5 hours a week at Hempfield and the remainder at Greens- burg. Later in 1986 she worked 3 days a week at Hempfield and 3 days a week at Greensburg. This went on for about 9 months. In February 1987 she worked 5 days a week at Hempfield. Barbour had more than one conversation with Garlits about the work at Hempfield being temporary because she liked working at Greensburg. While she continued to train employees in icing, no one liked the job. At the time of the hearing herein Barbour worked 34 hours at the Greensburg store each week and 6 hours at the Hempfield store. Sometime in March or April 1987 she punched a time- clock at the Hempfield store. Before that she punched the timeclock at the Greensburg store and gave her Hempfield hours to her manager, Garlits. Barbour is a member of the Steelworkers and she was a member when she worked at Hempfield. Dues were deducted from her pay check and there was no change in her wages or benefits while she worked at Hempfield. From January 1986 up until the time of the hearing Barbour had spent at least 1 day a week doing the icing at Hempfield. Brian Mull was hired by Respondent in the middle of May 1986. He was a sophomore in high school at the time. After working a total of 2 days over two consecutive weekends in May, Mull was told by Allan Barber, his supervisor in the produce department at the Hempfield store, that he would not be working until school was let out for the summer because Barber wanted to train him during the daytime. Mull was never a member of the students cooperative education pro- 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 90 He got out of school in early June and he cut grass up to and after he began working at the Hempfield store. 91 Subsequently she testified that she worked 2 days and had a total of 8 to 10 hours. 92 She also helped start up Respondent’s stores at Mount Pleasant, Pennsylvania, and Frostburg, Maryland. gram. Mull checked the schedule for the produce department and he began working again the first week in July.90 Vicky Smartnik (Cramer in 1986) was hired by the Re- spondent in 1984 at its Greensburg store to work in the health and beauty aids department. She was assigned to work in the Hempfield store by her supervisor at Greensburg, Carol Millstein, a few months after she started working for Respondent. At Hempfield, she was stock clerk in the gen- eral merchandise and beauty aids department. She reported to the Hempfield store manager. When she first started at Hempfield, she worked 1 or 2 days a week for 2 or 3 hours.91 Even when she worked at Hempfield, she punched her timecard at Greensburg, both in and out, and she re- mained on the clock at Greensburg even though she spent part of the day at Hempfield. Her routine did not change up to the time she quit in December 1988. She took her direc- tion from Millstein and no manager at Hempfield told her what to do. If she needed something while working at Hemp- field, she would go to the manager at Hempfield. One other Greensburg employee worked in her department at Hemp- field, Stacy Wano. Also, a Hempfield employee, Sherry Ianni, worked in the health and beauty aids department. Smartnick testified that she did not really have any contact with the other employees at Hempfield. Also she testified that she did not have contact with the other employees who worked at Greensburg. She was not a member of the Steel- workers at Greensburg. Pattie Hutton was hired in 1980 by Respondent to work as a cashier at its Greensburg store. She was assigned to work at the Hempfield store as a grocery price coordinator before it opened. She reported to the store manager at Hemp- field. Approximately six other employees held the same job. Some of these employees, like her, worked part of the time at Hempfield and part of the time at Greensburg. After the initial startup period at Hempfield,92 she usually worked at that store 1 or 2 days a week for 4 to 8 hours. Since about February 1986 she worked at Hempfield once every week or every other week. The Greensburg manager or one of the Davis’ would tell her to go to the Hempfield store. When she worked in Hempfield she took her breaks in the snack room or the deli, the same as other employees. She never punched a timecard at Hempfield but rather she punched in and out at Greensburg even on those days when she worked for some hours at Hempfield. She was not a member of the Steel- workers. An affidavit she gave to the Board contains the fol- lowing: During my time at Hempfield I had the authority to di- rect the employees there in how to do the job and they were expected to listen to me. I never had anyone ques- tion this authority. Hutton testified that with respect to direction, she just really explains to the employees if they have a question; and that she never disciplined or fired anyone. Hribal (formerly Orange) was hired by Respondent in 1976 to work in the deli department at its Greensburg store. She was assigned to work at the Hempfield store in the sea- food department when it first opened. She reported to Toffolo. She also worked in the deli department at Hemp- field under Reich. At Hempfield she took her breaks in the restaurant in the deli where other employees also took their breaks. She testified that she worked at Hempfield until 1988, every week, two or three times a week. An affidavit she gave to the Board contains the following: Later on, I believe by sometime in 1985 I usually went to Hempfield one day per week. I worked there for about one or two hours checking seafood and mak- ing sure they were following what was being done at Greensburg. . . . . I recall that about the time that Sonja Welsh in the deli and others at Hempfield were laid off I was work- ing only with the seafood area because they had moved a department within a store and needed my help setting it up properly. For three or four weeks while I was doing this I worked 15 to 29 hours per week at Hemp- field. After that relocation was done instead of going back to my old pattern of coming to Hempfield only one or two hours per week to check on seafood I was scheduled for six hours one day per week to check on seafood and work as a clerk in the deli the rest of the day. That pattern has continued [to the time she gave the affidavit, March 5, 1987]. She is a member of the Steelworkers and while she worked at Hempfield she punched her timecard at Greensburg. Stacy Woodmancy (formerly Wano) was hired by Re- spondent in 1984. She stocked shelves in the general mer- chandise departments at the Mount Pleasant and Greensburg stores at the time. She was assigned to work at the Hemp- field store before it opened and she continued to work there after it opened. One other employee worked in the general merchandise department at Hempfield, Vicky Kramer. When Woodmancy took her breaks, she took them in the same area as the other Hempfield employees; in the deli. In late 1985 and in 1986 she worked at the Hempfield store 3 days a week for 12 hours a week. She continued to do this at the time of the hearing. She was assigned to work at Hempfield by Millstein, who is the supervisor of health and beauty aids and general merchandise at Greensburg. There is no such su- pervisor at the Hempfield store. She would tell the store manager at Hempfield when she arrived to do work in that store and if there was any stock in the back the manager would tell her. Her affidavit to the Board indicates that Millstein told her that as soon as she could get someone trained for every day at Hempfield,she could return to Greensburg. The problem was that the employees who she trained would quit. In June 1986 she suggested to Millstein that they give up on the idea of training someone at Hemp- field and she would continue to work 12 hours a week at Hempfield. Millstein agreed. Throughout the time she worked at Hempfield she punched in and out at Greensburg returning to the Greensburg store after 10 p.m. from Hemp- field to punch out. Millstein scheduled Woodmancy’s days at 451 DAVIS SUPERMARKETS Hempfield. Woodmancy has never been a member of the Steelworkers at the Greensburg store. Kim Gallantine (formerly Reich) was hired by Respondent in February 1985 at the Greensburg store to work in the gro- cery department where she does price changes, and checks invoice and retail pricing. Her job title is systems. About 1 year later, Jim Davis assigned her to work in the Hempfield store full time for one month doing the same thing. Such as- signment could have occurred as late as July. When she worked at Hempfield during this 1-month period she reported to Mowery and punched her timecard at Hempfield. One other employee, Crivella, was assigned to do the same work at Hempfield. Others also helped out from time to time. She took her breaks in the deli. After the first month, Gallantine worked at Hempfield 2 days a week. Her store manager at Greensburg scheduled her hours at Hempfield. She receives her instructions on what to do at Hempfield from her store manager at Greensburg or Jim Davis and she punches the timeclock at Greensburg. If she has a problem at Hempfield, she speaks to the manager at Hempfield. Prior to February 1986 Patty Hutton was doing the job Gallantine took over at Hempfield. Gallantine’s March 5, 1987, affidavit to the Board contains the following: Until recently I went to oversee what those employees were doing and did none of the actual work. Recently an employee who was new to the job, Karen Davis, had been doing it and since she is still learning, I help her out by assisting with the work. In overseeing the Hempfield store I can tell the employees there to make changes or whatever needs to be done Gallantine then testified ‘‘I can’t remember . . . going there and not working. I am not their boss. I work with them.’’ She does not have the authority to discipline employees if they do not follow her instructions. She is not a member of the Steelworkers. Also she testified that Hempfield employ- ees Crivella, Werry, Karen Davis, and LeeWanna Shumaker have worked at the Greensburg store. She testified that about once a month one of the aforementioned Hempfield employ- ees works at Greensburg; and that this does not occur on a regular basis. Thomas Howard was hired by Respondent in 1979. Since 1984 he has stocked frozen food at the Hempfield store. More specifically, he spends 80 percent of his time stocking, 10 percent ordering, and 10 percent checking in trucks. He orders the frozen food using a telex ordering machine and the tags on the shelves. How much he orders is based on his experience and he does not check with anyone else before placing the orders. He orders three times a week and the cost of the orders is between $2000 and $3000. He sees salesmen and he recommends new products to Jim Davis and Mowery. He reports to Mowery and he meets with Mowery regarding the frozen food ads. He can advise Jim Davis and Mowery regarding how much shelf space a particular item should have. No one else works in the frozen food department ex- cept when he asks Mowery, during busy periods, to give him a bagger to help him stock. When this occurs, he directs the person what to stock. If he has a problem with the employee, he tells Mowery not to send the employee again. On the av- erage, Howard works 44 hours a week. He does not punch a timeclock and he is paid a salary. He testified that he has never hired anyone; that he has never recommended that any- one be hired; that he does not have the authority to hire; that he has never interviewed prospective employees; that he has never transferred employees from one department to another; that he has never recommended a transfer; that he does not have the authority to transfer or recommend transfers; that he does not have the authority to suspend or issue disciplinary warnings or recommend that it be done; that he does not have the authority to lay off, or recall, or make recommenda- tions with respect thereto; and that he does not have the au- thority to promote or recommend promotion. Attached hereto as Appendix B is a stipulation, received as Joint Exhibit 14 with a one-page addendum, which stipu- lation lists the employees who are or are not in dispute as to whether they are in the involved unit. III. DISCUSSION AND CONCLUSIONS Before treating the merits, certain posthearing motions must be handled. Respondent filed a reply brief on July 31, 1989. This occasioned a motion to strike by General Coun- sel, filed August 8, 1989, on the grounds that the Board’s Rules and Regulations neither provide for such a filing nor did I grant special leave for such a filing. Respondent then filed a motion on August 10, 1989, requesting that its reply brief be treated as a motion or, in the alternative, that it be granted special leave for the filing of its reply brief. And General Counsel then filed a statement in opposition on Au- gust 14, 1989, pointing out that Respondent’s aforementioned reply brief was filed approximately 2 months after the briefs in this matter were filed and requesting that if Respondent is granted leave to file the aforementioned reply brief, Gen- eral Counsel also be granted leave to file a reply brief. As noted by General Counsel, the Board’s Rules do not provide for the filing of reply briefs. Also, special leave was neither sought nor granted before such brief was filed. Accordingly, General Counsel’s motion to strike be, and it is hereby, granted. In my opinion, this is not the type of case which requires the filing of reply briefs. Consequently, Respond- ent’s above-described August 10, 1989 motion be, and it is hereby, denied. With respect to the alleged unlawful interrogation, General Counsel, on brief, contends that Sandy Reich’s asking Welsh if she heard anything about the union meeting which was supposed to be held at McDonalds was unlawful because at that time Welsh was not an open supporter of the Union nor was there any public action to suggest the presence of a union. Assertedly, Reich’s inquiry, conducted in a back- ground void of any evidence of open union activity, would by its very nature instill fear of possible discrimination. Gen- eral Counsel argues that if the interrogation were truly not coercive Welsh would not have found it necessary to ‘‘exon- erate herself by deceiving her manager.’’ Respondent, on brief, contends that Reich, in connection with Welsh’s termi- nation, denied any such contact with Welsh; and that even assuming that Welsh testified credibly, there is no violation of Section 8(a)(1) of the Act since (1) the language carries no hint of coercion or interference, (2) the meeting occurred at Welsh’s normal work station in the deli kitchen, (3) Welsh testified that she had a very good relationship with Reich and Reich was her friend and she, Welsh, could talk to Reich about anything, and (4) the alleged exchange lasted only for a moment and Reich did not press Welsh for an answer. On 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 93 What either Welsh or Reich said or did not say during the ter- mination conversation, in my opinion, would not necessarily be in- consistent with Welsh’s testimony regarding this interrogation. 94 The assertion by some of Respondent’s witnesses that they were not aware of a organizing campaign before the picketing and handbilling must be considered in the light of this interrogation and the fact that Davis received the above-described April 29 charge on April 30 and the above-described petition for an election. 95 It is noted that Miscovich testified that Buhl attended this meet- ing. As noted above, when Defibaugh asked Buhl to sign a UFCW authorization card, he informed her that he would not since he had been offered a comanager’s job at Respondent’s Hempfield store. No UFCW authorization card for Buhl was introduced herein. It appears, therefore, that he did not sign a card. Apparently, this would mean that the statement that all of the employees there had signed cards would be inaccurate. It is not clear, however, what Buhls, position was at that time. Was he there as a comanager, notwithstanding Miscovich’s characterization of him as an employee? Did Robert Davis mistakenly believe that he had signed a card? Or was Robert Davis intentionally misleading the employees assembled? In view of this, there is not sufficient evidence to discredit this testimony of Miscovich. the last point, if the conversation occurred as described by Welsh, Reich did not need to press Welsh for an answer since Reich obtained an answer at the outset of the conversa- tion. In my opinion, the conversation occurred exactly as de- scribed by Welsh. Reich did not specifically testify about this allegation. Rather, as pointed out by Respondent on brief, Reich testified that before her termination conversation with Welsh she heard nothing about the Union. Welsh impressed me as being a credible witness and Reich did not.93 Consid- ering the factors described in Rossmore House, 269 NLRB 1176 (1984), and Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), namely, the background, the nature of the informa- tion sought, the identity of the questioner, the place and the method of the questioning and the totality of the cir- cumstances, it is my opinion that the interrogation was coer- cive. At this point in time Welsh was not an open and active union supporter. Her less than candid response, as pointed out by General Counsel, itself is an indication of the coercive nature of the interrogation. As will be discussed below, this was not the only instance where Respondent violated the Act. On March 25 Respondent’s management had notice that a union organizing drive was in progress.94 In asking Welsh about the meeting Respondent violated Section 8(a)(1) of the Act. Regarding the allegation that Respondent created the im- pression among its employees that their union activities were under surveillance by Respondent, General Counsel, on brief, cites Miscovich’s testimony about a meeting of employees on or about May 12 where Bob Davis assertedly said that he knew that all the employees there had signed UFCW au- thorization cards. General Counsel submits that pursuant to relevant Board law, Romal Iron Works Corp., 285 NLRB 1178 (1987), such a statement constitutes a patent violation of Section 8(a)(1) of the Act, especially in view of the fact that at that time neither Miscovich nor Kunkle were open supporters of the Union. Respondent, on brief, points out that Robert Davis only recalled two meetings of employees and the meeting in question was not one of them. Respondent goes on to argue that this allegation fits a pattern, namely, an uncorroborated incident totally out of character with the undisputed nature and scope of Robert Davis’ duties at Hempfield. Miscovich’s testimony is credited. Miscovich im- pressed me as being a credible witness. While Respondent’s witnesses attempted to downplay the role of Robert Davis during this organizing campaign, the record, when considered as a whole, demonstrates that Robert Davis was a lot more active than Respondent would have one believe. This is just one instance. Others will be treated below. When Robert Davis told the employees assembled that he knew they signed authorization cards,95 Respondent created the impres- sion of surveillance and thereby violated Section 8(a)(1) of the Act. As noted above, it is alleged that Respondent unlawfully solicited employee complaints and grievances thereby prom- ising its employees increased benefits and improved terms and conditions of employment. General Counsel, on brief, citing Penn Color, 261 NLRB 345, 406 (1982), contends that this occurred during Robert Davis’ conversation with Black on May 15 when he told her that his door was always open and anytime the employees wanted to talk they were wel- come to come in, and that he, Davis, took care of his own. Also, it is asserted that this occurred on May 12 when Rob- ert Davis told Miscovich and other employees assembled that if there was any kind of a problem, if there was anything he could help the employees with, they should just ask. Regard- ing the former, Respondent, on brief, asserts that Black’s tes- timony is uncorroborated. Contrary to Respondent’s asser- tions, Kunkle did overhear a portion of the May 15 conversa- tion between Robert Davis and Black. Kunkle and Black were testifying about the same conversation. Kunkle did not, however, overhear that portion of the conversation with which we are now concerned. Nonetheless, Black’s testi- mony is credited. It is very specific. And Black impressed me as being a credible witness. On the other hand, Robert Davis did not specifically deny that he made either this state- ment or the above-described statement to Miscovich’s group about helping the employees with their problems. As noted above, Miscovich impressed me as being a credible witness. Respondent violated Section 8(a)(1) of the Act when it, through Robert Davis, engaged in the conduct described above. With respect to the allegation that Respondent threatened its employees with store closure if they selected the Union as their collective-bargaining representative, General Coun- sel, on brief, contends that on at least three occasions Re- spondent, by various agents, threatened employees with clo- sure if the Union became their bargaining representative. As- sertedly Kunkle was the employee involved in two of the threats and Black was told by Mowery on May 26 that Re- spondent would close the store. No record cite is provided by General Counsel for the alleged May 26 threat. And in reviewing the record I could not find the involved testimony. General Counsel points out that in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), the Court held that an em- ployer may actually render a prediction of the probable con- sequences of the unionization so long as the prediction is carefully couched in terms to convey to the employee an em- ployer’s belief of the probable consequences of the unioniza- tion as based on objective facts rendering the closure beyond the employer’s control. It is contended by General Counsel that the involved statements were not couched in prediction type language but were affirmative declarations of a predeter- 453 DAVIS SUPERMARKETS 96 Kunkle’s mistake about Black attending the same meeting on May 1 does not, in my opinion, undermine her credibility. mined course of action; and that when the employee was told that Respondent would reopen and hire all new employees, she was being told that Respondent would be ridding itself of the Union and all those who supported the Union. Re- spondent argues, on brief, that Kunkle’s testimony on this point is patently false; that the only two threats of store clo- sure were allegedly made by two different supervisors to the same employee, in the same words, in the same location of the store, and in the absence of a single corroborating wit- ness; and that Mowery’s testimony contains the far more plausible version of the exchange between himself and Kunkle. Kunkle’s testimony that Manager Civiccio told her that Davis would close the store for a month and rehire all new people if Local 23 got in was not denied by Civiccio. Absent a challenge, one would be hard pressed not to credit Kunkle’s testimony regarding the Civiccio statement. And Kunkle impressed me as being a credible witness. Kunkle, at that time, worked in the office in the front of the store. Civiccio also worked in the front of the store. It would not be unlikely, therefore, that she and Mowery, who was the store manager, would be in the office in the front of the store. The fact that similar words were used in the threats could mean nothing more than those making the threats were repeating something previously said to or by them. Mowery did not impress me as being a credible witness. In his version, he assertedly told Kunkle that ‘‘it didn’t matter . . . [to him] whether there was or wasn’t a union.’’ Mowery did not deny Porter’s testimony that once when Porter was in the Hempfield store, Mowery followed him and eventually Mowery told Porter, after asking Porter if he needed help: Well Maybe you might need some help getting your ass the hell out of this store. I know what you are up to. Local 23 is trying to get into this store and the Davis’ would do anything to prevent this even if it meant kick- ing your ass. Does this sound like someone who did not care whether there was or was not a union at the Hempfield store? For this and for other reasons, I do not credit the testimony of Mowery. In threatening to close the Hempfield facility, Re- spondent violated Section 8(a)(1) of the Act. Air Products & Chemicals, 263 NLRB 341 (1982). It is alleged that Respondent violated the Act by urging its employees to join the Steelworkers and by permitting the Steelworkers to utilize Respondent’s facility, Respondent ren- dered aid and assistance to the Steelworkers. On brief, Gen- eral Counsel contends that Robert Davis, on two separate oc- casions directed a group of employees to meet with rep- resentatives of the Steelworkers and to sign Steelworkers au- thorization cards; that when one of the employees attending one of these meetings asked what the Steelworkers had to offer, Robert Davis ordered the employees to sign the cards, saying that the Company was there to make money and not to argue the issues; and that Robert Davis’ reaction to the employee’s inquiry underscored the unlawful nature of the assistance to the Steelworkers. Respondent, on brief, argues that ‘‘[e]ven . . . Kunkle testified that Robert Davis advised the employees that the purpose of Piccolo’s visit pertained to cross-training of Greensburg and Hempfield employees. [Tr. 269.]’’ On the cited page of the transcript, Kunkle testified that Robert Davis said that he was going to bring employees from the Greensburg store to the Hempfield store to train them. Kunkle did not testify on page 269 of the transcript that Robert Davis spoke about Piccolo’s visit, told the assem- bled employees the purpose of Piccolo’s visit or said that the purpose pertained to the cross-training of Greensburg em- ployees. Respondent also asserts on brief that: Piccolo’s clear testimony was that neither Robert Davis nor anyone from . . . [Respondent] assisted him or the Steelworkers in organizing the Hempfield store. This conclusion is confirmed by the lack of any employee interest in the Steelworkers. Taking the last point first, it is noted that on May 1 Kunkle, after being told by Robert Davis to sign the Steelworkers au- thorization card, did just that. She later retracted her author- ization. Regarding the first point of Respondent’s above-de- scribed assertion, Piccolo did not impress me as being a credible witness. He testified that he had asked Donahue and Don Miller to meet him at the Hempfield store to help him obtain Steelworkers authorization cards on the day he spoke with Robert Davis; and that he went to the Hempfield store to obtain Steelworker authorization cards. Nonetheless, ac- cording to his own testimony, he told Robert Davis that he was at the store to question employees on transfers. Piccolo testified that he lied to Robert Davis. Piccolo testified that he was concerned about members of the Steelworkers work- ing at the nonunion Hempfield store. Robert Davis, however, does not testify that he asks Greensburg employees at the Hempfield store to talk to Piccolo. Rather, Robert Davis just assembles a group of employees, according to his testimony. As noted above, Robert Davis’ role in Respondent’s effort against the organizing drive, in my opinion, was quite dif- ferent than he would lead one to believe. As I have already indicated, Kunkle and Black impressed me as being credible witnesses.96 They were very specific and their testimony was logical. On the other hand, Robert Davis’ testimony on this point was not logical. Kunkle’s and Black’s testimony is credited. The testimony of Piccolo and Robert Davis is not credited. Respondent violated Section 8(a)(5) and (1) of the Act as alleged. Next, it is alleged that Respondent changed the work schedule of Miscovich thereby causing his termination. As noted above, Miscovich is credited regarding the May 12 meeting at which Robert Davis told the employees assem- bled, including Miscovich, that he knew that they had signed UFCW authorization cards. General Counsel, on brief, con- tends that for months Civiccio, who scheduled his hours, honored his request to work the dayshift because of his sec- ond job; that Civiccio told him that Mowery was altering the schedule; and that where an employer because of an employ- ee’s union activities alters the schedule of that employee for the specific purpose of discomforting the employee with the knowledge that such discomfort will force the employee to leave his present employment it will be held to have unlaw- fully constructively discharged the employee, Bennett Pack- aging Co., 285 NLRB 602 (1987). Respondent argues, on brief, that Mowery explained that extra employees were needed to work evening hours to cover the period surround- ing high school exams and graduations, and customers had 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 97 Respondent also cites two portions of Miscovich’s affidavit to the Board in its attempt to discredit him. At one point Respondent asserts that the affidavit ‘‘revealed that his second job began just weeks before the scheduled change in April 1986.’’ Miscovich testi- fied that when he gave the affidavit he was not sure when he started the second job but subsequently his mother found his first paycheck from the second job, which paycheck indicated that he started in Oc- tober 1985. The other portion cited by Respondent refers to the me- chanics involved when Miscovich did not appear for work. It is triv- ial, and it does not undermine Miscovich’s credibility. It could, for the most part, merely hinge on the difference between figurative and literal. 98 The work schedule sheets (G.C. Exh. 78) do not indicate, on their face that employees used as baggers were given time off for high school graduations and to prepare for final exams before mid- May. 99 It is contended by General Counsel that the record contains abundant evidence of Respondent’s animus toward Local 23; and that Respondent’s attitude toward Kunkle was demonstrated by Jim Davis on July 15 when he told assembled employees that he did not want them intimidated by ‘‘bullies and ringleaders’’ while staring di- rectly at Kunkle and Black. 100 After working in the front office it is understandable how Kunkle could be repulsed by the odor and the blood. The fact that Garris preferred working in the meat department over any other de- complained about having to bag their own groceries.97 Miscovich’s schedule change occurred in mid-May. Mowery asserts that the change occurred in response to customer complaints which obviously had to occur before the schedule changes occurred in mid-May. In other words, it is Mowery’s position that high school students in that area are graduating and getting ready to take final exams before mid- May. Other than Mowery’s assertion, there is no evidence of record on this point. Mowery did not impress me as being a credible witness. Civiccio, who is the front end manager in charge of the cashiers and baggers, did not testify herein. When Miscovich asked her why he was being scheduled for evenings she, according to his testimony, said that she sched- uled him for days and Mowery changed the schedule. Miscovich did not testify that Civiccio told him that he was needed to work evenings because of the high school gradua- tions and final exams. Miscovich was the first witness to tes- tify in the involved hearing. As noted, Civiccio did not sub- sequently testify that Miscovich had to work evenings be- cause of the shortage of high school students, and that she told Miscovich this was the reason.98 In forcing Miscovich to leave, Respondent unlawfully constructively discharged Miscovich and it violated Section 8(a)(3) and (1) of the Act. It is alleged that Respondent imposed onerous terms and conditions of employment on Kunkle thereby causing her ter- mination. On brief, General Counsel contends that to sustain a charge that an employee was unlawfully constructively dis- charged, it must be established that the burdens imposed on the employee caused and were intended to cause a change in the working conditions so different or unpleasant as to force the employee to resign, and that the burdens were im- posed because of the employee’s union or other protected concerted activity, FOP Medical Computer Systems, 284 NLRB 1232 (1987), and South Nassau Hospital, 274 NLRB 1181 (1985); that as an office clerk, Kunkle dealt mainly with paperwork and was entrusted with a lot of responsi- bility; that in reassigning Kunkle to the meat department Re- spondent departed from its previous practice of obtaining Kunkle’s consent to any reassignment; that Kunkle had never worked in the meat department before; that when viewed in the context of Kunkle’s prior work experience and duties in the office, it becomes quite clear that the transfer was suffi- ciently odious to render her departure a foreseeable con- sequence; that there is a marked difference in the level of skill and responsibility involved between an office clerical and a meat clerk; that it is conceivable that such a transfer would be deemed a demotion by any reasonable person; that the duties Kunkle was permitted to perform as a meat clerk were more restricted than even the other meat clerks since she was instructed to just wrap meat; that to suggest that Kunkle was temporarily assigned to the meat department to fill in for vacations is contrary to Respondent’s previous as- sertions that it could run the meat department with less hours because of increased efficiency; that Kunkle’s selection does not logically follow since she was removed from the skilled office position at a time when the office itself was experi- encing personnel shortages necessitating the training of a cashier for office work; that by this time Shotts, a fully trained meat clerk, had requested to return to work; that while Kunkle worked in the office she had access to and constant contact with a large segment of Respondent’s em- ployees, and as a meat clerk she had virtually no access or contact with the public and access only to the meat depart- ment employees; that due to Respondent’s instructions that no one could talk to her except about meat, even the access to meat department employees was rendered useless;99 that Kunkle’s hours were reduced; and that it was no surprise that after 2 weeks of enduring this treatment with no foreseeable conclusion, Kunkle terminated her employment on July 26. Respondent, on brief, contends that Kunkle’s transfer to the meat department was motivated by legitimate business con- siderations; that Kunkle possessed experience on the produce wrapping machine which is identical in operation to the meat wrapping machine; that Mowery obtained Kunkle’s consent to fill in at the meat department; that while Kunkle portrayed the meat department as an isolated area, fellow employee Garris testified that employee and customer contact in the meat department was frequent; that while Kunkle painted a picture of an unappealing, bloody work area, Garris testified that she found the working conditions in the meat department to be pleasant; that Kunkle’s contention that she resigned due to her reduction in work hours must be rejected since her hours coincided with the needs of the meat department and Kunkle never complained to any supervisor that she needed additional hours; that Duncan was not called as a witness to testify that Jim Davis told her not to talk to Kunkle; that General Counsel has failed to demonstrate that Kunkle’s working conditions were made so difficult or unpleasant as to force her resignation, or that any change was related to Kunkle’s union activities; and that absent a discriminatory motive, a mere reduction of hours does not support a finding of constructive discharge. As noted above, Mowery did not impress me as being a credible witness. Kunkle, on the other hand, did impress me as being a truthful person. Mowery did not ask Kunkle if she was willing to work in the meat de- partment before the assignment. This reassignment was in- voluntary. It resulted in Kunkle being paid substantially less. It resulted in Kunkle going from an office setting to a meat department setting after she had participated in the picketing of Respondent’s store.100 It resulted in her coworkers in the 455 DAVIS SUPERMARKETS partment in the store is taken into consideration when weighing her assessment of working in the meat department. 101 While Duncan did not testify, Jim Davis did testify. It is noted that he did not deny telling Duncan that she could only discuss meat with Kunkle. 102 Mowery testified that Toffolo did not give him an exact dura- tion but he, Mowery, was sure it was only going to be a couple of weeks. Kunkle’s testimony is credited that when she asked Mowery if she was going back to the front office, he did not reply. 103 Pomaibo actually gave her the task once and Garris testified that this was a task that an employee could learn in a day. 104 Subsequently Mowery said that he could not say anything until the union business was settled. Apparently this was in reference to his earlier referral to the union situation with the Steelworkers. There is no basis in Mowery’s statement to conclude otherwise. meat department not being able to talk to her unless it related to meat.101 It resulted in her working at a job of which she did not know the duration since Mowery himself did not know the duration for sure.102 It resulted in her performing a monotonous job and not being allowed to even put meat in the meat counter, a task which two employees in the meat department thought she should be able to perform.103 And during this period Jim Davis, as noted by General Counsel, told a group of employees that they should not be intimi- dated by ‘‘bullies and ringleaders’’ while staring directly at Kunkle and Black. In my opinion, it has been established that the burdens imposed on Kunkle were intended to cause a change in working conditions so different or unpleasant as to force Kunkle to resign. On July 26 Kunkle did just that. Respondent succeeded in forcing Kunkle to resign and at the same time it succeeded in violating Section 8(a)(3) and (1) of the Act. It is alleged that Respondent threatened employees with unspecified reprisals if they supported the Union. General Counsel argues that when Robert Davis told a group of em- ployees on May 1 that he would be very upset if they did not join the Steelworkers, he effectively issued a warning to sign Steelworker cards, not Local 23 cards, or incur the re- sult of his wrath in the form of unspecified reprisals; that Davis told the gathering of employees that he wanted them to be one big happy family, and it was in their best interest to join the Steelworkers; and that in this context it is abun- dantly clear that Davis was threatening employees with un- identified retaliatory action if they refused to act in their best interest and consequently made him very upset. Respondent, on brief, contends that Robert Davis only recalled two meet- ings with the Hempfield employees during the time period involved herein and neither one involved what is described above. Black’s testimony regarding the May 1 employee meeting is credited. Robert Davis made the statements al- leged. And, as alleged, they amounted to a threat of unspec- ified reprisals if the employees did not support the Steel- workers but rather supported Local 23. By uttering this threat, Respondent violated Section 8(a)(1) of the Act. It is alleged that Respondent informed employees that their recall rights depended upon their refraining from activity on behalf of the Union. General Counsel, on brief, contends that Mowery’s statement to Shotts, when she sought to be re- called, that nothing could be done with regard to her recall because of the union situation unlawfully created an impres- sion that her recall was conditioned on abandonment of the Union; that such statements are held to be independently vio- lative of Section 8(a)(1) of the Act, Garmen Construction Co., 287 NLRB 88 (1988); and that in addition to exposing the layoff as unlawfully motivated, it is an unlawful inter- ference with Section 7 rights. Respondent asserts that Mowery told Shotts that there was no need for her services pending resolution of a matter involving the Steelworkers; and that the reference was to the transfers being investigated by Picallo. As noted above, Mowery testified that he was not even aware that Shotts ever wanted to come back to work at the store. He is not credited. Nonetheless, Shotts’ own tes- timony is that Mowery said that it was because of the union situation with the Steelworkers.104 In view of this it cannot, in my opinion, be concluded that Mowery unlawfully created the impression that Shotts’ recall rights were conditioned upon abandonment of the UFCW. Accordingly, this allega- tion in the complaint will be dismissed. The next allegation is that Respondent threatened employ- ees that their union organization activity was futile. General Counsel, on brief, points out that like threats, statements by an employer which indicate that organization is futile have long been held to unlawfully interfere with employees’ Sec- tion 7 rights, Holding Co., 231 NLRB 383, 288 (1977), Sertafilm, Inc., 267 NLRB 682 (1983), and Kona 60 Minute Photo, 277 NLRB 867 (1985). It is contended by General Counsel that on May 14 Robert Davis told Larry Miller and other assembled employees that the Union could not help them, and no one could except he and his family; that by making this statement Davis made it abundantly clear that even if the Union were supported by the employees, such support would be futile; that Robert Davis also threatened the futility of supporting the UFCW when on May 15 he told Black that he ‘‘would not have Local 23 in his store’’; and that Robert Davis’ unqualified statement to Black expresses the unequivocal refusal of Respondent to recognize and/or bargain with the Union under any circumstances and thus es- tablishes to employees the sheer futility of organization. Re- spondent, on brief, argues that the cross-examination of Mil- ler showed that neither Local 23 nor any other union was discussed by Robert Davis during the May 14 meeting; that none of the other employees named by Miller as attending the meeting corroborated his version of the meeting or even its existence; and that, regarding Black’s testimony about her May 15 conversation with Robert Davis, ‘‘[i]t is highly im- probable that Robert Davis intimidated employees, in assem- bly-line fashion, during one of his infrequent visits to Hemp- field.’’ It is my opinion that Black testified credibly on this issue. There was a conversation between Black and Robert Davis on May 15. Notwithstanding Respondent’s assertions to the contrary, Kunkle did overhear a part of this conversa- tion. She did not overhear the part involved in this allega- tion, but Black is credited regarding the full content of the conversation. By his own admission, Robert Davis did things regarding the Hempfield employees without first seeking the counsel of those who would be knowledgeable with respect to what could be done. In my opinion, on May 15 he did tell Black that he would not have Local 23 in his store. Also, Miller’s testimony that Robert Davis on May 14 told some employees that nobody could help the employees except Davis and his family is credited. Robert Davis does not spe- cifically deny that this meeting occurred. With respect to what was said at this meeting, Robert Davis did not impress 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 105 As noted above, Hilty’s card is dated ‘‘April 1986.’’ 106 Donahue is the deli supervisor at Greensburg. Assertedly, this demonstrates the implausibility of propositions that she was a dual- function employee or present at Hempfield for any other reason than to garner support for the Steelworkers. me as being a man who was that cautious about what he said or did during this period. He had built this business up over a period of years and understandably he took pride in this. Apparently, Robert Davis viewed what was occurring as a threat to his business and he reacted, at least in some in- stances as noted above, without first seeking counsel from those knowledgeable in such matters. Indications of futility inherently undermine employee Section 7 rights and are, therefore, a violation of Section 8(a)(1) of the Act. It is alleged that Respondent threatened employees by ac- cusing them of disloyalty for supporting the Union. General Counsel, on brief, argues that it is well established that where an employer equates engaging in protected concerted activities with disloyalty to the employer, it has violated Sec- tion 8(a)(1) of the Act, Downtown Toyota, 276 NLRB 999 (1985), and Viracon, Inc., 256 NLRB 245 (1981); and that on May 15 when Robert Davis told Black, as overheard by Kunkle, that he was unhappy that some of his employees were going behind his back to join Local 23, he unlawfully equated disloyalty with seeking representation. As noted above, Respondent, in effect, contends that it highly improb- able that such conversation occurred. Both Kunkle and Black testified about this statement. Their testimony is credited. As noted above, it is my opinion that Robert Davis overreacted in his response to the attempt to organize ‘‘his’’ employees. Accordingly, Respondent violated Section 8(a)(1) of the Act. Allegedly that Respondent unlawfully laid off Garris, Hilty, Shotts, Welsh, Defibaugh, and Good, on or about April 19 and refused to recall them. On brief, General Coun- sel argues that it is undisputed that all of the April 19 alleged discriminatees had at least signed UFCW authorization cards prior to their discharge; that Welsh and Shotts solicited UFCW cards and support from employees while on the Em- ployer’s premises; that Welsh was unlawfully interrogated by her immediate supervisor concerning the Union just one month before her discharge; that Shotts had previously dis- cussed the possibility of becoming represented by a union with her supervisor; that Good had been openly critical of Respondent’s wage rates; that Hilty had signed her authoriza- tion card and returned it to another employee while at work at Respondent’s premises just one week prior to her dis- charge;105 that Garris initially spoke with Porter while on duty at the seafood counter directly across from and in plain view of the manager’s office window, and at that time Por- ter’s involvement in the campaign was known to Respond- ent; that supervisor Elda told Defibaugh on April 19 that ‘‘they heard the union was getting close to the number they needed for an election and they were getting rid of the trou- blemakers and the people with attitude problems’’; that the discharges of Shotts, Welsh, Good, Hilty, and Garris were part of an overall scheme to thwart Local 23’s organizing drive; that Respondent’s animus toward Local 23 is abun- dantly clear from the numerous threats, other various viola- tions of Section 8(a)(1), and the Respondent’s unlawful sup- port and assistance to the Steelworkers’ belated effort to or- ganize the Hempfield store; that the Board has held that proof of an employer’s knowledge of union activity may be established by circumstantial evidence, including the timing of the discharges, the pretextual or summary nature of the discharges, and the shifting or contradictory explanations of the discharges, BMD Sportswear Corp., 283 NLRB 142 (1987), Culmtech Ltd., 283 NLRB 163 (1987), and Dutch Boy, Inc., 262 NLRB 4 (1982); that an analysis of General Counsel’s Exhibit 69 and the testimony, together with Joint Exhibit 15, which lists the employees’ department, estab- lishes that departments other than bakery and deli began to see an influx of ‘‘Greensburg people’’ beginning as early as the payroll week ending April 26; that such ‘‘Greensburg people’’ include Linda Hummel, a cashier, Robin Ross, night crew, and Don Miller, James Weaver, and Lisa Warmick, all of whom worked in the meat department; that while Jim Davis may have talked of a consolidation in the past, he took no action until late April when Respondent believed that the Union was getting close to the number needed for an elec- tion; that the increased appearance of ‘‘Greensburg people’’ who are represented by the Steelworkers coincided neatly with respondent’s May 1 efforts to thwart Local 23 in favor of the Steelworkers; that two of ‘‘Greensburg people’’ alleg- edly working at Hempfield were officers of the Steelworkers, Donahue and Don Miller;106 that it is absurd to believe that the decision to consolidate by Jim Davis just happened to occur at the very same time two supervisors, independently of each other, determined to lay off personnel for economic reasons and at the same time discharge others for cause; that the complete lack of any documentary evidence of either the decision to consolidate or its implementation underscores the implausibility of the scheme as a legitimate business deci- sion; that it is improbable that, as testified to by Reich and Mowery, a decision to consolidate was reached without con- sulting with the supervisors who would implement such a de- cision; that Defibaugh was not a supervisor in that the evi- dence lacks any indicia that she responsibly directs the work of others, exercised independent judgment, or had the author- ity to effectively recommend any change in an employee’s status; that contrary to the other layoffs which were occur- ring at the time, Defibaugh’s was not handled by her depart- mental supervisor; that her departmental supervisor did not even know the reason for her layoff until some time after it occurred; and that a failure to consult with a supervisor is an indication that pretextual reasons are being advanced for a discharge to shroud an employer’s unlawful motivation in legitimacy, Virginia Apparel Corp., 264 NLRB 207 (1982). Regarding these alleged violations of Section 8(a)(3) and (1) of the Act, Respondent contends that it had no knowl- edge of the union activity by any employee prior to May 1986; that Reich denied participating in any conversation concerning any union prior to the date Welsh was let go; that Welsh was let go by Davis because beginning in November 1985 an unacceptable number of complaints were received concerning food prepared by Welsh; that notwithstanding the fact that during the Memorial Day weekend Welsh picketed the Hempfield store on behalf of Local 23, she was later asked by Respondent to return to work; that she declined as- sertedly because Davis could not guarantee ‘‘permanent’’ employment; that the facts show that Hilty’s termination was a performance-related termination of a short-term em- 457 DAVIS SUPERMARKETS 107 Respondent also asserts that on its face, Hilty’s authorization card, which for a date indicates only ‘‘April 1986,’’ raises serious questions whether it was even signed prior to Reich’s decision to terminate Hilty. ployee;107 that an incident involving both Hilty and Smith triggered the decision by Reich to terminate both employees; that General Counsel’s proof as to Respondent’s knowledge of Garris’ union activity is preposterous in that Garris had no way of knowing what manager, if any was in the office behind the one-way glass across the store at the time she spoke to Porter; that the record is clear that it was the com- bination of a decline in business in the meat department and Garris’ performance problems—not any union activity— which caused Garris’ termination; that Toffolo testified credibly that there was simply not enough work to go around, and faced with the inevitable termination of employ- ees, Toffolo concluded that Garris should be let go; that Garris was the least senior meat department employee, and she admitted that she had mispriced meat, a deficiency which Toffolo counseled her to correct; that Toffolo directed Garris to call him in a few days concerning the possibility of being recalled and Garris’ failure to follow through on this direc- tion, rather than any anti-union motivation, caused the per- manent discontinuance of her employment; that Shotts initi- ated the idea of taking a leave of absence from work on April 17; that instead of a leave of absence Shotts was, with her consent, let go with the understanding that she could col- lect unemployment compensation and there was no guarantee that work would be available if she later decided to return to work; that the Hempfield bakery experienced a number of problems in its conversion from a frozen baking operation to a scratch baking operation; that on April 16 Shumaker stated at a meeting attended by Mowery, Garlits, and Defibaugh that Good’s attitude was poor and in view of all this James Davis made the decision to terminate Good; that Elda denied the above-described comment she allegedly made to Defibaugh on April 19 regarding Respondent getting rid of all trouble makers and people with attitude problems; that Defibaugh’s version of these events—that she never told Good, a personal friend, about a comment directly linking his termination to his union activity—defies belief; that the plainest indication of Defibaugh’s supervisory status was her action prior to the April 19 bakery department layoff when upon learning that three employees were to be let go, she sought to persuade first store manager Mowery and later Garlits that some or all of these employees should be re- tained; that as a direct result of Defibaugh’s efforts, Barbrow’s scheduled termination did not occur; that such ef- fective recommendation concerning a ‘‘termination’’ decision is a clear indication of supervisory status, Big Bear Super Markets, 169 NLRB 94 (1968); that Defibaugh exercised sig- nificant control over the assignment of work within the bak- ery department; that she alone decided how many hours per week to schedule each employee, which employees would re- ceive days off on Sundays, holidays, and other special re- quests, and which requests for specific work shifts would be honored, and she assigned overtime work, Food Mart, 162 NLRB 1420 (1967), Food Marts, Inc., 200 NLRB 18 (1972) (allocation of hours), Gerbes Super Market, 213 NLRB 803 (1974) (granting permission to leave work early), and Kroger Co., 228 NLRB 149 (1977) (scheduling); that other indicia of supervisory status include the fact that, where a particular individual would be found not to be a supervisor, employees would otherwise be without a supervisor, Lukes Supermarket, 228 NLRB 763 (1977), Defibaugh received a higher rate of pay than the other employees, she ordered product using her discretion with respect to seasonal and holiday periods, and she held the title of manager; that because Defibaugh was at all relevant times a supervisor within the meaning of the Act, the allegations must be dismissed with respect to her on that basis alone; that notwithstanding Defibaugh’s supervisory status, Respondent’s termination of her would have still been proper in that Davis had no knowledge of Defibaugh’s union activity prior to her termination and the reason for Defibaugh’s termination was entirely performance related; and that Defibaugh’s shortcomings were being magnified by the conversion to a scratch bakery at Hempfield, a skill which she did not possess, and under the circumstances, James Davis made the pure business judgement to terminate Defibaugh and consolidate bakery operations. Taking the last-named discriminatee first, Good, Defibaugh is credited regarding what Elda said on April 19, namely, that Respondent was concerned that the Union was getting close to the number it needed for an election and Re- spondent was going to get rid of all the ‘‘troublemakers and people with attitude problems.’’ Elda, the assistant store manager, Mowery’s right-hand person, was in a position to know. While technically Defibaugh was not a supervisor, as discussed below, Elda viewed her as a manager because Defibaugh held the title of manager. Elda is not credited; she did make the statement. The statement explains why Re- spondent did what it did on or about April 19. This conclu- sion is bolstered by the fact there is a complete lack of docu- mentary evidence regarding the alleged consolidation and any performance problems on the part of any of the involved employees. By all accounts Good was a good employee. Be- fore this he had been rehired by Respondent after he volun- tarily left. The only bad thing said about him was said by Shumaker, viz, that he had a bad attitude. Shumaker was present when Good discussed the Union. And Shumaker was present when Good gave signed UFCW authorization cards to Welsh to turn into the Union. Defibaugh said that Good did not have a bad attitude but he thought he should be paid more for the job he was doing. Garlits and Mowery both were surprised indicating that they were not previously aware that Good had a bad attitude. As noted above, Respondent, on brief, asserts that the bakery department was having prob- lems and Shumaker said that Good had a bad attitude so Jim Davis decided to terminate Good. There is no indication that Jim Davis discussed Good’s alleged bad attitude with Garlits, Mowery or Defibaugh. There is no indication by Jim Davis of exactly what the problems were in the bakery department and how Good was responsible for the alleged problems. Mowery did not deny that he told Defibaugh that no one could understand why Good was being laid off. Respondent violated Section 8(a)(3) and (1) of the Act when it laid off Good because he engaged in union activity. At the time Jim Davis decided to lay off Good, apparently he did not decide to lay off Defibaugh because Garlits origi- nally said only Good, Barbrow and Roadman. Respondent, on brief, asserts that Defibaugh’s termination was entirely performance related. It would seem, therefore, that if Defibaugh’s layoff was entirely performance related she must 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108 Respondent argues that Shumaker is an employee and should be included in the involved unit. 109 Regarding Respondent’s assertion that as a direct result of Defibaugh’s efforts on April 19, Barbrow’s scheduled termination did not occur, it is noted that all that was achieved on April 19 was that Mowery said that Barbrow would be left on the schedule and the following week she would be let go. Defibaugh was laid off on April 19. If Respondent changed its position on Barbrow, Defibaugh was not even there when it did and she played no role in Respond- ent’s changing its position. have performed poorly between the time Jim Davis told Garlits to layoff Good, Barbrow, and Roadman, and when she was laid off. What did she do? She expressed her dis- agreement with the layoffs speaking not only to Elda and Mowery but going to Greensburg to speak to Garlits. Elda made a damaging admission to her. What else happened? Defibaugh tried to see Mowery but he was meeting with Napolean and he would not let her in the office. One of the employees who Defibaugh spoke to about signing a UFCW authorization card was Napolean. There is nothing in this record which demonstrates that there was any legitimate per- formance problem with Defibaugh either before or after Garlits spoke to her about laying off Good, Barbrow, and Roadman. Shumaker said nothing derogatory about her per- formance. Indeed it appears that he was surprised about her layoff. He did not deny that Garlits told him that she, Defibaugh, walked off the job. Mowery testified that Jim Davis told him to lay off Defibaugh because the bakeries were being consolidated. When James Davis testified, he tes- tified that he made the decision to lay off Defibaugh and Good ‘‘[b]ecause we had problems in the bakery.’’ On April 19 and the morning of April 21 Garlits told Defibaugh he did not know why she was laid off. Finally, around noon, after Jim Davis managed to avoid a telephone conversation with Defibaugh, Garlits told Defibaugh that business was slow, Respondent was going to consolidate and they were laying off some people. But, as noted above, Jim Davis testi- fied herein that Defibaugh was laid off because there were problems in the bakery. Which is it? It is neither. Garlits said on April 21, after indicating that it was the consolidation, that he could not understand why Defibaugh was laid off. Respondent argues that Defibaugh is a supervisor. Defibaugh may have had the title of manager but, contrary to Respondent’s assertions, she was not a supervisor within the meaning of the Act. From before she began her tenure as ‘‘manager’’ of the Hempfield bakery until she ceased working for respondent, little changed regarding Defibaugh’s position. It would appear that if she had not asked for the title she would not have been given it. She performed most of the same functions before she had the title as she did once she obtained the title. She did receive 30 cents an hour more in her paycheck but she still punched a timeclock unlike the other actual supervisors in the store. Shumaker, who was brought into the Hempfield bakery from Greensburg did not even know Defibaugh had the title of ‘‘manager.’’ He testi- fied that while he and Defibaugh were there, he, not she, was in charge;108 that he never heard her refer to herself or any- one refer to her as bakery manager; that he never referred to her as bakery manager; that he viewed Defibaugh as an employee working under him; and that after Defibaugh left, no one was given the title manager. Considering the record, Defibaugh did not have the authority to effectively rec- ommend hiring, transferring, suspending, laying off, recall- ing, promoting, discharging, assigning, rewarding, or dis- ciplining.109 Respondent violated Section 8(a)(3) and (1) of the Act when it laid off Defibaugh because she engaged in union activity. Just as Jim Davis decided the bakery layoffs on his own, so too he alone decided to lay off Welsh from the deli de- partment. Again, he claims that the layoff was performance related. But the deli department manager, Sandy Reich, dis- agreed asserting that Welsh’s performance did not warrant the layoff. While Jim Davis disagreed with Reich on April 19, assertedly he reversed his position in mid-June telling Reich that he trusted her judgement, at least in June, and she could bring Welsh back. According to her own testimony, Reich told Welsh that she was being laid off because Re- spondent was consolidating the Greensburg and Hempfield stores. Jim Davis testified that he decided to let Welsh go because there were problems in the deli with the food being prepared. Welsh testified that she was never criticized about her work performance, she never received a verbal or a writ- ten warning and she was never suspended. Respondent does not assert that Welsh was ever suspended. Respondent did not introduce any written warning regarding Welsh’s per- formance so it would appear that Welsh was being truthful on that point. Reich does not specifically deny that on April 19 she told Welsh ‘‘[w]hen you are a manager you are kind of like as puppet, you do whatever they tell you to do. I real- ly don’t want to do this, but I have to do it.’’ If as Reich now asserts, there were numerous complaints which she had already discussed with Welsh, and which, according to Jim Davis were the reason for the layoff, why did Reich tell Welsh that she was being laid off because of the consolida- tion? Reich did not receive the alleged complaints directly from customers. Rather Jim Davis allegedly told her that there were complaints. Mowery, who is the store manager, and Elda, who is the assistant store manager did not tell Reich that there were complaints. Interestingly, Jim Davis, who was dividing his time between the Greensburg, Frostburg, and Hempfield stores was the person who assert- edly received these complaints. And what were the specific complaints? Assertedly the pieces of potato in the potato salad were not uniform in size and the chicken noodle soup was too salty. Reich testified that Welsh made an attempt to conform to the requests that Reich made. Regarding the soup, that would mean that Welsh would reduce the amount of salt. Regarding the potato salad, Reich testified that the problem arose because Welsh did not use the available ma- chine to cut the potatoes but rather cut them by hand, which was faster. If Reich spoke to Welsh about this, why would Welsh not thereafter use only the machine to cut the pota- toes? Again, Reich testified that Welsh made an attempt to conform to the requests made. If this is true, was the ma- chine to blame for cutting the potatoes for the potato salad a different size. Would Welsh have intentionally disregarded Reich’s instructions when Welsh would have had to know that the proof of the consistency of the potatoes would be in the potato salad which would be in the counter for all to view. Welsh is credited. She was never told about any prob- lems regarding her performance. Welsh asked Reich on April 19 if her layoff had anything to do with the Union. It is my opinion that it had everything to do with the Union. Welsh 459 DAVIS SUPERMARKETS 110 The testimony that another employee in the meat department had just given 2 weeks’ notice was not refuted. was laid of because of her union activity and once again Re- spondent violated Section 8(a)(3) and (1) of the Act. Obviously, I do not find Sandy Reich to be credible wit- ness. As here pertinent, she also testified about a termination she made in the deli department. Assertedly, she made the decision to terminate Hilty, along with Smith, on her own without discussing it with Jim Davis or Mowery. Reich testi- fied that she previously discussed with Hilty the fact that she left things undone, left the counter area messy and dirty and called in sick too often. Welsh testified that Hilty missed a lot of work and Reich was upset with her because it was dif- ficult to get someone to replace her. Hilty testified that Reich never indicated to her that she called in to many days. There is no documentary evidence of any kind of a warning to Hilty regarding calling in sick. Reich testified that she was unhappy with Hilty’s performance, along with Smith’s, at the beginning of the week and Reich decided at the end of the week that she was going to terminate Hilty and Smith. Reich testified that she did receive customer complaints about Hilty’s attitude. According to Hilty, this was the reason Reich gave for terminating her. Also, according to Hilty, Reich refused to tell her what the customer said. As noted above, Elda told Defibaugh at 8 a.m. on April 19 that Re- spondent was getting rid of the trouble makers and people with attitude problems because Respondent believed that the Union was getting close to the number it needed for an elec- tion. Hilty is credited. It appears that she may have had an attitude problem with respect to calling in sick. But before April 18 it did not result in her even receiving a written warning. Some time that week, Respondent decided who the troublemakers and people with attitude problems were. Hilty was included in that group. But Reich could not tell her that this was the reason for her layoff. Reich did not tell Hilty her calling off sick was the reason. Hilty testified that Reich specifically told her that calling off sick was not the reason for the layoff. Hilty is credited. As noted above, Reich testi- fied that she was unhappy with their performance at the be- ginning of the week and she decided at the end of the week that she was going to terminate them. What did Hilty do at the beginning of the week? Reich testified that she could not remember if Hilty and Smith had switched assignments or if both of them had called off. Hilty did not call off at the be- ginning of the week. Rather, Hilty filled in for someone else at the beginning of the week. Reich testified that it was her policy to have employees discuss switching assignments with her before they made the switch. There is no evidence that Hilty and Smith switched assignments at the beginning of the week. Hilty worked for someone else who called in sick. So there was no violation of Reich’s policy at the beginning of the week. In my opinion, the timing, shifting reasons, and the summary nature of this layoff demonstrates that it was part of Respondent’s scheme to rid itself of employees who were troublemakers or had attitude problems during this orga- nizing campaign. Respondent wanted to send a message to the employes that week with the layoffs. It did. In my opin- ion, but for the union organizing campaign, Hilty would not have been laid off at that point in time. Respondent violated Section 8(a)(3) and (1) of the Act. As noted above, there were also layoffs or discharges in the meat department on April 19, Shotts and Garris. Assert- edly, Toffolo, who usually clears hiring for the meat depart- ment with Jim Davis or Brady, decided himself to lay off two employees because allegedly he did not have enough payroll hours to go around. According to Toffolo, he told Jim Davis that he, Toffolo, had to cut back on his work force. But according to Toffolo, department hours were only reduced by 20 to 25 hours with the departure of the two em- ployees because their hours were redistributed among other employees in the meat department. And after Shotts and Garris left, some employees from Respondent’s Greensburg store came to work in the meat department at the Hempfield store. This was a part of Respondent’s scheme to rid itself of troublemakers and people with attitude problems. Shotts was a likely candidate because she wanted to be able to take some time off but she wanted to be able to return to work. Also, in April 1985 Shotts asked Toffolo and Shibilsky about getting a union in the store. At the time she was told that she should not talk to anyone about it or she would not be employed at Respondent’s store anymore. Toffolo’s testi- mony that he did not recall this conversation is not credited. As noted above, Shotts signed a UFCW authorization card and she spoke to other employees about signing UFCW au- thorization cards. Toffolo was correct when he testified that Shotts was discharged. She was not discharged because she did not ask again to come back after Mowery told her he could not take her back at that time because of the of the union situation with the Steelworkers. Shotts was discharged because Respondent, notwithstanding what Shotts was told, never had any intention of taking her back. What she asked for and what she received were two different things. Re- spondent violated Section 8(a)(3) and (1) of the Act on April 19 when it discharged Shotts and when it refused to recall her. Toffolo told Garris that Respondent was having some money problems and they had to lay off some people. As noted above, according to Toffolo, Garris’ layoff, along with Shotts’, reduced the department hours by a total of only 20 to 25 hours since their hours were redistributed among the other employees in the meat department. In view of this, was there a need to lay off two people or would one person have been enough? Shotts had volunteered, under the impression that she would be able to return at some time. If it had been lawful, would not Shotts layoff have been enough?110 Garris completed her 90-day probationary period. Toffolo, however asserts that she was pricing meat wrong on a ‘‘regular basis.’’ Garris testified that all of the women in the meat de- partment price meat, and, therefore, Toffolo would have had to speak to them all. General Counsel, on brief, contends that since there is no identifying mark on the meat to indicate who priced it and there is frequent interchange of clerks pric- ing the meat, the purported performance problem, mispricing meat, is not easily attributable, if at all, to one specific indi- vidual. Toffolo alleged that Garris had a tough time catching on to the system. If that was the case, why was not some- thing done during her 3-month probationary period? As noted above, there is no documentary evidence whatsoever regarding any shortcomings in Garris’ performance. Garris had the least seniority and if there was actually a need for a layoff and it was done strictly on a department seniority basis, Garris would have been the logical choice. But it has not been demonstrated that there was a need to lay off 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 111 This does not accurately reflect the record. Garris. During the union campaign Porter spoke to Garris in the store. And Mowery did not dispute the fact that he not only knew who Porter was but he had words with Porter in the store. It is not clear, however, when this occurred. None- theless, when all of the factors are considered, including the timing of the layoff, the failure to demonstrate that there was an actual need for this layoff, the questionable nature of the alleged performance problems, and the fact that Respondent engaged in numerous anti-union actions, in my opinion Re- spondent violated Section 8(a)(3) and (1) of the Act in laying off Garris. It is alleged herein that Respondent acted unlawfully in discharging Larry Miller and refusing to recall him. General Counsel, on brief, contends that subsequent to the April 19 discharges, Respondent, in furtherance of its grand design to quash support for Local 23, discharged Larry Miller on May 14; that Mowery saw Miller speaking to Porter in the parking lot of the Hempfield store; that Miller discussed the Union with other high school students; that while Respondent al- leged that it had a pilferage problem in the ‘‘breakroom area,’’ it targeted only Larry Miller and Campana for inves- tigation; that all employees had access to the area and the entire night crew of six to eight employees worked in the area virtually unsupervised; that about 2 months after Mil- ler’s discharge, the full night crew was discharged for pre- cisely this reason; that while only Mowery met with Campana and while Mowery accepted Campana’s denial without investigation, Miller met with Mowery and Elda was present as part of Respondent’s practice to have two super- visors present during a meeting when disciplinary action is anticipated or already decided; that during the interview Mowery did not ask Miller if he had purchased the items be- fore consuming them; that employees are allowed to pur- chase items from the floor as well as from vending machines as long as they maintain the sales receipt while they are con- suming the item; that while Mowery said that he had ob- served Miller a few days prior to the interview ‘‘clowning around’’ and eating and drinking in the receiving area, Mowery did not confront Miller at that time when he was required to have in his possession a sales receipt; that instead Mowery waited a few days when it was highly unlikely Mil- ler could establish that he had purchased the items; that it appears that Respondent actually avoided any true investiga- tion; and that given the summary nature of Miller’s discharge and the complete lack of foundation for the conclusion that he had consumed the items without purchasing them, it must be concluded that Respondent terminated Miller because of his support for Local 23. Respondent, on brief, argues that Miller failed to mention in the affidavit he gave to the Board shortly after his termination, that he was ever observed by management talking to Porter; that Porter himself recalled no such occasion when he was observed by management;111 that even if Mowery had observed Miller and Porter together, that fact would be insufficient to establish knowledge on the part of the employer; that any inference of knowledge from a group meeting with Robert Davis is similarly flawed since neither Local 23 nor any other union was discussed; that none of the five other employees named by Miller as attend- ing the meeting corroborated Miller’s version of the meeting or even its existence; that the sole reason that Miller’s em- ployment was terminated was that he admitted in the pres- ence of Mowery and Elda that he had eaten merchandise without paying for it; that this violated a well-established store policy that required that all items consumed on the premises be purchased and the receipts retained; and that Miller’s defense, namely, that he in fact paid for the mer- chandise, was never mentioned in his Board affidavit and is plainly fabricated. According to his own testimony, Mowery did not first ask Miller, a high school student at the time, if he had paid for what he had consumed or just took the items. Rather, Mowery asked Miller if he had eaten the contents of the packages he, Mowery, had in front of him or drank any of the soda. When Miller said yes Mowery told him that he was fired. Elda’s testimony that Mowery asked Miller if he con- sumed any of the items ‘‘without paying for them’’ is not credited. It conflicts with Mowery’s testimony. Miller testi- fied that he told Mowery at the time that he did not steal the items. His testimony is credited. He may not have indi- cated specifically that he or someone else paid for the items but I believe that he told Mowery that he did not steal the items. There were employees other than Campana who could have consumed the involved items. Yet Mowery did not question them. And Mowery did not ask Miller if he or someone else paid for whatever was consumed. Mowery only asked Miller if he had consumed any of the involved items before telling him that he was fired. Mowery does not assert that Miller consumed all of the involved items. In my opin- ion Mowery was not really interested in finding out who consumed all of the involved items. Rather, with his rush to judgement, Mowery, in my opinion, was looking for any jus- tification, even if it was without merit, to fire Miller. Re- spondent violated Section 8(a)(3) and (1) of the Act in termi- nating Miller. Since the Board requires the application of the analysis in Wright Line, 251 NLRB 1083 (1980), notwithstanding the fact that all of the above-described discharges, which in- cludes the permanent layoffs, were purely pretextual, it is concluded that the reasons advanced by Respondent either did not exist or were not in fact relied on, thereby leaving intact the inference of wrongful motive established by Gen- eral Counsel. Limestone Apparel Corp., 255 NLRB 722 (1981). There are a number of complaint allegations regarding the picketing and handbilling. More specifically, it is alleged that Respondent violated the Act (a) in making verbal announce- ments and through the assistance of the Pennsylvania State Police discriminatorily refusing to permit the Union to picket and handbill on Respondent’s Hempfield Township property while permitting other organizations access to its property for purposes of soliciting its customers and related activities, (b) in maintaining a civil trespass suit against the Union in the Court of Common Pleas of Westmoreland County, Penn- sylvania, which enjoins the Union from picketing on Re- spondent’s Hempfield Township premises, (c) in threatening to have persons engaged in handbilling on behalf of the Union arrested, (d) in causing the Pennsylvania State Police to visit Respondent’s above-described facility, (e) in enforc- ing, through the assistance of the Westmoreland County Sheriff, the injunction it obtained as a result of the above- described civil trespass suit, and (f) in filing and maintaining a motion for an Order to Show Cause and for Civil Con- 461 DAVIS SUPERMARKETS tempt against the Union and four named employees and seeking to enforce by fines and other penalties, the afore- mentioned injunctions. On brief, General Counsel argues that under Fairmont Hotel, 282 NLRB 139 (1986), wherein an employer attempts to restrict picketing, handbilling and related activities on its premises, the Board is required to weigh the relative strengths of the Union’s Section 7 rights against Respond- ent’s property rights to determine whether Respondent’s con- duct violated the Act; that the picket signs and handbills (1) assert the Union’s protest of the unfair labor practices com- mitted by Respondent in an effort to subvert the Union’s or- ganizing campaign and curtail employee exercise of their rights and (2) are intertwined with an aspect of the Union’s organizing campaign, an activity long recognized to be at the core of Section 7; that the picketing and handbilling were performed in large part by Respondent’s own employees or by former employees whose alleged unlawful discharges stand at the very heart of the unfair labor practices which were the immediate focus of the picketing; that the situs of the picketing and the situs of the dispute in this case are identical; that the intended audience for the unfair labor prac- tice aspect of the picketing and handbilling was the potential customers of the store and the picketing was intended to exert economic pressure on the Respondent by reaching that audience at the store itself; that the manner in which the union message was communicated did not diminish the strength of its Section 7 right since the picketing was carried out in a manner which was not unduly disruptive of Re- spondent’s business in that the number of pickets was limited and they refrained from obstructing or blocking ingress or egress by customers and any one else and any other mis- conduct; that the Respondent’s property interest in limiting access to the front of its store is relatively weak since (1) the property is open to the public and public access is wel- comed and encouraged and (2) Respondent has permitted public and charitable organizations to solicit in front of the store; that since Respondent has permitted church groups and fraternal organizations to solicit in front of the involved store, it apparently was enforcing its property rights selec- tively, Medina Super Duper, 286 NLRB 728 (1987); that be- cause the rights asserted by the Union outweigh Respond- ent’s property right to exclude picketing and handbilling from in front of its store, the availability of reasonable alter- native means by which the union could have communicated its message is not determinative; that accordingly, Respond- ent violated the Act by each of the actions it took to prevent or restrain picketing and handbilling activities on its prop- erty; that the above-described civil lawsuit was filed and maintained solely on the grounds of trespass and while Re- spondent may now seek to urge that other concerns such as disruption or harassment were also involved, all of the plead- ings filed by Respondent in that case deal solely with the trespass issue; that the issues involved in that lawsuit were primarily Federal in nature and at least from the time the Union filed its unfair labor practice charge in Case 6–CA– 19159 on June 2, the Board’s jurisdiction under the Act pre- empted that of the State court under the principles set forth by the United States Supreme Court in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978); and that since Respond- ent’s suit is preempted by Federal law, it follows that Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), on which Respondent may seek to rely, is inapplicable to the in- stant case and thus the filing and maintenance of the suit is properly subject to a finding of violation of Section 8(a)(1) of the Act. Respondent, on brief, contends that the injunctions were not related solely to acts of trespass by Local 23 but rather, the preliminary injunction bars the blocking of ingress and egress and the threatening or harassing of customers, conduct assertedly documented on this record, and the permanent in- junction also bars the blocking of ingress and egress while allowing picketers and handbillers at the parking lot en- trances; that it is undisputed that Davis initiated State court proceedings prior to the filing of any unfair labor practice charge concerning restrictions on access to its property, which is precisely the situation which existed in Sears Roe- buck, supra; that in Sears Roebuck, where the union picketed on the premises of a single freestanding store, the Court held, at 207, that where the party seeking relief in State court has no right to invoke the Board’s jurisdiction, and the party that does have that right fails to do so, the jurisdiction of the State court is proper; that Davis was absolutely privileged to enjoin Local 23’s unlawful conduct, Peddie Buildings, 203 NLRB 265, 272 (1973), cited in Bill Johnson’s Restaurants, supra; that the Employer’s access to the courts is worse than illusory if an employer which has obtained a valid State court injunction commits an unfair labor practice by seeking to enforce it; that because it is improper under the Act for the General Counsel to enforce an asserted claim of exclu- sive jurisdiction solely through the threat of an unfair labor practice proceeding, the portions of the complaints dealing with access to the Employer’s property must be dismissed on this ground alone; that notwithstanding the State court in- junction, Local 23 consented to restrictions on its activities on Davis’ property substantially greater than those which the General Counsel will now contend to be proper; that counsel for Local 23 agreed that only two individuals would be per- mitted on the employer’s property to handbill customers, pro- vided that these individuals conducted themselves properly; that the fact that Local 23’s representatives ultimately failed to conduct themselves properly, and thus forfeited access to the parking lot does not alter the fact that Local 23 was and is bound by its agreement with Davis; that under Jean Coun- try, 291 NLRB 11 (1988), it is apparent that Davis’ property rights are quite strong since Hempfield is a free-standing structure which does not share the property with any other tenants, and the protest of alleged unfair labor practices is an important Section 7 right; that accordingly, this case turns on the availability of reasonable alternative means; that General Counsel presented no testimony whatever that picketers and handbillers were in any danger by virtue of their activities at the entrances to the supermarket parking lot; that General Counsel did not (and cannot) produce evidence that Local 23 was burdened or put to additional expense by virtue of the location of the picketing and the handbilling just off the store’s property at the entrances to the parking lot; that the record is devoid of evidence that Local 23’s efforts were un- lawfully hampered by confinement of its picketing and handbilling efforts to the entrances to the parking lot; that under circumstances virtually identical to those found in this case, the Board has found that reasonable alternative means existed for the exercise of Section 7 rights, L&L Shop Rite, 285 NLRB 1036 (1987) (picketing and handbilling were re- 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stricted to a ‘‘grassy area’’ and public sidewalk); that as the Board in L&L Shop Rite made clear, General Counsel’s ap- parent sole reliance on the lesser number of handbills distrib- uted from the parking lot entrances will not carry the burden of showing no reasonable alternative means; that here pick- eting and handbilling continued on a daily basis for at least 4 months and under L&L Shop Rite, this ‘‘indicates that the Union itself regarded picketing and handbilling at this loca- tion to be worthwhile’’; that Local 23 forfeited whatever right it may have had to the property by its flagrant mis- conduct, which included blocking customer ingress and egress intimidating customers and employees, profane lan- guage, threats and obscene gestures and littering; that while it may be argued that Davis denied Local 23 access to its property while granting access to other groups, on this record no such finding can be made since credible testimony exists concerning only one such incident, namely a church raffle conducted over the Memorial Day weekend; that isolated ac- cess granted to charitable groups does not compel access for nonemployee union organizers, Central Solano County Hos- pital Foundation, 255 NLRB 468 (1981); that the sole indi- vidual conducting the church raffle was seated behind a card table away from the supermarket door; and that given these qualitative and quantitative distinctions, Davis’ denial of ac- cess to Local 23 was lawful. On October 16, 1989, Respondent filed a motion to dis- miss certain of the alleged violations, pointing out that on June 15, 1989, after the briefs were filed, the Board issued its Decision and Order in Giant Food Stores, 295 NLRB 330 (1989), wherein it held that an employer’s maintenance of a State court lawsuit enjoining picketing after the filing of an unfair labor practice charge by a union is lawful. In its reply, filed October 23, 1989, General Counsel points out that on August 8, 1989, a Motion for Reconsideration of the Board’s Decision and Order and a memorandum in support was filed by General Counsel in Giant Food, supra. That motion was still pending. Additionally General Counsel argues that the case is ‘‘inconsistent with Board precedent, flawed in its rea- soning and should not be applied in the instant case.’’ For the reasons specified below, Respondent’s motion is denied. On February 1, 1990, Respondent filed a motion to dis- miss certain of the involved allegations citing Tecumseh Foodland, 294 NLRB 486 (1989), and asserting that the Board’s Decision and Order therein was unavailable to Counsel for Respondent at the time briefs were filed herein. In Tecumseh the Board found that Respondent was not re- quired to surrender access to its property without limitation to nonemployee picketers and handbillers whose numbers and location would tend to impede the access of patrons to its store. In its response in opposition to the motion, General Counsel, after renewing its objection to respondent’s repeated practice of filing additional argument and other briefing ma- terials without justification or regard for the Board’s Rules and Regulations, notes that while the Board Decision and Order in Tecumseh may not have been available at the time briefs were filed, it certainly was available well before the filing of Respondent’s previous, October 1989 motion to dis- miss. General Counsel contends that the decision in Tecum- seh is far from dispositive of the issues in the instant case in Respondent’s favor and in many ways supports a finding of violation since in Tecumseh the Board found that (1) the message the Union seeks to convey by its picketing and handbilling is directed at a diverse population consisting of Respondent’s customers, a group which is not readily identi- fiable, and that audience could not reasonably be reached by direct personal contact, by telephone or mail, nor could the Union reasonably be required to undertake the burden and expense of a media campaign in these circumstances, and (2) the detailed information presented on handbills can not ade- quately be contained on a picket sign alone and thus, in the absence of reasonable effective alternate means of commu- nication, ‘‘a proper balancing of the parties rights here would permit the Union to distribute its handbills in some manner and at some place on Respondent’s property.’’ Tecumseh, supra. General Counsel points out that the circumstances cited by the Board in Tecumseh are markedly different from those which exist in the instant case in that while in Tecum- seh the entrance area to the store was narrow and pickets sta- tioned themselves inside the entrance as well as on both sides, herein, by contrast, the area was wide and pickets re- mained at the sides and outside the immediate entryway. Ad- ditionally, General Counsel contends that while the Board in Tecumseh placed great emphasis on the fact that there was no evidence that the facility ‘‘allowed anyone onto its prop- erty other than for the purpose of shopping . . . nor was there evidence of usage of the property by any other group or organization, the property in fact appears to have been protected against all solicitations,’’ herein, by contrast, the record clearly demonstrates that the Respondent routinely al- lowed public, charitable, and fraternal organizations to solicit on its premises, thus demonstrating that, as alleged, Respond- ent discriminatorily enforced a ban on all union solicitations while permitting other organizations access for that purpose; that the union representative in charge of the picketing over the Memorial Day weekend indicated her willingness to ac- commodate Respondent’s interests and when asked by a po- lice representative, as a courtesy, to relocate the pickets she immediately complied; that unlike Tecumseh where the Union neither offered nor sought any alternate arrangements which would have allowed it to continue some handbilling presence on the Employer’s property, herein the parties did reach a temporary agreement permitting pickets at each road- way entrance and two female handbillers in the parking lot; that thereafter Respondent continued to seek, and in fact ob- tained, an injunction totally barring all pickets from Re- spondent’s property and only then informally agreed to allow the two handbillers in the parking lot at its sufferance; that the Union, upon its resumption of handbilling, did abide by this informal arrangement only to have Respondent, after several weeks of peaceful activity, seek and obtain total en- forcement of the injunction completely barring all activities on its property; and that herein, unlike Tecumseh the parties had developed and the Union was following a handbilling ar- rangement precisely of the sort which the Board in Tecumseh indicates would have met the Jean Country, supra, balancing list and sanctioned the handbilling as protected Section 7 ac- tivity, only to have Respondent unilaterally void the accom- modation by enforcing and maintaining the no trespass in- junction. For the reasons specified by General Counsel in the reply, this motion is denied. Contrary to Respondent’s assertion on brief, there is cred- ible testimony by at least two witnesses, Defibaugh and Harshall, that Respondent allows other organizations to so- licit its customers on the sidewalk immediately in front of 463 DAVIS SUPERMARKETS 112 As noted above, the Superior Court of Pennsylvania described the involved conduct as peaceful picketing and distributing handbills at the store, and the Court of Common Pleas of Westmoreland County, Pennsylvania, concluded that ‘‘[t]he number of pickets and their activities effectively impeded access to the store by cus- tomers.’’ Also, as noted above, Davis’ May 23 complaint in the tres- pass action alleges that approximately six individuals holding signs bearing the name of the union defendant entered onto the property of Plaintiff and remained positioned at the main entrance of Plain- tiff’s Hempfield store. It is not clear exactly what evidence the Court of Common Pleas relied on to reach the above-described conclusion. The credible evidence of record herein does not demonstrate that the picketers and handbillers acted in an obstructive manner. 113 The Board pointed out that ‘‘[i]n confirming the right of em- ployees to picket their employer in front of his premises, we do not pass on whether outside organizers would have the same right.’’ 114 The Supreme Court has insisted on rules distinguishing be- tween the picketing rights of employees and of nonemployees in measuring intrusion on private property. As noted by the Court in Continued the store. None of Respondent’s witnesses deny this. Accord- ingly, as asserted by General Counsel, Respondent was en- forcing its property rights selectively. Did the Union interfere with customer ingress or egress or with deliveries to the store? Regarding the latter, there is no evidence of such interference on the record. With respect to the former, Toffolo testified that the picketers ‘‘were sort of in the way of the doorway. You would have to swing wide, with three or four shopping carts, like a matter of constantly having to move people to get around them.’’ Robert Davis testified that the picketers blocked the front of the store and customers had to squeeze around them. As noted above, however, I did not find Toffolo or Robert Davis to be cred- ible witnesses. Toffolo’s testimony on this point is equivocal. And Robert Davis’ testimony that the picketers and handbillers blocked the front of the store and customers had to squeeze around them is not credited. Robert Davis was the only witness to testify that picketers actually blocked the front of the store. Regarding what assertedly happened in front of the store during the picketing, Toffolo at one point testified that a man threatened to get Robert Davis. At an- other point Toffolo testified that the threat was uttered by a woman. Toffolo’s testimony on this point is not credited. As noted above, Toffolo also gave uncorroborated testimony that he heard picketers tell customers not to shop here because this guy is a criminal. Toffolo’s testimony on this point also is not credited. Robert Davis was less than candid about a number of matters treated above. Consequently, his uncorroborated assertion that he saw a lot of leaflets on the ground and he picked them up can be given little weight even though it is not refuted. Also, as noted above, I did not find Sandy Reich to be a credible witness. Consequently, her assertion about being called a ‘‘bitch’’ can be given little weight. Even if her testimony was credited on this point, while the alleged utterance was not acceptable conduct, it certainly, in and of itself, was not sufficient to change what otherwise would be described as peaceful picketing and handbilling. In my opinion, it was not demonstrated on this record that the pickets and handbillers acted in an obstructive manner or otherwise conducted themselves in any way but a peaceful manner.112 As noted above, Respondent, on brief, concedes that the Union’s Section 7 right, at the situs of the dispute, is an im- portant right. Since Respondent is the sole occupant of the property, its property rights are greater than an employer in some type of a shopping center. But Respondent weakened its property rights by allowing other organizations on its property to solicit. With respect to alternative means, the Board in Sentry Markets, 296 NLRB 40 (1989), agreed with the administrative law judge therein, in a situation similar to the one at hand regarding alternatives, that handbilling on public property near the entrance to the parking lot is not a reasonable alternative because General Counsel has shown that handbilling at that location was ineffective and unsafe. In Sentry Markets, the Board concluded: Accommodating the private property and Section 7 rights pursuant to our analysis in Jean Country, we find that the Respondent’s property interest would suffer some impairment if access were granted to the Union. This impairment, however, would not be substantial in light of the unobtrusive manner in which the Union handbilled and the fact that Respondent essentially opened up its premises to the public. By contrast, in the absence of reasonable alternative means of communica- tion, the Union’s Section 7 right would be ‘‘severely impaired—substantially ‘destroyed’ within the meaning of Babcock & Wilcox [351 U.S. 105 (1956)]—’’ with- out entry onto the respondent’s property. Jean Country, above at 16. . . . Therefore, under the facts of this case we agree with the judge that the Section 7 right outweighed the private property right, and that the Union was entitled to handbill at the storefront side- walk near Respondent’s customer doors. In my opinion, a similar conclusion should be reached herein, especially when one considers the discrimination, the fact that some of the picketers and handbillers were employ- ees of Respondent, that some of these employees were pro- testing their own discharges, and that the activity has long been recognized to be at the core of Section 7. Respondent’s conduct, namely forcing the handbillers and picketers to leave the sidewalk in front of the store violated Section 8(a)(1) of the Act. Did Respondent violate the Act by maintaining a trespass suit, enforcing an injunction, and maintaining a motion to show cause and for civil contempt, and seeking to enforce fines? As noted above, respondent cites the board’s decision in Giant Food Stores, supra, wherein the Board held that an Employer’s maintenance of a State court lawsuit enjoining picketing after the filing of an unfair labor practice charge by a Union is lawful. In Peddie Buildings, supra, the Board pointed out that ‘‘[t]he Act gives employees the right to picket their own em- ployer at a primary location. This right is embodied in Sec- tion 7, and given emphasis in Section 13.’’ Also, therein the Board stated, ‘‘[i]n view of the employees’ obvious right of access to their employer’s premises for work purposes, we believe that Section 7 gave them a parallel right of access for purposes of otherwise legitimate picketing.’’113 Some of the picketers and handbillers who were stationed in front of the Davis Hempfield store on May 23 engaged in protesting unfair labor practices and organizing were em- ployees of Respondent.114 In filing its above-described May 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956) ‘‘[t]he distinction is one of substance.’’ 115 As noted above, the complaint speaks to and the involved courts treated this strictly as a trespass action. 116 Respondent’s trespass action was filed long before the Board decided Giant Food and, therefore, Respondent could not have been relying on Giant Food. 117 One must wonder if these assertions, which were not even mentioned in the decision of the Court of Common Pleas, were noth- ing more than a belated attempted manipulation to have the afore- mentioned language in Sears, Roebuck, a case which the Court of Common Pleas cited in its decision, apply to the situation at hand. 23 complaint, Respondent alleged that ‘‘Defendants continue to persist in their unlawful conduct of trespass.’’115 Nonetheless, even though the employees had a statutory right to legitimately picket in front of Respondent’s store and Respondent did not differentiate between them and the non- employee pickets, Respondent’s filing of the trespass action, in and of itself was not a violation of the Act. Clyde Taylor Co., 127 NLRB 103 (1960). But maintaining the trespass action after the Union filed a charge and a complaint was issued by the Board is another matter. As noted above, the Union pointed out to the Court of Common Pleas before its November 24 decision that the matter was preempted by the Board. Also as noted above, Respondent cites Giant Food, supra, for the proposition that the employer’s maintenance of a state court lawsuit enjoining picketing after the filing of an unfair labor practice charge by a union is lawful.116 But the Board did not treat the threshold issue in Giant Food, namely, whether the Board’s jurisdiction preempts the Respondent’s suit. American Pacific Concrete Pipe, 292 NLRB 1261 (1989). Also, Giant Food did not involve discrimination in the selective enforcement of property rights, unlawfully discharged employees partici- pating by protesting unfair labor practices or numerous unfair labor practices against employees. In San Diego Unions v. Garmon, 359 U.S. 236 (1959), the Court stated at 244: When it is clear or may fairly be assumed that the activities which a State purports to regulate are pro- tected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by State law. Nor has it mattered whether States have acted through laws of broad general application rather than laws specifically directed toward the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the sub- ject of national regulation would create potential frus- tration of national purposes. And, supra at 245 the Court states: When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state inter- ference with national policy is to be averted. The Board’s regulation of Section 7 protected activity is not limited to a finding of a violation. In NLRB v. Nash-Finch Co., 404 U.S. 138 (1971), the Court, at 144, concluded that at the Board’s request, a Federal District Court may enjoin the enforcement of a state-court injunction against organiza- tional picketing and handbilling ‘‘where [as in the case, the Board’s] federal power pre-empts the field.’’ Compare Cap- itol Service v. NLRB, 347 U.S. 501 (1954). As pointed out in Garner v. Teamsters, 346 U.S. 485, 488 (1953), This is not an instance of injurious conduct which the National Labor Relations Board is without express power to prevent and which therefore either is ‘‘gov- ernable by the State or it is ungoverned.’’ In such cases we have declined to find an implied exclusion of state powers. International Union v. Wisconsin Board, 336 U.S. 245, 254. Nor is this a case of mass picketing, threatening of employees, obstructing streets and high- ways, or picketing homes. We have held that the state still may exercise ‘‘its historic powers over such tradi- tional local matters as public safety and order and the use of streets and highways.’’ Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, 749. Nothing suggests that the activity enjoined threatened a probable breach of the state’s peace or would call for extraordinary po- lice measures by state . . . authority. Nor is there any suggestion that . . . [the] plea of federal jurisdiction and preemption was frivolous and dilatory, or that the Federal Board would decline to exercise its powers once its jurisdiction was invoked. The Court in Garner went on to conclude, supra, at 500, 501 that when the federal power constitutionally is exerted for the protection of the public or private interests, or both, it becomes the supreme law of the land and cannot be curtailed, circumvented or extended by a state proce- dure. The Court in Sears Roebuck, supra at 204, points out that it has held that state jurisdiction to enforce its laws prohib- iting violence, defamation, the intentional infliction of emo- tional distress, or obstruction of access to property is not pre- empted by the Act. As noted above, the Court of Common Pleas of Westmoreland County in its November 24 decision concluded ‘‘[t]he number of pickets and their activities effec- tively impeded access to the store by customers.’’ The court did not specifically speak to Toffolo’s assertion about a threat by a picket to get Robert Davis (violence), or Toffolo’s assertion that pickets said ‘‘this guy is a criminal’’ (defamation), or Reich’s assertion that one of the pickets said ‘‘[g]et out of here bitch,’’ which scared her half to death (in- fliction of emotional distress). Either the court did not have these assertions before it for consideration or it did not be- lieve that it was necessary to cover them in its Decision or it did not rely on them. As noted above, I am not relying on them.117 Moreover, in my opinion, what happened here on May 23 cannot be found to be an obstruction of access to property. Consequently, preemption was not precluded. 465 DAVIS SUPERMARKETS 118 It is not necessary to specifically find whether the violation oc- curred after the union filed a charge or the Board issued the com- plaint. As noted in Sears Roebuck, supra, there is a difference of opinion on when the Board’s jurisdiction preempts. But there should be no question but that when the involved complaint was issued State jurisdiction was preempted. 119 Defibaugh, Garris, Good, Hilty, Shotts, Welsh, Miller, Miscovich, and Kunkle. As noted above, in my opinion Defibaugh was not a supervisor. 120 Mark Alcorn, Marty Fox, Michelle Kallock, Brian Kirkendall, Jerry Marshell, and V. Piccar. The controversy presented to the State court is the same controversy that was presented to the Board on this point. Therefore, Davis’ suit is preempted by Federal law. Nash- Fince Co. and Capitol Service. Since Davis’ suit is preempted by Federal law, it appears that Bill Johnson’s Restaurants does not apply to the instant case in that the Court therein, at footnote 5, stated that the principals enunciated therein would not apply ‘‘with a suit that is claimed to be beyond the jurisdiction of the state courts because of federal-law pre-emption.’’ Where a retaliatory state court suit is preempted by the Act or other Federal law, the principals set forth in Bill Johnsons’ Restaurants do not apply. As indicated in Nash- Finch Co. and Capitol Service, the Board can enjoin the prosecution of such lawsuits without inquiry into the reason- ableness of their legal or factual basis. Respondent had a retaliatory motive in maintaining the in- volved state suit. As noted above, Defibaugh and Harshall testified that during the picketing in November when one group was leaving for the day and another group was coming in and there was, therefore, six people there at the time, someone from the store would come out and take pictures. None of the Respondent’s witnesses denied this. And as noted above, I find Defibaugh and Harshall to be credible witnesses. This testimony is credited. As set forth above, Davis, in its November 25 motion to show cause alleged, among other things, that individual em- ployees and the Union disregarded the provision of the in- junction by exceeding the number of pickets (three) per- mitted at each entrance to the Davis property. If Davis was using photographs Defibaugh and Harshall testified about, as covered in the next preceding paragraph, than it was fabri- cating evidence. If it did not use the photographs for this purpose, than it was not made clear on this record why Re- spondent would make a point of taking such photographs. Regarding another allegation in Davis’ November 25 motion for a Rule to Show Cause, it is noted that while Davis al- leges that Defendants violated the court’s order by parking their cars on Plaintiff’s property, nowhere in its order did the court specifically speak to such a practice let alone specifi- cally prohibit it. And finally, regarding Davis’ allegation that the individually named employees should be held in con- tempt for distributing handbills at the door of Davis’ facility, as noted above, the law treats employees and nonemployees differently, and the Union’s response to the motion seem- ingly points out that Davis’ counsel and its representatives were aware of this. Nonetheless, Davis, in its motion, prayed that the court should enter an order directing Defendants, in- cluding the above-named individual employees, to show cause why they should not be fined an amount equal to the cost of plaintiff’s losses incurred as a result of defendant’s failure to comply with the order of the court. The picketing and handbilling which occurred on May 23 was, as described by the Superior Court of Pennsylvania, was peaceful. There was no reason for Respondent to file the lawsuit other than to limit or eliminate the effectiveness of the handbilling and picketing, some of which was done by its own employees, which employees, as found above, were previously unlawfully discharged by Respondent. Respondent had engaged in numerous unfair labor practices and this was another part of its bad-faith scheme to defeat union organiza- tion. By maintaining the trespass suit Davis violated the Act.118 This covers all aspects of the suit, including enforc- ing the injunction and moving for a finding of civil con- tempt. Additionally, Davis, through its supervisors and/or agents, by threatening to have persons engaged in handbilling and picketing arrested and causing the Pennsylvania State Police to visit Davis’ Hempfield store, violated the Act. Peddie Buildings, supra. The amended complaint in Case 6–CA–19388 alleges that from on or about May 31, to on or about June 14, a majority of the above-described unit designated and selected Local 23 as their representative for purposes of collective bargaining; that at all times since on or about May 31, Local 23 by vir- tue of Section 9(a) of the act, has been, and is, the exclusive representative of the unit; that on or about May 13, Local 23 requested Respondent to recognize it as the exclusive col- lective-bargaining representative of the employer in the unit and to bargain with it as the exclusive collective-bargaining representative of the employees in the unit; that since on or about May 31, Respondent has failed and refused, to recog- nize or bargain with the Union as the exclusive collective- bargaining representative of the unit; and that the involved unfair labor practices are so serious and substantial in char- acter that the possibility of erasing the effects of the unfair labor practices and of conducting a fair election by the use of traditional remedies is slight, and the employees’ senti- ments regarding representation, having been expressed through authorization cards would, on balance, be protected better by the issuance of a bargaining order than by tradi- tional remedies alone. The parties stipulated that the employees listed on the first three pages of Joint Exhibit 14, attached hereto as Appendix B, are in the unit subject to starting and ending dates. The list contains 107 names, including Miscovich. Page 3 of Joint Exhibit 14 also includes the nine employees who were un- lawfully terminated, as described above. Miscovich is also included in this list.119 Consequently, there is no dispute re- garding 106 employees, subject to starting and ending dates, and, in view of my conclusions regarding the 9 unlawful ter- minations, there are 115 employees in the unit. On brief, the parties agree that six individuals on the list should be ex- cluded by virtue of their starting and ending dates.120 The parties submitted separate lists in their briefs and to some ex- tent they are not the same. More specifically, while they agree on six individuals and while General Counsel agrees that Jerry Marshell, who worked to May 11, should be ex- cluded, no reason is given for not excluding Alfred Petril, who also worked to May 11. Respondent is correct; Petril should be excluded. Although Cathy Christner and Melanie Valozzi were employed at Respondent’s Hempfield store on May 13, they were not employed at the store on May 31 and, 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 121 One of the two signed a UFCW authorization card. 122 Albright and Blaser, who are treated above, are the only other Greensburg employees who are not members of the Steelworkers. therefore, they will be excluded.121 Accordingly, a total of 97 employees were in the involved unit pursuant to this stip- ulation. And adding the 9 unlawfully terminated employes makes it 106. Twenty seven of the disputed employees, see the adden- dum to Joint Exhibit 14 attached hereto as Appendix B, also work at Respondent’s Greensburg store. On brief, General Counsel argues that regarding at least nine of these individ- uals, virtually no basis at all exists in the record to support Respondent’s contention that they should be included. More specifically, General Counsel argues that Cathy Donahue never worked at the Hempfield store and two witnesses testi- fied herein that she was the manager of the deli department at the Greensburg store during the time in question; that Pat- rick Fetter only worked at Greensburg 1 week in June and several weeks in August; that Donald Miller only worked at Hempfield during one 8-hour period in May; that Robin Myers, Augie Plevelich, and Carol Pyle worked exclusively at Greensburg with the exception of a few weeks in May when they spent time at Hempfield; that the record does not show that Sandra Wilkenson and Lisa Warrick worked at the Hempfield store; that George Struhala only worked at the Hempfield store sporadically; and that none of the nine worked for any significant period or at any regular or perma- nent basis at Hempfield. With respect to Wilbur Albright, General Counsel argues that he, along with James Blaser, performs singular functions for Respondent which are unre- lated to any bargaining unit activity; that he shares virtually no community of interest with any unit employees, his work duties, namely repair and maintenance tasks, are distinct from unit employees as is his scheduling, method of pay- ment, and authority; and that the majority of his time is spent at the Greensburg store although he punches no timeclock at either location. Regarding Blaser, General Counsel contends that this trouble shooter for Respondent, who sets his own schedule, does not punch a timeclock and is paid an hourly wage with no other benefits, has little contact with unit em- ployees and shares virtually no community of interest with them. Also, General Counsel points out that the majority of Blaser’s hours are spent at Greensburg. Regarding Stanley White, General Counsel argues that al- though he is more regularly employed, he also lacks any contact or community of interest with the Hempfield employ- ees; that White’s only contact with the Hempfield store oc- curs during that portion of his work day when he delivers and unloads a portion of his load to that store and during these periods he rarely, if ever, has contact with any other employees but works solely on his own; that White is a member of the Steelworkers and is governed by the terms and conditions of the collective-bargaining agreement be- tween that Union and Respondent; that White’s job and du- ties are totally distinct and different from that of any Hemp- field employee and he is supervised solely by the produce manager at the Greensburg store; and that White’s contact with Hempfield is so limited that there is no basis for even applying a dual function analysis to him. With respect to Neil Vario and John Shumaker, General Counsel contends that after having worked exclusively at the Greensburg store for a number of years, in late April 1986, they were transferred to the Hempfield store and worked there exclusively; that in the case of Vario, this assignment lasted for a period of approximately 4 months and in Shumaker’s case for over 1 year; that both men were told at the time of their transfer and repeatedly thereafter, that these moves were only temporary and they would be re- turned to the Greensburg facility as soon as possible; and that in both cases this took place and they have since re- turned to working exclusively at Greensburg, and both re- mained members of the Steelworkers at Greensburg during the time they were assigned to Hempfield. General Counsel points out that Janet Barbour, who spent time at both of Respondent’s facilities, was also told that her assignment was temporary and she too would ultimately be returned to work exclusively at Greensburg; and that she too was a member of the Steelworkers unit at the Greensburg during the time she worked at Hempfield. It is contended by General Counsel that the other Greens- burg employees who worked at Hempfield did not share a sufficient community of interest with the Hempfield unit to be included on that basis; that most of these employees spent the great majority of their time at Greensburg and in many cases did not even punch a timeclock at Hempfield when they worked there; that most were assigned to Hempfield on an irregular basis, either to fill in for absent employees or on an ad hoc basis with no advance scheduling or are as- signed to Hempfield as needed to assist and train new em- ployees; that in most cases these Greensburg employees are primarily supervised by management officials at the Greens- burg store and do not report or take directions from any Hempfield supervisor; that all of these employees, except Vicki Cramer, Patti Hutton, Kim Reich Gallentine, and Stacy Wano are members of the Steelworkers;122 and that in these circumstances, the Board has found that a collective-bar- gaining agreement bars dual function employees who are in- cluded in the unit from inclusion in any other bargaining unit sought by the petitioning union, Otasco, Inc., 278 NLRB 376 (1986). Respondent, on brief, contends that dual function employ- ees, that is employees who do bargaining unit work and also nonbargaining unit work for the same employer, need not spend 50 percent or more of their time doing bargaining unit work; that under Fleming Industries, 282 NLRB 1030 (1987), certain of the dual function employees should not be excluded from the unit solely because they are represented by the Steelworkers; that regarding the employees who are not in the Steelworkers, Albright, at least with respect to the less specialized maintenance tasks, he performed the same duties as other Hempfield unit employees; that Kim Reich Gallantine, around February 1986 began working about 12 hours a week at the Hempfield store as a grocery price coor- dinator and she reported to Hempfield store manager Mowery; that Patti Hutton was assigned to work at Hemp- field prior to the store’s opening and she worked as a gro- cery price coordinator at Hempfield, working 8 to 16 hours a week and reporting to Mowery while in Hempfield; that Vicki Cramer Smartnick in late 1984 or early 1985 was as- signed to work at the Hempfield store where she worked 3 days a week, 4 to 5 hours a day, and she reported to Mowery and Elda; and that Stacy Wano Woodmancy was assigned to 467 DAVIS SUPERMARKETS 123 Jamie Boice, Valarie Kollar, and John Kula. Kula signed a UFCW authorization card on May 5. work at the Hempfield store prior to the store’s opening and she continues to work at the Hempfield store 3 days a week for a total of about 12 hours, reporting to Mowery and Elda. For the reasons specified by General Counsel on brief, as summarized above, none of the employees who are also em- ployed at the Greensburg store, which employees are listed on the last page of Appendix B hereto, should be included in the involved unit. Regarding the five disputed college stu- dents set forth in Appendix B hereto, General Counsel, on brief, contends that the evidence of record indicates that these five individuals worked virtually exclusively during the spring and summer months traditionally associated with the college vacation period and/or for a limited period during the end of the year holidays; that this pattern persisted in both 1985 and 1986, after which none of these individuals contin- ued to be employed with Respondent; that the Board has held that students who work only during the vacation periods are excluded from the unit, Century Moving & Storage, 251 NLRB 671, 681 (1980), Berinson Liquor Mart, 223 NLRB 1115 (1979); that accordingly none of the five college stu- dents are eligible for inclusion in the involved unit. Respond- ent, on brief, contends that the test for inclusion in the unit is whether the circumstances of their employment give them a community of interest with the other employees with re- spect to wages, hours and working conditions, Gruber’s Star Market, 201 NLRB 612, 613 (1973); and that the five col- lege students did share a community of interest in that each of the five worked for two or more summers and two of the five returned to employment following the summer of 1986. The case Respondent cites deals with high school students who worked a substantial number of hours weekly. There the contention was that they work as stockboys and ‘‘come and go all of the time,’’ and leave Respondent’s employ after graduation. Here, the contention is that the involved students work during vacations and do not regularly work on a part- time basis during the remainder of the year. Since this is the case herein, under the cases cited by General Counsel these college students are excluded from the unit. With respect to the students enrolled in high school coop- erative employment programs, General Counsel, on brief, ar- gues that the unit determination in the aforementioned Deci- sion and Direction of Election specifically excludes ‘‘stu- dents employed pursuant to cooperative education pro- grams’’; that as indicated in Appendix B, five such students were employed in 1986; that since the last two named on the list apparently did not continue their employment beyond the period of the program, it appears to be undisputed that they should be excluded; that while the program ended June 10, three of these individuals continued to be employed for sub- stantial periods thereafter;123 that there is no evidence that the three were converted into regular employees; and that if it is deemed appropriate to include them in the bargaining unit, such inclusion cannot have taken place earlier than June 10. Respondent, on brief, contends that the three should be included in the unit after June 10. I agree. Regarding the seven employees listed in Appendix B here- to under ‘‘OTHERS IN DISPUTE,’’ General Counsel contends that Thomas Howard’s terms and conditions of employment in addition to containing elements of supervisory and/or managerial status are so different from those of other bar- gaining unit employees, that he lacks any significant commu- nity of interest with employees in the bargaining unit and, therefore, he should be excluded; that Thomas is a salaried employee unlike all those in the bargaining unit, does not punch a timecard, and has the discretion to set his own schedule within the limits established by the needs of his job; that Howard has complete control over the ordering of frozen food, consults with Mowery and James Davis concerning ad- vertising, and the ordering and display of products, requests assistance from Mowery and directs the assistant; and that his position is a unique one which casts him in a quasimanagerial and supervisory position aligned with man- agement and lacking any significant community of interest with the employees in the bargaining unit. Respondent, on brief, contends that Howard at no time acted as a supervisor within the meaning of Section 2(11) of the Act; that Howard did not have the authority to assign or transfer employees, hire, suspend or discipline, lay off or recall, or promote em- ployees; and that Howard exercised far less discretion and authority than Defibaugh, whom General Counsel seeks to include in the unit. Contrary to Respondent’s assertions, just because Defibaugh has been included in the unit does not mean that Howard must be included. Among other things, Defibaugh was paid an hourly wage. She punched a timeclock. She did not consult with Mowery and Jim Davis about advertising. There is a great deal of difference in the two positions. In my opinion, General Counsel is correct, namely, Howard’s terms and conditions of employment in addition to con- taining elements of supervisory and or managerial status are so different from those of any other bargaining unit em- ployee that he lacks any significant community of interest with employees in the bargaining unit and, therefore, should be excluded. Anthony Ianni, who works as a bagger and stockboy at Respondent’s Hempfield facility, quit during the week ending April 19. On July 16 Ianni filled out an application for em- ployment with Respondent (G.C. Exh. 77). On brief, General Counsel contends that the uncontroverted facts demonstrate that during the critical period under consideration herein, when the Union achieved majority status, Ianni simply was not an employee of Respondent, and thus must be excluded from consideration as a member of the bargaining unit. I agree. Terry Jackson was employed continuously as a bagger at the Hempfield store throughout the period involved and no reason is given for excluding him from the unit. Accordingly, he will be included in the involved unit. Laura Marchetti ap- parently left Respondent’s employment during the week end- ing March 8 since there is no evidence that she was em- ployed by Respondent beyond that date. Accordingly, she will not be included in the unit. With respect to Brian Mull, General Counsel, on brief, contends that since Mull only worked 4 hours on each of two weekends in May and thereafter did not work again for Re- spondent until July of that year when he began employment on a part-time basis, during the critical period herein he was not eligible or available for employment and thus should not be included in the unit. Respondent, on brief, contends that it is fundamental Board law that laid off employees who have a reasonable expectation of reemployment in the fore- 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD seeable future are to be included in the unit, Marley Co., 131 NLRB 866 (1961); that factors to be considered include the circumstances of the layoff and the content of the commu- nication to the employee at the time of the layoff, Sol-Jack Co., 286 NLRB 1173 (1987); and that applying these prin- ciples to this case, it is plain that Mull must be included in the unit. Since Mull had a reasonable expectancy of employ- ment within the foreseeable or near future, he will be in- cluded in the unit. Tim Sheridan worked as a bagger at Respondent’s Hemp- field store. Respondent’s Exhibit 16 shows that he worked part time for 3 weeks in January, 1 week in March, and from the end of May to the end of August. On brief, General Counsel argues that Sheridan was enrolled as a student and unavailable for work, other than during school breaks; and that, accordingly, Sheridan should be excluded from the unit, Century Moving & Storage, supra. Respondent, on brief, contends that because General Counsel has shown no reason to exclude Sheridan, he should be included in the unit. Sheri- dan’s employment history with the Respondent corresponds to the college students treated above. Students who only work during vacation periods are excluded from the unit. This appears to apply to Sheridan. Consequently, he will be excluded. On brief, General Counsel argues that Dick Shibilsky was a supervisory employee in the meat department; that he, un- like bargaining unit employees, did not punch a timeclock and like admitted supervisor Toffolo was responsible for or- dering meat and other products for the meat department; that he had the authority to direct employees in their work, inter- view prospective employees and to effectively recommend the hire of new employees; and that apparently Shibilsky was a supervisory person and thus ineligible for inclusion in the unit. Respondent does not treat the status of Shibilsky on brief. Shibilsky’s terms and conditions of employment appear to be those of a supervisor or manager. Clearly they are dif- ferent from those of the employees in the bargaining unit. Shibilsky does not enjoy a community of interest with the employees in the bargaining unit. He must be excluded. With the addition of Jackson and Mull, there were 108 in the unit until July 10 and then with the addition of the 3 stu- dents who formerly were in the cooperative program there were 111 employees in the unit. General Counsel introduced 60 UFCW authorization cards. Kula was a cooperative program student when he signed his card on May 5. Also, Valozzi signed her card on May 5. As noted above, Kula is not included in the unit until July 10 when the aforementioned program ended. Also, as noted above, Valozzi has been excluded because she left Respond- ent’s employ on May 16. Regarding Hilty’s card, General Counsel, on brief, argues that notwithstanding the fact that her card only has the month and the year, Hilty testified that she signed the card in April, shortly before she was discharged on April 19; that this was well in advance of the UFCW’s demand and the critical time period; and that the Board has held that such a discrepancy does not destroy the card’s validity where testimony supports the conclusion that it was signed and timely dated, Burger King, 258 NLRB 1293 (1981), and J. P. Stevens & Co., 247 NLRB 420 (1980). Respondent, on brief, contends that al- though Hilty testified that she signed the card in early April, there is no way for General Counsel to prove the card was signed before Hilty was terminated. As noted above, it is concluded herein that she was unlawfully terminated. Hilty’s uncontroverted testimony that she signed the card in early April is credited. Since this was before the demand date, I find Hilty’s card to be valid. General Counsel, on brief, argues, with respect to Rubin Weery’s card, that he testified on direct examination that he read the card before signing it, he was not coerced to sign it and he was never told that the sole purpose of the card was to obtain an election; that on cross-examination, after being confronted with a statement he gave the Respondent, Weery testified that notwithstanding the statement, when he signed the card nothing was said other than if he wanted the Union, he should go ahead and sign the card; that the state- ment was given in a coercive climate and cannot be credited over Weery’s present recollection; that the petition Weery signed in July seeking to revoke his card is ineffective since such attempted revocation took place long after (a) the Union’s demand for recognition, (b) when the Union had ob- tained a majority, and (c) Respondent began its unfair labor practices; and that in these circumstances, any revocation is ineffective to undercut the validity of the card, Photo Drive Up, 267 NLRB 329, 364 (1983), and Warehouse Groceries Management, 254 NLRB 252, 254 (1981). Respondent, on brief, contends that Werry testified that the solicitor and al- leged discriminatee Larry Miller threatened that he would be ‘‘out of a job’’ if he did not sign the card; and that this type of union coercion plainly invalidates Werry’s card, NLRB v. Sanford Home for Adults, 669 F.2d 35 (2d Cir. 1981). Ulti- mately, Werry testified that when the card was given to him by Miller he said nothing other than if you want the Union, than go ahead and sign the card. Because it was not dem- onstrated that Werry was coerced when he signed the card, it will be counted. In view of Respondent’s campaign of co- ercive unlawful activity, there was no effective revocation of this card. Regarding Wendy Sarsfield’s card, General Counsel argues that when she was confronted on cross-examination by a statement purporting to reflect an interview with Respond- ent’s attorney in January 1987, Sarsfield testified that she had been given no choice about meeting with the attorney and she felt coerced at the time of the meeting, had refused to sign the statement and refused during her testimony to adopt any portion of it which would have been relevant to the issue of the authenticity or validity of her Union card. Respondent, on brief, contends that Sarsfield testified that the individual who solicited her card misrepresented to her that the sole purpose was to obtain an election; and that such a misrepresentation renders Sarsfield’s card invalid, W&W Tool & Die Mfg. Co., 225 NLRB 1000 (1976). Sarsfield testified that she was not told when she signed the card that the card was only for the purpose of obtaining an election. When she signed the card she was not relying on what she later heard from employees in the store. In the circumstances, her card will be counted. With respect to those employees who signed a UFCW au- thorization card and also a Steelworkers authorization card, General Counsel argues, on brief, that such Steelworker cards were never introduced herein; that the record amply demonstrates that Respondent was embarked on a coercive and unlawful campaign to subvert the organizing efforts of Local 23 by soliciting support and signatures for the Steel- 469 DAVIS SUPERMARKETS 124 As noted above, I am not counting Valozzi’s card for while she signed it on May 5, she left Respondent’s employment on May 16. Also, Kula’s card, signed May 5, is not counted for May 13 because he was not technically in the unit until July 10. And finally, since 3 of the 60 cards introduced by General Counsel are dated after May 13, they will not be counted in determining the total on May 13. With these 3, the Union had 58 cards as of May 24. workers; and that in these circumstances the references ap- pearing in the record to employees signing Steelworker cards can form no basis for undercutting the validity of the cards signed on behalf of Local 23. Respondent, on brief, contends that in the absence of a revocation of either card, it is well- settled that both cards are invalid because neither unambig- uously shows the individual’s choice of union representation, if any, Windsor Place Corp., 276 NLRB 445, 449 (1985), and Crest Containers Corp., 223 NLRB 739 (1976). Re- spondent limited its contentions to Shotts, arguing that she testified that she signed a Steelworker’s authorization card about one month after she signed a UFCW authorization card. In support of this assertion, Respondent cites page 177 of the transcript herein. Contrary to the assertion of Respond- ent, the transcript cite refers not to the testimony of Shotts but rather to the testimony of Kula. As noted above, he is not included in the unit until July 10 when the cooperative program ended. Consequently, his UFCW authorization card, dated May 5, will not be counted in determining whether the Union had a majority when it demanded recognition on May 13. It does not appear that Shotts ever signed a Steelworkers authorization card. Regarding the other employees who signed Steelworker authorization cards, it is noted that a number of them signed letters revoking such authorizations (C.P. Exhs. 1–5). Moreover, in view of the coercive unlawful campaign waged by Respondent, any authorizations signed for the Steelworkers will be given no consideration herein. As noted above, the cards of Jennifer Thomas, John Rusnica, and Tammy Traister were placed in evidence with uncontroverted examples of their handwriting for comparison purposes. An examination of these documents demonstrates that in all three instances the UFCW authorization cards are authentic. The conflicting testimony of Porter and Kaskie about which portions of his card Paul Williams filled out in their presence is not sufficient to invalidate the card; it will be counted in determining whether the Union had a majority. As concluded above, there were 108 in the unit, including Jackson and Mull. And after July 10 the three students who up to that point were in the cooperative program should be added. In view of the fact that John Hart did not start at Re- spondent’s Hempfield store until May 19, there were 107 in the unit on May 13 when Local 23 made its demand for rec- ognition with 55 authorization cards.124 Consequently, the Union had a majority on May 13. And that majority contin- ued well beyond the end of May. General Counsel, on brief, argues that a bargaining order is the appropriate remedy in this case since the Union achieved the support of a majority of the employees in the bargaining unit based on authorization cards; that Respondent engaged in a clear course of conduct calculated to undermine and destroy support for the Union among employees com- mencing in April when it first learned of the Union’s orga- nizing campaign; that the unlawful conduct included interro- gation, threats of reprisals, and threats of plant closure, long recognized as a hallmark violation sufficient to support the issuance of a remedial bargaining order; that Robert Davis, Respondent’s Board Chairman and owner engaged in sub- stantial efforts to undermine Local 23 by assisting the Steel- workers in soliciting support among the employees at Hemp- field and compounding this violation by overtly coercing em- ployees to obtain their support for that labor organization; that Respondent committed egregious and repeated violations of Section 8(a)(3) of the Act by the summary discharges of nine Union supporters and card signers; that there really is no room for speculation that the passage of time would in- sure a fair election; that the effect of such severe misconduct is persistent and ongoing; and that a bargaining order is the only appropriate remedy in this case. Respondent, on brief, contends that since Local 23 never represented a majority of the involved employees, no bargaining order may issue. The Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), affirmed the Board’s authority to issue a bargaining order where a union majority is established by cards and the nature and the extent of the employer’s unfair labor practices render unlikely a free choice by the employ- ees in a Board election. Respondent commenced its course of unfair labor practices immediately upon learning of the union campaign. The unfair labor practices were committed by a number of Respondent’s admitted supervisors including its president and its chairman of the board. Respondent’s actions were directed at numerous of its employees, some of whom are high school students. Respondent unlawfully interrogated, created the impression of surveillance, solicited employee complaints and griev- ances, threatened to close the store, coerced its employees to join the Steelworkers, changed terms and conditions of em- ployment, changed a work schedule to force a constructive discharge, threatened reprisals, and discharged a number of employees. The effect of this conduct was to instill a strong fear of union representation. Simply requiring Respondent to refrain from repeating such conduct will not erase the effect of this fear of union representation and will not enable the employees to participate in a free and uncoerced election. In my opinion, a mere cease-and-desist order would not deter the recurrence of unfair labor practices which were com- mitted by its top management officials who are still in charge of the Company. In view of the degree and pervasiveness of the unfair labor practices, the holding of a fair election is no longer possible. Respondent, by its conduct, has forfeited the right to an election. A bargaining order is necessary and ap- propriate to protect the majority sentiment expressed through authorization cards and otherwise to remedy the violations committed. By refusing to recognize and bargain with the Union, as requested and instead engaging in the course of unlawful conduct which undermined the Union’s majority status and prevented the holding of a fair election, Respondent violated Section 8(a)(5) of the Act. Trading Port, 219 NLRB 298 (1975). Its bargaining obligation arose on May 13, 1986, the date of the Union’s demand inasmuch as the Union by then had achieved majority status and Respondent commenced its clear course of unlawful conduct even before that date. It is obvious that Respondent intended by its unlawful conduct to dissipate the Union’s majority status. In view of the nature of Respondent’s unfair labor practices, it is my opinion that Respondent also violated Section 8(a)(5) of the Act by refus- 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 125 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). ing to recognize and bargain with the Union as the represent- ative of the majority of its employees while simultaneously engaging in unlawful conduct in an attempt to undermine the Union’s majority status and prevent the holding of a fair election. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party and the Steelworkers are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. By engaging in the following conduct Respondent com- mitted unfair labor practices contrary to the provisions of Section 8(a)(1) of the Act: (a) Interrogating an employee regarding the employee’s union membership, activities, and sympathies and the union membership, activities, and sympathies of fellow employees. (b) Creating an impression among its employees that their union activities were under surveillance by Respondent. (c) Soliciting employee complaints and grievances thereby promising its employees increased benefits and improved terms and conditions of employment. (d) Threatening employees with store closure if they se- lected the Union as their collective-bargaining representative. (e) Threatening employees with unspecified reprisals if they supported the Union. (f) Threatening employees that their union organizational activity was futile. (g) Threatening employees by accusing them of disloyalty for supporting the Union. (h) Making verbal announcements and, through the assist- ance of the Pennsylvania State Police, discriminatorily refus- ing to permit the Union to picket and handbill on Respond- ent’s Hempfield Township, Pennsylvania property while per- mitting other organizations access to its property for pur- poses of soliciting its customers and related activities. (i) Maintaining a civil trespass suit against the Union in the Court of Common Pleas of Westmoreland County, Penn- sylvania, which enjoins the Union from picketing on Re- spondent’s Hempfield Township premises. (j) Threatening to have persons engaged in handbilling on behalf of the union arrested. (k) Causing the Pennsylvania State Police to visit Re- spondent’s above-described facility. (l) Enforcing, through the assistance of the Westmoreland County Sheriff, the injunction it obtained as a result of the above-described civil trespass suit. (m) Filing and maintaining a motion for an Order to Show Cause and for Civil Contempt against the Union and four- named employees and seeking to enforce by fines and other penalties, the aforementioned injunction. 4. By urging its employees to join the United Steelworkers of America, AFL–CIO–CLC and by permitting the Steel- workers to utilize Respondent’s facility, thereby rendered aid and assistance to the Steelworkers, Respondent committed an unfair labor practice contrary to the provisions of Section 8(a)(2) of the Act. 5. By engaging in the following conduct Respondent com- mitted unfair labor practices contrary to the provisions of Section 8(a)(1) and (3) of the Act: (a) Changing the work schedule of employee Charles Miscovich thereby causing his termination. (b) Imposing onerous terms and conditions of employment on employee Linda Kunkle thereby causing her termination. (c) Laying off six named employees and refusing to recall said employees. (d) Discharging employee Larry Miller and refusing to re- call him. 6. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by Davis Supermarkets, Inc. at its Hempfield Township, Pennsylvania, location, excluding confidential employ- ees, students employed pursuant to cooperative edu- cation programs and guards, professional employees and supervisors as defined in the Act 7. Since on or about May 13, 1986, and at all material times thereafter, the Union represented a majority of the em- ployees in the above appropriate unit, and has been the ex- clusive representative of all the employees for the purposes of collective bargaining within the meaning of Section 9(b) of the Act; and the Respondent was on that date, and has been since, legally obligated to recognize and bargain with the Union as such. 8. By refusing to recognize and bargain collectively with the Union in regard to employees in the appropriate unit on or about and since May 13, 1986, Respondent has committed unfair labor practices prohibited by Section 8(a)(5) of the Act. 9. The above-described labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. 10. Respondent has not committed any other unfair labor practices alleged in the complaint. THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative ac- tion designed to effectuate the policies of the Act. Respondent will be directed to offer Deborah Defibaugh, Charlene Garris, Lance Good, Jennifer Hilty, Sharlene Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and Linda Kunkle reinstatement to their former positions and to make them whole for any loss of earnings they may have suffered by reason of the above-described unlawful actions by making payments to them of a sum of money equal to that which they normally would have earned had Respondent not engaged in the above-described unlawful action, with backpay and with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987),125 Respondent will be directed (a) to preserve and make available to the Board, on request, all payroll records and reports, and all other records necessary and useful to determine the amount of backpay due in compliance with this Decision and Order, and (b) to ex- punge from the personnel files of Deborah Defibaugh, Charlene Garris, Lance Good, Jennifer Hilty, Sharlene 471 DAVIS SUPERMARKETS 126 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 127 If 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and Linda Kunkle all documents related to those of Respondent’s actions which were determined above to be unlawful labor practices. In view of the degree and pervasiveness of the unfair labor practices, a broad cease-and-desist order shall be rec- ommended precluding Respondent from ‘‘in any manner’’ interfering with, coercing, or restraining employees in the ex- ercise of their rights guaranteed by Section 7 of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended126 ORDER The Respondent, Davis Supermarkets, Inc., Hempton Township, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating an employee regarding the employee’s union membership, activities, and sympathies and the union membership, activities, and sympathies of fellow employees. (b) Creating an impression among its employees that their union activities were under surveillance by Respondent. (c) Soliciting employee complaints and grievances thereby promising its employees increased benefits and improved terms and conditions of employment. (d) Threatening employees with store closure if they se- lected the Union as their collective-bargaining representative. (e) Threatening employees with unspecified reprisals if they supported the Union. (f) Threatening employees that their union organizational activity was was futile. (g) Threatening employees by accusing them of disloyalty for supporting the Union. (h) Making verbal announcements and, through the assist- ance of the Pennsylvania State Police, discriminatorily refus- ing to permit the Union to picket and handbill on Respond- ent’s Hempfield Township, Pennsylvania property while per- mitting other organizations access to its property for pur- poses of soliciting its customers and related activities. (i) Maintaining a civil trespass suit against the Union in the Court of Common Pleas of Westmoreland County, Penn- sylvania, which enjoins the Union from picketing on Re- spondent’s Hempfield Township premises. (j) Threatening to have persons engaged in handbilling on behalf of the Union arrested. (k) Causing the Pennsylvania State Police to visit Re- spondent’s above-described facility. (l) Enforcing, through the assistance of the Westmoreland County Sheriff, the injunction it obtained as a result of the above-described civil trespass suit. (m) Filing and maintaining a motion for an Order to Show Cause and for Civil Contempt against the Union and four- named employees and seeking to enforce by fines and other penalties, the aforementioned injunction. (n) Urging its employees to join the United Steelworkers of America, AFL–CIO–CLC and permitting the Steelworkers to utilize Respondent’s facility, thereby rendering aid and as- sistance to the Steelworkers. (o) Changing the work schedule of employee Charles Miscovich thereby causing his termination. (p) Imposing onerous terms and conditions of employment on employee Linda Kunkle thereby causing her termination. (q) Laying off six named employees and refusing to recall the employees. (r) Discharging employee Larry Miller and refusing to re- call him. (s) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer Deborah Defibaugh, Charlene Garris, Lance Good, Jennifer Hilty, Sharlane Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and Linda Kunkle immediate and full reinstatement to their former positions, or if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privi- leges and make them whole for any loss of pay they may have suffered by reason of Respondent’s discrimination against them with backpay and interest thereon to be com- puted in the manner set forth above. (b) Remove and expunge from the personnel files of Deborah Defibaugh, Charlene Garris, Lance Good, Jennifer Hilty, Sharlene Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and Linda Kunkle all documents which relate to Respondent’s actions which have been found to be unfair labor practices, and make whatever record changes are nec- essary to negate the effect of these documents and Respond- ent’s unlawful actions. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payroll records, timecards, personnel records and reports, and all other records necessary to ana- lyze the amount of backpay due under the terms of this rec- ommended Order. (d) On request, bargain collectively with United Food and Commercial Workers International Union, Local 23, AFL– CIO–CLC as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (e) Post at its Hempfield Township, Pennsylvania, copies of the attached notice marked ‘‘Appendix A.’’127 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 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. 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that all allegations of unfair labor practices not found herein are dismissed. APPENDIX B (1) PROPOSED STIPULATION THESE EMPLOYEES ARE IN UNIT SUBJECT TO START AND ENDING DATES 1. Ahlborn, Helen 2. Alcorn, Mark to 5/2/86 3. Alonzo, Mindy 4. Barbrow, Judy 5. Barnes, Pam 6. Biedrycki, Dave to 7/14/86 7. Biedrycki, Roy to 7/14/86 8. Bennett, Jean 9. Benson, Michele from 5/21/86 10. Bittner, Tracey 11. Black, Margaret to 7/19/86 12. Buhl, Ken 13. Bunner, Scott to 7/14/86 14. Campana, B. J. 15. Chellman, Regina 16. Christner, Cathy to 5/30/86 17. Clark, Ed 18. Colosimo, Theresa 19. Corsaro, Kevin 20. Crivella, Lisa 21. Curry, Shari 22. Cusano, Jody 23. Davis, Karen 24. Davis, Sandy 25. DeMann, Mike 26. Dick, Carol 27. Dick, John 28. Dreistadt, Bev 29. Duncan, Bonnie 30. Emanuel, Laura 31. Faust, Robbie 32. Fox, Marty from 6/22/86 33. Giallonardo, Mark 34. Godzik, Thomas 35. Goodlin, Cheryl 36. Goodman, Chris 37. Grace, Sam 38. Graham, Scott to 7/14/86 39. Gray, Tom 40. Greaves, Corrine 41. Greico, Debbie 42. Grindle, Debbie 43. Harshall, Randy to 7/14/86 44. Hart, Brian 45. Harte, John from 5/19/86 to 7/14/86 46. Hobaugh, Doug 47. Homchak, Ed to 7/14/86 48. Horsley, Gail 49. Ianni, Sharon 50. Jeffrey, Jennifer 51. Jupena, Robert to 7/14/86 52. Kallok, Michelle to 5/2/86 53. Kellner, Sandra from 4/28/86 54. Kimmel, Cathy 55. Kirkendall, Brian from 6/22/86 56. Kissell, Mary 57. Kitzer, Chris 58. Kunz, Inga 59. Lowry, Trach to 6/28/86 60. Mancuso, Michele 61. Marchetti, Brian 62. Marchell, Jerry to 5/11/86 63. Mascolo, Becky to 6/26/86 64. Mathias, Dolores 65. Mattucci, Anita 66. Matusek, Joan 67. McFarlene, Karen 68. Meister, Andrew 69. Merenda, Jerry 70. Miscovich, Charles (def. to 6/2 longer if found 8(3)) 71. Moore, Missy 72. Najewicz, Scott 73. Napolean, Steve 74. Naviglia, Ron 75. O’Brien, Staci 76. O’Neal, Todd 77. Olshefsky, Mary Ann 78. Petril, Alfred to 5/11/86 79. Petrillo, Bob 80. Phillips, Joe 81. Piccar, V. from 6/29/86 to 9/2/86 82. Pomaibo, Patty 83. Rosetti, A. 84. Rusnica, John 85. Sarsfield, Wendy 86. Seigal, Laura from 5/12/86 87. Sherrow, Angie to 7/3/86 88. Shoemaker, Luana 89. Shola, Chari 90. Showalter, Tammie 91. Steiner, Craig to 10/10/86 92. Streussing, Mike to 7/14/86 93. Sullenberger, Marjory 94. Sweltlen, Bob 95. Temple, Melissa 96. Thomas, Jennifer 97. Tillary, Debbie from 4/26/86 to 6/28/86 98. Thompkins, Bonnie 99. Torrance, Sherri 100. Traister, Tammy 101. Valozzi, Melanie to 5/16/86 102. Vesco, Cathy 103. Wansor, Lynna 104. Watson, Scott 105. Werry, Lee 106. Williams, Paul 107. Matson, Nancy 473 DAVIS SUPERMARKETS (2) The following employees are considered in unit to date of termination if lawful and if found unlawful termination then throughout the relevant period (4/86 to 7/14/86). Defibaugh, Debra * to 4/19/86 Garris, Charlene 4/19/86 Good, Lance 4/19/86 Hilty, Jennifer 4/19/86 Shotts, Charelene 4/19/86 Welsh, Sonja 4/19/86 Miller, Larry 5/14/86 Miscovich, Charles 6/2/86 Kunkel, Linda 7/26/86 * So long as not found a supervisor. EMPLOYEES WHO ALSO WORK AT GREENSBURG 1. Wilbur Albright 14. Robin Myers 2. Janet Barbour 15. Augie Plevelich 3. James Blaser 16. Carol Pyle 4. Antonette Coletri 17. Kim Reich (Ballentine) 5. Vicki Cramer 18. Robin Ross 6. Cathy Donaughe 19. John Shumaker 7. Patrick Fetter 20. George Struhala 8. Ann Howard 21. Neil Vario 9. Eileen Hribal 22. James Weaver (Orange) 23. Stanley White 10. Linda Hummel 24. Pauline Wigfield 11. Patti Hutton 25. Lisa Warrick 12. Brenda Kulyk 26. Sandra Wilkinson 13. Don Miller 27. Stacy Wano COLLEGE STUDENTS EMPLOYED AT HEMPFIELD, ELIGIBILITY IN DISPUTE 1. Lisa Arendas 4. Dave Vrable 2. Kristin Nath 5. Angela Wimberly 3. Aimee Panichella STUDENTS IN COOPERATIVE EMPLOYMENT PROGRAM THROUGH LOCAL HIGH SCHOOLS ELIGIBILITY IN DISPUTE 1. Jamie Boice 4. Tammy Matve 2. Valarie Kollar 5. Jamie Skewis 3. John Kula OTHERS IN DISPUTE 1. Thomas Howard 5. Brian Mull 2. Anthony Ianni 6. Tim Sheridan 3. Terry Jackson 7. Dick Shibilsky 4. Laura Marchetti ADDENDUM TO J–14 THOSE WHO ARE ALSO EMPLOYED AT GREENSBURG A. Members of the United Steelworkers of America 1. Janet Barbour 11. Ausie Plevelich 2. Antonette Coletri 12. Carol Pyle 3. Cathy Donaughe 13. Robin Ross 4. Patrick Fetter 14. John Shumaker 5. Ann Howard 15. George Struhala 6. Eileen Hribal 16. Neil Vario (Orange) 17. James Weaver 7. Linda Hummel 18. Stanley White 8. Brenda Kulyk 19. Pauline Wigfield 9. Don Miller 20. Lisa Warrick 10. Robin Myers 21. Sandra Wilkinson B. Not Members of the United Steelworkers of America 1. Wilbur Albright 4. Patti Hutton 2. James Blaser 5. Kim Reich (Ballentine) 3. Vicki Cramer 6. Stacy Wano