Olney Iga Foodliner

OLNEY IGA FOODLINER 741 Don's Olney Foods, Inc. d/b/a Olney IGA Food- liner and United Food and Commercial Work- ers, Local 550-R. Cases 14--CA-17697 and 14- CA-17915 22 October 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 23 December 1985 Administrative Law Judge Karl H. Buschmann issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, the General Counsel filed cross-ex- ceptions and a supporting brief, the Respondent filed an answer to the General Counsel's cross-ex- ceptions, and the Charging Party filed an answer to the Respondent's exceptions. The National Labor Relations Board has delegat- ed 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 briefs and has decided to affirm the judge's rulings, findings, I and 1 The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect 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 The Respondent has excepted to the judge 's failure to find Tom Gilles- pie was a manager as well as a supervisor We find merit in the Respond- ent's exception , but find that Gillespie was a manager rather than a super- visor As a manager, we find that Gillespie's authorization card was in- valid and owner Carletta Jones' conversation with him was not a viola- tion of the Act The Respondent has also excepted to the judge 's finding that Debra Millman was correctly excluded from the bargaining unit We find it un- necessary to reach the issue of whether Millman was erroneously ex- cluded from the unit as it would not affect the Union 's majority We also find it unnecessary to pass on the General[ Counsel's excep- tions to the judge's dismissals of an allegation that Deb Millman interro- gated employees at the 18 October 1985 meeting and an allegation that Store Manager Bill Zuber created an impression of surveillance through certain remarks he made to employee Mike Luber on 24 November 1985 In both instances, findings of violations would be merely cumulative to other violations already found 2 In affirming the judge's conclusion that the Respondent violated Sec 8(a)(5) of the Act when it withheld merit increases at a time when past practice dictated that they normally would have been given, we note that the unilateral break with past practice is deemed unlawful because it falls within the period after the Respondent had embarked on a course of seri- ous misconduct that undermined the Union's majority and prevented the holding of a fair election See Trading Port, 219 NLRB 298, 301 (1975) The General Counsel excepted to the portion of the judge's decision that stated the General Counsel's position to be that "a bargaining order is necessary to erase Respondent 's conduct and to insure a fair election." The General Counsel states her position to be that "because of Respond- ent's conduct, the possibility of erasing the effects of Respondent's con- duct and ensuring a fair election by the use of traditional remedies is slight and employee sentiment expressed through authorization cards would, on balance, be better protected by a bargaining order." We find merit in the General Counsel's exception, which is consistent with the General Counsel's pleadings and brief to the judge conclusions, 2 to modify the remedy, 3 and to adopt the recommended Order. The judge found that the instigator of the union campaign, Joe Wilson, was demoted and was not a supervisor thereafter. We agree. The dissent, how- ever, argues that because Wilson was a statutory supervisor before his demotion (an unproven premise), he was a supervisor after the demotion and thus not protected by the statute. But Wilson's previous status is of little importance. The proper question is whether Wilson was a statutory supervi- sor at the relevant time. He was not. Statements of the Respondent's own managers indicate that Wilson was not considered a supervi- sor after his demotion. Store Manager Bill Zuber told Wilson when he put him on days that Wilson was "no longer in charge." Zuber also told em- ployee Ochs, who had been asked by Wilson to bale boxes, that Ochs was to "ask the manager [Dave Bunting] what to do and he's not here." Employee Rick Rariden also testified he heard Zuber tell Day Manager Dave Bunting that "Dave was the manager and he wasn't supposed to take any static from Joe [Wilson] because Joe wasn't the manager, that Dave was the manager and not to put up with anything from Joe." Zuber's comments corroborate Wilson's understanding .that he was not considered a supervisor. Additionally, Wilson's job duties changed signifi- cantly after his demotion. After his demotion to day shift, Wilson primarily performed carryout and stocking duties. Even on the Saturday night shift he allegedly managed, Wilson spent a great deal of his time side by side with the rank and file per- forming unit work such as cleaning the meat and produce cases. Even assuming that Wilson, after his demotion had some limited supervisory authority during the 8-9-hour shift that he worked every third Saturday night in rotation with employees Rick Rariden and Mike Zuber, we would not find that he has the requisite 2(11) status. Evidence that an individual who otherwise occupies the position of an employ- ee is "called upon to take charge" on certain "lim- ited occasions" does not automatically transform the individual into a supervisor. Fall River Savings Bank v. NLRB, 649 F.2d 50, 54 (1st Cir. 1981). Our dissenting colleague agrees that the record does not clearly show that employees Rariden and Zuber, 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be 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 on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 286 NLRB No. 75 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD who rotate with Wilson as persons "in charge" on these Saturday night shifts, are supervisors; and we see no reason for finding that occasional service on the same shift should convert Wilson to that status.4 Accordingly, for all the foregoing reasons, we conclude that Wilson was not a supervisor after his demotion and that his discharge for union activity violated the Act. As to the bargaining order, the violations found to have been committed by the Respondent are substantial violations and include: discharging the employee organizer; interrogating employees; threatening employees with loss of jobs, loss of benefits, store closure, more onerous working con- ditions, and less pay; making statements indicating that the Respondent would know how employees voted; and creating the impression that union ac- tivities, including card signing, were under surveil- lance. These violations are sufficiently numerous, severe, and pervasive to warrant a bargaining order. In view of the size of the unit involved, the widespread knowledge of the violations, and the severity of the Respondent's conduct, we find it unlikely that the lingering effects of the Respond- ent's conduct will be dissipated by a cease-and- desist order. Accordingly we, like the judge, find that a bargaining order is warranted. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Don's Olney Foods, Inc. d/b/a Olney IGA Foodliner, Olney, Il- linois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting in part. I cannot agree with my colleagues' adoption of the judge's finding that the Respondent's discharge of employee Joe Wilson violated Section 8(a)(3). In my opinion Wilson was a supervisor at the time of his dismissal. I further disagree with my colleagues' issuance of a bargaining order to remedy the viola- tions found.I • Wilson's access to the store keys and his ability to release employees for their breaks on some occasions when the manager was out of the store for an hour or so apparently differentiates him from Zuber and Rar- iden, but this insignificant occasional exercise of authority is also insuffi- cient to mark him out as a supervisor Fall River Savings Bank v NLRB, supra i I agree with my colleagues ' adoption of the judge's findings that the Respondent violated Sec 8(a)(1) by interrogating employees , threatening employees with loss of jobs and benefits, less pay, plant closure, and more onerous working conditions, and creating the impression of surveil- lance and Sec 8(a)(3) by denying employees their wage increases I fur- ther agree with my colleagues ' adoption of the judge's dismissal of the remaining allegations of the complaint The judge found that Joe Wilson was "demoted" from an admittedly supervisory capacity to a posi- tion with insignificant supervisory characteristics not warranting a finding that Wilson was a supervi- sor at the time of his discharge. I find, however, that Wilson's reassignment did not entail a loss of supervisory status. In 1981 the Respondent promoted Wilson from full-time grocery clerk to the admittedly superviso- ry position of night manager, with an accompany- ing wage raise of 75 cents an hour. Wilson worked as night manager on Monday, Tuesday, and Wednesday, and during the day on Thursday and Friday. His duties included assigning work to em- ployees such as stocking shelves, sending employ- ees on breaks-while taking his own at his own convenience, requesting that employees work late, initialing timecards when necessary, seeking re- placements when scheduled employees did not come into work, and authorizing employees to leave before the scheduled time if business was slow. Wilson had access to the store keys and the cash register keys. Cashiers sought his approval prior to granting customer refunds, approving checks, or correcting errors on the cash register. Wilson "checked in" vendors, ensuring that the merchandise was properly delivered to the store, and he authorized payment to vendors. Wilson did not punch a timeclock, he received pension and in- surance benefits, and his wage rate as manager in- creased to $7.20 an hour. As a supervisor, Wilson had no authority to hire, fire, transfer, promote, adjust employee grievances, or effectively recom- mend such actions. He did not order produce for the store, was not authorized to sign checks, and did not attend management meetings. In September 1984 Wilson was reassigned to the day shift and was charged with operating the store every third Saturday night. Wilson was directly below the day manager in the chain of command, and on Saturdays he alone was in charge of the store. Wilson's wage rate remained the same and he continued to exercise many of the same func- tions as when he was the night manager. Wilson's reassignment did not constitute a "de- motion" with loss of supervisory status. The judge found that length of service was a prime consider- ation in determining the employees' wages. The record, however, more readily supports the conclu- sion that supervisory authority and not length of service explains the managers' higher salaries. Bob Malone, who was hired as night manager on 17 October 1984, received a salary of $6 an hour, an amount higher than that of all the Respondent's nonsupervisory personnel, irrespective of date of hire. In contrast, employee Ellen Harmon, a deli OLNEY IGA FOODLINER 743 clerk hired on 20 October 1976, only received $5.80 an hour. The fact that many of the superviso- ry personnel had been in Respondent's employ for long periods of time does not, of itself, warrant the conclusion that it is the employees' length of serv- ice rather than their supervisory status that ac- counts for their higher salary. In addition, the judge ignores the fact that Wilson's promotion to night manager was accompanied by a relatively substantial salary increase. Because salary was clearly a factor denoting supervisory status, had the Respondent intended to demote Wilson to a nonsupervisory position, the logical step would have been to reduce his salary accordingly. After his reassignment, Wilson continued to exe- cute many of the same duties as when he was night manager. He continued to answer cashiers' assist- ance calls for managers, "check in" vendors, and approve payment to them. In the store manager's absence, Wilson had access to the store keys and would send employees on breaks. On Saturday nights Wilson continued to exercise the same au- thority as when he was night manager. He deter- mined employee breaks and enforced them, as- signed tasks to employees, and ensured the per- formance of additional duties typical of the Satur- day night shift. Although the judge dismisses these later duties as routine, these are precisely the re- sponsibilities that in the Respondent's business dis- tinguish the day and night managers from the non- supervisory personnel.2 In relying on Wilson's lack of authority to hire, fire, promote, discipline, adjust employee griev- ances, and his nonattendance to management meet- ings, the judge ignores that Wilson did not exercise this authority even when he was the night manag- er. Consequently, his continued lack of authority in these areas is not necessarily indicative of a loss of supervisory status. Moreover, the Respondent's statements that Wilson would no longer be "in charge," or that he was no longer the manager, are inconclusive and cannot be construed as reflecting the Respondent's clear intention to strip Wilson of his supervisory authority, especially when the Re- spondent also stated Wilson was still considered a supervisor by management and where the evidence indicates Wilson continued to receive the same salary and exercise supervisory authority. In view of the above, I would find that Wilson was a super- visor at the time of his dismissal and therefore the Respondent's discharge of Wilson did not violate Section 8(a)(3) of the Act.3 Further, I find that the remaining unfair labor practices committed by the Respondent are not of such a nature or magnitude to warrant the issuance of a bargaining order. The majority of the 8(a)(1) violations were directed at Wilson, and at Rick Rariden and Mike Zuber, both of whom hold posi- tions analogous to that of leadmen and could argu- ably even be considered supervisors. Conduct di- rected at individuals whom the rank and file may perceive as holding positions of authority cannot, in my view, have the same coercive impact on the unit as acts directed at the rank-and-file employees. Further, the unlawful conduct was not directed at a small unit where the effects of the conduct might have a more lasting effect on the employees. The lingering effects of the 8(a)(1) violations and the denial of wage increases may be dissipated by the Board's issuance of a cease-and-desist order and the posting of its notice specifying to employees the unfair labor practices committed by the Re- spondent and the Respondent's agreement to re- frain from such conduct in the future.4 It is not necessary in this case to resort to the use of the Board's extraordinary remedies when there is no evidence that the employees' free choice would be forever co-opted, thereby making the holding of a fair election impossible. In finding a bargaining order appropriate, neither the judge nor my col- leagues have adequately explained why the Board's traditional remedies would not erase the Respond- ent's unlawful conduct and why a fair election could not be conducted.5 Accordingly, for all the above reasons, I would not grant a bargaining order in the present case. 3 Parker-Robb Chevrolet, 262 NLRB 402 (1982) For the same reasons I do not find that the Respondent's interrogation and surveillance of Wilson constituted violations of the Act 4 Mariposa Press, 273 NLRB 528 (1984) 5 Even assuming Wilson was no longer a supervisor and his discharge was unlawful, it is unlikely that his discharge would affect employees in their decision regarding union representation Rather, the employees would , given the nature of his duties and responsibilities , still view Wilson as part of management His discharge, therefore, should not be a significant factor in determining whether a bargaining order is warranted. Dorothy D. Wilson, Esq., for the General Counsel. Robert H. Brown and Thomas O. Magan, Esqs. (Kahn, Dees, Donovan & Kahn), of Evansville, Indiana, for the Respondent. Jairus M. Gilden, Esq. (Karmel & Rosenfeld), of Chicago, Illinois, for the Charging Party. 2 Although the judge found that Wilson's position was equivalent to that of Rick Rariden and Mike Zuber, whom the Respondent alleges are supervisors, the record does not clearly establish, as it does with Wilson, that Rariden and Zuber are supervisors Unlike Wilson , neither Rartden nor Zuber ever occupied a concededly supervisory position, their salary was significantly lower than Wilson 's, and they did not exercise many of the supervisory functions Wilson performed even after his reassignment DECISION KARL H. BUSCHMANN, Administrative Law Judge. These cases were tried in Olney, Illinois, on 3, 4, and 5 June 1985. The charges were filed by the Union on 24 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD October (amended on 26 October) in Case 14-CA-17697 and on 3 April 1985 in Case 14-CA-17915. The consoli- dated complaint issued on 26 April 1985. The primary issues are whether the Respondent (a) unlawfully interro- gated, threatened, or otherwise coerced employees during the Union's organizational drive, (b) discrimina- torily discharged the employee organizer, and (c) unlaw- fully refused to bargain while preventing a fair election, necessitating a bargaining order, in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel, the Company, and the Union, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, Don's Olney Foods, Inc. d/b/a Olney IGA Foodliner, is a Missouri corporation located in Olney, Illinois, where it operates a grocery store. The store is owned by Don and Carletta Jones and sells typi- cal grocery items, including frozen food, dairy, meat, and produce items, as well as bakery and deli products. The Company is admittedly an employer within the meaning of Section 2(6) and (7) of the Act. In charge of the Company's day-to-day operation was Bill Zuber, the store manager. The store's labor force consisted of approximately 43 employees, which included a computer manager, day and night managers, managers for various departments, as well as approximately 11 "carryouts," 16 checkers, 4 bakery or deli clerks, a head checker, and a bookkeeper. The issues in this case arose after employee Joe Wilson was reassigned in his duties as the night manager. On 13 September, Bill Zuber, the store manager, told Wilson that he had been "loafing" and informed him that he had hired a new employee as the night manager and that Wilson would henceforth be working during the day shift and that he would no longer be "in charge," except every third Saturday night. Wilson promptly contacted several unions, including the United Food and Commercial Workers. On 10 Octo- ber he met with Jim Newman, business agent for Local 550-R of the United Food and Commercial Workers. Wilson signed a union organizational card and had 25 cards signed by his fellow workers by 16 October. By letter of 17 October 1985, the Union notified Respondent that it represented a majority of the employees and that it requested recognition as their bargaining representa- tive. By letter of 23 October, Respondent refused the Union's requests for recognition. During this time, Respondent committed, according to the complaint, numerous violations of the Act, including engaging in unlawful threats of its employees, coercive interrogations, denial of wage increases, the discriminato- ry discharge of Joe Wilson, and a refusal to bargain. Based on these violations, it is the General Counsel's position that a bargaining order is necessary to erase Re- spondent's conduct and to ensure a fair election. A reso- lution of these issues presupposes a determination on the supervisory status of several principals in this case. II. SUPERVISORY STATUS The Respondent has denied the allegation that Joe Wilson, the discriminatee, was an employee at the time of his discharge and alleges that Wilson was a supervi- sor. The supervisory status of other employees, notably Deb Millman, Tom Gillespie, Rick Rariden, and Mike Zuber are also in dispute . Supervisors are usually not permitted to join the bargaining unit, nor generally enti- tled to the protection of Section 7 of the Act when they engage in union activities ; moreover, threats, interroga- tions, and other coercive conduct violate the Act only if such conduct was committed by a supervisor or an agent of the Respondent. Section 2(11) of the Act defines a "supervisor" as: . .. any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or disci- pline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Only one of the criteria mentioned in Section 2(11) need be present to justify a finding that the questioned occupation is supervisory. Arby's v. NLRB, 640 F.2d 893 (7th Cir. 1981). However, "[i]t was the intent of Con- gress to distinguish between minor supervisory employ- ees, on the one hand, and the supervisor vested with .. . genuine management prerogatives?" C & W Super Mar- kets v. NLRB, 581 F.2d 618, 662 (7th Cir. 1978), citing S. Rep. No. 105, 60th Cong ., 1st Sess. 4 (1947); NLRB v. Security Guard Service, 384 F.2d 143, 147 (5th Cir. 1967). Therefore, a supervisor is not an employee who merely had "greater responsibilities than their fellow employees ... and some additional duties." NLRB v. Merchants Police, 313 F.2d 310, 312 (7th Cir. 1963); NLRB v. Flori- da Steel Corp., 544 F.2d 896, 897 (5th Cir. 1977). "This section is designed to apply to supervisors with genuine management prerogatives as distinguished from 'straw bosses, leadman, set-up men, and other minor superviso- ry employees."' Ross Porta-Plant v. NLRB, 404 F.2d 1180, 1182 (5th Cir. 1969). Section 2(11) does not require the exercise of power described "for all or any definite part" of the employee's time, but it must be more than "sporadic or insignifi- cant," and it requires "the exercise of some degree of in- dependent judgment." Arby's v. NLRB, supra; Aladdin Hotel, 270 NLRB 838, 840 (1984). Board decisions that address this issue involving gro- cery store employees are of particular relevance. In C & W Super Markets v. NLRB, 581 F.2d 618 supra, the court upheld the Board's finding that three employees who were primarily stockers and who rotated as "night man- agers" were not supervisors even though they had power to assign employees to specific tasks. In reaching its con- clusion the court relied on the limited amount of inde- pendent judgment required of the employees. In Park- wood IGA Foodliner, 210 NLRB 349 (1974), the Sunday OLNEY IGA FOODLINER 745 afternoon store manager, who worked as store manager on Sundays with duties to make out work lists, with the responsibility for getting the work done, cashing checks, and seeing that the store was secure when he left, was held not to be a supervisor because his responsibilities were of a routine nature and did not involve the exercise of independent judgment. The produce manager, howev- er, who was in complete charge of the produce depart- ment and who was assisted by a part-time employee, was a supervisor. Similarly, in Quik-Pik Food Stores, 252 NLRB 506, 509 (1980), and Town & Country Supermar- kets, 244 NLRB 303, 308 (1979), the "assistant manager" with responsibility for store operations did not fall within the definition of Section 2(11) because his authority as assistant manager was of a routine nature and did not re- quire the exercise of independent judgment. The supervisory hierarchy at Respondent's operation consisted of Store Manager Bill Zuber, followed by Computer Manager Ed Millman, Day Manager Dave Bunting, and a night manager. Joe: Wilson had been the night manager until 17 September when Bob Malone was hired for that position. Wilson was demoted at that time to the day shift and essentially assumed the position of Brent Pampe who had left Respondent's employ. In that capacity Wilson, like Mike Zuber and Rick Rariden, was classified as a "carryout" with the added responsibility of being "in charge" every third Saturday night. Respond- ent also employed heads or managers of its bakery, deli, produce, frozen food-dairy, and meat departments. The supervisory status of Bill Zuber, Ed Millman, Dave Bunting, and Bob Malone is clear and needs no elaboration. With respect to Tom Gillespie, Joe Wilson, Rick Rariden, and Mike Zuber, the record shows that, with the exception of Gillespie, they did not fall within the definition of Section 2(11) of the Act. Joe Wilson: Wilson's discharge occurred in October. His status at that time is, therefore, relevant, and not his status as the night manager prior to his reassignment on 17 September; nor is it necessary to analyze his status while he temporarily acted as manager of the day shift during the week of 17 through 22 September, when Day Manager Bunting trained Malone for his night manager assignment . On 21 September, Zuber informed Wilson that he was no longer in charge except every third Sat- urday, and that his position was below that of the day and night managers. The record further shows that Wil- son's job change amounted to a demotion. Zuber, in his testimony, omitted any reference to Wilson's "loafing," but Wilson credibly testified that Zuber accused him of loafing when he was informed of the job change. In his capacity as a carryout on the day shift, Wilson possessed none of the enumerated indicia of a supervisor; he had no authority to hire, fire, promote, discipline, adjust the employees' grievances, or effectively recommend any such action. The only indicia that he may have possessed every third Saturday night when he was "in charge" was to assign other employees. In all other respects Wilson worked as an employee who performed some added re- sponsibilities. Wilson described his normal duties as fol- lows (Tr. 35-36): Okay, I'd stock-I'd stock shelves or I'd carry out. That was basically it, stocking and carry out... . Yes, I did check. I was supposed to help out wher- ever I could. Additional duties occasionally included checking in vendors, approving checks of customers, and giving money to checkers. But Wilson lacked the authority to write checks. He was also in charge of the keys to the soda cases and had access to the keys for the cash regis- ter. The keys were necessary for a cashier to correct mistakes. Wilson did not punch the timeclock and was the highest available employee every third Saturday night. During that time, however, he had no authority to hire, fire, discipline, or interview employees; he had no power to schedule employees or transfer them from one department to another or effectively recommend them for pay raises or for any personnel action. His work on Saturday night when he "managed" the store with usual- ly three employees present consisted of cleaning the inside of the produce and the meat department cases, taking down the ads, and also assigning the employees to take their breaks. Whenever a problem arose, he was ex- pected to call Bill Zuber or Ed Millman. Wilson did not attend management meetings, which were held every Thursday and attended by Zuber, Millman, and the de- partment heads. Although Respondent claims that Wilson was in total charge of the store in the absence of Night Manager Malone or Day Manager Bunting, the record shows that such authority was exercised only every third Saturday or during the temporary absence of the manager, and that such authority consisted of checking in vendors, re- sponding to cash register calls for managers, authorizing payments and receiving credits to the store's account, and assigning work to employees. It is clear, however, that these duties, save the authority to make assignments, do not rise to the level of supervisory indicia, they are merely extra duties that a leadman may possess. For ex- ample, the task of checking in vendors consisted of no more than watching or counting the products being de- livered and paying the vendor. Similarly, the control of the key to the cash register involved the unlocking of the checker's machine enabling the cashier to correct any mistakes. Nevertheless, Respondent claims that Wilson possessed supervisory indicia, including the au- thority to handle disciplinary problems, enforce breaks, suspend employees, and ensure that employees did their jobs properly. Yet, the record shows that Wilson did not perceive himself to be a supervisor, nor was he per- ceived as such by his fellow employees or by Bill Zuber, the store manager. For example, on occasions when em- ployees came up to Wilson for instructions, he simply re- ferred them to Dave Bunting, and told them that he could no longer assign breaks or participate in manage- ment decisions. Other employees, like Thomas Gillespie, Shawn Heindselman, Judy Crask, Kerry Travis, and David Harrison, all testified that Wilson no longer made assignments or exercised any managerial authority. Indeed, Bill Zuber's statements to several employees in- dicated that he did not regard Wilson as part of Re- spondent's management team. For example, Rariden 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD overheard Bill Zuber telling Dave Bunting that "Dave was the manager and he wasn't supposed to take any static from Joe because Joe wasn't the manager, that Dave was the manager and not to put up with anything from Joe." A similar instance occurred when Wilson had asked employee Bob Ochs to make a bale of boxes. Zuber told Ochs that he was "supposed to ask the man- ager what to do and he's not here." Wilson's "managerial" duties on Saturday nights were routine and limited so as not to require any independent judgment. The three employees were familiar with their duties.' The night manager usually left instructions for specific assignments. Seniority determined whether one or both of the two checkers would work on the register. A checker decided when an additional checker was needed and then signaled a carryout, usually the more senior one. The other tasks on Saturday nights, such as cleaning and filling the dairy case, sweeping the floors and cleaning the meat and produce cases, as well as the moving of stock in the stockroom, are also regular and usual assignments with which the employees are familiar and which are performed without the necessity of direc- tions by a supervisor. Indeed, Wilson actively participat- ed in the performance of these duties. When acting as the Saturday night manager, Wilson told one or two of the three employees when it was time for their break. Because that decision is based on the hours the particular employee had worked, it did not require an exercise of independent judgment. Respondent's basic argument, that Wilson was not de- moted in the reassignment from his night manager's posi- tion to the day shift and that, in any case, Wilson pos- sessed sufficient indicia of supervisory authority every third Saturday night, is not persuasive. Wilson, by most accounts, had no supervisory authority during the day when Bunting was the day manager or, when in his ab- sence, Zuber or Millman was available. Zuber's state- ment to Wilson that he was "to help out any way" that he could, such as answering cashier's calls, is not neces- sarily an indication of supervisory status. And Zuber's remark that he was still a manager is at odds with Zuber's other statements made to Wilson and the em- ployees. Other factors cited by Respondent, namely, that Wilson's pay was as high as that of some managers, or that Wilson did not punch the timeclock, that he re- ceived medical insurance and participated in the pension plan, are in this case not persuasive.2 A survey of the pay of all employees, for example, indicates that the em- ployees' length of service was of prime consideration and that an employee's rate of pay was not an indication of supervision. Mike Zuber, who Respondent claims was a supervisor, received less pay than most of the employees who worked supposedly under Zuber's direction. Final- ly, if Wilson were regarded as a supervisor, as well as employees of similar status such as Rariden or Mike Zuber, it would render the supervisor-to-employee ratio ' According to Wilson's testimony, there could be as many as 12 em- ployees present in the initial hours of the evening shift on Saturday night 2 Deb Millman testified that Wilson possessed certain indicia of super- vision, but she could name no specific examples Her testimony in this regard, which was vague and at times contradictory, was not convincing and cannot be credited extraordinarily high. It would at certain random times take as many as five supervisors to supervise six employ- ees. Courts "have had several occasions to consider the status of employees who, while otherwise serving as or- dinary workers, are occasionally called upon to take charge of others during the absence of a superior." Fall River Savings Bank v. NLRB, 649 F.2d 50, 54 (1st Cir. 1981). In that case, the court found an assistant branch manager of a bank not to be a supervisor even though he was at times the highest ranking person at the branch, who received higher pay, who possessed the branch and computer keys and had power to approve check- cashing, and who assigned cashiers to their windows and at iso- lated instances disciplined and directed employees. The record shows that Wilson, at the time of his dis- charge, was an ordinary employee whose supervisory au- thority extended at most to making assignments of em- ployees in the absence of the day or night manager and whose authority in this regard required the exercise of independent judgment, if at all, only sporadically and in- frequently. On the basis of the foregoing summary of record evi- dence, as well as additional factors discussed by the Gen- eral Counsel and the Charging Party, I find that Section 2(11) of the Act does not apply to Joe Wilson. Mike Zuber and Rick Rariden: These employees were classified as carryouts or stockers with managerial "duties every third Saturday night." Their jobs were similar in most respects to that of Joe Wilson. The pre- ceding discussion is accordingly applicable with respect to them. Rariden was a full-time employee who, like Wilson, did not punch a timeclock, while Zuber was a part-time employee who punched a timeclock. Their duties consisted of unloading trucks, stocking shelves, and carrying out groceries. Each of them rotated with Joe Wilson in being "in charge" every third Saturday night. Mike Zuber who worked evenings was also left in charge for an hour each evening when the night manag- er went on a break. Rariden worked on the day shift. He was seldom, if ever, in charge during the day manager's break, because Millman or Store Manager Zuber would be present. Neither Rariden nor Zuber received any pay increase when they were assigned to the Saturday night "management" duties. During their regular working hours they never exercised any supervisory functions. When they were in charge, as for example every third Saturday night, they would make job assignments, fill the shelves, clean floors and cases, set up the registers, and close the store. However, the job assignments, as de- scribed above, were perfunctory, since the employees during such evenings were familiar with the routine and knew their assignment . When problems arose, as for ex- ample, a register would malfunction or the door to the store would not close, they called Bill Zuber. In case of an employee's disciplinary problem, they were instructed to clock out the employee and have him report to Bill Zuber on Monday morning. Respondent's argument that Mike Zuber and Rariden were supervisors since they spend a substantial portion of their working time in charge of the store as the highest company officials OLNEY IGA FOODLINER 747 would ignore their actual authority and duties. Their sole semblance of supervisory indicia was the duty to assign. That authority, however, was so circumscribed and lim- ited in scope that any exercise of independent judgment on their part would be sporadic and infrequent. Accord- ingly, I find that Section 2(11) was not applicable to them. Tom Gillespie: This employee was the frozen food and dairy manager. He had a part-time assistant on Wednes- days. Gillespie's duties consisted of ordering and stock- ing all frozen food and dairy items. Most of the supply was ordered from the warehouse, but Gillespie has placed orders on occasion with other suppliers. He deter- mined the prices of the products in his department such as eggs by adding the normal markup. He independently decided whether a certain item that was a slow seller should be advertised as a sales item for the following week. He participated in the weekly department head meetings conducted by Store Manager Zuber. Because Gillespie served as the permanent manager of the frozen food and dairy department who exercised considerable discretion in his job and who regularly supervised a part- time assistant, I find that Gillespie was a supervisor within the meaning of Section 2(11) of the Act. Park- wood IGA Foodliner, 210 NLRB 349, 350 (1974). Deb Millman. The complaint alleges and Respondent denies that Deb Millman, Respondent's head checker, was an agent of Respondent within the meaning of Sec- tion 2(13) of the Act. Deb Millman was the wife of Computer Manager Ed Millman, the second in command at the store. The record shows that she openly exercised wide discretion at the store. She placed orders for candy, nut, and cigarette products. She testified that she regular- ly assigned breaks to the checkers, that she balanced the checkers' register accounts with the cash, and that she took care of the employees' timecards She also worked at a cash register, but spent almost half of her time in the manager's office. The employees knew that Millman and her husband socialized with Store Manager Zuber and his wife. Testimony also indicates that Millman was per- ceived by the checkers as a mother figure. Considering all the circumstances, it is clear that the employees, cer- tainly those employed as checkers, considered her to be an agent of management who spoke and acted on behalf of Respondent. III. INDEPENDENT 8(A) (i) CONDUCT The complaint's first allegation of misconduct con- cerned a conversation between Store Owner Carletta Jones and Tom Gillespie. Because Gillespie has been found to be a supervisor within the meaning of Section 2(11) of the Act, this allegation should be dismissed. With respect to the second allegation in the complaint (par. 5B), the record shows that at 9 a.m. on 18 October, Bill Zuber, in the presence of Store Owner Carletta Jones, reminded Wilson that he was still considered a su- pervisor and "that he heard that there's union talk in the store . . . that the union was prohibited." Zuber asked Wilson whether he had heard any union talk in the store and whether the Union had contacted him. Wilson denied that he had heard any union talk or that he was contacted. Zuber finally told him that he had known about the Union for some time and that it must not be very strong. This conversation occurred in the manager's office, in the presence of the store owner, and the interrogation was conducted by the highest management official. Wilson obviously showed his apprehension by denying any knowledge of the Union. Under these circumstances, it is clear that the interrogation did not occur as a result of a casual encounter or in a friendly atmosphere. To the contrary, such questioning in the middle of the union campaign was clearly coercive. Rossmore House, 269 NLRB 1176 (1984); Superior Container, 276 NLRB 521 (1985); Southwire Co., 277 NLRB 377 (1985). Simultane- ous with the interrogation Zuber also insinuated that he knew all about the Union's activity on the premises. Such observations have an additional intimidating influ- ence on an employee who has chosen to exercise his rights guaranteed him by Section 7 of the Act. Zuber's conduct conveyed the impression that the Union's activi- ties were under surveillance by management. Zuber's reminder to Wilson that he was still consid- ered a supervisor did not by any means indicate Zuber's good-faith belief that Wilson was indeed a supervisor, particularly where, as here, Zuber had made statements to the contrary to other employees and was fully familiar with Wilson's reassignment. I therefore find that Re- spondent violated Section 8(a)(1) of the Act. Paragraph 5C of the complaint alleges that Respond- ent made threats to employees and engaged in unlawful interrogation during a conversation on 18 October. The record shows that Deb Millman had asked three employ- ees, Angela Luster, Shawn Heindselman, and Beulah Prosser, to come to her home that evening to discuss the Union because she, in her words, "wanted to tell them the other side of the story" (Tr. 385). Ed Millman, Re- spondent's computer manager, was also present. Accord- ing to Heindselman's testimony, the following was said (Tr. 284): A. We walked in-we were all four sitting-or five sitting there and Deb said something like the reason I asked you guys over here I was wanting to talk to you about what's being going on at the store that . . . there's a union trying to come in and she thought that Joe was the one who was trying to start it or the head of it. And then we got to talking about the union and stuff and-and they asked me if I'd signed a card. And I didn't want to let them know how I felt at the time and so I said no. And some other things were said about insurance that Deb said that-that the people had insurance if the union came through that Carletta would probably drop it. And then-then there was talk about pay, like if the union came through that it probably wouldn't be more than it is now but it'd probably be-be less. Q. Who said that? A. Ed. And then there was something said about pink slips . . . that if the union tried to come through that it would be a lot stricter that-like if we were late or something they could write up 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD these pink slips and if we had three they would fire us or get rid of us. Q. Who said that? A. Ed. And then there was talk about if we-if we went ahead and we got enough people for an election and stuff and they had it, that Don and Carletta would know how we voted cause we'd have to sign our name on the ballot. And they'd also know that we signed cards somehow and, let's see- Q. Who said that about knowing how you voted? A. Ed. In her testimony, Deb Millman denied that she or her husband interrogated the employees whether they had signed a card, but she did not deny talking about what effect the Union might have on the employees' wages and insurance, nor that management might know how the employees voted. Ed Millman similarly testified that he talked to the employees about the Union, that he mentioned the possibility of the closing of a store be- cause of the Union, and that he told them that the Com- pany might find out who signed a union card. Generally, however, Ed Millman testified that he could not recall specifically what he said. Deb Millman's testimony im- pressed me as vague and imprecise, while Ed Millman's testimony indicated a lack of recall. Because Heindsel- man's testimony appeared candid and was, for the most part, uncontradicted, I have credited her version of the event. The record, therefore, supports the allegation that Deb Millman threatened the employees with a loss of in- surance benefits because of the Union, that Ed Millman threatened them with less pay, with stricter working conditions (the issuance of pink slips), and with the Com- pany's knowledge of which employees had signed union cards. Although the conversation occurred at a private home, rather than at the place of employment, it is clear that the meeting was specifically arranged to discuss the Union. The employees appeared restrained when they re- sponded to Millman's question, whether they had signed a union card. Deb Millman, an agent of management, was assisted by Ed Millman, the second highest execu- tive; they were in control of the meeting. Under these circumstances, it is clear that Respondent violated Sec- tion 8(a)(1) of the Act by threatening the employees with the loss of benefits, more onerous working conditions, and less pay. Moreover, in the context of other unlawful conduct, Millman's statement, that management might know who signed the union cards and how they voted, carried the implication that harm or retaliation would result from the disclosure of that information. J P. Ste- vens & Co. v. NLRB, 638 F.2d 676, 686 (4th Cir. 1980), enfg. 245 NLRB 198 (1979); NLRB v. Finesilver Mfg. Co., 400 F.2d 644, 646 (5th Cir. 1968); Southwire Co., 277 NLRB 377 (1985). The record is unclear as to whether Deb Millman en- gaged in any unlawful interrogation as alleged in the complaint. I therefore find that this aspect of the com- plaint was not substantiated. The complaint in paragraph 5D alleges that Store Manager Zuber made certain threats to the employees on 19 October 1984. On that date, Deb Millman called Heindselman to the office about 2 p.m. They were joined by Prosser who wanted to talk to Bill Zuber and find out how the employees could get rid of the Union. Em- ployee Heindselman credibly testified about the ensuing conversation. Zuber stated that "if the union came through it'd be stricter," and that if the employees were late for work, they could get pink slips and after three pink slips they could get fired. Zuber, referring to an- other store, stated that he heard that the store closed down because of picketing, then reopened under a new name and all the employees were fired. Zuber then stated that the same thing could occur in this store. Zuber's statements constitute threats to the employees that the store might close, that the employees would lose their jobs, and that working conditions would become more onerous as a result of the employees' union activi- ties. Such conduct violates Section 8(a)(1) of the Act. Paragraph 5E of the complaint relates to a conversa- tion between Store Manager Bill Zuber and employee Mike Zuber (his nephew). On 19 October at 3 p.m. Bill Zuber called Mike to his office and told him "that he had heard a lot of talk going around about a union and he said that he knew that [Mike] was involved in it" and that he "was one of the main guys pushing it" (Tr. 202). Zuber told him that store policy was nonunion and being for the Union was being disloyal to the store. He asked Mike if someone from the store had talked to him about the Union and who it was. Zuber also stated that Mike ,.was on the fence post and that . . . there was big storm coming up" and how "[he] had better stay clear of it." Zuber, referring to Wilson's discharge, said that it was the first part of the big storm. Respondent argues that Mike Zuber's testimony was not credible and that , in any case, he was a supervisoe. I found his testimony candid and forthright and have no reason to discredit it, particularly because Store Manager Zuber did not specifically deny making the statements. Even though Zuber's conversation with Mike may have been intended as friendly advice between uncle and nephew, the setting and the tenor of the conversation suggest that it was part of a pattern of management's ef- forts to dissuade the employees from their union support by unlawful means. In no uncertain terms, Zuber threat- ened his nephew with the loss of his fob and conveyed the impression that the employees' union activities were under surveillance. In addition, Zuber interrogated him about the Union to the point where Mike finally refused to respond. Such conduct violates Section 8(a)(1) of the Act. In paragraph 5F of the complaint Respondent is ac- cused of making a threat in connection with Joe Wilson's discharge. Wilson's uncontradicted testimony shows that Zuber summoned Wilson to the office on 19 October where, in the presence of Carletta Jones, Zuber informed him he was dismissed for disloyalty to the store. The statement conveyed the impression that Wilson's dis- charge was the direct result of his union activity and is therefore an unlawful threat under Section 8(a)(1) of the Act. OLNEY IGA FOODLINER 749 A conversation on 20 October between Bill Zuber and employee Rick Rariden is the subject of paragraph 5G of the complaint. Rariden testified as follows about that event (Tr. 178): A. He-well, he called me in there and he said something about I've heard--I guess you've heard about Joe. I said yeah. He said he was released last night He said it's been a long time coming but it didn't have anything to do with the union. And he said but-he said something about but, you know, the store's supposed to be against the union and that's-you know, and we're supposed to be against it so if you have anything to do with it, you know, you can be in trouble for it. And then he said what Joe did was mutinous to the store and he said but I just wanted to tell you, you know, you still have a job and you're doing a good job. I said okay and left. Zuber's statement to Rariden ostensibly exempted the Union as a reason for Wilson's discharge. But the re- marks, taken as a whole, impliedly threatened Rariden with possible discharge if he engaged in mutinous or dis- loyal conduct towards the store that is opposed to the Union. Such threats, no matter how veiled, nevertheless violate Section 8(a)(1) of the Act. Paragraph 5H of the complaint alleges unlawful inter- rogation . Bob Malone, the night manager, talked to Mike Zuber on 26 October in the stockroom and, as recalled by Zuber, asked "what all this about the union was . . . who was for it and who was against it because . . . if he went over to someone's house that if they were for it that he could get into trouble" (Tr. 208). Malone later told him that he had been totally honest with him and demanded to know what Mike Zuber thought about the Union. Zuber also testified that Malone "kind of pressed" for an answer. Zuber refused to disclose any in- formation and said that he was told not to discuss the matter. Contrary to Respondent's argument, I find Ma- lone's questioning coercive and violative of Section 8(a)(1) of the Act. The next allegation in the complaint (par. 51) involves Store Owner Carletta Jones. Employee Bob Ochs ap- proached Jones in November and told her that she needed surgery and wanted to know whether the em- ployees would be able to get insurance . Jones replied that Respondent would not do anything to help out any one, because of the Union. Ochs subsequently relayed Jones' remark to other employees. Jones' remark is capable of a lawful interrogation, i.e., that the Company is unwilling or unable to grant benefits to the employees during the union campaign unless such benefits had been granted in the normal course of the employer's business, just as it would have done had the Union not been on the scene. I, therefore, dismiss this aspect of the complaint. The evidence relating to paragraph 5J of the com- plaint is similar to the previous incident. The record shows that employees Tammy and Mike Zuber asked Bill Zuber whether they could get insurance. Zuber gave a reply to the effect that, with everything, that was going on with the Union, he could not hire, fire, give raises, or do special favors for anybody until this was all over. The General Counsel argues that Zuber's remarks were un- lawful because it gave the impression that Respondent imposed harsher working conditions because of the Union. I find, in agreement with Respondent's argument, that Zuber's remark did not necessarily give that impres- sion to the employees and did not violate Section 8(a(l) of the Act. The final independent 8(a)(1) allegation in the com- plaint charges that Respondent implied unlawful surveil- lance to the employees. The General Counsel relies on statements made by Bill Zuber to Mike on 24 November that several people had reported to him that Mike Zuber was pushing for the Union, that he heard that Joe Wilson and Mike Zuber jumped up and down in the glass aisle talking and laughing, and that he knew what went on in the store and when all this was over he was going to make a documentary of it. One of these statements, Mike pushing the Union, was similar to a remark covered by a previous allegation in the complaint. The other statements were of a humorous nature and, in any case, not sufficiently clear to imply that the union activities were under surveillance. I also dismiss this allegation. IV. THE DISCHARGE OF JOE WILSON Respondent admits that Joe Wilson was discharged for his disloyalty to the store, but Respondent challenges the allegation of a discriminatory discharge with the argu- ment that Wilson was a supervisor. As already discussed, Wilson was not a supervisor. He was, however, the prin- cipal union advocate who initially contacted the Union, signed the first union card, campaigned among his fellow workers on behalf of the Union, and obtained their signa- tures on more than 20 cards. Zuber's statements to Wilson and to the other employ- ees were unequivocal that the Respondent discharged Joe Wilson because of his union activity. Considering Respondent's union animus that was repeatedly expressed by Store Manager Zuber as well as the numerous 8(a)(1) violations and the timing of the discharge, there is no doubt that "disloyalty to the store" meant union sympa- thy. It is accordingly clear that Respondent's dischar€ of Wilson because of his union activity violated Section 8(a)(3) and (1) of the Act. V. THE BARGAINING ORDER A stipulation between the parties established the fol- lowing bargaining unit (Tr. 92): All full-time and regular part-time employees em- ployed by Respondent at its Olney, Illinois facility, Excluding all meat department employees, office clerical and professional employees, guards and su- pervisors as defined in the Act. The parties further stipulated the inclusion of 30- named employees in that unit (Jt. Exh. 1); 20 of them signed union authorization cards. A total of 25 cards were signed . Disputed is the status of approximately 10 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees, including the following 5 who signed a card: Joe Wilson, Mike Zuber, Rick Rariden, Tom Gillespie, and Norma Grove; and 5 who did not sign a card. Leroy Harrison, Helen Beam, Mary Beth Zuber, Deb Millman, and Alta Bratton. The basis of the dispute is simply whether these employees were supervisors or agents of Respondent. On the basis of the preceding discussion, it can be established that the following employees who signed a card should have been included in the unit be- cause they were employees without supervisory or agency status: Joe Wilson, Mike Zuber, and Rick Rari- den. But the card of Tom Gillespie should not have been included. Of the employees who did not sign a card, it is also clear that Deb Millman was properly excluded, but that Mary Beth Zuber should have been included, even though she was Bill Zuber's daughter. This would raise the number of employees in the unit to 34, of whom 23 signed a card. The status of the remaining four employ- ees is not clear on the record and, in any case, not neces- sary to establish that the Union had a clear majority of the employees. The union cards, all of which had been properly exe- cuted, are contained in the record, and the evidence shows that they were properly solicited by Joe Wilson. Indeed, the record contains no support for the exclusion of any of the cards. Respondent's contention that all cards are tainted because of Joe Wilson' s status as a su- pervisor is not persuasive in view of the resolution of that issue in the preceding section. The General Counsel's next argument is that a bar- gaining order is appropriate because the record estab- lished numerous 8(a)(1) violations as well as a flagrant violation of Section 8(a)(3) and (1) and a clear majority of the employees for the Union. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Significant to this consideration is that on 16 October a large majority of the employees in the unit had signed authorization cards and that by letter of 17 October, the Union made an unequivocal demand for recognition on behalf of the employees. The Respondent refused the Union's request by letter, dated 23 October, and has not bargained with the Union. Instead, Respondent promptly met the employees' union campaign with a calculated effort to undermine their union sympathy and to dissuade them from their union support by discharging the princi- pal union activist, by threatening its employees because of the Union, by interrogating them, by creating the im- pression of surveillance, and by statements that the Em- ployer would know how the employees voted. Threats to impose more onerous working conditions, threats of loss of jobs, threats of lower insurance benefits and lower pay, and threats of store closure are among the most severe violations of Section 8(a)(1) of the Act. Aside from such misconduct as interrogating the employ- ees and creating the impression of surveillance, Respond- ent's statements that it would find out how the employ- ees voted in an election may particularly have had an in- timidating and long-lasting effect. Respondent's conduct in this case was egregious, flagrant, and sufficiently per- vasive to justify a bargaining order. Vinyl-Fab Industries, 265 NLRB 1097 (1983). Respondent's bargaining obliga- tion dates back to 18 October when it committed its first violation of the Act that coincided with Respondent's re- ceipt of the Union's letter demanding recognition. VI. DENIAL OF WAGE INCREASE The complaint finally alleges as violations of Section 8(a)(1), (3), and (5) of the Act that the Respondent failed to give the employees a wage increase despite past prac- tice. In this regard, the record shows that the Respondent has granted its employees certain wage increases, in Jan- uary or February and in June or July of every year (G.C. Exh. 12). The employees last received such a pay raise in January and July 1984. The amount of raises ranged generally from 10 cents to over 30 cents an hour. The only employees omitted from such biannual raises were those whose employment status had changed. Re- spondent admitted that it had not given any pay raises in 1985 and attempted to explain its failure to grant such a raise in January 1985, stating that Zuber had intended to grant raises on an individual basis every 6 months, but had not reached a decision on the amounts. Zuber testi- fied that he intended "to talk with each individual on an individual basis and at the end of each six months [he] would either give raises or would not" (Tr. 558). Zuber further testified that he had started the process, but was under the impression that he could not talk to the indi- vidual employees because of the pending union cam- paign. Relying on case law, Respondent argues that in "the absence of a provable pattern of the amount or time of an increase" and because "Respondent could not desig- nate any particular date or amount for a wage increase that could be definitively shown as that which would have occurred absent the campaign," it was under no duty to grant such raises. But here, the record clearly shows a pattern of increases, i.e., every January and every July of the year, raises were routinely granted ranging from 10 cents to about 40 cents an hour to each employee. Because of the Union, Respondent failed to do so in 1985. The law is clear, an employer has a legal duty during a union campaign to proceed with the grant- ing of benefits that could otherwise have been granted to employees in the normal course of the employer's busi- ness, just as it would have done had the union not been on the scene. Kut Rate Kid & Shop Kwik, 246 NLRB 106 (1979). Schnadig Corp., 265 NLRB 147 (1982). Respond- ent's corresponding failure to notify and bargain with the Union about its unilateral changes also violated Section 8(a)(5) of the Act. Accordingly, I find that Respondent violated Section 8(a)(1), (3), and (5) of the Act, as al- leged in the complaint. CONCLUSIONS OF LAW 1. By discriminatorily discharging Joe Wilson because of his support of the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By coercively interrogating employees, the Compa- ny violated Section 8(a)(1). OLNEY IGA FOODLINER 3. By threatening employees with a loss of benefits, loss of jobs, store closure, more onerous working condi- tions, less pay, and with the Company's knowledge who signed union cards and how the employees voted, Re- spondent violated Section 8(a)(1). 4. By creating the impression that the employees' union activities were under surveillance, Respondent vio- lated Section 8(a)(1) of the Act. 5. By refusing to bargain with the Union since 18 Oc- tober 1985, although engaging in a campaign of unfair labor practices to undermine the Union's majority status and impede the election process, the Company violated Section 8(a)(5) and (1). 6. A bargaining order is necessary to remedy the Com- pany's unfair labor practices. 7. By unilaterally refusing to grant pay raises because of the Union, Respondent violated Section 8(a)(1), (3), and (5) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an employee, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, com- puted on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). Having failed to grant pay raises to its employees, Respondent must be ordered to give the employees their ordinary pay raises and make them whole for the loss of such pay raises with interest. Respondent must also be required to recognize the Union and bargain with the Union as the exclusive bar- gaining representative of the employees in the stipulated unit. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Don's Olney Foods, Inc. d/b/a Olney IGA Foodliner, Olney, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting United Food and Commer- cial Workers, Local 550-R or any other union. (b) Coercively interrogating any employee about union support or union activities. (c) Threatening its employees because of the Union. (d) Creating the impression that the employees' union activities are under surveillance. ' If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 751 (e) Refusing, because of the Union, to grant to the em- ployees the pay increases that it otherwise would have given in the ordinary course of business. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: All full-time and regular part-time employees em- ployed by Don's Olney Foods, Inc. d/b/a Olney IGA Foodliner at its Olney, Illinois facility, exclud- ing all meat department employees, office clerical and professional employees, guards, and supervisors as defined in the Act. (b) Offer Joe Wilson immediate and full reinstatement to his former job or, if the job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or any other rights or privileges previously en- joyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision. (c) Grant to the employees the pay raises, plus back- pay with interest, for the loss of pay raises, which the Employer failed to grant because of the Union. (d) Remove from its files any reference to the unlaw- ful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facility in Olney, Illinois, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 4 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 Nation- al 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 " 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. APPENDIX 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 protect- ed concerted activities. WE WILL NOT discharge or otherwise discriminate against any of you for supporting United Food and Com- mercial Workers, Local 450-R or any other union. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT threaten you because of your union support, including threats of loss of benefits, loss of jobs, store closure, more onerous working conditions , less pay, or with the Company's knowledge who signed a union card or how you voted. WE WILL NOT create the impression that your union activities are under surveillance. WE WILL NOT refuse to grant pay raises because of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time employees em- ployed by Olney IGA Foodliner at its Olney, Illi- nois facility, excluding all meat department employ- ees, office clerical and professional employees, guards, and supervisors as defined in the Act. WE WILL offer Joe Wilson immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from the discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the dis- charge will not be used against him in any way. WE WILL grant to the employees the pay raises, plus backpay with interest, for the loss of pay raises, which we failed to grant because of the Union. DON'S OLNEY FOODS, INC. D/B/A OLNEY IGA FOODLINER