Shaw'S Supermarkets, Inc.

844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shaw's Supermarkets, Inc. and Teamsters Union Local 340 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, AFL-CIO.' Cases 1-CA-24543 and 1-RC-18882 July 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On November 23, 1987, Administrative Law Judge Michael O. Miller issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The General Counsel also filed ex- ceptions and a supporting brief, to which the Re- spondent filed a reply. 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 findings,3 and conclusions4 and to adopt the recommended Order. 1 On November 2, 1987, the Teamsters International Union was read- nutted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 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. 8 We agree with the judge's finding that Vice President of Distribution Wyatt's statement at the January 15, 1987 employee meetings that "em- ployees would be guaranteed minimum wages and workmen's comp[ensation] and that's where our collective-bargaining process would begin," amounted to an unlawful threat of regressive bargaining with a resulting loss of benefits. In so doing, we conclude that Wyatt's several references to collective bargaining as a "give-and-take" process, his ex- ample of how a union in another warehouse bargained away a profit- sharing plan in exchange for a pension plan, and his statement that the Respondent would start with minimum wages and workmen 's compensa- tion and "build from that point," do not constitute assurances that the Respondent would not require the Union to give up existing benefits or dispel the impression that what employees ultimately receive through col- lective bargaining is dependent on what the Union can induce the Re- spondent to restore Thus, in contrast to the Employer's statement in La- Z-Boy, 281 NLRB 338, 340 (1986), that it was "ridiculous" to think the company would pay minimum wages regardless of the outcome of nego- tiations, Wyatt's statements do not give employees the unambiguous mes- sage that they will not initially be stripped of all existing benefits through collective bargaining Indeed , Wyatt's statement that the employees would be "guaranteed" minimum wages and workmen's compensation and that the parties would have to "build" from that point conveys the opposite message, i.e, that collective bargaining begins with the loss of existing benefits and proceeds with a struggle by the Union to get those benefits restored. 4 We correct two misstatements made by the judge . Objections and an unfair labor practice charge had been filed concerning an election con- ducted October 23, 1982, but were later withdrawn No reliance was placed on these events Further, the evidence shows the second letter from the Respondent about the election that mentioned the Respondent's expansion plans was sent to the employees at some point before the elec- tion, but not that it was sent 1 week before the election as the judge ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Shaw's Su- permarket, Inc., Portland, Maine, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the election con- ducted on January 20, 1987, in Case 1-RC-18882 is set aside and this case is severed and remanded to the Regional Director for Region 1 for the purpose of scheduling and conducting a second election at such time as he deems the circumstances permit a free choice on the issue of representation. [Direction of Second Election omitted from pub- lication.] stated The judge's error does not affect the decision inasmuch as the evi- dence shows that in any event the employees had access to the content of both letters before the election Finally, in the absence of exceptions we adopt pro forma the judge's recommendation that Objection 3, parts 2, 4, 5, and 6, be overruled Kathleen F. McCarthy, Esq. and Beryl Rothman, Esq., for the General Counsel. Murray S. Freeman, Esq. (Nutter McClennen & Fish), of Boston, Massachusetts, for the Respondent. James E. Carson of Portland, Maine, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard in Portland, Maine, on 30 June 1987 based on an unfair labor practice charge filed on 23 Feb- ruary 1987 by Teamsters Union Local 340, a/ w Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (the Union or Local 340), and a complaint issued by the Acting Regional Di- rector for Region 1 of the National Labor Relations Board (the Board) on 9 April 1987. The complaint al- leges that Shaw's Supermarkets, Inc. (Respondent or the Company), violated Section 8(a)(1) of the National Labor Relations Act (the Act) by threatening employees with various reprisals in the event that they selected a collective-bargaining representative. Respondent's timely filed answer denies the commission of any unfair labor practices. The allegations of the complaint were consoli- dated for hearing with the Union's objections to conduct affecting the results of an election in Case 1-RC-18882, which had been conducted on 20 January 1987, as set forth in a Report on Objections and Challenges, which issued on 4 April 1987.' ' By stipulation, the challenges were withdrawn and a revised tally of ballots issued The revised tally showed that there were 46 ballots cast for representation by the Union, I ballot cast for the Independent Food- handlers and Warehouse Employees, an intervenor, and 71 ballots, a ma- jority of the valid votes cast, for neither Union 289 NLRB No. 119 SHAW'S SUPERMARKETS 845 All parties were afforded full opportunity to examine and cross-examine witnesses, argue orally, and submit briefs. Briefs, which have been carefully considered, were submitted by the General Counsel and the Re- spondent. Based on the entire record, including my observations of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS- PRELIMINARY CONCLUSIONS OF LAW The Respondent is a corporation engaged in the retail sale and distribution of groceries, frozen food, and relat- ed items with a warehouse facility in Wells, Maine. Juris- diction is not in issue. The complaint alleges, Respondent admits, and I fmd and conclude that Respondent is, and has been at all times material, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I fmd and conclude that Teamsters Union Local 340, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent operates a chain of 48 retail grocery stores in Maine, New Hampshire, and Massachusetts, with warehouse facilities in East Bridgewater, Massachu- setts (where its corporate headquarters are located), and Wells, Maine. The Wells warehouse, the only one in- volved in these proceedings, was opened in about 1985, replacing a warehouse in Portland, Maine. It consists of approximately 250,000 square feet of space, predominant- ly devoted to frozen foods. Respondent has approximate- ly 2000 employees, about 130 of whom work in the Wells unit. Of these, about 90 are full-time employees; the remainder work part time. The Wells warehouse op- erates on a three-shift basis with the hours staggered be- tween the frozen food and dry grocery sides. The ware- house manager is Stephen Kumka; Charles Wyatt is the vice president of distribution. Respondent admits the su- pervising status of Wyatt and Kumka. Wyatt is based in East Bridgewater and visits the Wells warehouse about once a week. The Wells employees are not currently represented by any labor organization. The election involved here was the third conducted among the employees since this warehouse, and its predecessor in Portland, opened in 1982. No unfair labor practice charges or objections were filed concerning the prior campaigns or elections, both of which resulted in votes against union representa- tion. The employees at East Bridgewater have been rep- resented for about 35 years by the Independent Food Handlers and Warehouse Employees Union, (IFWE). IFWE intervened in Local 340's most recent petition. B. The 23 December 1986 Letter-Alleged Threat to Cancel Expansion Plans The Respondent has plans to expand the Wells ware- house by about 230,000 square feet and its employees have been aware of those plans since at least late summer or early fall of 1986. By December 1986, some prelimi- nary planning had been done with an engineering group and a consulting firm. Sometime around early December 1986, Local 340 filed a representation petition; IFWE intervened. On 23 December 1986, Respondent posted a letter addressed to all of its Wells employees pointing out that, "for the third time in four years, [we are] going to be subjected to another organization drive by both Teamsters Local 340 and . . . IFWE." It went on to state: We want to get this election behind us as soon as is reasonably possible. As you are aware, we have plans for expansion here at Wells. In part, those plans are based upon our confidence in our employ- ees here at Wells; we are similarly confident that our employees will reject the sales pitch of both these Unions and that we can then turn our mutual efforts to make this the best of its kind of operation from the point of view of both our employees and the company. The letter concluded with information about when the election would be held. In a second letter, undated but identified by Wyatt as having been sent to the employees about a week before the election, Wyatt stated: In the relatively short time we have been here at Wells, we've accomplished a lot together. The Company is growing and we all hope to grow along with it. We are firmly committed to expan- sion here at Wells and working together we are going to be able to provide more jobs and more promotional opportunity. We do not want to be dis- tracted from that goal by endless negotiations and possible strikes, etc. C. Wyatt-Swanson Conversation In early January, day-shift employee Dean Swanson raised some questions concerning the upcoming election that Kumka could not answer. Kumka referred them to Wyatt and, when Wyatt came to the warehouse around 9 January 1987,2 he spoke with Swanson, an employee he had known for 6 years. The conversation took place in the aisle where Wyatt met Swanson. They spoke for about 2 hours, covering such topics as overtime, insur- ance benefits, and the Company's allotment for work shoes. In the course of discussing collective bargaining, Wyatt told Swanson that Respondent's employees en- joyed the best benefits in the industry for that area. He suggested that the wages and benefits were so good that the employees would not be able to get anything better through collective bargaining. According to Swanson, 2 All subsequent dates are 1987 unless otherwise specified 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when Swanson suggested that the two prior union cam- paigns had a lot to do with the present level of benefits, Wyatt got upset and stated that he could guarantee that the employees would get no greater benefits through union representation because the Union would have to bargain with him and he was not willing to give any better benefits than they had at that time. Wyatt denied telling Swanson that he would guarantee that a union would get them no greater benefits; he claimed (and Swanson confirmed) that he asked Swanson whether Swanson really believed that he could do better by turning his affairs over to a "third party." Kumka, who had been present during parts of the conversation, was not present during this portion. In his pretrial affidavit, Swanson made no mention of having upset Wyatt with the contention that Respondent had granted its present level of benefits because of the earlier union campaigns. This, however, was a significant aspect of Swanson's testimony before me. It would tend to explain why an otherwise careful campaigner (as I find Wyatt to be) might threaten to be adamant in bar- gaining to the point of having a closed mind. Noting that omission, the possibility that Swanson interpolated such a threat from Wyatt's question, and my impressions as to the credibility and recollective abilities of the witnesses, I find that the General Counsel has not sustained her burden of proving that Wyatt made the threat Swanson attributed to him. Accordingly, I shall recommend that the allegation of paragraph 7(c) of the complaint be dis- missed. D. The Meetings On January 15, Wyatt held meetings with the employ- ees of each shift, as he had done during each of the prior campaigns. Respondent does not dispute that the purpose of these meetings was to persuade the employees to vote against union representation. Each of the meetings was "on-the-clock" and the employees were instructed to attend by their supervisors. The meeting with the first-shift employees took place between 1 and 3 p.m. with about 35 employees, Wyatt, Kumka, and about 4 other supervisors present. Wyatt began this meeting, as he began each of them, by intro- ducing himself, explaining that he had come to answer their questions and address their concerns about the elec- tion, which was scheduled for the following Tuesday, and stating that he hoped that they had or would decide to vote for neither Union in the election. Wyatt then took questions from the employees. An employee asked what collective bargaining was or what it meant to the employees at Wells. According to Wyatt, he told them that collective bargaining was a system of give and take, that demands would be put on the table by a "third party,"s and it would be up to the employer 3 Wyatt repeatedly referred to selection of a union as bunging in a "third party," a disparaging and less than fully accurate description of the role of a collective-bargaining representative Wyatt, having served on the IFWE's negotiating committee when he was a unit employee in East Bridgewater, knew that unions act in a representative capacity and are no more "third parties" than employer's counsel or consultants to negotiate back and forth concerning the demands and work restrictions that were being discussed. As he testi- fied: I told the group, as I told all groups, that if they were to turn their affairs over to a third party that the employees would be guaranteed minimum wages and workmen's comp[ensation] and that's where our collective-bargaining process would be.4 At the time he made this statement, Respondent was paying up to $11.70 per hour plus differentials to the full- time employees and about $5 per hour to the part-tuners. Several questions were asked about profit sharing, par- ticularly whether the profit sharing that they presently enjoyed would be in jeopardy as a result of collective bargaining. Wyatt explained that profit sharing could be a negotiable item and described how IFWE had negoti- ated away profit sharing in favor of a pension plan at East Bridgewater, funding that plan from accumulated profit-sharing funds. He denied threatening the employ- ees with the loss of profit sharing.5 Someone questioned whether the Teamsters could guarantee job security; Wyatt answered that neither the Teamsters nor any other union could guarantee job secu- rity. He pointed out several Maine firms with Teamsters contracts that had gone out of business, stating, however, that he was not claiming that they had done so because of the Union. He said that it had happened as a possible result of deregulation or the economy; he only cited them as examples to show that union representation did not prevent plant closings. In response to a question about Respondent's expan- sion plans, Wyatt stated that those plans were proceed- ing along, that he expected some sitework to be done in early spring and that the expansion would be completed, or at least enclosed, by late fall and operational by the spring of 1988.6 4 Although some employees described his statement with slightly dif- ferent terms, I am satisfied that this is essentially what he said 5 Swanson claimed that he asked Wyatt the foregoing questions, Wyatt named other employees as having done so As Swanson recalled it, he asked Wyatt if Wyatt meant that "if the employees went into a union that the employees could lose their profit sharing and all the other employees in the program would keep it, and all of our money would be put into the account?" Wyatt allegedly replied, "Yes, we wouldn't, but we could " Assuming , arguendo, that such a statement would constitute a threat of loss of the profit-sharing plan, thus necessitating a resolution of credibility, I find that I cannot credit Swanson. Swanson acknowledged that he was seated in the back of the room, between two noisy vending machines, and could not hear everything that was being said. Moreover, the General Counsel offered no corroboration of Swanson's testimony from among the 35 employees who were present and Kumka credibly corroborated Wyatt Similarly, I cannot credit Swanson's assertion that, in response to a further question about the effects of voting a union in, Wyatt stated, "[I]f a union came in we could just close the place up" Such a patent threat is totally out of character with Wyatt 's carefully phrased answers and no employee corroborated Swanson or contended that Wyatt made any such remarks in the three other meetings held that day 6 As of the hearing date, construction had not begun According to Wyatt, Respondent had not received the necessary approvals from the Department of Environmental Protection and was awaiting its permits SHAW'S SUPERMARKETS The meeting continued with some discussion of the in- surance benefits enjoyed at Wells as compared to East Bridgewater and Wyatt's role in IFWE when he had been a unit employee. He was asked how he could now urge employees to reject unionization when he had once been a union officer. He replied that Respondent paid the best wages and benefits of, or at least paid wage and benefits comparable to, anyone in the industry and, be- cause of that, he believed that they had earned the right to maintain a union-free environment and not be subject- ed to such work restrictions as they had at East Bridge- water. He told the employees that the first contract would be the hardest to negotiate and concluded the meeting by stating his hope that they would make the right decision. According to Wyatt and Kumka, the meeting with the frozen food department employees of the second shift was essentially a repetition of the first-shift meeting de- scribed above. Rather than take as many questions, Wyatt told the employees what had been asked at the first meeting and repeated his answers. According to em- ployee 'Kenneth Sylvester, however, Wyatt answered a question from Thea Jongerden about the effect of collec- tive bargaining on their profit sharing by stating that "it could be lost, a good possibility that it would be lost." Sylvester recalled no discussion about negotiations at East Bridgewater with IFWE affecting the profit-sharing plan there and testified, contrary to his affidavit, that he recalled no statements about profit sharing being on the table or subject to collective bargaining. He also recalled Wyatt stating that there was no movement on the expan- sion program because of the upcoming election, that the Teamsters were not ' partial to part-timers, who could lose their jobs, and that a layoff was not likely because business was picking up "but there could possibly be one." He also recalled a part-time employee, Ralph Du- Chamb, asking about work standards, called reasonable expectations or REs. Kumka allegedly answered that REs were a nonnegotiable item in the contract. He re- called no discussion of management's right to measure productivity. Wyatt and Kumka denied making the statements at- tributed to them by Sylvester and, as noted above, assert that Wyatt only repeated the remarks he made in the first meeting. Kumka could recall no discussion of REs in any meeting other than the last. No testimony was offered concerning Wyatt's meeting with the dry grocery employees of the second shift. Wyatt met with all the third-shift employees about 11 p.m. He and Kumka testified that it followed essentially the same pattern as the second-shift frozen food depart- ment meeting. In this meeting, however, a question was raised about the work standards; Kumka answered, tell- ing employees that the REs were negotiable but that he believed that management had a right to have a perform- ance measurement system in place in order to fairly measure the performance of its employees. He credibly denied ever telling employees that the work standards were not negotiable. An employee asked whether part- time employees would lose their jobs if either the Team- sters or IFWE got in. In reply, Wyatt told the employ- ees of his experience with one of Respondent's subcon- 847 tractors whose employees were represented by the Teamsters. Under that contract, there were no part- timers; employees not called in to work were treated as if they were casuals, on layoff when not working.' Analysis and Conclusions As set forth above, I have found insufficient credible evidence to support the General Counsel's contentions that Wyatt or Kumka threatened employees with plant closure (complaint pars. 7(a)(i), loss of profit sharing par. 7(a)(iii); the taking of bad-faith bargaining positions pars. 7(a)(v), (vii), and 7(c); or layoffs of either full or part- time employees pars. 7(a)(vi) and (viii)). Accordingly, I shall recommend that these allegations be dismissed. The General Counsel asserts that Respondent's 23 De- cember letter, by creating a nexus between the Employ- er's expansion plans and the employees' rejection of the unions, constituted a subtle threat to cancel or reconsider those plans if the employees selected a collective-bar- gaining representative.8 In agreement with Respondent, I cannot find the message of this letter to be coercive. The letter expresses confidence in, or satisfaction with, the employees in the Wells work force. It states that because of that confidence, the Employer is planning to expand the facility and goes on to state, "we are similarly confi- dent that our employees will reject the sales pitches of both these unions and that we can turn our mutual ef- forts to make this the best of its kind of operation from the point of view of both our employees and the compa- ny.,, The General Counsel argues that there would be no reason for Respondent to connect a discussion of the ex- pansion plans with a statement about voting against unionization unless those plans were contingent on the employees' negative vote. This, I believe, is a strained in- terpretation of the letter, one which might be warranted in a context heavy with animus and other coercive con- duct, but not in this case. A lawful interpretation, at least as plausible as that offered by the General Counsel, is that Respondent, in its effort to persuade employees that they did not need union representation, was merely en- deavoring to show that they were appreciated and that 7 Mark Dubois, an employee who had been discharged in February (unfairly to his way of thinking), testified that Wyatt said that "there probably could not be any [profit sharing] or it could be less ... that [the expansion] definitely would come to a halt," that the Company would just have to "wait and see" what would become of part -timers if a union got in, and that Kumka said that he would set the work standards and they would not be "privy to negotiations." Noting the demeanor of the witnesses, the contradictions between the testimony and the affidavits of Sylvester and Dubois, the contradiction of Dubois ' contention con- cerning the halting of the expansion plans (which is contained in Re- spondents' second letter), asserting a firm commitment to expansion, evi- dence establishing a basis for bias by Dubois against Respondent arising from the circumstances of his termination , the lack of corroboration of their testimony by anyone else present at the same meetings, and the probability that both employees read more into Wyatt and Kumka's words than they really contained, I credit Wyatt and Kumka's versions of the second- and third-shift meetings. 6 I have found the evidence that Wyatt threatened employees with delay or cessation of the expansion plans in the course of the January 15 meetings insufficiently probative or credible to sustain the General Coun- sel's burden of proof. Accordingly, I shall recommend dismissal of com- plaint par. 7(a)(iv). 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the future was already bright. This becomes the more logical interpretation of the letter when it is read in con- junction with the subsequent letter , issued about a week before the election. In that letter, Respondent stated that it was "firmly committed to expansion," words hardly suggestive of threatening contingencies.9 Further, this second letter pointed out what expansion meant to the employees, more jobs and greater promotional opportu- nity, emphasizing Respondent's position that the employ- ees did not need a union. Accordingly, because I find no threat to be implicit in the 23 December letter, I shall recommend dismissal of complaint paragraph 7(d). Finally, the General Counsel asserts that Wyatt's pur- ported explanation of the collective-bargaining process, as a system of give-and-take where the Employer would begin bargaining at minimum wage and workmen's com- pensation (the bare legal requirements) and that would be all that the employees would be assured of receiving, threatened the employees with regressive bargaining, and the likely loss of benefits and violated Section 8(a)(1). I agree. Wyatt's statement, viewed in its most favorable light, is a variation on the "bargaining from scratch" state- ments with which the Board has been dealing for at least two decades. Of such statements, the Board has held: As the Board and the courts have recognized in other cases, in the course of organizational cam- paigns, statements are sometimes made of a kind that may or may not be coercive, depending on the context in which they are uttered [fn. omitted.] "Bargaining from scratch" is such a statement. In order to derive the true import of these remarks, it is necessary to view the context in which they are made. Wagner Industrial Products Co., 170 NLRB 1413 (1968). See also Campbell Soup Co., 225 NLRB 222, 229 (1976), and cases cited therein . Statements that "accurately re- flect the obligations and possibilities of the bargaining process . . . which do not contain any threats that Re- spondent will not bargain in good faith or that only re- gressive proposals will result" will not be found viola- tive. Clark Equipment Co., 278 NLRB 498 (1986). State- ments that "effectively threaten employees with the loss of existing benefits and leave them with the impression that what they may ultimately receive depends in large measure upon what the Union can induce the Employer to restore" are objectionable (and violative of Sec. 8(a)(1)). Plastronics, 233 NLRB 155, 156 (1977), and cases cited therein; Belcher Towing Co., 265 NLRB 1258, 1268 (1982). Two recent cases, almost squarely on point, establish that Wyatt's admitted statements to all the employees were coercive and not merely descriptive of the collec- 9 The following sentence of that letter, "We do not want to be dis- tracted from that goal by endless negotiations and possible strikes," does not necessarily negate Respondent's commitment to expansion or threaten cessation of the plans in the event of unionization Arguably , it merely offers management's view that negotiations and strikes divert energies from other management functions tive-bargaining process. In Mississippi Chemical Corp., 280 NLRB 413, 417 (1986), a supervisor told employees "that he could not possibly see where a union would benefit employees or see how they could get anything out of it." He "added that all 'they' would do is knock employees down to the minimum wage , take all their benefits and then they would have to bargain from scratch." The Board stated: It is clear that Jackson's remark carried with it the express threat that the bargaining from "scratch" would start only after employees had been reduced to "minimum wage" and all their benefits taken away. In this context, Jackson's remark was coer- cive for it threatened the loss of existing benefits not necessarily the result of good faith bargaining.10 Similarly, in Fountainview Place, 281 NLRB 26, 29 (1986), the personnel director stated that if the union was voted in, bargaining "starts out fresh"-"you don't start out with what's in the handbook." As he did this, he held up and waved a copy of the employer's handbook, which set forth all the existing benefits. The Board held that the employer's statement, made in the context of emphasizing the existing benefits by waving the hand- book (and in the context of other coercive conduct), conveyed the reasonable impression that the employer would require the union to give up existing employee benefits. That employer's conduct was thus found to constitute an unlawful implied threat. Although the in- stant case lacks the context of other coercive conduct, Wyatt's statement is similar to that of Fountainview's personnel director; he did not wave a handbook but he told employees how good their present benefits were and stated that if Respondent had to negotiate with the Union, it would begin its negotiations at the bare mini- mum required by law, minimum wage and workmen's compensation. Accordingly, I fmd that by threatening employees that it would bargain regressively, resulting in lost benefits, if they selected a bargaining representative, Respondent has violated Section 8(a)(1). The Objections As noted, the Local 340 filed objections to the con- duct of the 20 January election. Its Objection 3, subparts 1 through 6, which were identical with the allegations of the complaint, were consolidated for hearing with the complaint. I have rejected the contentions contained in Objection 3, parts 2 through 6, and recommend that they be overruled. 11 Compare La-Z-Boy, 281 NLRB 338 (1986), in which an employer's statement that "everything was up for negotiations and that minimum wage was the bottom line" was found not to be a coercive threat to bar- gain regressively inasmuch as the employer told the employees that "it was 'ridiculous' to think the company would pay minimum wage regard- less of the outcome of negotiations " No such assurances were given in Mississippi Chemical and none were given here Even assuming that the employees might, on their own, conclude that it would be ridiculous to think that the employer would reduce full-time wages of $ 11.70 per hour to $3 35, it would not have seemed ridiculous for them to believe that the Employer might reduce the $5 per hour wage of the part-torte employees to that level SHAW'S SUPERMARKETS I have found that- Respondent threatened employees with a loss of wages and benefits through regressive bar- gaining in violation of Section 8(a)(1). Pursuant 'to the Board's usual policy, a new election is to be directed "whenever an unfair labor practice occurs during the critical period since `[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the ex- ercise of a free and untrammeled choice in an election."' Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962), quoted with approval in Clark Equipment, supra. It cannot be contended that the conduct here was de mini- mus and should not result in the election being set aside. These threats, violative of Section 8(a)(1), reached all of the unit employees and were uttered only 5 days before the election. Accordingly, I recommend that the election conducted on 20 January be set aside on the basis of Local 340's Objection 3(1) and a rerun election be con- ducted. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist and take certain affirmative action designed to effectuate the policies of the Act. The General Counsel seeks the inclusion of a visitator- ial clause in the recommended Order, authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order. The circumstances of this case do not warrant inclusion of such a clause. Fountain view Place, supra. FURTHER CONCLUSIONS OF LAW 1. By threatening employees that it would bargain from scratch starting from a substantially reduced level of benefits, Respondent has threatened its employees with regressive bargaining and a loss of benefits and has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights and has violated Section 8(a)(1) of the Act. 2. The unfair labor practice enumerated in paragraph 1, above, is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Respondent's conduct described in paragraph 1, above, interfered with the employees' rights to a free and untrammeled choice in the election conducted on 20 Jan- uary 1987 in Case 1-RC-18882 and warrants that that election be set aside and a rerun election conducted. 4. The Respondent has not engaged in any unfair labor practices or objectionable conduct not specifically found. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edtt 11 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations , the findings, conclusions , and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ORDER 849 The Respondent, Shaw's Supermarkets, Inc., Portland, Maine, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that it would "bargain from scratch" starting from substantially reduced levels of wages and benefits if they selected a union to represent them. (b) 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 deemed neces- sary to effectuate the policies of the Act. (a) Post at its Wells, Maine warehouse facility copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects, and, IT IS FURTHER RECOMMENDED that Case I-RC-18882 be severed from Case 1-CA-24543 and be remanded to the Regional Director who shall conduct a rerun elec- tion at such time as he deems the circumstances permit a free choice on the issue of representation. 12 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 Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten our employees that we would WE WILL NOT in any like or related manner interfere "bargain from scratch" starting from a level of substan- with, restrain, or coerce our employees in the exercise of tially reduced wages and benefits if they select a union to the rights guaranteed them under Section 7 of the Act. represent them. SHAW'S SUPERMARKETS, INC.