Kessel Food Markets, Inc., And Kessel Food Stores, Inc.

426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kessel Food Markets, Inc., and Kessel Food Stores, Inc. and Retail Store Employees Union , Locals 876 and 539, United Food and Commercial Workers International Union, AFL-CIO-CLC. Cases 7-CA-20284, 7-CA-21213, and 7-CA- 21402 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 19 October 1984 Administrative Law Judge Irwin Kaplan issued the attached decision. The Re- spondent, the General Counsel, and the Charging Parties each filed exceptions and supporting briefs.' The Respondent and the Charging Parties filed an- swering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered2 the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and I The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the parties' positions The Respondent's motions to remand for testimony regarding unem- ployment compensation fraud and to correct the transcript, opposed by the General Counsel, are denied 2 The Respondent contends that the Board's consideration of this matter violates the Respondent's due process rights because the Board authorized the General Counsel, under Sec 10(j) of the Act, to seek an injunction against the Respondent in Federal district court We find no merit in this contention The Board's 10(j) procedures do not deny a re- spondent due process Holland Rantos Co, 234 NLRB 726 In 3 (1978), enfd 583 F 2d 100 (3d Cir 1978) a The Respondent and the Charging Parties have excepted to some of the judge's credibility findings 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 In affirming the judge's credibility resolutions, we do not rely on his statement in sec III,B, 1,(a), par 11, of his decision, that employee Rich- ard Haney's reference on cross-examination to the Respondent's counsel as "my attorney" manifested an identification with the Respondent. Nor do we rely on the judge's statement in sec III,B,1,(b), par 17, that Mary Meacham's rhetorical question to Al Kessel, "Do you want the truth or do you want the lie'?" in response to Kessel's inquiry about Greg Ortega, suggested a willingness to be less than forthright We also correct the following errors in the judge's decision In'sec 111,A, 1, par 26, the judge stated it was undisputed that no non- supervisory members of the Meat Cutters Union were hired in the meat department when the Saginaw and Corunna stores opened Although the record establishes that no former Kroger meat employees were hired by Kessel at those locations, it does not show that Kessel hired no members of the Meat Cutters Union Several of the employees Kessel hired into nonsupervisory meat positions had prior meat experience For example, Gerda Duby had been employed as a meat wrapper by another company until I December 1981 The record does not show whether she was a member of the Meat Cutters Union during her prior employment. In ad- dition, employee Richard Haney was hired by Kessel as a supervisor, but was demoted to a nonsupervisory meat position after I day because of a lack of experience Haney's previous employment was with a meat pack- conclusions, as modified, to modify the remedy,4 and to adopt the recommended Order as-modified and set forth in full below. 1. BACKGROUND AND SUMMARY Albert Kessel purchased three Kroger grocery stores in November 1981.5 Two of the stores were located in Saginaw, Michigan, and one in Corunna, Michigan. On 10 or 11 November 1981 Kessel informed Sanford (Sam) Morris, a former Hamady colleague, that he had, the opportunity to purchase three gro- cery stores and offered Morris a partnership. Morris refused the partnership, but offered to help Kessel get the business started. Kessel asked Morris to investigate the availability of store managers. On 12 or 13 November Morris contacted Richard Huffman, a former Hamady comanager, and asked if he would be interested in a position as store man- ager of one of three nonunion retail food stores. On 19 November Huffman accepted the offer to be manager of the Corunna store. On 14 November, the day the Kroger stores closed, Kessel told Morris that the stores he was purchasing were Kroger stores. Kessel told Morris he wanted the stores to be a high service, low price operation that would require a larger work ing company whose employees were represented by the Meat Cutters Union In sec. III,B, 1,(a), par 16, the judge inadvertently stated that the presi- dents of Locals 876 and 539 testified that they had no knowledge of any bribe offers The president of Local 876 did not testify at the hearing In In 33, the judge inadvertently stated that President Al Kessel in- structed Manager Tom Sawyer to offer Bruce Ketcham part-time work, but not his brother Tom Ketcham The record shows that Sawyer was instructed to offer work to Tom Ketcham, but not to his brother Bruce In sec III,B,4, par 13, the judge incorrectly reported the citation to Gerry's IGA, 238 NLRB 1141, 1144-1145, 1151 (1978), enfd 602 F2d 1021 (1st Cir 1979). In fn 41 , the judge erroneously reported the citation to Clinch Valley Clinic Hospital, 213 NLRB 515 (1974), enfd 516 F 2d 996 (4th Cir. 1975) 4 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 1 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) 5 Before purchasing the three Kroger stores, Kessel had been executive vice president, treasurer, and director for Hamady Brothers Food Mar- kets. During his Hamady employment, Kessel had been involved in pur- chasing other Kroger stores on Hamady's behalf In 1980 Kessel recom= mended that Hamady open a package of 21 newly acquired Kroger stores on a nonunion basis and not hire a majority of former Kroger employees to avoid recognizing the Union Hamady officials rejected Kessel's rec- ommendations In early summer 1981 Kroger offered another group of 13 stores, but Hamady was not interested in purchasing these stores Howev- er, Hamady officials expressed some interest in a smaller group of eight stores (two in Saginaw, one in Corunna, and five in Flint) Hamady did not purchase the stores , but in early November 1981 Kessel purchased the Saginaw and Corunna stores for himself When Kroger closed the three stores, Local 539 (the Meat Cutters Union) represented the meat department employees at the Saginaw and Corunna stores Kroger's nonmeat employees were represented by Local 40 (later merged into Local 876) 287 NLRB No. 47 KESSEL FOOD MARKETS force than Kroger had, but with an emphasis on part-time employees. Kessel suggested a ratio of three or four part-time employees to one full-time employee. Kessel told Morris that he planned to operate the stores on a nonunion basis. Kessel final- ized the stores' purchase on 18 November. Interviewing for managerial positions occurred from 19 to 25 November. On 27 November a mass application process for rank-and-file applicants for the Saginaw stores took place. That morning, at a breakfast meeting, Morris told Huffman, the Cor- unna store manager, that Kessel did not want to deal with the Union and directed him to hire less than 50 percent of Kroger personnel. Huffman tes- tified that Morris questioned former Kroger em- ployee applicants about their feelings concerning the Union. Huffman also testified that later on the night of 27 November Kessel told his managerial staff to be careful not to approach hiring 50 per- cent of former Kroger employees. According to Huffman, Kessel stated, "No way in hell did [Kessel] want the fucking Union to have penetra- tion into the stores, because if Kroger could not have survived in that area with Union representa- tion, there's no way Kessel stores could." Huffman also testified that later that night Kessel told him privately to stay under 50 percent of the Kroger work force and under no circumstance should he hire anyone from the Meat Cutters Union. On 30 November applications for the Corunna store were taken at the Michigan Employment Se- curity Commission (MESC) office in Corunna. Interviewing for the Corunna store began 1 or 2 December. According to Huffman, Morris contin- ued to ask former Kroger employee applicants their opinion of the Union. Huffman testified that he told former Kroger employee applicants during interviews that the store would be nonunion. He stated he told two nonmeat employees that he could not hire them because he was close to fulfill- ing the quota of former Kroger personnel.6 According to Huffman, on 7 December, Kessel told him and Bradley Wallen, the Corunna meat manager, that he would not hire anyone from the Meat Cutters Union, despite Wallen's complaints about the inexperience of the meat personnel hired. The Saginaw stores opened 2 December and the Corunna store opened 9 December. A complaint issued 16 March 1982 in Case 7-CA-20284 and a second amended consolidated complaint in Case 7- 6 Other supervisors also told applicants about quotas of Kroger em- ployees. Applicant Bonnie Flathau testified that Supervisor Mary Mea- cham told her not to be disappointed if she was not hired because the Respondent could only hire a certain percentage of former Kroger em- ployees or it would be in trouble with the Union Applicant James McLaren testified that Supervisor Denise Henke told him that the Re- spondent had filled its quota of former Kroger employees. 427 CA-20284 issued 11 August 1982, alleging, inter alia, that Kessel violated Section 8(a)(5), (3), and (1) of the Act by refusing to hire a majority of former Kroger employees to avoid any "successor" obligation to recognize and bargain with the Charging Parties, and violated Section 8(a)(1) by telling former Kroger employee applicants that the Respondent was restricting the number of former Kroger employees hired to avoid recognizing the Union; that it could not hire any more former Kroger employees because it was close to hiring a majority of such employees; and that the Kessel stores would be nonunion. The complaint also al- leged that the Respondent violated Section 8(a)(1) by interrogating applicants about their union sym- pathies. The judge found that the Respondent did not violate Section 8(a)(1) of the Act by informing former Kroger employee applicants that the stores would operate nonunion or by interrogating appli- cants about why they believed the Kroger stores closed. The judge found, however, that the Re- spondent did violate Section 8(a)(1) by telling ap- plicants that they were precluded from employ- ment because a quota or percentage of former Kroger employees had been established to avoid dealing with the Union. The judge also found that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily limiting its hiring of former Kroger employees at the Saginaw and Cor- unna stores.' The judge dismissed the 8(a)(5) and (1) allegation, finding that Kessel was not a succes- sor to Kroger's bargaining obligation at the three Saginaw and Corunna stores and five Flint area stores subsequently purchased by Kessel (see dis- cussion below). We agree with the judge, for the reasons stated in section III,B,3,A of his decision, that the Re- spondent's Saginaw and Corunna hiring practices violated Section 8(a)(3) and (1) of the Act. We also agree with the judge, for the reasons given in sec- tion III,B,2(3) of his decision, that the Respondent violated Section 8(a)(1) of the Act by telling appli- cants at Saginaw and Corunna that they were pre- cluded from employment because of a quota of former Kroger employees. For the reasons stated in section II below, however, we disagree with the judge's conclusion in section III,B,2(1) that the Re- spondent did not violate Section 8(a)(1) of the Act by telling applicants that the stores would operate ' The judge did not extend his finding to former Kroger employees employed at Saginaw and Corunna who did not apply for employment with the Respondent . The judge also found that the 8(a)(3) violation did not extend to Greg Ortega, Susan Tahash, and Ricky Wisner, but did extend to other members of the Ortega family. 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nonunion.8 We agree with the judge that the 8(a)(5) and (1) allegations should be dismissed, but, for the reasons stated in section IV below, we do not fully agree with his, rationale. Kessel purchased five ^ additional Kroger stores located in Flint, Michigan, on 30 April 1982. On 12 May ,1982 a mass application process took place, and on 16 May Kessel held' a meeting with former Kroger supervisors to evaluate the former Kroger employee applicants. On 23 May the five Flint stores opened.-On 3 November' 1982 the charges in Case 7-CA-21402 were filed, alleging that Kessel had engaged in the same discrimination in hiring former Kroger employees at the Flint stores as at the Saginaw and Corunna stores'and unlawfully re- fused to bargain with the Unions at the Flint stores. The complaint also alleged additional 8(a)(1) violations concerning statements allegedly made at ,the Flint stores. A complaint issued on 10 Decem- ber 1982 and was amended 25 February 1983 to allege that the Respondent refused to bargain with the Unions as representatives of employees in the two eight-store units (meat and nonmeat) consisting of the Saginaw, Corunna, and Flint stores. The judge found that the Respondent did not violate Section 8(a)(3) and (1) of the Act by discri- minatorily limiting the hiring of former Kroger em- ployees at the Flint stores. Although we agree with the judge that the Respondent did not violate Sec- tion 8(a)(3) and (1), we do not subscribe to his ra- tionale, as detailed in section III below. As noted previously, we agree with the judge's dismissal of the 8(a)(5) allegations, for the reasons stated in sec-' tion IV below. The judge also dismissed the 8(a)(1) allegations concerning statements allegedly made by Supervisors Richard Knight and Tom Lazar.9 The hearing in Case 7-CA-20284 opened on 20 September 1982 and closed 7 October 1982. Huff- man, the Corunna store manager, testified against the Respondent 21 September 1982. That evening, Kessel held a meeting of the Corunna supervisors and advised them, inter alia, that Huffman's testi- 8 We also disagree with the judge's conclusion in sec III,B,2,(b) of his decision that the Respondent did not violate Sec 8(a)(1) of the Act by interrogating former Kroger employee applicants concerning their atti- tudes toward the Union Store Manager Huffman asked some applicants at their interviews about their union feelings He also told them that the stores would be nonunion We find the interrogations of applicants who were not open union adherents, which occurred in the same conversa- tions as the unlawful nonunion statements (see discussion in sec II, below), were coercive regardless of what may have been the Respond- ent's uncommunicated motivations for seeking this information See Christie Electric Corp, 284 NLRB 740 (1987) (interrogation violated Sec 8(a)(1) when it was accompanied by an unlawful threat to do anything to keep the union out and to not sign a contract) Because findings concern- ing other alleged interrogations would be cumulative, we find it unneces- sary to pass on them 8 No exceptions were filed to the judge's findings in sec III,B,2,(d) of his decision entitled "Other statements," concerning these alleged state- ments mony reflected "inaccurate recall." 1 ° He told the staff that Huffman would no longer have access to the office and confidential data. On 23 September 1982 Wallen, the Corunna meat manager and friend of Huffman, also testified against the Respondent. When Huffman and Wallen returned to the store that evening, they were told they were suspended with pay. On 16 October they were discharged. A complaint in Case 7-CA-21213 issued on 9 November 1982 al- leging that the suspensions and discharges violated Section 8(a)(4) and (1) of the Act. We agree with the judge, for the reasons stated in sec. III,B,4 of his decision, that the Respondent violated Section 8(a)(1) of the Act by suspending and later discharging Huffman and Wallen because they testified against the Respondent at the hearing in Case 7-CA-20284.11 II. NONUNION STATEMENTS The judge found that Kessel officials informed former Kroger employee applicants that the stores would operate nonunion.12 The judge, however, citing NLRB v. Burns Security Services, 406 U.S. 272 (1972), and Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. 249 (1974), did not find the statements coercive. He reasoned that, absent successor obligations, the Respondent was free to commence operations on a nonunion basis, as it told applicants. The judge was also not per- suaded `that the Respondent, rather than the appli- cants, first brought up the subject of the Respond- ent's nonunion status. 10 In sec III,B,4, par 5 of his decision, the judge stated that "Kessel summoned the Corunna store's supervisors to a meeting to tell them of their colleague's betrayal " The Respondent contends that the judge's "use of such prejudicial terminology is hardly warranted " We do not adopt the judge's terminology `11 The judge found it unnecessary to decide whether this misconduct also violated Sec 8(a)(4) 12 The record discloses the following testimony regarding "nonunion" statements made by the Respondent's agents Some of these statements were made to former Kroger employee applicants at the Saginaw and Corunna stores and some were made to applicants at the Flint stores sub- sequently acquired by Kessel At Saginaw and Corunna, Richard Huff- man testified that he told applicants during their interviews that the stores would be nonunion Applicant Bonnie Flathau testified that Sam Morris asked if she would mind working for a nonunion store Applicant Thressa Porter testified that Sam Morris told her the Company would be nonunion (Morris' statement was in response to Porter's question, which she asked after he asked her how she felt about the Union) Applicant David Dickerson testified that Sam Morris told him the stores would be nonunion At Flint, applicant Jeffrey Poisson testified that Supervisor Tom Sawyer told him that there was a chance the stores would be nonunion, but that it would be up to the employees after the stores opened Appli- cant Daniel Lancto testified that Respondent Vice President Tim Kessel asked him if he realized the Company was going to be nonunion Appli- cant Bruce Ketcham testified that Al Kessel asked him if he understood the stores would be nonunion Applicant Tom Ketcham testified that Al Kessel said the stores would open as nonunion stores Applicant Janet Colburn testified that Supervisor Roy Brody told her that the stores would not have a union when they opened KESSEL FOOD MARKETS 429 The Charging Parties contend that the judge misinterpreted Burns and Howard Johnson, and that an employer is not always free to commence oper- ations on a nonunion basis. They further argue, contrary to the judge's finding, that the Respond- ent, not the applicants , in most instances initiated the discussion about the stores' nonunion status. They also contend that even if the applicants did initiate the discussion , the statements are neverthe- less coercive and violate Section 8(a)(1).13 We agree with the Charging Parties. Burns and Howard Johnson hold that although a purchasing employer has no obligation to hire the seller 's unionized em- ployees, it may not refuse to hire those employees solely because they are union members or to avoid being required to recognize the union. Under Burns, the purchasing employer has an obligation to recognize and bargain with the union if a major- ity of the purchaser's employees were previously employed by the seller and were represented by the union. Thus, the employer does not know whether it will be union or nonunion until it has hired its work force. When an employer tells appli- cants that the company will be nonunion before it hires its employees, the employer indicates to the applicants that it intends to discriminate against the seller's employees to ensure its nonunion status. Thus, such statements are coercive and violate Sec- tion 8(a)(1). See Potter's Chalet Drug, 233 NLRB 15, 20 (1977), enfd. mem. 99 LRRM 3327 (9th Cir. 1978); Love's Barbeque Restaurant No. 62, 245 NLRB 78, 124 (1979), enfd. in pertinent part 640 F.2d 1094 (9th Cir. 198 1).14 III. HIRING PRACTICES AT FLINT As stated above, we find that although the Re- spondent violated Section 8(a)(3) and (1) by dis- criminatory hiring at Saginaw and Corunna, the Respondent did not violate Section 8(a)(3) and (1) by its hiring practices at Flint. We do so for the following reasons. On 12 May 1982 a mass application process took place, during which applicants were interviewed for positions at the Flint stores. On 16 May Kessel met with four Kessel managers previously em- ployed at Kroger. At the meeting, Kessel asked 13 The General Counsel argues that the nonunion statements were co- ercive because they were made in the context of other 8(a)(1) and (3) violations 14 We further find that the evidence does not support the judge 's find- ing that the applicants themselves first brought up the subject of the Union For example, although the evidence shows that applicant Thressa Porter asked Morris whether the Company was union or nonunion, she did so only after he asked her how she felt about Kroger and the Union Tom Ketcham , Bruce Ketcham , and David Lancto all testified that they did not initiate any discussion about the stores' nonunion status Richard Huffman testified that he told applicants the stores would be nonunion In any event, we find the statements coercive whether the applicants themselves brought up the subject of the Union each manager to rate the former Kroger employee applicants as excellent, good, only average, or poor. The former Kroger employee applicants were hired on the basis of these evaluations. Kessel stated at the meeting that there were no quotas of former Kroger employee applicants.15 We find adequate business justification for Kessel's hiring decisions resulting from the 16 May evaluation process. 16 In the nonmeat unit, represented at Kroger by Local 40 (later Local 876), out of approximately 98 former Kroger employee applicants not hired by Kessel as supervisors, Kessel offered employment to 65 (approximately 66 percent) and 59 were hired. In the meat unit, represented at Kroger by Local 539, out of approximately three former Kroger employee applicants not hired as supervi- sors, two (approximately 67 percent) were offered employment and one was hired. In addition, although not relied on by the judge, there was evidence that the Respondent actually sought out former Kroger meat employees because of a shortage of qualified meat department employ- ees. Patrick Haley, a former Kroger meatcutter and Local 539 member, testified without contradiction that Kessel hired him and asked him to solicit ap- plications from other meat employees. According to Haley, the Respondent hired- several of those former Kroger meat employees Haley contacted. Haley testified that a shortage of qualified meat employees existed because when Kroger closed the Flint stores in December 1981, most of the meat employees transferred to other Kroger stores. Haley testified that by 17 May 1982, all former is The Charging Parties contend that under Spencer Foods, 268 NLRB 1483 (1984), enfd in part, denied in part , and remanded 768 F 2d 1463 (D C Cir 1985), the 16 May evaluation session was itself discriminatory against the former Kroger employees The Charging Parties argue that the Respondent applied its hiring ,criteria less rigidly to new employees in order to inhibit the hiring of former Kroger employees In Spencer Foods, however, the employer had a pretextual antinepotism rule that disquali- fied most of the former work force Here , there were no such criteria that had the effect of disqualifying most of the former Kroger employees In addition, those former Kroger employee applicants who could not be evaluated, because none of the former Kroger managers knew them, were presumed employable Regarding cashier positions , only non- Kroger applicants were tested , as the Respondent presumed that those former Kroger employee applicants who were rated good or excellent had the skills to perform the job 16 The judge found that as a result of the evaluation process, Kessel hired 79 of 120 former Kroger Flint employee applicants and offered em- ployment to approximately 7 or 8 others The judge, however, failed in his statistical analysis to take into account that 19 of the 79 were hired into supervisory positions The issue, however, is whether Kessel dis- criminated against former Kroger employees for nonsupervisory posi- tions Thus, the judge's finding that Kessel offered employment to 72 5 percent of the former Kroger employees who applied at Flint is not useful in analyzing whether Kessel discriminated in hiring for nonsupervi- sory positions Further, as this case involves two separate units (meat and nonmeat), which were represented at Kroger by two separate unions, we believe that alleged discrimination against unit employees and alleged successorship must be analyzed in each unit separately 430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kroger-Flint meat employees were working in other Kroger stores. Thus most former Kroger- Flint meat department employees were not avail- able for employment with Kessel and did not apply. Of the 323 unit employees Kroger employed at the Flint stores before closing, only 120 applied to Kessel. Although the Charging Parties and the General Counsel contend that the other former Kroger employees were discouraged from applying because they believed it would be futile, that con- tention has not been substantiated. 17 The relatively low number of Kroger applications was as likely due to the 5-month hiatus between Kroger 's clos- ing and Kessel's opening or the nature of the posi- tions (predominantly part-time), or Kessel's lower wages and benefits.18 During the hiatus, a complaint had issued con- cerning Kessel's hiring practices at Saginaw and Corunna. The Charging Parties argue that this caused the discriminatory hiring at Flint to be more carefully concealed. We agree with the judge that there was no direct evidence that any state- ments concerning a quota at Flint were made or that discrimination against Kroger applicants con- tinued.19 Although Kessel still preferred the stores to be nonunion,20 this does not establish that he continued to discriminate at Flint. Kessel was aware, as a result of the complaint in Case 7-CA- 20284, that his hiring procedures would be closely scrutinized. In view of the 5-month hiatus between the discrimination at Saginaw and Corunna and the hiring at Flint, the intervening complaint, the lack of evidence of any new quota statements, Kessel's credited statement to his Flint managers that he was not concerned with quotas, and the legitimate business justification for the Flint hiring decisions resulting from supervisory evaluations, we find the 17 See discussion of the alleged appearance of futility in sec. IV, infra. 18 An examination of R Exhs. 37 and 25 (D) and (E) establishes that former Kroger employees were hired by Kessel at significantly lower wage rates than they received at Kroger. For example , Robert Bain's salary while at Kroger was $10.31 per hour , but he was hired by Kessel at a salary of $6.75 . Cashier Jean Whalen's salary at Kroger was $10.31 per hour, but she was hired by Kessel at $5.50 Terry Lazar worked for Kroger for $ 10.37, but was hired by Kessel for $5.50 In addition, a comparison of R. Exh. 29 and G .C. Exhs. 2 and 3 re- veals, inter alia, that Kroger employees received seven personal days off in addition to six holidays, whereas Kessel employees only receive six holidays. Kroger employees also had dental and optical benefits. Kessel also did not yet have a retirement plan, as did Kroger, although it was committed to having one no later than I July 1983. 19 The Charging Parties and the General Counsel argue that the Re- spondent's unlawful discharge of Supervisors Huffman and Wallen pre- vented any supervisors from testifying against the Respondent at the hearing concerning the Flint allegations. Although we recognize the chilling effects of such discharges, we decline to infer that absent the dis- charges, direct evidence of discrimination against former Kroger employ- ee applicants at Flint would have been presented. 80 Kessel told Roy Brody, the director of store operations , that he pre- ferred that the stores be nonunion, and at a 7 May meeting Kessel and Brody so informed the newly hired store managers. evidence is not sufficient to show that Kessel dis- criminated against former Kroger employees at Flint. We therefore find that the Respondent's Flint hiring practices did not violate Section 8(a)(3) and (1) of the Act.21 IV. 8(A)(5) AND (1) ALLEGATIONS We agree with the judge that the 8(a)(5) and (1) allegations should be dismissed. We do not, howev- er, fully agree with the judge's rationale. The Gen- eral Counsel alleged that the Respondent unlawful- ly refused to recognize Local 876 as representative of its nonmeat employees in an eight -store unit and Local 539 as representative of its meat department employees in an eight-store unit. The judge found that the Respondent did not violate Section 8(a)(5) and (1) of the Act in refus- ing to recognize the Unions because it was not Kroger's successor for collective-bargaining pur- poses. He found no successorship because of a lack of continuity in the business enterprise, the hiatus in operations, the union disaffection a majority of former Kroger applicants expressed, and the fact that the Unions do not represent a majority of the Respondent's employees. The Charging Parties and the General Counsel argue that Kessel is a successor to Kroger's bar- gaining obligations because, under Love's Barbeque Restaurant No. 62, above, 245 NLRB 78, once a discriminatory scheme is demonstrated , all the predecessor's employees are 8(a)(3) discriminatees, and there is a presumption that, but for the discrim- ination, a majority would have survived. The Charging Parties and the General Counsel also except to the judge's conclusion that Kessel's em- phasis on part-time employees and its lower pay and benefits significantly diminished the continuity of the enterprise between Kroger and Kessel. They argue that any successor has a right to make such insignificant changes. They further except to the judge's conclusion that the union disaffection, which some of the former Kroger employee appli- cants expressed, raises a question about continuing majority support for the Union and militates against a successorship finding. We find that the Respondent is not a successor to Kroger's bargaining obligation . We find that even if Kessel had hired all the former Kroger em- ployees who applied to Kessel and whom Kessel did not hire into supervisory positions, former Kroger employees would nevertheless not consti- tute a majority of Kessel's work force in either the 81 We find the isolated "nonunion" statements made to applicants at Flint (described at fn 12, par 2 above) insufficient to establish the exist- ence of a discriminatory scheme at Flint. KESSEL FOOD MARKETS 431 meat or nonmeat unit. Of the approximately 57 Kessel meat unit positions in all 8 stores, only ap- proximately' 7 former Kroger employees applied. Of the approximately 554 Kessel nonmeat unit po- sitions in all 8 stores, only approximately 161 former Kroger employees applied. Thus, if the Re- spondent had hired all former Kroger employee applicants, the former Kroger employees would constitute approximately 12 percent of the meat unit and 29 percent of the nonmeat unit.22 Under the circumstances of this case, we further find that the Kroger nonapplicants should not be considered discriminatees and should not be count- ed in determining` whether 'a majority of Kessel's work force in the two units consists of former Kroger employees. Nonapplicants have been con- sidered discriminatees in situations when an em- ployer discourages the predecessor's employees from applying by statements indicating that appli- cation would be futile because of their unionized status,23 or when an employer structures its hiring process to prevent the predecessor's employees from applying.24 Nonapplicants have also' been considered discriminatees when an employer de- clines to hire any of the predecessor's employees for unlawful considerations.25 We agree with the judge that the record does not support a finding that a significant number of Kroger employees failed to apply because they be- lieved it would be futile, or were prevented from applying because of Kessel's initial "blind" adver- tisements discussed below. - Although the Respondent told applicants that the Company would be nonunion and told four ap- plicants about a quota of former Kroger employ- ees, there is no evidence that the Respondent's statements deterred Kroger employees, generally from applying to Kessel. See Houston Distribution Services, 227 NLRB 960, 967 fn. 15 (1977), enfd. 573 F.2d 260 (5th Cir. 1978), cert. denied 439 U.S. 1047(1978) .26 The Respondent did not conceal the applications process to prevent Kroger employees from apply- ing. Although Kessel initially placed a "blind" ad- vertisement for supervisory personnel at Saginaw and Corunna and interviewed those applicants at a motel, we do not believe that Kessel was intention- ally concealing the hiring process to prevent Kroger employees from applying. The advertise- ments were not for bargaining unit employees, but supervisory positions. The judge found, and we agree, that, unlike the employer in Love's Barbeque, Kessel had a legitimate business justification for this hiring procedure because, at the time the ad- vertisements were placed, Kessel had not yet final- ized the stores' purchase. We also find that Kessel would not have hired all Kroger's work force but for unlawful consider- ations. Kessel's rapid service customer operation required a larger work force composed of more part-time employees than Kroger's.27 We find that Kessel's increase in employee complement and em- phasis on part-time employees were based on lawful business reasons and were not utilized for the purpose of avoiding successorship obligations. Because of its need for a larger work force than Kroger, the Respondent was required to seek appli- cations from the public. Furthermore, many of the former Kroger employees transferred to other Kroger stores after the stores closed. In Flint, 5 months elapsed before the stores reopened and many former Kroger employees were no longer available for employment. Because we find that the nonapplicants are not discriminatees, and the number of former Kroger applicants, combined with the dozen or so given false information, is not sufficient to constitute a majority of Kessel's employees in either a meat or nonmeat unit, we conclude that the Respondent is not a successor to Kroger's bargaining obligation with either Union.28 22 Even adding the dozen or so employees to whom Huffman gave false information about job openings (see discussion, infra, fn 26) to these 161 applicants, and assuming that all that total would have been hired but for the Respondent's discrimination, the Union still would not have a ma- jority in the nonmeat unit 23 Sherwood Trucking Co, 270 NLRB 445, 447-448 (1984), enf denied 775 F2d 744 (6th Cir 1985), State Distributing Co, 282 NLRB 1048 (1987). (several employees in the predecessor's 11-employee unit were told either that the successor would not hire union members, or that it would not hire employees from the predecessor' s unit, or that at had al- ready hired the only two of the predecessor's unit employees that it was willing to hire) 24 Love's Barbeque, above 25 Foodway of El Paso, 201 NLRB 933, 938 (1973), enfd 496 F 2d 117 (5th Cir 1974) 26 We are willing to assume, however, that a dozen or so ex-Kroger employees may have been deterred from making formal applications- those whom, according to Huffman's testimony, he falsely told, on the day that they contacted him, that no cashiers' positions were available at that time We cannot conclude that this false statement to these employ- ees created a generalized climate of futility, particularly because of the fact that the Respondent was actually hiring a number of former Kroger employees However, although we do not know who these employees were or whether their inquiry to Huffman about possible jobs discour- aged them from making a more formal application later, we include them potentially within the class of actual applicants covered by par. 2(a) of the Order, so that they can be made whole if they are identified in com- pliance as persons who would have been hired but for the discnmmatoty hiring practices See generally NLRB v Iron Workers Local 433, 600 F 2d 770, 777-779 (9th Cir 1979), cert denied 445 U S 915 (1980) (permitting individuals within a discriminated-against class to be identified in compli- ance) 27 The judge found that when all 8 Kroger stores closed , there were approximately 497 employees in all Full-time employees outnumbered part-time employees 3-to-1 By contrast , Kessel employed approximately 611 employees, but favored part-time employees over full-time employees approximately 3-to-1 28 Because of our finding of a lack of continuity in the work force, which precludes imposing a successor bargaining obligation on the Re- Continued 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In light of our finding of additional violations, we shall issue Amended Conclusions of Law and a new Order and notice to employees. AMENDED CONCLUSIONS OF LAW 4. Substitute the following for Conclusion of Law "4. By telling job applicants that it would oper- ate its stores nonunion , by telling the applicants they could not be hired because it had a quota of former Kroger employees, and by interrogating them about their attitudes toward the Union, the Respondent has violated Section 8(a)(1) of the Act." ORDER The National Labor Relations Board orders that the Respondent, Kessel Food Markets, Inc. and Kessel Food Stores, Inc., Saginaw, Corunna, and Flint, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Establishing discriminatory hiring practices to limit the hiring of applicants formerly employed by the Kroger Company in its Saginaw and Corunna stores to avoid dealing for collective-bargaining purposes with Locals 876 and 539, United Food and Commercial Workers International Union, AFL-CIO-CLC. (b) Interfering with, restraining, or coercing em- ployees in the exercise of their Section 7 rights by suspending 'and discharging supervisors because they give testimony under the Act. (c) Telling job applicants that they cannot be hired because of a quota of former Kroger employ- ees. (d) Telling job applicants that its stores will op- erate nonunion. (e) Interrogating job applicants about their atti- tudes toward the Union. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer all applicants who would have been hired at the Respondent's Saginaw and Corunna stores but for the Respondent's unlawful discrimi- nation, employment in the positions for which they spondent, we find it unnecessary to pass on whether there was continuity in the business enterprise notwithstanding the differences in operation be- tween Kroger and Kessel See Fall River Dyeing & Finishing Corp. v NLRB, 482 U S 27 (1987) We do not rely on the judge's finding of union disaffection based on interrogation of applicants at their interviews There is no evidence that a majority of Kessel's employees expressed union disaffection would have been -hired or, if those positions no longer exist, to substantially equivalent positions, dismissing, if necessary, any persons hired to fill such positions. (b) Make those applicants the Respondent would have hired but for its unlawful discrimination whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's decision. (c) Offer Richard Huffman and Bradley Wallen immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's decision. (d) Remove from its files any reference to the unlawful suspensions and discharges and notify the employees and supervisors in writing that this has been done and that the suspensions and discharges will not be used against them in any way. (e) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze - the amount of backpay due under the -terms of this Order. (f) Post at its Saginaw, Corunna, and Flint, Michigan stores, copies of the attached notice marked "Appendix."29 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained. for 60 consecutive days in conspicuous places including all places where notices to em- ployees are, customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 29 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 " KESSEL FOOD MARKETS 433 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 ordered us to post and abide by this notice. WE WILL NOT establish discriminatory hiring practices to limit the hiring of applicants formerly employed by the Kroger Company in our Saginaw and Corunna stores to avoid dealing for collective- bargaining purposes with Locals 876 and 539, United Food and Commercial Workers Internation- al Union, AFL-CIO-CLC. WE WILL NOT interfere with, restrain, or coerce you in the exercise of your Section 7 rights by sus- pending and discharging supervisors because they give testimony under the Act. WE WILL NOT tell job applicants that they cannot be hired because of a quota of former Kroger employees. WE WILL NOT tell job applicants that our stores will operate nonunion. WE WILL NOT interrogate job applicants about their attitudes toward the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you in Section 7 of the Act. WE WILL offer all applicants who would have been hired at our Saginaw and Corunna stores but for our unlawful discrimination, employment in the positions for which they would have been hired or, if these positions no longer exist, to substantially equivalent positions, dismissing, if necessary, any persons hired to fill such positions. WE WILL make those applicants we would have hired but for our unlawful discrimination whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. WE WILL offer Richard Huffman and Bradley Wallen immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and WE WILL make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. WE WILL remove from our files any reference to the unlawful suspensions and discharges and WE WILL notify the employees and supervisors in writ- ing that this has been done and that the suspensions and discharges will not be used against them in any way. KESSEL FOOD MARKETS, INC. AND KESSEL FOOD STORES, INC. George D. Mesritz, Esq., for the General Counsel. Joseph F. Martin, Esq., and Robert J. Chovanec, Esq. (Warner, Norcross & Judd), of Grand Rapids, Michi- gan, for the Respondent. Mary Ellen Gurewitz, Esq. (Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C.), of Detroit, Michigan, for the Charging Parties. DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge. The alle- gations in Case 7-CA-202841 were tried before me in Flint, Michigan, from September 20 to 23, and from Oc- tober 4 to 7, 1982. Principally, it was alleged that in mid- November 1981 Kessel Food Markets, Inc.2 (Respondent or Kessel) purchased from The Kroger Company (Kroger) three retail grocery stores (supermarkets), lo- cated in Saginaw and Corunna, Michigan , and concern- ing Kessel, discriminatorily refused to hire a majority of former Kroger employees to avoid any obligation as "successor" to recognize and bargain with the Charging Parties in violation of Section 8(a)(5), (3), and (1) of the Act. Subsequent to the close of the aforenoted hearing, a new complaint dated November 9, 1982, issued in Case 7-CA-21213 alleging that Respondent suspended on Sep- tember 23, 1982, and then discharged on October 14, 1982, two supervisors who had testified adversely to Re- spondent in the aforenoted previously litigated case (Case 7-CA-20284). A further complaint issued on De- cember 10, 1982, in Case 7-CA-21402 against Respond- ent alleging that Kessel engaged in substantially the same conduct as alleged in the the aforenoted previously liti- gated case, regarding five additional Kroger stores pur- chased by the Respondent located in the Flint, Michigan area in May 1982, thereby further violating Section 8(a)(5), (3), and (1) of the Act.s Counsel for the General Counsel, by separate motions dated December 13, 1982, and December 22, 1982, re- spectively, moved to reopen and consolidate Case 7- CA-20284 with the other two outstanding complaints (Cases 7-CA-21402 and 7-CA-21213). The motions were granted by Order dated February 4, 1983, "for the purpose of further hearing on the allegations on the I Prior to the opening of the original hearing , Case 7-CA-20080 had settled and, by Order, was severed from Case 7-CA-20284. 2 For reasons noted infra; Kessel Food Markets, Inc, and Kessel Food Stores, Inc., constitute a single employer within the meaning of Sec. 2(2) of the National Labor Relations Act (the Act). s Local 876 appears in the caption as amended at the hearing. The record disclosed that the Charging Union, Retail Store Employees Union, Local 40, United Food and Commercial Workers International Union, was merged into Local 876 on July 1, 1982, and as such, Local 876 became the successor union. 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD latter two cases and decision in the consolidated cases in their entirety." (G C. Exh. 1(x).) Additionally, Case 7- CA-21402 was amended further to allege principally that Kessel Food Markets, Inc., and Kessel Food Stores, Inc, constitute a single employer within the meaning of the Act and that employees employed at all eight retail su- permarkets purchased by Kessel comprise the appropri- ate units for the respective Charging Unions. (G.C. Exh. l (cc).) Still further, it is alleged that Respondent, by and through certain named supervisors and/or agents, by in- forming applicants for employment that Respondent was restricting the number of former Kroger employees to be hired in order to avoid having to recognize the Charging Unions; by informing employment applicants that Re- spondent would operate its facilities on a nonunion basis; by informing prospective employees that they could not be hired because of their picketing activities and/or other union support; by coercively interrogating pro- spective employees regarding their union sympathies; and, by engaging in related acts and conduct, independ- ently violated Section 8(a)(1) of the Act. On the other hand, Respondent, in its several answers to the various complaints and amended complaints, denied all allegations that it committed any unfair labor practices. In particular, Respondent, inter alia, denied the successor allegation or that its hiring practices were con- ceived as carried out, for purpose of avoiding any suc- cessor obligations to recognize and bargain with the Charging Unions. Additionally, regarding the 8(a)(5) al- legations, Respondent denied that the two Saginaw stores and a third store in Corunna comprised an appro- priate unit as originally alleged, and Respondent, relying on Section 10(b) of the Act as an affirmative defense, as- serted that the General Counsel is precluded from estab- lishing that all eight retail grocery stores purchased by Kessel comprise an appropriate unit, as subsequently set forth in the amended complaint in Case 7-CA-21402, dated February 25, 1983. Regarding the independent 8(a)(1) allegations, Re- spondent either denied them factually or, where state- ments were admittedly made regarding the Union, they were assertedly noncoercive The reopened hearing was conducted in Burton, Michigan, on May 16-20, and June 1, 1983. In all, some 65 witnesses testified during the course of this protracted hearing. As will be discussed more fully, infra, the alle- gations turn largely on credibility resolutions. Issues The principal issues are: 1. Whether the Respondent is a successor employer and as such, whether its refusal to recognize and bargain with the Charging Unions is violative of Section 8(a)(5) and (1) of the Act. 2. Whether a companywide unit is appropriate for col- lective-bargaining purposes, as alleged in the amended complaint in Case 7-CA-21402, noting, inter alia, Re- spondent's 10(b) defense. 3. Whether Respondent discriminatorily refused to hire a majority of Kroger employees to avoid any obligation as successor to recognize and bargain with the Charging Unions, in violation of Section 8(a)(5), (3), and (1) of the Act 4. Whether Respondent suspended on September 23, 1982, and then discharged on October 14, 1982, two stat- utory supervisors (Richard Huffman and Bradley Wallen), because they had given testimony adverse to Respondenvat the hearing in Case 7-CA-20284. 5. Whether Respondent, by and through its supervisors and/or agents, independently violated Section 8(a)(1) of the Act, by, inter alia, interrogating employment appli- cants about their union sympathies; informing employ- ment applicants that Respondent was restricting the number of former Kroger employees to be hired in order to avoid having to recognize the Charging Unions; in- forming employment applicants that Respondent would operate its facilities on a nonunion basis; informing pro- spective employees that they will not be hired because of their picketing activities and/or other union support; and, by engaging in related acts and conduct. On the entire record, including my observation of the demeanor of the witnesses, and after careful consider- ations of the posttrial briefs, I find as follows: 1. JURISDICTION Kessel Food Markets, Inc., and Kessel Food Stores, Inc. (collectively Kessel or Respondent) are Michigan corporations and constitute a single employer relation- ship within the meaning of Section 2(2) of the Act.4 At all times material, Respondent has maintained its princi- pal office and place of business at G-4288'West Pierson Road, in the city of Flint and State of Michigan, and is engaged in the business of operating eight retail super- market stores, all located in the State of Michigan. Con- cerning the aforenoted business operations, during a 12- month representative timeframe, Respondent has derived gross revenue in excess of $500,000. During the same timeframe, Respondent has caused to be transported and delivered to its Michigan supermarket stores, food, gro- ceries, and other goods and materials valued in excess of $50,000, of which, food, groceries, goods, and materials valued in excess of $50,000 were received from other en- terprises, including, inter alia, The Kroger Company, lo- cated in the State of Michigan, each of which other en- terprises had received the food, groceries, goods, and materials delivered to Respondent directly from points located outside the State of Michigan. It is undisputed, the record disclosed, and I find, that the Respondent is an employer engaged in commerce within the' meaning of Section 2(6) and (7) of the Act. Further, as noted previously, the record disclosed, and I ° The parties stipulated, the record disclosed, and I find that Albert Kessel owns all the stock and is the president of both corporations Fur- ther, Albert Kessel has formulated and implemented identical labor rela- tions policies, including wages, benefits, and job classifications regarding all employees of both corporations Both corporations utilize a single payroll Still further, employees of all eight stores share substantial common supervision, and supervisors and employees have transferred from the Saginaw/Corunna stores to the Flint stores Although Respond- ent does not concede the legal conclusion of a single employer relation- ship, the record disclosed, and I find, that the two companies comprise a single-integrated business, as alleged KESSEL FOOD MARKETS find, that Respondent is also a single employer within the meaning of Section 2(2) of the Act. II. LABOR ORGANIZATIONS INVOLVED It is alleged, the Respondent does not dispute, the record disclosed, and I find that Locals 876 and 539, United Food and Commercial Workers International Union, AFL-CIO-CLC (separately also Locals 876 and 539 and collectively the Charging Parties or the Charg- ing Unions), are, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events 1. Case 7-CA-20284 In November 1981, Albert Kessel purchased three Kroger stores in the State of Michigan : two in Saginaw, and a third in Corunna, and formed Kessel Food Mar- kets, Inc. Immediately prior thereto, Kessel was execu- tive vice president, treasurer, and director for Hamady Brothers Food Markets, Inc. (Hamady), a current com- petitor. All told, Kessel served Hamady in various mana- gerial capacities over a period of 8-1/2 years. As Ha- mady's chief financial officer, Kessel, inter alia, had been deeply involved in the purchase of other Kroger stores, including the Saginaw/Corunna stores that he subse- quently acquired for himself. In 1980 Kessel helped to put together a package in which Hamady purchased 21 Kroger stores in western and northern Michigan. Charging Union Local 539 and other locals of the Retail Clerks Employees Union repre- sented those Kroger employees under collective-bargain- ing agreements. Kessel recommended that those stores open nonunion, and according to Hamady officials, sug- gested that they hire non-Kroger employees to avoid successor obligations. Thus, Alex Dandy, Hamady's president, chief executive, and chairman of the board, testified that Kessel complained about high union con- tract rates and recommended not hiring Kroger employ- ees so that the stores would open nonunion . Further, Norman Griffin, Hamady's personnel manager, in 1980 testified that Kessel expressed to him at that time that Hamady not hire a majority of Kroger employees in order to avoid recognizing the Union. Kessel acknowledged that he objected to the wage rates under the Kroger-Union or Hamady-Union con- tracts as too high; however, he asserted that he merely told Dandy that Hamady did not have to accept those contracts. Although Kessel denied that he told Hamady officials not to hire Kroger employees, he admitted that he recommended that the stores open nonunion. Dandy considered Hamady a union company and rejected any notion that the stores open on a nonunion basis. A ma- jority of Kroger employees were retained and the 21 former Kroger stores continued to be carried under union contract. In the early summer of 1981 , Kroger offered another package of 13 stores, all located in eastern Michigan, in- cluding the three store Saginaw/Corunna combination 435 referred to previously . Dandy expressed no interest at that time in acquiring additional Kroger stores because the initial 21 stores did not prove profitable . However, he expressed some interest a few months later when he learned that Kroger was closing the two stores in Sagi- naw and a third in Corunna and probably five stores in Flint, Michigan. Thus, Dandy had Kessel meet with Kroger representatives to explore the feasibility of this smaller eight-store package . Hamady already had a number of stores in the Flint, Michigan area. According to Kessel , in October 1981, Dandy rejected his recommendation that Hamady purchase all eight stores stating, "I [Kessel ] must be out of my brain, to make a recommendation like that in face of what kind of experience we've had with the 21 stores ." On the other hand, according to Dandy, Kessel recommended against acquiring any of these Kroger stores . Soon after, Kroger announced that the three Saginaw/Corunna stores would be closing. In early November 1981, Kessel told Kroger vice president, Arthur Jurgens, of his desire to acquire the three stores for himself and not for Hamady. A meeting between them was arranged for that purpose and was scheduled to be held at the Kroger main office in Cincin- nati on Tuesday, November 17. During the first week in November 1981, Kessel told Dandy that he was going into business for himself and his sons and gave a 2-week notice. Kessel also told Dandy that he needed a few days off to meet with some friends to raise capital for his busi- ness. It does not appear that any mention was made of Kroger stores at that time. About November 10 or 11, 1981, Kessel phoned San- ford Morris, a longtime colleague at Hamady, but who at that time was self-employed in an unrelated business. Kessel informed Morris that Kessel had the opportunity to purchase three grocery stores and invited Morris to join him as a partner . Morris rejected Kessel's offer but promised to help get him started . Within a day or two, Kessel phoned Morris again to have him check out the availability of prospective store managers . Thus, Morris contracted Richard Huffman , a former Hamady coman -ager . Morris told Huffman that the store manager's posi- tion was for a new family-owned grocery chain, com- prised of three stores, all within a 60-mile radius of Flint, and that those stores would be nonunion . Huffman at that time was employed as a truckdriver and expressed interest in becoming a store manager. On Saturday, November 14, Kessel revealed to Morris for the first time that the stores involved were Kroger stores. On that occasion, Kessel and Morris visited the Saginaw/Corunna stores, the last day they operated as "Kroger," as all three stores closed . Kessel explained that he was not interested in a Kroger operation but rather, "a high service, low price operation" and likened it to "Burger King," a fast food outfit. He told Morris that he believed that to accomplish this, they had to employ substantially more employees than Kroger, par- ticularly part-timers. In this connection, Kessel men- tioned a three- or four-to-one ratio of part-timers to full- timers. He also described the profile of the type of em- ployees he wanted to hire. Thus, Kessel explained, inter 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alia, that he wanted the full-timers to have "experience" and be the "best qualified people." Regarding part- timers, Kessel was less concerned about experience and more interested in attitude. For example, Kessel wanted part-timers who also enjoyed serving and being in the presence of customers. Kessel told Morris that he also planned on operating the stores without a union. The following day, Sunday, November 15, Kessel met with Morris again, this time at the latter's home. Kessel told Morris that he was leaving for Cincinnati to negoti- ate with Kroger officials and that he would call him Wednesday night to bring him up to date. In the mean- time, Kessel asked Morris to place a help-wanted adver- tisement in the newspapers to recruit the managerial staff.5 The "ad" stated that interviews will be conducted Thursday and Friday, November 18 and 19, at the Bay Valley Inn. It did not identify "Kessel" as the employer to avoid potential embarrassment because the deal had not yet been consummated. (Jt. Exh. 1.) On Wednesday, November 18, Kessel executed the purchase agreement for the three stores. (R. Exh. 3 ) That night Kessel phoned Morris with the news and told him to go ahead with interviewing and screening of ap- plicants for the managerial positions, adding that Kessel would join in screening and would review his recom- mendations on Saturday, November 21. Kessel also told Morris that he would send his son, Timothy, to assist him at the Bay Valley Inn. About November 19, Hoffman accepted Morris' offer to be manager of the Corunna store-and arrangements were made for them to meet Friday, November 27, the day after Thanksgiving, at the Holiday Inn, near the State Street store, and for Huffman to commence his new position. Dandy testified that about Monday morning, Novem- ber 24, Al Kessel picked him up at his home in Burton, Michigan, and while driving to work informed him that he had purchased the Kroger stores; the two in Saginaw and the one in Corunna. According to Dandy, Kessel told him that he would not hire Kroger employees and that the stores would operate nonunion. While at the trial, Kessel did not address himself to this particular conversation, he denied that he refused to hire Kroger employees or that he told anyone that he would limit the number of Kroger employees in his new undertaking.6 . By mailgram to Kessel dated November 24, 1981, Richard Phillips, the president of Charging Union Meat- cutters Local 539 demanded recognition "as the exclu- sive bargaining representative of the meat department employees at the Saginaw and Corunna Michigan Stores." (G.C. Exh. 5.) For the most part, interviewing for managerial posi- tions continued from November 19 to 25, the day before Thanksgiving. From November 25 to 27, Respondent at- tempted to attract rank-and-file applicants for employ- ment at its two Saginaw area stores (State Street and Bay Road). These interviews were scheduled for Friday and Saturday, November 27 and 28, at Respondent's Bay Road store. For the first time, the newspaper advertise- ments identified Respondent by name and location as a "former Kroger Store " (Jt Exh. 1.) The application process at the Bay Road store was scheduled to commence at 3 p.m As of 1.30 to 2 p.m., there were already approximately 1000 people on line to apply. Around that time Denise Henke, a Kessel assistant head cashier and former Kroger employee, came out of the store, recognized other Kroger employees who were standing at various points in line, and got a group of eight of them to go around the back of the store, where she allowed them inside 7 According to these "ex- Kroger" applicants, once inside, they were told all they had to do was write their names, addresses, phone num- bers, the jobs they were applying for, and experience on a yellow pad and they were assured by Larry Schmidt, the manager of the Bay Road store, that they were "as good as hired." Of this group, however, only Linda Graves was hired.8 (Jt. Exhs. 2 and 3.) Al Kessel arrived at the Bay Road store around 2:30 p.m and because of the extraordinary number of applicants, he directed most of them to write their names, last jobs, and phone num- bers on "sign up" sheets. (R. Exh. 9.) Generally, only those applicants whose appearance impressed Kessel were provided with formal applications On Friday, November 27, the day of the mass applica- tion process at the Bay Road store, described above, still other interviews were being conducted by Morris in the presence of Huffman at the Holiday Inn, near the State Street store. Earlier that day Morris and, Huffman had breakfast and discussed, inter alia, Huffman's role in the hiring process. According to Huffman, Morris cautioned him that Kessel did not want to deal with the Union and, as such, directed Huffman to stay under a 50-percent ratio with regard to hiring Kroger personnel.9 All told, Morris conducted some 20 to 25 interviews that day in the presence of Huffman. Huffman testified that Morris questioned only Kroger-connected applicants (some were still employed by Kroger in the Flint area) about their union feelings and in particular, whether they believed that Kroger would still be operating the stores if the Union had granted wage concessions According to Huffman, a majority of Kroger or ex-Kroger employees were angry with the Union for not allowing them to make the concessions, and most of them indicated that they would be pleased to work in a nonunion store. 8 In December 1981 Kessel and Morris executed an agreement for Morris' consulting services for Kessel Food Markets, Inc, covering the period November 16, 1981, until January 10, 1982 (R Exh 4 ) 6 Kessel's testimony, vis-a-vis Dandy, related to a number of other conversations that occurred earlier in the month without any reference about whether he would operate on a nonunion basis In assessing credi- bility, it is noted , inter aba, that Hamady has instituted lawsuits against Kessel concerning the purchase of the Kroger stores in question For this, as well as other reasons discussed more fully, infra , it is noted that Hamady officials were not merely disinterested witnesses This group consisted of Pat Kubik, Sally Yolanda Ortega, Greg and Jim Ortega (all family members), Jerry McLaren, Doug Ochodnicky, Susan Tahash, and Linda Graves 8 Schmidt did not testify According to the General Counsel, Respond- ent reneged on its promise to hire the other members of the group be- cause of its overall decision to avoid successor obligations 9 The testimony of Huffman, a relatively high-ranking company offi- cial, is critical to the General Counsel's case A substantial portion of his testimony was disputed by other company officials As noted previously, the principal allegations turn largely on credibility KESSEL FOOD MARKETS On the other hand Morris, for his part, denied discuss- ing union considerations with Huffman and also denied asking applicants about their union sentiments . Morris testified that the subject of hiring , relative to "numbers" of employees from Kroger or from other "sources" was not discussed with Huffman. According to Morris, both he and Huffman had a "preference towards Kroger people . . . because we both [once] worked for Kroger." Regarding Huffman's testimony relative to union conces- sions, Morris acknowledged only that he asked ex- Kroger employees why they believed that the stores closed. To this, Morris asserted that he received various responses; some blamed the Union, others blamed man- agement, and still others blamed both. During the evening of November 27, Al Kessel had provided a buffet dinner at the Holiday Inn for his newly hired managerial staff. Huffman testified that after dinner Tim Kessel gave him approximately 100 applications to call prospective cashiers and set up interviews for the following day. According to Huffman, throughout that day, applications were compiled in stacks by job classifi- cation and delineated further regarding Kroger or non- Kroger personnel . As for the 100 applications given to Huffman by Tim Kessel, Huffman testified that he pulled all Kroger applications and marked an "X" in the upper right-hand corner of each application and stacked them separately from non-Kroger applications.10 (See, e.g., G.C. Exh. I1(B-1).) He asserted that Al Kessel had ad- vised him that the "initial core" of full-time personnel had already been hired and to concentrate on the non- Kroger applicants for the remaining positions , the major- ity of which were for cashiers and courtesy clerks. Thus, Huffman testified that he did not contact any ex-Kroger cashiers. The theme attributed to Al Kessel by Huffman, to limit the percentage of Kroger employees was repeated on two other occasions that evening at the Holiday Inn. According to Huffman (denied by Kessel), just before the 11 o'clock news, Al Kessel addressed members of his managerial staff and cautioned them to be careful not to approach hiring 50 percent of Kroger's work force.11 As testified by Huffman , Kessel stated, "No way in hell did he want the fucking Union to have penetration into the stores, because if Kroger could not have survived in that area with Union representation, there's no way Kessel stores could." Huffman also testified that after the news broadcast, Tim Kessel summoned him to meet his father, privately, in the senior Kessel's car in the parking lot at the Holi- day Inn. According to Huffman , after some general con- 10 Huffman testified that at the time he pulled the Kroger applications, he was not concerned with the identity of the individual, but rather, whether the applicant "had worked for Kroger " To derive this informa- tion, Huffman asserted, he merely turned to the second page of the appli- cation Thus, Huffman could not with absolute certainty identify a given "X" mark made by him and match it with a given application . According to Tim Kessel and Morris, they too made "X" marks on some applica- tions for different reasons This subject will also be treated more fully, infra. 11 Huffman identified the personnel present in the room at the time Al Kessel made these remarks as himself, Terry Smith, manager of the State Street store, Larry Schmidt, manager of the Bay Road store , Sam Morris, and Al Kessel's sons, Tim, Tom, and Jim Kessel 437 versation, or "small talk," Al Kessel cautioned him that when Huffman got ready to staff his Corunna store, to stay under 50 percent of the Kroger work force. Huff- man was hired to manage the Corunna store but up until then, the majority of applicants were considered for the two Saginaw stores. Huffman testified that Kessel made specific reference to the Meat Cutters Union and called the head of that Union , a man named "Phillips" (Richard Phillips is the president of Meat Cutters Local 539), a "son-of-a-bitch." Kessel assertedly told Huffman that "under no circumstances" should he hire anyone from the Meat Cutters Union.12 The interviewing process continued at the Holiday Inn on the following day, Saturday, November 28. Morris still had to fill some of the remaining positions at the two Saginaw stores. According to Huffman , Morris conduct- ed the interviews the same way as he had on the previ- ous day. Thus, Huffman testified that Morris opened the interviews of ex-Kroger employee applicants by asking them about their union sentiments and raising the subject of union concessions (denied by Morris).13 Respondent had hoped initially to open all three stores simultaneously. However, early on, Kessel ascertained that he could not effectively accomplish this and decided to open the Corunna store I week after the scheduled opening of the two Saginaw stores . Thus, Respondent's recruitment efforts were directed mainly to staffing its Saginaw stores before undertaking corresponding respon- sibilities for its Corunna store. On Saturday, November 28, Respondent, for the first time recruited applicants for its Corunna store, when it caused to be placed a classified advertisement in the local area newspaper . The ad, inter alia, scheduled inter- views to be held at the Corunna store for Sunday and Monday, November 29 and 30. (Jt. Exh. 1.) However, because of the disruptions caused to other nearby stores by the enormous turnout of applicants at the Bay Road facility, the previous Friday, Kessel made "last minute" changes and postponed the hiring process for the Cor- unna store for 1 day . In connection therewith, Kessel made arrangements for applications to be obtained at the Michigan Employment Security Commission (MESC) office in Corunna, rather than at the Corunna store as originally advertised. The public response to employment opportunities vis- a-vis the Corunna store largely paralleled that at the Bay Road facility. Thus, on Monday morning, November 30, MESC personnel handed out some 500 applications within the first few hours and there were still 200-300 people on line. Huffman used the completed applications 12 Al Kessel and his son Tim acknowledged that Huffman met private- ly with the senior Kessel in the latter's car, but they provided an entirely different account Moreover, they asserted that the disputed meeting oc- curred the following day, Saturday, November 28. This conflict will be addressed more fully , infra, in dealing with overall credibility resolutions. 1a Huffman testified that on that same day, he was also present during approximately six interviews conducted by Tim Kessel. None of the alle- gations appear to relate to Tim Kessel's conduct at these interviews. Morris noted that Tim Kessel interviewed applicants for cashier positions at the Holiday Inn that day For reasons discussed below, I find that Morris' testimony tends to support Huffman's overall credibility regard- ing the events on November 27 and 28 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in telephoning and scheduling interviews for potential employees. He testified that he organized the applica- tions by department and again separated the Kroger group from non-Kroger personnel. According to Huff- man, after the "initial core" of experienced full-timers had been hired, he concentrated on staying away from Kroger applicants in arranging interviews. The interviewing of applicants to staff the Corunna store commenced on Tuesday, December 1 (as testified by Huffman), or Wednesday, December 2 (as testified by Morris), and continued every day with the exception of Sunday, until Monday, December 7. According to Morris, he alone conducted all the interviews, although he acknowledged that Huffman was present. According to Huffman, he played a much more active role in the Corunna store hiring process than he had previously, ac- tually conducting some interviews by himself (disputed by Morris). Huffman testified that Morris continued to ask ex-Kroger applicants (denied by Morris) about their opinion of the Union and about 'the failure of union con- cessions relative to the closing of the stores. Regarding interviews conducted solely by Huffman, he asserted that he pointed out to all ex-Kroger applicants that the stores would be nonunion, and that he questioned four or five of them about their union feelings. Further, Huffman tes- tified that he told two ex-Kroger applicants, Gail Zede- mont and Ricky Wisner (essentially corroborated by them), that he could not hire them because he was "very close" to fulfilling the "quota of Kroger personnel." 14 As testified by Huffman, throughout that week he was reminded by both Al and Tim Kessel not to come close to hiring half of Kroger's work force. Huffman testified that to help satisfy Kessel's concerns, he withheld the few remaining applications in his possession from ex- Kroger employees who had contacted him and gave the majority of them the "brush off." According to Huffman, during the second week in De- cember, Al Kessel continued to monitor the hiring of ex- Kroger employees. Thus, Huffman testified, with cor- roboration from Meat Manager Bradley Wallen, that on Monday, December 7, Kessel questioned him at the Cor- unna store, in the presence of Wallen, about the number of ex-Kroger employees already hired. Huffman asserted that Kessel then directed him for the first time to lower the percentage of ex-Kroger employees from 50 percent to one-third or less of the total work force. Wallen, that week, had expressed anxiety over the inexperience of the meat department employees However, Kessel, for his part, did not appear particularly disturbed and tried to reassure Wallen that matters were under control. Huff- man -and Wallen asserted, that Kessel stated, that he would not hire anyone from the Meat Cutters Union. Al- though Kessel,denied making any such statement, he ac- knowledged that he tried to allay Wallen's fears regard- ing the inexperience of his subordinates. It is undisputed that no nonsupervisory employee members of the Meat Cutters Union were hired in the meat department at the time the stores opened. 14 It is also alleged that Respondent, by and through its supervisors and/or agents Denise Henke, Mary Meacham, and Larry Schmidt, made similar statements to potential employees The two Saginaw stores opened on Wednesday, De- cember 2. The Corunna store opened 1 week later, De- cember 9, 1981. The Charging Unions picketed the stores from the date of the openings until November 1982.15 2. Case 7-CA-21213 The hearing in Case 7-CA-20284 opened on Septem- ber 20, 1982, and closed on October 7, 1982. Concerning that case, Richard Huffman and Bradley Wallen, two ad- mitted statutory supervisors, testified on behalf of the General Counsel and adversely to Respondent. While a parade of witnesses came to testify over 8 days during the initial hearing, 1 day, Tuesday, September 21, was devoted entirely to the testimony of Huffman. As noted previously, Huffman, while still employed as the Cor- unna store manager, testified, inter alia, that Kessel had pressed him to limit the hiring of Kroger personnel to avoid successor obligations. According to Huffman, in compliance therewith, he concentrated on hiring non- Kroger applicants. The evening of September 21, following Huffman's testimony, Al Kessel held a meeting of the Corunna su- pervisory staff. In addition to the department managers, Roy Brody, director of store operations (Huffman's im- mediate superior), and Gregory Crawford, comanager, were present. Kessel told those assembled, inter alia, that Huffman had testified on behalf of the NLRB and against Respondent. He discussed Huffman's testimony in general terms and characterized it to those present at thi, meeting, as reflecting "inaccurate recall." Kessel added that he had always trusted his "management people" but now did not really know what was going on in the store He invited his staff to "feel free" to come forward with information about Huffman and also Wallen, whom Kessel anticipated would similarly testify adversely to Respondent. Kessel instructed his staff to continue to treat Huffman as store manager, but pointed out that the latter would no longer have access to the office and con- fidential data. According to Kessel, he no longer wanted Huffman privy to confidential material because he had heard that someone was providing such, material to com- petitors and he now had reason to suspect Huffman. On the morning of September 22, the day after Huff- man testified, he reported for work as usual at the Cor- unna store, when he was greeted by Roy Brody, his brother Al Brody, and Huffman's assistant, Gregory Crawford. Brody and Huffman acknowledged that Huff- man was not to talk about the case to other store person- nel. Brody then asked for and received from Huffman the key to the store Huffman was told by Brody that he no longer had access to any confidential material and to stay out of both the cash office and manager's office. Further, Brody advised Huffman, that because of these limitations, his brother A] Brody would "run the front end which is the office and vendor control" and assist Huffman in running the store. Huffman testified that Al 15 It is alleged, inter alai, that Respondent's supervisors and/or agents made coercive statements to some of the pickets in violation of Sec 8(a)(1) of the Act Further, it is alleged that Respondent subsequently re- fused to hire Meardies Perry because she engaged in picketing (Case 7- CA-21402) KESSEL FOOD MARKETS 439 Brody followed him around that day but later apologized for doing so, pointing out that he was following orders. Huffman and Wallen were not scheduled to work on Thursday, September 23. That day, Huffman accompa- nied Wallen to the hearing in Flint, Michigan, where the latter testified adversely to Respondent , as Huffman had done 2 days earlier. That evening, after Wallen had testi- fied, he, accompanied by Huffman, went back to the Corunna store to check on the following day's work schedule. Soon after Huffman and Wallen arrived at the store, they were informed by Al Kessel that they were suspended with pay . Kessel instructed them to phone in every morning to learn about their employment status. According to Kessel, he suspended Huffman because he assertedly attempted to intimidate Richard Garrett, a meat department employee at the Corunna store . Garrett informed Kessel on Wednesday evening, September 22, that Huffman told him earlier that day, "Don't fuck me or I'll fuck you." Kessel assertedly suspended Wallen be- cause of the testimony of Richard Haney, another meat department employee. Haney testified on Thursday, Sep- tember 23, that Wallen told him back in July 1982, that the Union offered him $20,000 to testify against Kessel. Wallen denied receiving any bribe from the Union and denied further that he told anyone of any bribe offer. In suspending Wallen, Kessel also considered Wallen's friendship to Huffman. Between September 22 and mid-October, a number of department heads and employees reported to Kessel vir- tually everything that Huffman and Wallen did that they believed was not in the interest of Respondent. On Octo- ber 14, 1982, 1 week after the hearing closed in Case 7- CA-20284, Kessel dispatched letters to Huffman and Wallen advising them that they were discharged, effec- tive October 16, 1982 (Jt. Exhs. 7 and 8). According to Respondent, Huffman and Wallen were discharged be- cause of "repeated acts of disloyalty," which Albert Kessel did not learn about until after they were suspend- ed. The General Counsel , on the other hand, ascribes both the suspensions and discharges to the adverse testi- mony provided by Huffman and Wallen and contends that Respondent thereby violated Section 8(a)(4) and (1) of the Act. 3. Case 7-CA-21402 In or around the fall of 1981 , while Al Kessel was still employed by Hamady, President Dandy had directed him to explore the feasibility of acquiring three Kroger stores that were soon to close in the Saginaw/Corunna area. Further, Dandy expressed interest in the availability of five additional Kroger stores located in the Flint, Michigan area that he also expected to close. As noted previously, in November 1981, Kessel had acquired the three-store Kroger package for himself and terminated his employment relationship with Hamady. The five Flint area stores all closed on December 24, 1981. These stores were purchased by Kessel on April 30, 1982.16 18 While all eight stores (three Corunna/Saginaw and five Flint stores) were still owned and operated by Kroger , all hourly employees were en- compassed by a much broader unit in the State of Michigan , under suc- cessive collective-bargaining agreements with the Charging Union, Local In early May 1982,17 Al Kessel hired former Kroger Managers Dave Kilbourne, Tom Larar, Tom Sawyer, and Chuck Shinouskis to manage the same Flint facilities for Respondent.' 8 All store managers were required to report directly to Roy Brody, director of store oper- ations, a former Hamady official , whom Kessel had hired on May 2. Kessel had outlined for Brody, the desired employee profile to service the Flint area stores in much the same manner as he had with Morris regarding the Saginaw/Corunna facilities. Thus, the core of the work force was to be comprised of experienced , full-time em- ployees supported by a larger group of part -time em- ployees. Regarding part-timers, Kessel was more con- cerned with attitude in terms of servicing customers and appearance rather than experience . Kessel also told Brody that he preferred that the stores be nonunion. Kessel and Brody shared these views with the newly hired managers at a meeting in Saginaw on May 7. On Tuesday, May 11, Kessel placed a help-wanted ad- vertisement in The Flint Journal for virtually all posi- tions in the five Flint area stores. (Jt. Exh. 6.) The adver- tisement noted, inter alia, that applications would be taken the following day, May 12, from 12 noon to 6 p.m. at the new Kessel store on Bristol Road, and identified the location as a former Kroger facility. On May 12, the day of the mass application process, Al Kessel arrived at the Bristol Road store around 10 a.m. By that time, a long line of applicants had already gathered all around the shopping center in which the store was located. The store opened for the interviewing process to begin as scheduled, at around 12 noon but remained open until around 10:30 p.m., long after the 6 p.m. time set for the process to end. According to Kessel , this was done to enable everyone who appeared an opportunity to fill out an application and be interviewed . In all, some 1200 ap- plications were received that day by Respondent for ap- proximately 400 unit positions and some 30 supervisory positions. Each applicant was provided an interview last- ing a couple of minutes up to 5 minutes. Meardies Perry, a former Kroger employee, testified that during her May 12 interview, Al Kessel asked her (denied by Kessel), "Don't you think it [the closing of the Kroger store] was the Union 's fault?" Daniel Lancto, another former Kroger employee, testified that Tim Kessel asked him if he realized that the Flint stores would be nonunion . Tim Kessel denied discussing the Union with any applicants . Former Kroger employee Jeffrey Poissen testified without contradiction, that Tom Sawyer asked him if he knew that "there was a chance [Kessel stores] might be non-union," but added "it would be up to the employees after the store opened."19 40 (later became Local 876) and Local 539, the last of which by their terms expired on April 2, 1982 (G.C Exhs. 2 and 3.) 17 All dates refer to 1982 unless otherwise indicated. 18 The parties stipulated that these individuals were statutory supervi- sors and agents as of May 7. 19 Janet Colbern, another former Kroger employee, ascribed to Roy Brody a similar statement during an interview about I week before the Flint area stores opened Tom and Bruce Ketchum , former Kroger em- ployees, testified that Al Kessel told them in early May that the Flint Continued 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kessel asserted that Kroger applicants were to be given a preference and as such , he had his interviewers match and cross-reference them with ex-Kroger manag- ers who were now employed by Respondent. According to Kessel, he planned to have these applicants evaluated by Kessel managers who were familiar with their work. This evaluation process of Kroger applicants took place on Sunday, May 16. In attendance at the May 1'6 meeting were the four former Kroger managers (Kilbourne, Lazar , Shinouskis, and Sawyer), Albert Kessel , his son Tim, and Roy Brody. Earlier, Tim Kessel had sorted Kroger applica- tions from all other applications so that they could be as- sessed at this meeting At that outset, Al Kessel told the former Kroger managers that the purpose of the meeting was to evaluate Kroger applicants and that he was going to "hire strictly" on their recommendations . Kessel testi- fied that he pointed out that despite what they read in the newspaper, he was not concerned about a quota or percentage of Kroger applicants but rather "preferred" Kroger experience as a source for potential employees.20 The evaluation process consisted of rating each Kroger applicant ( 120 in all), as excellent , good, only av- erage, or poor . Kessel listed on sheets of paper the name of the applicant, the previous Kroger store at which the applicant was employed , and a separate heading or column for each of the four managers for their respec- tive ratings along with special comments (R. Exh. 31). Of the 120 applicants who were evaluated at the session, .79 were hired (R. Exh . 37) Nineteen of them were hired into supervisory positions . All told , as of the date the five Flint area stores opened , Respondent employed 395 unit employees and 37 supervisors.2 i (R. Exhs. 25(a)-(e) and 37.) On May 23, the Respondent opened, its five area Flint stores The Charging Unions commenced picketing from the date those stores opened until November 1982. According to former Kroger employees Rebecca Green and Meardies Perry, in October or November 1982, Richard Knight, a Kessel comanager, indicated to Perry that she could not be hired because she carried a picket sign . Green testified that Knight conveyed "bitter feelings" against the Union and told her that the stores would close "if the judge rules against Kessel." Knight denied the essence of the statements ascribed to him. On November 3, the underlying charges in Case 7- CA-21402 were filed relative to the five area Flint stores, giving rise to a complaint dated December 10, 1982 According to the General Counsel, Kessel engaged in substantially the same misconduct. with the Flint area stores as he had regarding his Saginaw/Corunna facili- ties A discussion follows. area stores would be nonunion According to the' General Counsel, the reference to the Flint area stores as nonunion and questioning of appli- cants regarding the Union's role vis-a-vis the closing of the Kroger stores violated Sec 8(a)(1) of the Act 20 The General Counsel contends that statements were self-serving and made with an eye toward the complaint allegations in Case 7-CA-20284 dated March 16, 1982 (G C Exh 1(m) ) 2i The overall numerical breakdown in terms of percentages and ratios will be treated more fully, infra, in discussing the successor issue B. Discussion and Conclusions 1. Credibility a Principal witnesses The General Counsel's witnesses are Richard Huffman and Bradley Wallen, and Respondent 's witnesses are Albert Kessel, Timothy Kessel, Sanford Morris, Richard Haney, and Gary Rubelman. Early on, it became clear that many material facts were in dispute and that the major issues would turn on credibility resolutions. Thus, I actively participated in questioning witnesses ,when,, inter alia, their responses were confusing or ambiguous , taking special care to ob- serve demeanor factors. I voiced my concerns, relative to credibility, on the record, stating, inter alia, "I would expect respective counsel to devote time and care [in their briefs], in attempting to persuade me why one wit- ness should be credited over another ." In particular, they were asked to treat the plausibility of testimony as well as to point out whether witnesses testified against their "pecuniary and/or other self interest." This latter factor was underscored because few of the 65 witnesses could be said to have been purely disinterested in the outcome of the case . Of particular significance was the testimony of Huffman and Wallen (admittedly statutory supervisors and agents), because they testified adversely to Kessel at a time when they were still employed by him, and there- fore, ostensibly contrary to their own interests , a matter not to be lightly regarded See, e g., Narragansett Restau- rant Corp., 243 NLRB 125, 129 fn 17 (1979), Our-Way, Inc., 238 NLRB 209, 214 fn 21 (1978), and cases cited therein. Respondent adduced testimony tending to show that Wallen, and Huffman to a lesser extent, explored other employment opportunities while still employed by Kessel Thus, Respondent argues that because Huffman and Wallen were planning to quit, they were no longer in a vulnerable position and therefore neither testified against their pecuniary interest . Respondent also makes the serious accusation that Huffman and Wallen testified falsely because they were the 'recipients of briefs. As it became evident that the case would turn largely on the credibility of Huffman and Wallen, I permitted the Respondent a wide latitude in cross-examining them particularly when it related to the issue of whether Huff- man and Wallen testified adversely to` their pecuniary or other self-interest. I also permitted, over the General Counsel's objection, the testimony of Ronald Frick, dis- trict operations manager for the Taco Bell Corporation, who testified that on August 29, he interviewed Wallen for a manager trainee position Wallen, however, after his initial efforts, exhibited little interest in that job. Thus, he failed to show up for three subsequent inter- views, the last time on September 9. Wallen, who testi- fied on September 23, denied that he had any intention of leaving Respondent at that time., Frick acknowledged that Wallen was never actually offered a job with Taco Bell. - In these circumstances, the fact that Wallen, from time to time, explored other employment opportunities is not KESSEL FOOD MARKETS 441 tantamount to establishing that he had made definitive plans to leave his job. This is also true as it applies to Huffman. As such, I find little in the record to justify re- jecting as a factor, in assessing overall credibility, that Huffman and Wallen testified against their pecuniary in- terest. As for the bribery charges, Respondent relies mainly on the testimony of Richard Haney and Gary Rubelman, neither of whom impressed me as forthright , disinterest- ed, or reliable witnesses. Haney was employed in the Corunna store, in the meat department under the supervision of Wallen. He and Wallen met as coworkers at the Corunna store and had become friends . They were on the same bowling team and sometimes, after work, they would stop in at a bar together. According to Haney, in late June or early July 1982, in the meat room at the Corunna store, Wallen told him that the Union (not otherwise identified) offered to pay him $20,000 to testify against Kessel. Haney was unsure about how the subject came up and little else was said about it at that time . He testified that about a month and one-half later, Wallen told him that Wallen knew enough to put Kessel out of business. Ac- cording to Haney, Wallen told him at that time of a con- versation with Huffman and Kessel when the latter spoke of the need to maintain a quota on ex-Kroger em- ployees to keep the Union out. Wallen denied that these conversations occurred. Rubelman was also employed in the Corunna store as an hourly employee in the produce department . He spent evenings at the Shamrock Inn, a bar owned by a friend, where he asserted, that on one occasion in mid-June 1982, he was engaged in conversation with Wallen. Ru- belman testified that Wallen told him that, "The Union must be getting desperate, because they offered me $20,000 to testify against Al Kessel." According to Ru- belman, he did not take Wallen seriously, commenting, "You've got to be shitting me." To this Wallen asserted- ly responded, "Hey, if you don't believe me, ask Rick Huffman; they offered him the same thing." Nothing else was said at that time. Rubelman testified that a couple of weeks later, Wallen told him in the Corunna store that Al Kessel better hope that he, Wallen, does not have to testify, because he "Knows enough to put Al six feet under." Wallen did not explain further nor did Rubelman question Wallen about this subject . Wallen denied receiv- ing a bribe or telling anyone that a bribe offer was made. According to Respondent, the General Counsel failed to establish any reason why Haney and Rubelman would lie. Respondent notes that both were fellow employees, the former, a friend, and the latter, a former union member. Thus Respondent argues that neither Haney nor Rubelman had reason to be biased against Wallen; nei- ther had anything to gain. On the contrary, I find that the record disclosed a number of factors tending to sug- gest bias or self-interest. In Haney's case, the record disclosed that he was ini- tially hired as the meat manager of the Corunna store at $400 a week. After only 1 day, however, Haney told company officials that he did not know enough to fulfill his managerial responsibilities. Respondent then demoted him to the manager trainee position at $300 a week but promised to restore him to the manager's slot when he acquired more experience. Indeed, Haney testified that he expected to be so promoted . In these circumstances, it would appear that Haney had much to gain by helping to remove Wallen as an obstacle to his own career devel- opment. After some 9 months as a manager trainee, Haney would be ready to return to his original status and fill the slot left vacant by Wallen. As for Haney considering Wallen a friend , I note that Haney displayed no visible displeasure in opining that his "friend" had a "very low" reputation for the truth. Haney testified that "[Wallen] can tell one person one thing, and he'll come back and tell somebody else some- thing else. It's just hard to believe what he says most of the time." Given the likelihood of Haney's advancement in the Company's hierarchy with the corresponding de- parture of Wallen, it cannot be said that the former was merely a disinterested witness whose testimony should be afforded greater weight because they were friends. In discounting the friendship factor, it is also noted that Haney "volunteered" the information of the alleged bribe offer to officials of Respondent . In doing so, and reflecting adversely on Haney's credibility, is the fact that he waited from 2-1/2 to 3 months to pass this infor- mation on to Respondent. Although, during that same time frame, Haney dated a coemployee, the daughter of the police chief for the town of Corunna, he asserted that he did not reveal anything to them or anyone else about the alleged bribe offer . Haney maintained his si- lence for several months without any explanation al- though he acknowledged that he understood that a bribe offer was illegal. These factors further militate against the reliability of Haney as a witness. As noted above, Haney had much to gain by aligning himself with Re- spondent. Haney's identification with Respondent was further manifest by his reference on cross-examination to Martin, counsel for Respondent as "my attorney." In short, I reject Haney's testimony in critical areas as not reliable or credible. As for Rubelman, I also found him to be credible as a witness. For example, his account of his employment interview is not only implausible but disputed in part by Morris, a key Respondent witness. According to Rubelman, he was interviewed solely by Huffman with no one else present . Rubelman testified that during the interview session, he volunteered that he was a former union member and once served as a shop steward while employed by Giant Supermarkets. He ex- plained that he introduced the subject of his union activi- ties because "I felt that would have a bearing on wheth- er I was hired or not." Huffman assertedly reassured Ru- belman that he need not be concerned about his previous union activities because Respondent was under no quota restriction regarding union people. Contrary to Rubelman , both Morris and Huffman mu- tually corroborated each other to the extent that they confirm their respective presence at Rubelman 's inter- view. Further, Morris denied any discussion relative to Rubelman as a former shop steward. In any event, it defies logic for Rubelman to raise the subject of his former union service to enhance his hiring prospects, 442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD where, as here, he believed that Respondent was a non- union operation. In rejecting Rubelman's testimony as implausible, it is also noted that there is nothing in his resume or employment application remotely suggesting that he once served as a union steward. On the other hand, Rubelman's resume reveals, inter alia, that in his most recent job, "I also served as the company representa- tive for all union matters." (Emphasis added, G.C. Exh. 10(c)(46).) As with Haney, it is noted that Rubelman waited months before disclosing to his superiors what Wallen as- sertedly told him regarding the bribe offer. This unex- plained delay, particularly by one experienced in repre- senting management in labor-management relations, tends to Beverly undermine his credibility. It is noted that Ru- belman was unemployed for approximately 9 months before finally securing a job with Respondent. Perhaps Rubelman seized on the alleged bribe idea as a way to curry favor with his new employer. In any event, I reject Rubelman's testimony as not credible. Aside from the rejected testimony of Haney and Ru- belman, there is a dearth of probative evidence tending to support Respondent's bribery ; charges. Thus, the record is silent with regard to the name of the Union or Unions involved in the -alleged bribe offer as well as the identity of the alleged briber. On the other hand, the presidents of Locals 539 and 876 (the Charging Unions) testified, without contradiction, that they had no knowl- edge of any bribe offers. It is also noted that the financial records of Huffman and Wallen were subpoenaed by Re- spondent, but nothing was offered in evidence with regard thereto to support the bribe theory. Nor was ad- ditional time requested to investigate and/or assess these records more fully. Although I treated the bribery charges as made in good faith, I am unwilling, in the ab- sence of concrete or probative evidence, to rely on con- jecture or speculation to sustain accusations of such a se- rious nature. Conversely, I credit the denials by Huffman and Wallen and have otherwise found them to be credi- ble witnesses in material areas for reasons discussed below. Huffman was clearly the principal witness on behalf of the General Counsel. As a store manager, he testified ad- versely to Respondent from an insider's perspective. By virtue of that position, Huffman had a proximity to Kessel where he could be expected to learn directly about Kessel's intentions and motivation. It is undisputed that even while Huffman was being re- cruited by Morris, on behalf of Kessel, and before any of the Kroger stores were purchased, he was advised that Respondent would operate on a nonunion basis. Accord- ing to Huffman, to accomplish this, Al Kessel, inter alia, directed him to limit the number of ex-Kroger employees to be hired from one-third to less than 50 percent. Huffman testified that on Friday, November 27, his first day in the employ of Respondent, Kessel had ad- vised him, inter alia, that he had already hired the initial or central core of his staff (comprising supervisors and full-time employees) for the two Saginaw stores and in- structed Huffman to concentrate on filling the remaining positions with non-Kroger personnel. Those remaining vacancies, for the most part, were for cashiers and cour- tesy clerks, largely part-time positions. Huffman testified that earlier that evening Al Kessel's son, Timothy, had given him approximately 100 applications to screen and from which to call and schedule interviews for the fol- lowing day. According to Huffman, in order to comply with Kessel's orders to concentrate on hiring non-Kroger personnel, he divided the applications into Kroger and non-Kroger piles, placing and "X" in the upper right- hand corner of all Kroger applications. Huffman asserted that he called only non-Kroger applicants (from applica- tions without an "X" mark) for interviews while disre- garding the Kroger file. Respondent disputes Huffman's, account of the "X's" contending that the "X" mark was placed on applica- tions only by Morris and Timothy Kessel and not by Huffman. According to Morris and Timothy Kessel, they had decided early on to place an "X" on applications they would no longer consider, when their efforts were unsuccessful in contacting the applicant or the applicant was not acceptable for employment.22 They denied that the "X" mark was related to Kroger employment. Timo- thy Kessel also asserted that he had given Huffman the disputed applications on Saturday, November 28, and not on the previous day as testified by Huffman. Contrary to Respondent, I find merit in the General Counsel's contention, "The fact that others utilized (X's) does not negate Huffman's testimony that he developed this system for himself." In this connection, it is noted that Huffman was not told of the Morris-Kessel system, nor did he reveal his system to them. This would certain- ly help account for the - different conditions that pre- vailed relative to "X's" on the applications.23 Thus, I am unpersuaded that Huffman testified falsely because Re- spondent contends and the record disclosed that some applications of former Kroger employees who had ap- plied for cashier positions and were not hired are with- out an "X" and applications of former Kroger employees who did not apply for cashier positions were marked with an "X." According to Timothy Kessel, on Friday, November 27, he had taken the applications from the Bay Road store and kept them in his room that night at the Holi- day Inn. He denied that he had given any of the applica- tions to Huffman until the following day. Morris on the other hand recalled that Huffman helped sort those ap- plications on November 27. Moreover, Morris recalled that Timothy Kessel interviewed cashiers on November 28. Morris' testimony in this regard would tend to cor- roborate Huffman's account that he called cashier appli- cants on Friday, November 27, to set up interviews for the following day. Given the total circumstances, noting, inter alia, that Timothy Kessel as vice president and son of the owner and Respondent was not a disinterested witness, and that I found Huffman to be plausible and 22 Timothy Kessel, when asked who initiated the "X" responded, "It would have been Mr Morris' or mine I don't recall That was j ust what we started to do I don't recall specifically whether it was him or myself'' Kessel's uncertainty may have also reflected a lack of candor. In any event, I did not find him to be forthright or credible as a witness 23 The record disclosed that 57 of the several thousand applications that were submitted contain an "X" mark (R Exh 15 ) KESSEL FOOD MARKETS 443 credible for additional reasons noted below , I credit Huffman's account over the version provided by Timo- thy Kessel. Still during the evening of November 27, in a room at the Holiday Inn, Huffman testified that Al Kessel de- clared to members of his new managerial staff, "No way in hell did [he] want the fucking union to have penetra- tion into the stores, because if Kroger could not have survived in that area with union representation , there's no way Kessel stores could ." Although Al Kessel, his son, Timothy Kessel, and Morris denied any such state- ment, they clearly were not disinterested witnesses.24 Timothy Kessel could not recall seeing Huffman at that time although it is noted that Huffman's presence was confirmed by Morris. On the other hand, Huffman also placed Terry Smith, manager at the State Street store, and Larry Schmidt, manager of the Bay Road store in the room at the time the alleged critical statement was made, but Respondent did not call either one as a wit- ness, and offered no explanation for its failure to have them testify. In these circumstances, I deem it appropri- ate to draw an inference that their testimony would have been unfavorable to Respondent. See Martin Luther King, Sr., Nursing Center, 231 NLRB 15 fn. 1 (1977). Huffman credibly testified that later that same evening (still November 27), in the privacy of Al Kessel' s car, in the Holiday Inn parking lot, the latter had denigrated Richard Phillips, the president of Meat Cutters Union, Local 539, and ordered Huffman not to hire anyone from that Union. According to Al and Timothy Kessel, on the evening of Saturday, November 28 (not on November 27 as testified by Huffman), the senior Kessel looked in on his son and Huffman in their adjoining rooms at the Hol- iday Inn to check on their progress. Timothy Kessel as- sertedly stepped outside the room and complained to his father that Huffman, inter alia, was spending too much time on the phone setting up interviews. It is undisputed that Al Kessel had his son summon Huffman for a private meeting in the senior Kessel's car. The critical dispute is over the subject of that private meeting: Whether Kessel made antiunion remarks, as tes- tified by Huffman; or, whether Huffman was admonished regarding his handling of the phone calls, as testified by Kessel. I find Huffman's account more plausible. I find the fact that Respondent did not hire Kroger Meat De- partment employees from any of the three Saginaw/- Corunna stores for unit positions is fully consonant with the remarks Huffman ascribed to Kessel relative to the Meat Cutters Union, Local 539.25 24 In Morris' case, the record disclosed not only that he and Al Kessel were longtime colleagues when employed by Hamady , but that the former was also a confidant of Al Kessel . Thus, Morris testified that back around April 1981, Kessel had disclosed his interest to form his own busi- ness and invited Morris to join him as a partner. Although Morris reject- ed that idea, he promised Kessel that he would always make himself available to help get him started This came to pass in November 1981 when Morris again turned down a partnership offer but kept his promise to help get Kessel started and executed a consulting agreement (R. Exh 4). Although the foregoing , by itself, clearly does not serve as a basis for rejecting Morris' testimony, it does tend to militate against Respondent's contention that Morris was a disinterested witness. 25 According to Kessel, his "first choice" was "Kroger Meat Depart- ment employees. They just didn't apply " I find, however, that Kessel's asserted preference, vis-a-vis ex-Kroger employees, is hardly supported I can discern little need for the privacy of Kessel's car, if the disputed conversation merely related to Huffman's handling of the phone calls. Rather, it is more likely that privacy was needed, if as testified by Huffman, the sub- ject related to Kessel's antiunion animus. Further, I find it highly unlikely that if Timothy Kessel had complaints about Huffman, that the former, as a vice president and son of the owner, would not have taken a moment to tell Huffman directly, particularly when, as here, they worked in adjoining rooms and could hear each other. Admittedly, this was not done. I also credit Huffman over Morris when their testimo- ny is in dispute. Huffman asserted that at an orientation breakfast with Morris on November 27, the latter ad- vised him to limit the number of former Kroger employ- ees to be hired. According to Huffman, Morris told him that Kessel was fearful that a "majority" of Kroger per- sonnel might lead to unionization and "the store would have no chance for success." Although Morris admitted- ly outlined the criteria in hiring on that occasion, he denied that anything was said regarding union consider- ations. According to Morris, he told Huffman, inter alia, that Kessel was not going to strictly follow the Kroger "system" and that he, Huffman, would be "responsible for making this thing click or there won't be a job for anyone." In not crediting Morris, it is noted, inter alia, that he acknowledged on cross-examination that if he were talk- ing to Huffman, "the primary difference " between the Kroger and Kessel operations is that under Kessel, there would be no union. In these circumstances, I find it highly unlikely that Morris would tell Huffman that "Kessel" would not be operated as "Kroger " without also making a reference to the Union when, by his own admission, the "primary difference" is that Kessel would not have a union. It makes little sense for Morris not to have said anything about the Union, particularly when, by his own admission , he informed Huffman as early as November 13 that the stores would be operated on a nonunion basis. Further, Morris' credibility is not en- hanced by his assertion that he asked Kessel on Novem- ber 14 whether he intended to operate with a union and was assertedly told for the first time that Kessel had a preference that the stores be nonunion . I find incredu- lous, as testified by Morris, that he told Huffman on No- vember 13 that Respondent would be nonunion although Morris assertedly did not actually learn of Kessel's pref- erence until he asked Kessel on November 14. Further undermining the reliability of Morris' testimony is his equivocal response about why he made such an inquiry of Kessel. Morris responded, "For my own edification. I can't really say why I asked that question." As noted above, I found Huffman to be a credible wit- ness. He testified on four separate occasions, and once by probative or credible evidence The record disclosed that there were 20 openings in the meat departments of the Saginaw /Corunna stores for which 4 ex-Kroger employees applied : Thomas Boland (G C. Exh. IIB- 5), Marlene Kleinbriel (G.C Exh 11B-22), Douglas Ochodnicky (undis- puted testimony), and Robert Shaler (G.C. Exh. IIB-48). None of the aforenamed applicants was hired and I am not persuaded by credible tes- timony that Respondent made any genuine effort to reach any of these applicants 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for an entire day The cross-examination was skilled and grueling Respondent, recognizing the critical nature of Huffman's testimony, paraded a host of witnesses for im- peachment purposes. In these circumstances, it is not sur- prising that his testimony is not without some confusion or minor inconsistencies 26 In the main, however, I found Huffman to be candid and his testimony in critical areas to be consistent and plausible, particularly in the context of Kessel's history at Hamady The record disclosed that Kessel had long been famil- iar with the principles of successorship. While at Hamady, Kessel expressed the view to company officials that neither the Hamady-union contracts nor the Kroger- union contracts obligated Hamady to operate Kroger stores (which were about to be acquired by Hamady), as union facilities. Although this, by itself, is of little conse- quence or materiality, it is also noted that Kessel recom- mended opening these stores on a nonunion basis. Kessel admittedly had been advised by Howard Grossman, a labor attorney for Hamady, that by hiring a majority of Kroger's employees from the acquired stores, it would obligate Hamady to recognize the Unions.27 Kessel told Hamady officials that they were not obligated to give preference to Kroger personnel. However, Kessel's posi- tion and recommendations were rejected by other Hamady officials. As stated by Morris, "I guess we voted against doing what [Kessel] suggested." It appears that Kessel's expectations for a viable retail supermarket operation could be realized, as perceived by him, only if he were unencumbered by union consider- ations. To Kessel, it was central to his business that he have a free reign regarding wages and other terms and conditions of employment, at least, mitially.28 Thus, 26 For example, Huffman first testified that former Kroger employee Patricia Masser requested a job application before the Corunna store opened Masser denied that she had any contact with Huffman relative to an application before the Corunna store opened Huffman later acknowl- edged that Masser sought an application after the store opened He ex- plained that he thought the question initially pertained to the period just before and after the store opened In any event, given the huge number of applicants around the time of the store's opening, I do not deem Huff- man's error as a material basis for casting doubt on his credibility 27 Norman Griffin, currently vice president of personnel and labor re- lations for Hamady, credibly testified, inter alia, that Kessel had recom- mended that they hire less than a majority of Kroger's employees to avoid any obligation to recognize and bargain with the Union As noted previously, the record disclosed ongoing civil litigation between Hamady and Kessel Although it may be that Griffin was not a disinterested wit- ness, there is no showing that he was involved in the aforenoted litiga- tion It is also likely that Griffin was mistaken when he denied that he attended a farewell party for Kessel On balance, however, I found his testimony largely corroborated by Grossman and Kessel as well as plausi- ble, particularly as Kessel recommended that Hamady look elsewhere for its employees and open up the stores on a nonunion basis Because the foregoing and on my observation of demeanor factors, I credit Griffin in material respects 28 According to Alex Dandy, president of Hamady, Kessel complained that union rates were too high and that the only way to make money from the 21 Kroger stores would be to open them nonunion Although Dandy's testimony in this regard tends to square with the record, I found that too often he was evasive, unresponsive, and clearly not disinterested In this latter regard, the record disclosed that he is deeply involved in outstanding litigation alleging, inter alia, misconduct by Kessel, as a Hamady official regarding the purchase of Kroger stores for himself In short, I do not rely on Dandy's testimony Kessel admitted, that if he had to deal with a union, he would not have acquired the Kroger stores unless he had "the benefit of establishing the package or hiring the people." Although such a view, by itself, is not unlawful, it does tend to show that union considerations were cen- tral to his operation and that he would so advise his sub- ordinates, as testified by Huffman. In assessing Huffman's overall credibility, I made spe- cial note of his candor. For example, Huffman acknowl- edged that in July 1982, in a, private meeting with his su- perior, Roy Brody, the latter had been justified in criti- cizing him for not fulfilling his overall managerial re- sponsibilities. Huffman testified that Brody pointed out that he was not getting enough production from his sub- ordinates because of the "stupid" way in which he worked their schedule. He and Brody got into an argu- ment and the latter threatened to transfer or replace Huffman with another manager unless conditions in the store improved. However, before the meeting ended, a certain calm ensued and Brody helped Huffman rewrite the schedule. That was the last time Huffman was threat- ened with transfer or removal Brody admitted that Huffman showed improvement and that by mid-August conditions were "much better." In fact, at the time Brody testified, conditions in the ^Corunna store were "fine" and on "par" with the other stores. In these cir- cumstances, it is not likely that Huffman fabricated his testimony out of fear of losing his job because of poor performance. While Huffman testified adversely to Kessel, he also noted that a "majority" of Kroger employees at the interviews were unhappy with the Union. As such, I find Huffman's account and assessment of Kroger applicants regarding their union animus also reflects favorably on his candor He testified as follows: I would say that the majority of them were very angry with the Union. The majority of them felt that the Union did not allow them to take conces- sions And it was my general impression that these applicants were just angry at the Union, and they would be glad to work in a n_on-union store. They just wanted to work. As for Huffman's reasons for testifying, particularly as I am persuaded, on the state of this record, that he testi- fied against his pecuniary interest, I find them plausible and worthy of acceptance. Huffman asserted that he "set certain values" for himself and for his family He con- tacted the Union about 2 weeks before the trial because, in his words, "I was afraid that if I did not come for- ward, that I would be called by Kessel lawyers, and I might be forced to perjure myself, and didn't want to do that." According to Huffman, he had lied when he initially told counsel for Respondent, in preparation for trial, that he did not discriminate regarding hiring practice because he believed that it was expected and he was fearful of losing his job. Although he was no less fearful of losing his job at the time he testified, it appears that the fear or abhorrence to commit perjury was the great equalizer. I KESSEL FOOD MARKETS 445 accept that, and as much, and on the basis of the entire record, I credit his testimony As noted previously, I have also found that Bradley Wallen testified credibly in material respects. The es- sence of Wallen's testimony deals with antiunion state- ments ascribed to Al Kessel as well as efforts by Kessel to monitor hiring at the Corunna store It is undisputed that Wallen had expressed to Kessel that he was troubled over the inexperience of his subor- dinates in the meat department. Wallen, with corrobora- tion from Huffman, credibly testified that he urged Kessel to hire journeymen meatcutters, but the latter stated that he would not hire anyone from the Meat Cut- ters Union Kessel denied that he made any such state- ment. Moreover, Kessel asserted that Kroger employees with meat department experience were actually his "first choice" but they did not apply. As noted previously, Kessel's assertion regarding a first preference for Kroger employees (all members of the Meat Cutters Union) is not supported by credible evidence (See fn. 25 supra ) As- for Kessel's denials of the statements ascribed to him by Wallen, in rejecting them, it is noted for reasons discussed previously, inter alia, that he was not other- wise plausible, reliable, or credible. On the other hand, Wallen's testimony vis-a-vis Kessel, inter alia, was sub- stantially corroborated by Huffman, who, as noted above, impressed me as a most reliable and credible wit- ness. b. Other witnesses As noted previously, the General Counsel contends that Respondent limited the number of "Kroger" appli- cants to be hired to avoid successor obligations In sup- port thereof, inter alia, the General Counsel adduced tes- timony from Yolanda Ortega, her daughter, Patricia Kubik, James McLaren, and Douglas Ochodnicky ascrib- ing certain statements to Larry Schmidt, a store manag- er, and Supervisors Denise Henke and Mary Meacham. According to the aforenamed witnesses, on November 27, at the Bay Road store, Manager Larry Schmidt told them, as well as four other "Kroger" applicants, collec- tively in a group, that they were as good as hired and that they need not fill out applications It is undisputed that they were told to write their names, phone numbers, the job sought, and experience on yellow pad paper, and that they would be contacted by phone. The only one contacted and hired was Linda Graves, and she was hired the very next day Graves testified on behalf of Re- spondent. According to Graves, it was not Schmidt who spoke to the group, but Comanager Gary Gwizdala. Although Graves confirmed that they were told that it was not necessary to fill out applications, she denied that Gwiz- dala had given them any assurances that they would be hired. Neither Schmidt nor Gwizdala testified. I credit the General Counsel's witnesses over Graves for reasons discussed below. It is undisputed that Denise Henke, front-end supervi- sor, favored this group of eight applicants because they were her friends and/or coworkers at Kroger. As testi- fied by Henke, this was done with the permission of Manager Schmidt by sneaking them into the store through the back entrance, thereby bypassing many ap- plicants who were in front of them on line, awaiting the hiring process to commence. Henke's reference to attain- ing permission from Manager Schmidt tends to support the account provided by the General Counsel's witnesses at least insofar as establishing a nexus between Schmidt and the group. Graves' difficulty with Gwizdala's name also tends to cast some doubt that her identification of him was accurate. Thus Graves testified that the coman- ager's name is "Gary Wasneli, or something along that line I'm not really certain about his last name." In con- trast, Sally Ortega testified without contradiction that she recognized Schmidt from her recent employment at Kroger's Euclid store. Even Graves testified that once inside, Henke told the group to "talk to the manager." This reference to "manager" and the linkage to Schmidt persuade me that Schmidt spoke to the group as testified by the General Counsel's witnesses In this regard it is also noted that Respondent failed to call either Manager Schmidt or Comanager Gwizdala to rebut the testimony ascribed to the former - As for Graves otherwise as a witness, it is noted that at times she was inconsistent, evasive, unresponsive, and in conflict with Henke (Respondent's other witness). Thus, it is noted, inter alia, that while Henke admitted that she told the group that she had been hired as front- end supervisor, Graves denied that Henke said anything about her position with Kessel. In short, I did not find Graves credible as a witness. Ochodnicky testified that on December 22, after the Bay Road store had opened, he went back to that store and questioned Schmidt about why he had not been hired. According to Ochodnicky, Schmidt denied that he promised to hire him, but also pointed to the union pick- ets outside the store as a reason why he could not do anything for him at that time Ochodnicky also testified that Schmidt told him that he had to hold the number of Kroger employees to under 50 percent to avoid dealing with the Union However, he assertedly suggested that Ochodnicky fill out a formal application that was done within the hour (R. Exh. 5). In assessing Ochodnicky's credibility, it is noted that he was confused, inconsistent, implausible, and clearly mistaken about dates. For example, Ochodnicky first tes- tified that he went back to the Bay Road store to see Schmidt 2 days after the "group" meeting of November 27. Although Ochodnicky asserted that on the same day he submitted a job application, the date thereon is De- cember' 22 He explained his confusion stating, "The only reason I say it was before Thanksgiving is because I re- member them marking up turkeys . . . maybe it was before Christmas " However, still later, Ochodnicky re- verted to his earlier testimony, to wit, that he saw Schmidt 2 days after the initial meeting and that he sub- mitted an application about one-half hour after that second meeting. Given the fact that Ochodnicky identified his signature on the application, I find no basis for rejecting the date thereon (December 22) as inaccurate. As such, and as Ochodnicky was otherwise unimpressive as a witness, and in the absence of other credible corroborative test 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony, I find no reasonable basis to credit his account. In arriving at that conclusion, I find that Schmidt's failure to testify, so heavily relied on by the General Counsel is insufficient to overcome the above-described impedi- ments to Ochodnicky's reliability as a witness. Accord- ingly, I reject Ochodnicky's account of his private meet- ing with Schmidt. It is undisputed that McLaren phoned Henke at the Bay Road store soon after the 'disputed group meeting with Schmidt and inquired about his hiring status. Ac- cording to McLaren, Henke told him that she was sorry, but that the Company had filled its quota of Kroger em- ployees. Henke denied saying anything about a quota or that she made any reference to Kroger. According to Henke, she told McLaren that she did not have anything to do with hiring and pointed out that she was certain that because his application was on file, it would be con- sidered in the future. As for McLaren's response all Henke recalls is that he said, "Oh" and sounded disap- pointed. I reject Henke's account as implausible and in- credible. It is undisputed that McLaren had not submitted an application as he and other members of the so-called "Kroger" group were told that it was not necessary. In these circumstances, it would appear most likely that if, as testified by Henke, she gave McLaren some hope for future employment based on his application (supposedly already on file), McLaren would have corrected her or would have said something other than "Oh." Respondent assails McLaren's credibility on the basis that he was a paid union picket. Although McLaren was not a disinterested witness and potentially may derive a benefit if the case is decided against Kessel, this by itself hardly disqualifies him as a truthful witness. Rather, I find other factors in the record are more persuasive in assessing McLaren's credibility. I find that his testimony is generally consistent, plausible, and substantially cor- roborated, particularly regarding the group meeting with Schmidt on November 27. As I was also impressed with McLaren's demeanor, I find that he testified credibly. On the other hand, I found Henke vague, evasive, im- plausible, and sometimes inconsistent. Regarding the last of the aforenoted factors, it is noted, inter alia, that while Henke admittedly told the group on Friday, November 27, that she was hired as front-end manager or supervi- sor, she also testified that the decision that she was to hold that position was not made until Saturday, Novem- ber 28. Under all the circumstances, including demeanor fac- tors, I credit McLaren over Henke when their testimony is in dispute. It is undisputed that in late November, Bonnie Flateau phoned Mary Meacham, her former Kroger colleague, and asked her about her chances of receiving a job with Kessel. Flateau testified that Meacham told her, "not to be disappointed if I wasn't hired, because [Kessel would] only be able to take a certain percentage of Kroger people, otherwise he'd be in trouble with the Union." Meacham denied making that statement. Respondent contends that Flateau was biased and not a credible witness because, inter alia, "[she] would per- sonally benefit from any decision ordering Kessel to offer her a job or pay damages to her." Respondent also points out that Flateau has been actively engaged in picketing Respondent's stores and as "picket captain" has earned money more than other pickets for such activi- ties. Moreover, Respondent denies that Meacham was a supervisor at the time of the conversation with Flateau and therefore, "the alleged statement, even if made, would not be binding on Respondent." As noted previously, only a few of the 65 witnesses to testify on behalf of the respective parties were disinter- ested in the pure sense or did not have any stake in the outcome of this case. According to Respondent, "Mea- cham [unlike Flateau], has no reason to be biased or to slant her testimony." I see the circumstances differently. First of all, it is noted that several thousand applicants expressed some interest in working for Respondent for a limited number of jobs. The Meacham family appeared to be among the fortunate . In addition to Mary Mea- cham, Kessel also hired one son, two daughters, and a son-in-law. It is also noted that her son-in-law's father is a comanager in one of Kessel 's stores. Meacham herself was hired as a supervisor in the State Street store, the same position that she held for Kroger. Thus, instead of a 15-mile drive to the Euclid store where Meacham had transferred after the Slate Street store closed, she now had only a 5-minute commute. Given this backdrop, Meacham could well consider herself indebted to Kessel. This may explain Meacham's strange response to Kessel's inquiry relative to Greg Ortega as a potential employee. Meacham prefaced her recommendation by asking Kessel, "Do you want the truth or do you want the lie?" When Kessel assertedly told Meacham that he wanted the truth, she recommended against hiring Ortega. This type of equivocal response suggests a willingness to be less than forthright. Overall, in addition to finding Meacham less than forthright, I found her at times vague , evasive, and in- consistent. For example, she first testified that she told Timothy Kessel that she could not be reinterviewed on Saturday because she had to work that day. Later, Mea- cham testified that the given Saturday was her day off. On the other hand, I found Flateau generally consist- ent, responsive, and plausible. In this regard, it is noted, inter alia, that the statement she ascribed to Meacham is consistent with similar statements emanating from other members of management. Although neither Flateau nor Meacham was disinterested, a total assessment including demeanor factors persuades me that the former testified truthfully. In short, I credit Flateau over Meacham when their testimony is in conflict. I also find that Meacham at all times material was a supervisor and/or agent as alleged . The parties stipulat- ed, the record disclosed, and I find that Meacham was hired by Respondent on November 21 as front-end man- ager, a statutory supervisory position , that she com- menced work on November 23, and was a statutory su- pervisor on December 2, when the State Street store opened. In dispute is Meacham's supervisory status in KESSEL FOOD MARKETS late November, before the store opened, when she had the conversation with Flateau.29 In finding that Meacham was a statutory supervisor and/or agent during the disputed period, it is noted, inter alia, that she was already engaged in a number of mana- gerial functions. Thus the record disclosed that on No- vember 27, Kessel had provided a buffet dinner for his managerial staff that included Meacham. On that occa- sion Kessel tapped both Meacham and Henke for input in deciding whether to hire certain employees. In con- nection therewith, it is noted that Kessel adopted Mea- cham's recommendation that he not hire Greg Ortega. The record also disclosed that in late November, Mea- cham, as head cashier, a supervisory position , was in- volved in training and testing cashier applicants, and her recommendations in the hiring process were generally followed. Flateau testified credibly, without contradic- tion, that Meacham told her that she had been hired as head checker. As such, Flateau called her friend and former Kroger colleague to inquire about her chances for a job because, "I figured she would know." Because of the foregoing, noting particularly that Mea- cham told friends and prospective employees that she was hired as a supervisor; that she was significantly in- volved in the hiring process; and, that Respondent treat- ed her as a managerial employee (e.g., buffet dinner), I find that Respondent was responsible for her statements to applicants involving the Company's intentions, al- though the store had not yet opened and she was not then exercising the full range of her supervisory duties. See, e.g., Marsellus Vault & Sales, 170 NLRB 898 (1968). On the other hand, the evidence falls far short of estab- lishing that Meacham was Respondent's agent while she was still employed by Kroger. Thus, I find that certain statements ascribed to Meacham by David Dickerson that were allegedly made while both of them were em- ployed by Kroger, are immaterial and not binding on Re- spondent.so 2. The 8(a)(1) allegations a. Nonunion statements The credited testimony disclosed that Respondent, by Al and Tim Kessel, Roy Brody, Sanford Morris, and one or two lesser officials informed ex-Kroger applicants that the stores would operate nonunion. However, without more, in the circumstances of this case, I am unpersuad- ed that such statements are coercive or otherwise violate Section 8(a)(1) of the Act. It is noted that Respondent had not assumed Kroger's contractual or other union obligations and as such, and in the absence of any successor obligations (none found here to exist), it was free to commence operations as it had noted to applicants, on a nonunion basis. See gener- ally NLRB v. Burns Security Services, 406 U.S. 272 (1972); Howard Johnson Ca v. Detroit Local Joint Execu- tive Board, 417 U.S. 249 (1974). Moreover, I am not per- 29 Meacham testified without contradiction, and I find that the conver- sation actually occurred on Sunday night, November 29. 30 Still other credibility resolutions are unnecessary , as merely cumula- tive, or will be treated as the principal allegations are discussed infra. 447 suaded that it was Respondent, rather than the applicants who first made reference or posed the question about whether Respondent would operate nonunion. For exam- ple, Kroger employee David Dickerson admittedly intro- duced the subject of the Union by asking Morris during his interview whether the stores would be nonunion. Kroger employee Thressa Porter also testified that she had inquired of Morris whether the Company was union or nonunion. Former Kroger employee Janet Colburn noted that so much time had passed since she had her interview with Roy Brody that she was uncertain wheth- er she or Brody had first raised the subject of the Union. Brody asserted that he merely responded to Colburn's question. In any event, Colburn acknowledged that al- though Brody told her that the stores would open non- union, he also told her that "it would be up to the em- ployees later if they wanted [a union]." Similarly, former Kroger employee Jeffrey Poisson testified that while Store Manager Tom Sawyer told him at his interview that there was "a chance" that Respondent would open nonunion, that the latter also told him that "it would be up to the employees [whether they wanted a union] after the stores opened up." In the absence of any finding that Respondent was ob- ligated to recognize and bargain with the Union at the time it opened any of its stores, and assessing the allega- tions in context, I find that the General Counsel has failed to establish by the weight of the evidence that the nonunion status statements were coercive or otherwise violative of Section 8(a)(1) of the Act. Accordingly, I shall recommend that these allegations be dismissed. b. Interrogation It is disputed that Kessel applicants who were em- ployed or previously employed by Kroger were ques- tioned by Respondent's interviews, mostly Morris, about why they believed the Kroger stores closed. The Gener- al Counsel contends, "this question was designed to reveal the applicants' Union sympathies." According to Morris, in asking this question, he had relied on the same interviewing technique that had been developed at Ha- mady's. Thus, Morris testified as follows: Well that was a question that we had developed when we were with Hamady 's that we used when we discussed the Kroger people over in the western side of the state when we purchased these stores, and our reason for using that question is, we wanted to determine how the applicant felt about their self. Did they not try to blame the closing off on all types of other people and would they accept the re- sponsibility their own self? It gives you a feel of, can this applicant get off the ground and get going on their own? I find Morris' explanation regarding his question as plausible and as such, his inquiry had a legitimate busi- ness purpose. Although the credited testimony also dis- closed that Morris, Al Kessel, and Huffman asked some applicants with Kroger experience about their attitude toward the Union, in context, the inquiry appears to be 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD related to the reasons Kroger went out of business rather than calculated to ferret out union supporters. As noted previously, a majority of the former Kroger employees expressed bitterness toward the Union for fail- ing to grant concessions and held the Union responsible for the stores closing. Yet, there is little evidence tending to show that any of this bitterness harbored against the Union enhanced the employability of these former Kroger employees. Rather, as noted previously, and as will be discussed more fully infra, the record disclosed that Kessel was principally concerned with avoiding suc- cessor obligations so that he could set the initial terms and conditions of employment. To accomplish this, he closely monitored the hiring of Kroger employees in terms of numbers and percentages and not whether they were for or against the Union. The Board now holds that not all forms of interroga- tion are per se violative of Section 8(a)(1), but only that which reasonably tends to restrain, coerce, or interfere with the exercise of rights guaranteed by Section 7 of the Act. See Rossmore House, 269 NLRB 1176 (1984). Applying this standard to the instant case, I find that under all the circumstances, the General Counsel has not established that the interrogations here tend to restrain, coerce, or interfere with employees' rights guaranteed by the Act in violation of Section 8(a)(1). Accordingly, I shall recommend that these allegations be dismissed.31 c. Statements on quotas or limitations concerning the hiring of Kroger employees As noted above, the credited testimony disclosed that Al Kessel intended to open his stores nonunion and took steps to avoid successor obligations. Huffman credibly testified that Kessel revealed his intentions during the evening of November 27 at the Holiday Inn, when he welcomed members of his managerial staff and cautioned them, inter alia, to be careful not to approach 50 percent in the hiring of Kroger's work force. Kessel repeatedly reminded Huffman of this hiring constraint over the next 2 weeks. Given the massive number of applicants, it is not surprising that a few of them were told of the quotas or parameters governing the hiring of ex-Kroger employ- ees, even if only to mollify them or, as testified by Huff- man, to get them off his back. Thus, a credited compos- ite of admitted testimony disclosed that Huffman told ex- Kroger employees Ricky Wisner and Gail Zedemont in early December 1981, in separate conversations, inter alia, he could not hire them because he was already close to a 50-percent limitation in hiring ex-Kroger employees. Other supervisors also made reference to percentages or other limitations, vis-a-vis, the hiring of ex-Kroger st Dickerson credibly testified that Morns asked him how he felt about crossing a picket line. In assessing whether Morris ' inquiry was violative of the Act, it is noted, inter alia, that Dickerson admittedly in- troduced the subject of the Union at the interview. Furthermore, the in- quiry did not appear to have any connection with Dickerson's unsuccess- ful attempt to gain employment with Kessel. Dickerson did not know at the time that Kessel would be the employer . Still further, it is noted that of the hundreds of applicants interviewed by Morris, no one else ascribed to him anything referrable to picketing. In these circumstances, I find that Morris' inquiry was isolated and did not restrain , coerce, or interfere otherwise with Dickerson in violation of Sec. 8(a)(1) of the Act, as al- leged. employees in explaining to applicants that Respondent wanted to avoid certain union considerations. Thus, former Kroger employee Bonnie Flateau testified credi- bly that head cashier Mary Meacham told her not to be disappointed if she was not hired, because Respondent could hire only a limited percentage of Kroger employ- ees to avoid having trouble with the Union. Further, the credited testimony disclosed that Supervisor Denise Henke told applicant James McLaren, another former Kroger employee, that Respondent had filled its quota of Kroger employees and explained that if they had hired more than 50 percent, the Union could get them. I find that Respondent, by telling applicants, in the manner noted above, that they are precluded from em- ployment considerations because a quota or percentage had been established, to avoid dealing with the Union, tends to restrain and discourage union activity. See Pot- ter's Chalet Drug, 233 NLRB 15, 20 (1977), enfd. 99 LRRM 3327 (9th Cir. 1978). Accordingly, I find that Re- spondent, by the aforenoted statements, acts, and con- duct violated Section 8(a)(1) of the Act, as alleged. d. Other statements3 a Barbara Miley testified without contradiction that, in early July 1982, Tom Lazar, a Kessel manager, refused to give her a recommendation for a job, stating, "I'm sorry Barb, I'm afraid I'd get into trouble." Miley and Lazar had previously worked at the same North Sagi- naw Street store, where the latter was store manager. According to the General Counsel, Lazar refused Miley's request because he had observed her picketing and he did not want to get into trouble with A] Kessel. I find, however, in the absence of any antiunion statements or other unlawful conduct by Lazar, that his reference to "trouble" is too ambiguous and insufficient to support the allegation that he refused to recommend Miley be- cause of her support for the Charging Parties. Accord- ingly, I shall recommend that this allegation be dis- missed. Former Kroger employees Rebecca Green and Mear- dies Perry ascribed union hostility and certain coercive statements to Richard Knight, a comanager for Respond- ent in late October and early December 1982, which the latter denied. Green and Knight had worked for Kroger in the same Belsay Road store for 4 years. On the Octo- ber date in question, Green, while on picketing break, 32 The General Counsel's offer in evidence of two affidavits of Mi- chael Gerulski on the asserted basis that he was unavailable as a witness, pursuant to Fed . R. Evid 804(a), was denied at the trial It was noted, inter alia, that no attempt was made to serve Gerulski with a subpoena personally. Instead, the General Counsel , in large part, relied on informa- tion provided on the telephone by someone purporting to be Gerulski's mother, that he had moved to Oklahoma. Under all the circumstances, and for reasons noted more fully on the record , and as the General Coun- sel, in his brief, has not advanced any other basis for the receipt of the affidavits, I reaffirm my previous ruling and find that reasonable efforts were not made to secure Gerulski's appearance to warrant the admission of the affidavits See generally ALJ discussion, K & K Transportation Corp, 254 NLRB 722, 733-734 ( 1981), Great Southern Construction, 266 NLRB 364, 376-377 (1983). As no other evidence was submitted regard- ing allegations 14(c) and (e) in the amended complaint in Case 7-CA- 21402 (G.C. Exh. C-1(z)), I shall recommend that the allegations be dis- missed. KESSEL FOOD MARKETS 449 met with Knight and had a brief conversation. Green tes- tified that Knight told her that he had "bitter feelings against the Union because we weren't allowed to vote on wage concessions." She asserted that Knight also made reference to the NLRB charges and stated that "if the judge ruled against Kessel that the big man (Al Kessel) himself would close the stores." According to Green, she asked Knight why Kessel would do something like that and he responded, "Well, Mr. Kessel doesn't want a union and frankly, neither do I." As for the mid-November allegation, Perry testified that while she was walking the picket line, she met Knight, her "good friend " and former colleague at Kroger's, and asked for his help in getting her a job. Perry testified with corroboration from Green that Knight pointed to her picket sign and gave that as his reason for not being able to get her hired. Although Knight admitted conversing with Green and Perry, longtime colleagues and friends , he denied the es- sence of their remarks ascribed to him , relative to the Union. I credit Knight's denials. In doing so, I found him more consistent, plausible , responsive, and forthright than Green and Perry. Green, for example, had testified that Knight told her that he had applied for a job with Respondent because, inter alia, Kessel had informed him that the Flint store would be nonunion . However, in the affidavit provided by Green to the NLRB in November, less than a month after the disputed remarks were made, she stated that she did not know how Knight had learned that the store would be nonunion. Perry's testi- mony also suffered on cross-examination . For example, she testified that during her interview with Kessel, the latter had scribbled some mark, she believed to be an "X" in the upper right-hand corner of her application. When she later identified her application, however, she admitted that nothing resembling such a mark appeared thereon. In this connection I found Perry less than candid when she asserted that she had not heard any- thing about "X" marks before she had testified, particu- larly where, as here, so much of the earlier testimony was devoted to this subject. In crediting Knight, I find, inter alia , contrary to the General Counsel, that while he was an active member of the Save Our Jobs Committee (SOJC), such participa- tion, without more, does not reflect an antiunion bias. It appears that SOJC was merely a vehicle to exert pres- sure on the local union to accept wage concessions from Kroger to keep the stores open. The record is devoid of any evidence tending to show that SOJC was antiunion. In sum, I shall recommend that the allegations naming Richard Knight be dismissed as not supported by cred- ited testimony. 3. The 8(a)(3) allegations a. Case 7-CA-20284 As noted previously, central to a viable retail grocery operation, as perceived by Al Kessel, was that he be free of union or successor obligations, at least in establishing the initial terms and conditions of employment. Thus, Kessel conceded that if he were unable to set the initial wage and benefit package and had to bargain with the Union, he would not have acquired those Kroger stores. Admittedly, Kessel had long been schooled about "successorship" criteria. In this regard, the record dis- closed, inter alia, that in 1980, Kessel, as a Hamady offi- cial, had received, pursuant to his request , a written opinion from Howard Grossman, Hamady's labor coun- sel, cautioning him that "if the majority of [Kroger] em- ployees you were to hire were former union employees, the National Labor Relations Board would impose a duty upon [Hamady] to recognize and bargain with the Union." (G.C. Exh. 9.) Grossman also reminded Kessel that Hamady "would not have to adhere to the previous contract." (Id.) Kessel, in turn, advised President Dandy and other Hamady officials that neither the Kroger-union contracts nor the existing Hamady-union contracts im- posed "successorship" obligations and recommended that these stores open nonunion . To accomplish this, Kessel pointed out to Norman Griffin, then Hamady's personnel manager, that they had to hire less than 50 percent of Kroger's work force in these stores. Although Kessel's recommendations vis-a-vis the Union were subsequently rejected, this backdrop is rele- vant in assessing Kessel's overall modus operandi . Again, in 1981 while Hamady officials were assessing the feasi- bility of acquiring additional Kroger stores , Kessel's pos- ture remained unchanged in terms of dealing with the Union. As the record disclosed, these stores were not ac- quired by Hamady, but by Kessel himself, and he was al- ready disposed to operate them nonunion. Given his freedom from Hamady constraints , Kessel made plans to discriminate against Kroger employees, as alleged. Thus, the record disclosed that even before the Saginaw/Corunna stores were purchased , Kessel had conveyed to Morris his intentions to operate these stores nonunion and Morris, admittedly, passed this on to Huff- man. The credited testimony disclosed that first Morris and later Kessel himself told Huffman that they had to limit the number of Kroger employees to be hired to under 50 percent to reduce the Union's chances to become the bargaining agent . Similarly, the record dis- closed that during the evening of November 27, at the Holiday Inn, after a buffet dinner welcoming Kessel's new supervisors, Kessel made it clear that he did not want to deal with the Union and cautioned his manageri- al staff to stay under 50 percent of the Kroger work force. This theme was repeated over the next 5 weeks as Kessel closely monitored the hiring of ex -Kroger em- ployees. A number of ex-Kroger employees testified cre- dibly (some without contradiction), that they were told by supervisors that Kessel had set a quota or percentage regarding the hiring of the Kroger work force because he wanted the stores to operate nonunion. As noted pre- viously, such statements are coercive and violative of Section 8(a)(1) of the Act. The record also disclosed that Kessel vented special hostility toward the Meatcutters Union and Richard Phillips, its president . This evolved from difficulties that Kessel, as a Hamady official, had experienced in negoti- ating with Phillips. Attorney Grossman testified that at the time Kessel (on behalf of Hamady) was involved in 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD negotiating the purchase of Kroger stores in western Michigan, Phillips had refused to give certain contractual commitments that threatened the entire deal. This was not to be soon forgotten by Kessel. As Huffman credibly testified, Kessel called Phillips a son-of-a-bitch and stated, inter alia, "under no circumstances" should he hire anyone from that union. It is undisputed that Kessel did not hire any Kroger meat department employees from the Saginaw/Corunna stores although the meat de- partments under Kessel, when those stores reopened, were admittedly short on experience. In this regard the record disclosed that although 4 ex-Kroger employees applied for some 20 openings, none of them were hired. Given my earlier credibility resolutions, I am unpersuad- ed that Respondent made any genuine effort to reach any of these applications. For example, I see no reason to accept Kessel's assertion, in the absence of verifica- tion, that he phoned applicant Robert Shaler, but no one answered. It is well settled that a new owner, free of successor obligations, is entitled to wipe the slate clean by not hiring or retaining any of the seller's employees. See Howard Johnson Co., supra, 417 U.S. at 262; Spencer Foods, 268 NLRB 1483 (1984); Jim's Big M, 264 NLRB 1124 (1982). This principle, however, is not so broad as to permit discriminatory hiring practices based on antiun- ion considerations. Cf.-Jim's Big M, supra at fn. 2. Thus, the Supreme Court in Howard Johnson, 417 U.S. at fn. 8, noted as follows: Of course, it is an unfair labor practice for an em- ployer to discriminate in hiring or retentions of em- ployees on the basis of union membership or activi- ty under Section 8(a)(3) of the National Labor Rela- tions Act. . . . Thus, a new owner could not refuse to hire the employees of his predecessor solely because they were union members or to avoid having to recog- nize the,union. [Emphasis added.] Because an employer is generally free to hire a com- pletely new and different work force, proving antiunion motivation is no small task. In the case at hand, howev- er, given the credited testimony of Huffman and Wallen (statutory supervisors and agents), the conclusion is ines- capable that Respondent was discriminatorily motivated in its hiring practices. As such, and on the total state of this record, I am persuaded and find that the General Counsel has established by a preponderance of the cred- ited evidence that Respondent limited the hiring of former Kroger employees to avoid "successorship" obli- gations in violation of Section 8(a)(3) of the Act, as al- leged.33 See Spencer Foods, supra. b. Case 7-CA-21402 The General Counsel contends that Respondent had engaged in the same discriminatory hiring practice re- garding the five Flint stores, as it had regarding the three Saginaw/Corunna stores. In support thereof, the General Counsel argues, inter alia, that Kessel Food Markets, Inc. (Case 7-CA-20284, Saginaw/Corunna stores) and Kessel Food Stores, Inc. (Case 7-CA-21402, Flint stores) constitute a single employer and as such, the record does not provide any basis for distinguishing the two cases regarding discriminatory conduct. Thus, the General Counsel relies "primarily on the evidence in Case No. 7-CA-20284." (Emphasis added.) Although I am of course mindful of my findings of Respondent's discriminatory hiring practices vis-a-vis Saginaw/Corunna, it is also noted that there was ap- proximately a 5-month hiatus before Respondent had ac- quired and staffed the Flint stores. During the interven- ing months, Respondent's earlier hiring practices had become the subject of unfair labor practice charges dated February 3, 1982 (G.C Exh. 1(e)), and a formal com- plaint dated March 16, 1982 (G.C Exh. 1(m)). Thus, Kessel had to be cognizant that his acts and conduct vis- a-vis the Flint stores would be closely scrutinized. How- ever, this does not mean that I must reject all statements and other action undertaken by him as merely self-serv- ing. It only serves to underscore the difficulties here in ascertaining Kessel's real motives unless his action is ac- companied by fresh acts of independent misconduct. The record disclosed that, at a May 16 evaluation ses- sion, Kessel told his newly appointed managers that he was not concerned with quotas or percentages and ex- pressed a willingness to hire all former Kroger applicants provided that they were rated at least as "good" employ- ees. Although Kessel's statements may have been tem- pered by the pending unfair labor practice allegations, this does not relieve the General Counsel of showing that Kessel's treatment of ex-Kroger employees, coming some 5 months after the initial misconduct, continued to be discriminatorily motivated. The record tends to mili- tate against such a finding. For example, regarding the rating of former Kroger employees, I find it plausible and consonant with legitimate business considerations, for Kessel, as he testified (with corroboration), to rely solely on the opinion and recommendations of his four newly appointed managers, all of whom had served in the same capacity for Kroger. Although, on one hand, it is likely that Kessel was still categorically opposed to dealing with a union with regard to the initial terms and conditions of employment, on the other hand, given the factors then militating against "successorship," it appears that Kessel had little reason to continue his discriminato- '3 This finding does not extend to former Kroger employees who were employed in the Saginaw/Corunna stores, but did not apply for employ- ment with Respondent Although the General Counsel contended futility (not specifically alleged), he produced only two witnesses who testified regarding Respondent 's nonunion status, but not that they were denied an opportunity to apply or that they were not hired because of union mem- bership or activities One of these witnesses, Timothy Adams testified that he did not apply because the wages and benefits of a nonunion em- ployer were too low Further, the finding of 8(a)(3) violations does not extend to Greg Ortega, Susan Tahash, and Ricky Wisner Ortega and Tahash were not recommended on the basis of performance by supervi- sors who had worked with them previously Regarding Wisner, Huffman testified that he would not have hired him for reasons unrelated to the Union On the other hand, it does extend to other members of the Ortega family Thus, I reject as pretextual and not supported by the record, Kes- sel's assigned reason of a policy to reject other members of a family when one member is denied employment It is noted that none of the su- pervisors directly involved in hiring testified about any such policy Moreover, Manager Tom Sawyer testified that he was never told of this policy and was instructed by Kessel to offer Bruce Ketcham part-time work, but not his brother Tom Ketcham KESSEL FOOD MARKETS ry hiring practices.34 Significantly, based on this evalua- tion process of ex-Kroger employees, Kessel hired 79 of the 120 applicants, or just over 65 percent (R. Exh. 37). The record also disclosed that offers of employment were made and refused by approximately eight other former Kroger-Flint area employees. In all, approximate- ly 72 percent of the former Kroger-Flint employees who applied were either hired or offered employment. In assessing Kessel's overall motivation vis-a-vis the Flint stores, it is also noted, that aside from an isolated reference to a few applicants regarding the nonunion status of those stores (previously found here not to be coercive), the record is devoid of credible evidence tend- ing to show that Respondent otherwise independently violated Section 8(a)(1) of the Act. Thus, unlike the ex- perience of some applicants for jobs at the Saginaw/- Corunna stores, no applicant was told that he or she could not be considered for positions for the Flint stores because of a quota or other limitation regarding the hiring of ex-Kroger employees. Further, unlike the Sagi- naw/Corunna situation, where Huffman and Wallen (su- pervisors and agents) testified against Kessel, no one similarly situated testified adversely to Kessel , concern- ing the Flint stores. Because of the foregoing, noting particularly a 5- month hiatus and a dearth of evidence tending to show independent misconduct regarding the Flint stores, I find that the General Counsel has failed to establish by a pre- ponderance of the credible evidence that Respondent continued to discriminate against former Kroger, em- ployees as alleged . Accordingly, I shall recommend that the charges alleging violations of Section 8(a)(3) and (1) in Case 7-CA-21402 be dismissed.35 4. 8(a)(4) and (1) allegations It is alleged that Respondent suspended and then dis- charged Supervisors Richard Huffman and Bradley Wallen because they gave testimony adverse to Respond- ent in Case 7-CA-20284. Huffman and Wallen testified initially on September 21 and 23, 1982, respectively. According to Kessel, he suspended Huffman on Sep- tember 23 because, 1 day earlier, the latter had assertedly attempted to intimidate Richard Garrett, a meat depart- ment employee at the Corunna store , by stating, "Don't fuck me or I'll fuck you." Huffman was never questioned about the incident nor reinstated . By letter dated Octo- ber 14, Kessel advised Huffman that he was terminated effective October 16, without stating any reason for such action. As for Wallen, Kessel asserted that he was sus- pended on September 23 because of testimony linking him to a bribe and because of his friendship to Huffman. Wallen also received a termination letter from Kessel s' For reasons discussed more fully , infra, I have found Respondent not to be a successor, as alleged. as The General Counsel also contended that Respondent independently violated Sec. 8(a)(3) of the Act by failing to offer and hire Meardies Perry because of her picketing and related activities on behalf of the Charging Parties. For reasons stated previously, I have rejected Perry's testimony in critical areas . In the absence of other credible evidence, I find that the General Counsel had failed to demonstrate that Respondent had discriminated against Perry as alleged . Accordingly, I shall recom- mend that this allegation be dismissed. 451 dated October 14 without stating any reason for the dis- charge. As noted previously, Respondent contends that Huff- man and Wallen were discharged because of "repeated acts of disloyalty" that Kessel did not learn about until after they were suspended. I am convinced, however, that there was only one act of "disloyalty" that really mattered to Kessel, to wit, the adverse testimony, and that Respondent merely seized on the other so-called "acts" as a pretext to shield its real motivation. The factors noted below, tending to show that Kessel had decided to retaliate at the first opportunity , are tell- ing and substantial . Thus, admittedly, Kessel's immediate reaction to hearing Huffman's testimony in the court- room was to fire him. Kessel, however, was too astute to act so precipitously and backed off, "after [he] had a chance to reflect on it." He explained more fully as fol- lows: I realized that if I fired him I would make a martyr out of him . . . . And I realize that I wasn't afraid of the truth and that, if I fired him, it would be a demonstration to the employees that I was hiding something. And I had nothing to hide. And I figured that if he had the brass to sit here and lie all day, I had the brass to put him back there and make him face the people he was lying about. And that was even better in my mind than firing him. [Emphasis added.] Kessel's exercise at restraint and his reluctance to "make a martyr" out of Huffman was indeed brief. Two days later, Huffman was suspended. The evening of the day on which Huffman testified, Kessel summoned the Corunna store's supervisors to a meeting to tell them of their colleague's betrayal. He informed his supervisors that Huffman had been a witness for the Union and that his testimony reflected "inaccurate recall." Kessel spoke of the need to build a "business on relationships" and as such, "it requires a great deal of trust." He told his su- pervisors that he still trusted them; that he did not know why Huffman did what he did, but, would appreciate "any insight" they might provide and urged them to feel free to come forward with information about Huffman. To Bonnie Issac, head cashier , and her fellow depart- ment heads, Kessel's remarks conveyed the perception that Huffman had "sold them out." Issac explained, "We just thought how could our manager [Huffman] that we had trusted go out and [say] a bunch of things that we didn't think were true and we knew weren't true. I mean, you know, your manager you trust." When Issac was asked how she knew that Huffman was not truthful, she responded, "Well because he was on the union 's side, he wasn't on the Kessel side." Thus, Kessel successfully isolated Huffman from the rest of his staff. He could now expect help from his supervisors to supply negatives about Huffman to build a case to justify his dismissal. The next morning, Respondent began to enlist the sup- port of rank-and-file employees. Employee Richard Gar- rett testified that Roy Brody approached him in the meat department that morning around 8 a.m., and spoke of the 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "shock" of Huffman's testimony. Brody urged Garrett to come forward and volunteer "any kind of information" about Huffman. According to Brody, Garrett responded immediately, but the former did not pursue the matter until after he left the store and had a chance to reflect thereon Brody later phoned Garrett at the store, and ar- rangements were made to meet after work. Early the same morning, and soon after Garrett first met with Brody, Huffman engaged Garrett in a brief dis- cussion in the meat department. Huffman had learned of Kessel's meeting the previous evening and to dispel the notion that he had "sold out," he told Garrett that he testified truthfully To break some of the tension sur- rounding the trial, Huffman also remarked in a joking manner, "Besides, don't you guys fuck with me because otherwise I am going to fuck with you." According to Kessel, this latter remark, which he first learned about that evening, constituted an attempt by Huffman to in- timidate Garrett and, as such, decided to suspend Huff- man the following day. Clearly, without more, Huffman's remark, at best, is ambiguous However, it does not matter, if, as I am con- vinced, Kessel was looking for any vehicle, even if only colorable, to rid himself of Huffman. Thus, admittedly, no attempt was made by Respondent to question Huff- man regarding the incident. Garrett's recent employment history does not tend to qualify him as a model for trust- worthiness. Thus the record disclosed that Garrett's pre- vious employer had accused him of theft of meat and had threatened to have him prosecuted, dropping the matter only after Garrett signed a statement stating that he would not attempt to return to work and collect back wages. More recently, Tim Kessel also accused him of theft, although here it appears that Respondent cleared him of wrongdoing about 1 week before Huffman testi- fied. In the total circumstances of this case, noting, inter alia, Garrett's apparent willingness to "volunteer" infor- mation about Huffman and Wallen, both before and after Huffman's remarks, I find it highly unlikely that he was intimidated. Rather, I find it more likely that Garrett seized on Huffman's remarks to further secure his own position with Respondent. In any event, the failure to undertake any meaningful investigation and to rely solely on Garrett" tends to support the view that Respondent was not really interested in the facts, but was out to get Huffman. As noted above, on the evening of September 23 (Wallen had testified earlier that morning), Kessel, with- out giving any reason, told Huffman and Wallen that they were suspended with pay The suspensions were never lifted; both of them were terminated effective Oc- tober 16 In the meantime, Kessel's efforts to build a case by urging his employees to come forward with any in- formation produced a stream of reports touching on vir- tually everything that Huffman and Wallen did both inside and outside the store Sharon Edwards, head baker, for example, met with Kessel on three separate occasions to ensure that nothing of possible use against 36 As a witness, I found Garrett vague, evasive, inconsistent , and unre- liable Huffman and Wallen was omitted. Regarding Wallen, she even "speculated" that he was responsible for steal- ing meat in his department although Kessel acknowl- edged that this was never substantiated. 37 The result is a smorgasbord of complaints, much of which is petty, am- biguous, based on hearsay, speculative, conclusionary, and unsubstantiated.38 Moreover, the information, in major part, was derived from those with self-interest, an- tiunion bias, or from those who were otherwise out to get Huffman and Wallen for testifying against Kessel 39 Respondent relies, in large part, on statements Huff, man was asserted to have made denigrating both Brody and Kessel in April and May. For example, Issac told Kessel that Huffman told her in late April or early May that he used to work with Brody (at Hamady's), and cautioned her to "watch out" because "he can be a creep." Assuming arguendo, that the statement was made, it does not appear so outrageous, or that it other- wise reaches the level of materially compromising Brody's position to normally warrant dismissal. Further, aside from the fact that the statement, if made, occurred 4 or 5 months before Huffman testified, the record dis- closed that by the time the instant hearing opened, the relationship between Brody and Huffman, after some early problems, had improved steadily. As noted by Brody, while he had threatened to replace Huffman in July, by mid-August he was doing "much better" and by the time Huffman testified, conditions in the Corunna store were "fine" and on "par" with the other stores 37 In assessing whether any of the information provided by Edwards was accurate on one hand , or exaggerated or based on hearsay on the other, it is noted, inter alia, that she and Issac compared mental notes about Huffman, before much of it was related to Kessel I tend to believe the latter condition because I found Edwards, at times, evasive, inconsist- ent, and less than forthright and along with my observation of her de- meanor, unimpressive as a witness As for being less than forthright, it is noted, inter alia, that Edwards said nothing of an important private meet- ing she had with Kessel, at the home of a colleague, on the subject of Huffman 38 For example, Edwards and Issac had informed Kessel of various doubts expressed by Huffman regarding the future of Respondent 's oper- ations, e g , that it might not be in business "for much more than a year" Edwards acknowledged that Huffman did not explain nor did she ask him what he meant Issac testified that she asked Huffman if she should start looking for another job to which Huffman "kind of smirked and didn't say much more " Kessel seized on this as an example of Huffman's disloyalty and efforts to undermine Respondent I find that the credited testimony does not support Kessel's contention Thus, in the absence of evidence to the contrary, the assessment ascribed to Huffman may have represented his frank opinion at that time Further, I see no reason, with- out more, to attribute any sinister motive to Huffman In any event, the remarks and circumstances, at most, are ambiguous On the other hand, I find the failure by Kessel to question Huffman regarding the remarks as- cribed to him tends to support the finding that the various reasons as- signed by Kessel for terminating him are merely pretextual 39 As noted earlier, according to Issac, Huffman had to be lying be- cause he was on the union side Orville Yerian, the grocery manager, during his employment interview noted that the "union contract" was an impediment to successful grocery business operations He cited examples dealing with seniority and scheduling as limiting an employer 's ability to operate the business Although Yerian 's antiunion sentiments is a factor to consider in assessing his overall credibility , it is also noted that he was independently upset at Huffman because the latter made reference to him in his testimony Overall, including demeanor factors, I found Yerian largely implausible, evasive, equivocal, less than forthright, and unreliable as a witness KESSEL FOOD MARKETS Given the total circumstances of this case, noting, inter alia, that Huffman was performing, at least satisfactorily, at the time the instant hearing opened, the conclusion is inescapable and I find that, except for the fact that he testified adversely to Respondent, he would not have been suspended and/or discharged. As discussed previ- ously, I have also considered and rejected the plethora of reasons assigned by Respondent for its action as pre- textual. Compare, Datagraphic, 259 NLRB 1285 fn. 2 (1982); Gerry's I.G.A., 238 NLRB 1144, 1145, 1151 (1978). Similarly, I find the various reasons assigned by Re- spondent for suspending and discharging Wallen are pre- textual. Kessel noted, inter alia, that he discharged Wallen because he was planning on leaving the Compa- ny without notice and lied about such intentions when he testified. As discussed more fully previously (see "Credi- bility," supra), the record disclosed that although Wallen had explored job opportunities with the Taco Bell Cor- poration, he had not been offered a job, and in fact, ap- peared to have lost interest by not showing up for inter- views. In this context, Wallen's representation that he was not looking for another job at the time he testified, without more, appeared to be confirmed by the record. Kessel also noted the testimony linking Wallen to a bribe and speculation connecting him with the missing meat at the store. For reasons stated previously (see "Credibility," supra), I discredited all such testimony linking Wallen to a bribe and noted a dearth of probative evidence otherwise tending to support Respondent's bribery charges. As for Wallen confiscating meat for his own use, Kessel himself acknowledged that Edwards' speculation regarding this matter had not been substanti- ated. It is beyond dispute that the discharge of supervisors for giving testimony adverse to their employer's interest is unlawful. See Parker-Robb Chevrolet, 262 NLRB 402, 404 (1982); Orkin Exterminating Co., 270 NLRB 404 (1984). As such, and on the basis of the entire record, I find that Respondent suspended and later discharged Huffman and Wallen because they provided adverse tes- timony, thereby violating Section 8(a)(1) of the Act 40 5. The 8(a)(5) and (1) allegations Successorship The record disclosed that on November 14, 1981, Kroger closed three stores in Michigan. two in Saginaw, and a third in Corunna, all within approximately a 60- mile radius. Respondent purchased all three stores a few days later, opening the Saginaw stores on December 2, 1981, and the Corunna store the following week. On De- cember 24, 1981, Kroger closed an additional five stores in Michigan, all located in the nearby Flint area. On April 30, 1982, Respondent also purchased the five Kroger-Flint stores, opening all of them on May 23, 1982. As noted previously, although Respondent incor- porated the Saginaw/Corunna stores and the Flint stores 40 Given this finding, I find it unnecessary to determine whether Re- spondent's conduct also violated Sec 8(a)(4) See Orkin Exterminating Co, supra at fn 5 453 separately, all of them are known as Kessel stores and the two entities (Kessel Food Markets, Inc. and Kessel Food Stores, Inc.) constitute a single-employer relation- ship within the meaning of the Act. The General Counsel contends that Respondent is a successor to Kroger in the overall eight-store unit, and as such, it succeeded to Kroger's obligations to recognize and "bargain with the Charging Unions. Respondent denies that it is a successor, noting principally, that the Charging Unions had not, at any time material here, rep- resented a majority of its employees in any appropriate unit.4 i - For a new employer to be deemed a successor for col- lective-bargaining purposes, it must first be determined "whether there is substantial continuity of the business enterprise." Spencer Foods, supra, 268 NLRB at 1484 citing NLRB v. Burns Security Services, 406 U.S. 272 (1972). To reach this threshold question, the Board as- sesses such factors as follows. (1) whether there has been a substantial continuity of the same operations; (2) whether the new employer uses the same plant; (3) whether he has the same or substantially the same work force; (4) whether the jobs exist under the same working conditions; (5) whether he employs the same supervisors; (6) whether he used the same machinery, equipment, and methods of production; and (7) whether he manufactures the same product or offers the same services. Georgetown Stainless Mfg. Corp., 198 NLRB 234, 236 (1972); Border Steel Rolling Mills, 204 NLRB 814, 821 (1973). In applying the above factors to the instant case, it is noted that there is considerable evidence tending to both support and militate against a finding of successorship. In support of successorship, the record disclosed that Respondent has continued in the retail grocery business, in the same stores and in some respects, operated in the same manner as Kroger. Additionally, Respondent pur- chased equipment, fixtures, merchandise, inventions, and supplies, and assumed Kroger's leases. Further, Kroger, contractually agreed to supply Respondent, inter alia, grocery perishable frozen food, produce, dairy, and meat items and to assist, at least initially, in training Respond- ent's personnel. (R. Exh. 3, p. 1, and service agreement, numbered pars., 2; A. Exh. 5 ) 41 The General Counsel first alleged in Case 7-CA-20284, basically, that all hourly employees, with the traditional exclusions, employed by Kessel Food Markets, Inc , in its three stores located in the Saginaw/Corunna area, constituted the appropriate unit This unit was subsequently enlarged in Case 7-CA-21402 to also include all hourly em- ployees employed by Kessel Food Stores, Inc in the five Flint area stores It was also alleged, and I have previously found, that the two en- terprises constitute a single-employer relationship (See fn 4 supra) As such, I find no legally sufficient basis to support Respondent's contention that the matter was time-barred by Sec 10(b) of the Act See generally Clinch Valley Clinic Hospital, 213 NLRB 315 (1974), Amshu Associates, 234 NLRB 791 fn 2 (1978) Many of the same factors supporting the single-employer relationship also serve to favor an overall unit Thus, the record disclosed, inter alia, heavy centralization with regard to clerical and administrative functions, one overall labor relations policy including common wages and benefits and other terms and conditions of employ- ment, and common overall supervision and employee transfers Noting also that each store exercises little or no autonomy, I find that all eight stores are sufficiently integrated, thereby justifying the appropriateness of the overall unit, as alleged 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kroger's presence, at least in part, was also reflected in the composition of Respondent's initial work force, as- stated by Kessel, "We were going to buy from Kroger. We needed people who understood the Kroger system." Although the record disclosed that well under half of Kroger's rank-and-file employees were hired by Re- spondent, a slight majority of its initial supervisory em- ployees (31 out of 60) were previously employed by Kroger in these stores. Kessel also gave some preference to applicants with Kroger experience in filling its limited number of full-time positions. Still further, the record disclosed that Respondent reached out for the same customer pool that had been serviced by Kroger. Kessel explained that he knew, from his long experience in the retail supermarket industry, that the longer the stores remained closed, the greater the likelihood that customers all form new habits and shop elsewhere. Thus, Kessel wasted little time in acquir- ing a work force and making other arrangements to reopen the stores as soon as possible. On the other hand, the record disclosed significant dif- ferences in the two operations that. tend to militate against any finding of successorship. A major difference is the increased size and composition, of Respondent's work force. Thus, the record disclosed that Kroger em- ployed 174 unit employees at the time the Saginaw/- Corunna stores closed and 323 unit employees at the time the Flint stores closed, for a total of 497. Kroger's full-time employees far outnumbered the part-timers on a 3-to-1 ratio. (G.C. Exhs. - 8 and 14.) By comparison, Kessel employed 216 unit employees at the time the Saginaw/Corunna stores reopened in early December 1981, and 395 unit employees in the Flint stores in May 1982, when those stores reopened, for a combined total of 611. Kessel, however, for reasons noted below, re- versed the 3-to-1 ratio by favoring part-timers over full- time employees. (R. Exhs. 10 and 25 (a)-(e).) Kessel's stated formula for success was to maintain a high service, low price operation. He wanted his custom- ers serviced quickly, in and out of the store, and likened it to a "Burger King" fast food operation Thus, he planned to flood the front end of the. store with person- nel such as cashiers, assistant cashiers, and courtesy clerks (baggers). To accomplish this on a cost-efficient basis, he increased the size of the work force appreciably with emphasis on part-time help and as a concomitant thereof, lower wages and benefits. Although I have found that Respondent, to avoid successor obligations, limited the number of former Kroger employees it hired in the Saginaw/Corunna stores, it is not alleged, nor can I find, on the state of this record, that Kessel's reliance on part-time help was unlawfully inspired rather than predicted on legitimate business considerations. As the vast majority of Respondent's work force was comprised of part-time employees (unlike the Kroger sit- uation) and as it is undisputed that its unit employees, generally, received substantially less in wages and bene- fits than Kroger employees (G.C. Br. 42), clearly these differences regarding terms and conditions of employ- ment are also factors tending to detract from the "conti- nuity of the business enterprise." Of greater significance, however, is, assuming arguendo, all the ex-Kroger em- ployees employed in the eight stores who had applied were hired, this number would still fall far short of com- prising a majority of Respondent's work force at the time the stores reopened or at any other material time here.42 Thus, the record disclosed that of approximately 500 unit employees employed by Kroger in its 8 stores immediately before those stores closed, only approxi- mately 170 of them applied for some 611 unit positions (86 were hired) before those stores reopened. (Jt. Exhs. 2 and 3; G.C. Exh. 14; R. Exh. 37.) As such, Kroger's'unit employees constituted only approximately 14.5 percent of Respondent's eight-store rank-and-file work force (86 out of 611). The only demand for recognition and bar gaining was untimely made in November 1981, before any of the stores had opened and only supervisors and a few rank-and-file employees had been hired. Compare, Harbor Cartage, 269 NLRB 927 (1984), where the union's demand was made at a time when the Respondent had "essentially completed" its hiring complement, a majori- ty of whom had worked for the predecessor. As noted previously, it is not expressly alleged, nor does the record disclose, that any significant number of ex-Kroger employees were denied an opportunity to apply or that they did not apply because they believed it to be futile. (See fn. 33, supra.) Thus, unlike the record giving rise to a successor finding in Love's Barbeque Res- taurant No. 62, 245 NLRB 78, 82 (1979), enfd. in perti- nent part 640 F.2d 1094 (9th Cir. 1981), heavily relied on by the General Counsel, it has not been demonstrated here that "but for" Respondent's unlawful conduct, the Charging Unions would have "survived" as the exclusive majority bargaining representatives for their respective units. Further, in the instant case, unlike Love's Barbeque, in which the Board had determined that Respondent's "un- usual" hiring procedure was designed to conceal from its predecessor's employees the fact that it was hiring, I find here that Respondent's reasons for failing to identify itself in its initial advertisements and its decision to open employment opportunities to the public at large, rather than to confine itself to Kroger's work force, are plausi- ble and appear to be based on sound business consider- ations. For example, it is understandable, as explained by Kessel, that he initially used "blind" advertisements to minimize his risk of embarrassment in the eyes of those involved in the grocery supermarket industry because he had not yet purchased the Kroger stores. However, Kessel had to, advertise immediately as Thanksgiving and Christmas were approaching, and he wanted to acquire a work force in time to open the stores for the holidays. As for opening up employment opportunities to the public at large rather than acquiring the same work force employed by Kroger in those Saginaw/Corunna and Flint area stores, Kessel explained that this latter source for labor was far too limited to satisfy his prescription 42 The General Counsel's reference to an occasional Board decision when a majority showing in the context of "outrageous and pervasive" conduct during organizing campaigns was unnecessary, as a precondition to warrant a bargaining order, is now dated See Gourmet Foods, 270 NLRB 578, 580 (1984), in which the Board declared, "[W]e would, under no circumstances, issue a nonmajority bargaining order " KESSEL FOOD MARKETS 455 for a successful operation in the retail supermarket indus- try. As noted above, Kessel required a much larger staff than Kroger, with special reliance on part-timers who were to receive lower wages and benefits. According to Kessel, in such circumstances, he could not be confident that Kroger's staff, comprised mostly of full-time em- ployees, would be attracted or interested in working for Respondent. Without more, contrary to the General Counsel, I cannot find in the circumstances of this case that Kessel, by advertising for personnel in the newspa- pers, did so, in whole or in part, to "conceal " for dis- criminatory reasons, the identity of the new employer from Kroger employees. Still other factors tending to militate against "succes- sorship" involve the hiatus in operations and the union disaffection expressed by a majority of Kroger employ- ees. The record disclosed that the three Saginaw/Corunna stores were closed over approximately a 3- to 5-week period and the five Flint area stores for approximately 5 months before these facilities reopened as Respondent's stores. Kroger had determined that it was financially too costly to continue to operate these facilities without con- cessions from the Charging Unions and none were forth- coming. Thus, it appears that Kroger no longer deemed it viable to maintain those stores and closed all of them, while actively pursuing a purchaser. Huffman credibly testified with corroboration and without any contradic- tion that during the employment interviews a majority of Kroger employees stated that they were "bitter and angry" toward the Union for not permitting them to be heard vis-a-vis the concessions. They also held the Charging Unions largely responsible for the demise of the stores. These circumstances give rise to a substantial question regarding the Charging Unions' continued sup- port among Kroger employees at the stores in question. Cf. United Maintenance Co., 241 NLRB 529, 532 (1974), in which, inter alia, the hiatus resulted from the employ- ees' strike. Given the totality of the circumstances noting the fac- tors stated previously favoring successorship but also noting, inter alia, that Respondent employed a substan- tially larger complement of employees; that most of its employees were part-time employees ; that there were substantial differences in other terms and conditions of employment; that there existed a substantial hiatus in op- erations; that a majority of ex-Kroger employee-appli- cants expressed union disaffection, and that the Charging Unions had not represented a majority of Respondent's employees at any time material here , I am persuaded that on balance, the record falls short of establishing a suffi- cient continuity of the business enterprise. In short, I find that Respondent does not qualify as a successor for col- lective-bargaining purposes. See generally Howard John- son Co. v. Detroit Local Joint Executive Board, supra, 417 U.S. at 262-263 fn. 9. A fortiori, all allegations derived therefrom must fall. Accordingly, I shall recommend that all 8(a)(5) allegations be dismissed. spondent), constitute a single employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Locals 876 and 539, United Food and Commercial Workers International Union, AFL-CIO-CLC (Charg- ing Unions), are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent is not a successor to The Kroger Com- pany (Kroger) and its refusal to recognize and bargain with the Charging Unions has not violated Section 8(a)(5) and (1) of the Act. 4. By telling job applicants that they could not be hired because it was limited in hiring to a quota or a per- centage of less than one-half of the former Kroger em- ployees who were employed in the Saginaw/Corunna stores, in order to remain nonunion, Respondent violated Section 8(a)(1) of the Act. 5. By suspending and then discharging Supervisors Richard Huffman and Bradley Wallen because they gave testimony at a Board proceeding , the Respondent has interfered with, restrained, or coerced nonsupervisory employees in the free exercise of their statutory rights guaranteed by Section 7 of the Act, in violation of Sec- tion 8(a)(1) of the Act. 6. By establishing discriminatory hiring practices that limited the hiring of former Kroger employees who were employed in the Saginaw/Corunna stores to under 50 percent to avoid dealing with the Charging Unions for collective-bargaining purposes, Respondent violated Sec- tion 8(a)(3) and (1) of the Act. 7. Except to the extent set forth in Conclusions of Law 4 through 6, above, the Respondent had not other- wise committed unfair labor practices as alleged in these consolidated cases. 8. The unfair labor practices noted in Conclusions of Law 4 through 6, above, are unfair labor practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent's hiring practices had discriminated against applicants who had been employed by Kroger in the Saginaw/Corunna stores, in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that it offer all such individuals who would have been hired employment in the positions for which they would have been hired but for the Respondent's unlawful dis- crimination or, if those positions no longer exist, to sub- stantially equivalent positions, dismissing , if necessary, any and all persons hired to fill such positions.43 See Spencer Foods,supra. I shall also recommend that Re- spondent make whole for any losses they may have suf- CONCLUSIONS OF LAW 1. Respondent Kessel Food Markets, Inc. and Re- spondent Kessel Food Stores, Inc. (collectively also Re- as For reasons stated previously, the remedy does not extend to former Kroger employees who had not applied for employment. See in 33, supra. 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fered all individuals it would have hired but for its un- lawful discrimination against them , as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corp., 231 NLRB 651 ( 1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Having also found that Respondent's suspensions and subsequent discharges of Supervisors Richard Huffman and Bradley Wallen interfered with , restrained, and co- erced nonsupervisory employees in the exercise of their statutory rights, thereby violating Section 8(a)(1) of the Act, I shall recommend that Respondent offer Huffman and Wallen immediate and full reinstatement to their former or substantially equivalent positions , without prej- udice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent's unlawful action. See Oil City Brass Works, 147 NLRB 627, 631 (1964), enfd. 357 F.2d 466 (5th Cir. 1966). Backpay, with inter- est, shall be computed in accordance with the formula set forth in the Board cases cited above . See also Orkin Exterminating Co., 270 NLRB 404 (1985). Still further, to cure the independent 8(a)(1) violations, I shall recommend that Respondent cease and desist with the narrow "in any like or related" injunctive language. See Spencer Foods, supra, 268 NLRB at 1483. [Recommended Order omitted from publication.]