Mack'S Supermarkets, Inc.

1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mack's Supermarkets, 'Inc. and Local 227, United Food and Commercial Workers International Union, AFL-CIO-CLC. Cases 9-CA-23688, 9- CA-23763, 9-CA-23811-1, -2, and 9-RC- 15002 May 25, 1988 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On October 16, 1987, Administrative Law Judge William N. Cates issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, 2 fmdings, 1 In excepting to the judge's finding that Store Manager Lewis unlaw- fully threatened employee Scott with replacement, the Respondent renews the posttnal argument it made to the judge, based on a posttrial affidavit of Scott that it moved the judge to admit into evidence after completion of the trial. In this affidavit, Scott averred that she under- stood Lewis' comment "to be a joke" and that she had explained to coun- sel for the General Counsel before testifying to the incident that she did not feel threatened or coerced by the remark. In his decision, the judge denied the Respondent's motion to receive Scott's affidavit on grounds that the evidence contained within it was neither newly discovered nor unavailable at the time of the trial. The General Counsel has moved to strike the Respondent's argument—with its accompanying exhibits of copies of the denied motion and Scott's affidavit—because it rests on facts not contained in the record and because the Respondent failed to except to the judge's denial of the Respondent's motion Without passing on whether the Respondent's exceptions encompass the judge's ruhng, we grant the General Counsel 's motion to strike the Respondent's argu- ment based on Scott's rejected affidavit, and the resubmitted affidavit itself Like the judge, we find the evidence in the affidavit was not newly discovered nor unavailable to the Respondent at the time of hearing. Ac- cordingly, we find merit to the General Counsel's contention that the evi- dence is not properly before us and thus the Respondent's argument cannot be entertained. 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 Chairman Stephens and Member Babson adopt the judge's conclusion that the Respondent violated Sec 8(a)(1) of the Act by the statement made to employee Enix concerning striker replacement during the con- versation with the Respondent's vice president and its general manager. In so doing, they emphasize that during the same conversation the Re- spondent unlawfully threatened store closure, threatened that Emx would be the first "to go" if the Union came in, and impliedly threatened retal- iation against Enix by inquiring wliy he continued to work for the Re- spondent if he wanted unionized employment. They agree with the Judge that, in this context involving threats to Emx's job status, the finding of the violation based on the striker replacement statement is fully in accord with Eagle Comtronics Inc., 263 NLRB 515 (1982). Member Johansen finds that the coercive context made the replacement threat unlawful re- gardless of the vitality of Eagle Comtronics. and conclusions3 and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Mack's Su- permarkets, Inc., Harlan, Baxter, and Evarts, Ken- tucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order. [Direction of Second Election omitted from pub- lication.] 4 The General Counsel's request for a visitatonal clause is denied as the circumstances of this case do not "demonstrate a likehhood that [the] [R]espondent will fail to cooperate or otherwise evade compliance" See Cherokee Marine Terminal, 287 NLRB 1080, 1084 (1988). Donald A. Becher and Linda Finch,'Esqs. for the General Counsel. Kenneth W. Smith and Gregory P. Parsons, Esqs. (Stites & Harrison), of Lexington, Kentucky, for the Company. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. I heard this case on 19 and 20 May 1987 at Harlan, Ken- tucky. The cases arose when Local 227, United Food and Commercial Workers International Union, AFL- CIO-CLC (Union) filed unfair labor practice charges against Mack's Supermarkets, Inc. (Company) at various dates commencing on 31 October 1986. 1 Acting for the Board's General Counsel, the Regional Director for Region 9 investigated the charges and issued a third con- solidated amended complaint (complaint) on 27 March 1987; the complaint was further amended at tria1.2 The Company answered admitting many background and jurisdictional contentions made in the complaint but denied all claimed wrongdoings. The General Counsel makes extensive claims in the complaint. It is claimed that the Company starting as early as 30 September engaged in various conduct pro- hibited by Section 8(a)(1) of the Act. 3 It is also contend- ed the Company violated Section 8(a)(3) of the Act by about 28 October laying off its employee Marie Scott (Scott), by about 3 November transferring and discharg- ing its employee Jimmy Cusick (Cusick), and by about 2 December reducing the work hours of its employee Jerry Wayne Gibson (Gibson). Additionally, it is disput- ed whether Peggy Owens (Owens), Ronnie Caldwell All dates hereinafter are 1986 unless otherwise indicated The charge in Case 9-CA-23688 was filed on 31 October; the charge in Case 9-CA- 23763 was filed on 20 November, and the charges in Cases 9-CA-23811- 1, -2 were filed on 5 December. 2 On 3 April 1987 the Regional Director issued an amended order con- solidating cases in which Case 9-RC-15002 was consolidated for hearing with the unfair labor practice cases. On 5 May 1987 he issued an amend- ment to third consolidated complaint. 3 The specific 8(a)(1) allegations will be fully set forth elsewhere in this decision. 288 NLRB No. 123 MACK'S SUPERMARKETS 1083 (Caldwell), and Jim Hendrickson (Hendrickson) are su- pervisors and agents of the Company within the meaning of Section 2(11) and (13) of the Act. The Union filed the representation petition in Case 9- RC-15002 on 12 September. Pursuant to a Decision and Direction of Election issued on 30 October by the Re- gional Director, for Region 9 of the Board, an election by secret ballot was held on 2 December among the em- ployees in the unit described below: All full-time and regular part-time employees em- ployed by the Employer at its Harlan County, Ken- tucky stores, excluding all office clerical employees, all managerial employees and all professional em- ployees, guards and supervisors as defmed in the Act. The tally of ballots disclosed that 43 employees cast votes for the Union, and 66 employees cast votes against union representation. There were 17 challenged ballots that were not determinative of the election results. On 8 December the Union filed objections to conduct affect- ing the results of the election. The Regional Director for Region 9 of the Board issued on 20 January 1987 a Report on Election, order directing hearing, and notice of hearing. In his Report the Regional Director concluded that there were sub- stantial material issues of fact regarding the Union's Ob- jections 1-5 and 7-9 that could be best resolved by a hearing. Accordingly, he thereafter ordered that the rep- resentation case be consolidated with the unfair labor practice cases for hearing. The Union withdrew its Ob- jection 6. All parties were given full opportunity to participate and introduce relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. All briefs filed at various intervals have been carefully con- sidered. On the entire record in this case and my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Company is a Kentucky corporation engaged in the retail sale of food and other general merchandise in Harlan, Baxter, and Evarts, Kentucky. During the 12 months preceding the issuance of the complaint herein, a representative period, the Company, in the course and conduct of its business operations, derived gross rev- enues in excess of $500,000 and purchased and received at its Kentucky facilities products, goods, and materials valued in excess of $50,000 which were shipped directly from points located outside the State of Kentucky. The parties admit, and I find, the Company is, and at all times material has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The parties admit and I find the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES In attempting to establish the claims set forth in the complaint, the General Counsel relied on the testimony of certain adverse and a number of employee witnesses. The testimony and responses thereto are set forth below essentially in the order established by the complaint.4 Inasmuch as creditability is a material issue in the in- stant case, I deem it appropriate to make some prelimi- nary comments thereon. In deciding which of the con- flicting versions of events is more credible I have given considerable weight to the demeanor of the witnesses while they were on the stand. I have considered each witnesses' testimony in conjunction with established or admitted facts, inherent probabilities, and reasonable in- ferences that may be drawn from the record as a whole. With respect to the testimony, I have borne in mind the tendency of witnesses in general to testify their impres- sions or interpretations of what was said or done rather than attempting to give a verbatim account of what they heard or saw. Further, I am not unmindful that even in the case of persons testifying about their own remarks or actions, they may well tend to express what they said or intended to say in clearer or more explicit language than they actually used in their discussions or conversations. As to any witness having testified in contradiction of the findings herein, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself un- worthy of belief. All testimony has been reviewed and carefully weighed in light of the entire record. As specif- ic creditability conflicts arise, I shall state more specifi- cally my reasons for crediting or discrediting any par- ticular witness on any particular portion of their testimo- ny. A. The Alleged Supervisory Status of Owens, Caldwell and Hendrickson Before considering the status of Owens, Caldwell, and Hendrickson, I note it is undisputed that Company Vice President Harold Parsons (Vice President Parsons), Company General Manager Don Parsons (General Man- ager Parsons), Owner/General Manager Estelle Parsons (E. Parsons) (collectively the Parsons), Store Manager John C. Lewis (Lewis), Store Manager Grover Milwee 4 As will be obvious, certain complaint allegations overlapped other al- legations. In that regard I have attempted for the greater part to address the 8(a)(1) allegations before addressing the 8(a)(3) allegations. In consid- ering the 8(a)(1) allegations I have generally attempted to do so in the order they appear in the complaint, however, because of the overlapping of allegations it has not always been feasible to do so I have, however, considered all complaint allegations whether I have done so separately or in conjunction with other allegations My concern with the overlapping of complaint allegations has been heightened by the fact that certain of the witnesses were unable to state with precision when certain matters took place So that there is no confusion I have for example considered the allegations contained in complaint pars. (IOW and (n) in conjunction with the allegations set forth in par (d) of the complaint. 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (Milwee), and Store Manager Robert Owens (R. Owens) are, and at all times material have been, supervisors and agents of the Company within the meaning of Section 2(11) and 2(13) of the Act.5 1. Statutory provisions and governing principles pertaining to supervisory status The statutory provisions and governing principles per- taining to supervisory status within the meaning of the Act are well known and established. Reference to the status and a brief restatement of some of the governing principles is appropridte, however, prior to examining the specific facts applicable to Owens', Caldwell's, and Hendrickson's status. First, it is clear that an individual's status as a supervi- sor is not determined by his/her title or job classification, but rather is determined from the individual's functions and authority. Section 2(11) of the Act defines a supervi- sor as follows: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judg- ment. The statutory indicia outlined above in Section 2(11) of the Act are in the disjunctive and only one need exist to confer supervisory status on an individual. Opelika Foundry, 281 NLRB 897 (1986); and Albany Medical Center Hospital, 273 NLRB 485, 486 (1984). See also Olympia Plastics Corp., 266 NLRB 519, 530 (1983). In order for supervisory status to exist, however, the exer- cise of one or more of the outlined powers must be ac- complished with independent judgment on behalf of management in other than a routine or clerical manner. Put another way the statute expressly insists that a super- visor (1) have authority, (2) to use independent judg- ment, (3) in performing supervisory functions and (4) in the interest of management. These latter requirements are conjunctive. Hydro Conduit Corp., 254 NLRB 433 (1981), NLRB v. Security Guard Service, 384 F.2d 143, 147-148 (5th Cir. 1967). The party alleging supervisory status has the burden of proving it in fact exists. Commercial Movers, 240 NLRB 288, 290 (1979), and Hydro Conduit Corp., supra. As noted in Hydro Conduit Corp., supra, "The Board has a duty to employees to be alert not to construe supervisory status too broadly because the em- ployee who is deemed a supervisor is denied employee rights which the Act is intended to protect." Westing- 5 In his decision and direction of election issued on 30 October the Re- gional Director for Region 9 of the Board concluded that the above- named mdividuals, as well as Store Manager Don Richmond and Night Manager Connie Richmond, were supervisors within the meaning of the Act. As supervisors the Regional Director excluded all of them from the bargaining unit house Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970), cert. denied 400 U.S. 831 (1971). I shall now consider the facts as they pertain to each of the three alleged supervisors. 2. The status of Owens Up until recently Owens worked as head cashier at the Company's Baxter store. 6 She worked in that position for 20 of her 22 years with the Company. The Company employs approximately 11 cashiers at its Baxter store of which approximately one-half are part-time employees. No cashiers have worked at the Baxter store longer than Owens. Owens described her head cashier duties as basically ensuring that the cash registers were covered and that new cashiers were properly trained. The training given by Owens consisted of her observing the new cashier's run "load[s] of groceries. . . . through the register," in order to ensure "the right amount [for the groceries pur- chased] was entered into the register." Owens also in- structed new cashiers on "how they [were to] conduct themselves with the customers." Owens, for example, en- sured that the new cashiers thanked the customers for shopping with the Company and that they invited them to shop again at the store. Other procedures that Owens instructed the new cashiers on were how to accept and process checks when that was the method of payment tendered by customers. According to Owens, if a cashier made a routine mistake she immediately discussed it with the employee. If a cashier made a serious mistake, how- ever, she took it up with the Parsons. Owens stated that if a cashier engaged in anything that she considered to be misconduct, she informed Vice President Parsons or General Manager Parsons and the Parsons decided what if any action would be taken with respect to the cashier. Additionally Owens, from time to time, communicated management decisions from the Parsons to the cashiers. Owens testified that scheduling of work for the cash- iers was very casually accomplished. She said she made out the work schedules if nothing big was happening such as vacations, but if something out of the ordinary was expected to take place she consulted with Vice President Parsons and General Manager Parsons before making out the cashier's work schedules. Owens testified she did not have the authority to and never had com- pletely altered the cashier's work schedules, nor had she ever moved employees from one department to another. Owens stated she never altered store hours at any time in any way. From time to time when business was slack, Owens, as well as other cashiers, went home early. Owens testified she knew other cashiers had gone home early after she had left because they told her so when she returned to the store the following day. Owens fur- ther testified that when things were not busy at the store the cashiers were sort of on their own and checked out and went home as they wished. Owens said that employ- ees leaving early had asked if they could take a shorter than 1 hour lunch break to make up for the time they 6 Owens currently serves the Company as an office clerical employee. MACK'S SUPERMARKETS 1085 lost by leaving early and she indicated she had told them they could not. Owens described the hiring process for cashiers during the time she was head cashier as follows. First, anyone seeking employment as a cashier had to prepare a com- pany-provided employment application. Second, Owens interviewed the applicants. Third, all applications were then placed on file until such time as a vacancy was about to occur or had already occurred. At the time when a cashier was needed Owens would take the appli- cations that were on file to the Parsons and they would make a decision on which applicant would be hired. Vice President Parsons testified that when Owens worked as head cashier she stocked the health and beauty aid section and physically wrote out the work schedules for the cashiers at the Baxter store. Parsons stated Owens did not have the authority to hire, fire, or discipline employees nor had she ever had or exercised the authority to effectively recommend such actions. Parsons stated that any changes in the work schedules had to be cleared with him prior to being implemented. Vice President Parsons stated that from time to time as head cashier, Owens had been allowed to communicate a variety of work-related messages and management deci- sions to the cashiers. Employee Scott 7 testified that when Owens was head cashier at the Baxter store she could and did hire cash- iers. Scott cited herself as an example of Owens author- ity to hire cashiers. 9 Scott said she filled out an applica- tion for employment and thereafter talked to Owens every 2 weeks for approximately a year about the possi- bility of being hired. Scott stated that after about a year she prepared a second application that she gave to Owens. Owens looked the second application over and told Scott she would call her if the Company needed a cashier. Scott stated that about a couple of days thereaf- ter, Owens telephoned her to come to work Scott said Owens trained her for her cashier position.9 Scott testi- fied Owens "made up" the cashiers' work schedules and allowed them to go home early or have a day off if they needed to be off by working the schedule around them." Scott stated that when cashiers were needed for overtime Owens "advised" them of that need. Scott also stated that when she was laid off she asked for some- thing in writing and Owens signed a handwritten note for Vice President Parsons concerning her layoff. Brenda Pace (B. Pace) testified she worked at the Baxter store as a cashier trainee for approximately 3-1/2 hours in October. B. Pace stated she first spoke with Lanola Parsons (wife of Vice President Parsons) at 'Scott's layoff, which is alleged to have been unlawfully motivated, is addressed elsewhere m this decision Employee Eddy Noe (Noe) testified Store Manager Lewis told him Owens had the authority to interview, hire, schedule work for, and fire cashiers. I have placed no credence m Noe's testimony on this matter. Noe could not recall with any accuracy when the alleged conversation took place nor did he offer any explanation why Lewis would make such a statement lo him. As discussed elsewhere in this decision, I did not find Noe to be a credible witness. 9 Scott did not provide a great deal of insight into her trainmg except to say that if she made mistakes Owens called them to her attention. " Assistant Produce Manager Gibson testified he had known of cash- iers to ask Owens if they could change their days off, but he did not state whether any such changes actually took place. "Movies To Go" (a Company owned but unrelated busi- ness) about employment. , Lanola Parsons told B. Pace to check with Owens at the Baxter store that they might be able to use her there. According to B. Pace, Owens told her she did not know of any need for an employee but she (B. Pace) could talk to Vice President Parsons. B. Pace said Vice President Parsons came to the Baxter store and told Owens to commence training her for a cashier's position. B. Pace stated Vice President Parsons did not indicate whether there were any openings at the store. B. Pace testified Owens followed Vice President Parsons instructions, but that about 3-1/2 hours later she told her she was not working out, that she made too many mistakes, and they would have to let her go. B. Pace left the Baxter store at that time and was not there- after employed by the Company. Former employee Kimberly Blanton (Blanton) testified she filled out an application for employment at the Com- pany and once or twice thereafter talked to Owens about a job. Blanton said that several months later she saw Owens at the Baxter store looking at employment appli- cations. Blanton said she told Owens she still needed to work. According to Blanton, Owens told her to report for work the next day." Blanton testified that approximately 2 years before the trial she heard Owens tell an employee named Linda (not further identified) that she was fired. Blanton testi- fied that on that occasion she and Linda had been to lunch together and when they returned Owens met them at the timeclock, and told Linda a customer had com- plained about her conduct" and the Company could not have that, so they were going to let her go. Blanton stated that on occasion she had asked Owens for time off and "usually" Owens changed the schedule to accommodate her. Blanton also stated that when she was required to work unscheduled overtime Owens was the one who assigned the work to her. It is necessary to make some credibility resolutions in order to determine the facts surrounding the issue of Owens supervisory status. At any point where there is, or appears to be, a conflict regarding Owens' status, I have credited Owens' and Vice President Parsons' testi- mony. I have done so for a number of reasons. Owens appeared to be a believable, although somewhat nervous, witness. I am, however, persuaded her nervousness was as a result of her anxiety at having to testify and not as a result of any attempt on her part to misstate facts or to conceal the truth about her job duties. Her testimony re- garding her job duties was supported by Vice President Parsons. Additionally, her testimony about the Compa- ny's hiring, firing, and related policies is consistent with what is contained in the Decision and Direction of the Election prepared by the Regional Director in the under- lying representation case herein. 11 Blanton was unaware of Owens consulting with anyone prior to telling her to report for work the next day. 12 Blanton testified, "Apparently . . Linda got kind of smart with a customer." Blanton acknowledged she had not been at the store when the customer complained and she did not know who the customer had complained to or who had made the decision to terminate Linda 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel contends Owens was a statutory supervisor based on any number of factors related to her job duties and functions. A careful review for the Gener- al Counsel's contentions demonstrate they are without merit. First, counsels- for the General Counsel contend Owens could hire employees and they point specifically to the hiring of employees Scott and Blanton. Scott testi- fied she filled out two applications approximately a year apart and talked with Owens about employment on sev- eral occasions. About 2 days after she prepared her second application Scott stated Owens telephoned and asked her to report for work. Scott's testimony, howev- er, does not establish who made the decision to hire her. Nothing in Scott's testimony contradicts Owens and Vice President Parsons' testimony that Owens did not have the authority to hire or effectively recommend the hiring of employees. Although Owens interviewed all cashier applicants for the Baxter store when she was head cashier, I credit her testimony that the applications were placed on file until a need arose, and then a deci- sion was made at that time by the Parsons' about who would be hired. Furthermore, Scott's testimony does not establish that any practiêe existed at the Company re- garding hiring other than that described in the Decision and Direction of Election in the underlying representa- tion case, in which the Regional Director found the Par- sons retained "final approval over all hiring." Former employee Blanton filed an application for em- ployment with the Company and thereafter spoke with Owens on approximately three occasions prior to being employed. On the last such occasion, which took place "several months" after she had submitted her application, Owens, who was reviewing applications at the time, told her to report for work the next day. Although Blanton was not aware of Owens consulting with anyone prior to telling her to report to work, such does not establish that Owens exercised independent judgment in the hiring of Blanton. The fact Owens was reviewing' applications at the time Blanton was told to report for work suggests a decision had already been made to hire a cashier. In light of the Company's hiring policies and practices, I am per- suaded that Owens, although unable to recall specifics, testified truthfully when she said she would not have told Blanton to start work without first consulting with the Parsons. Furthermore, Owens credibly testified that E. Parsons had at one point discussed Blanton's applica- tion with her and had concluded she might work out as a cashier. Accordingly, I am persuaded the General Counsel has failed to establish, by a preponderance of the evidence, that Owens ever hired or effectively rec- ommended the hiring of anyone at the Company. j_ikewise, the General Counsel failed to establish that Owens ever fired or effectively recommended the firing of any employee. Former employee Blanton's testimony that Owens, some 2 years ago, discharged an employee, does not establish anything more than that Owens in- formed an employee she had been discharged. The dis- charged employee apparently had a customer complaint lodged against her and someone, as a result of that com- plaint, made a decision to terminate the employee. The customer complaint occurred in the morning hours and the discharged employee was not informed of her dis- charge until after lunch. Former employee Blanton ac- knowledged she had not been present when the com- plaint was made nor had she been privy to the decision- making process that led to the employee's discharge. Thus, Blanton's testimony established nothing more than that an employee was discharged because of a customer's complaint and that Owens relayed the message to that employee that she was fired. Such evidence falls far short of establishing Owens had anything to do with the decision to discharge the employee nor does it contradict Owens and Vice President Parsons' testimony that she did not have the authority to discharge or effectively recommend the discharge of employees. B. Paces' testimony regarding her 3-1/2 hours of em- ployment at the Company does not establish, as the Gen- eral Counsel contends, that Owens effectively recom- mended her discharge. Pace stated Owens told her she was making too many mistakes and would have to go. Owens acknowledged that after reviewing the register tapes generated by B. Pace during her short time at the store that she recommended to Vice President Parsons that Pace be let go. Owens' actions must be viewed in proper perspective. Owens was told by Parsons to train B. Pace. All the evidence establishes is that Owens re- ported back to Parsons the results of register tapes and recommended, based on that data, that Pace not be re- tained or, stated differently, that B. Pace was not traina- ble. Owens simply supplied Vice President Parsons with information on which he could make the decision on whether to retain B. Pace as an employee or let her go. Furthermore, Vice President Parsons credibly testified he personally observed B. Pace's work and reviewed the register tapes she generated, and thereafter, decided she was not qualified to continue as an employee of the Company. Therefore, the evidence presented by the General Counsel fails to establish Owens had the author- ity to discharge or effectively recommend the discharge of employees. It is undisputed that Owens, at times material, was the most senior cashier at the Baxter store and that she trained new cashiers. It appears, however, that the train- ing she provided—correcting simple mistakes, instructing the cashiers on the procedures for accepting personal checks as payment for merchandise, and reminding the cashiers to be courteous to the public—was extremely routine in nature and did not require the exercise of any independent judgment on her part. Owens prepared the Baxter store cashiers' work sched- ules without input from management only when there was not going to be any major changes in the set sched- ules such as employees taking vacations or things like that. Owens' testimony that she obtained approval for changes was corroborated by Vice President Parsons who stated that although Owens physically wrote out the work schedules for the cashiers, she cleared any changes with him. Owens' and Parsons' testimony is in keeping with the Regional Director's Decision and Di- rection of Election in the underlying representation case in which he found, "Harold and Donald Parsons prepare the 'employees weekly work schedules." It is clear that Owens functions with respect to the work schedules MACK'S SUPERMARKETS 1087 were simply clerical in nature and did not involve the exercise of any independent judgment on her part. The testimony, for example, of former employee Blanton that she, from time to time, had asked for time off and that Owens had usually made changes in the schedules to ac- commodate her, does not, under the circumstances of this case, detract from a finding that Owens' duties with respect to the schedules were nothing more than clerical in nature. Scott testified Owens allowed employees to leave work early or have a day off if they needed it. The cred- ited evidence, however, reflects the scheduling of work at the Baxter store was fairly casually done and the cash- iers were for the greater part on their own with respect to clocking out and/or going home early. The evidence establishes Owens even left work early on some occa- sions and after she had left for the day other cashiers did likewise. Thus, again the evidence fails to demonstrate that Owens exercised any effective control over when employees could leave early, or that she exercised any independent judgment on behalf of the Company with respect to employees having time off. The Regional Director in his Decision and Direction of Election concluded that Vice President Parsons and General Manager Parsons had to approve "any" over- time worked at the Company. The General Counsel did not present any conclusive evidence to the contrary. The General Counsel relies in part on the testimony of Scott to establish Owens could authorize overtime. However, Scott only testified that when overtime was worked it was Owens who "advised" the cashiers about the need for overtime. Such does not establish Owens had any input into the decision to authorize overtime or any input into the selection process regarding who would perform the overtime work. Furthermore, Blanton's testi- mony that when she was assigned to work unscheduled overtime it was Owens who assigned her to the work does not establish Owens had any involvement in the de- cision to authorize the overtime. In light of all the evidence, I am persuaded and find the General Counsel Counsel failed to establish by a pre- ponderance of credible evidence, that Owens was, at ma- terial times, a supervisor within the meaning of Section 2(11) of the Act. The General Counsel contends that even if Owens was not a statutory supervisor the Company is still liable for her actions as a "conduit of management" because she, from time to time, communicated management decisions to the cashiers. The General Counsel's argument is with- out merit. The record evidence establishes nothing more than that Owens was a long-term experienced employee entrusted with some nonsupervisory lead authority. There is no showing she ever exercised any independent judgment on behalf of management with respect to any actions she took or decisions she relayed that involved the cashiers. Functioning as a "conduit of management communications" or "decisions" is insufficient, absent su- pervisory status, to establish vicarious liability on the part of management for the conduit's actions. Knogo Corp., 265 NLRB 935 (1982). Furthermore, in the cir- cumstance of this case, I cannot conclude the Company placed Owens in a position such that employees could reasonably have believed she spoke on behalf of manage- ment with respect to her actions in the union campaign. This is a Company that was, and is, managed strictly from the very top. The ParSons alone make the signifi- cant decisions for this Company. The Parsons have given very limited authority even to their store managers. In this regard the Parsons were and are in each of their stores on a daily basis and on occasions even more often than that. I am persuaded the employees could not have failed to observe the Parsons in the stores, or to have un- derstood they exercised very tight control over their op- erations. In light of the above, I am persuaded the em- ployees could not reasonably have concluded that some- one who was simply a cashier, albeit a head cashier, spoke on behalf of management. Inasmuch as the Gener- al Counsel failed to demonstrate the Company vested Owens with apparent authority to Act as its agent, I shall not attribute her actions to it. Having concluded that Owens is not a statutory super- visor or that the Company is otherwise responsible for her actions, I shall recommend that all complaint allega- tions related to her be dismissed. 3. The status of Caldwell" Caldwell was employed 14 at material times, as a lead stockperson or assistant manager at the Baxter store." Caldwell's functions were to see that merchandise dis- plays were built, delivery trucks were unloaded, and store shelves were stocked. 16 CaldWell from time to time told baggers and stockers to bring stock from star- age and place it on the shelves and to keep the aisles looking good. It appears Store Manager Lewis, at times, told Caldwell what needed to be done and Caldwell then relayed Lewis' instructions to the baggers and stockers, Whenever Store Manager Lewis left the store to go to the bank, have a day off, or take vacation Caldwell was asked to "see that everybody performed, and, if not, report back to the leadership." Caldwell did not have the authority to hire, fire, or discipline employees, or to ef- fectively recommend such actions. Furthermore, Cald- well did not have the authority to arrange employees work schedules or to grant them time off. The General Counsel contends Caldwell was a statuto- ry supervisor based primarily on two factors. First, she contends Caldwell responsibly directed the work of unit employees and, second, that he regularly substituted for Store Manager Lewis, an admitted supervisor. I reject both contentions. With respect to responsibly directing the work of others, it is clear, whatever directions CaId- Caldwell's duties set forth herein have been assembled from credited portions of the testimony of former employee Greg York (York), em- ployee Noe, Baxter Store Assistant Produce Manager Gibson, Baxter Store Manager Lewis, and Vice President Parsons. I have considered Noe's testimony regarding Caldwell's duties only because it was corrobo- rated by others and because there does not appear to be any real dispute about the essential aspects of Caldwell's duties. As will be discussed else- where m this decision, Noe's testimony generally was unworthy of belief. 14 Assistant Produce Manager Gibson testified Caldwell is no longer employed by the Company. No party called Caldwell as a witness. 15 There was at least one other individual designated as assistant store manager at the Baxter location, namely, Tim liensley. 16 One employee is permanently assigned to each aisle at the Baxter store to ensure that shelves are properly stocked 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD well gave employees were routine in nature and did not require any independent judgment on his part. Stocker!- bagger employees were, for example, assigned specific aisles to maintain; therefore, any directions Caldwell might have given them would not have amounted to anything more than his asking them to perform their spe- cifically and permanently assigned duties. The same would apply to unloading trucks and constructing mer- chandise displays. All employees were required to unload delivery trucks as quickly as possible after the trucks arrived at the store. In summary, there is absolutely no showing that Cald- well exercised any independent judgment with respect to his having asked employees to stock shelves, unload trucks, or construct merchandise displays. Simply stated he could not compel employees to do anything. His only duty with respect to whether others performed their jobs was to report to management any employees' failure to do so. All the facts pertaining to his duties and responsi- bilities, taken as a whole, fail to demonstrate that he, at any time material, was a supervisor within the meaning of the Act. Furthermore, I cannot conclude Caldwell was a statutory supervisor because he occasionally filled in for or substituted for Store Manager Lewis. Caldwell did not possess statutory supervisory authority in his own right, and the record fails to establish he possessed any additional authority when he filled in for or substi- tuted for Store Manager Lewis. Caldwell could not have become a statutory supervisor merely by substituting for Store Manager Lewis, because to become a statutory su- pervisor by substituting for one the substituting employ- ee must possess the full extent of the supervisory author- ity that the substituted-for supervisor possessed. Inasmuch as I have concluded Caldwell was not a stat- utory supervisor and inasmuch as the record fails to es- tablish any grounds by which the Company would be libel for his actions, I shall recommend that all complaint allegations related to him be dismissed. 4. The status of Hendrickson17 Hendrickson has been employed at the Evarts store for the past 31 years. He testified he is nothing more than an "employee" at the store; but, acknowledged on cross-ex- amination, he had heard others refer to him as an assist- ant store manager. He said he never referred to himself in that manner. His duties include "look[ing] after the front [of the store]" and doing "a lot of bagging [grocer- ies]." Hendrickson testified he does "just about anything that needs to be done," and that on some occasions, when the store manager is away, he "look[s] after the 17 Hendrickson's name is spelled various ways m the record; however, the correct spelling is as set forth herem The description of Hendrick- son's duties has been taken from credited portions of testimony by Hen- dricksons, Store Manager Milwee, Vice President Parsons, General Man- ager Parsons, former employee Cusick, employee David Wayne Enix (Enix), employee Eddie Johnson (E. Johnson), employee Timothy Lee Johnson (T. Johnson), and employee Charles Soloe (Solon). Where I have deemed it significant or helpful I have identified which witness or witnesses provided certain specific information, otherwise I have simply set forth the mutually corroborated testimony of the witnesses without attributing it to any particular witness(es). I note at this pomt that by crediting certain portions of any witness' testimony I do not mean to and am not thereby necessarily crediting all of that witness' testimony [bag]boys." Hendrickson stocked the dairy case until he had surgery which "slowed [him] up a lot" and has pre- vented him from doing much work in that area of the store anymore. Hendrickson said if a disciplinary matter came up while he was left in charge at the store that he telephoned one of the Parsons, or he reported the matter to Store Manager Milwee the next day." Hendrickson stated he did not have the authority to hire, fire, or dis- charge employees. 19 Hendrickson said he had from time to time recommended for employment individuals he knew from "off the street" that he thought might make good employees. He stated his recommendations had not always been followed. When Hendrickson fills in for Store Manager Milwee 2° he can and does tell employees to bag groceries or stock merchandise as needed. He can also permit employees that are sick or that otherwise need to go home early to do so. He "presumes" he could ask employees to perform errands for the Company that would require them to be away from and return to the store. He stated that pursuant to longstanding orders from General Manager Parsons and Vice President Par- sons he could and had closed early when there were no customers in the store. When that occurs, Hendrickson and the others simply clock out and leave the store. Vice President Parsons testified he not only had given Hen- drickson instructions about closing early, but added, Hendrickson had even called him to tell him there were no customers in the store and to ask to close early. Vice President Parsons also testified Hendrickson had called him when the local high school was playing a ball game and asked to close early to attend the game. Parsons told Hendrickson to close early because Evarts was a "small town" and "everyone" went to any local ball games.21 Former employee Cusick testified that "about three years ago" he heard Hendrickson tell an employee by the name of Cupp to "get out of the store" that "he wasn't working there no more." Cusick stated that after Hendrickson told Cupp he was fired he told him he could come back the next day and see Store Manager Milwee that Milwee might give him his job back, but he would not. Employee Soloe testified that in the summer of 1986, Hendrickson told him to finish stocking the aisle that Sam Mills was responsible for because Mills was away on vacation. Soloe said he refused to do so because there were "boys standing . . . doing nothing." Soloe stated Hendrickson told him to "do it or go home." Soloe said he threw his label gun down and told Hendrickson he would go home, but Hendrickson would have to clock him out. Soloe testified he returned to the store the next 18 Mftwee testified that all actions taken by Hendrickson while Milwee is away from the store are subject to review. 18 In this regard General Manager Parsons testified that he along with his brother, Vice President Parsons, and mother, E. Parsons, did all the hiring, firmg, advertising, and planning for the stores. 20 There are two other individuals that fill in for Store Manager Milwee when he is absent from the store, namely, Sam Mills and a Mrs. Bradford who is an office worker. The record does not reflect how often Milwee is away from the store for either a full day or any part thereof. 21 It appears Hendrickson was a high school athlete who still enjoys going to the six or so basketball games held in Evarts each year. It ap- pears the store is closed early on those six or so occasions. MACK'S SUPERMARKETS 1089 , day and spoke with Manager Milwee. Milwee told Soloe "If you come back, then, you'll have to do what Jim [Hendrickson] tells you next time." The General Counsel argues Hendrickson is, and the Company asserts he is not, a supervisor within the mean- ing of the Act. At first glance, the evidence tends to re- flect Hendrickson exercised certain powers that are su- pervisory in nature. When reviewed more carefully, however, the evidence fails to demonstrate he exercised any independent judgment or had any significant discretion in carrying out his job functions. Although Hendrickson, some 3 years ago, told an employee (Cupp) to get out of the store that he did not work there any longer, he also told the employee he might get his job back the next day from the store manager or others. Hendrickson made it clear to the employee involved that his was not the final say with respect to the employee's employment with the Company. 22 Hendrickson's telling Cupp to check with management the next day about his employment indi- cates he recognized, as Store Manager Milwee, General Manager Parsons, and Vice President Parsons testified, that he did not possess the authority to make final deci- sions on matters of that nature. The same is true with re- spect to the fmality of the decision to send employee Soloe home. Hendrickson simply asked Soloe to do something that was part of his regularly assigned job, stocking shelves, and when Soloe refused to do so, Hen- drickson told him to leave the store. The next day, after conferring with Store Manager Milwee and agreeing to do what he was told, Soloe was permitted to return to work. Again the evidence demonstrates that final deci- sions, with respect to discipline, were and continue to be made by Store Manager Milwee and/or higher manage- ment personnel. These conclusions regarding discipline are in keeping with the Regional Director's Decision and Direction of Election in the underlying representation case in which he concluded, "individual store managers have limited disciplinary authority with all final decisions reserved for one of the Parsons'." In a case such as this where even store managers have such limited superviso- ry authority" it is illogical to conclude or assume that those who are or act as assistant store managers are su- pervisors within the meaning of the Act. Furthermore Hendrickson's authority to direct the work of employees by telling them to stock shelves or bag groceries does not constitute authority to responsibly direct their work, but rather constitutes routine directions given to employ- ees comparable to those given by nonsupervisory lead persons. In Smitty's Foods, 201 NLRB 283 (1973), a case factually similar to the instant one, the Board sustained a finding that the produce manager therein was not a su- pervisor within the meaning of the Act. In Smitty's Foods, supra, the produce manager punched a timeclock and was responsible for approximately 10 employees at thrun when no supervisory personnel were present. The produce manager was, during those times, responsible for "cashiers," "sacker-stock boys," "a delicatessen employ- 22 The record does not reflect exactly when or what brought about Cupp's ouster from the store, nor is there any indication who else, if anyone, may have been involved in the matter. 23 Other aspects of their limited authority is alluded to at various points throughout this decision ee," "a produce employee," "a meat department employ- ee," and "a frozen food dairy department employee." The produce manager in Smitty's Foods, supra, was re- sponsible for seeing the work was done and everyone kept busy. If business was slow in one area of the store, he could move employees to other areas. For example, when baggers were not needed at the front of the store, he sent them to stock shelves or to work in the back of the store. When business was slack throughout the store, he could send excess help home. He simply asked for volunteers and then sent them home. Finally, he was not the only one who filled in when management representa- tives were away from the store. It is clear from the above that Hendrickson in the case sub judice performed essentially the same functions that the produce manager in Smitty's Foods, supra, performed. Inasmuch as the Board concluded the produce manager in Smitty's Foods, supra, was not a supervisor within the meaning of the Act, I likewise conclude Hendrickson was and is not a supervisor within the meaning of the Act.24 Although the Board upheld the judge's finding, relying on Smitty's Foods, supra, that the night manager therein was not a supervisor within the meaning of the Act it did conclude the respondent therein was responsible for the conduct of its nonsupervisory night manager. The Board held the respondent in Schulte's IGA Foodliner, supra, responsible for the acts of its nonsupervisory night manager because it concluded the employees, store man- agers, and store owners clearly understood the night manager was "a member of management." The parties in Schulte's IGA Foodliner, supra, had stipulated to an ap- propriate bargaining unit that excluded the night manag- er as a member of management. Thus, the Board con- cluded it was reasonable for the employees in Schulte's' IGA Foodliner, supra, to conclude the night manager spoke for management. No such conclusion can be drawn in the instant case. The evidence herein tends to indicate the owners, store manager, and employees did not regard Hendrickson as a member of management. Hendrickson was not held out in the underlying repre- sentation case to be a member of management. In fact, Hendrickson was not mentioned by name nor was the as- sistant store manager's position addressed in the underly- ing representation case. Supervisory positions, however, were addressed in the underlying representation case and those filling such positions were excluded by name from the bargaining unit. That employees knew Hendrickson did not speak with authority on behalf of management is evidenced by, among other things, the fact that any deci- sions he made for management were subject to review by Store Manager Milwee or the Parsons. Hendrickson's direction of the work of others did not place him in a position of being held out as a member of management. It is clear Hendrickson directed the work of others. The 21 Counsels for the General Counsel's argument that if I do not find Hendrickson to be va supervisor there will be periods of time when the employees are unsupervised is without merit. The work performed is rou- tine and the Parsons are in the stores daily and are always available via telephone to give guidance to the employees. I note the Board in Schulte's IGA Foodliner, 241 NLRB 855 (1979), upheld a judge's findmg that the night manager therein was not a supervisor within the meanmg of the Act. 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD directions he gave, however, were of a routine nature that did not require any independent judgment on his part. therefore, Hendrickson, at best, could only be con- sidered as a conduit of work-related information and di- rections from management to the employees. Acting as a "conduit of information" for management is not enough, without supervisory status, to establish vicarious liability on the part of an employer. Knogo Corp., supra. Thus any statements Hendrickson may have made during the union campaign simply constituted mere opinions of an employee about the effects of unionization and did not violate the Act. Finally, counsels for the General Coun- sel citing Aladdin Hotel, 270 NLRB 838 (1984), contend that assistant store managers (such as Hendrickson) who substitute for store managers on a regular, rather than sporadic or infrequent basis, must be found to be supervi- sors within the meaning of the Act. In Aladdin Hotel the Board concluded that when substituting employees pos- sessed the full extent of the supervisory authority that the supervisors for whom they were substituting had, and when they exercised that authority over bargaining unit employees, they were supervisors within the mean- ing of the Act. In Aladdin Hotel, the Board held that em- ployees who substituted for supervisors on an average of two times per month over a 3-month period of time did so with enough frequency to qualify as statutory supervi- sors. In the instant case Hendrickson filled in for Store Manager Milwee with enough frequency to qualify as a "supervisor by substitution," under the Aladdin Hotel ra- tionale. Hendrickson, however, did not and does not pos- sess supervisory authority in his regular job and because he did not and does not possess the full extent of Mil- wee's supervisory authority when he fills in for him he cannot be found to be a statutory supervisor by substitu- tion. "Mere substitution" standing alone, even if done regularly, does not confer supervisory status on the sub- stituting employee. In order to be a statutory supervisor by substituting for one the substituting employee must possess the full extent of the supervisory authority that the substituted-for supervisor possesses. Accordingly, Hendrickson's substituting for Milwee did not confer su- pervisory status on him Inasmuch as I have concluded that Hendrickson was not and is not a supervisor within the meaning of the Act, or that the Company is otherwise liable for his con- duct or actions, I shall recommend that all complaint al- legations related to him be dismissed. B. The 8(a)(1) Allegations Involving Vice President Parsons It is alleged at paragraph 5(a) of the complaint that the Company about 19 November acting through Vice Presi- dent Parsons in the presence of General Manager Par- sons, at its Baxter store: (i) advised an employee that if he wished to work at a unionized facility he should pro- cure work at an employer other than the Company; (ii) threatened an employee that if the Company's employees selected the Union as their collective-bargaining repre- sentative, certain of the Company's facilities would be closed; (iii) threatened an employee with replacement if the Union ever established a picket line at the Compa- ny's facilities in which the employee participated, with- out explaining to the employee his right to be recalled to work should his former position become available; and (iv) threatened an employee with filing unfair labor prac- tice charges against him for asking other employees whether they would support the Union. It is also alleged at paragraph 5(b) of the complaint that Vice President Parsons at the Company's Baxter store: (i) about 26 No- vember coercively interrogated an employee regarding his union activity, impliedly threatened to discharge him if he supported the Union in its attempt to become the collective-bargaining representative of the Company's employees and threatened to discharge him if he engaged in any strike activity; (ii) about 1 December coercively interrogated employees about their union sympathies and assured them that they would not be discharged provid- ed they voted against the Union; (iii) about 3 December informed employees that the Company was going to rid itself of a certain known union adherent; and (iv) about 9 December coercively interrogated an employee concern- ing the filing of an unfair labor practice charge. Before addressing the 8(a)(1) allegations I note it is un- disputed that the Union began its organizing campaign at the Company in the fall of 1986. All the 8(a)(1) allega- tions are alleged to have taken place during that time- frame. Evarts store employee Enix25 testified he campaigned for the Union during the fall of 1986. He said he wore a union button, signed a union card, and asked certain of his fellow workers to sign union authorization cards while on the job. Enix asserts Store Manager Milwee told him during the campaign he had been harassing em- ployees about signing union cards," and if he did it again he would be discharged Enix testified that a few minutes after Milwee told him that he told him if he heard of him doing anything like that again while on the clock he would replace him According to Enix, later that fall, Milwee, told him he would have to meet with Vice President Parsons and General Manager Parsons at the Company's Baxter store. Enix went to the Baxter store where for the first time he met the two Parsons. Enix stated "they" 27 first asked him if he had ever worked for a particular competitor (Cas Walkers Super- markets). Enix told them he had worked for that com- petitor for approximately 10 years. They then asked and he told them what his rate of pay had been at the com- petitor. They also asked him about his pay rate at the Company. Enix testified they also asked him about his marital status and how he felt about the Union Enix said he told them his father was a union man" who had been injured in the coal mines and there was no way he could turn his back on this Union because it was what he had been brought up with Enix testified they told him that if 25 At the time of the trial herein Emx had been on medical leave from the store for approximately 2 to 3 months 26 This incident is alleged as a violation of the Act and is discussed elsewhere in this decision. 27 Elia did not indicate which of the two Parsons he was referring to when he used the term "they." " Enix's father, Gene Emx, who was not and is not an employee of the Company served as a union organizer during the campaign and was the individual who explained the pros and cons of unionism to the em- ployees at union meetings held in employees homes. MACK'S SUPERMARKETS 1091 the Union got in and if there was a strike he could stand on the picket line all summer, fall, winter, and spring, but if he did not leave the picket line and return to work he would be replaced. Enix said they did not mention anything about any recall rights he might have. Enix stated they also told him if the Union came in, the Com- pany would have to shut down the less efficient stores and only operate their more productive ones because they were barely able to stay afloat. Enix said they men- tioned that A&P Supermarkets and Kroger's were able to have unions and be competitive because they pro- duced some of their own product lines. They told Enix if he was looking for a union job those would be the places where he should work. Enix said they mentioned the fact he had the least seniority and if the Union came in he would probably be the first employee to go. Enix testi- fied he asked them about Store Manager Milwee's ap- proaching him regarding employees being harassed. Enix said they told him what he had done was against the law and they could file unfair labor practice charges against him for harassing a particular employee, but they had chosen not to do so. Vice President Parsons testified he had a cashier from the Evarts store call him in a nervous and upset manner complaining Enix was "aggravating" her to death by telling her she would lose her job if she did not sign a union authorization card. According to Parsons, the cashier wanted to know if what Enix was telling her was true. Parsons said he told her it was not and that he would ask Enix to stop harassing her.29 General Manager Parsons acknowledged he and his brother, Vice President Parsons, met with Enix at the Baxter store during the union campaign. He said Enix was apprehensive and a little hostile at the meeting be- cause he did not want to talk to them. General Manager Parsons said they called Enix to the Baxter store because they had received several complaints he had been harass- ing cashiers and other employees about the Union, and they "wanted to caution him not to do that." Vice Presi- dent Parsons stated he asked Enix why he wanted to work at a unionized store, and why he did not go some other place to work if he really wanted to be at a union- ized store. Vice President Parsons said he told Enix what might happen if the Union established a picket line at the Company He testified: I said that if you vote to have a strike, it's my un- derstanding that I go to you all and I'd say "Report back to work or I will have to replace you." "If you come back to work, fine. If not, I understand I have the right to replace you." Vice President Parsons testified he told Enix (and the other employees) that harassing employees on the job would not be permitted. He denied threatening to file unfair labor practice charges against anyone, or threaten- 9 9 Vice President Parsons stated the cashier's mother, who is also em- ployed at the Evarts store, complained about Enix harassing her as well as her daughter. Store Manager Milwee testified he also informed Vice President Parsons and General Manager Parsons that there were com- plaints that Enix was harassing employees about the Union ing to layoff or discharge anyone, or that any of the Company's stores would close. I am persuaded that either version of the facts—Enix's testimony that Vice President Parsons asked how he felt 'about the Union or Vice President Parsons' testimony that he asked Enix why he wanted to work in a union- ized store—related to the initial questioning of Enix by Vice President Parsons violated Section 8(a)(1) of the Act. The test for evaluating whether interrogations vio- late the Act is whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with employee rights guaranteed by the Act. Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985) and Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). In Sunnyvale Medical' Clinic, supra, the Board outlined some areas of inquiry that may be helpful in applying its "totality of the circumstances" test. The areas of inquiry include, but are not limited to, the background surrounding the questioning, the nature of the information sought, the identity of the questioner, and the place and method of interrogation. The question- ing herein was of a known union adherent, however, it was conducted by two of the three top officials of the Company. It took place in one of the Company's offices located at a separate facility from where the employee being questioned normally worked. The interrogation was accompanied by other statements that constituted unlawful conduct on the part of the Company. Accord- ingly, I find the Company, through Vice President Par- sons, coercively interrogated Enix in violation of Section 8(a)(1) of the Act. Vice President Parsons' remarks to Enix that if he wanted to work in a unionized store why didn't he go somewhere that was unionized were unlawfully coercive. I find his inquiry into why Enix continued to work for the Company if he wanted unionized employment consti- tuted an implied threat of retaliation in violation of Sec- tion 8(a)(1) of the Act. See Herb Kohn Electric Co., 272 NLRB 875 at 878 (1984), and Groves Truck & Trailers, 281 NLRB 1194 (1986). Counsels for the General Counsel contend it was un- lawful for Vice President Parsons to tell Enix he could be replaced in the event of a strike without further tell- ing him about his reinstatement rights. The Board in Eagle Comtronics, 263 NLRB 515 (1982), held an em- ployer does not violate the Act by informing employees that in the event of a strike they may be permanently re- placed, without at the same time informing them of their preferential reinstatement rights. The Board held that unless the statement of the employer may be fairly un- derstood as a threat of reprisal, or is explicitly coupled with such threats, it is protected by Section 8(c) of the Act. The Board in Gaso Pumps, 274 NLRB 532 fn. 2 (1985), specifically indicated its continued adherence to the teachings of Eagle Comstronics, supra. Therefore, in the instant case, the issue of a violation of the Act turns on whether Vice President Parsons' comments may be fairly understood as a threat of reprisal and/or whether they were explicitly coupled with such threats. If it is found that either or both conditions exist, then his com- ments would lose their 8(c) protection. I fmd his com- 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ments taken in context fall into both categories and as such violated Section 8(a)(1) of the Act. Parsons' state- ment came, as has been or will be discussed, in the con- text of other threats, namely, of store closures, layoffs, and other retaliations. In this context the employee in question could reasonably have understood Parsons' comments to have constituted a threat that if he partici- pated in a strike against the Company he would lose his job permanently. It is necessary to make certain credibility resolutions in order to decide portions of the remaining allegations in- volving Vice President Parsons. The two Parsons and Enix testified about their meet- ing in a candid manner with no indications, based on de- meanor, that would warrant my crediting one version of the facts over the other. I am, however, persuaded Enix's version is more probable than the Parsons' ver- sion Enix testimony that Vice President Parsons said if the Union came in the Company would have to close its less efficient stores and only operate its more productive ones, and that Enix, as the least senior employee, would probably be the first one laid off, is not inconsistent with more generalized admissions made by Vice President Parsons. For example, Vice President Parsons acknowl- edged he had discussed his opinion of the effects of unionization with the employees. His opinion, that he discussed with the employees, was that if the Union came in there was a possibility wages and benefits would go up and if that happened prices would have to increase accordingly. If prices increased the Company would lose customers and be less competitive which might result in the need for fewer employees and possibly result in lay- offs. He acknowledged he also expressed his opinion that if the Union came in the Company might have to close its less productive stores. Furthermore, the campaign ma- terials the Company mailed to its employees concerned store closings at unionized grocery facilities. Thus, I fmd it is highly probably that since Vice President Parsons discussed the effects of unionization as outlined above with other employees that he availed himself of the op- portunity to do so on this occasion with Enix. Inasmuch as I have credited Enix's version of the Baxter store meeting, I find Vice President Parsons' comments about store closures and layoffs violated the Act. See William- son Memorial Hospital, 284 NLRB 35 (1987), I reject the Company's contention that any comments made by Vice President Parsons about the effects of unionization at the Company were within the permissible guidelines outlined in NLRB v. Gissel Packing Co., 395 U.S. 575 (1965). Vice President Parsons' expressed opinions and predictions concerning the impact of unionization at the Company would only have been protected if he had based his pre- dictions on objective facts. The evidence clearly demon- strates he failed to meet the stringent requirements of Gissel, supra, regarding the effects of unionization at the Company. His comments that his major competitors in the area, A&P Supermarkets and ICrogers, produced their own product lines and, as such, were better able to afford unionization and remain competitive simply does not constitute the objective type facts contemplated by the Court in Gissel, supra. Neither does relying on news- paper articles detailing the closing of certain unionized Kroger stores constitute such objective facts. With respect to the remaining portions of the Baxter store meeting, I find Enix raised with the two Parsons the matter of Store Manager Milwee's accusing him of harassing employees about the Union. It was this subject matter that admittedly brought about the meeting in the first place. The two Parsons were very concerned about and interested in having Enix stop any such conduct. Thus, I find Vice President Parsons told Enix that what he had done was against the law and they could file unfair labor practice charges against him, but had chosen not to do so. An employer's threat to file charges against an employee can violate the Act. See, e.g., Consolidated Coal Co., 266 NLRB 670 at 675-676 (1983), Interstate Food Processing Corp., 283 NLRB 303 (1987), and the cases cited therein. See also Thomas Steel Co., 281 NLRB 389 (1986). I do not interpret Vice President Par- sons' comments, however, to constitute a threat to file unfair labor practice charges against Enix. Quite to the contrary, Parsons specifically told Enix the Company had decided not to file any such charges against him Accordingly, I recommend that portion of the complaint relating to Parsons' threatening to file unfair labor prac- tice charges against Enix, as set forth in paragraph 5(a)(iv), be dismissed. Employee Noe, an 8-year stockclerk at the Baxter store, testified Vice President Parsons talked to him during the campaign in his office about the Union. Noe stated Parsons told him A&P Supermarkets and Krogers were connected with the Mafia and for him to vote "no" on the Union. Noe also said Parsons told him if he voted no he would not get fired and added if the Union did not get 500 members it would, not represent the employees. Noe testified that at some point after the 2 December Board-conducted election that he overheard Vice Presi- dent Parsons say while pointing at him at the front of the store that he would be the next employee the Company would get rid of. Noe stated Parsons made that comment to cashiers Della Loveday and Sandy Robbins. Noe was a reluctant, unsure, nervous witness who only acknowledged some matters after being confronted with portions of some of his pretrial Board affidavits.30 He was unwilling to adopt portions of his pretrial state- ments. He acknowledged on cross-examination that some of what was contained in his 26 December affidavit was not true, and that he made the statements therein just be- cause he wanted to get out of all the commotion that was going on and be free of everything. He further ac- knowledged on cross-examination that he had been per- suaded to file unfair labor practice charges against the Company on matters some of which he guessed were untrue. After carefully observing Noe testify and after considering his apparent willingness to disregard the truth, I am unwilling to give credence to or place any reliance on his testimony to support any allegations in the complaint. Accordingly, I shall recommend that any 3° Noe either gave sworn statements to or prepared memorandums for the Board on 23 October, 20, 24, and 28 November, and 1 (two memo- randums), 2, and 3 December (two memorandums). He gave sworn state- ments to the Company on 17 and 26 December. MACK'S SUPERMARKETS 1093 portions of paragraphs 5(a) and (b) of the complaint that would be supported by his testimony alone be dismissed. Assistant Produce Manager Gibson, 31 a 6-year em- ployee at the Baxter store, testified he attended three union organizing meetings held at employees homes and served as an observer for the Union at the Board-con- ducted election on 2 December. Gibson stated that in late November he had a conver- sation with Vice President Parsons, in Parsons' office, about the Union. According to Gibson, Meat Depart- ment Supervisor Paul Ball was present during some of the conversation. 32 Gibson stated Parsons told him he was aware that he was unhappy working for the Compa- ny. Gibson told Parsons he was not unhappy working for the Company, that he enjoyed working with people, but he was unhappy with the wages he was receiving. Parsons told Gibson he wished he could give the em- ployees a raise, but they made more money the previous year than he did. Parsons asked Gibson what the Union could do for him and then answered his own question by telling Gibson it could not do anything for him. Gibson testified Parsons told him he had given him his job and noted that,. "whosoever giveth can taketh away." Par- sons told Gibson, "You need to think about what's good for the Company. A no vote would help the Company and secure your job." Gibson said Parsons then showed him a paper that outlined the Union's expenses and how it spent its money. Parsons then told Gibson that if the Union came in and if there was a strike he could replace him if he did not come back to work after being asked and Gibson would then be out of a job. Gibson asserts that immediately after, but on the same day as the Board-conducted election, he was told by General Manager Parsons that he would no longer be al- lowed in the store until it opened. Gibson contends that change resulted in a reduction of work hours for him. As a result of Gibson's contentions additional unfair labor practice charges were filed against the Company.33 Gibson testified that after the additional charges were filed Vice President Parsons came to the produce depart- ment and told him he was aware Gibson had filed an unfair labor practice suit against the Company. Gibson acknowledged he had. Parsons told Gibson he had better not perjure himself, because if he lied he would file charges against him. Vice President Parsons denied coercively interrogating any employee. He also denied ever threatening to dis- charge any employee for supporting the Union. He stated he never assured any employee that the employee would not lose his or her job if they voted against the Union. Parsons did acknowledge discussing with the em- ployees what might happen if the Union established a picket line at the Company. He said he told the employ- ees that if they went on strike and did not return to 31 There is no contention that Gibson is or was a supervisor within the meaning of the Act. He is, as reflected elsewhere in this Decision, alleged as a discriminatee by counsels for the General Counsel. 32 Ball's status is not in issue in this proceeding. I note he was found not to be a supervisor in the underlying representation case. Ball did not testify herein 33 The allegations pertaining to an alleged reduction in hours of work for Gibson is addressed elsewhere in this Decision. work when he asked them to he could replace them. Parsons denied he ever threatened to file unfair labor practice charges against any employee because of the employee's support for the Union. Parsons specifically denied ever threatening Gibson with a reduction in hours, layoff, or discharge because he supported or was suspected of supporting the Union. Both Vice President Parsons and Gibson were pleasant witnesses. Gibson, however, seemed to be more thought- ful, conscientious, and believable. Accordingly, I credit his account of his conversations with Parsons. The first question to be considered is whether Vice President Parsons' comments, as testified to by Gibson, constituted unlawful interrogation. Applying the "totali- ty of the circumstances" test to the instant facts I am persuaded Parsons' questioning Gibson about what the Union could do for him had a reasonable tendency to interfere with, restrain, and coerce Gibson in the exercise of rights guaranteed by the Act and as such violated Section 8(a)(1). First, Vice President Parsons was a top- level management official who was not Gibson's direct supervisor. Second, the questioning took place in the store offices as opposed to Gibsons work area. Third, the questioning took place in the context of Parsons telling Gibson he knew he was unhappy working for the Com- pany and his comments were of a nature that he knew were likely to illicit a response from Gibson revealing his overall union sentiments. Fourth, Vice President Parsons' questioning of Gibson about his union sentiments took place in the context of other unlawful threats and prom- ises. For example, Parsons pointed out to Gibson it was he who had given Gibson his job and he could take it away. That comment clearly constituted a threat to dis- charge Gibson if he supported the Union. Further, Vice President Parsons' comment to Gibson that he could secure his job if he voted against the Union violated the Act. Vice President Parsons also told Gibson that if there was a strike he could replace Gibson and he would be out of a job. As is noted elsewhere in this decision, an employer does not violate the Act by informing employ- ees that in the event of a strike they may be permanently replaced without further telling them of their preferential reinstatement rights, unless the employer's comments may be fairly understood as a threat of reprisal, or the comments are explicitly coupled with such threats. I am persuaded and find, Vice President Parsons' comments about strike replacements lost their 8(c) protection be- cause they came in the midst of other unfair labor prac- tices such as the threat to discharge Gibson if he sup- ported the Union. Next, I turn to the question of whether Vice President Parsons' December comments to Gibson, about the unfair labor practice charge that had been filed on Gib- son's behalf, violated the Act. Parsons told Gibson he knew about the unfair labor practice charge and advised Gibson not to perjure himself, because if he lied he would file charges against him Considering the fact Vice President Parsons' com- ments came in conjunction with other unlawful state- ments that I find he made, it is reasonable to conclude, as I do, that his threat to file charges against Gibson was 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the purpose of harassing and intimidating him in the exercise of his rights guaranteed by the Act, and as such violated the Act. Consolidation Coal Co., 266 NLRB 670, 675-676 (1983). Cf. Interstate Food Processing Corp., 283 NLRB 303 (1987), and the cases cited therein (1987). There is nothing in the record that would indicate Gibson had in the past or would in the future commit perjury. In fact, nothing was advanced that would in any way justify Vice President Parsons' remarks about the unfair labor practice charge." C. The 8(a)(1) Allegations Involving General Manager Parsons It is alleged at paragraph 5(c) of the complaint that the Company acting through General Manager Parsons at its Baxter store: (i) about 26 November threatened an em- ployee that the Company would impose more onerous working conditions on employees and would lay off and/or discharge many of them if they selected the Union as their collective-bargaining representative; (ii) about 28 November threatened an employee that if the Union was successful in its organizing campaign the Company would close its operations;33 and (iii) during the latter part of October threatened employees that if the Union was successful in its organizing campaign the Company would cease operations or reduce its employ- ees hours." Former employee Cusick" worked at the Evarts store from August 1981 until early November 1986. He par- ticipated in the Union's campaign at the Company by: signing a union card; attending approximately 13 to 15 union meetings (about half of which occurred before early November); asking other employees to sign union cards and/or to support the Union, giving employees baseball type union caps and union buttons; and by wear- ing a union hat and button in the store at times when he was not working. It is uncontested that Cusick openly supported the Union. Cusick testified General Manager Parsons had not spent much time at the Evarts store until the union campaign started, but after that he came there on a daily basis. Cusick stated that in approximate- ly the first week of October General Manager Parsons came to the stockroom at the Evarts store and told him and employees Glen Brock and Raymond Earl Hayes that: . . he tried to create employment for the young people in Harlan County, and said if we chose this union that he couldn't—wouldn't be able to survive, 34 I recognized that the complaint allegation on this particular matter dealt with interrogation of an employee concerning the filing of an unfair labor practice charge, however, the findings I have made herein are more in keeping with the fully litigated facts. 35 I note in par. 5(c)(ii) what appears to be a typographical error. It is alleged that if the Company is successful in its organizing campaign then the Company would close its operations. I am persuaded the complaint allegation was intended to read, if the Union was successful in its orga- nizing campaign the Company would then close its operations. 36 I grant counsels for the General Counsel's unopposed motion to correct as a labeling error par. 5(b)(iii) in the third consolidated amended complaint to read 5(c)(iii) 37 The allegations pertaining to and the facts surrounding Cusick's em- ployment status with the Company are set forth elsewhere in this deci- sion that he would either have to close the store or cut hours. General Manager Parsons testified he expressed his opinion that a union was not needed at their small com- pany that it would not be good for the Company or the employees. He denied threatening anyone that the Com- pany would close any portion of its operations if the Union was successful in its campaign and he said he never threaten any employees they would be discharged, laid off, or have their hours of work reduced if they sup- ported the Union. I note the following with respect to the issue of whether any such meeting between Cusick, Brock, Hayes, and General Manager Parsons took place. It is clear General Manager Parsons attempted to express his views on the effects of unionization to "all . . . employ- ees at one time. . . or other." Parsons was present when his brother, Vice President Parsons, made certain com- ments I have found violated the Act. Notwithstanding the above, I fmd counsels for the General Counsel failed to establish that the meeting in question took place. Cusick in his testimony exhibited an undertone of anger toward the Company that seriously detracted from his overall credibility. Simply stated he harbors a strong bias against the Company. As is discussed elsewhere in this decision, I have concluded he misspoke the truth when he denied making a statement to employee Cooper, that Cooper understood to be a threat against Store Manager Milwee. Accordingly, I am unwilling to credit Cusick's uncorroborated testimony outlined above. The two other employees Cusick claimed were present at the meeting with General Manager Parsons did not testify. I shall, therefore, recommend those portions of com- plaint paragraph 5(c) that counsels for the General Counsel rely on Cusick's testimony to establish be dis- missed. 3 8 Employee Noe testified he had a conversation with General Manager Parsons alone in Parsons' office in late November. Noe said Parsons told him: [If] the Union did get in, that they couldn't pay Union wages and they would probably have to lay off some and probably fire us. And. . . if there was a strike he would probably . . . replace us with some more workers and he wouldn't have to pay Union wages. Noe could not recall General Manager Parsons saying anything about any reinstatement rights the employees might have. General Manager Parsons denied ever telling Noe, or any other employee, that they would be laid off or dis- charged if they selected the Union as their bargaining representative. For the reasons discussed elsewhere in this decision, I am unwilling to place any reliance on the uncorroborat- 38 I note that the actions described in par 5(c) were alleged to have taken place at the Baxter store. Cusick's testimony, if it had been cred- ited, placed the location as the Evarts store. MACK'S SUPERMARKETS 1095 , and when they "acted" like they did not, he discussed with them the contents of a company booklet on the Union. The Company had mailed the booklet in question to all its employees. Pace testified: He said. . . if this Union gets in—all [it] was want- ing was the money. And he was quoting about fees and dues that we'd [have] to pay to the Union and if the Union got in we might—fulltime might have to go parttime and we might have to lose hours or something. And he said the Union. . . couldn't get us a pay raise. ed testimony of Noe to establish any allegations in the complaint. Inasmuch as counsels for the General Counsel failed to present any credible evidence with respect to the allega- tions contained in paragraph 5(c) of the complaint, I rec- ommend that paragraph be dismissed in its entirety. D. The 8(a)(1) Allegations Involving Evarts Store Manager Milwee It is alleged at paragraph 5(e) of the complaint that the Company acting through Store Manager Milwee at its Evarts store: (i) about 30 September threatened the Evarts store employees that if they selected the Union as their collective-bargaining representative, full-time em- ployees would be reduced to part-time status and em- ployees would otherwise have their hours of available work reduced; (ii) about 31 October (A) threatened em- ployees that if they selected the Union as their bargain- ing representative a number of employees would be laid off; (B) threatened employees that if they selected the Union as their collective-bargaining representative the Evarts store might close, (C) threatened employees that if they selected the Union as their collective-bargaining representative full-time employees would be reduced to part-time status, and (D) informed employees that if the Evarts store was to remain open the employees would have to keep the Union out; (iii) about 2 November threatened to discharge an employee for attempting to induce other employees to sign union authorization cards; (iv) about 2 November ordered an employee to stop soliciting other employees to sign union authoriza- tion cards and threaten to discharge him if he continued to do so; (v) about 3 November (A) threatened to dis- charge an employee if he continued to talk to other em- ployees about the Union as part of his effort to get them to sign union authorization cards, (B) coercively interro- gated an employee regarding his support for the Union, (C) threatened to discharge employees if the Company's employees selected the Union as their collective-bargain- ing representative, (D) threatened to reduce employees to part-time status if they selected the Union as their col- lective-bargaining representative, and (E) threatened to close the Evarts store if the employees selected the Union as their collective-bargaining representative; (vi) at various dates during October and/or November coer- cively interrogated employees regarding their own and other employees' union activities; (vii) during the latter part of October threatened to discharge employees for engaging in union activities; (viii) about 20 November or- dered an employee to remove a union cap or face dis- charge; (ix) during December impliedly threatened an employee with more onerous working conditions if the Union was successful in its organizing campaign and ad- monished an employee for statements he allegedly made during a union meeting; and (x) during the latter part of December advised an employee that he would be treated more favorably because he opposed the Union. Johnnie Lee Pace (J. Pace), a 2-year Evarts employee, testified Store Manager Milwee talked on 30 September with him and Tim Johnson (T. Johnson) in the drink bot- tles stock area about the Union. According to Pace, Milwee asked if they knew anything about the Union Although T. Johnson was unable to recall in detail the conversation in question, he did corroborate J. Pace's testimony in certain essential aspects. Store Manger Milwee said he was given instructions about how to conduct himself during the union cam- paign. He stated he was specifically told not to question employees about the Union and he asserts he followed those instructions. He, however, acknowledged talking about the Union with his employees. He testified, "I went to them and expressed my opinion what I thought about the Union . . . and [they] expressed their opinion back to me." Milwee denied threatening employees that if they chose to be represented by the Union the full- time employees would be reduced to part-time status or their work hours would be reduced. J. Pace and T. Johnson both appeared to be telling the truth to the extent they could recall what had been said in their meeting with Milvvee. Nothing was advanced that might suggest that these two disinterested current employees had any reason to misstate the truth regarding what their store manager said to them on 30 September. Accordingly, I credit their testimony as outlined above. Under all the circumstances, I find Milwee's asking J. Pace and T. Johnson if they knew anything about the Union constituted coercive interrogation that reasonably tended to restrain or interfere with their rights guaran- teed by the Act. Store Manager Milwee, the highest management official at the Evarts location, sought out the two for questioning. There is no showing that these two employees had previously expressed their views one way or the other about the Union. Furthermore, Milwee not only questioned them about the Union but he, as al- leged, threatened them with a loss of full-time employ- ment and/or a loss of available hours of work if they supported the Union. T. Johnson testified that he, Eddie Johnson (E. John- son, no relation), and an employee named Roe were sit- ting outside the Evarts store offices when Store Manager Milwee asked them if they had heard any talk about the Union. They told Milwee they had not. According to T. Johnson, Milwee said if the Union came in, the Company might have to lay off or fire employees or they could even shut the store down, but he did not think General Manager Parsons and Vice President Parsons would do that. T. Johnson asserts Milwee then talked about a new competitor that was opening nearby and said the em- 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees would have to keep the Union out for the Com- pany to survive.39 Store Manager Milwee acknowledged talking to T. Johnson and Roe about the Union. He said he told them if the Union came in it would hurt the Company and it was his opinion they should vote against the Union. He denied telling them that if the Union came in full-time employees might be reduced to part-time work. As has been noted elsewhere in this decision, Milwee denied ever threatening employees that if they selected the Union as their representative they would be laid off or the store would close. Milwee also denied telling em- ployees that in order to keep the store open the Union would have to be kept out. There is no dispute Milwee talked with T. Johnson and Roe about the Union. I am persuaded E. Johnson was also present. I find Milwee said more to them than he acknowledges. On the basis of his demeanor and the full record I am convinced T. Johnson testified truthfully about the conversation he and the other two had with Milwee. Milwee, while acknowledging certain facts, was generally unimpressive as a witness. It is a clear violation of the Act for a supervisor to threaten, as I fmd Milwee did, that employees might be laid off and/or the store might close if the Union came in. The coercive nature of his statements are not lessened by the fact he told the employees that this "might" happen. It is likewise clear that Milwee violated the Act when he told the employ- ees in question they would have to keep the Union out in order for the store to survive. Milwee's initial question- ing of the employees about the Union was coercive inas- much as it was accompanied by the threats found above. Cusick testified that in approximately mid-October, he and employee Rick Poteet (Poteet) were in the stock- room when Milwee just walked in and said, "If anybody mentions a union, they're fired." Although Poteet was called as a witness by counsels for the General Counsel he was not asked about any conversation between him- self, Cusick, and Store Manager Milwee. Milwee denied threatening to discharge any one for their union activi- ties. Although I found Milwee to be an unimpressive wit- ness, I found Cusick to be an unbelievable one. Accord- ingly, I do not credit his uncorroborated testimony out- lined above. Employee Enix testified he asked his fellow workers to sign union authorization cards during the campaign. He said that sometime during the fall Store Manager Milwee told him he had been harassing employees about the Union and about signing union cards. Milwee told Enix he knew his rights and if he did it again he would be discharged.4° According to Enix, about 3 or 4 min- utes later Milwee told him if he heard of him doing these type things again on the clock he would replace him. Store Manager Milwee testified Enix asked cashiers to sign union cards while they were working. Milwee said two of the cashiers complamed and he told Enix to "stop campaigning while on the job, and [to stop] harassing 39 In essential aspects E. Johnson corroborated T Johnson's testimony Roe was not called to testify. 49 E. Johnson's testimony generally supported Enix's on this point. [the employees]." Milwee talked to General Manager Parsons and Vice President Parsons about the situation involving Enix, and they told him to warn Enix if he did it again disciplinary action would be taken against him.41 Vice President Parsons said he had received com- plaints from at least two cashiers at the Evarts store, that they had been "aggravat[ed]" about joining the Union with one of them saying she had been "harass[ed]" while attempting to check groceries for a customer. Parsons testified the Company adopted a no-solicitation rule. The rule adopted was that employees could not discuss the Union or attempt to persuade each other about the Union while on worktime. Vice President Parsons said the Company had never needed a no-solicitation rule before that time because there had never been any prior union activities at the Company. He stated the rule was also adopted because it was economically wasteful to have employees talking about things other than selling groceries or taking care of customers. He said that al- though there had been no prior union activities at the Company there had been a long history of violence and bloody labor-management relations in the Harlan, Ken- tucky area that dated back to the 1930s. He said the local community was very polarized and because of that fact it had been a policy of the Company not to get involved in local labor disputes. First, I credit Vice President Parsons uncontradicted testimony that the no-solicitation rule adopted by the Company during the union campaign was that employees could not discuss the Union or attempt to persuade each other about the Union while on worktime. The Board in Our Way, Inc., 268 NLRB 394 (1983), returned to the standards set forth in Essex International, 211 NLRB 749 (1974), regarding the presumed validity of no-solicitation rules. The Board in Our Way, Inc., supra, held that a no- solicitation rule using the term "working hours" was pre- sumptively invalid while one using the term "working time" was presumptively valid, because the latter term connotes only periods when the employees are perform- ing actual job duties. The rule herein, standing alone, ap- pears to be presumptively lawful. An otherwise valid rule violates the Act, however, when it is promulgated to interfere with the employees right to self-organization rather to maintain production and discipline. Harry M. Stevens Services, 277 NLRB 276 (1985), enfd. 793 F.2d 1288 (5th Cir. 1986). The question herein becomes, was the Company unlawfully motived when, during the union campaign, Vice President Parsons announced the restrictions he did. I find he was unlawfully motivated in doing so. First, the union campaign was very active. Em- ployees were attending union meetings, attempting to wear union hats and buttons, and there was considerable talk both among the employees and management about the Union. Second, the Company, particularly Vice President Parsons, was hostile to the employees' organi- zational efforts. Third, the Company during this same period allowed its head cashier to solicit signatures from employees on an antiunion petition even while some of 41 Milwee stated he told the employees at the Evarts store they were not to talk about union activities or solicit union cards or do anything of that nature while on the job. MACK'S SUPERMARKETS 1097 them were working. 42 Thus, I am persuaded the Compa- ny did not institute its no-solicitation rule in order to maintain production or discipline. That it did not insti- tute the rule in order to maintain discipline or production is evidenced by the fact only two complaints of harass- ment were made out of a work force of approximately 128 employees." One of the two complaints involved matters that took place away from the store. I find the Company's purpose in promulgating the rule in question was to interfere with its employee's right to self-organi- zation and as such violated Section 8(a)(1) of the Act See Hunter Douglas, 277 NLRB 1179 (1985), enfd. 804 F.2d 808 (3d Cir. 1986). 44 Not only was the rule initiated to interfere with the employee's right self-organization, it was, as shown above, disparately enforced and invalidly implemented. That the rule was disparately enforced is demonstrated by the fact head cashier Owens was al- lowed to solicit employees while they were working to oppose the Union without any adverse action being taken against her." Store Manager Milwee invalidly im- plemented the Company's no-solicitation rule by telling employee Enix he could not solicit for the Union while "on the clock" or "on the job." Both of these terms con- note periods from the beginning to the end of work shifts, periods that include employee's own time. In fact Milwee told Enix he would be fired if he solicited em- ployees on the clock or on the job. Such a warning, given in conjunction with the invalid implementation of a valid no-solicitation rule, constitutes an unlawful threat to discharge Enix and I so find. Two-year Evarts employee Charles Soloe (Soloe) tes- tified that in either August or September he was alone in the stockroom when Milwee asked him what he thought about the Union. Soloe told MiIwee it would be nice to get a pay raise but he had heard the Parsons did not give raises. According to Soloe, Milwee responded that the Union was backed by the Mafia and all they wanted was $25 per month in union dues. Milwee told Soloe he would take it. Soloe was for the Union by the way he talked. Soloe told Milwee there was a possibility he was for it. 4 6 Soloe testified that at some point prior to early No- vember he went into Milwee's office to look for a list of items that was to go on sale but found instead a list that indicated which employees were for and against the Union. Soloe took the list to the bathroom and copied it. 42 Owens acknowledged soliciting signatures from her fellow workers at times when they were performing their Job duties 43 According to Parsons, at the time of the campaign the Company employed approximately 30 employees at its Evarts store, 62 at its Baxter store, 22 at its Harlan store, and 14 at its commissary convemence store I note 126 employees voted in the Board-conducted election 44 As noted earlier in this decision, it appears certam complaint allega- tions overlapped others. I consider the above not only mcludes the alle- gations contained in par 5(d) of the complaint, but it also includes the allegations contained in pars 5(h)(1) and (n) 45 I find it is unnecessary to my finding of disparate application of the rule to discuss whether the Company allowed other solicitations of a po- litical nature to take place during working time without any actions being taken by management against those doing so. 46 Soloe said that although he subsequently wore a baseball type umon cap in the store, he had not, at the time Milwee spoke with him, done anything to indicate his sentiments for or against the Union. Former employee E. Johnson testified Store Manager Milwee asked him if he thought the "front boys" were against the Union. He told IVIilwee he thought they were. E. Johnson further testified that sometime later in the campaign Milwee asked him if he had gone to a union meeting. E. Johnson told Milwee he had. Milwee then commented he thought E. Johnson was against the Union. E. Johnson said he had been but his father had talked with him Employee Poteet testified that sometime between August and November Store Manager Milwee ap- proached him in the stockroom and asked how he felt about the Union. Poteet told Milwee lie thought it was stupid. 4 7 Milwee acknowledged having a list in his office of those he thought were for and against the Union, but he added it was for his own information and for the purpose of trying to see how the vote would go at the Evarts store. Milwee denied questioning employees about their union sympathies or asking how they were going to vote in the union election, or of telling employees he thought they were against the Union. I credit Soloe's, E. Johnson's, and Poteet's testimony as set forth above. It is clear Milwee had a keen interest in knowing which of his employees were for or against the Union. His preparation of a list to that effect demon- strates such interest. It is, therefore, highly probable, and I fmd that he asked Soloe, E. Johnson, and Poteet about their union sympathies, and in E. Johnson's case about the union sympathies of others. Neither Soloe, E. John- son, or Poteet had expressed their views on the Union prior to the time Milwee questioned them. Milwee is, as previously noted, the highest management representative at the Evarts store. When Milwee did not get a clear answer from Soloe about his feelings toward the Union he pressed further telling Soloe he would take it Soloe was for the Union. Milwee knew his comment would in all likelihood cause Soloe to reveal his union sympathies. Under these circumstances, I fmd Milwee's questioning of Soloe, E. Johnson, and Poteet had a reasonable tend- ency to interfere with, restrain, or coerce them in the ex- ercise of their Section 7 rights and as such violated Sec- tion 8(a)(1) of the Act. Employees J. Pace, T. Johnson, and Cusick 48 testified that prior to the union's campaign most employees wore baseball type caps at work. J. Pace stated there had been no rule against wearing such caps. He credibly testified he had even worn, at work, a baseball type cap that noted his support for a local candidate for sheriff. T. Johnson credibly testified" that after various employees (J. Pace Soloe, Enix, and Cusick) commenced to wear prounion baseball type caps at or near the Evarts store the Company posted a notice next to the employee's timeclock that contained the following paragraph: 47 Poteet said he had not done anything to demonstrate his feelings one way or the other toward the Union prior to the time Mdwee talked with him about it. " I have considered Cusick's testimony on this pout only because it was corroborated by others. 49 His testimony on this point was corroborated by that of E Johnson, J. Pace, and Enix. 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (5) Political buttons, caps, and signs are not to be worn or posted inside or outside of the stores.5° J. Pace credibly testified that during the union cam- paign he wore a prounion hat into the store and after he started work, Store Manager Milwee told him "If you want to continue working here, remove your hat." Ap- proximately 20 minutes later Milwee told him, "You can't wear that hat here. It promotes the Union. If you're going to keep on wearing it, check out and go home." J. Pace said he could not afford to miss a day's work so he took off his prounion cap as requested. Store Manager Milwee acknowledged he told employ- ees they could not wear prounion hats in the store. He said he did so because he felt it would affect some cus- tomers. Milwee and Vice President Parsons both said the issue of unionization was a very volatile one in the Harlan, Kentucky area. Vice President Parsons testified the restrictions on the wearing of union caps were initiat- ed in order to be fair to its customers, whom he feared might be turned off by the hats, and quit shopping at the Company. The right of employees to wear insignia for a union while working has long been held to be activity protect- ed by Section 7 of the Act, Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). A company may, however, limit or band the wearing of insignia for a union at work if "special circumstances" exist. See, e.g., Page Avjet Corp., 275 NLRB 773, 776, (1985). Special circumstances exist if a company can, for example, show by substantial evidence that the wearing by its employees of insignia for a union affected its business or was necessary to maintain employee discipline. In this regard, a determina- tion must be made whether the claimed special circum- stances outweighs the adverse impact on employees' or- ganizational rights that a company's limitation or band on the wearing of such insignia has. Alert Medical Trans- port, 276 NLRB 631, 662 (1985). Mere contact with cus- tomers is not a basis for barring the wearing of insignia for a union, Burger King Corp., 265 NLRB 1507 (1982), enf. denied 725 F.2d 1053 (6th Cir. 1984). Likewise, the pleasure or displeasure of a company's customers does not determine the lawfulness of employee rights under the Act to wear insignia for a union, Howard Johnson Motor Lodge, 261 NLRB 866 at 868 fn. 6 (1982). The ex- istence of "special circumstances" that would justify a limitation or band on employees wearing insignia for a union while in contact with the general public would not justify a limitation or band which, on its face, extended beyond such periods. 5° It is alleged at pars 5(j)(1) and (n) that. (i) During the latter part of November, a more precise date being currently unknown to the undersigned, the Company instituted a rule prohibitmg employees from wearing caps with certain types of slogans at work, (ii) The Company did not previously have a rule prohibiting employees from wearing caps of any sort at work and promulgated the rule referred to above m paragraph (t) in order to discourage Its employees from Joining, supporting or assisting the Union and engaging in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection I am treating these allegations at this point in the decision because they are related to and overlap the allegations set forth in par. 5(d)(vni) of the complaint In the instant case, the Company's rule prohibiting the wearing of political insignia (caps) had its inception be- cause of its employees union activities. The evidence overwhelmingly demonstrates the rule was instituted only after the union organizing campaign had gotten un- derway and after employees had begun to wear baseball type caps in support of the Union. Traditionally, the em- ployees had worn a variety of baseball type caps, includ- ing caps in support of local politicians. It is obvious, and I find, the Company instituted the rule in question in order to discourage its employees from joining, support- ing, or assisting the Union. Furthermore, the rule is overly broad. It bands the wearing of political insignia "inside or outside of the stores." The prohibition on wearing such insignia "outside the stores" is limitless. No reasonable reading of the rule could cause one to con- clude the band was limited to times or places where em- ployees might likely be in contact with customers. Even if the rule had not had its inception in union activities, and even if it had not been overly broad, it still would not have been justified. The Company failed to demon- strate the existence of any special circumstances that would have warranted the band. Mere speculation by Vice President Parsons that the Company might poten- tially lose customers if its employees wore insignia for the Union does not establish the requisite "special cir- cumstances" that would justify a band of such insignia. There is no showing that any customers had complained about employees wearing prounion caps nor is there any contention the employees were not projecting a profes- sional image by wearing the insignia in question. For that matter, the employees were never told the band on polit- ical caps was so they would project a professional ap- pearance, but rather, as was the case with employee J. Pace, they were told it was because the caps promoted the Union. Accordingly, I find, as alleged in the complaint, that the Company violated Section 8(a)(1) of the Act when Store Manager Milwee ordered employee J. Pace under the threat of discharge to remove his prounion baseball type cap. See Armon Co., 279 NLRB 1242 (1986). I also find the Company violated Section 8(a)(1) of the Act when, during the union campaign, it instituted its unlaw- fully motivated, overly broad, rule prohibiting its em- ployees from wearing political (union) caps or buttons. Employee T. Johnson testified Store Manager Milwee talked with him about the Union on three occasions during the campaign. On the third such occasion Milwee, as they walked through the store aisles, told T. Johnson the Union could not do anything about getting the employees a raise unless the Parsons wanted to give one. Employee Roe joined Milwee and Johnson as they walked through the store. T. Johnson told Milwee he had been to a union meeting. Milwee said he had heard about Roe "jumping up [and] making a speech . . . at the union meeting." T. Johnson told Milwee he thought Roe had been talking off the top of his head and he did not think Roe had meant everything he said. T. Johnson testified Milwee then stated he was "a pretty easy going guy right now," but "if the Union went in . . he'd have to change," he could "get tougher." MACK'S SUPERMARKETS 1099 Store Manager Milwee acknowledged discussing the Union with employees T. Johnson and Roe shortly before the 2 December Board-conducted election. He said he told T. Johnson and Roe the Union would hurt the Company and he had pretty much let them have their way in that he had not pressured them like they would be pressured in a unionized store. Milwee denied telling T. Johnson and Roe he would not be himself or that he could make it rougher on them if the Union came in at the store. After carefully weighing both versions of the above conversation, I credit T. Johnson's account. Other record evidence discussed elsewhere in this decision tends to support his testimony. Furthermore, Milwee ac- knowledged a great deal of what T. Johnson attributed to him. Based on the credited testimony, it is clear that Milwee in either late November or early December, in violation of Section 8(a)(1) of the Act, impliedly threat- ened his employees with more onerous working condi- tions if the Union was successful in its organizing cam- paign by telling them he would change from his easy self to a tougher individual. I also find Milwee violated the Act by telling employees Roe and T. Johnson that he had heard what Roe said at a union meeting the night before. His comments constitute interference with Sec- tion 7 rights since he made them in the context of other unlawful remarks. E. Johnson credibly testified that during the union campaign he had a conversation with Store Manager Milwee about a customer complaint that had been lodged against him. 51 E Johnson was told about the complaint by a fellow worker, When E. Johnson asked Milwee about the complaint, Milwee checked with an office employee and ascertained a customer complaint had in fact been made against Johnson. Milwee told E. Johnson, "I figure we're good enough friends that I know I'm not supposed to asI4 you this, but are you for the Union." Johnson told Milwee he was not. Milwee re- sponded, "Well, we'll take care of it [the customer com- plaint]." Later that same date E. Johnson asked Milwee how he could obtain credit at a variety store owned by the Parsons. Milwee told T. Johnson he would have to see the Parsons, but if he would let them know how he felt about the Union they 'would consider extending credit to him. To promise or grant benefits to employees in order to dissuade them from supporting the Union violates the Act. Marchese Metal, 270 NLRB 293 at 300 (1984). Milwee, after ascertaining E. Johnson was against the Union, promised to take care of a customer complaint that had been lodged against him. Likewise, Milwee led Johnson to believe his opposition to the Union would secure him a line of credit at another of the Company's operations. Such promises and assurances violated Sec- tion 8(a)(1) of the Act and I so find. 51 E Johnson impressed me as a truthful witness I note Milwee did not specifically deny Johnson's account of this particular conversation E. The 8(a)(1) Allegations Involving Baxter Store Manager Lewis It is alleged at paragraph 5(e) of the complaint that the Company acting through Store Manager Lewis at its Baxter location: (i) about 23 October threatened to dis- charge an employee if she did not stop discussing the Union with other employees; (ii) about 1 December threatened employees that they would lose their jobs if its employees did not vote against the Union; (iii) about 18 May 1987 threatened that a known union adherent would be discharged after a proceeding was held before the National Labor Relations Board. Counsels for the General Counsel rely on one of the pretrial Board affidavits given by employee Noe to es- tablish the allegations contained in paragraph 5(e)(i) of the complaint The affidavit reads in part as follows: The next day, October 24, 1986, I was at work. I was near the front office by one of the cashiers bag- ging groceries. I believe John Caldwell one of the assistant store managers was standing immediately outside the front office. Caldwell was about five or six feet away from me. Caldwell was talking to John Lewis, store manager, who was standing right next to Caldwell. Caldwell said to Lewis that he be lieved Marie Scott was one of the Union leaders— one of the ones trying to get a [u]nion in at the store. Lewis answered by saying that something had to be done about her. That the Parsons wouldn't accept the Union. Lewis said if Scott didn't quit talking about the Union, that the Parsons would fire her, or get rid of her. At the trial herein Noe denied overhearing the above conversation, but rather testified he was told about it by some other employee, Lewis denied making any such statement. As indicated elsewhere in this decision, I am unwilling to base any finding of any violation of the Act on the testimony of Noe.. Noe was a totally unreliable witness. Accordingly, I recommend that paragraph 5(e)(i) of the complaint be dismissed. Employee Gibson testified he and employee Noe had a discussion with Store Manager Lewis the night before the 2 December Board-conducted election. Gibson testi- fied: He [Lewis] said that he suspected that if the store did not go 100 percent in the election tomorrow that me and [Noe] would not have a job.52 Gibson also testified that prior to the Board-conducted election, but after he had attended a union meeting at an employee's home, Store Manager Lewis told him to stay busy because they were watching him. Gibson asked Lewis if they were looking for a reason to fire him and Lewis said they were. Store Manager Lewis denied telling Gibson and Noe that if the store did not go 100 percent for the Union the employees would be laid off or fired. '52 Noe's testimony about this conversation was essentially the same as that given by Gibson. 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I do not credit Lewis' denials. Lewis acknowledged telling an employee, albeit ,he contends in a joking manner, that after the trial in the instant case was over she might not have a job. Such an acknowledgement persuades me Lewis was capable of making the com- ments Gibson and Noe attribute to him, particularly since the comments pertained to a loss of employment. While the reasoning behind Lewis' comment—if the store did not go 100 percent for the Union the employ- ees would be out of a job—is not clear, it was nonethe- less coercive and violated Section 8(a)(1) of the 'Act. Lewis' statement to Gibson, in the midst of the union campaign, that the Company was watching him, looking for a reason to fire him, clearly constituted an unlawful threat to discharge him Employee Scott testified that on the day before the in- stant case came to trial (18 May 1987) she checked cus- tomer's groceries and Store Manager Lewis bagged them. As they worked an individual came into the store seeking employment. Lewis told the individual he did not know of any job vacancies in the Company at that time. After the individual left the area, Scott told Lewis that since the Company had moved employee Owens into an office job maybe they would be filling her old job. Lewis later asked Owens if the Company was going to fill her old job. Owens told Lewis she did not know. Lewis thereafter told Scott the Company was not going to replace Owens. According to Scott, Lewis said, "They may be replacing you after tomorrow." Scott an- swered, "Well" and Lewis then said, "I'd say that Jerry will be [fired] when this is all over." Scott told Lewis, "We'll probably all be gone." Lewis replied, "I don't know that for sure."53 Lewis admitted that the day before the instant trial began he made the statements attributed to him by Scott, but stated, "I was only kidding with her and I'd be will- ing to apologize to her for that remark that I made." The Company contends that since Store Manager Lewis' remarks were jokingly made they were not un- lawfully coercive.54 I am persuaded, in agreement with counsels for the General Counsel, that Store Manager Lewis' remarks can reasonably be considered coercive within the mean- ing of the Act. Lewis made his remarks after Scott had asked him whether the Company planned to replace an 53 The company did not cross-examine Scott when she was recalled to testify about the above incident. 54 In an effort to support its position that the remarks were jokingly made, the Company submitted a posttrial "Motion to Submit Additional Evidence or in the Alternative to Dismiss the Last Amendment to the Complaint." The Company attached to its motion a posttrial affidavit given by Scott, in which Scott addressed the issue of whether she felt Store Manager Lewis had been joking when he spoke with her on the occasion in question and whether he had subsequently apologized to her for his remarks At trial the Company did not cross-examme Scott about the conversation, nor did it elect to call her as its own witness after Lewis had testified the conversation was a joke The responsibility of making a record for the position taken by a party rests on that party to do so during the trial of the case and before the record is closed. The additional evidence the Company seeks to have considered is neither newly discovered nor was it unavailable at the time of the trial: Accord- mgly, I deny the Company's motion to receive the posttrial affidavit of Scott. See Arizona Public Service Co, 273 NLRB 1757, 1758 (1985) The Company's motion to dismiss the last amendment to the complaint is dis- posed of in the body of this decision. employee that had been reassigned from the position of head cashier to that of an office clerical. There is noth- ing in the record to suggest that Lewis' comments about whether the head cashier's position would be filled were made in jest or not. It was after that subject matter had been discussed that Lewis told Scott she and another em- ployee might not have their jobs after the trial of the case herein. Lewis did not tell Scott he was joking. He simply told her he was not sure whether she and the other employee would lose their jobs after the trial. Lewis never, prior to the trial herein, made any effort to inform Scott he had been kidding when he made his comments about her employment future with the Com- pany. Accordingly, I find Lewis' remarks constituted an un- lawful threat to discharge Scott after the Board trial had been completed.55 F. The Layoff of Employee Scott It is alleged at paragraphs 6(a)-(e) and 8 of the com- plaint that about 28 October the Company laid off its employee Scott because she joined, supported, or assisted the Union and because she engaged in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection and in order to discourage its employees from engaging in such activities. Scott commenced work for the Company as a cashier at the Baxter store in June 1985. On , 22 October she signed an authorization card for the Union at employee Gibson's home. She said she gave authorization cards to her fellow workers, but that she did so at her home. Scott stated she talked to at least seven employees at the store about their interest in the Union and about a union meeting to be held at employee Blanton's home on 23 October. Scott testified she attended three union organiz- ing meetings, one of which was the one at employee Blanton's home. 56 Eight employees and a union organiz- er attended the meeting at Blanton's home. Scott said she "talked a little" in support of the Union at that meet- ing.57 Scott stated she learned on a day when she was off from work (28 October) that head cashier Owens had been looking for her. Scott said she went to the store where Owens told her the Company was going to lay her off. Scott testified Owens told her Vice President Parsons had selected her as the one to be laid off, but she could not understand it because Scott had been one of the best cashiers at the store. According to Scott, Owens also told her another person had started to work at the store that day. Scott told Owens she thought they were laying her off because she had voiced support for the Union. Owens gave Scott a layoff slip." Scott stated 55 I find the instant case is clearly distinguishable from the situation in Barcor Corp., 270 NLRB 1083 (1984), in which the Board found no viola- tion of the Act when a known company jester made an off-the-cuff remark, m his capacity as a private party and not as a supervisor, to an employee with whom he socialized. 56 The other two meetings took place at the local Armory in Novem- ber 57 Scott testified other employees also spoke in favor of the Union at that meeting 58 The slip indicates Scott was laid off due to a decline in business MACK'S SUPERMARKETS 1101 that during the 2 to 3 months prior to her layoff she had worked 32 and 37 hours per week on alternating weeks. Scott testified that in April she asked the Company to reduce her weekly work hours for personal reasons. For some period of time after that request Scott only worked 2 days per week. In May Scott asked for and the Com- pany granted her 3 weeks off from work for personal reasons. Scott stated that during the summer of 1986 she filled in for employees that were taking vacation. Following her layoff Scott was called back to work the second week in December. Immediately after being recalled she worked 2 days per week plus every other Sunday. Scott testified that as of the trial herein she was working 3 days per week plus every other Sunday, unless any employee wanted additional time off in which case she worked additional hours. Vice President Parsons testified that in September he made a decision to lay Scott off because sales figures in- dicated a downturn in business. He said he mentioned to head cashier Owens that he was going to lay someone off. She asked him to hold up doing so until certain em- ployees that were taking vacations returned to work. Parsons testified Scott had been a part-time employee who in the spring had asked to have her work hours re- duced and had asked for time to be away from work al- together, therefore, he selected her as the employee to be laid off. Vice President Parsons testified he did not learn of Scott's union activities until she told him about them a few days after she was laid off. Parsons stated Scott was recalled to work in December because business had begun to pick up. Parsons said the Company had not in the past had to lay employees off because it operated its facilities in small communities where it experienced high attrition rates. Counsels for the General Counsel contend that state- ments made by Store Manager Lewis and head cashier Owens establish Scott was laid off because of her in- volvement with the Union. Further, counsels for the General Counsel contend the timing of her layoff, which took place 5 days after she attended a union meeting, persuasively demonstrates the Company was unlawfully motivated in its decision to lay her off. Finally, counsels for the General Counsel contend the Company's explana- tion for the layoff clearly reveals the pretextual nature of its actions. They contend there was no downturn in busi- ness at the time Scott was laid off nor had there been any past practiee of laying employees off during slack times. The Company asserts Scott's layoff was brought about due to a September slowdown in business. The Company explains that its September decision was not implemented until October because some cashiers were still taking their vacations. The Company asserts Vice President Parsons had no knowledge of any union activities on the part of Scott at the time he made the decision to lay her off. The Company asserts Scott was selected for layoff because she was a part-time employee, who had demon- strated a willingness to work fewer hours and to be absent from work for extended periods of time. Wright Line, 251 NLRB 1083 (1980,) enfd. on other grounds 662 F.2d 899 (1st Cit. 1981), cert. denied 455 U.S. 959 (1982), approved in NLRB v. Transportation Management, 462 U.S. 393 (1983), the Board set forth the rule to be applied in discrimination cases such as the in- stant one. The General Counsel is required to make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision to take the actions it took. Once the General Counsel establishes such a prima facie showing the burden shifts to the employer to demonstrate it would have taken the same actions even in the absence of any protected conduct. An employer's proffered basis must be by a preponderance of the evidence. I am persuaded counsels for the General Counsel failed to meet their burden of establishing a prima facie case with respect to Scott's layoff. They failed to demon- strate, by any credible direct or circumstantial evidence, that Vice President Parsons had any knowledge of any union activities on Scott's part at the time he made the decision to lay her' off. Company knowledge of union ac- tivities is the "threshold question" where a violation of Section 8(a)(3) of the Act is alleged, because it is a "fun- damental prerequisite" in establishing a discriminatory motivation. See, e.g., Bayliner Marine Corp., 215 NLRB 12 (1974). Looking at the evidence about company knowledge of Scott's activities, I note she distributed some authorization cards and even signed one herself, but she did so away from the Company. She talked to fellow workers about the Union but there is no showing the Company was aware of any such conversations. Counsels for the General Counsel would rely on one of several pretrial affidavits given by employee Noe to es- tablish the Company had knowledge of Scott's union ac- tivities. Noe's statements, however, whether given at trial or in pretrial affidavits are unworthy of belief. I reject counsels for the General Counsel's attempt to demonstrate company knowledge of Scott's activities by comments attributed to head cashier Owens because Owens was not, at material times, a supervisor or agent of the Company. I also reject counsels for the General Counsel's assertion that the timing of Scott's layoff, which took place 5 days after she attended a union meet- ing, warrants an inference the Company knew of her ac- tivities and was discriminatorially motivated in laying her off. The most that can be said for the timing of Scott's layoff is that it arouses some suspicions about the Company's motivation. "Mere suspicions," however, cannot substitute for actual or circumstantial proof. Even if counsels for the General Counsel had estab- lished a prima facie case with respect to Scott's layoff, I would nonetheless have concluded the Company met its burden of establishing it would have laid Scott off even in the absence of any protected conduct on her part. At the time in September when Vice President Parsons made his decision to lay Scott off, the Baxter store had suffered approximately an $83,000 drop in retail sales from the previous month. In total sales September was the second worse month at the Baxter store in 1986. It was within approximately $4000 of being the worst month for total sales in 1986. Thus, it appears Vice Presi- dent Parsons had valid business considerations for the layoff. The fact that sales rebounded in October does not detract from his initial decision to reduce the number of 1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cashiers at the Baxter store. His decision not to imple- ment Scott's layoff until October appears to have been based on legitimate business considerations in that Scott was needed to fill in for other employees that were on vacation. Parsons advanced nondiscriminatory reasons for selecting Scott as the employee to be laid off not- withstanding the fact other employees had less seniority than she did at the time she was selected. His reasons were that she had asked for less work hours and for ex- tended time off in 1986 for personal reasons. In summary, and for the reasons noted earlier, I rec- ommend those portions of paragraphs 6 and 8 of the complaint that relate to Scott's layoff be dismissed. G. The Transfer and Alleged Discharge of Employee Cusick It is alleged in paragraphs 6(b), (c), (e) and 8 of the complaint that on or about 3 November the Company transferred its employee Cusick from its retail food sales operations to a lumber company it operated and then dis- charged him because he joined, supported, or assisted the Union, and because he engaged in concerted activities for the purpose of collective bargaining or the mutual aid or protection and in order to discourage employees from engaging in such activities. Cusick's work history and union activities have been discussed elsewhere in this decision, however, I shall briefly highlight them at this point. Cusick worked as a stockclerk at the Evarts store for approximately 5 years (from August 1981 until November 1986). His involve- ment with the Union was well known to the Company. He, for example, signed an authorization card, attended union meetings, talked to fellow workers about the Union, and wore union buttons and a union hat at the store when he was not working.59 Cusick testified he was in the Evarts store for personal reasons on 2 No- vember and while there he spoke with Store Manager Milwee. Cusick said he was wearing a prounion baseball type cap at the time. According to Cusick, Milwee said, "Starting tomorrow you no longer work here. You're being transferred to Payless." 6° Cusick asked Milwee why he was being transferred to Payless. He asserts Milwee told him it was because General Manager Par- sons had Vice President Parsons had said so. Cusick left the store at that time." On 3 November Cusick reported for work at 7 a.m. at the Evarts grocery store. He stated Store Manager Milwee told him he no longer worked there that he needed to report to Payless for work by 7:30 a.m., and added he had better get going if he was going to be there on time. Cusick told Milwee he was just a grocery store employee that knew nothing about the lumber busi- 59 As is set forth elsewhere in this Decision, Cusick attributed certain statements to Store Manager Milwee and General Manager Parsons that the General Counsel contends were unlawful. His testimony, however, has not been credited and any allegations based solely on his testimony have been dismissed 69 The Company owns and operates a retail and wholesale lumber yard in Harlan, Kentucky, known as Payless Building Supplies. 61 Milwee testified the only thing Cusick said when he told him he was being transferred to Payless was to ask who he would be reporting to at Payless the next morning. ness. Milwee told Cusick he had better go on to Payless or he would forfeit his job. Cusick told Milwee he fig- ured he was fired and he asserts Milwee told him to go on and get out of the store. Cusick advised Milwee he had been at the grocery store longer than most of the other employees and asked why someone else could not be transferred. According to Cusick, Milwee said they wanted him at Payless.62 Vice President Parsons testified he made the decision to transfer Cusick to the Company's Payless store. He said he 'based his decision on two factors. First, the Com- pany needed an employee at Payless who could drive a truck and handle stock. Second, he said Store Manager Milwee had reported to him that Cusick had made a physical threat against Milwee. Parsons testified he told Milwee, when Milwee reported the threat to him, that Vice President Parsons would personally handle the matter by transferring Cusick to Payless. Parsons said he knew Cusick's family, that they basically were good, but easily excited people. Parsons contends Cusick would have had greater opportunities for advancement with the Company at Payless than he would have had at the gro- cery facility. Store Manager Milwee testified that before Cusick was transferred to Payless, a coworker of Cusick (David Cooper) told him Cusick had threatened to have his father come to the store and "settle the problem" he had with Milwee or "take care" of Milwee. Milwee said he was told Cusick was upset with him because he had been bossing him around. Milwee testified that on a previous occasion when Cusick had been upset with him about damaged merchandise, Cusick's father had come to the store and made a scene. Milwee said it offended him when he learned Cusick had threatened him even though he did not feel physically threatened. Milwee reported Cusick's threat both to Vice President Parsons and Gen- eral Manager Parsons. 'Evarts' 11-year stockclerk Cooper testified that on an occasion in the fall of 1986 Store Manager Milwee asked him and Cusick to report to the front of the store to help out there. Cooper testified Cusick said, "Not me. I'm getting tired of Grover [Milwee] telling me what to do. I'm going to tell my Dad, and my Dad will take care of it." Cooper testified Cusick's dad had "come up on Grover [Milwee] once before" so he thought he should make him aware of Cusick's comments. Cooper told Milwee he felt Cusick had threatened Milwee's life." Cusick denied making any threats against anyone and asserted his father was totally disabled by black lung and emphysema. Even before any credibility resolutions are made with respect to this aspect of the case, I am persuaded coun- sels for the General Counsel have established a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the Com- pany's actions related to Cusick. First, the Company 62 Milwee testified Cusick simply came to the grocery store the next morning and announced he was not gomg to transfer to Payless and then clocked out and left Milwee asserts Cusick was never terminated that he Just quit. 63 Cooper stated Cusick had threatened him on a prior occasion MACK'S SUPERMARKETS 1103 knew of Cusick's support for the Union. The Company's animus toward the Union is well documented. The Com- pany's announcement to Cusick that he was being trans- ferred from the Company's grocery operations to its lumber yard came at a time when Cusick was wearing a prounion baseball type cap. These factors are sufficient in my opinion to shift the burden to the Company to es- tablish it would have taken the actions it did even in the absence of any protected conduct on Cusick's part. I am persuaded the Company met its burden. First,' I fmd Cusick made what could reasonably be interpreted as a threat against Store Manager Milwee's safety. I base this initial fouling on employee Cooper's above outlined testi- mony." The fact store Manager Milwee may not have felt physically threatened by the remarks, does not de- tract from a fmding that Cusick threatened Milwee's safety. Milwee left the impression, as he testified, that he was embarrassed to acknowledge feeling threatened by Cusick's remarks. I note it was not out of character for Cusick to make threats. The evidence shows his father had in the past come to the store and made a scene, and Cusick had also previously threatened employee Cooper. Cusick's demeanor, while testifying, demonstrated to me he was capable of being made angry easily. Second, it was not refuted that the Company needed a driver/stock handler at its lumber business. The Company demonstrat- ed it had in the past transferred various employees from its grocery to its lumber business. The record as a whole supports, and I credit Vice President Parsons' testimony that Cusick's transfer to the Company's lumber business was for nondiscriminatory reasons 65 and would have taken place even in the absence of any protected conduct on his part. Accordingly, I recommend that the 8(a)(3) and (1) complaint allegations related to Cusick be dismissed. H. The Alleged Reduction in Work Hours of Employee Gibson It is alleged in paragraph 6(d) and (e) and 8 of the complaint that on or about 2 December the Company re- duced the work hours of its employee Gibson because he joined, supported, or assisted the Union and because he engaged in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection and in order to discourage employees from engaging in such ac- tivities. Although Assistant Produce Manager Gibson's work history and union activities have been detailed elsewhere in this decision, it is helpful to highlight some of those facts at this point. Gibson has been employed by the Company at its Baxter store for approximately 6 years. During the fall of 1986, he attended various union meet- ings. During that same time Vice President Parsons told him he had heard he was unhappy working for the Com- pany and asked what he thought the Union could do for him. Parsons told Gibson the Union could not do any- 64 Cooper impressed me as an unreservedly honest witness and, as such, I credit his testimony. 65 That Parsons did not fire Cusick was explained by the fact he knew Cusick's family, that they were good workers just given to being easily excited. It appears Parsons was simply aftemptmg to get Cusick away from Stole Manager Milwee. thing for him Parsons also told Gibson he needed to think about what was good for the Company and that a "no" vote in the election would give him job security. During that same timeframe Vice President Parsons also reminded Gibson he had given him the job he had and he could take it away from him. 66 On the night before the Board-conducted election 67 Gibson's immediate su- pervisor, Store Manager Lewis, told him he suspected that if the store did not go 100 percent for the Union, Gibson and a fellow worker would be out of their jobs. Lewis had also told Gibson during the union campaign to stay busy because the Company was looking for a reason to fire him. After the election, but on that same day, General Man- ager Parsons told Gibson he could no longer come to work before the store opened." Gibson testified he had been coming in about an hour before the store opened, and he "guessed" he had been told to do so by Produce Supervisor Faye Noe. Gibson was unaware of other em- ployees being told not to come to work before the store opened. General Manager Parsons testified he did not reduce Gibson's hours of work, but rather merely changed his work schedule, along with 10 to 12 other employees' work schedules, in December. He stated the Company had been having some employees come in before the store opened to stock shelves and perform various other tasks. He stated he had visited the store several times, however, and always found the front door open, which allowed anyone to enter the store. He said there were no supervisors present on those occasions when he visited the store before hours, so he informed Gibson and the others that he did not want them in the store except when supervision was present. Parsons said he told Gibson first about the change because he was the first employee he saw after he made the change. Parsons stated there had also been a change in the time the Com- pany received deliveries at the store. He said the Compa- ny had been receiving deliveries at 7 a.m. but that had been changed to 8 a.m., in order to correspond with the time when management would be present in the store." General Manager Parsons denied union activities played any part in the Company's decision to change the work schedules for its Baxter store employees including Gibson. Counsels for the General Counsel established an argu- able prima facie case sufficient to support an inference that protected conduct was a motivating factor in the Company's decision to change the work schedules at its Baxter store that possibly resulted in a loss of work hours for Gibson. 7° Gibson's union activities were 66 As noted elsewhere, Parsons' comments violated Sec. 8(a)(1) of the Act. 67 Gibson served as an observer for the Union at the election. 68 As is noted elsewhere in this decision, Gibson believed his hours of work were reduced by not being able to come to work early and as a result of that belief an unfair labor practice charge was filed against the Company on his behalf. I have found Vice President Parsons' comments to Gibson about that charge violated Sec 8(al) of the Act. 69 The Baxter store opens at 9 a.m. 7° Counsels for the General Counsel would have established a strong prima fade showing if they could have convincingly demonstrated that Gibson actually suffered a loss of work hours. 1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD known to the Company inasmuch as Vice President Par- sons committed various violations of Section 8(a)(1) of the Act that involved Gibson. Those violations included threats of loss of employment, as well as statements about how Gibson could assure his continued employ- ment with the Company by voting against the Union. Additionally, Gibson was told by his store manager the Company was looking for a reason to fire him, and he was also told the night before the Board-conducted elec- tion that if the vote did not go 100 percent for the Union he would be out of a job. The timing of the announced change is suspect because it came immediately after Gibson had served as an observer for the Union at the Board-conducted election. In summary, all the elements of a prima facie case appear to be present, namely, union activities, company knowledge of those activities, union animus, and possible adverse action against the employee involved. I have concluded the evidence only establishes possible adverse action against Gibson because the record as a whole, rather than in isolation, does not es- tablish a loss of hours of work for him It is clear that during the week in which the schedule change took place Gibson worked 2.15 hours less than he had the previous week." During the 2 weeks after the schedule change was announced, however,. Gibson worked a total of 102.16 hours. 72 During the 2 weeks before the sched- ule change was announced Gibson only worked 90.31 hours. 72 For the entire month of November, before the schedule change took place, Gibson averaged working 45.99 hours per week. 74 For the entire month of Decem- ber, after the schedule change had taken place, Gibson averaged working 45.54 hours per week. 75 To the extent that counsels for the General Counsel established (in iso- lation) a prima facie case, the Company met its burden of establishing the change in question would have taken place even in the absence of any protected conduct on Gibson's or any other employee's part. First, I credit the unrefuted testimony of General Manager Parsons that the change came about as a result of a new delivery time for suppliers, and of efforts to avoid having unsupervised employees at work before the store opened. Second, General Manager Parsons testified business was tradition- ally slow in January and February," thus resulting in 71 For the week ending 29 November Gibson worked 42.98 hours. For the week ending 6 December (the week of the schedule change) he worked 40.83 hours. 72 Gibson worked 52.94 hours during the week ending 13 December. He worked 49.22 hours during the week ending 20 December. 73 Gibson worked 47.33 hours during the week ending 22 November. He worked 42.98 hours during the week ending 29 November. 74 Gibson worked 48.88 hours for the week ending 1 November, 44 17 hours for the week ending 8 November, 46.61 hours for the week ending 15 November, and his hours of work for the remaining 2 weeks are set forth in fn 73. 75 The hours Gibson worked during the week ending 6 December is set forth at fn. 71, the hours he worked during the weeks ending 13 and 20 December are set forth in fn. 72. Gibson worked 39 17 hours during the week ending 27 December. 76 / credit Parson's testimony that business was traditionally slow during those months because the total sales records for 1986 reflect Feb- ruary was the worst month for sales in that year. January was a much better total sales month than February in that year, however, I do not find that to detract from Parsons' testimony because total sales appear to fluctuate somewhat from month to month. Gibson working approximately 2 hours per month less during those months in 1987 than he had worked in No- vember and December. Third, it is clear the schedule change not only involved Gibson, it also involved ap- proximately 10 to 12 other employees and there is no showing any of the other employees suffered any loss in their hours of work. In light of all the above, I recommend the complaint allegations that the Company unlawfully reduced the work hours of Gibson be dismissed. L The Union's Objections to Conduct Affecting the Results of the Election The Union's objections to conduct affecting the results of the election (the objections), which were ordered to be heard in this proceeding, are Objections 1, 2, 3, 4, 5, 7, 8, and 9. 77 The objections are: 1.The Employer threatened employees with loss of their jobs if they supported the Petitioner. 2. The Employer told employees that if the Peti- tioner was voted in the store would be closed. 3. The Employer's supervisors with full knowl- edge and consent of the owners intimidated and threatened employees to discourage their activities on behalf of the Petitioner. 4. The Employer informed employees that it would not bargain with the Petitioner even if the employees voted in favor of union representation. 5. Peggy Owens, a supervisor, used her control over employees to unlawfully influence their votes. 7. Peggy Owens attended union meetings for the sole purpose of intimidating employees. 8.Peggy Owens' actions undermined the employ- ees' freedom of choice in the election. 9. The Employer's owners, Harold and Don Par- sons, along with their legal counsel, threatened em- ployees with loss of jobs if they voted in favor of the Petitioner. With regard to Objections 1, 2, 3, and that portion of 9 that relates to Vice President Parsons, I have concluded the evidence supports those objections. For example, Vice President Parsons threatened employees with dis- charge; Store Manager Milwee threatened employees with layoff, discharge, and store closure; and Store Man- ager Lewis threatened employees with discharge if they supported the Union. All of these comments violated Section 8(a)(1) of the Act. These 8(a)(1) violations, as well as others, occurred during the critical period which was from 12 September through the election on 2 De- cember. The Board held in Dal-Tex' Optical Co., 137 NLRB 1782 (1962), that conduct violative of Section 8(a)(1) of the Act is a fortiori conduct that interferes with the exercise of a free and untrammeled choice in an elec- tion. In view of the foregoing I recommend to the Board that Objections 1, 2, 3, and that portion of 9 that refers to Vice President Parsons be sustained. 77 The Union withdrew objection 6. MACK'S SUPERMARKETS 1105 With regard to the Objection 4, I have concluded no evidence was presented to support that objection. Ac- cordingly, I recommend to the Board that Objection 4 be overruled. Objections 5, 7, and 8 refer to conduct attributed to Owens. I have concluded Owens conduct may not be at- tributed to the Company because she was not a supervi- sor or agent of the Company within the meaning of Sec- tion 2(11) and (13) of the Act. Accordingly, I recom- mend to the Board that Objections 5, 7, and 8 be over- ruled. Because I have recommended to the Board that Objec- tions 1, 2, 3, and that portion of 9 that relates to Vice President Parsons be sustained, I further recommend that the first election be set aside, and that the Board direct a second election be held at a time deemed appropriate by the Regional Director for Region 9 of the Board. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Peggy Owens, Ronnie Caklwell, and Jim Hendrick- son are not supervisors and agents of the Company within the meaning of Section 2(11) and (13) of the Act. 4. By engaging in the following conduct during the fall of 1986 the Company committed unfair labor prac- tices in violation of Section 8(a)(1) of the Act. (a) By coercively interrogating its employees concern- ing their union membership, activities, and desires. (b) By impliedly threatening retaliation against its em- ployees because of their union activities. (c) By threatening its employees with discharge, layoff, store closures, more onerous working conditions, and loss of work hours because of their union member- ship, activities, and desires. (d) By threatening that its full-time employees wculd be reduced to part-time employment status because of their union membership, activities, and desires. (e) By telling its employees they would have to keep the Union out in order for the Company to survive. .(f) By threatening an employee with discharge if the employee did not remove a prounion cap the employee was wearing. (g) By promulgating and enforcing an overly broad rule prohibiting its employees from wearing union insig- nia. (h) By promulgating and enforcing a no-solicitation rule for the purpose of interfering with its employees' right of self-organization. (i) By telling an employee that the employee would be treated more favorably because the employee opposed the Union. (j) By admonishing an employee for statements the employee made during a union meeting. (k) By threatening to discharge an employee after a Board-conducted trial had taken place. (1) By threatening to file charges against an employee in order to discourage the employee from engaging in protected conduct. (m) By assuring employees they would not be dis- charged if they voted against the Union. (n) By threatening employees with replacement if the Union ever established a picket line at the Company without explaining their recall rights. 5. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist therefrom, and to take certain affirma- tive actions designed to effectuate the policies of the Act. In addition to the ususal cease-and-desist order and notice posting, I recommend the Company be ordered to withdraw and abolish its overly broad rule that prohibits employees from wearing political (union) insignia, and that it cease giving effect to its no-solicitation rule pro- mulgated for the purpose of interfering with its employ- ees' right of self-organization. Counsels for the General Counsel have requested that a visitatorial clause be included in the order. The evi- dence does not establish the necessity for such a clause. Accordingly, I deny counsels for the General Counsel's request. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed78 ORDER The Company, Mack's Supermarkets, Inc., Harlan, Baxter, and Evarts, Kentucky, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating its employees regarding their union membership, activities, and sympathies. (b) Impliedly threatening to retaliate against its em- ployees because of their union activities. (c) Threatening its employees with discharge, layoff, store closure, more onerous working conditions, and loss of work hours because of their union membership, activi- ties, and desires. (d) Threatening its full-time employees with part-time employment status because of their union membership, activities, and desires. (e) Telling its employees they would have to keep the Union out in order for the Company to survive. (f) Threatening employees with discharge if they did not remove their prounion caps. (g) Promulgating and enforcing an overly broad rule prohibiting employees from wearing union insignia. (h) Promulgating a no-solicitation rule for the purpose of interfering with employees' right to self-organization. 78 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of tie Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (i) Telling employees they will be treated more favor- ably because they opposed the Union. @ Admonishing employees for statements they made during a union meeting. (k) Threatening to discharge employees after a Board- conducted trial had taken place. (I) Threatening to file charges against its employees in order to discourage them from engaging in protected conduct. (m) Assuring employees they would not be discharged if they voted against the Union. (n) Threatening employees with replacement if the Union ever established a picket line at the Company without explaining their recall rights. (o) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Abolish its overly broad rule that prohibits employ- ees from wearing political (union) insignia. (b) Withdraw its no-solicitation rule that it promulgat- ed for the purpose of interfering with its employees' right of self-organization. (c) Post at its Harlan, Baxter, and Evarts, Kentucky fa- cilities, copies of the attached notice marked "Appen- dix." 79 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Company authorized representative, shall be posted by the Company immediately upon receipt and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Company to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Compa- ny has taken to comply. IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges any unlawful conduct other than as found above. IT IS FURTHER RECOMMENDED that the election Con- ducted on 2 December 1986 in Case 9-RC-15002 be set aside and this proceeding be, and it hereby is, remanded to the Regional Director for Region 9 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining rep- resentative. 79 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!' 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 Labot Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT interrogate you regarding your union membership, activities, and sympathies. WE WILL NOT impliedly threaten to retaliate against you because of your union membership, activities, and desires. WE WILL NOT threaten you with discharge, layoff, store closure, more onerous working conditions, or loss of work hours because of your membership in or activi- ties on behalf of Local 227, United Food and Commer- cial Workers International Union, AFL-CIO-CLC, or any other labor organization. WE WILL NOT threaten you who are full-time employ- ees that you will be reduced to part-time employment status because of your union membership, activities, and desires. WE WILL NOT tell you that you will have to keep the Union out of the Company in order for it to survive. WE WILL NOT promulgate and enforce an overly broad rule that prohibits you from wearing political (union) insignia and WE WILL NOT threaten to discharge you for wearing political (union) insignia. WE WILL NOT promulgate an otherwise valid no-solici- tation rule in order to interfere with your right of self- organization. WE WILL NOT advised you that you will be treated more favorable because you oppose the Union. WE WILL NOT admonish you for speaking out at union meetings. WE WILL NOT threaten to discharge you after a Board- conducted trial has taken place. WE WILL NOT threaten to file charges against you in order to discourage you from engaging in protected con- duct. WE WILL NOT assure you that you will not be dis- charged if you vote against the Union. WE WILL NOT threaten that you will be replaced if the Union ever establishes a picket line at the Company, without also explaining to you your recall rights. MACK'S SUPERMARKETS 1107 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Act. MACK'S SUPERMARKETS, INC.