Sewell-Allen Big Star, Inc.

312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sewell-Allen Big Star, Inc.' and United Food and Commercial Workers International Union, AFL-CIO, Local 1529 Baker Bros., Inc., d/b/a Baker's Big Star Stores Nos. 31, 61, 64, and 81 and United Food and Commercial Workers International Union, AFL-CIO, Local 1529 Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142; Sewell-Allen Big Star, Inc., 103, 187, and 189; Baker Bros., Inc., d/b/a Baker's Big Star Stores Nos. 31 , 61, 64, and 81 and United Food and Commercial Workers International Union, AFL-CIO, Local 1529 SMF Management, Inc., d/b/a SMF Food Rite Su- permarkets and United Food and Commercial Workers International Union, AFL-CIO, Local 1529. Cases 26-CA-9834, 26-CA-9841, 26- CA-9896, and 26-CA-9989 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 4, 1984, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondents filed exceptions and supporting briefs, the General Counsel and the Charging Party filed cross-exceptions and supporting briefs, and the General Counsel, the Charging Party, and the Re- spondents filed answering 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, cross-exceptions, and briefs and has decided to affirm the judge's rul- i On August 28, 1985 , the Board granted a joint motion to sever filed by the respondents , Pic-Pac Foods, Inc and Giant Foods , Inc, and the charging party , in Cases 26-CA-9937-1, 26-CA-9963-1, 26-CA-9937-2, and 26-CA-9963-2 Further, as noted by the judge at fn 2 of his deci- sion, a complaint filed against an additional respondent, Wadell Bramlett and Lois Tackett d/b/a Bramlett Tackett Big Star No 30 in Cases 26- CA-9896 and 26-CA-9877 was withdrawn and these cases were severed by order of the Regional Director for Region 26 Accordingly, we have deleted references to those cases in the caption , and we make no findings regarding these parties or enter any conclusions of law with respect to them 2 The Respondents have excepted to some of the judge 's credibility findings The Board's established policy is not to overrule an administra- tive 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 re- versing the findings We correct the following factual errors of the judge In sec IV,A, of his decision , the judge refers to "a series of meetings to be held in Febru- ary 1983 " The correct date is February 1982 In sec IV,B, the judge refers to letters of April 11, 1982, notifying the Respondents of the merger The correct date is April 7, 1982 Throughout his decision, the judge refers to the expiration date of the collective-bargaining agreements as October 31, 1982, The correct date is October 30, 1982 In sec ings, findings, and conclusions2 as modified below.3 1. For the reasons stated, below, we adopt the judge's findings that the Respondents violated Sec- tion 8(a)(5) and (1) by withdrawing recognition and by refusing to bargain with the Union. In January 1982,4 representatives of United Food and Commercial Workers (UFCW) Locals 1529 and 452 agreed to a merger, with Local 1529 to become the surviving merged union.5 In February, the merger was approved by the membership of Local 452. Nonmembers were excluded from the voting process. On April 1, International Union UFCW approved the merger. On April 7, Local 1529 informed the Respond- ents, with whom Local 452 had maintained a col- lective-bargaining relationship, that. Local 452 and Local 1529 "have effected a merger pursuant to the provisions of the [UFCW] Constitution" and that in accordance with a charter of April 1, 1982, Local 1529 "will continue to administer the con- tract and in all respects continue as the collective bargaining representative of the employees covered by the contract." Local 1529 informed the Re- spondents that the merger was conducted pursuant to a vote of the membership, and that it did not affect the autonomy of the local and was solely an internal union matter. Also attached to the April 7 letter was a notice to the Respondents that all future correspondence concerning dues checkoff and/or money was to be mailed to Local 1529. In May, the Respondents, Sewell' s Big Star, Sewell- Allen No. 2, Sewell-Allen, and Baker' s Big Star (Baker Bros.), in response to union correspondence, indicated to Local 1529 that "your letter recon- firms the company's information that Meatcutters Local 452 has merged into Local 1529." Following notification of the merger in April, the Respondents dealt with Local 1529 as the col- lective-bargaining representative of the employees IV,D,8, the judge refers to the testimony of William Garland regarding an incident in which his car tires allegedly were cut in 1981 The record reflects that the incident allegedly occurred in 1961 In sec. IV,D,5, the judge refers to testimony regarding $8 per month in contributions to a pension fund The amount referred to in the record is $80 per month Under the circumstances presented in this case, we find it appropriate to substitute a narrow cease-and-desist order for the broad order recom- mended by the judge 9 On October 8, 1986, the Board granted the Charging Party's motion to withdraw allegations pertaining to the handbilling and access issues discussed at secs IV,F,14, and IV,H, of the judge's decision On October 22, 1986, the Board denied the Respondent's motion for reconsideration We make no findings regarding the judge's discussion of these issues and we have modified the judge's recommended conclusions of law 4 All dates are in 1982 unless noted otherwise IIn Warehouse Groceries Management, 254 NLRB 252, 256 (1981), enfd 683 F 2d 418 (11th Cir 1982), the Board found that UFCW was a continuation of Retail Clerks International Association and Amalgamated Meat Cutters and Butcher Workers of North America and that it suc- ceeded to the representational rights of both unions 294 NLRB No. 6 SEWELL-ALLEN BIG STAR covered by their respective bargaining agreements. Thus, as the judge found, grievances were proc- essed, health and welfare and pension fund contri- butions were remitted, dues were deducted and re- mitted pursuant to contractual check-off provisions, when present, and some of the Respondents en- gaged in bargaining with Local 1529 concerning insurance contribution increases that were due in June. On July 30, Local 1529 requested that the Re- spondents commence bargaining for agreements to succeed those expiring on October 30, and request- ed information pertinent to bargaining. In Septem- ber, several of the Respondents provided portions of the requested information. Thereafter, on Octo- ber 7 and 13, initial bargaining sessions were con- ducted between the Respondents and Local 1529. However, on November 8, following expiration of the bargaining agreements, and 7 months after noti- fication of the merger, the Respondents notified Local 1529 that they no longer recognized Local 1529 as the bargaining representative of their em- ployees. The Respondents asserted that the merger between Local 452 and Local 1529 was invalid be- cause nonmembers had been excluded from the voting process." We agree with the judge that, based on the fore- going circumstances, the Respondents were es- topped from challenging the validity of the merger. It is uncontroverted that, in April, the Respondents expressly were notified of the merger and of Local 1529's assertion of representative status. In re- sponse, the Respondents continued to deal with Local 1529 over a 7-month period in the identical manner with which they had dealt with Local 452-processing grievances, remitting dues, tender- ing health and welfare and pension contributions, and negotiating midterm changes in insurance con- tributions. This entire course of conduct constitut- ed an acceptance of the representative status of Local 1529. Further, Local 1529 relied to its detri- ment on the Respondents' recognition of its status as bargaining representative because it took no action to reestablish its status during the 7-month period between the notice of the merger and the Respondents' withdrawal of recognition. Accord- ingly, we find that the Respondents are estopped from contesting the validity of the merger process as a defense to the 8(a)(5) and (1) allegations.7 El 6 At the hearing, the Respondents raised , in addition to the exclusion of nonmembers, other alleged infirmities in the merger process 7 We note that, in any event , the Respondents ' reliance on Local 1529's failure to permit nonmembers to vote in the merger process , as a justifica- tion for their withdrawal of recognition, lacks merit in light of NLRB V Food & Commercial Workers Local 1182 (Seattle-First National), 475 U S 192 (1986), in which the Supreme Court held that nonmember employees need not be afforded the opportunity to vote on their bargaining repre- sentative's decision to affiliate with another union 313 Torito-La - Fiesta Restaurants, 284 NLRB 1131 (1987), enfd. mem. in relevant part 852 F.2d 571 (9th Cir. 1988); Ventura County Star-Free Press, 279 NLRB 412, 419 (1986); Knapp-Sherrill Co:, 263 NLRB 396, 398 (1982), and 268 NLRB 800, 801 fn. 3 (1984). Further, we agree with the judge that permitting the Respondents to challenge the majority status of Local 1529 more than 6 months after they had ef- fectively accepted Local 1529 as the proper succes- sor to the representational rights of Local 452 is in- consistent with the policies underlying Section 10(b) of the Act as set forth in Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960). In Bryan Mfg., the Supreme Court held that the act of entering into a collective-bargaining agreement at a time when the union did not represent a ma- jority of the unit employees could not be chal- lenged as an unfair labor practice on the part of either the union or the employer if the charge were filed more than 6 months after the contract was ex- ecuted. That same principle should logically apply to any unfair labor practice charge predicated on the unlawful recognition of a union , during the term of a collective -bargaining agreement, where the union was neither essentially the same entity that had negotiated the agreement nor the properly designated majority representative.8 And just as the policies underlying Section 10(b) would pre- clude a direct attack, under Section 8(a)(2) and (3) or Section 8(b)(1)(A) and (2), against acceptance of recognition demands by a union asserting that it was a proper successor to the contracting union, so those policies are offended by an indirect attack on the validity of the merger process through a de- fense to a later withdrawal of recognition. It is un- disputed that the Respondents were notified of the merger in April and that they did not contest its validity until November 8, 7 months after notifica- tion. Under the principles set out above, we find that the Respondents' challenge came too late and therefore cannot be considered as a defense to the s An employer normally is not free, during the term of a collective- bargaining agreement , to withdraw recognition from the union with which it negotiated the agreement Abbey Medical/Abbey Rents, 264 NLRB 969 (1982), enfd 709 F 2d 1517 (9th Cir 1983) An exception to this rule is made when a union that negotiated the contract has become defunct or when certain forms of union schism occur See Yates Indus- tries, 264 NLRB 1237, 1249 (1982), and cases there cited Thus, in the present case , the Respondents would have been entirely within their rights to refuse to deal with a union under the collective -bargaining agreement if they had determined that Local 452 no longer existed under its own name and that Local 1529 had not become a successor pursuant to a valid merger Indeed, if those were the facts , it would have consti- tuted a violation of Sec 8(a)(2) for the Respondents to recognize Local 1529 if they had no basis for believing that it had obtained majority sup- port within the bargaining unit As noted above, however, the Respond- ents recognized Local 1529 as the successor under the agreement , there- by indicating an acceptance of Local 1529's claim to recognition 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8(a)(5) charge in the present proceeding. See Joe Costa Trucking, 238 NLRB 1516, 1517 (1978), enfd. 631 F.2d 604 (9th Cir. 1980); North Bros. Ford, 220 NLRB 1021 (1975).9 2. We adopt the judge's findings that Respondent Sewell-Allen Big Star, Inc., No. 2, d/b/a Big Star No. 103 (the Respondent) violated Section 8(a)(3) and (1) by discharging employees Bill Gross, The- resa Heist, Becky Hordyk, and James Kimbrough and by demoting employee Johnnie Worrell. Employees Heist and Hordyk worked as part- time meatwrappers and Gross worked as a part- time meatcutter . As described more fully by the judge, commencing in June 1982, the Respondent, through Owners Lex Sewell and Dan Allen, Store Manager Michael Gordon, and Supervisor Clifford Phillips, engaged in a series of acts violative of Section 8(a)(1), including. repeated attempts to so- licit employee abandonment of the Union, threats of reprisal for exercising Section 7 rights, promises of benefit, expressions that continued support of the Union would be futile, and coercive interroga- tions. This course of conduct seeking to oust the Union as bargaining representative included the re- cruitment by Gordon and Phillips of employee Leroy Dancer to solicit employee signatures on a petition repudiating the Union. As an initial induce- ment, Phillips offered to arrange additional hours of work for Dancer, who, at the time, worked less than a full-time schedule. Thereafter, Gordon showed Dancer a petition Gordon had prepared reading, "[W]e do not want Local 1529 or Local 452 to represent us. We want out." Gordon asked Dancer to circulate the petition and obtain signa- tures. On August 25, the Respondent placed Phillips in a bargaining unit position as head meatcutter, re- sulting in the demotion of employee Worrell from head meatcutter to journeyman meatcutter. That week, Heist, Hordyk, and Gross were discharged. When Dancer expressed doubts to Gordon about whether a majority of employees would sign the petition, Gordon showed Dancer the new work schedule, resulting from the discharges, and said, "[W]ell, I want to show you something-It is even now. These people are no longer with us." Gordon then mentioned Heist, Hordyk, and Gross and told Dancer they had been terminated. Further, with the placement of Phillips in a unit position, Dancer sought the signature of Phillips on the petition, as instructed by Gordon. After Dancer filed the de- certification petition with the Board, Gordon com- plimented him on a job "well done" and rewarded 9 Because we find that the Respondents are barred from contesting the validity of the merger process, we find it unnecessary to consider the propriety of the merger process itself him with the additional hours of work formerly worked by discharged meatcutter Gross. During the course of the Respondent's efforts to enlist employee support to repudiate the Union, Sewell and Allen held a meeting of meat depart- ment employees. They indicated to employees that it was time to decertify the Union, interrogated employees as to whether they were willing to re- pudiate the Union, expressed an unwillingness to negotiate with the Union, and promised improved benefits without the Union. At this meeting, the Respondent directed certain comments directly to employee Kimbrough. When Sewell asked employ- ees whether they would repudiate the Union, Kim- brough stated openly that he would stay in the Union. Sewell responded by stating "that means whether you will have a job or not" and "you better think about your wife and children." Sewell also told Kimbrough, "I hate to see you walking the street, come December or January." On Janu- ary 8, 1983, the Respondent laid off Kimbrough. The Respondent contends that the discharges of Heist, Hordyk, Gross, and Kimbrough and the de- motion of Worrell were attributable solely to eco- nomic reasons. It contends that the meat depart- ment was overstaffed, that the layoffs of these em- ployees were a continuation of earlier layoffs, that productivity was increased, and that the layoff of Gross was designed to "placate" the Union by per- mitting it to staff the meat department on the night shift. Contrary to the contentions of the Respondent, we agree with the judge that the real reason for the discharges, and the demotion of Worrell, was the participation of these employees in union activi- ties, and that the Respondent's stated business justi- fications do not withstand scrutiny. First, the cred- ited testimony of Dancer establishes that the Re- spondent was acutely aware that the termination of Heist, Hordyk, and Gross meant that the tally of union supporters and nonsupporters was, in the words of Gordon, "even now" with the termina- tion of these employees. Further, the demotion of Worrell resulted directly from the placement of Clifford Phillips into a unit position, for the express purpose of making Phillips eligible to sign the peti- tion repudiating the Union. Thus, the record shows that the personnel changes in the department were an attempt to alter the ratio of union supporters in comparison to nonsupporters. Additionally, the dis- charge of Kimbrough followed closely the repeat- ed threats of discharge, directed to Kimbrough, in response to his outspoken union sentiments . Blunt- ly, the Respondent informed Kimbrough that his views regarding retention of the Union would de- termine "whether you will have a job or not." SEWELL-ALLEN BIG STAR Regarding the Respondent's economic defense, we note that the record does not support the Re- spondent's contentions that, as part of a plan to reduce manpower, it laid off two employees prior to the discharge of Heist and Hordyk . One of these employees (Gloria Creech) left of her own volition and the other (Chris Phillips) was laid off after Heist and Hordyk . Further, because the record es- tablishes that the Respondent, as a matter of policy, routinely denied the Union's grievances during the time of these alleged unfair labor practices, its as- sertion that its layoff of Gross was designed to "placate" the Union, in response to a grievance, is unconvincing. In addition, although the record shows that the amount of sales in the meat department remained relatively stable and did not decline following the terminations and the consequent reduction in em- ployee hours worked, it does not follow that the terminations would have occurred even absent the employees' union sentiments . The Respondent's proffered defense essentially rests on the notion that because sales did not decline following the elimination of the hours formerly worked by the terminated employees, it has established that the terminations were economically motivated, i.e., part of an effort to do the same work with fewer, more productive employees . We do not agree. This is not a case where a demonstrable decline in sales leads to a reduction in personnel . Here, sales had remained stable at all pertinent times and staffing was maintained for months at the same levels, until the Respondent decided to seek the repudiation of the Union and terminated union adherents, transfer- ring some of the hours they formerly worked to other employees, including the employee enlisted to circulate a decertification petition . In these cir- cumstances, we agree with the judge that the dis- charges of Heist , Hordyk, Gross, and Kimbrough, and the demotion of Worrell , violated Section 8(a)(3) and (1). 3. We adopt the judge's findings that Respondent Baker Bros. violated Section 8(a)(1) of the Act by interrogating and threatening employees , promising them benefits if they repudiated the Union ,10 solic- iting employees to abandon the Union , and spon- soring the circulation of decertification petitions. As to those acts committed by head meatcutters Hamm, Todd McClellan, and Westmoreland, each of whom, we agree with the judge, was a supervi- 10 In finding that Al Baker promised employees improved working conditions in violation of Sec 8(a)(1), if they decertified the Union, we do not rely on Baker's comments that employees would not lose any ben- efits Rather, we agree with the judge that , in context with his remarks regarding the decertification effort , Baker's assurance that the Company would operate a lot smoother without the Union was an implied promise of improved working conditions 315 sor within the meaning of Section 2(11) of the Act, i i Respondent Baker Bros. contends that the conduct is not attributable to it because these indi- viduals were members of the bargaining unit. We disagree. The Board has long held that conduct engaged in by supervisors who are included in the bargain- ing unit is attributable to the employer only when there is evidence that the employer encouraged, authorized, or ratified the supervisor's activity or acted in such a manner as to lead employees rea- sonably to believe that the supervisors were acting for and on behalf of management . Montgomery Ward & Co., 115 NLRB 645 (1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957). Here, even assuming that Hamm, Todd McClellan, and Westmoreland are members of the bargaining unit, the record demonstrates that the Respondent, by virtue of conduct by its owner and president, Al Baker, led employees reasonably to believe that Hamm, Todd McClellan , and West- moreland were acting for and on behalf of manage- ment. As the judge found, the three supervisors made numerous statements in connection with the circu- lation of a decertification petition that were coer- cive and that, in part, expressed to employees the likely management response to continued union representation . Thus, they told employees, among other things, that Al Baker was not going to sign another union contract, that management would not even negotiate with the Union, that manage- ment would reward employees with better wages and benefits if they ousted the Union, and that if employees supported the Union , they would lose their jobs. Following the solicitation of employees to sign the petition and the accompanying coercive state- ments, Todd McClellan informed Al Baker of the result of the solicitations . According to Baker, prior to his receipt of formal notification from the Board that a petition had been filed, McClellan told him that "virtually all of our employees" had signed the petition, with one or two exceptions. Thereafter, Al Baker spoke to the employees at the Respondent's stores. He told the employees that he appreciated their standing up for the Com- pany and for signing the petition, and stated that as soon as he could get rid of all the "interruptions," the Company would operate a lot smoother. In the presence of Todd McClellan , Baker also told the I I As the allegedly unlawful conduct attributable to Mark McClellan is cumulative to the violations found , we find it unnecessary to decide whether Mark McClellan's conduct was attributable to the Respondent 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees that he understood that an "overwhelm- ing majority" had signed the petition. In these circumstances, we find that Al Baker led employees reasonably to believe that Hamm, Todd McClellan, and Westmoreland were acting for and on behalf of management. The three super- visors represented to employees during the decerti- fication effort that management would reward em- ployees for ousting the Union, that Al Baker would not sign a contract or even negotiate with the Union, and that the employees could lose their jobs if they supported the Union. When Baker informed the employees, in the presence of Todd McClellan, that he was aware that most of them signed the pe- tition, he could reasonably be understood to be privy to an essential detail of the petition's circula- tion. By virtue of his conduct at these meetings, urging ouster of the Union, emphasizing the result to be achieved by doing so, and revealing details of the circulation of the petition, Al Baker furthered the reasonable perception that Hamm, Todd McClellan, and Westmoreland were acting for and on behalf of management when they circulated the petition seeking ouster of the Union, solicited sig- natures, and made repeated coercive statements to the employees concerning the likely favorable man- agement reaction. We therefore, on this basis, adopt the judge's findings that Respondent Baker Bros. violated Section 8(a)(1).12 CONCLUSIONS OF LAW 1. Respondents Sewell's Big Star, Inc.; Sewell- Allen Big Star, Inc.; Sewell-Allen Big Star, Inc., No. 2; Baker Bros., Inc.; SMF Management, Inc., d/b/a SMF Food Rite Supermarkets; and Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142, are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Inter- national Union, AFL-CIO, Local 1529 is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent Sewell's Big Star, Inc., d/b/a Sewell's Big Star No. 187 constitute a unit appropriate for collective bar- gaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. 4. The following employees of Respondent Sewell-Allen Big Star, Inc., d/b/a Sewell-Allen 12 For the reasons discussed in sec 1, above, we also adopt the judge's 8(a)(5) and (1) findings as to Respondent Baker Bros' withdrawal of rec- ognition of the Union, as well as the judge's remaining 8(a)(5) and (1) findings Big Star No. 189 constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. 5. The following employees of Respondent Sewell-Allen Big Star, Inc., No. 2 d/b/a Sewell- Allen's Big Star No. 103 constitute a unit appropri- ate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. 6. The following employees of Respondent Baker Bros., Inc., d/b/a Baker's Big Star Stores Nos. 31, 61, 64, and 81 constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. 7. The following employees of Respondent SMF Management, Inc., d/b/a SMF Food Rite Super- markets constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cut- ters, apprentices and wrappers. 8. The following employees of Respondent Gil- bert Allen Big Star, Inc., d/b/a Big Star No. 142 constitute a unit appropriate for collective bargain- ing within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. 9. Each of the Respondents had knowledge of the merger in April 1982 of United Food. and Com- mercial Workers Locals 1529 and 452 and recog- nized Local 1529 as the successor of Local 452 and continued to do so until after the expiration of their collective-bargaining agreement(s) with Local 452 on October 30, 1982. 10. About November 8, 1982, Respondents Sewell's Big Star, Inc.; Sewell-Allen Big Star, Inc.; Sewell-Allen Big Star, Inc., No. 2; Baker Bros., Inc.; SMF Management, Inc., d/b/a SMF Food Rite Supermarkets; and Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142, each withdrew rec- ognition from and refused to bargain with Local 1529 as the collective-bargaining representative of their employees in the above appropriate units. 11. As a result of their voluntary recognition of Local 1529 as the successor to Local 452 as the collective-bargaining representative of their em- ployees and their failure to withdraw recognition SEWELL-ALLEN BIG STAR from the Union until more than 6 months after they voluntarily recognized Local 1529 in April 1982, each of the Respondents is barred by Section 10(b) of the Act from challenging the representa- tive status of Local 1529 as a defense to the unfair labor practice charges alleging that they unlawfully withdrew recognition from Local 1529. 12. By reason of their delay in withdrawing rec- ognition from Local 1529 until after the expiration of their collective-bargaining agreements with Local 452, each of the Respondents is estopped from withdrawing recognition from Local 1529 by challenging the validity of the merger. 13. Respondents Sewell-Allen Big Star, Inc., d/b/a Big Star No. 189 and Sewell-Allen Big Star, Inc., No. 2, d/b/a Big Star No. 103 are a single employer. 14. By their withdrawal of recognition in No- vember 1982 and continuing refusal to bargain with Local 1529 as the collective-bargaining representa- tive of their employees in the appropriate units found above, and to furnish information to the Union for bargaining, Respondents Sewell's Big Star, Inc.; Sewell-Allen Big Star, Inc.; Sewell- Allen Big Star, Inc., No. 2; Baker Bros., Inc.; SMF Management, Inc.; and Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142 violated Section 8(a)(5) and (1) of the Act. 15. By its June 28, 1982 solicitation of its em- ployee Johnnie Worrell to withdraw as a member of Local 1529 and its promise of improvements in working conditions if he did so, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 16. By its June 30, 1982 solicitation of its em- ployee Worrell to withdraw from the Union; by its promise of improvements in benefits if he did so; and by its issuance of a threat of store closure if the employees did not abandon the Union, Re- spondent Sewell-Allen Big Star, Inc., No. 2 violat- ed Section 8(a)(1) of the Act. 17. By its July 12, 1982 solicitation of employee Worrell to withdraw from the Union, and by its is- suance of an unspecified threat to Worrell regard- ing his future; by its statement that it would be unable to bargain with Union President Sheppard; by its threat of plant closure if Worrell and the other employees remained in the Union; and by its promises of improvements in wages and benefits if the employees abandoned the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 18. By its July 26, 1982 interrogation of employ- ee Worrell concerning whether he had decided to withdraw from the Union; by its threat of the futil- ity of continued representation by the Union; and 317 by its implied promise of improvements in benefits and other terms and conditions of employment if its employees withdrew from the Union , Respond- ent Sewell-Allen Big Star, Inc., No . 2 violated Sec- tion 8(a)(1) of the Act. 19. By its late July 1982 solicitation of employees Thomas Shelton Jr. and Michael Rowley to with- draw from the Union ; its promise of improvements in their retirement and insurance benefits if they did so; and its threat of less desirable working hours and loss of employment if they did not with- draw from the Union , Respondent Sewell-Allen Big Star, Inc., No . 2 violated Section 8(a)(1) of the Act. 20. By its early August 1982 solicitation of its employees Herbert Bobbitt , James Kimbrough, and Worrell to withdraw from the Union ; by its threat of the futility of continued union representation be- cause it would not allow Union President Sheppard in its store; and by its promise of improvements in wages and benefits if the employees withdrew from the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 21. By its mid-August 1982 interrogation of its employees Worrell, Kimbrough, Shelton, Rowley, and Mary Armour concerning their support of the Union; by its solicitation of its employees to with- draw from the Union; by its representation to the employees that it would not bargain with or sign a labor agreement with Union President Sheppard, demonstrating the futility of the employees' contin- ued support of the Union ; by its promises of im- provements in pension benefits if the employees withdrew from the Union; and by its threat of dis- charge to employee Kimbrough if he did not with- draw from the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 22. By its solicitation of its employee, William Garland, in August 1982 to withdraw from the Union and that Garland solicit the withdrawal of its other employees from the Union; by its promise of improvements in benefits if the employees with- drew from the Union; by its subsequent mid- August 1982 interrogation of its employees Gar- land, Bobby Thurman, and Jim Perry concerning their sentiments with respect to the circulation of the decertification petition; by its solicitation of said employees to withdraw from the Union; by its promise of improvements in wages and benefits if they withdrew from the Union; by its statement that it would not negotiate with or sign a labor agreement with Union President Sheppard and the Union; and by its threat of a strike by the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 vio- lated Section 8(a)(1) of the Act. 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 23. By its solicitation of employee Mary Fortner in late August 1982 to bypass her collective-bar- gaining representative and to bring 'grievances to the attention of its management, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 24. By its solicitation of its employee Leroy Dancer to withdraw from the Union; by its prom- ise to give him additional working hours if he did so; and by its solicitation and sponsorship of the filing of the decertification petition by Dancer, Re- spondent Sewell-Allen Big Star, Inc., No. 2 violat- ed Section 8(a)(1) of the Act. 25. By the discharge of its part-time employees Bill Gross, Theresa Heist, and Becky Hordyk; and by its demotion of head meatcutter Johnnie Wor- rell to journeyman meatcutter in August 1982, Re- spondent Sewell-Allen Big Star, Inc., No. 2 violat- ed Section 8(a)(3) and (1) of the Act. 26. By its discharge of employee James Kim- brough, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(3) and (1) of the Act. 27. By their implementation of unilateral changes in the terms and conditions of employment of their employees following the withdrawal of recognition from Local 1529 by the unilateral granting of wage increases to their employees; by refusing 'to accept or process grievances filed by the Union; and by refusing to furnish information to the Union, Re- spondents Sewell's Big Star, Inc.; Sewell-Allen Big Star, Inc.; and Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) and (5) of the Act. 28. By their unlawful course of conduct initiated in the summer of 1982 and continuing thereafter, whereby Respondent Sewell-Allen Big Star, Inc. engaged in violations of Section 8(a)(1) and (5) of the Act and Respondent Sewell-Allen Big Star, Inc., No. 2 engaged in violations of Section 8(a)(1), (3), and (5) of the Act, each of the Respondents has engaged in an unlawful course of conduct in- consistent with its obligation to bargain with Local 1529 as the collective-bargaining representative of its employees, and has thereby committed a sepa- rate violation of Section 8(a)(5) and (1) of the Act. 29. By its interrogation of its employee William Mayfield in June 1982 concerning whether he was a member of the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 30. By its solicitation of its employee Mayfield in August 1982 to sign a petition to decertify the Union; by its promise to Mayfield of improvements in wages and benefits if the Union were decertified; by its threat of a harmful strike if a decertification petition was delayed; and by its threat that it would not sign another contract with the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 31. By its solicitation of its employee Roy Need- ham to sign a petition to decertify the Union; and by its threat of discharge issued to Needham if he engaged in a strike , Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 32. By its solicitation of employees Richard Floyd and Mary Jane Monasco to sign a petition to decertify the Union; by its promise of improved working conditions if the employees abandoned the Union; and by its statement that it would no longer honor the labor agreement with the Union, Re- spondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 33. By its solicitation of its employees Vickie Mason and Patricia Doty to sign the decertification petition; and by its statement to these employees that a new labor agreement would not be signed with the Union, Respondent Baker Bros., Inc. vio- lated Section 8(a)(1) of the Act. 34. By its solicitation of its employee Randy Inman to sign the decertification petition; and by its statement to Inman that it would be a nonunion company and that the Union was out, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 35. By its solicitation of its employee Robert Travis to sign a decertification petition; by indicat- ing that continued support for the Union would be futile as it would not negotiate with the Union; and by its implied promise of a wage increase if the em- ployees chose to decertify the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 36. By its interrogation of employee Mayfield on August 5, 1982, as to whether he had attended a union meeting; by its threat to Mayfield that if he voted for the Union, he would either lose his job or have his working hours reduced; and by its promise of job security if Mayfield voted to decer- tify the Union, Respondent Baker Bros., Inc. vio- lated Section 8(a)(1) of the Act. 37. By its interrogation of employee Mayfield concerning his union activities ; and its solicitation of Mayfield to bypass his bargaining representative and notify management of contacts by the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 38. By the statements of its president, Al Baker, to the employees of Baker Big Star No. 81 in August 1982, that the Company would run smooth- er as soon as he could get rid of the interruptions (the Union), Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. SEWELL-ALLEN BIG STAR 39. By its, solicitation of employees Monasco and Floyd to sign a second decertification petition, Re- spondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 40. By its sponsorship and circulation of two pe- titions to decertify the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 41. By its implementation of unilateral changes in the terms and conditions of employment of its em- ployees following the withdrawal of recognition from Local 1529 by the unilateral granting of wage increases; by refusing to accept or process griev- ances filed by the Union; by deducting union dues from its employees and failing to remit them to the Union; and by refusing information to the Union, Respondent Baker Bros., Inc. violated Section 8(a)(5) and (1) of the Act. 42. By its unlawful course of conduct in its at- tempt to rid itself of the Union, which was incon- sistent with its obligation to bargain with the Union, Respondent Baker Bros., Inc. violated Sec- tion 8(a)(5) and (1) of the Act. 43. By its implementation of unilateral changes in the terms and conditions of employment of its em- ployees following its withdrawal of recognition from the Union by the granting of wage increases and by refusing to furnish information to the Union, Respondent Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142 violated Section 8(a)(5) and (1) of the Act. 44. By its implementation of unilateral changes in the terms and conditions of employment of its em- ployees following the withdrawal of recognition from the Union by the granting of wage increases; by its refusal to furnish information to the Union; and by its refusal to process grievances, Respond- ent SMF Management, Inc. violated Section 8(a)(5) and (1) of the Act. 45. The above unfair labor practices have an effect on commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondents have en- gaged in certain unfair labor practices, we shall order them to cease and desist and take certain af- firmative action designed to effectuate the policies of the Act, In accordance with our findings that the Re- spondents unlawfully withdrew recognition from Local 1529 following the expiration of their collec- tive-bargaining agreements with Local 452, we shall order the Respondents to rescind their with- drawal of recognition, and make any and all pay- ments that have otherwise been due under the terms of their expired labor agreements, including 319 the payments of union dues to the Union that were unlawfully withheld by certain Respondents. The Board does not require that employees suffer the loss of increases in wages and improvements in benefits which, as here, employers have unlawfully, unilaterally implemented. Accordingly, we shall not require that the increases in wages and im- provements or increases in benefits or implementa- tion of new benefits by the Respondents after their withdrawal of recognition be rescinded. Kendall College, 228 NLRB 1083 (1977), enfd. 570 F.2d 216 (7th Cir. 1978); Dura-Vent Corp., 257 NLRB 430 (1981); and Pace Oldsmobile, 256 NLRB 1001 (1981), enfd. in relevant part 681 F.2d 99 (2d Cir. 1982). All other terms and conditions of the Re- spondents' bargaining agreements that expired on October 30, 1982, shall be reinstated to the status quo ante until the Respondents fulfill their obliga- tions by bargaining, on request, with the Union as the collective-bargaining representative of their em- ployees in the appropriate units, and either reach and execute written agreements with the Union or until valid impasses occur. We shall order that the Respondents furnish the information requested by the Union necessary for it to bargain, on request by the Union, within a reasonable period after the re- quest. We further order that Respondent Sewell-Allen Big Star, Inc., No. 2 rescind the discharge of em- ployees Bill Gross, Theresa Heist, Becky Hordyk, and James Kimbrough and the demotion of em- ployee Johnnie Worrell, and that the Respondent remove from its personnel records all references thereto and make the above-named employees whole with respect to any loss of seniority, earn- ings, and benefits that they may have incurred but for the Respondent's unlawful actions against them. All backpay for loss of earnings and benefits suf- fered by any employees of the Respondents by reason of the Respondents' withdrawal of recogni- tion from the Union and refusal to bargain with the Union, and losses by the Union and/or employees by reason of the Respondents' refusal to remit union dues, as found above, shall be computed in accordance with Ogle Protection Service, 183 NLRB 682, 683 (1970). Backpay for any loss of earnings and benefits suffered by employees Gross, Heist, Hordyk, Kimbrough, and Worrell by reason of the discrimination practiced against them by Respond- ent Sewell-Allen Big Star, Inc., No. 2 shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). Interest in all instances shall be 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD computed in the manner prescribed in New Hori- zons for the Retarded.' 3 ORDER The National Labor Relations Board orders that the Respondents, Sewell's Big Star, Inc.; Sewell- Allen Big Star, Inc.; Sewell-Allen Big Star, Inc., No. 2; Baker Bros., Inc., d/b/a Baker's Big Star Stores Nos. 31, 61, 64, and 81; SMF Management, Inc., d/b/a SMF Food Rite Supermarkets; and Gil- bert Allen Big Star, Inc., d/b/a Big Star No. 142, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from and refusing to bargain in good faith with United Food and Commercial Workers International Union, AFL- CIO, Local No. 1529. (b) Failing and refusing to abide by the terms of their expired labor agreements with the Union, until such time as agreements are reached with the Union or impasse is reached. (c) Failing and refusing to meet and bargain in good faith with the Union. (d) Instituting changes in the terms of the collec- tive-bargaining agreement that expired on October 30, 1982, or in any other terms and conditions of employment of the employees without bargaining with the Union. (e) Failing and refusing to furnish the Union with relevant information necessary for it to bar- gain on behalf of its members. (f) Unilaterally granting employees wage in- creases. (g) Respondent SMF Management, Inc. shall fur- ther cease and desist from refusing to process grievances. (h) Respondent Baker Bros., Inc. shall further cease and desist from interrogating its employees concerning their union sympathies; soliciting the withdrawal of its employees from the Union; prom- ising increases in wages and benefits, increased job security, and improvements in their terms and con- ditions of employment if the employees withdraw from the Union; threatening its employees with the futility of continued support of the Union; threaten- ing its employees with loss of jobs, discharge, or adverse changes in their terms and conditions of employment if they continued to support the Union; sponsoring the circulation of petitions among its employees to decertify the Union as their collective-bargaining representative; directing 'a 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) their employees to bypass their collective-bargain- ing representatives and bring contacts by the Union directly to the attention of management; failing to remit dues to the Union under the terms of the ex- pired labor agreement; refusing to process griev- ances; and engaging in a course of conduct incon- sistent with its obligations under the Act to bargain in good faith with the Union. (i) Respondents Sewell-Allen Big Star, Inc., No. 189, and Sewell-Allen Big Star, Inc., No. 2, a single employer, shall further cease and desist from interrogating their employees concerning their union sympathies; soliciting their employees to withdraw from the Union or to sign a petition to decertify the Union; sponsoring the circulation of a petition to decertify the Union; promising their em- ployees increases in wages, benefits, working hours, and improvements in their terms and condi- tions of employment if they sign the decertification petition or abandon the Union as their collective- bargaining representative; telling the employees that the Union will strike; issuing threats of dis- charge, threats of store closure, and statements that it will not bargain with or sign a labor agreement with Union President Sheppard or with the Union; demoting or discharging their employees in order to further its unlawful sponsorship of the petition to decertify the Union and discharging or demoting employees because the employees oppose the Re- spondents' unlawful conduct or to otherwise fur- ther its attempts to rid itself of the Union; refusing to process grievances; and from engaging in a course of conduct inconsistent with its obligations under the Act to bargain in good faith with the Union. (j) Respondent Sewell's Big Star, Inc., No. 187, shall further cease and desist from refusing to accept or process grievances filed by the Union. (k) The Respondents shall not in any like or re- lated manner interfere with, restrain, or coerce their employees in the exercise of the rights guar- anteed them under Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and, on request, meet and bargain with United Food and Commercial Workers Inter- national Union, AFL-CIO, Local No. 1529 con- cerning the terms and conditions of employment of the employees in the appropriate units. (b) Furnish to the Union, on request, relevant in- formation in order to enable it to bargain on behalf of its unit employees. (c) Make the unit employees whole for any loss of wages or benefits, with interest, they may have incurred as a result of the withdrawal of recogni- tion from the Union and refusal to bargain by Re- SEWELL-ALLEN BIG STAR spondents and by reason of any unilateral changes instituted by Respondents in their terms and condi- tions of employment. (d) Reinstate the existing terms of their expired labor agreements until they have bargained in good faith with the Union and have reached new agreement(s) or valid impasse. Nothing here shall require the Respondents to rescind any increases or improvements in wages or benefits or new benefits previously granted. (e) Respondent Baker Bros., Inc. shall make whole the Union for all loss of dues, with interest, suffered by reason of the Respondent's failure or refusal to remit dues following its withdrawal of recognition from the Union and, thereafter, remit dues in accordance with the terms of its expired labor agreements. (f) Respondents Sewell's Big Star, Inc.; Sewell- Allen Big Star, Inc.; Sewell-Allen Big Star, Inc., No. 2; Baker Bros., Inc.; SMF Management, Inc.; and Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142, shall process grievances in accordance with the terms of their expired labor agreements. (g) Respondent Sewell-Allen, Inc., No. 2 shall offer Bill Gross, Theresa Heist, Becky Hordyk, James Kimbrough, and Johnnie Worrell immediate and full reinstatement to their former positions or, if those positions are no longer available, to sub- stantially equivalent positions without prejudice to their seniority and other rights and privileges pre- viously enjoyed, and make the employees whole for all loss of wages and benefits they incurred by reason of the Respondent's unlawful discrimination against them in the manner set forth in the remedy section of the decision and remove from its files all references to the discharges of Gross, Heist, Hordyk, and Kimbrough and to the demotion of Worrell. (h) All Respondents shall preserve and, on re- quest, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (i) Post at their facilities copies of the attached notices as designated for each Respondent marked "Appendices A through F."14 Copies of the no- tices, on forms provided by the Regional Director for Region 26, after being signed by the Respond- ents' authorized representative, shall be posted by 14 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 " 321 the Respondents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. . (j) Each Respondent shall notify the Regional Director in writing within 20 days from the date of this Order what steps each Respondent has taken to comply. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. The National Labor Relations Board has deter- mined that our withdrawal of recognition from and refusal to bargain with United Food and Commer- cial Workers International Union, AFL-CIO, Local No. 1529 was unlawful. WE WILL NOT withdraw recognition from the Union as the representative of our employees. WE WILL NOT fail or refuse to meet and bargain with the Union regarding terms and conditions of employment of our employees in the following ap- propriate bargaining unit. The appropriate bargain- ing unit is: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. WE WILL NOT fail or refuse to abide by the terms of our expired labor agreement with the Union, until such time as an agreement is reached with the Union or an impasse is reached. WE WILL NOT institute changes in the terms of the collective-bargaining agreement that expired on October 30, 1982, or in any other terms and condi- tions of employment of our employees without bar- gaining with the Union. 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT fail or refuse to furnish the Union with relevant information necessary for it to bar- gain on behalf of its members. WE WILL NOT unilaterally grant to our employ- ees increases in wages without duly notifying the Union and bargaining collectively in good faith concerning the proposed changes provided that nothing herein shall require us to rescind any in- creases in wages that we have previously granted. WE WILL NOT refuse to process grievances in ac- cordance with the terms of our expired labor agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, meet and bargain collectively with United Food and Com- mercial Workers, AFL-CIO, Local No. 1529 con- cerning the terms and conditions of employment of our employees in the unit described above. WE WILL, on request, furnish the Union with rel- evant information to enable it to bargain on behalf of our employees. WE WILL make whole, with interest, our em- ployees for any losses they may have sustained by the implementation of any unilateral changes by us from the terms of the expired labor agreement. WE WILL reinstate the terms of the expired labor agreement until we have negotiated in good faith with the Union and have either reached agreement or have reached an impasse in bargaining. Our employees have the right to join and sup- port United Food and Commercial Workers, AFL- CIO, Local No. 1529 as their collective-bargaining representative or to refrain from doing so. SEWELL'S BIG STAR , INC., D/B/A BIG STAR No. 187 APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. The National Labor Relations Board has deter- mined that our withdrawal of recognition from and refusal to bargain with United Food and Commer- cial Workers International Union, AFL-CIO, Local No. 1529 was unlawful. WE WILL NOT withdraw recognition from the Union as the representative of our employees. WE WILL NOT fail and refuse to meet and bar- gain with the Union regarding terms and condi- tions of employment of our employees in the fol- lowing appropriate bargaining unit. The appropri- ate bargaining unit is: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. WE WILL NOT fail or refuse to abide by the terms of our expired labor agreement with the Union, until such time as an agreement is reached with the Union or an impasse is reached. WE WILL NOT institute changes in the terms of the collective-bargaining agreement that expired on October 30, 1982, or in any other terms and condi- tions of employment of our employees without bar- gaining with the Union.' WE WILL NOT fail or refuse to furnish the Union with relevant information necessary for it to bar- gain on behalf of its members. WE WILL NOT unilaterally' grant to our employ- ees increases in wages without duly notifying the Union and bargaining collectively in good faith concerning the proposed changes provided that nothing herein shall require us to rescind any in- creases in wages that we have previously granted. WE WILL NOT refuse to process grievances in ac- cordance with the terms of our expired labor agreement. WE WILL NOT interrogate our employees con- cerning their union sympathies; sponsor the circula- tion of a petition among our employees to decertify the Union as their collective-bargaining representa- tive; or solicit our employees to circulate or sign a petition with promises of increases in wages or benefits or improved working conditions, or threats of reprisals, discharge, layoff, strikes, or store clo- sure or with the futility of continued representation by the Union or its representatives. WE WILL NOT engage in conduct inconsistent with our obligation to bargain with the Union as the collective-bargaining representative of our em- ployees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- SEWELL-ALLEN BIG STAR cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, meet and bargain collectively with United Food and Com- mercial Workers, AFL-CIO, Local No. 1529 con- cerning the terms and conditions of employment of our employees in the unit described above. WE WILL, on request , furnish the Union with rel- evant information to enable it to bargain on behalf of our employees. WE WILL make whole , with interest, our em- ployees for any losses they may have sustained by the implementation of any unilateral changes by us from the terms of the expired labor agreement. WE WILL reinstate the terms of the expired labor agreement until we have negotiated in good faith with the Union and have either reached agreement or have reached an impasse in bargaining. Our employees have the right to join and sup- port United Food and Commercial Workers, AFL- CIO, Local No. 1529 as their collective -bargaining representative or to refrain from doing so. SEWELL-ALLEN BIG STAR, INC., D/B/A BIG STAR No. 189 APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. The National Labor Relations Board has deter- mined that our withdrawal of recognition from and refusal to bargain with United Food and Commer- cial Workers International Union, AFL-CIO, Local No. 1529 was unlawful. WE WILL NOT withdraw recognition from the Union as the representative of our employees. WE WILL NOT fail and refuse to meet and bar- gain with the Union regarding terms and condi- tions of employment of our employees in the fol- 323 lowing appropriate bargaining unit . The appropri- ate bargaining unit is: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. WE WILL NOT fail or refuse to abide by the terms of our expired labor agreement with the Union, until such time as an agreement is reached with the Union or an impasse is reached. WE WILL NOT institute changes in the terms of the collective-bargaining agreement that expired on October 30, 1982, or in any other terms and condi- tions of employment of our employees without bar- gaining with the Union. WE WILL NOT fail or refuse to furnish the Union with relevant information necessary for it to bar- gain on behalf of its members. WE WILL NOT unilaterally grant to our employ- ees increases in wages without duly notifying the Union and bargaining collectively in good faith concerning the proposed changes provided that nothing herein shall require us to rescind any in- creases in wages that we have previously granted. WE WILL NOT refuse to process grievances in ac- cordance with the terms of our expired labor agreement. WE WILL NOT interrogate our employees con- cerning their union sympathies ; sponsor the circula- tion of a petition among our employees to decertify the Union as their collective-bargaining representa- tive; or solicit our employees to, circulate or sign a petition with promises of increases in wages or benefits or improved working conditions , or threats of reprisals, discharge, layoff, strikes, or store clo- sure or with the futility of continued representation by the Union or its representatives. WE WILL NOT discharge or demote our employ- ees in order to promote their support of a petition to decertify the Union or to encourage them to otherwise withdraw their support for the Union. WE WILL NOT engage in conduct inconsistent with our obligation to bargain with the Union as the collective-bargaining representative of our em- ployees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, meet and bargain collectively with United Food and Com- mercial Workers, AFL-CIO, Local No. 1529 con- cerning the terms and conditions of employment of our employees in the unit described above. WE WILL, on request, furnish the Union with rel- evant information to enable it to bargain on behalf of our employees. 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL make whole, with interest, our em- ployees for any losses they may have sustained by the implementation of any unilateral changes by us from the terms of the expired labor agreement. WE WILL reinstate employees Bill Gross, There- sa Heist, Becky Hordyk, James Kimbrough, and Johnnie Worrell to their former positions prior to our unlawful discrimination against them, or, if those positions are no longer available, to substan- tially equivalent positions, and WE WILL remove from their personnel records all references to the discharges of Gross, Heist, Hordyk, and Kim- brough, and the demotion of Worrell. WE WILL make employees Bill Gross, Theresa Heist, Becky Hordyk, James Kimbrough, and Johnnie Worrell, whole for the loss of wages and benefits, with interest, including any loss of seniori- ty they may have incurred as a result of our unlaw- ful discrimination against them. WE WILL reinstate the terms of the expired labor agreement until we have negotiated in good faith with the Union and have either reached agreement or have reached an impasse in bargaining. Our employees have the right to join and sup- port United Food and Commercial Workers, AFL- CIO, Local No. 1529 as their collective-bargaining representative or to refrain from doing so. SEWELL-ALLEN BIG STAR, INC., No. 2, D/B/A BIG STAR No. 103 APPENDIX D NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. The National Labor Relations Board has deter- mined that our withdrawal of recognition from and refusal to bargain with United Food and Commer- cial Workers International Union, AFL-CIO, Local No. 1529 was unlawful. WE WILL NOT withdraw recognition from the Union as the representative of our employees. WE WILL NOT fail and refuse to meet and bar- gain with the Union regarding terms and condi- tions of employment of our employees in the fol- lowing appropriate bargaining unit. The appropri- ate bargaining unit is: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. WE WILL NOT fail or refuse to abide by the terms of our expired labor agreement with the Union, until such time as an agreement is reached with the Union or an impasse is reached. WE WILL NOT institute changes in the terms of the collective-bargaining agreement that expired on October 30, 1982, or in any other terms and condi- tions of employment of our employees without bar- gaining with the Union. WE WILL NOT fail or refuse to furnish the Union with relevant information necessary for it to bar- gain on behalf of its members. WE WILL NOT unilaterally grant to our employ- ees increases in wages without duly notifying the Union and bargaining collectively in good faith concerning the proposed changes provided that nothing herein shall require us to rescind any in- creases in wages that we have previously granted. WE WILL NOT refuse to process grievances in ac- cordance with the terms of our expired labor agreement. WE WILL NOT fail or refuse to remit dues to the Union in accordance with the terms of our expired labor agreement. WE WILL NOT engage in interrogation of our em- ployees concerning their union sympathies, union membership, or attendance of union meetings; or sponsor or endorse the circulation of petitions to decertify the Union as the collective-bargaining representative of our employees; or solicit our em- ployees to sign the petitions; or promise increases in wages or benefits or better working conditions or greater job security to our employees if they de- certify or otherwise abandon their support for the Union; or issue threats of discharge, strikes, layoffs, less favorable working conditions, or hours if the employees continue to support the Union; or issue threats to our employees of the futility of their continued support for the Union because we will not sign a new labor agreement, or will not bargain with the Union or continue to abide by the terms of the expired labor agreement. WE WILL NOT encourage our employees to bypass the collective-bargaining representative and to bring contacts by the Union to the attention of our management. SEWELL-ALLEN BIG STAR WE WILL NOT engage in conduct inconsistent with our obligation to bargain with the Union as the collective-bargaining representative of our em- ployees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, meet and bargain collectively with United Food and Com- mercial Workers, AFL-CIO, Local No. 1529 con- cerning the terms and conditions of employment of our employees in the unit described above. WE WILL, on request, furnish the Union with rel- evant information to enable it to bargain on behalf of our employees. WE WILL make whole, with interest, our em- ployees for any losses they may have sustained by the implementation of any unilateral changes by us from the terms of the expired labor agreement. WE WILL make whole the Union for any loss of dues, with interest, it may have incurred as a result of our failure and refusal to remit dues to it pursu- ant to the terms of the expired labor agreement. WE WILL reinstate the terms of the expired labor agreement until we have negotiated in good faith with the Union and have either reached an agree- ment or have reached an impasse in bargaining. Our employees have the right to join and sup- port United Food and Commercial Workers, AFL- CIO, Local No. 1529 as their collective-bargaining representative or to refrain from doing so. BAKER BROS., INC., D/B/A BAKER'S BIG STAR STORES Nos. 31 , 61, 64, AND 81 APPENDIX E NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. 325 The National Labor Relations Board has deter- mined that our withdrawal of recognition from and refusal to bargain with United Food and Commer- cial Workers International Union, AFL-CIO, Local No. 1529 was unlawful. WE WILL NOT withdraw recognition from the Union as the representative of our employees. WE WILL NOT fail and refuse to meet and bar- gain with the Union regarding terms and condi- tions of employment of our employees in the fol- lowing appropriate bargaining unit . The appropri- ate bargaining unit is: All head meat cutters , journeymen meat cut- ters, apprentices and wrappers. WE WILL NOT fail or refuse to abide by the terms of our expired labor agreement with the Union, until such time as an agreement is reached with the Union or an impasse is reached. WE WILL NOT institute changes in the terms of the collective-bargaining agreement that expired on October 30, 1982, or in any other terms and condi- tions of employment of our employees without bar- gaining with the Union. WE WILL NOT fail or refuse to furnish the Union with relevant information necessary for it to bar- gain on behalf of its members. WE WILL NOT unilaterally grant to our employ- ees increases in wages without duly notifying the Union and bargaining collectively in good faith concerning the proposed changes provided that nothing herein shall require us to rescind any in- creases in wages that we have previously granted. WE WILL NOT refuse to process grievances in ac- cordance with the terms of our expired labor agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request , meet and bargain collectively with United Food and Com- mercial Workers, AFL-CIO, Local No. 1529 con- cerning the terms and conditions of employment of our employees in the unit described above. WE WILL, on request, furnish the Union with rel- evant information to enable it to bargain on behalf of our employees. WE WILL make whole, with interest, our em- ployees for any losses they may have sustained by the implementation of any unilateral changes by us from the terms of the expired labor agreement. WE WILL reinstate the terms of the expired labor agreement until we have negotiated in good faith with the Union and have either reached an agree- ment or have reached an impasse in bargaining. 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Our employees have the right to join and sup- port United Food and Commercial Workers, AFL- CIO, Local No. 1529 as their collective -bargaining representative or to refrain from doing so. SMF MANAGEMENT, INC., D/B/A SMF FOOD RITE SUPERMARKETS APPENDIX F NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. The National Labor Relations Board has deter- mined that our withdrawal of recognition from and refusal to bargain with United Food and Commer- cial Workers International Union AFL-CIO, Local No. 1529 was unlawful. WE WILL NOT withdraw recognition from the Union as the representative of our employees. WE WILL NOT fail and refuse to meet and bar- gain with the Union regarding terms and condi- tions of employment of our employees in the fol- lowing appropriate bargaining unit. The appropri- ate bargaining unit is: All head meat cutters, journeymen meat cut- ters, apprentices and wrapper-clerks. WE WILL NOT fail or refuse to abide by the terms of our expired labor agreement with the Union, until such time as an agreement is reached with the Union or an impasse is reached. WE WILL NOT institute changes in the terms of the collective-bargaining agreement that expired on October 30, 1982, or in any other terms and condi- tions of employment of our employees without bar- gaining with the Union. WE WILL NOT fail or refuse to furnish the Union with relevant information necessary for it to bar- gain on behalf of its members. WE WILL NOT unilaterally grant to our employ- ees increases in wages without duly notifying the Union and bargaining collectively in good faith concerning the proposed changes provided that nothing herein shall require us to rescind any in- creases in wages that we have previously granted. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, meet and bargain collectively with United Food and Com- mercial Workers, AFL-CIO, Local No. 1529 con- cerning the terms and conditions of employment of our employees in the unit described above. WE WILL, on request, furnish the Union with rel- evant information to enable it to bargain on behalf of our employees. WE WILL make whole, with interest, our em- ployees for any losses they may have sustained by the implementation of any unilateral changes by us from the terms of the expired labor agreement. WE WILL reinstate the terms of the expired labor agreement until we have negotiated in good faith with the Union and have either reached an agree- ment or have reached an impasse in bargaining. Our employees have the right to join and sup- port United Food and Commercial Workers, AFL- CIO, Local No. 1529 as their collective-bargaining representative or to refrain from doing so. GILBERT ALLEN BIG STAR, INC., D/B/A BIG STAR No. 142 W. Paul Tuberville, Esq. and Bruce E. Buchanan, Esq, for the General Counsel. Howard S. Linzy, Esq. and R. Pepper Crutcher, Esq. (Kull- man, Lange, Inman, & Bee), of New Orleans, Louisi- ana, for Respondents Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142; Sewell's Big Star, Inc., d/b/a Sewell's Big Star No. 187; SMF Management, Inc, d/b/a SMF Food Rite Supermarkets; Baker Bros., Inc. d/b/a Baker's Big Star Nos. 31, 61, 64, and 81, Sewell- Allen Big Star, Inc., d/b/a Sewell-Allen Big Star No. 189; and Sewell-Allen Big Star, Inc. No. 2 d/b/a Sewell-Allen's Big Star No 103. Ernest R. Malone, Jr., Esq. and Cornelius Heusel, Esq. (Kullman, Lange, Inman & Bee), of New Orleans, Lou- isiana, for Respondents Pic-Pac Foods, Inc., a subsidi- ary of Malone & Hyde, Inc., and Giant Foods Inc., a subsidiary of Malone & Hyde, Inc. Lynn A. Agee, Esq. and Deborah Godwin, Esq. (Gerber, Gerber, & Agee), of Memphis, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 14 separate days be- SEWELL-ALLEN BIG STAR 327 tween January 17 and April 11, 1983, at Memphis, Ten- nessee, pursuant to a consolidated complaint issued by the Regional Director for Region 26 of the National Labor Relations Board (the Board) on December 10, 1982,1 and is based on charges filed by Local 1529, United Food and Commercial Workers Union (Local 1529, the Union, or the Charging Party). The central issue involves allegations of violations of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act), against each of the Respondents for their alleged with- drawal of recognition from and refusal to bargain with Local 1529 as the collective-bargaining representative of their employees following a merger between Local 1529 and Local 452 (Local 452) of the United Food and Com- mercial Workers International Union wherein Local 1529 was the surviving union. Additionally, violations of Sec- tion 8(a)(5) and (1) of the Act related to this issue are alleged against the Respondents and independent viola- tions of Section 8(a)(1), (3), and (5) of the Act are al- leged against certain, but not all, of the Respondents. The complaint in Case 26-CA-9834 was filed on Sep- tember 30, 1982, and is based on a second amended charge filed by Local 1529 on September 28, 1982, and, as amended at the hearing, alleges that Sewell-Allen Big Star, Inc. (Sewell-Allen) and Sewell-Allen Big Star, Inc, No. 2 (Sewell-Allen No. 2) committed violations of Sec- tion 8(a)(1), (3), and (5) of the Act. The complaint in Case 26-CA-9834 is joined by the answer of Respond- ents Sewell-Allen and Sewell-Allen No. 2 filed on Octo- ber 2, 1982, wherein they deny the commission of any violations of the Act. The complaint in Case 26-CA- 9841 was filed on September 30, 1982, by the Regional Director for Region 26 of the National Labor Relations Board, and is based on a first amended charge filed by Local 1529 on September 22, 1982, and as amended at the hearing, alleges that Respondent Baker Bros., Inc. (Bakers) committed violations of Section 8(a)(1) and (5) of the Act. The complaint in Case 26-CA-9841 is joined by the answer of Respondent, Bakers, filed on October 12, 1982, wherein it denies the commission of any viola- tions of the Act The complaint in Case 26-CA-98962 was filed on November 10, 1982, by the Regional Direc- tor for Region 26 of the National Labor Relations Board, and is based on a first amended charge filed by Local 1529 on November 3, 1982, and, as amended at the hear- ing, alleges that Respondents Gilbert Allen Big Star, Inc. (Gilbert Allen Big Star), Sewell-Allen, Sewell-Allen No. 2, Sewell's Big Star, Inc. (Sewell's Big Star), and Bakers, committed violations of Section 8(a)(1) and (5) of the Act. By his order of November 10, 1982, the Regional Director for Region 26 consolidated Cases 26-CA-9834, 26-CA-9841, 26-CA-9877, and 26-CA-9896 and set a hearing date of January 17, 1983. The complaint in Case 26-CA-9896 is joined by the answer of Respondents Gil- ' The vast majority of the events that will be related in this decision took place in 1982 Therefore, all dates and events refer to those occur- ring in 1982 unless otherwise specified 2 A complaint filed against an additional Respondent, Wadell Bramlett and Lois Tackett d/b/a Bramlett Tackett Big Star, No 30, in this case and in Case 26-CA-9877 was withdrawn and these cases were severed from this proceeding by the order of the Regional Director for Region 26 which order was issued on January 12, 1983 bert' Allen Big Star, Sewell-Allen, Sewell-Allen No. 2, Sewell's Big Star, and Bakers wherein the Respondents deny the commission of violations of the Act. An order consolidating cases and a consolidated complaint was issued in Cases 26-CA-9937-1 and 26-CA-9963-1 against Respondent Pic-Pac Foods, Inc (Pic-Pac), a sub- sidiary of Malone & Hyde, Inc. (Malone & Hyde), and in Cases 26-CA-9937-2 and 26-CA-9963-2 against Re- spondent Giant Foods, Inc. (Giant), a subsidiary of Malone & Hyde, Inc., on November 24, 1982, by the Re- gional Director for Region 26 These complaints are based on charges filed by Local 1529 on November 9, 1982. The consolidated complaints in Cases 26-CA- 9937-1 and -2, and 26-CA-9963-1 and -2 as amended at the hearing, allege the commission of violations of Sec- tion 8(a)(1) and (5) of the Act by Respondents Pic-Pac and Giant. By his order of November 26, 1982, the Acting Regional Director for Region 26 consolidated Cases 26-CA-9841, 26-CA-9877,3 26-CA-9896, 26-CA- 9937-1, 26-CA-9963-1, 26-CA-9937-2, and 26-CA- 9963-2, and set a hearing date of January 13, 1983 The complaints in Cases 26-CA-9937-1 and -2, and Cases 26-CA-9963-1 and -2 are joined by the answers of Re- spondents Pic-Pac and Giant filed on December 7, 1982, wherein they deny the commission of violations of the Act. The complaint in Case 26-CA-9989 was filed on December 9, 1982, by the Regional Director for Region 26 and is based on a first amended charge filed by Local 1529 on December 9, 1982, and alleges that Respondent SMF Management, Inc. (SMF) has violated Section 8(a)(1) and (5) of the Act. The complaint in Case 26- CA-9989 is joined by the answer of Respondent SMF filed on December 20, 1982, wherein it denies the com- mission of violations of the Act. By his order of Decem- ber 10, 1982, the Regional Director for Region 26 con- solidated Case 26-CA-9989 with Cases 26-CA-9834, 26- CA-9841, 26-CA-9877, 26-CA-9896, 26-CA-9937-1 and -2, and 26-CA-9963-1 and -2, and set a hearing date of January 17, 1983. A motion to strike portions of Respondents' answer was filed by the General Counsel in Cases 26-CA-9937-1 and -2, and 26-CA-9963-1 and -2 on January 5, 1983. On January 7, 1983, the Regional Director for Region 26 filed amendments to the com- plaint in Case 26-CA-9896 and the consolidated com- plaint in Cases 26-CA-9937-1 and -2 and 26-CA-9963-1 and -2 and the complaint in Case 26-CA-9834. On Janu- ary 6, 1983, Respondents Pic-Pac and Giant filed a joint motion to sever the proceedings pursuant to Sections 102.24 and 102.33 of the Board's Rules and Regulations. On January 14, 1983, Respondents Pic-Pac and Giant filed a motion to strike the amendment to the consolidat- ed complaint issued by the Regional Director on January 7, 1983. On January 18, 1983, the General Counsel filed a motion to amend consolidated complaint in Cases 26- CA-9937-1 and -2 and 26-CA-9963-1 and -2. At the commencement of the hearing, all Respondents filed and argued motions to sever the cases of each from the pro- ceedings. These motions were denied by me on the basis that all the cases had a common issue of fact and law 3 See fn 2, supra 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD arising from Respondents' alleged withdrawal of recogni- tion from and refusal to bargain with Local 1529 follow- ing a merger between Local 452 and Local 1529. A spe- cial appeal was taken from this ruling to the Board and was denied by the Board's Order of January 26, 1983 Respondents have re-urged their motions to sever pro- ceedings. The motions are again denied. On the entire record in this proceeding, including my observation of the witnesses that testified here, and after due consideration of the positions of the parties and briefs filed by the General Counsel, counsel for Charging Party, and counsel for Respondents, I make the follow- ing FINDINGS OF FACT AND ANALYSIS4 I THE BUSINESS AND STATUS OF RESPONDENTS The complaints allege that each of the Respondents was an employer within the meaning of Section 2(6) and (7) of the Act. This was admitted by the Respondents in their answers. Moreover, the uncontroverted testimony of the owners and officers of each of the Respondents es- tablished that each of the Respondents, in the course and conduct of its business operations for the year preceding the filing of the complaints and at all times material, op- erated retail grocery stores, which annually derived gross revenues in excess of $500,000, and that each of the Respondents annually purchased and received goods and products at its respective facilities which were in excess of $10,000 from points located outside the State in which their facilities are located. Each of the • Respondents, with the exception of Re- spondent Gilbert Allen Big Star, is a corporation with offices and places of business in Memphis, Tennessee. Al- though in its answer to the complaint, Gilbert Allen Big Star admitted an allegation that it was a proprietorship, I find on the basis of the unrebutted testimony at the hear- ing of Gilbert Allen that it is a corporation of which he is president and sole owner and that it has an office and place of business in Olive Branch, Mississippi. Respondent Sewell's Big Star, Inc., d/b/a Store No. 187 contends that it has never been named a party to any case in this proceeding and moved, at the hearing and in its brief, to strike the allegations in Case 26-CA-9834 and testimony in support thereof. A review of the Gen- eral Counsel's exhibits discloses that on August 20, 1982, the initial charge in Case 26-CA-9834 was filed against Sewell-Allen Stores at 3650 Hickory Hill Road (Big Star No. 189), Memphis, Tennessee 38138, and that a copy of the charge was mailed by certified mail to that address. On September 1, 1982, a first amended charge was filed against Sewell-Allen Stores at 3650 Hickory Hill Road, and 6200 Stage Road in Memphis, Tennessee, and a copy of that charge was mailed to 3650 Hickory Hill Road and to 6200 Stage Road (Big Star No. 103) in Memphis, Tennessee, by certified mail. On September 24, 1982, a second amended charge was filed against Sewell-Allen Stores at the Hickory Hill and Stage Road addresses, and copies of that charge were mailed to both addresses by certified mail. The initial complaint in Case 26-CA- 4 The following includes a composite of the testimony of the witnesses 9834 was,filed on September 30, 1982, against Sewell- Allen Big Star, Inc. and referred to the original, first amended, and second amended charges in this case and asserted that Respondent was a corporation with two places of business at Stage and Hickory Roads in Mem- phis, Tennessee. Sewell-Allen Big Star, Inc., No. 189 d/b/a 3650 Hickory Road and Sewell-Allen Big Star, Inc., No. 2 d/b/a 6200 Stage Road filed a joint answer to the complaint on October 12, 1982. On September 27, 1982, an initial charge was filed in Case 26-CA-9896 al- leging a refusal to bargain with Local 1529 against a number of Employers, including the two above-named Employers, and "Mr. Lex Sewell Big Star No. 187 at 4400 Summer Avenue, Memphis, Tennessee 38172," who was served by registered mail. As developed at the hear- ing, the correct title of this Employer is Sewell's Big Star, Inc., d/b/a Store No. 187. A first amended charge was filed in Case 26-CA-9896 on November 3, 1982, against Sewell-Allen Big Star, Inc., Store Nos. 103, 187, and 189 at 6200 Stage Road. Thereafter, a consolidated complaint was issued against Sewell-Allen Big Star, Inc., Store Nos. 103, 187, and 189 in Case 26-CA-9896 and others on November 10, 1982. An answer was filed on behalf of Sewell-Allen Big Star, Inc., Store Nos. 103, 187, and 189 as a named Respondent in Case 26-CA- 9896, and the other named Respondents on December 20, 1982, which denied that Sewell-Allen was a partner- ship as originally alleged in the complaint but made no specific reference to Store No. 187. I find that under the circumstances, Respondent Sewell's Big Star, Inc., d/b/a Sewell's Big Star No. 187 has been charged and is properly a party in Case 26- CA-9896 only. It is clear from the foregoing that this Respondent was initially served with a charge at its cor- rect address in the case, and that it has had actual notice of the charge filed against it, and has answered, partici- pated in, and defended this action throughout. A misno- mer of a respondent in a charge or complaint is not suffi- cient ground to quash the complaint where respondent has actual notice of the charge and complaint and files an answer thereto and participates in the hearing as I find Respondent Sewell's Big Star, Inc., d/b/a Big Star No. 187 did in this proceeding. Peterson Construction Co., 106 NLRB 850 (1953); NLRB v. Process & Pollution Con- trol Co., 588 F.2d 786 fn. 1 at 788 and 789 (10th Cir. 1978). I, however, grant the motion of Respondent Sewell's Big Star, Inc., d/b/a Sewell's Big Star No. 187 to strike any allegations and supporting testimony- with respect to it insofar as they arise from the complaint in Case 26-CA-9834 to which I find Respondent Sewell's Big Star, Inc. has never been made a party. I also find that the evidence presented by the General Counsel is insufficient to show that Sewell's Big Star is a single employer with Sewell-Allen or is the alter ego of either Sewell-Allen or Sewell-Allen No. 2. I find, how- ever, that Respondent Sewell's Big Star, Inc. operates a retail grocery store in Memphis, Tennessee, known as Big Star Store No. 187, and that Lex Sewell is sole owner of the corporation and an officer therein. Respondent Sewell-Allen Big Star, Inc. owns and op- erates Big Star Store No. 189. This corporation is owned SEWELL-ALLEN BIG STAR by Lex Sewell and R. Dan Allen, each of whom has a 50-percent interest therein. Allen is the president and Sewell is the secretary-treasurer of the corporation. Respondent Sewell-Allen Big Star, Inc. No. 2 is a sep- arate corporation and owns and operates Big Star No. 103. This corporation is also owned by Lex Sewell and R. Dan Allen, each of whom has a 50-percent interest therein. Allen is also the president and Sewell is also the secretary-treasurer of this corporation. Baker Brothers, Inc. is a corporation owned by Alvin Baker and his three brothers Alvin Baker, who is the president of the corporation, and his three brothers and his son Mike Baker all sit on the board of directors of the corporation. The corporation owns and operates Baker's Big Star Stores Nos. 31, 61, 64, and 81. Respondent SMF Management, Inc., d/b/a SMF Food Rite Supermarkets is a corporation that operates five retail grocery stores in and around Memphis and Collier- ville, Tennessee, and a sixth store in Hernando, Mississip- pi. Glen Smithart is the president and one of three owners of this corporation. The other two owners of this Respondent are Kenneth Miller and Thomas Faulk. Respondents Pic-Pac, Inc. and Giant Foods, Inc. are each subsidiaries of Malone & Hyde, Inc., and are retail grocery chains operating stores under these names. Malone & Hyde, Inc. is a wholesale grocery distributor. Accordingly, I find that Respondents Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142; Sewell's Big Star, Inc. d/b/a Sewell's Big Star No. 187; SMF Management, Inc., d/b/a SMF Food Rite Supermarkets; Baker Bros., Inc., d/b/a Baker's Big Star Stores Nos. 31, 61, 64, and 81; Sewell-Allen Big Star, Inc. d/b/a Sewell-Allen's Big Star No. 189; Sewell-Allen Big Star, Inc. No. 2 d/b/a Sewell-Allen's Big Star No. 103; Pic-Pac Foods, Inc., a subsidiary of Malone & Hyde, Inc.; and Giant Foods, Inc., a subsidiary of Malone & Hyde, Inc. are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. STATUS OF THE LABOR ORGANIZATION I find on the basis of the unrebutted testimony of Leon Sheppard, president of United Food and Commercial Workers, Local 1529; Michael A. Mancini, secretary- treasurer of Local 1529; and Eugene Burris, director of operations of Local 1529, that the Union is engaged in the representation of and bargaining on behalf of em- ployees with employers concerning wages and other terms and conditions of employment and is a labor orga- nization within the meaning of Section 2(5) of the Act, as alleged in the complaints. ' III. THE APPROPRIATE UNITS The labor agreements executed between Respondents and Local 452, United Food and Commercial Workers covering the meat department employees of each of the Respondents contain the following unit description: The Employer recognizes the Union as the sole and exclusive collective bargaining agent for the follow- ing classifications in its stores operated in Memphis, Tennessee, and vicinity, namely: head meat cutters, 329 journeymen meat cutters, apprentices and wrapper- clerks. (Wrappers-Giant, Pic-Pac, and SMF) (G.C. Exhs 7, 8, 56, 56, 58, 59, 60, and 62(b).) I find the above unit description(s) constitute the appropriate unit(s) covering the meat department employees for each of the Respondents. The labor agreements executed between Respondents Giant and Pic-Pac covering their grocery and produce department employees contain the following unit de- scription. The Employer recognizes the Union as the sole and exclusive collective bargaining agent of its employ- ees, except meat market and professional employees. (G.C. Exhs. 61, 62(a).) I find the above unit description to constitute the appropriate units covering the grocery and produce department employees of Respondents Giant and Pic-Pac. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1979, the Amalgamated Meat Cutters and Butcher Workmen of North America merged with the Retail Clerks International Union to form the United Food and Commercial Workers Union (UFCW). As a consequence of that merger, Meat Cutters District Union 452 (Local 452) and Retail Clerks Local 1529 (Local 1529) became United Food and Commercial Workers Local 452 and United Food and Commercial Workers Local 1529, re- spectively. In January 1982, executive officers of Local 452 and Local 1529 met with UFCW's representative, Robert E. Burris, following the initiation of discussions of a merger between the two local unions by Burris in the fall of 1981 on behalf of the International UFCW. At the January 1982 meeting, an agreement was reached to merge Locals 452 and 1529 with Local 1529 to emerge as the surviving union The merger of Local 452 with Local 1529 was approved by the executive board of Local 452 on January 7, 1982. The executive board of Local 1529 had previously authorized Local 1529 Presi- dent and Chief Executive Leon Sheppard to consummate the merger in the fall of 1981 Letters dated January 14, 1982, were sent by Local 452 to its members notifying them of the proposed merger and of voting to take place at a series of meetings to be held in February 1983. Local 452 represented separate bargaining units of meat- cutters at the stores of Respondents and at various other locations and also bargaining units of produce and gro- cery employees at Respondents Pic-Pac and Giant. The meetings numbered 10 in total. Attendance and voting was restricted to bargaining unit employees who were members of Local 452. Nonmembers of Local 452 were not notified by Local 452 of the proposed merger and the meetings wherein the merger was to be submit- ted to a vote. On at least one occasion according to the unrebutted testimony of Michael A. Mancini, the presi- dent of Local 452 who chaired the meetings, non- members were asked to leave a meeting . The meetings and voting were generally but not uniformly scheduled 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by individual bargaining units or by a group of several bargaining units in the case of the smaller bargaining units. The format of the meetings was virtually identical according to the unrebutted testimony of Mancini and Burris each of whom attended all the meetings, and as corroborated in part by Local 452's business manager, John Lambert, Local 1529' s president, Leon Sheppard, and Local 1529's business agent, David Jennings, each of whom attended some, but not all, of the meetings. Man- cini opened the meeting and referred to the letter of Jan- uary 14, 1982, and the proposal to merge the two local unions. He then introduced Burris who read through the merger proposal and informed the members that the merger documents and agreements would be made avail- able for their reference. Burris offered to and did answer questions of the members in attendance concerning the merger. At the initial meeting, no questions were asked. On at least one occasion, Sheppard also answered ques- tions directed to him concerning the merger. Following a discussion of the merger, two members were selected to count the votes and a vote was taken by a showing of hands. At all but the initial meeting which included only a small group of employees who were known to Man- cini, an attendance sheet was kept. The final tally of votes of the members in attendance at the conclusion of the voting of the series of 10 meetings was 432 votes in favor of the merger, 72 votes against the merger, and 28 abstentions Following the vote and on application of Local 1529, the UFCW approved the merger on April 1, 1982, and it became effective on that date. The officers of the two local unions commenced to carry out the merger agreement terms, including the transfer of the assets of Local 452 to Local 1529, the surviving union On April 7, 1982, letters were sent to the Respondents and other employers notifying them of the merger of Locals 452 and 1529, and that Local 1529 was the new collective-bargaining representative of the employees in the bargaining units formerly represented by Local 452. These letters were sent by Mancini on behalf of Local 1529, and stated. This letter is to formally advise you that United Food & Commercial Workers Local No. 452 and United Food & Commercial Workers Local No. 1529 with the approval of the membership, have ef- fected a merger pursuant to the provisions of the Constitution of the United Food and Commercial Workers International Union. The merged Local Unions, in accordance with the charter issued on April 1, 1982, will operate under the name of United Food & Commercial Workers, Local 1529 (chartered by the United Food and Commercial Workers International Union). This letter may be attached to the collective bargaining agreement, so that the change is properly reflected. [Emphasis added.] The merger in no way affects the autonomy of the Local Union and, in any event, is purely an in- ternal matter having no effect on the relationship between Local No. 452 and (name of store). Local Union No. 1529 will continue to administer the contract and in all respects continue as the col- lective bargaining representative of the employees covered by the contract. All Respondents thereafter dealt with Local 1529 as the representative of their employees during the term of their various collective-bargaining agreements each of which had been executed with Local 452 and each of which was due to expire by its terms on October 31, 1982. Grievances were processed, and dues were deduct- ed and remitted to Local 1529 by those Respondents whose contracts contained dues-deduction clauses. Cer- tain of the Respondents (Sewell's Big Star, Sewell-Allen, Sewell-Allen, No. 2, and Bakers) met in bargaining ses- sions with Local 1529 concerning increases in insurance contributions then scheduled to be made by Respondents in June 1982. Health and welfare and pension fund pay- ments were also made by Respondents whose employees were covered thereby in accordance with their labor agreements. Respondent Bakers is alleged to have engaged in un- lawful interrogation and threats, to have promised bene- fits and unlawfully solicited its employees in Stores Nos. 31, 61, 64, and 81 in order to encourage them to abandon their support of Local 1529; to have unlawfully support- ed and encouraged the circulation of two decertification petitions among its employees; and to have unlawfully caused the removal of UFCW handbillers from areas ad- jacent to the outside of its Store No 61. Respondents Sewell-Allen and Sewell-Allen No. 2 are alleged to have engaged in unlawful interrogation , threats, and promise of benefits; to have unlawfully solicited their employees to abandon the Union; to have unlawfully caused the cir- culation of a decertification petition at their store(s) in order to cause their employees to abandon the Union (Local 1529); to have demoted an employee and dis- charged three part-time employees in the summer of 1982; and to have unlawfully discharged a full-time em- ployee in January 1983, in order to discourage support for Local 1529 among its employees. On July 30, 1982, Local 1529 President Leon Shep- pard requested by letter sent to each of the Respondents to commence bargaining for a new labor agreement to replace the existing labor agreement that was to expire by its terms on October 31, 1982, and in that letter Shep- pard also requested information to prepare for bargain- ing. Some of the Respondents commenced to gather that information and at least one (Respondent's representative John Paul Jones), the personnel manager of Malone & Hyde who is responsible for personnel and labor rela- tions policies of its subsidiaries Pic-Pac and Giant, infor- mally showed Local 1529 representatives portions of the requested information that he was in the process of gath- ering in response to Sheppard's request On July 23, 1982, the Board issued its decision in Amoco Production Co., 262 NLRB 1240 (1982), wherein it held that an af- filiation vote between two locals of different Internation- al unions was invalid because nonmembers of the bar- gaining unit had not been allowed to vote. In November 1982, a meeting was called by Howard Linzy, Esquire, who represented and provided legal counsel on matters of labor relations to a number of individual store owners that did business under the names of Big Star and Food SEWELL-ALLEN BIG STAR Rite markets and that purchased goods and services from Malone & Hyde pursuant to arrangements with Malone & Hyde to do business under the trade names "Big Star" or "Food Rite," in which Malone & Hyde claims an in- terest and to purchase certain of the goods and services made available to them by Malone & Hyde. These indi- vidual store owners are referred to as "independents" as distinguished from Pic-Pac and Giant, each of which is a subsidiary of Malone & Hyde. Linzy and the law firm of Kullman, Lang, Inman, & Bee of which he is a member represented these independents pursuant to an agreement wherein they paid funds into a common escrow fund maintained by Malone & Hyde from which the law firm was paid for its legal services. Linzy and the law firm of Kullman, Lang, Inman, & Bee also represent and provide legal services to Malone & Hyde and its subsidiaries, Giant and Pic-Pac The meeting was attended by other independents in addition to the Respondents here. No of- ficers or in-house representative of Malone & Hyde or of its subsidiaries Pic-Pac and Giant attended the meeting At this meeting, Linzy advised those in attendance that the merger of Locals 452 and 1529 might be illegal in light of the Amoco case because nonmembers of the bar- gaining unit had not been permitted to vote. In the fall of 1982, certain of the Respondents attended initial bargaining sessions with Local 1529. On October 7, 1982, Gilbert Allen attended a bargaining session on behalf of Gilbert Allen Big Star along with other inde- pendents who are not a party to the proceeding, at which representatives of Local 1529 submitted a contract proposal to amend the existing labor agreement . Initial negotiation meetings were also held between Respondent Pic-Pac and Local 1529 on October 8 and 21, 1982, and between Giant and Local 1529 on October 7, 1982. Ne- gotiations were also held on October 13, 1982, between Local 1529 and Sewell's Big Star, Inc, Sewell-Allen, and Sewell-Allen No. 2. On November 8, 1982, following the expiration of their labor agreement with Local 452, Re- spondents Sewell's Big Star, Inc., Sewell-Allen Inc., Sewell-Allen No. 2, Gilbert Allen Big Star, Bakers, and SMF, notified Local 1529 by identical letters drafted by their legal counsel, Howard Linzy, which letters stated that they no longer recognized Local 1529 as the bar- gaining representative of their employees on the ground that the merger between Local 452 and Local 1529 was invalid because bargaining unit employees who were not members had not been permitted to vote in the merger election. Respondents Pic-Pac and Giant also advised Local 1529 by their letters of December 2, 1982, that they no longer recognized Local 1529 as the bargaining representative of their employees as the merger of Local 452 and Local 1529 was invalid because substantial num- bers of bargaining unit employees had neither received notice of nor been permitted to vote on the merger issue. Respondents deny the commission of any unfair labor practices and assert that numerous defects in the merger process provided justification for their withdrawals of recognition and refusals to bargain with Local 1529 as the bargaining representative of their employees. 331 B. The Merger Issue As set out above, Local 1529 and Local 452 entered into a merger agreement that was to become effective April 1, 1982, following a vote by the membership of Local 452 at a series of meetings conducted in February 1982 and approval by the executive boards of both local unions and approval by the International union (UFCW) The parties commenced to carry out the terms of the merger by the transfer of assets from Local 452 to Local 1529, the surviving union shortly thereafter. Under the terms of the merger agreements, individual store bargain- ing units remained intact for bargaining purposes as in the past. Local 452's president, Michael Mancini, was ap- pointed as secretary-treasurer of Local 1529. Local 452's business manager and chief executive officer, John Lam- bert, was retained as a paid consultant by Local 1529 with no specific duties provided therefor pending his re- tirement. He was also furnished an automobile pursuant to the earlier approval by the executive board of Local 452 Both Mancini and another member of the executive board of Local 452 were appointed to the executive board of Local 1529. In addition, another business repre- sentative of Local 452 and the office secretary of Local 452 were retained by Local 1529. Mancini was furnished an office at Local 1529's facilities. The offices of Local 452 were retained by Local 1529 and were used by Lam- bert and by Robert Burris and other Local 1529 business representatives as well as membership meetings for indi- vidual store units that had previously been represented by Local 452. Although there were some differences in the new structures of the two locals, dues of the mem- bers of Local 452 were not immediately changed. Mem- bers of Local 452 became members of Local 1529 with full rights and privileges thereunder and without the re- quirement to apply or to be admitted to membership or to pay initiation fees. Respondents have raised several challenges to the va- lidity of the merger, the principal one of which is that nonmembers of Local 452 were not permitted to vote concerning the merger issue. There were also some argu- ments raised by Respondents concerning the hearsay in- formation allegedly received by Gilbert Allen, president of Gilbert Allen Big Star, Inc., that some of his employ- ees who were members of Local 452 were not permitted to vote, and of similar hearsay information received by John Paul Jones, the personnel manager of Malone & Hyde, who has responsibility for personnel policies at its subsidiaries Pic-Pac and Giant to the effect that meetings ,were not scheduled so as to allow all the Pic-Pac and Giant employees to attend. Respondents, at the hearing and in their briefs, also contended that the membership was not permitted to vote by individual store units and were not fully informed of the terms of the merger (i.e., the terms of pay as consultant for John Lambert and the assignment of an automobile for his use), that the meet- ings were conducted under the watchful eyes of Local 1529 representatives, and that balloting was by a show- ing of hands rather than by secret ballot among other due-process challenges thereto. It is undisputed that Local 1529 notified each of the Respondents by letter of April 11, 1982, of the merger 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and of Local 1529's purported status as a representative of the employees formerly represented by Local 452. Re- spondents continued to deal with Local 1529 following their receipt of the notification letter from Mancini noti- fying them of the merger of Local 452 and Local 1529 whereby Local 1529 was the surviving union. All Re- spondents continued to follow their respective labor agreements with Local 452, including the remission of dues in the case of some Respondents and health, wel- fare, and pension benefits in the case of all Respondents except Pic-Pac and Giant with respect to their grocery and produce employees who were not covered by a pen- sion plan. All Respondents continued to follow the grievance procedure in accordance with the contracts. Some Respondents (Sewell-Allen, Sewell-Allen No. 2, Sewell's Big Star, and Bakers) met with Local 1529's president John Sheppard to bargain concerning a mid- contract term modification of the pension plan payments. Each of these Respondents was accompanied and repre- sented by its attorney, Howard S. Linzy, at these meet- ings in June 1982 According to the testimony of certain of these Re- spondents, they were unaware of any defects in the merger process until the late summer or early fall of 1982 when they became aware that nonmembers had not been permitted to vote, and in one instance, that mem- bers may have been late to a meeting and had not been permitted to vote. In his affidavit, Dan Allen, one of the two owners of Sewell-Allen and Sewell-Allen No. 2, stated that he had heard nonmembers had not been per- mitted to vote from other owners. At the hearing, he tes- tified that he had heard of this from employees and from his brother Gilbert Allen. Lex Sewell, the other co- owner of Sewell-Allen and Sewell-Allen No. 2, and the sole owner of Sewell's Big Star, testified that he learned of this from his partner Dan Allen. Al Baker, president of Bakers, and his son Mike Baker, who is a vice presi- dent of Bakers, testified that they had heard from other employees that members had not been permitted to vote. There was some discussion of this issue at a meeting of individual store owners held in November 1982 with At- torney Howard S Linzy when he advised them of the Board's recent decision in the Amoco case, supra, where- in the Board had held in August 1982 that an affiliation vote was invalid because nonmembers of the local union had not been permitted to vote, and that the merger be- tween Locals 452 and 1529 might also be invalid. There were no representatives of Pic-Pac and Giant, the two subsidiaries of Malone & Hyde, at the meeting chaired by Attorney Linzy However, John Paul Jones,, the per- sonnel director of Malone & Hyde who has responsibility for personnel policies at Pic-Pac and Giant and at Malone & Hyde, was advised by Linzy by telephone that the merger might be invalid because nonmembers of Local 1529 who were bargaining unit members of meat department employees and of produce employees at Pic- Pac and Giant had not been permitted to vote, in view of the Amoco case. Jones met with officials of Local 1529 and the International representative of UFCW in bar- gaining on behalf of Pic-Pac and Giant on October 21 and 22, 1982, but refused to bargain further until the Union gave him more information concerning the merger vote Subsequently, Respondents Sewell-Allen, Sewell-Allen No. 2, Sewell's Big Star, Gilbert Allen Big Star, Bakers, and SMF each issued identical letters pre- pared by Linzy, dated November 8, 1983, wherein they withdrew recognition from Local 1529 on the ground that nonmembers of the Union had not been permitted to vote concerning the merger. As set out above, these let- ters were all drafted by Howard Linzy on their behalf and were also similar to letters sent on the behalf of Giant and Pic-Pac on December 2, 1982, which also as- serted that members of the Union had not been notified and permitted to vote at reasonable times in support of their contention that the merger was invalid. All Re- spondents have since refused to recognize Local 1529 as the bargaining representative of their employees and have refused to furnish information for bargaining. There are several issues concerning the merger process that were initially presented for resolution. (1) Whether Respondents had notice of the merger vote of Local 452 and Local 1529? (2) Whether Respondents were advised or had knowledge that nonmembers of the various bar- gaining units were not permitted to vote? (3) Whether Respondents are barred by the 6-month limitation period set out in Section 10(b) of the Act (proscribing the filing of unfair labor practices beyond 6 months after the inci- dent has occurred) from asserting the purported lack of majority status of the Union (Local 1529) as a defense of refusal-to-bargain charges resulting from their withdraw- al of recognition from the Union? (4) Whether the Re- spondents are estopped from challenging the validity of the merger between Local 452 and Local 1529 because they waited until November 8 or December 2, 1982, to challenge the validity of the merger? (5) Whether the merger is invalid on due-process grounds? (a) Whether the refusal by the Union to permit nonmembers to vote invalidates the merger? (b) Whether the failure to con- duct a vote of members of Local 1529 (the surviving Union) invalidates the merger? (c) Whether the members were sufficiently informed of the details of the merger so as to be able to make an informed choice? (d) Whether the lack of a secret ballot invalidates the merger? (6) Whether there is sufficient continuity between Local 452 (the merged Union) and Local 1529 (the surviving Union) so as to entitle Local 1529 to representative status as a successor of Local 452? Michael A. Mancini testified at length concerning the merger between Local 1529 and Local 452. As set out above, Mancini is secretary-treasurer of Local 1529, a position he has held since April 1, 1982. Prior to that time, he was president of Local 452. He testified that Local 1529 exists for the purpose of representing em- ployees and that employees in Local 1529 participate in the organization by electing officers, voting on increases and assessment of dues, participation in all meetings, ap- proving minutes of the executive board, and a great number of other matters pertaining to the running of a local union that must be approved by the membership. Local 1529 represents employees with respect to wages, hours, and other terms and conditions of employment. Mancini testified that Local 1529 engaged in negotia- tions with Respondents Sewell's Big Star, Sewell-Allen, SEWELL-ALLEN BIG STAR Sewell-Allen No. 2, and Bakers in regard to an increase in health and welfare payments. Mancini and Burris at- tended a meeting in June 1982 at Local 1529's office with Lex Sewell, Dan Allen, and their attorney, Linzy, concerning this matter. During this meeting, each of the Big Star stores with which Sewell and/or Allen was af- filiated was discussed including Big Star No. 62, which is owned solely by Allen, Big Star Nos. 103, 187, and 189. At no time during this meeting did Sewell or Allen, or their attorney, raise an objection to bargaining with Local 1529. Later that day, Mancini met with Alvin Baker and Linzy on behalf of Bakers to discuss the in- crease in health and welfare payments by Baker. There were no objections raised by Baker or Linzy to bargain- ing with Local 1529 at this meeting. Prior to the merger, Respondents Bakers, Pic-Pac, and Giant had remitted dues on behalf of their employees to Local 452 pursuant to a dues-checkoff provision in their contracts with Local 452. Following the merger, Bakers, Pic-Pac, and Giant remitted the dues to Local 1529 at its office rather than to Local 452 Additionally, Respondents Bakers, Pic-Pac, and Giant had remitted payments by their em- ployees to Local 452 for a supplemental life insurance policy and, following the merger, remitted these pay- ments to Local 1529. Mancini filed grievances with Sewell's, Sewell-Allen, and Sewell-Allen No. 2 in the summer of 1982 concerning the Union's contention that a journeyman meatcutter should be on duty during night- time hours; he received no response to these grievances. Mancini testified that the initial negotiation meeting to execute a successor to the Union's contracts, which were to expire on October 31, 1982, was held on October 7, 1982, with a group of independent store operators, in- cluding Gilbert Allen on behalf of Gilbert Allen's Big Star, the only one of which is a Respondent in this case. At this meeting, Mancini and Burris presented a copy of Local 1529's proposals, including a request to change the name of the Union in the agreements from Local 452 to Local 1529, and asked the owners to examine the pro- posals, and Mancini and Burris then withdrew from the room. The owners met among themselves for an hour, and when Mancini and Burris returned, the owners in- formed them they were optimistic that an agreement could be reached. At this meeting, Gilbert Allen raised no objection to bargaining with Local 1529 nor to the proposed name change in the contract from Local 452 to Local 1529 as the designated collective-bargaining repre- sentative. An initial negotiation meeting for a new labor agree- ment was held on October 7, 1982, between Local 1529 and Giant concerning its meat department employees. Present at this meeting were Mancini on behalf of Local 1529, John Paul Jones, the personnel manager of Malone & Hyde; John LaRue, the division manager of Giant; and Clyde Cooksey, the meat merchandiser of Giant. In this meeting, Mancini handed a copy of the proposal that also included the requested change of name to Local 1529 to each of the representatives of Giant and several issues were discussed for a period of 45 minutes. The Giant representatives informed Mancini they wanted the opportunity to review the proposal and would get back to Mancini. No questions were raised by the Giant repre- 333 sentatives concerning the merger vote or bargaining with Local 1529 rather than Local 452. An initial contract ne- gotiations meeting took place between Local 1529 and Pic-Pac on October 8, 1982. Present at the meeting on behalf of Pic-Pac were Jones and William Creech, the di- vision manager of Pic-Pac. The meeting concerned Pic- Pac's meat market employees. Mancini gave Jones and Creech a copy of the Union's proposals for a new labor agreement that was the same as that given to the Giant representatives on the prior day. At this meeting, no mention was made of the merger between Local 452 and Local 1529, nor were any objections raised by the Giant representatives to bargaining with Local 1529. An initial contract negotiations meeting was held be- tween Local 1529 and Respondents Sewell's Big Star, Sewell-Allen, and Sewell-Allen No. 2, and was attended by Mancini and Union Representative Bill Smith on behalf of Local 1529, and by Lex Sewell and Dan Allen on behalf of Big Star Stores Nos. 103 and 189. Sewell stated he was negotiating for Store No. 187 of which he is the sole owner, separately at that meeting. Mancini presented the Union's proposals to Sewell and Allen and also gave them a summary sheet of the proposed changes in the labor agreement. Allen questioned the change in the first article of the proposed contract and inquired why it referred to Local 1529 rather than to Local 452. Mancini informed Allen that Allen was aware there had been a merger in April. Allen told Mancini he had not been informed of the merger. Mancini told Allen that the store owners had all been sent letters notifying them of the merger. Allen replied he had not received a letter, and asked whether nonmembers of the Union had been permitted to vote concerning the merger, and Mancini replied that nonmembers had neither been allowed to vote, nor had they been sent notices concerning the pro- posed merger. At that point, Allen stated that they (Sewell and Allen) would need to review the Union's proposals and would set another date to meet with the Union's representatives. Another negotiations' meeting was scheduled between the Union and Sewell and Allen for October 20, but that meeting was later canceled by Sewell and Allen. On October 21, 1982, an initial con- tract negotiations meeting was held between Local 1529 and Pic-Pac concerning the grocery employees. Mancini, Bill Smith, and John Gorlea, a representative of the UFCW, represented Local 1529, and Jones and Creech represented Pic-Pac at that meeting. Jones referred to the conversation between Mancini and Dan Allen at the previous meeting with Sewell's Big Star, Sewell-Allen, and Sewell-Allen No. 2, and inquired concerning the merger vote. Gorlea told Jones that they were there to negotiate a contract and that the merger was none of his business. Jones told the Union's representatives that he would not discuss the labor agreement until the merger matter was cleared up. Jones also stated that he had met with Giant's grocery department earlier that day and that if this was the response he would have received to his inquiries, he would cancel that meeting also. Gorlea told Jones he would receive the same response the next day and the scheduled meeting with Giant concerning its grocery employees was also canceled. Following this 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meeting, there were no further negotiations with any of the Respondents. Information requested by Local 1529 for collective bargaining with respect to the negotiation for a new labor agreement was received by the Union from SMF in a letter dated October 12, 1982. Lex Sewell testified as follows- He received letters from the Union, Local 1529, informing him of the merger, the letters were dated April 7, 1982 At the time he received the letters, he raised no objections to the merger and continued to deal with Mike Mancini. He met in June 1982 with the Union to discuss union-pro- posed increases in insurance payments. He did so on behalf of all three stores in which he has an ownership interest, that is Big Star Nos. 103, 187, and 189. Howev- er, each store was discussed individually at the same meeting. After the date of the letter, he continued to accept grievances and continued to make payments to the Union's pension fund under his contract for each of the three stores and also to the Union's health and wel- fare fund. He continued to pay insurance premiums and to deal with Mancini. Sewell testified that sometime prior to October 1982, he learned of a procedural ques- tion with respect to the merger vote from his partner in Big Star Nos. 103 and 189, Dan Allen. In late August, Allen told him there were rumors that all the employees had not been allowed to vote and that he had heard those rumors from other store owners. The first inquiry that Sewell made of the Union concerning the merger vote was during the negotiations for a new contract for Stores 103, 187, and 189. All three stores withdrew rec- ognition from the Union on November 8, 1982. Subse- quent to the withdrawal of recognition, a pay raise was granted to the meat department employees of all three stores after the anniversary date as Sewell contended raises were normally granted each year. The meat wrap- pers received a 40- to 50-cent-per-hour raise, the appren- tice meatcutters' raise was vaned, the meatcutters re- ceived 75-cents per hour, and the meat market manager or head meatcutter received $1-per-hour raise. Raises were discussed between Sewell and Dan Allen and with the store managers as they wanted to stay competitive and they decided on their own in attempting to deter- mine what the Union would get in its contracts with Kroger and Montesi, two other retail grocery stores in the area. Sewell is certain that the question of the merger came up in discussions with Malone and Hyde, but he is not sure whether he talked to anyone in Malone and Hyde. He did not talk to Jones, the personnel manager of Malone and Hyde, with respect to the merger. The parties stipulated that in November 1982, all three Big Star Stores gave raises to the meat department em- ployees without discussing these raises or giving notice thereof to Local 1529 with the opportunity to bargain with Local 1529. Sewell acknowledged that he had re- ceived a letter from Local 1529's president Leon Shep- pard dated May 18, 1983, informing him that Local 452 had merged with Local 1529, and had also received the same letters directed to Stores 103 and 189. Respondents Sewell's Big Star, Sewell-Allen, and Sewell Allen No. 2 responded to these letters sent to Sheppard by Linzy on behalf of each of the stores with respect to the insurance premium question. At the time of the discussion of the increase in insurance premiums after the merger in April 1982, Sewell received grievances filed by the Union con- cerning Store No. 103. He also received letters from Sheppard requesting information on behalf of Local 1529 for the upcoming contract negotiations. Sewell did not object to bargaining with Local 1529 in response to the grievances filed by the Union or to the information re- quested by the Union. General Counsel's Exhibit 20 is a response to the letters for Big Star Store 189 drafted by Linzy dated September 18, 1982. Prior to November 8, 1982, union representatives were allowed to visit the em- ployees in the meat market of Big Star Stores Nos. 187, 189, and 103 but were not allowed to do so after No- vember 8, 1982. Since November 1982, Big Star Stores Nos. 187, 103, and 189 have not accepted or processed grievances from Local 1529. Sewell testified further that a wage increase to the meat market employees was announced later in the same week as the letter of November 8, 1982, went out Sewell talked with Linzy about the wage increases and Linzy informed him of what other stores were giving to their employees. Allen had also received information from Linzy with respect to what raises the Giant and Pic-Pac food chains were giving to their employees. After meeting with Mancini in October, Sewell con- firmed that some members of the Union had not been al- lowed to vote. Sewell attended a meeting of store owners at the Malone and Hyde offices or warehouse which was held by Linzy in the spring of 1982 with re- spect to the issues of whether the stores would bargain as a group or as individuals. Sewell and Allen decided to negotiate their labor agreements separately from the group. There was no discussion at this spring 1982 meet- ing with respect to the merger. Sewell also attended a meeting in November among store owners and Linzy prior to November 8. This meeting concerned the merger and Linzy told them that the merger between Local 452 and Local 1529 was illegal. Dan Allen, the co-owner of Sewell-Allen and Sewell- Allen No 2, testified as follows. In April 1982, he re- ceived a letter informing him that Locals 452 and 1529 had merged. He is not denying that he received the letter but he does not remember it specifically. He did not raise any objections to the merger at the time he learned of it in April 1982. He, subsequently, met with Local 1529 at Local 1529's offices. In July 1982, he re- ceived a letter from Local 1529 requesting information and requesting to negotiate over a new contract. He at- tempted to get the information for the Union (G.C. Exhs. 18(a) and (b)). He initially heard rumors from an employee at Big Star 162, a store which he owns individ- ually, in the latter part of September 1982 who told him that all the employees had not been allowed to vote. A week or so afterward, his brother Gilbert Allen told him that his employees had informed him that they had no opportunity to vote on the merger issue. He discussed this information with his Attorney Linzy the first of Oc- tober. He attended a negotiation meeting on behalf of Stores 103 and 189 with Mancini on October 13, 1982. He acknowledged that in his affidavit he had stated that he had heard rumors initially of an impropriety in the SEWELL-ALLEN BIG STAR vote from other owners in August 1982 and that he had not mentioned that he had heard rumors from other em- ployees. Allen testified that he waited until negotiations to raise the issue with Mancini on the advice of his attor- ney who told him to ask Mancini about it in negotiations. At the meeting of October 13, 1982, Allen informed union representatives that there would be no negotiations with respect to Store 103 because a decertification peti- tion had been filed. At this meeting, Sewell told the union representatives that he would discuss Store 187 in order to save time as well as Store 189 rather than to discuss them at separate times. Allen met at a general meeting with all employees of Big Star Stores 103, 187, and 189 on November 11, 1982, and told them that they (Sewell and Allen) no longer recognized Local 1529 as the collective-bargaining representative of the meat de- partment employees. A day or so prior, Sewell and Allen met with the meat department employees and told them they would receive a wage increase as Sewell and Allen would be competitive with other stores. Allen and Sewell did not discuss the proposed raise with any other store owners. Allen attended the meeting at the Malone and Hyde warehouse held by Linzy a day or so before the November 8 letters were sent, and Linzy brought the store owners up to date on the merger and informed them of the Amoco case. Some of the owners chose to continue to recognize Local 1529 and others did not. Allen has never had any discussions with Personnel Rep- resentative Jones of Malone and Hyde or with LaRue the division manager of the Giant stores or with Creech the division manager of the Pic-Pac stores or with Hyde the chairman of Malone and Hyde or with any other Malone and Hyde representative with respect to the merger nor with respect to the wage increase granted in November 1982 to his stores. Al Baker, the president of Bakers, testified as follows. He received a letter with respect to the merger of Local 452 and Local 1529 in April 1982. He continued to follow the contract with Local 452, he raised no objec- tions to the merger, but he continued to deal with Man- cini, continued to make payments to the Union's health and welfare fund and the Union's pension fund, and con- tinued to make dues deductions to the Union. After noti- fication of the merger, he was aware that he was dealing with Local 1529 rather than Local 452. In May 1982, a question with respect to the amount of the contribution to the health and welfare fund came up, and he received a letter from Local 1529 requesting an increase in pay- ments that he sent to his attorney, Linzy, who prepared a response. He also received a letter from Local 1529's president, Sheppard , requesting information to bargain dated September 17, 1982. Bakers stores continued to process union grievances with the Union. On November 8, 1982, he directed a letter to Local 1529 informing them that Bakers would no longer recognize it as the collective-bargaining representative of its meat depart- ment employees. After the expiration of the labor agree- ment on November 31, 1982, Bakers granted wage in- creases of 50 cents to $1 per hour to head meatcutters, $1 per hour to the journeymen meatcutters, 50 cents an hour to the apprentice meatcutters, and 60 cents an hour to the meat wrappers. He had previously had collective- 335 bargaining agreements with Local 452 for a period of 20 years. He made the decision to grant the wage increases along with his brother and his son who share business ownership and responsibility for Bakers. The raises were cleared through Linzy. He called asking Linzy what the other stores were giving. Shortly after November 8, he met with his employees and informed them that Bakers would no longer recognize Local 1529 as their collec- tive-bargaining representative, because there had not been a valid merger election as all employees had not been allowed to vote. He had received information with respect to the lack of opportunity to vote from various employees that none of the nonunion employees were permitted to vote and that possibly some of the union employees had not been permitted to vote. His first knowledge that the merger might be illegal came the first of October (1982) when he was informed of this by Linzy. He attended meetings in October 1982 when the merger vote was discussed at Malone and Hyde. There were 15 to 18 Big Star owners present. His son and he made the decision to send the November 8 letter. Since November 8, 1982, all four Bakers stores have no longer accepted grievances. In April 1982, he had written let- ters asking the Union for concessions from a scheduled wage increase on economic grounds. On cross-examina- tion, he testified that he believed the economic outlook overall was better in October as Bakers no longer had an obsolete store and had opened a new store that looked profitable He, subsequently, testified that he learned the merger vote was illegal from Linzy 3 or 4 days after the meeting with the store owners. Bakers had continued to deduct union dues from April when he was informed of the merger until he revoked the recognition in Novem- ber. Bakers has continued to deduct union dues and as- sessments. Mike Baker, the son of A] Baker, testified that after he received the April 7 letter, he was aware that there had been a merger between Local 452 and Local 1529. Gilbert Allen testified as follows. In April 1982, he re- ceived a notice of a merger between Local 452 and Local 1529, and knew then that the meat department em- ployees would be represented by Local 1529, and he nei- ther objected nor raised any questions concerning the merger at that point. He continued to follow the labor agreement. He continued to make payments to the Union's health and welfare fund and the Union's pension fund. He received a letter from Local 1529's president Sheppard requesting bargaining on a new labor agree- ment and requesting information in order to bargain. He responded to this on September 23. He attended a meet- ing that lasted 10 to 15 minutes along with other inde- pendent store owners in October 1982 with Mancini to commence negotiations for a labor agreement. There were eight individual store owners and Mancini and Burris of Local 1529. At the time they left the meeting, they were given a copy of the Union's contract proposal. There was no discussion of the contract at the meeting. He raised no objections to a name change of Local 452 to Local 1529 which was proposed in the labor agree- ment nor did he object to negotiating with Local 1529 rather than Local 452. There was a meeting of the Big 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Star owners in November 1982 and Lmzy , , who is his legal advisor and to whom he sends all his legal corre- spondence, with respect to labor relations . The first knowledge that he had of any difficulties with the merger was from his employees in either June or August 1982 who told him that they had arrived at the merger vote meetings late and were unable to vote in the merger and had not received notice of the merger. He passed on his letter from the Union in April with respect to the merger to his attorney, Linzy. He had heard in several places that all employees were not allowed to vote on the merger. He believes that his brother probably told him of this. He did not talk to other Big Star owners other than his brother with respect to the merger . He ini- tially learned of a question concerning whether the merger was legal at the meeting held at Malone & Hyde's warehouse in the first week in November. He sent a letter on November 8, 1982, whereby he withdrew recognition from Local 1529. This was the first time he had raised any objections to bargaining with Local 1529. The letter was prepared by Linzy at a Malone & Hyde conference room approximately 2 or 3 days prior to mailing it after the general meeting of the owners. Glen Smithart, the president of SMF, testified as fol- lows. Prior to April 1982, Local 452 represented employ- ees in the meat department in five of the six stores of SMF. In April 1982, he was informed of the merger of Local 452 and Local 1529 by a letter received from Mancini . At the time he received this letter , he did noth- ing about it. There was no change in the way the labor agreement was administered . He continued to make con- tributions to the Union 's pension fund after his receipt of the letter. He was aware that Sheppard was in charge of Local 1529 prior to April 1982 . He received a letter from Sheppard dated July 30, 1982, on behalf of Local 1529 that contained a request to bargain over a new contract and also requested information pursuant to bargaining. He responded to that letter about a month later. There were two responses. He believes he initially responded through his attorney, Linzy, in September and sent Shep- pard the information that was requested . He sent this in- formation a second time as Mancini wrote him a letter and asked for it . He had received his second letter from Mancini dated October 12 , 1982, requesting information. He sent a letter to Sheppard on November 8, 1982, noti- fying Sheppard that he no longer recognized Local 1529 as a representative of his employees . Prior to that date he had not raised any objections to recognizing or bar- gaining with Local 1529. Prior to this time, he had also engaged in discussions with Mancini about setting a date to discuss the new labor agreement and had not at that time mentioned any problems to Mancini concerning the merger. Some time after that discussion, he did set a spe- cific date to meet with Mancini in early October but called Mancini and canceled that meeting because his wife was ill. Smithart testified further that SMF gave a wage in- crease to its meat department employees between No- vember 20 and 24, 1982. This raise was given to the em- ployees in the meat department only. He gave the same percentage to his head meatcutters , journeymen meatcut- ters, and his apprentices He made the decision to give a wage increase on November 17. The other people in- volved in the decision were his two partners in business. He also discussed the raise with Linzy . He did not dis- cuss it with anyone else. About a week or two prior to November 19, he told his employees that he no longer recognized the Union as their collective-bargaining rep- resentative. He had a meeting of all meat department em- ployees in his office and told them that the merger of Locals 452 and 1529 was illegal and that SMF had dis- cussed the matter with its attorneys, and the decision had been made to refuse to recognize Local 1529 as he had been informed by his attorney that he might be violating the law if he continued to recognize Lcoal 1529. To the best of his knowledge , he told the employees there would be no change in benefits or any other terms and conditions of employment, and that SMF would do what it could with respect to pay raises to improve the con- tracts. He told the employees that normally at this time of year there is a pay raise and he would look into it. He did not discuss any of their other benefits . He received a grievance letter from Mancini dated December 10, 1982, and responded to that grievance with a letter whereby he refused to accept any grievances filed with his Com- pany by Local 1529 . Since November 8, 1982, he has re- fused to accept any grievances filed with his Company by Local 1529. After he received the letter of April 1982, he had heard that some of their employees had not been given an opportunity to vote on the merger. He heard this initially sometime in the late summer or early fall, and he believes he heard it second hand through one of his partners who supervises the meat department. He believes he discussed the merger with Linzy and prob- ably some of the other store owners after they had a meeting . He thinks this meeting occurred sometime in October . The meeting was held at Malone & Hyde's warehouse . Smithart testified that he did not talk to anyone from Malone & Hyde concerning Local 1529 after the first of April 1982 nor did anyone from Malone & Hyde talk to him about Local 1529 or Local 452, nor did he talk to anyone from Malone & Hyde about a merger. All prior labor agreements had provided for wage increases . Smithart has had responsibility for labor relations matters since the time of inception of SMF His initial discussion concerning difficulties with the merger vote between Local 1529 and Local 452 was either the latter part of October or the first of November with Linzy. After that conversation, he made a decision to refuse to bargain with Local 1529. He has had no com- munications from anyone connected with Malone & Hyde concerning the merger of Local 452 and Local 1529 or concerning the wage increase that he granted in November 1982. When he granted the wage increase in November 1982, he was aware at that time that Giant and Pic-Pac were also granting increases as he had talked to Linzy concerning this. After Linzy discussed this with him, he waited to talk to his partners and they made their own decision about what they were going to do. Thomas A. Faulk, who is one of the owners of SMF along with Smithart and Miller , testified as follows. He was aware in April 1982 that Local 452 and Local 1529 SEWELL-ALLEN BIG STAR of the United Food and Commercial Workers had merged One. employee told him that when he had gone to the merger election, he was told that the decision had already been made and that although he could vote, it had already been determined that the Unions would merge. Faulk informed his partners, Smithart and Miller, of this information. Joseph R. Hyde, the president of Malone & Hyde, tes- tified as follows. There is no connection between serv- ices rendered to independent supermarket owners and the Company's operations. There are completely differ- ent reporting structures. The Memphis wholesale gro- cery division is 1 of 10 food distribution centers. Individ- ual store owners may purchase one or all services of Malone & Hyde as with any product It is a voluntary food group that they are members of and select services bought from Malone & Hyde. Malone & Hyde owns rights to the name, Big Star, on a territorial basis. The only agreement with respect to the use of the name con- cerns joint advertising under that name with individual operators. There is an agreement between individual op- erators and Malone & Hyde as far as advertising under that name. He is not certain whether there is a written agreement. A similar relationship exists with respect to the use of the name, Food Rite. He is also not certain whether there is a written understanding or not. To his knowledge, there are no grocery supply agreements of any type between Malone & Hyde or any of its subsidi- aries or any of the Respondents in this case, nor have there been such agreements in the last 5 years. The rela- tionship between Malone & Hyde and independent oper- ators are based on mutual trust built from the success of the business and he believes there may be a written doc- ument that describes advertising services and accounting services. Most of the documents are not signed by the parties but are merely descriptions of the services avail- able that Malone & Hyde attempts to sell to the opera- tors. In most instances, nothing is signed. If they accept the accounting services from Malone & Hyde, for exam- ple, they agree to a certain arrangement under which that is to be done John Paul Jones, the personnel director for Malone & Hyde which also includes responsibility as director of personnel for the Giant and Pic-Pac stores, testified as follows. He is the individual responsible for labor rela- tions for Giant and Pic-Pac. He gives the Giant and Pic- Pac divisions advice and counsel on matters concerning labor relations, negotiation policy, and everything except the day-to-day routine matters. He deals with the manag- er of the Giant profit center who is John LaRue and the manager of the Pic-Pac profit center who is Bill Creech. It is the practice of Giant Food and Pic-Pac Foods to refer to him questions of concern involving the Union. In the past, grievances that were not settled at the store level and contract negotiations and discrimination charges were referred to Jones. Jones initially became aware that Locals 452 and 1529 had merged in the early summer, probably May or June 1982. Between April and October 1982, both Giant and Pic-Pac continued to remit dues payment to the Union. They also continued to make payments under the insur- ance programs that were contained in the union con- 337 tracts for the respective departments and stores Giant and Pic-Pac continued to accept grievances and respond to them between April and October 1982 Local 1529's reopener letters for the four labor agreements were re- ferred to Jones by LaRue and Creech. These are the contracts for the grocery and meat departments for Giant and Pic-Pac. These letters also contained a request for information received from the Union. Jones com- menced collecting the data that was requested at the time he received these letters. When Jones initially learned that the two Unions had merged in early summer, it was brought to his attention as Pic-Pac and Giant began to get a number of written grievances on Local 1529's stationery. They continued to handle these grievances. Jones had been aware since 1980 that there was to, be a merger between the two Locals, but was un- aware that the merger had been effected until his receipt of the grievances. When he was told the grievances were on Local 1529's letterhead, he took no additional steps to find out anything concerning the merger as he had known that the merger was going to take place and he accepted the fact. He did not object to the merger. Jones prepared the information requested in the letters directed to him by the Union requesting information to bargain and he had a meeting with Mancini and another union representative and allowed them to look at the informa- tion in September or early October The information was not in the form that had been requested. He does not recall whether he actually turned the information over to them at that time. He initially raised a question concerning the merger when he met with the Union on October 21, 1982, for the purpose of the Union's presentation to Pic-Pac's gro- cery department of the Union's proposal. Present at that meeting were Jones, Bill Creech, Mike Mancini, John Gorlea, Bill Smith, and another individual. On that date, Jones attempted to clarify at the meeting who he was dealing with, Local 452 or Local 1529. He raised several questions at this meeting as he did not want to do any- thing illegal. He had previously had meetings concerning two of these contracts and had not raised any questions concerning who he was dealing with At the meeting on October 21, he informed Mancini that he could no longer negotiate with the Union until his questions re- garding the merger were resolved. The basis for his first doubt on October 20 was a telephone conversation from his attorney Linzy on that date wherein he was informed that there had been a conversation between Mancini and Dan Allen to the effect that all employees covered by the collective-bargaining agreement were not allowed to vote on the merger. Jones testified further that Giant Food no longer rec- ognizes Local 1529 as the bargaining representative of its employees in its meat or grocery departments. Nor does Pic-Pac Foods recognize Local 1529 as the collective- bargaining representative of its employees in its meat de- partment or grocery department. He initiated an investi- gation 2 or 3 days after his meeting with Mancini, and asked the managers of the store operations, Creech and LaRue, and possibly some individual store managers to question the employees and obtain answers to the ques- 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions he had asked the Union to answer concerning the merger. Creech and LaRue reported back to him that their employees had not received notices of meetings for the purpose of merging the two unions and that meetings were held at such times that it was impossible for em- ployees working in a 24-hour operation to attend the meetings, and that there were certain employees who had been at the meeting but had not been allowed to vote It was his decision that Giant and Pic-Pac would no longer recognize Local 1529. There were meetings held in early November or late October in which em- ployees were informed of this action. The decision was also made to continue to withhold dues from employees' paychecks. Since late October or early November, em- ployees' dues have been withheld from their paychecks even though Local 1529 is no longer recognized by Giant or Pic-Pac. Additionally, a special union assess- ment was withheld from employees' checks in December 1982. These dues and assessments have not been remitted to the Union, but the money has been deposited in a sep- arate account. He informed Sheppard in a letter that if the Union won the litigation; it would receive the money, and if it lost the litigation, the money be returned to the employees with interest. Jones testified further that employees at Giant and Pic- Pac were given a pay raise that became effective in mid- November. All employees within each particular classifi- cation received the same amount for each classification. Head meatcutters received 70 cents an hour, and jour- neymen received 70 cents at the top of their classifica- tion and 20 cents at the bottom of their classification. He did not recall what wrappers or checkers or stockers re- ceived. The decision to grant the wage increases was made in early November by Jones and Peter Formanack, a vice president of Malone & Hyde, and by Bill Creech and John LaRue. Jones checked with other companies as to what they were paying in increases and the amount of the increase. He also considered retail service labor re- ports and similar resource materials. Giant and Pic-Pac also initiated on behalf of their employees in the grocery department, a pension plan in November 1982. Prior to November 1982, the employees in the grocery depart- ments at Giant and Pic-Pac had not had a pension pro- gram. The decision to implement the program was made by Jones, Formanack, Creech, and LaRue. They had been considering the pension plan for years but they had decided to do it in early November and decided to im- plement the plan after they had their conversation with Gorlea and Mancini. The withdrawal of recognition was the result of the investigation conducted among the em- ployees. There had been prior negotiations with the Union for the pension plan for some employees but no agreement had been reached. Prior to withdrawal of rec- ognition of Local 1529, Giant Foods and Pic-Pac had permitted union representatives access into the stores to conduct union business. Since the withdrawal of recogni- tion, union representatives are permitted in the stores but are no longer permitted to interfere with the work of employees. It is undisputed that the insurance carrier was unilater- ally changed for the employees in the meat department of Giant and Pic-Pac from a Meat Cutter's health and welfare plan to a Blue Cross/Blue Shield plan after No- vember 8, 1982, and Jones also testified that a new notice of a vacation policy was placed in effect for Giant Foods employees after November 8, 1982. Jones testified that the pension plan was implemented without notice to the Union. The policy with respect to the denial of union access and the wage increase was also implemented with- out notice to the Union. Jones also testified that an employee complaint proce- dure was placed into effect for Giant and Pic-Pac em- ployees on November 8. Meetings were held with the employees and copies of benefits information distribu- tions were passed out at meetings of employees com- mencing on November 8, which meetings were held to bring the employees up to date as to their status. William Creech, the division manager of. Pic-Pac Foods, who is responsible for all aspects of the Pic-Pac operations that include 10 Pic-Pac stores operated in the Memphis area, testified as follows. He assigns supervisors to handle Pic-Pac's labor relations matters. He became aware in April 1982 that Locals 452 and 1529 had merged. The letter came to his office and he believes he forwarded it to Jones. His office manager would prob- ably have a copy of it. On October 21, 1982, he was present at a negotiation meeting with the Union regard- ing the Pic-Pac grocery contract At that meeting, Pic- Pac refused to negotiate with Local 1529 until questions concerning the merger were resolved. Sometime after October 21, Pic-Pac withdrew recognition or refused to recognize and bargain with Local 1529 further. He was not involved in the decision to withdraw recognition. He was consulted by Jones. He received a phone call from Jones informing him that they were withdrawing recog- nition from the Union. This occurred 2 to 3 days to a week after the October 21 meeting with the Union. He conducted an investigation into the manner in which Locals 452 and 1529 had merged This was done after the October 21 meeting with the Union. Individuals were sent out to talk with the employees in the stores and the question was raised by the employees as to how the merger had come about and why they had not been given the opportunity to vote concerning the merger. Questions had been raised by the employees prior to the meetings and afterward. His supervisor, Keith, reported to him concerning this information after the meeting. He made no written memos or notes; he told Jones he thought there was a problem with the merger as the em- ployees had not been given the opportunity to vote. Jones stated that he would check it out. He had no fur- ther conversation with Jones except that less than a week later, Jones informed him that they were not going to recognize Local 1529 at this time. Jones gave him no explanation as to why. Pic-Pac granted wage increases to its employees in the grocery and meat departments in November. The decision to do so was made around No- vember 1, as they were due an annual increase. The in- crease took effect on November 1. They had known for some time that they were going to give the employees an annual raise. To the best of his recollection, the amount of the raises were decided approximately the latter part of October. Involved in that decision were Jones, For- SEWELL-ALLEN BIG STAR manack, and Creech. Additionally, the decision to imple- ment a new pension plan for Pic-Pac employees in the grocery department who had not previously been cov- ered by the pension was made in the first part of Octo- ber. This occurred prior to his conversation with Jones wherein Jones told him that Pic-Pac was withdrawing recognition. He believes Jones made the decision to grant the pension plan as he was informed that the deci- sion had been made. He does not recall being consulted by Jones or anyone else concerning the Employer's abili- ty to pay wage increases He conceded that under the Union's labor agreement, which had been in existence through October 1982, wage increases had not always been on an annual basis. Charging Party's Exhibit 26 is a handbook entitled "Pic-Pac Keeps You Smiling." He was told by Jones what was to be in the booklet. After the October 21 meeting, he met at corporate headquar- ters with Jones and Formanack and they discussed the amount of the wage increase to be implemented after withdrawing recognition of the Union. Factors utilizied in arriving at an increase were primarily job classifica- tions. They did not look at the amount of money Pic-Pac stores were earning or did not discuss Malone & Hyde's profitability Jones suggested the amount of the raises. Pic-Pac purchases wholesale groceries from Malone & Hyde at the same prices the other independent stores have to pay in the Memphis metropolitan area. John LaRue, the division manager for Giant Food, tes- tified as follow. He is responsible for the operations of Giant Food stores in the city of Memphis. This responsi- bility includes the five Giant Food stores in Memphis, and these five stores were covered by contracts with Local 1529. This responsibility includes responsibility for labor relations matters. During the period between April and October, he recognized Local 1529 as the represent- ative of the meat, produce, and grocery department em- ployees. In the course of dealing with Local 452 and subsequently Local 1529, he has received communica- tions. He received a copy of Local 1529's letter dated April 7, informing him that Local 452 and Local 1529 had merged. He also handled grievances received from Local 1529. In his position, he has approved wage in- creases granted to employees and was consulted con- cerning increases and changes in employee benefits. He was also involved in contract negotiations and was present at negotiations When he received the letter of April 7, he gave it to his office manager. Jones was his consultant at Malone & Hyde. He received the April 7 letter informing him of the merger. He discussed it with his office manager and told the office manager to do what the letter requested. He was aware from that time on that Local 1529 was representing the employees rather Local 452. He was also aware that Sheppard was the chief officer of Local 1529. He does not recall whether he brought any of this information to the atten- tion of Jones, and as far as he remembers, he did not do so; he might have discussed the merger with the supervi- sors. Giant Food or Malone & Hyde did not raise any objections to Local 1529 in April 1982. Giant Food con- tinued to accept grievances from Local 1529 and to process those grievances and made dues payments to Local 1529, and continued to make health and welfare 339 payments under the contract after he received the April 7 letter. Insurance payments that had been made to Local 452 prior to April were thereafter made to Local 1529. In October 1982, he met with Local 1529 concern- ing the contract for the meat department of Giant. After that meeting, Giant Food refused to recognize Local 1529 as a representative of its employees. He was not consulted concerning the decision to withdraw recogni- tion, but was informed of the decision sometime in the early part of November by Jones who told him that as a result of the irregularities in the merger, Giant would no longer recognize Local 1529. He believes he first learned of the irregularities regarding the merger in the latter part of October He was informed of this by Jones who stated that they would not deal with the Union at the present time until they checked out the possibilities of the irregularities in the merger of the Union. To his knowledge, he did not conduct an investigation into these irregularities. Shortly after withdrawing recogni- tion, Giant Food gave wage increases to its employees. He was in the meeting concerning the decision to grant wage increases. He believes also that Jones, Creech, Peter Formanack, and a Charlie Shade who was then in charge of retail grocery sales were in that meeting. This meeting was held after he had been informed of the deci- sion to withdraw from the Union. The institution of a new grievance procedure was also discussed in this meet- ing as was the printing of an employee benefit booklet and the pension plan for grocery employees. He does not recall any discussion concerning the insurance carrier for the meat department employees This was not the first time there had been a discussion of instituting a pension plan for employees. Since November 1982, Giant has re- fused to accept any grievances from Local 1529. A notice of the vacation policy was also posted. The vaca- tion policy contained in the notice (G.C. Exh. 76) has ac- tually been in effect for about 2 years. It was stipulated that wage increases at Sewell-Allen Big Star No. 103, Sewell-Allen Big Star No. 189, and Sewell's Big Star No. 187 were made effective Novem- ber 1, 1982, and that on or about November 1982, Re- spondent's Giant and Pic-Pac each instituted wage in- creases in the grocery departments in the following amounts given to each employee within the following classifications: for sackers and carryout employees, front end, full time, 40 cents; stockers and clerks full time, 65 cents; checker and courtesy booth, checkers and stockers full time, 65 cents; checkers and courtesy booth and checkers and stockers part time, 40 cents; checkers part- time, 50 cents; front-end employees part time, 20 cents, and produce department employees, 65 cents. Addition- ally, a stipulation was offered and received that on or about November 1982, Respondents Giant Food and Pic- Pac Foods each instituted wage increases of the follow- ing amounts to each employee within the following clas- sifications in the meat department- head meatcutter, $1; journeymen meatcutter, 75 cents; apprentice meatcutter, 65 cents; and wrapper clerk, 65 cents. All the amounts listed are hourly amounts 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. Analysis of the Alleged Refusals to Bargain in Violation of Section 8(a)(5) and (1) of the Act.with Respect to Withdrawal of Recognition of the Union by the Respondents in November 1981 and Alleged Implementation of Unilateral Changes in Terms and Conditions of Employment 1. The validity of the merger As a result of recent events, the issues as to whether the merger was invalid on due-process grounds and spe- cifically whether the merger between Local 1529 and Local 452 was invalid because unit employees who were not members of Local 452 were denied the right to vote on the merger issue will be addressed at the outset. This issue has been the principal ground on which Respond- ents have asserted their withdrawal of recognition and refusal to bargain with Local 1529 as the valid successor of Local 452 in November 1982, in reliance on Amoco, supra, wherein the Board held (262 NLRB at 1241): Accordingly, we find that, in order to provide adequate due process safeguards in an affiliation election, all unit employees, whether union mem- bers or not, must be permitted to participate and vote in an affiliation election. Because, in this case, all unit members have not been accorded these rights we find that the affiliation was improper and therefore the Respondent did not violate Section 8(a)(5) of the Act when it refused to bargain and re- pudiated the collective-bargaining agreement. At the hearing, the General Counsel and the Charging Party contended that the Amoco case was not applicable to the instant case, which involves the merger of two locals of the same International union rather than an af- filiation election. However, in F. W. Woolworth Co., 268 NLRB 805, 806 (1984), issued by the Board on February 10, 1984, the Board applied the Amoco case to a merger situation involving two locals of the same International union, and held that the merger of the two local unions was invalid because bargaining unit employees who were not members of the local union which lost its identity had been denied the right to vote. The Board stated: The Amoco case involved an election in which nonmembers of the independent were barred from voting on the affiliation with the International. The same principle applies, however, when, as here, there is a merger between two locals within the same International union. In both instances, the cer- tified union is replaced by a different entity from that designated by the unit employees. In both cases a factor of primary importance is whether the af- fected employees have had an opportunity to pass on the change of representative. That a merger election involves locals of the same parent union does not diminish the impact of the change on the employees or extinguish the due-process require- ment that all employees in the bargaining unit be af- forded the opportunity to vote By letter of February 22, 1984, the General Counsel withdrew its "contentions and positions taken to date to the extent that they are inconsistent with F. W. Wool- worth " I, accordingly, find that the issue of the validity of the merger of Local 452 and Local 1529 has been re- solved by the Board's decision in F. W. Woolworth, supra. As set out previously, in this, decision, it is undis- puted that bargaining unit employees who were non- members of Local 452 were barred from voting at the merger election of Local 452 to decide whether Local 452 should merge with Local 1529. I, therefore, find that the merger election conducted by Local 452 in February 1982 violated due process standards because nonmembers of Local 452 were not permitted to vote. I, accordingly, find that the merger which resulted from the election was invalid. F. W. Woolworth Co., supra I find it unnec- essary to make a determination concerning the other challenges to the merger raised by the Respondents. Remaining for resolution are the issues of whether Re- spondents should be barred by operation of Section 10(b) of the Act from contesting the validity of the merger as a defense to their November 1982 withdrawal of recogni- tion from Local 1529, and whether Respondents should be estopped from challenging the validity of the merger under the principles set out in Knapp-Sherrill Co., 263 NLRB 396 (1982), and recently affirmed in Knapp-Sher- rill Co., 268 NLRB 800 (1984) (Knapp-Sherrill Co. II). 2. The 10(b) issue and the estoppel issue After a review of all the evidence in this case, I find that Respondents were barred by Section 10(b) of the Act from challenging the validity of the merger of Local 452 and Local 1529 as the basis for their withdrawal of recognition from Local 1529 in November 1982. I also find that the Respondents were estopped from challeng- ing the validity of the merger between Local 452 and Local 1529 in November 1982 shortly after the expira- tion of their collective-bargaining agreements. Although some of the Respondents' representatives initially ap- peared to be contending at the hearing that they did not have notice of the merger between Local 452 and Local 1529 in April 1982 when pressed on cross-examination, they admitted that they had received or had knowledge of the letter sent by Local 1529 dated April 7, 1982, ad- vising them of the merger between Local 1529 and Local 452 wherein Local 1529 was the surviving union. I credit the testimony of Mancini that he mailed the letters to the Respondents on or about April 7, 1982. It is undis- puted that each of the Respondents received a copy of the Union's April 7, 1982 letter. I specifically find here based on the testimony of Lex Sewell, Dan Allen, Gil- bert Allen, Al Baker, Mike Baker, Glenn Smithart, Thomas Faulk, Bill Creech, and John LaRue that each of these individuals received the Union's letter of April 7, 1982, and were aware of the merger in April 1982. Mark I Tune-up Centers, 256 NLRB 898 (1981). Each of these individuals had responsibility for labor relations for his organization, and I find that each of them was a su- pervisor and agent for the Respondents within the mean- ing of Section 2(11) and (13) of the Act. Specifically, I find that Lex Sewell was a supervisor and agent for Sewell's Big Star, Inc., d/b/a Sewell's Big Star No. 187 within the meaning of Section 2(11) and SEWELL-ALLEN BIG STAR (13) 'of the Act. I find that Lex Sewell and Dan Allen were supervisors and agents of Sewell-Allen Big Star, Inc., d/b/a Sewell-Allen's Big Star No. 189, and for Sewell-Allen Big Star, Inc., No. 2, d/b/a Sewell-Allen's Big Star No. 103 within the meaning of Section 2(11) and (13) of the Act. I further find on the basis of the un- disputed testimony of Lex Sewell and Dan Allen and on the basis of the testimony of the witnesses who testified at this proceeding concerning the meetings conducted by Sewell and Dan Allen among the employees of Big Star Stores Nos. 187, 189, and 103 that Respondents Sewell- Allen Big Star, Inc., and Sewell-Allen Big Star, Inc., No. 2 have exercised common control and common control and cooordination of their labor relations policies and are a single employer. I find that Gilbert Allen was a super- visor and an agent of Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142 within the meaning of Section 2(11) and (13) of the Act. I find that Al Baker and Mike Baker were supervisors and agents of Baker Bros ., Inc , d/b/a Baker's Big Star Nos. 31, 61, 64, and 81 within the mean- ing of Section 2(11) and (13) of the Act. I find that Glenn Smithart and Thomas Faulkner were supervisors and agents of SMF Management, Inc., d/b/a SMF Food Rite Supermarkets within the meaning of Section 2(11) and (13) of the Act. I find that Bill Creech was a super- visor and agent of Pic-Pac Foods, Inc., a subsidiary of Malone & Hyde, Inc. within the meaning of Section 2(11) and (13) of the Act. I find that John LaRue was a supervisor and agent of Giant Food, Inc., a subsidiary of Malone & Hyde, Inc. within the meaning of Section 2(11) and (13) of the Act. I further find that John Paul Jones was an agent of Giant and Pic-Pac within the meaning of Section 2(13) of the Act. I further find on the basis of the undisputed evidence of the coordinated ap- proach and commonality of purpose of labor relations of Pic-Pac Giant Food as disclosed through testimony of Creech, LaRue, and Jones that Pic-Pac and Giant are a single employer. Although there were unlawful solicitations by Re- spondents Sewell-Allen, Sewell-Allen, No. 2, and Bakers to encourage their meat department employees to decer- tify Local 1529 as the collective-bargaining representa- tive of their employees and to otherwise abandon their support for the Union (as will be detailed hereinafter in this decision), each of the Respondents otherwise contin- ued to conduct business as usual with Local 1529 until they commenced bargaining on a successor labor agree- ment with Local 1529 in October 1982 The evidence shows that there was a coordinated effort among the Re- spondents in October and November 1982 in seeking to reject Local 1529 as the collective-bargaining representa- tive of their employees, However, this effort did not result in actual withdrawal of recognition from Local 1529 as the successor of Local 452 until November 8, 1982, in the case of each of the Respondents. Sewell's Big Star, Sewell-Allen, Sewell-Allen No. 2, Bakers, Gil- bert Allen Big Star, and SMF and until December 2, 1982, in the case of Respondents Pic-Pac and Giant. Thus, I find that the withdrawal of recognition from Local 1529 by each of the Respondents occurred more than 6 months after they had notice of the merger of Local 452 and Local 1529. The Board has held in reli- 341 ance on the Supreme Court's decision in Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960), that employers are barred by Section 10(b) of the Act from raising as a defense against unfair labor practice al- legations of refusal to bargain, attacks against the majori- ty status of the union on the ground that the original rec- ognition that occurred in excess of 6 months prior to the filing of the charges in the case was unlawful. See Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976), enfd. 584 F.2d 293 (9th Cir 1978), wherein the Board held in ac- cordance with the Bryan Mfg. Co. case that Section 10(b) of the Act was "specifically intended by Congress to apply to agreements with minority unions in order to sta- bilize bargaining relationships ." In cases involving chal- lenges by the employers to the validity of successorship of one union for another as a defense to 8(a )(5) refusal- to-bargain allegations against the employers, the Board has in North Bros. Ford, 220 NLRB 1021 (1975), and in Joe Costa Trucking, 238 NLRB 1516 (1979), enfd. 631 F.2d 604 (9th Cir. 1980), held that the employers were barred by Section 10(b) of the Act from challenging the validity of the successorship of the surviving union as they had not raised the challenges until after the expira- tion of the 10(b) period. I thus find that each of the Re- spondents were barred from asserting the Union's lack of majority status as a defense to the refusal-to-bargain charges in the instant case. I also find that Respondents are estopped from attack- ing the validity of the successorship of Local 1529 be- cause they waited until November 1982 to do so after the expiration of the collective-bargaining agreement on October 31, 1982, and after having dealt with Local 1529 since April 1982. It is clear that Respondents were each on notice that the membership of Local 452 had voted to approve a merger between Local 452 and Local 1529 by the April 7, 1982 letter sent to them by Local 1529. Al- though that notice did not state in negative terms that nonmembers had not been permitted to vote, it did state that the vote had been by the "membership." Respond- ents continued business as usual with Local 1529 during the summer and fall of 1982. In fact, some of the Re- spondents, Sewell's Big Star, Sewell-Allen, Sewell-Allen No. 2, and Bakers engaged in collective bargaining with Local 1529 in June 1982 concerning a midterm contract modification at which they were represented by their at- torney, Howard S. Linzy. No Respondent raised any questions of the majority status of Local 1529 at the time that Local 1529's president, Sheppard, issued a letter in July 1982, requesting bargaining on successor contracts to the then-existing labor agreements between the Re- spondents and Local 452 that were scheduled to expire on October 31, 1982. Respondents Pic-Pac and Giant commenced to collect information requested by Shep- pard for bargaining purposes in August 1982. Respond- ents Gilbert Allen, Sewell's Big Star, Sewell-Allen, Sewell-Allen No. 2, Pic-Pac, and Giant attended bargain- ing sessions with Local 1529's representatives. Although at one of these bargaining sessions Dan Allen raised questions concerning whether nonmembers had been per- mitted to vote on the merger, and on October 13, 1982, Pic-Pac and Giant's personnel representative John Paul 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jones raised questions as to whether members and non- members of the Union had been permitted to vote and refused to bargain further until the issue was resolved, these Respondents did not withdraw " recognition, from Local 1529 until after the expiration of their labor agree- ments on October 31, 1982. Moreover, the evidence is substantial in this case that each of the Respondents was on notice of the purported infirmities in the merger proc- ess, and had been advised of the possible application of the Amoco case to this issue at least by September and October 1982 . However, no action was taken by any of the Respondents to withdraw recognition from Local 1529 until the issuance of the November 8, 1982 letters prepared by Attorney Linzy on behalf of all Respond- ents except Pic-Pac and Giant both of which issued simi- lar letters to the Union withdrawing recognition on De- cember 2, 1982. Under the above circumstances, I find that the Re- spondents were estopped from raising the challenges to recognition of Local 1529 in November and December 1982 under the principles set- out by the Board in Knapp- Sherrill Co., supra, and as recently affirmed by the Board in Knapp-Sherrill Co. II, supra. Although I recognize that the length of time delay involved in the Knapp-Sherrill case was substantially longer than in this case, and that the Board cited the extensive correspondence between the employer and the union in the Knapp-Sherrill case in- cluding a hold -harmless agreement that had been execut- ed by the union to satisfy the employer 's concerns in the Knapp-Sherrill case as evidence of the conscious waiver of the employer of its right to contest the validity of the merger in the that case, I find that the Respondents in the instant case nonetheless had sufficient notice of the members only vote by virtue of the April 7, 1982 notice sent to them by Local 1529 and specifically considered the consequences of the merger process in view. of the Board's Amoco case in October 1982, and in view of their acquired knowledge from discussions among themselves and their attorney, Howard Linzy. Thus, Respondents had ample time to take action to withdraw recognition from Local 1529 which could have permitted it to recti- fy any objection to the merger vote in this case but Re- spondents waited until the collective-bargaining agree-, ment had expired to do so at which time they took uni- fied action through the use of virtually identical letters refusing to recognize and bargain further with Local 1529 and put in place a series of unilateral changes that I find were designed to take advantage of the Union's dis- placement during the critical time of contract negotia- tions for a new labor agreement . In making this determi- nation, I find that the Respondents did not act in isola- tion in their withdrawal of recognition from the Union but rather the evidence is clear that they were kept ap- prised of what actions the other Respondents were taking with respect to bargaining and the granting of wages as well as other actions in conjunction with their rejection of the Union , and were part of an overall co- ordinated rejection of the Union . The common relation- ship the independents shared with each other was their association with their distributor Malone & Hyde and the utilization of a shared meeting place at Malone & Hyde's facilities, the same labor relations counsel and the pay- ment for said services from a common escrow fund maintained by Malone & Hyde into which the Respond- ents paid for these legal services. Although no impropri- ety is attached to the existence of this arrangement, it is clear that these Respondents did not operate in a vacuum in making their determination with respect to their course of action in rejecting the Union. It is also clear that the rejection of the Union by Pic-Pac and Giant, two subsidiaries of Malone & Hyde, was closely tailored to the rejection of the Union by the independents as demonstrated by the testimony of Malone & Hyde's per- sonnel manager Jones who was kept apprised of the situ- ation with respect to the "independents" by Linzy. I find that the evidence is sufficient in this case to warrant the inference that the timing of the withdrawal of recogni- tion from the Union at this critical point was part and parcel of the Respondents' overall attempt to dislodge the Union as the collective-bargaining representative of their employees. Local 1529 was thus placed in the posi- tion of reliance, to its detriment, on the continued recog- nition by the Respondents until the labor agreement had expired at a time when Local 1529's role as collective- bargaining representative was most essential to Respond- ents' employees , and at a time when its status as the col- lective-bargaining representative of Respondents' em- ployees was most vulnerable. I, thus, find that Respond- ents did not act in good faith in this case in withdrawing recognition from Local 1529 in November 1982, and that they waived any right that they had to contest the valid- ity of the merger and are each estopped from now chal- lenging the representational status of Local 1529 as the collective-bargaining representative of their employees. Furthermore, I have also considered the overall lack of good faith by Respondents Sewell-Allen Big Star, Inc., Sewell-Allen Big Star, Inc., No. 2, Baker Bros, Big Star, Inc., Giant Food, Inc., and Pic-Pac, Inc., in the context of their commission of various unfair labor practices as found in this decision and that their withdrawal of recog- nition and refusal to bargain did not occur in a context free of unfair labor practices. Accordingly, I find that by their withdrawal of recognition an the refusal to bargain with Local 1529, each of the Respondents violated Sec- tion 8(a)(5) and (1) of the Act. D. Allegations of Independent Violations Against Sewell-Allen Big Star, Inc., d/b/a Big Star No. 189 and Sewell-Allen Big Star, Inc., No. 2, d/b/a Big Star No. 103 1. A preliminary issue-the supervisory status of Clifford Phillips Johnnie Worrell, a journeyman meatcutter at the time of the hearing, testified that prior to August 1982, he was employed as head meatcutter in the meat department at Big Star No. 103 and reported to Clifford Phillips who was his supervisor Worrell was a member of the bar- gaining unit as a head meatcutter . As a supervisor, Phil- lips spent 100 percent of his time in the meat department, made out work schedules, told employees what meat to cut, and inspected the employees' work. Prior to August 1982, Phillips assigned overtime to the employees Phil- SEWELL-ALLEN BIG STAR lips did not punch a timeclock as did Worrell and other employees in the meat department. Several other em- ployees assigned to the Big Star No. 103 meat market also testified concerning the performance by Phillips of various supervisory duties such as the assignment of overtime to complete work, making out of work sched- ules, approval of vacation and holiday requests, inspec- tions of the employees' work, and correction of their mistakes on the job, authorization of refunds or credits and exchanges to customers and the handling of com- plaints therein, inspection of the meat, and inquiring of employees whether they wished to leave early at such times as the store was not busy. Michael Rowley testified that he was hired by Phillips in March 1981. James Kim- brough, a former journeyman meatcutter at Store No 103, testified he was interviewed by Phillips in January 1982, and that Phillips asked him to begin work on the following week and later asked him to take a week off and then return to work whereupon Kimbrough then became a full-time employee. Theresa Heist, a meat wrapper, also testified that Phillips had interviewed and hired her as an employee. Phillips was not called as a witness, and the foregoing testimony of the employees is unrebutted. With respect to the supervisory status of Phillips, an inquiry was made of Lex Sewell, co-owner of Sewell-Allen Big Star, Inc., No. 2, d/b/a Big Star No. 103, who testified that Phillips had been the highest ranking employee in the meat de- partment, was salaried until mid-August 1982 at which time he was demoted to the position of meat market manager and then punched a timeclock. As a supervisor, Phillips had received a bonus in accordance with the performance of the meat department. Phillips had not been included in the unit nor had contributions been made on his behalf to the Union's health and welfare and pension funds. Rather, contributions were made on his behalf to company-sponsored plans. Dan Allen, the other owner of Sewell-Allen Big Star, Inc., No. 2, testified in conclusionary language that all of Phillips' duties were routine meatcutter duties and that Phillips did not have the authority to hire, fire, or discipline employees I find that the specific exercise of supervisory authority by Phillips as set out herein and the undisputed fact that Phillips was the highest ranking employee in the meat department demonstrates that he was a statutory supervi- sor within the meaning of Section 2(11) of the Act. See Liberty Markets, 236 NLRB 1486, 1495 (1978). Worrell testified further in mid-August 1982 that Phil- lips informed him that he had been demoted from super- visor to head meatcutter. Shortly thereafter, Worrell was himself demoted to a journeyman meatcutter. Worrell testified, however, that neither his duties nor Phillips' duties changed after the title change. Worrell testified concerning his own duties as head meatcutter at Store 103 until the time of his demotion, that he directed and assisted employees during 1 day a week when Phillips was off work and 1 week during the vacation of Phillips. He otherwise performed meatcuttmg duties. I credit Worrell's testimony and find under these circumstances the Phillips was a supervisor within the meaning of the Act at all times relevant herein, including after his demo- tion to the position of head meatcutter as he continued to 343 exercise supervisory authority. I find also that the limited amount of exercise of supervisory authority accorded to Worrell during the absences of Phillips was not sufficient to make him a statutory supervisor. Cannonsburg General Hospital Assn., 244 NLRB 899, 900 (1979). I further find that, assuming arguendo, Phillips was not a supervisor within the meaning of Section 2(11) of the Act, Re- spondent placed Phillips in a position whereby the em- ployees could reasonably believe he was a supervisor and that his participation in the Respondent Sewell-Allen No. 2's campaign to decertify the Union (as will be herein- after detailed) reflected the antiunion attitude of Re- spondent Sewell-Allen, Inc, No. 2, and his conduct is properly attributable to Respondent. American Door Co., 181 NLRB 37 (1970); NLRB v. Des Moines Food, 296 F.2d 285 (8th Cir. 1961); Clevenger Logging, Inc., 220 NLRB 768 (1975). 2. The June 28, 1982 conversation between Phillips and Worrell Worrell testified that Phillips called him outside of the meat department and stated, "I guess you know there have been a lot of changes made at Sewell and Allen Company." And "Well, they want you all to get out of the Union because of the merger of the Union." Worrell testified Phillips also stated that "working conditions would be a lot better if we were out of the Union" Worrell informed Phillips that he did not wish to get out of the Union and Phillips told him that Sewell and Allen would then want to talk to him. Phillips also told him that Sewell and Allen "could not work with Leon Shep- pard." Sheppard was the president of Local 1529. I credit Worrell's testimony which was unrebutted as Phillips did not testiy at the hearing. I find that the solic- itation of Worrell by Phillips! to withdraw from the Union on behalf of Respondent and the promise of better working conditions if he did so were violations of Sec- tion 8(a)(1) of the Act. 3. The conversation between Store Manager Gordon and Worrell Worrell testified that approximately 2 days later, Mi- chael Gordon, the store manager of Store No. 103, ap- proached him and told him that he (Gordon) had heard that Worrell wished to talk to him. Worrell told Gordon he had heard that Gordon wished to talk to him. They then went to a nearby restaurant and Gordon asked Worrell if he wanted anything, to which Worrell replied, that he did not. Worrell testified that Gordon then went on to discuss Worrell's withdrawing from the Union. Worrell told Gordon he had no plans to get out of the Union. Gordon then went on to tell Worrell that the store would be a lot better if the employees withdrew from the Union and the hospitalization and life insurance benefits would be better, and that "the store" could not work with Leon Sheppard following the merger and that the union dues would go up. Worrell testified that at this time he asked Gordon, "what about the rest of the people in the store? Would you talk to them?" And Gordon replied, "No, we are not concerned with the rest of the people." This conversation took place during 344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Worrell's working hours as he had just returned from lunch Michael Gordon, the manager of Big Star 103, placed his conversation with Worrell on July 3, at a restaurant next door to the store and acknowledge that it occurred shortly after lunch. Gordon testified that there was con- fusion as both he and Worrell thought the other individ- ual wished to talk to him. He acknowledged, however, telling Worrell that "they" were concerned about the Union that they were having to deal with now and felt that there were going to be some difficult times with the Union as there had been some threats to the Company and possibly it (the Union) would close the store down and that he wanted Worrell to be aware of that. Accord- ing to Gordon, Worrell stated he was skeptical of the Retail Clerks as he did not know much about them but had heard unfavorable reports, and that Worrell indicat- ed that he would rather stay with the Union but did not know how other employees felt. Gordon denied telling Worrell that he wanted to talk to him about getting out of the Union or that Worrell's hospitalization and life in- surance or any other benefits that the Company provided would be better if he withdrew from the Uhion. I credit Worrell's testimony over that of Gordon. In making this determination, I have considered my obser- vation of Worrell on the stand. I found Worrell to be a credible witness although as Respondent has pointed out in its brief and at the hearing, Worrell's specific recall of dates of various discussions and events was not precise. However, the various events, including this one, were substantially acknowledged by Respondent's witnesses as having taken place and fall into a pattern whereby Re- spondent's representatives solicited the withdrawal of support from the Union by its employees. I have also considered the fact that Worrell is currently an employee at Big Star No. 103, and the lack of hkeihood that he would take an untruthful position contrary to that of the Respondent, given his status as an employee of Respond- ent. Moreover, I find Gordon's version of the meeting unlikely, given Gordon's own admissions that he did dis- cuss the Union with Worrell after this allegedly mistaken meeting between the two that followed the prior discus- sion of Phillips with Worrell whereby Phillips solicited Worrell's withdrawal from Local 1529. I, accordingly, find that Respondent's statements violated Section 8(a)(1) of the Act by its solicitation of Worrell to abandon the Union and the issuance of threats of store closure if em- ployees did not abandon the Union, and the promise of benefits if the employees did abandon the Union. 4. The July 12, 1982 meeting Worrell initially testified that this conversation took place approximately June 12, 1982. I find on the basis of other evidence, however, that this conversation took place on or about July 12, 1982. Specifically, Worrell testified that a couple of weeks after the June 28 meet- ing, he was called to a meeting with Store Owners Sewell and Allen that took place in the front office of the store. Worrell was called to the front of the store by Manager Gordon, and Sewell and Allen were in the office and Gordon then left. Allen asked Worrell what kind of future he planned with the Company. Worrell did not reply. Allen then went on to tell Worrell that they (Sewell and Allen) wanted to get the employees out of the Union. Worrell replied that he did not want to get out of the Union Allen then went on to state that they (Sewell and Allen) did not like the merger and wanted the employees to get out of the Union and that it would be better for the whole store and the employees would get better life insurance and hospitalization and retire- ment without the Union. Worrell testified that during the course of this conversation, he asked Sewell and Allen whether they were willing to give the employees a con- tract if the employees got out of the Union. Allen stated that he did not know, but he would look into it. Worrell further testified that during this meeting, Sewell referred to Firestone Company and International Harvester each of which had closed facilities in the 'Memphis area and asked Worrell whether he saw what the Union had done to these companies, and Worrell further testified that Sewell stated that if he had to open up another store that had a union, he would close it. Gordon did not testify concerning this incident. Allen acknowledged that he and Sewell had an initial discus- sion with Worrell that he placed in mid-July (1982) in the front office of Big Star No. 113. Allen testified that he and Sewell met with Worrell to talk about the merger and problems they thought it would bring in the future and talked to Worrell as he was interested in the effect it would have on his future at Store 103. According to Allen, Worrell asked if he withdrew from the Union, what benefits he would have concerning pension, vaca- tion days, and days off, and that Allen and Sewell told Worrell they had a comparable plan to the Union's pen- sion and health and welfare plans and that the employees would not lose anything in these areas as they (Sewell and Allen) had to pay the going rate in the city of Mem- phis or they would lose their employees and therefore they would be competitive as far as wages were con- cerned. Worrell asked about his vacation, and they told Worrell that the standard vacation procedure would pre- vail whether they were union or nonunion . Worrell indi- cated he was interested in doing something about this and wanted to go back to the meat market and talk to some of the other employees and get their opinions, and he (Worrell) would get back to Sewell and Allen. Ac- cording to Allen, the meeting was very short on that particular day. Allen denied telling Worrell that he wanted him and the other employees to get out of the Union. According to Allen either in this meeting or a second meeting , Worrell stated that he had some friends or relatives who had worked at Firestone or Internation- al Harvester and referred to the hard times those compa- nies were having and that he was aware of the fact there was a possibility of those plants being closed. Sewell also acknowledged that he and Allen met with Worrell in mid-July (1982) in the office of Store 103. Sewell testified that he opened the meeting and told Worrell that there was something important to them (Sewell and Allen) and also to him (Worrell) that they felt would affect the future of Worrell as well as the future of Sewell and Allen and that they wanted to dis- cuss some potential problems that might arise in the fall SEWELL-ALLEN BIG STAR of 1982 when the present contract with Local 452 ex- pired as it looked like they were going to be dealing with Leon Sheppard and his union instead of Mike Man- cini and Johnny Lambert (the former representatives of Local 452) as they had in the past. They feared some dif- ficulty in dealing with Sheppard and problems arising from that and they wanted to inform Worrell of this. Ac- cording to Sewell, he and Allen told Worrell that there could be problems because Sheppard had a reputation for having strikes, pickets, and that type of thing, and they also told Worrell of a threat that had been made to them by someone representing that Union that caused them some concern. Sewell testified that Worrell made the statement that he did not know a lot about the Union but had heard some things that were not good about the Union and that he had some thoughts about getting out of the Union and if they did not mind, he would, ask them a few questions that they agreed to. Allen an- swered an inquiry by Sewell with respect to the type of benefit programs that would be available to them if they got out of the Union and told Worrell that if anyone withdrew from the Union, they would not lose anything. Sewell denied that either he or Allen at any time told Worrell that they wanted him to get out of the Union or that they could not work with Leon Sheppard or that if he got out of the Union, the Company would provide better hospitalization and life insurance than he currently enjoyed. Sewell testified that the conversation about a contract with Worrell came up in one of the meetings with Worrell, but that he was not sure whether it was this meeting or a subsequent meeting. Sewell testified he told Worrell it would be illegal for them to give the em- ployees a written contract as they already had a con- tract. According to Sewell, Worrell brought the subject of Firestone or International Harvester up and noted that employees ought to be thankful if they had a good job as Worrell had friends or relatives employed at one or an- other of these organizations who were worried about their jobs. Worrell stated he would like to think about getting out of the Union and would like to get back with Sewell and Allen after he had time to think about it and that he wanted to talk to some other employees about it. I credit the testimony of Worrell. It is undisputed that Sewell and Allen initiated this meeting and brought up the subject of their perceived difficulty in dealing with Local 1529, and made it clear to Worrell that he could do better or at least as well without the Union, and their desire that he withdraw from the Union. I thus find that Respondent Sewell-Allen, Inc., No. 2, violated Section 8(a)(1) of the Act by soliciting Worrell's withdrawal from Local 1529, and by indicating that they would be unable to deal with Sheppard which is an anticipatory refusal to bargain. Moreover, I find that Allen's initial question to Worrell as to the type of future he planned with the Company was also a violation of Section 8(a)(1) of the Act as this was clearly an unspecified threat that his future could be endangered if he continued to sup- port the Union, particularly in light of Allen's statement that he wanted the employees out of the Union. I further find that Respondent's references to being competitive with other employers and that the employees would not lose anything were promises of wages and benefit in- 345 creases without the necessity of belonging to the Union, and that Respondent also violated Section 8(a)(1) of the Act, thereby. I further find that Sewell's statement con- cerning Firestone and International Harvester and their possible plant closures as well as his statement that if he had a union in another store, he would close it, were clear threats that Big Star No. 103 might be closed if the employees, and specifically Worrell, remained in the Union, and were also violations of Section 8(a)(1) of the Act. I find that the statements that Sheppard had a repu- tation for strikes was also an unlawful threat and a vio- lated of Section 8(a)(1) of the Act. 5. The meeting of July 26, 1982 Worrell testified that he had a subsequent meeting with Sewell and Allen approximately 2 weeks after the initial meeting with them. This meeting also took place in the front office of the store. At that time, Allen asked Worrell whether he had changed his mind about getting out of the Union. Worrell replied that he had not, and planned on staying in the Union because "it is better for me and my family." Sewell and Allen told Worrell that they would give the employees better benefits than the Union had and that anything the Union had, they had something better as far as life insurance and hospitaliza- tion and they would take the $8 per month that was cur- rently paid into the Union's pension fund and put it into an IRA for the employees. They further stated that they could not work with Leon Sheppard whereas they had been able to work with Mancini and Lambert. Worrell testified that at that time, he told them he would get out of the Union. Allen testified that this meeting with Worrell took place about a week after the initial meeting and that Worrell told Allen and Sewell that he had talked to some of the other employees and would like to get back with them so they went up to the front office and Wor- rell told Sewell and Allen that he had some more ques- tions for them. Worrell then asked about the pension plan and they told Worrell they were in the process of preparing a pension plan that would start at the year ending July 1 (1982), but they had not yet decided on the formula. They also talked about an IRA. Worrell again inquired about pay and they emphasized they had to be competitive and in this meeting Worrell asked whether Sewell and Allen would sign a contract with him. Sewell told him they could not do that because they were already under an agreement and it would be against the law for them to sign another agreement with a group of people. Worrell inquired about working con- ditions and asked whether the help (number of employ- ees) would be cut and they assured him that working conditions would be the same as they had in the past At the end of the meeting, Worrell stated he was seriously thinking about getting out of the Union and that some of the other employees in the meat market felt the same way he did. Worrell stated that he would like to get back with the other employees and set up another meet- ing and have some of the other employees meet with Allen and Sewell as well as himself. Allen denied that he began this meeting by asking Worrell if he had changed 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is mind about getting out of the Union or that Worrell had stated in that meeting that he intended to stay in the Union because it was better for himself and his family Allen denied that either he or Sewell offered Worrell better benefits than the Union was providing. Sewell testified that he and Allen met with Worrell about a week after the initial meeting, and Allen opened the meeting by stating that Worrell had wanted to get back to them and they were in the store today and wanted to talk to Worrell if he had anything to ask them. At this time Worrell inquired concerning the types of benefit programs such as health and welfare and pen- sions, and pay rates, that would be available to him if he withdrew from the Union. Allen responded concerning the health and welfare program that they would have for the grocery employees and that if Worrell withdrew from the Union, he would be under the same program as the grocery employees. Allen went into details and told Worrell that it contained a disability provision, dental in- surance, eyeglass insurance, and other benefits. Accord- ing to Sewell, this plan was almost the same as that which the meat department employees then currently had through the Union in accordance with the labor agreement as they had taken the Union's plan and used it as a sample and given it to two or three insurance com- panies to obtain bids on the cost for a similar plan. Wor- rell also inquired about the pension plan and Sewell told him there would be a pension plan in effect as of July 1 (1982) for all the store employees but that he could not give him the exact details of what it would be. Worrell asked about holidays, and they told him about personal holidays, and they told him there would be no changes in holidays or vacations. Worrell asked how pay in- creases would be determined and they responded that pay raises would be granted in accordance with what competitors (other grocery stores) paid their employees. At the close of this meeting, Worrell stated he had been talking to some of the other employees in the meat market and a number of them were interested in getting out of the Union and asked whether Sewell and Allen would meet with them so they could ask questions di- rectly of Sewell and Allen. Allen responded that they would be glad to meet with the other employees at any time. Neither he nor Allen stated that they would give the employees better benefits if they got rid of the Union or better life insurance and hospitalization insurance Neither he nor Allen asked Worrell whether Worrell had changed his mind about getting out of the Union. Neither he nor Allen stated that they could not work with Leon Sheppard. I credit Worrell's testimony, and I find that Respond- ent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act by the interrogation of Worrell by Dan Allen and Sewell concerning whether he had decid- ed to get out of the Union at the outset of the meeting. I find that said Respondent also violated Section 8(a)(1) of the Act by the statement of Allen and Sewell that they could not work with Sheppard which constituted a threat of the futility of continuing to be represented by the Union as Respondent would not deal with the Union. I further find that Respondent made an implied promise to Worrell of better benefits, terms, and working condi- tions if the employees chose to no longer be represented by the Union, and that it also thereby violated Section 8(a)(1) of the Act. 6. The meeting in late July 1982 between Phillips and Rowley and Shelton Thomas Shelton Jr., an aprentice meatcutter at Big Star No. 103, testified that in July or August 1982, he was initially involved in a conversation with his supervi- sor, Clifford Phillips, and with Michael Rowley, another apprentice meatcutter This conversation took place in the meat department. At that time, Phillips came in and motioned Rowley and Shelton to the side and stated, "I don't know whether you know it or not, but contract time is coming up, and Mr. Sewell and Mr. Allen want to decertify the union." Phillips then stated, "What they have to offer is better as far as their insurance." Phillips also told them that the retirement plan would be better. Phillips also told them that as soon as Rowley became a journeyman meatcutter, they (Sewell and Allen) would put him on the night shift and also stated that Rowley and Shelton "had not had any say so in the union merger from Local 452 and Local 1529 " During the course of this conversation, Shelton asked Phillips if he would put what he had stated in writing, and Phillips stated that "I'm pretty sure they would." Phillips told the employ- ees that the stores would follow the Kroger and Montessi (two other retail grocery store operations in the area) contracts line for line. Michael Rowley, an apprentice meatcutter, testified concerning an initial conversation between Phillips and himself and Thomas Shelton in the meat department. Phillips approached the two employees and told them that Sewell and Allen were not rich men as the former owner of this Big Star store had been, and that the econ- omy was bad and that the employees' vote was needed as the contracts were coming up shortly in August and that Sewell and Allen would like for the employees to stand behind them in getting out of the Union. Phillips emphasized that Shelton and Rowley were young, and that they could grow with Sewell and Allen over the years if they voted their way. Phillips also mentioned that a lot of businesses were closing down such as Inter- national Harvester and Firestone and that a lot of em- ployees were walking the streets and that they could also be walking the streets later on if something did not happen. Phillips also told them that because they were apprentices and most of their job requirements were to cut chickens, the Employer could go to prepacked chicken and they (Shelton and Rowley) could be walk- ing the streets as they would be laid off. After further questioning by the General Counsel, Rowley also re- called that at this meeting Phillips had made a statement the because Rowely was an apprentice and the low man on the totem pole with respect to seniority, he could be subject to less desirable working hours; that in March (1983), Rowley would become a journeyman meatcutter and the Union required journeymen meatcutters to work on the third shift which commences at 5 p.m.; and that Shelton and Rowley could be given some "rotten hours." SEWELL-ALLEN BIG STAR I credit the testimony of Shelton and Rowley which is unrebutted as Phillips did not testify at the hearing Al- though I recognize some differences of recollection in their testimony, I find their testimony is essentially cor- roborative particularly with respect to the central theme of the meeting with Phillips that Sewell and Allen wanted them to withdraw from the Union and Phillips' solicitation of their withdrawal. I found both Shelton and Rowley to be candid and credible witnesses. I, accord- ingly, find that Respondent violated Section 8(a)(1) of the Act through its agent Phillips by the solicitation of these employees by Phillips to withdraw from the Union by the promise o improved retirement and insurance ben- efits if they chose to withdraw from the Union and by threatening them with adverse consequences with re- spect to the selection of hours and loss of employment if they did not withdraw from the Union. 7. The meeting of Sewell and Allen with meat department employees in Store 103 in early August 1982 Worrell testified that he attended another meeting in the produce room approximately 2 weeks after his second meeting with Sewell and Allen. Present at this meeting were Herbert Bobbitt, Jim Kimbrough, Clifford Phillips, Mike Gordon, and Sewell and Allen. Bobbitt and Kimbrough were journeymen meatcutters at the time. At this meeting Allen stated that they (Sewell and Allen) had brought the employees there to have a meet- ing to talk about getting out of the Union. Allen went over the benefits and told them how benefits would be better without the Union and that he could not work with Leon Sheppard. Allen told them that he had run Sheppard out of a previous store. Allen told them that if the employees got out of the Union, they would have better hospitalization, life insurance, and retirement. Worrell asked Allen about working conditions at the store, and Allen told him that the only thing the employ- ees would have to do is their job. Allen asked why the employees needed a union, and Worrell replied he needed the Union because they had his retirement, and Allen told him that "your retirement (Union) would be frozen after 10 years." James Kimbrough testified as follows- Approximately August 2, 1982, Sewell and Allen met with Kimbrough and other employees in the produce room at Big Star No. 103 and discussed their withdrawal from the Union. Present at this meeting were Kimbrough, Sewell, Allen, Phillips, Gordon, Worrell, and Bobbitt. Sewell referred to Leon Sheppard, the union representative, by an ob- scene name and stated he would not allow him in his store Sewell and Allen talked to employees about retire- ment insurance benefits and getting out of the Union. Sewell stated that they had fought Sheppard to keep him out of the front end of the store, and as a result of the mergers with Local 425 and Local 1529, Sheppard was coming in the back door now. (The front end refers to the front area of the store staffed by checkers and stock- ers whereas the back end refers to the area of the store staffed by meat department personnel.) During that meeting, Sewell and Allen stated that they felt that the Union believed there had to be a meatcutter there at 347 night. Kimbrough agreed with Sewell and Allen that it was not necessary for the store to have a meatcutter there all night and suggested that when negotiations for the contract came up, he believed that the Union would bargain with them concerning this matter. Sewell and Allen stated that they were not going to have the Union, and they would give the employees a chance to think about it and get back with them later. Bobbitt was not called to testify nor as stated earlier did Phillips testify at the hearing. Gordon who testified was not questioned concerning this meeting. Sewell testified as follows. This meeting occurred about a week later than the second meeting with Wor- rell. Present at this meeting were Allen and Sewell, Gordon, Phillips, Worrell, Kimbrough, and Bobbitt. Allen opened the meeting and stated that he and Sewell understood that some of the employees had questions they would like to ask and that was the reason they were there. Kimborugh spoke first and stated they were having problems with the union situation and would like to ask questions concerning what would happen if they decided to get out of the Union. Kimbrough asked ques- tions about the health and welfare programs, the pension programs, and the pay raises. Sewell does not recall Bob- bitt, Phillips, or Gordon talking in this meeting. He re- calls Worrell saying that he wanted to think about this (getting out of the Union) and that he would get back with them. Sewell responded to Kimbrough's questions and told him that they would have the same health and welfare program that other employees in the store had. Allen told Kimbrough that they were looking at a number of pension programs for all employees at the store. Kimbrough was told that wage increases would be determined as in the previous years by considering what competitors (other retail grocery stores) did. Kimbrough stated he wanted to think about it and get back with them. Neither Sewell nor Allen made any statement to the effect that employee benefits would be better without the Union, nor did they state they could not work with Leon Sheppard. He does not recall any discussion about improving working conditions or reducing the number of people in the department. Neither he nor Allen asked any of the employees why they needed a union. Allen testified as follows. There was a subsequent meeting with Worrell that also included other employees about a week after the second meeting with Worrell. This meeting took place in the produce room of Store 103 Present were Sewell, Allen, Gordon, Phillips, Wor- rell, Kimbrough, and Bobbitt. Allen started the meeting and told the employees that he understood through Wor- rell that some of them wanted to ask more questions or to discuss the merger situation. Kimbrough did most of the talking. Phillips said nothing nor did Gordon and Worrell say very little at the meeting. Sewell and Allen told the employees they were there to answer any ques- tions concerning what would happen if the employees got out of the Union with respect to the pension plan, health and welfare plan, vacation schedules, and working conditions and gave them the same answers as in a prior meeting with Worrell. Neither Sewell nor Allen offered better vacations or better personal holiday programs to 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the employees. They might have talked about Interna- tional Harvester and Firestone companies in this meeting also. At the end of this meeting, Kimbrough said that the employees would talk it over among themselves and would get back to Sewell and Allen at a later date it they had more questions. Worrell may have asked about working conditions, and they told the employees that working conditions would not change, and that the em- ployee complement would not be reduced to half its cur- rent number in response to a question by Worrell. They did not ask Worrell or the assembly of employees at that meeting why they needed a union. I credit the testimony of employees Worrell and Kim- brough as set out above. I recognize some differences in recall by these employees as to the specific statements made by Sewell and Allen at the meeting. However, there testimony was corroborative as to the essentials of this meeting. I found Worrell and Kimbrough to be cred- ible witnesses. With respect to Sewell and Allen's credi- bility in this instance, I find that this incident is only one of a series of incidents involving Sewell and Allen wherein they solicited the employees to get out of the Union. I find that Respondent Sewell-Allen Big Star, Inc, No 2 violated Section 8(a)(1) of the Act by solicit- ing its employees to withdraw from the Union and by their statements of Sewell and Allen that they were not going to have the Union in the store and would not have Sheppard in the store as these statements clearly con- veyed the message expressed to the employees that it would be futile to continue to support the Union. I fur- ther find that Sewell and Allen's promises to give the employees improvements in pension, health, and welfare programs and that they would remain competitive with respect to wages and benefits constituted promise of im- provements in wages and benefits to the employees with- out the necessity of the Union and were violations of Section 8(a)(1) of the Act. 8. The mid-August 1982 meeting of Sewell and Allen with the employees in the meat department at Big Star No. 103 Worrell testified that approximately 2 weeks after the meeting in the produce room he attended a subsequent meeting along with other employees with Sewell and Allen which was also held in the produce room. At that meeting were employees Kimbrough, Shelton, and Rowley as well as Sewell, Allen, and Worrell. At this meeting Allen asked the employees if they had changed their minds about getting out of the Union and the em- ployees all replied that they had not and were going to stay in the Union. At this time, Kimbrough asked, "what would happen if we stayed in the union? What would happen if I stayed in the Union?" Worrell testified that either Sewell or Allen stated that if Kimbrough stayed in the Union, his family would be on the street and he would be out of a job. Worrell testified that Kimbrough stated he would remain in the Union. At that point, Worrell was asked if he had anything to say in reply and he did not. Kimbrough testified that at this meeting Sewell asked everyone if they had had a chance to think about what they had talked about in the previous meeting, and that he would like an answer . Sewell then looked at Kim- brough and Kimbrough told him that he , would stay in the Union, and Sewell replied, "well, you know what that means," and Kimbrough stated, "I guess it means I will be in the union." To which Sewell then replied, "That means whether you will have a job or not." And "You better think about your wife and children." Kim- brough testified further that during this meeting Worrell asked if Sewell and Allen would pay insurance retire- ment benefits and why the employees should get out of the Union if everything would be paid anyway. Sewell replied they could not deal with Sheppard. Kimbrough testified further that employee Rowley asked if the em- ployees got out of the Union, whether seniority would still be followed with respect to layoffs and other mat- ters, and Sewell and Allen stated they could not promise anything but they would try to go by it as close as they could. He did not recall whether Sewell or Allen had made this statement. Kimbrough testified further that either Sewell or Allen stated that if the employees got out of the Union, they would honor Kroger's contract, and that anything the Kroger employees got, they would get. Shelton testified that at this meeting Allen asked whether the employees had given any thought to what had been discussed earlier concerning decertification of the Union, and that Sewell stated they were prepared to give the employees a better insurance policy than they had and that whereas the current policy contained a $50,000 limit, their policy would be limitless. Shelton tes- tified that either Sewell or Allen stated the retirement plan they had to offer was better than the existing one and that they would follow the Montesi's and Kroger's (two retail grocery store chains) contracts line for line and were willing to put this in writing. Sewell and Allen asked if there were any questions from the employees, and Kimbrough stood up and stated he was not going to get out of the Union. At that point, Sewell said, "Well, Jim, I'm sorry you feel that way, when Christmas you are out on the streets." Kimbrough replied, "Well, that's just how I fell." The employees were then told that this would be the last time they (Sewell and Allen) would be talking to them and that they had 2 weeks before the pe- tition (decertification) went out. During this meeting, Sewell and Allen told the employees they were not able to get along with Sheppard and called him an obscene name. Rowley testified that the meeting occured in August approximaely 2 or 3 weeks after his initial meeting with Phillips, and that Sewell did most of the talking and stated that it was time to decertify the Union and time was closing in quicikly and they needed to decertify soon and that he wanted to know how the employees stood on that situation as to whether they were going to get out of the Union . Sewell gave them some examples concerning their pension and what the benefits would be without the Union and told Shelton that by retirement time, he would have $200,000 in his retirement or pen- sion plan, and under the Union 's pension plan he would not have nearly that amount of money. He also said that their wages would be the same as Kroger's, that they SEWELL-ALLEN BIG STAR would not have a contract, but that if Kroger got a raise, they in turn would get an equal raise and essentially they would have the same benefits as Kroger employees had. Sewell also stated that he did not agree with the Union's new leader, Leon Sheppard, as he personally did not like him and called him an obscene name. Sewell said that they would not sign any petition with the Union. He also asked the employees how they stood on the Union, Kim- brough said that he was going to stay with the Union and Sewell said, "Well, depends on who you trust if you trust them that don't sign your check or you trust the people who do sign your check," and they were thinking about long-range effects, and that Kimbrough said he was thinking about job security and Sewell said, "Well, I hate to see you walking the street, come December or January." Sewell testified that this meeting occurred about 2 weeks after the earlier one with the various employees in Big Star No 103 and was held in the produce room at Big Star No. 103. Allen opened the meeting and asked whether there were any questions and Kimbrough asked them to repeat information concerning the health and welfare program. Sewell replied to this and basically told them what they had told them before about that pro- gram Rowley brought up a complaint that he thought he deserved to be classified in a higher wage rate bracket than that of an apprentice because of his service at the store prior to the purchase of the store by Sewell and Allen. Sewell told him they could not accommodate him on this and he would receive a journeymen rate when it became due. According to Sewell, Mary Armour was also at this meeting but did not say anything. He also does not recall Worrell stating anything at this meeting. Sewell told Kimbrough they were looking at three dif- ferent pension programs and told them what the options were and picked Shelton to give an example with him regarding the annuity program. Near the end of the meeting, Kimbrough stated he did not know how the others felt but he thought for the time being, he wanted to stay in the Union. Sewell responded and said, "Well, Jim, that is your prerogative to make that decision if you want to I just hope you know everybody understands that we will be negotiating a contract sometime in Octo- ber and if we do indeed run into any problems with ne- gotiating a contract with Leon Sheppard and if we can't reach an agreement on the contract, the way Mr. Shep- pard has acted in the past, there is no telling what is going to happen," and that he said, "We all may be out on the street after that period," as "he is liable to put pickets around it." Allen told the employees if they had anything else they wanted to ask, to feel free to come to them and there were no other meetings held at this store. He does not recall whether or not Allen began the meet- ing by saying that it was time to decertify the Union or that time was closing out quickly and they needed to de- certify it soon. Neither he nor Allen stated that he was not going to have any dealings with Leon Sheppard or was not going to sign an agreement with Leon Shep- pard's Union Nor did they ask the employees what their position or standing on the Union was or if they had changed their minds about getting out of the Union. Nei- ther Sewell nor Allen made any statements to Kim- 349 brough or anyone else at that meeting that if they stayed in the Union, the employees would lose their jobs and their families would be out on the street. Allen's testimony concerning this meeting essentially corroborated Sewell's testimony. Allen recalls Sewell making statement that it would be difficult to deal with Sheppard and could lead to a bad situation if they got to the point where they could not negotiate with him and that it was very likely in that event that they would take some type of economic action which would involve pickets and there could be a strike and you could be out walking the picket line. Neither he nor Sewell stated that he would not sign a contract with the Union. Neither he nor Sewell stated that if the employees stayed in the Union, their families would be on the streets and they would be out of a job. I credit the testimony of the employes as set out above rather than the version of Sewell and Allen. I find that Sewell and Allen did engage in interrogation, solicitation of the employees to withdraw from the Union by their questions as to how they felt on the Union and whether they were willing to get out of the Union and as to their statements that it was now time to decertify the Union or that time was drawing close to do so. These state- ments were clearly violative of Section 8(a)(1) of the Act. I further find that the statements made by Sewell to the effect that they would not deal with Sheppard or sign a contract with Sheppard were messages to the em- ployees of the futility of continuing to support the Union and were also violative of Section 8(a)(1) of the Act. I further find that the example given of employee Shelton accummulating greater benefits under the Employer's proposed pension plan as opposed to the plan currently in effect with the Union was a promise of improved ben- efits if the employees withdrew from the Union and vio- lative of Section 8(a)(1) of the Act. I also find that the statements that the Respondent would follow the con- tracts of other retail grocery stores in the area were promise of improvements in wages and benefits without the necessity of the employees' representation by the Union and were also violative of Section 8(a)(1) of the Act. I also find that Respondent violated Section 8(a)(1) of the Act by the stated threat to discharge Kimbrough because of his decision to stay in the Union to the effect that he had better think about his family and that he would be out on the street. See Weather Tamer, Inc., 253 NLRB 293, 304 (1980), enfd. in part 676 F.2d 483 (11th Cir. 1982). 9. The mid-August 1982 meeting of Sewell and Allen with the meat department employees at Big Star Store No. 189 William Garland, the head meatcutter at Sewell-Allen Big Star No. 189 in August 1982, testified that he had meetings and discussions with Sewell and Allen concern- ing the Union. The first meeting occurred approximately the first of August. Allen called him on the store phone and asked him to come to the maine office in the front of the store. He went there and Sewell and Allen were in the office. Allen commenced the conversation referring to the past weeks' sales in the market and told Garland 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he was doing a good job running the market and hoped that he continued to do a good job. Sewell stated that they wanted to talk to him about getting out of the Union. Garland replied he was not interested in getting out of the Union. Sewell said he did not want his answer right then but wanted time to wait and give him the answer later. Sewell told him they would give him the same benefits that he now had with the Union. They asked Garland if he would talk to the other employees in the meat department about getting out of the Union and Garland said that he would. Neither Sewell nor Allen said they wanted to talk to him about the merger be- tween Local 1529 and Local 452 nor did they want to talk about any difficulties they foresaw because of the merger between the two Unions. He did not tell Sewell or Allen or any other supervisor that he wanted to talk to them about the merger nor that he wanted to talk to them about getting out of the Union nor that he wanted to talk to the other employees in the market about get- ting out of the Union. Allen testified that at the first meeting, Sewell and he got together with Garland to discuss the merger and how they felt it would affect them and the problems they could foresee in dealing with Sheppard and they wanted to talk to Garland and he wanted to talk to them about the situation. Allen testified that after that meeting, Garland requested that he and Sewell go back and talk with other employees in the meat market. Several days later, Garland told Allen he would like to have another meeting with Allen and Sewell and have some of the other employees from the meat department there also. On approximately August 20, 1982, Sewell and Allen met with employees Garland and meatcutters Bobby Thurman and Jim Perry in the meat department at Store 189. Garland testified that approximately 3 weeks later, there was a second meeting with Sewell and Allen. Present at that meeting were Allen, Sewell, and meat de- partment employees Bobby Thurman and James Perry in addition to Garland. Allen called the employees on the store phone and asked them to come to the front office. Garland had not requested this meeting with Sewell and Allen, nor had he told Sewell and Allen that any of the employees had questions for them about getting out of the Union. On cross-examination, Garland acknowledged that he had filed a grievance on May 19, 1983, about his discharge from the Employer. He denied he had stated he had strong feelings at the second meeting attended by Thurman and Perry that Sheppard' s union was responsi- ble for four of his tires being cut when he was employed by Pic-Pac during a dispute between Sheppard's union and the Meat Cutters Union (Local 452) at Pic-Pac in 1981. He denied also having told Sewell at anytime before that meeting about difficulties with Sheppard's union, or that he blamed Sheppard's union for cutting four tires on his car. His tires were not cut during the course of that dispute, but one of the tires was deflated. His discussion with Allen concerning his'tires was prior to the first meeting in August. Bobby Thurman testified that on August 20, 1982, during the course of a meeting, initiated by Allen, and Allen and Sewell discussed getting out of the Union with the employees. The discussion took place in the main office over the store area. The conversation was initiated by Allen. Allen asked if Garland had spoken to the em- ployees about decertifying the Union and they nodded their heads that he had done so. Allen then asked wheth- er the employees understood the situation. Thurman then spoke and stated that he was there to listen. Allen then went on to state that he could get the employees better hospitilization without the Union and that a lot of money was being spent on their union health and welfare plan and that Allen did not know where it was going and that as far as he was concerned, it was a rip off. Allen then stated that their retirement was not good and'that by the time they were retired, they could not get over a couple of hundred dollars and that Allen and Sewell could es- tablish an IRA account and that the employees would realize a greater accumulation of funds with such a plan than with the existing union plan. Allen gave the em- ployees examples as to how this would work utilizing employee Perry as an example. Allen went on to state that the employees' salaries would be based on what Kroger's employees were paid. Perry asked Allen if he would put this in writing, Allen stated he would be glad to do so after the Union is out but it would be illegal for him to do so at this time and that the employees would have to trust him in the meantime . At this point, Sewell took over and told the employees that he realized they were not responsible for the merger with Local 1529 and for its leadership by Leon Sheppard. Sewell called Shep- pard an obscene name and related some past experiences involving Sheppard's prevention of the discharge of em- ployees who had stolen something Sewell stated that (Sewell and Allen) had always been able to work with Lambert and Mancini but that Lambert was no longer involved and Mancini was on the way out. Sewell did not think there was any way he could sit down and ne- gotiate a contract with Sheppard. Sewell then stated it could very well be that the employees could be out on the streets with picket signs and that the holidays were near and they should think of their families. At that point, Thurman asked whether they could be discharged without a union contract if Sewell stated their jobs would be based on performance and asked whether the employees trusted them. No one replied and Garland spoke up and told Sewell and Allen that he was going to have to take up the meeting with union officials. Sewell responded that some of the things that he and Allen had stated could possibly be construed as illegal and there was a possibility that a lawsuit could be filed, but he hoped that what had been said would go no further than the meeting itself. Allen spoke up and asked the employ- ees to give them a year and if they did not live up to their promises, the employees could reorganize. Sewell and Allen asked if there were more questions . Thurman spoke up and stated that he wanted to think about it and his answers would be based on past experiences with store owners over the past 23 years. Sewell and Allen agreed and asked Perry and Perry stated he would think about it. On cross-examination, Thurman acknowledged that at the time of this conversation, Kroger rates were approximately the same as those paid to employees at SEWELL-ALLEN BIG STAR Sewell-Allen. Thurman also recalled the mention of tires being cut at this meeting but does not recall exactly what was said, Jim Perry, an apprentice meatcutter employed at Sewell-Allen Big Star No. 189, testified that at the begin- ning of the meeting Allen asked Thurman, Garland, and Perry if they knew why the were there and they replied they had heard rumors about decertifying the Union. Allen agreed and wanted to know what they thought about it. Allen asked them each how long they had been in the Union. Allen told them he had reviewed the Union's retirement plan and felt his retirement plan would be better for the employees if they withdrew from the Union and utilized Perry as an example to demon- strate the amount he would receive from his contemplat- ed plan. Allen told the employees he did not know where the money was going for the current union plan. Allen stated he would not be able to sign a contract with Sheppard but could have done so with Mancini of Lam- bert. He felt the employees would be on strike in Octo- ber or during the holiday season and did not feel he or the employees could afford it Allen and Sewell asked if there were questions. Perry replied that the hardest thing was to give up a written contract that set out the wages and benefits and asked if Allen was going to ask him to give that up and put his trust in him and he told Allen that he could not do that. Allen stated he could not give Perry a written contract. Sewell stated he had had other dealings with Sheppard and called him an obscene name and said he could not sign a contract with him. Allen asked the employees to think about decertification, and that they still had time before the date for the decertifi- cation petition to be turned in and to think about it Sewell and Allen told the employees they would get back with them but never did so. Allen testified that he opened this meeting and told Perry and Thurman that he thought they knew why they were there and they said that Garland had already talked to them and they knew they were to discuss the merger and problems surrounding it. A question-and- answer period followed where the employees asked questions concerning the pension plan and health and welfare plan and whether they would lose anything if they withdrew from the Union. They also discussed wages and Allen and Sewell told them it was their inten- tion to pay a competitive wage and they realized their wages and benefits needed to be comparable to Kroger. Garland discussed an experience he had with Sheppard who he blamed for having tires cut on his automobile. Allen recalled that he utilized Perry, who was a young man, as an example with respect to a pension plan under consideration and showed him what he would get in return for the same amount of money as compared to under the Union's pension plan. He believes that working conditions were also discussed and the employees were assured that working conditions would remain the same. The employees told Allen and Sewell at the end of the meeting that they would think about it and get back with them and let them know if they wanted to talk to them again. Allen received no further contact from them. Allen denied that he at any time offered to provide these 351 employees with additional pay or benefits in order to secure their withdrawal from the Union. Sewell essentially corroborated Allen's testimony con- cerning the meeting. Sewell testified he believes he an- swered a question with respect to a health and welfare program he and Allen were in the process of putting to- gether, which was to be effective September 1, 1983, for all employees in the store. Garland asked about the pen- sion program and Sewell told him that at the present time, there was not a pension program for the grocery employees in the store but one wold be established at the end of the corporate year in November and they were looking at a proposal for pension plans and had nar- rowed it down to three options, an IRA program, an in- surance annuity program, and a profit-sharing program. Allen utilized Perry as a example of what he would obtain in the future under the annuity type of program. Thurman asked how wage increases would be handled in the future if the employees withdrew from the Union and Sewell replied that as in the past, they would give the same increases as the major competitors gave and would have to do this in order to retain good employees. Sewell also related the comment by Garland concerning the tires being cut. Sewell testified that at this meeting neither he nor Allen stated that the Company could get better hospitalization without the Union and that the only thing that was said with respect to comparing wage increases and Kroger rates was that they would give the employees increases as they had in the past as their com- petition at Kroger and Montesi's. Neither he nor Allen offered to put into the written contract existing wages and benefits if the Union no longer represented the em- ployees. There was some discussion that it would be dif- ficult dealing with Leon Sheppard. He does not recall, and does not believe, he said there was no way he could sit down and negotiate a contract with Sheppard. He did ask the employees to listen carefully because the meeting could be misconstrued as illegal and that he could make no promises or threats to them and he wanted them to understand that he was not doing that. I credit the testimony of the employees that Sewell and Allen did in fact interrogate them and promise them improved benefits particularly with respect to the pen- sion plan and with respect to paying competitive wages in line with major competitors and that Respondent fur- ther threatened the employees with the futility of the continued support of the Union as Sewell and Allen would not sign a contract with Sheppard or the Union and also told the employees that it was likely that there could be a strike later in the year if they continued to be represented by the Union. Accordingly, I find that Re- spondent Sewell-Allen Big Star, Inc. violated Section 8(a)(1) of the Act by unlawfully interrogating the em- ployees at the meetings concerning their union sympa- thies and solicited their withdrawal from the Union. I find that the Respondent also violated Section 8(a)(1) of the Act by promising improved pension plans through the employer-sponsored plan as opposed to the Union's plan and improved benefits with respect to the health and welfare plan and improved hospitalization benefits, and by promising to keep up with the competition with 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD respect to wage rates in the absence of their representa- tion by the Union. I also find that Respondent violated Section 8(a)(1) of the Act by its statement to the effect that it would be futile to be represented by the Union as Respondent would not negotiate with the Union and would not sign a contract with Sheppard and his Union. I further find that Respondent issued an unlawful threat in violation of Section 8(a)(1) of the Act by the state- ments that the Union was likely to strike later in the year and that the employees could be out of walking the picket lines and they should think of their families at this time. 10. The meeting between Fortner and Sewell Mary Fortner, a meat wrapper at Big Star No. 103 until she was laid off on January 8, 1983, testified that in late August 1982, she had a dispute with Clifford Phil- lips, her supervisor, regarding arrangements for a person- al holiday wherein she was told to take both or her per- sonal holidays at the same time. She raised this question with Union Representatives Mancini and Bill who came to the store and discussed the contractual provisions con- cerning personal holidays with Clifford Phillips. The dis- pute was settled at that time. After Mancini and Smith left the store, she was putting items in the meat case and was approached by Sewell who had asked her if every- thing was all right. She told him what had happened and she did not understand what had happened. She testified that Sewell then told her that they do not need them (the Union) in the store and asked her to call him regard- ing any other problems. I credit Fortner's testimony which is unrebutted as Sewell did not testify concerning this incident. I find that Respondent violated Section 8(a)(1) of the Act by telling Fortner that it was not nec- essary to have union representatives represent her in grievances with the Employer and by soliciting her to bring her grievances to him, thus undermining the Union's status as her collective-bargaining representative. 11. The circulation of the decertification petition Leroy Dancer, who at the time of the hearing was em- ployed at Sewell-Allen Store No. 103 as a full-time jour- neyman meatcutter and who had previously been a part- time journeymen meatcutter since December 1977, testi- fied as follows. On July 20, 1982, he was approached by Clifford Phillips in Phillip's office and asked whether he had considered getting out of the Union work without the Union. Phillips informed Dancer that he could give Dancer more hours as Dancer was then a part-time em- ployee. Dancer agreed that he would be willing to work without the Union or that he would consider it. A few days later, Phillips called Dancer at his home and asked Dancer again whether he would get out of the Union. Dancer told him he would. Subsequently, in August, Dancer was approached by Store Manager Gordon while picking up his paycheck at the front of the store and Gordon told Dancer that he understood that he wanted to get out of the Union. Gordon then stated that he would tell him what he had to do and them pulled out a piece of paper from his billfold that read, "We do not want Local 1529 nor 452 to represent us. We want out." Gordon told him he should get this petition circu- lated and obtain signatures . Dancer did not reply to this. Gordon told him that Dancer needed to get signatures and specified that Dancer's name should be on the top of the petition and that the wording on the piece of paper should be written on a piece of paper and dated and Phillips' name should be on the bottom. Later that day, Dancer, who worked primarily evening hours had re- turned to work in the evening and saw a note to call Phillips at home. Before he was able to place a call to Phillips, Phillips called Dancer and told Dancer that Gordon had said to hold up on the petition. Approximately August 25, Dancer arrived for work and Phillips and Gordon were waiting for him in the office. At that time Dancer was asked whether he was ready to go through with the petition and he replied he was. Then he was told how to proceed and to be at the store on Thursday, August 26, to obtain the signature of John Bevile, a part-time employee, as Bevile would not be working on Friday, August 27. Gordon also took out another piece of paper from his billford with the address of the Labor Board and stated, "you need to take it to this address." Dancer told Gordon that he was getting in a serious situation and did not want to be involved in the petition, that working without the Union was one thing but filing a petition was something else and something he did not want to be a part of. Gordon told Dancer that he needed to go through with it. Gordon also told him, "Now, remember, this is your idea," which statement Gordon repeated throughout the conversation. Gordon explained the procedure as to how to get Bevile to sign and also to ask Worrell and the other employees to sign the petition and make sure that Phillips was the last em- ployee to sign the petition At this time, Dancer told Gordon that he had heard rumors that most of the em- ployees would not sign and there was no way Gordon could win the vote because the majority of the employ- ees would not sign it. Dancer testified that at that point, Gordon called Dancer over to the schedule and said, "Well, I want to show you something." "It is even now. These people are no longer with us." Gordon then men- tioned Bill Gross, Becky Hordyk, and Theresa Heist. Gross was a part-time meatcutter and the other two em- ployees were part-time meat wrappers Gordon told Dancer that these employees had been terminated. Gordon again reminded Dancer of the procedure for filing a petition and Dancer told Gordon that he felt Dancer was heading for trouble. Gordon told Dancer that he knew what Dancer wanted and Dancer would get it The next day, Thursday, August 26, Dancer went to the store early in order to obtain John Bevile' s signature on the petition. Dancer was not scheduled to work until that night. Phillips told Dancer that he would telephone his wife who was a part-time employee in the meat de- partment and also his son to come down to the store and sign the petition. Although Dancer had been scheduled to work on Thursday night, he telephoned Phillips and told him he was under stress as a result of his involve- ment with the petition and would not be able to work his regular schedule. Phillips told Dancer to get some sleep SEWELL-ALLEN BIG STAR and come in when he could. Dancer came in and report- ed at the store at 6 a.m. on Friday, August 27. He worked for approximately 1 hour on the clock until 7 a.m At that point, Phillips told Dancer that whenever he was ready to circulate the petition, to let Phillips know and they would get things rolling. Somewhere be- tween 7 and 8 a.m. Dancer told Phillips he was ready and Dancer went into Phillips' office and placed the peti- tion on the desk. Phillips proceeded to call employees in for the remainder of the morning and told the employees that Dancer wanted to see them at which time Dancer would show them the petition (G.C. Exh. 4) and ask them to sign. Phillips returned to the office to determine how many names Dancer had obtained on the petition. Dancer showed Phillips, and Phillips asked Dancer to take the petition to Gordon. Dancer took the petition to the front of the store to see Gordon who told Dancer, "well, don't show me that in front of the door, let's step over to the side here." The two stepped over to the side of the store in a corner and Gordon inquired whether Dancer had obtained the dates by each name on the peti- tion. Dancer had not done so as a result of a misunder- standing concerning instructions given to him but had merely dated the top of the petition. Gordon then told Dancer that the dates needed to be placed by each name. Dancer then went back to Phillips and told him of this and as some of the employees who had signed the peti- tion were not there at the time, Phillips told Dancer to sign and date the petition himself. Dancer then dated his own signature and Phillips dated the rest of the signa- tures on the petition. Dancer then returned to the front of the store to Gordon and explained to Gordon that he had heard rumors that Dancer was heading for a lot of trouble and would be blackballed and perhaps not find another job in the city. Gordon assured Dancer that Gordon knew what Dancer needed and would take care of Dancer. Dancer filed the petition with the Board's Regional Office on that date. After he filed the petition, he returned to the store that evening at 7 p.m. and told Phillips that the petition had been filed. Phillips then called Gordon on the intercom and Gordon returned to the office in the rear of the store by the meat market, looked over the petition, and said, "Good. This is what we need. Well done, Leroy " Two days later on August 29, a Sunday, between 8 and 9 a.m Dancer received a telephone call from Phillips who told him that his sched- ule had been changed and he would be working full time on the night shift. Dancer thereon became a full-time employee the following Monday night. On August 27, although Dancer had worked only 1 hour, he was paid for 6 hours. When Dancer returned to the store in the evening Phillips asked about his expenses and how long he had been involved in preparing the decertification pe- tition. Phillips then took Dancer's timecard from the file and asked him whether 6 hours would take care of it to which Dancer replied, "it sounds good" whereon Phil- lips credited him for 6 hours of working on time on that date. On cross-examination, Dancer testified as follows. After he left the store on August 27 to take the petition to the Board's office, he initially went to the union hall and talked to Union Representatives Mancini and Smith 353 concerning the petition. They told him to go to the Labor Board and give a statement . Dancer reiterated his testimony that Gordon had initiated the decertification petition. Dancer also denied having given Gordon any hints or indications prior to the initial conversation in the latter part of August that he was interested in getting out of the Union. There was a time gap of almost a week be- tween the time Dancer and Gordon initially discussed decertification and the time that Gordon explained to Dancer what was necessary to put on a decertification petition. The meeting with Mancini and Smith at the union hall prior to filing the petition lasted about 15 to 30 minutes as Dancer explained what had occurred and that he did not want to get involved in the petition and was concerned about various matters including his life insurance and needed some answers. He inquired of Mancini and Smith how this would affect him. Dancer testified that Mancini and Smith told him to tell the truth about the matter and made no assurances to him. Gordon testified as follows. He initially had a conver- sation with Dancer concerning decertification of the Union around the first of August. According to Gordon, Dancer stopped him around the meat case and told him that he was interested in getting out of the Union and wanted to know if Gordon could give him any tips on how to file a decertification petition. Gordon stated he did not know but would find out for him as this was the first time there had been any discussion with Dancer concerning decertification. Other conversations followed this initial one concerning decertification. The next con- versation took place either a week or 2 weeks after that when Dancer came by the office and asked if Gordon had obtained the information. Gordon told him he had. Gordon had the information written down in his wallet which contained a statement as to what should be writ- ten and that it needed to be signed and dated which in- formation Gordon had obtained from Dan Allen. Gordon told Dancer that a letter would be required stat- ing that the employees wanted to decertify from the Union and that it must be signed and dated and taken to the National Labor Relations Board. About the last week in August, there was another conversation at a time when Gordon was in the meat market department and Dancer walked up. Phillips was present at that time also. At this time, Dancer stated he wanted to get the petition filed by Friday and was having a hard time because his work schedule and that of other employees conflicted. Dancer asked Gordon how he would be able to contact each of the employees. Gordon then pointed out that Dancer would have to see certain people on Friday and others at night according to the schedule. Gordon point- ed to three names that were on the schedule and told Dancer that he did not need to see these employees be- cause they had been terminated. Dancer again asked him for the address to the National Labor Relations Board and Gordon gave it to him. On Friday, Dancer told Gordon he had the petition and again asked for the ad- dress of the National Labor Relations Board. Gordon gave him the address again . Dancer did not ask for any special consideration for filing the decertification petition or that he be given any additional hours for filing the de- 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD certification petition . Gordon maintained that Dancer ini- tiated the decertification petition issue and that Gordon at no time asked or ordered Dancer to circulate the peti- tion or to file it with the National Labor Relations Board. As noted above, Phillips did not testify. Analysis I credit the testimony of Dancer. I found him to be a credible witness who testified with detailed and specific recollection of the facts involved in a forthwith manner. His testimony is unrebutted with respect to his conversa- tions with Phillips who did not appear and testify at the hearing. Moreover, much of his testimony was not spe- cifically rebutted by Gordon who testified concerning these events. However, to the extent to which there is a conflict between Gordon's testimony and that of Dancer I credit Dancer. I, accordingly, find that by reason of the initial conversation on July 20, between Dancer and Phillips wherein Phillips asked Dancer if he would work without the Union and that he might be able to give Dancer more hours, Respondent Sewell-Allen, Inc., No 2 violated Section 8(a)(1) of the Act by soliciting Dancer to withdraw from the Union and by promising increased working hours if he did so. I find by Gordon's solicita- tion of Dancer to circulate the decertification petition the Respondent also violated Section 8(a)(1) of the Act. Anderson's Cabinets, 241 NLRB 513, 518 (1979), enfd. 611 F 2d 1225 (8th Cir 1979). I find that Respondent violated Section 8(a)(1) of the Act in each of the in- stances set out above wherein either Phillips or Gordon solicited the circulation and filing of the decertification petition by Dancer. I further find that by the promise of benefits of more hours to Dancer for filing the petition, Respondent also violated Section 8(a)(1) of the Act. 12. The discharge of part-time employees Bill Gross, Theresa Heist, and Becky Hordyk and the demotion of Johnny Worrell Worrell's testimony concerning the circumstances of his demotion from head meatcutter to journeymen meat- cutter was set out previously in this decision . Heist testi- fied that she was initially employed at Big Star No. 103 and had commenced working in that store in 1978 prior to its takeover by Sewell-Allen. She was employed as a part-time meat wrapper and was also used for relief work as a meat wrapper. She had obtained her job at Store 103 through the Union. Several weeks prior to her layoff in August 1982, she was told by other meat de- partment employees that the store would lay her off soon. She contacted Store Manager Gordon in the front of the store the next day and told him that she had heard that she was to be laid off. Gordon told her that this was a mistake on Clifford Phillips' part, who had told the other employees of this, and as long as Gordon were there, she would have a job. Gordon went on to tell her that she was a very good wrapper and was dependable because she had been substituting for two other wrappers who were ill. She told Gordon during this conversation that she had always worked through the Union because they knew her reputation as a meat wrapper and that she was dependable. Gordon stated she would have a job there as long as he had one and she was not going to be laid off. On the day of her layoff she was called, by Gordon into the meat department office and he told her he was sorry but he was going to have to let her go. She did not question him at this time. She telephoned Clif- ford Phillips that evening as Gordon was not at the store. She told Phillips that she thought they were wrong to lay her off and Phillips told her that it was out of his hands and to get in touch with the Union. During 1982, she was scheduled to work 1 day a week on Tues- days but frequently worked more than 1 day a week as a relief employee Mary Armour, the mother of Becky Hordyk, Mary Fortner, the sister of Theresa Heist, and Worrell all testi- fied that approximately the last week of July, they were called to a meeting with Clifford Phillips who informed them that Hordyk and Heist would be laid off and that the present week would be their last. On inquiry by Armour as to why they were informed of this, Phillips informed them that he wanted them to know what was going on in the market. Armour testified further that 2 days following the conversation with Phillips she was approached by Gordon who informed her that Becky Hordyk, her daughter, would not be laid off Mary Fortner, the sister of Theresa Heist who had been employed as a meat wrapper a Big Star No. 103 until she was laid off on January 8, 1983, also testified that she attended a meeting held by Clifford Phillips in July 1982. Worrell and Armour were present at which time Phillips told the employees that he was going to lay her sister Theresa Heist and Becky Hordyk off, and that this would be their last week. Fortner testified that her sister Theresa Heist was laid off approximately a month after the conversation with Phillips concerning the layoff of Heist. As set out previously in this decision, Dancer had been informed by Gordon on August 26, in connection with his circulation of the decertification petition , in response to Dancer's reservations concerning whether the em- ployees would sign the petition that it would be even now as Gross, Hordyk, and Heist were "no longer with us " Heist, Hordyk, and Gross were terminated sometime during the week of August 21, 1983. Additionally, on August 25, Clifford Phillips was demoted from meat su- pervisor to heat meatcutter and Worrell was informed by Gordon that Phillips was being demoted from meat su- pervisor to head meatcutter and that Worrell himself was being demoted to a journeymen position with a conse- quent loss in salary. Sewell and Allen testified that the decision to dis- charge meat wrappers Heist and Hordyk was consistent with a decision to eliminate part-time employees in the meat department. Sewell and Allen contended that when they originally took over the *store a year prior thereto, the store had been profitable and they had wanted to allow a sufficient amount of time to observe the oper- ation of the store and make as few changes as possible until they were certain those changes would be beneficial to the store's operations. They testified that the decision to eliminate part-time employees was actually made in mid-July after the performance of the store for the prior SEWELL-ALLEN BIG STAR year thereto had been discussed among themselves and Store Manager Gordon. Gordon testified only that prior to the termination of Heist, he had a conversation with her concerning her possible layoff or termination that oc- curred possibly 2 or 3 weeks prior to her termination as she had heard that she was going to be laid off and was upset, and that he told her that there were no definite plans for a layoff and if she were to be laid off he would tell her about it. He recalled nothing else of that conver- sation. He contended that he had not assured her that she would be laid off. With respect to the termination of Bill Gross, a part- time meatcutter, who was otherwise employed as a fire- man, Sewell and Allen testified that the termination of Gross resulted from a complaint by the Union that the Respondent was not complying with the terms of the labor agreement that contained a requirement that a meatcutter be on duty at all times including the evening hours when the market was open for business. The com- plaint had been received by a letter of the Union dated July 27, 1982. Sewell and Allen testified that the decision was then made to give Dancer the extra hours worked by Gross and put him on the night shift in order to comply with the Union's request as Gross was unable to work night hours because he held a full-time position as a fireman. Sewell and Allen acknowledged that they had not discussed the possibility of a schedule change with Gross nor was there any evidence that anyone else had discussed it with him. Sewell and Allen also contended that Phillips had been made a head meatcutter and Wor- rell demoted to a journeyman position in response to a grievance filed by the Union (G.C. Exh. 9) dated July 12, 1982, which grievance contended that Phillips as a supervisor was performing journeymen duties in viola- tion of the labor agreement, and that there had been a duplication of titles that had existed prior to their taking over the store with Phillips as a supervisor and Worrell as a head meatcutter Analysis I credit the testimony of employees Worrell, Dancer, Heist, Fortner, and Armour as set out above. I find that the General Counsel has made a prima facie case of vio- lations of Section 8(a)(1) and (3) of the Act by Respond- ent's discharge of the three part-time employees Hordyk, Heist, and Gross, and by the demotion of employee Worrell from head meatcutter to journeyman meatcutter. The animus of the Respondent toward the Union has clearly been demonstrated in this case, as had the Re- spondent's sponsorship of the decertification and petition and its attempts to solicit employees to withdraw from the Union which were accompanied by numerous viola- tions of Section 8(a)(1) of the Act. I find these circum- stances are sufficient to support an inference that the actual motivation for Respondent's actions in terminating these three part-time employees and demoting Worrell were to support its sponsorship of the decertification pe- tition in order to rid itself of the Union. As the General Counsel points out in its brief, only 7 persons of a 17- man unit in the store that included the part-time employ- ees signed the decertification petition. One of the individ- uals who signed the petition was Clifford Phillips who 355 was a supervisor prior to his demotion on August 27, the day he signed the petition. Additionally, Gordon's state- ment to Dancer that things are even now when he in- formed him that he had terminated the three part-time employees on that week resulted in the reduction of three unit employees The inclusion of Phillips in the unit made him eligible to sign the petition in favor of decerti- fication of the Union. In the absence of Phillips' signa- ture only 6 out of 13 employees would have signed the petition even after the termination of the 3 part-time em- ployees. Moreover Worrell's demotion on the same date was consistent with Respondent's attempt to make Phil- lips eligible to sign the decertification petition to bolster support for the decertification petition. I have reviewed the testimony of Sewell and Allen and of Gordon re- garding the reasons assigned by them for the termination of the part-time employees and for the demotion of Wor- rell and Phillips, and I find that these reasons were not the true reasons, but rather were pretextual. Limestone Apparel Corp., 255 NLRB 722 (1981). However, assum- ing arguendo, that Respondent was motivated in part by economic considerations, in discharging the three part- time employees and in demoting Worrell, I find that Re- spondent has not demonstrated that the discharges of the three part-time employees, Heist, Hordyk, and Gross, and the demotion of Worrell would have occurred in the absence of Respondent's unlawful reasons for doing so. I thus find that the General Counsel has made a prima facie case that Respondent has violated Section 8(a)(3) and (1) of the Act in terminating Theresa Heist, Becky Hordyk, and William Gross, and in demoting Johnny Worrell and that Respondent has failed to rebut the prima facie case. Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 889 (1st Cir. 1981); NLRB v. Transporta- tion Management Corp., 462 U S.'393 (1983). 13. The discharge of James Kimbrough Kimbrough was initially hired by Sewell-Allen Big Star, Inc., No. 2 d/b/a Big Star No. 103 in January 1982. Kimbrough was a member of the Union and was, as the evidence set out above indicates, the most outspoken member of the Union among the employees in the meat department in Store 103 in favor of remaining in the Union and who opposed the unlawful efforts of Sewell and Allen in sponsoring the decertification campaign among its employees. This opposition by Kimbrough was met by a threat by Sewell in August wherein after Kim- brough responded he would stay in the Union, Sewell told Kimbrough that this decision by Kimbrough meant whether Kimbrough would have a job or not and that Kimbrough had better think about his wife and children. I have credited the testimony that this threat did in fact occur as set out previously herein in this decision. More- over, Kimbrough also testified that he was present at a meeting of the employees of Sewell-Allen Big Star Nos. 103 and 189, and Sewell's Big Star No. 187, held in No- vember 1982 at which time it was announced by Sewell and Allen that they no longer recognized the Union as the collective-bargaining representative of the employees of the stores. At that meeting, Kimbrough walked out of the meeting with other employees and went to Respond- 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent's parking lot and passed out literature soliciting mem- bership in the Union, while Sewell, Allen, and Gordon came out of the store and watched Kimbrough passing out the literature for approximately a half hour until he left the premises. On January 8, 1983, Kimbrough was summoned to the office of Gordon at which time Gordon informed him that there was too much help in the meat market and that he would be laid off. This was 9 days prior to the scheduled commencement of the hearing in this case. Subsequently, Kimbrough was re- called from January 22 to February 12, 1983, as a substi- tute for an employee who was hospitalized and was in- formed at this time that his recall was only temporary in order to fill in for the hospitalized employee. Sewell and Allen testified that the meat department in Store 103 was overstaffed and they were aware of this in late October or November at which time Store Manager Gordon informed them that there were too many man- hours worked in the meat market. Gordon corroborated this but did not specifically testify regarding the decision to terminate Kimbrough. Sewell and Allen contended that the amount of work to be performed by meatcutters had declined as a result of a switch from using hanging beef that required substantial cutting and additional work to boxed beef that had already been cut up into smaller portions and from a change from whole chickens that needed to be cut to prepackaged chickens both of which changes required less work on the part of the meatcut- ters and that the figures for dollars per man-hour worked in the meat department showed that the meat department in Store 103 was performing at a figure below that of $140 per man-hour that Respondent contended was the proper standard to be applied. Sewell and Allen testified that at the time the decision was made to terminate Kim- brough, no action was taken as a meat wrapper was ill during most of November and December, meatcutter Worrell was absent for jury duty during a 2-week period in December, and that Respondent also did not wish to make a change during the Christmas season. I find that the General Counsel has made a prima facie case of violation of Section 8(a)(1) and (3) of the Act by reason of Respondent's discharge of Kimbrough. Re- spondent's animus toward the Union and toward Kim- brough as a supporter of the Union and an outspoken op- ponent of Respondent's unlawful campaign to decerfity the Union had been demonstrated. Additionally, the timing of the discharge, of the most outspoken proponent of the Union among its employees only 9 days prior to the commencement of the hearing in this case, would not be lost on its other employees who were scheduled to testify in this case. I do not credit the testimony of Sewell and Allen concerning their purported reasons for the discharge of Kimbrough. I find that the reasons set forth by them (the change to boxed beef and prepack- aged chickens and the alleged unsatisfactory dollars to man-hour ratio in the meat department) were not the real reasons for the termination of Kimbrough. I find that the reasons were pretextual. Limestore Apparel Corp., supra. ,Assuming arguendo that Respondent was motivated in part by economic considerations in discharging Kim- brough, I find that Respondent has failed to rebut to prima facie case of the General Counsel and has failed to demonstrate that Kimbrough would have been terminat- ed in the absence of the unlawful reasons as found here. Wright Line, supra; NLRB v. Transportation Management Corp., supra. I, accordingly, find that Respondent Sewell-Allen, Inc., No. 2 violated Section 8(a)(1) and (3) of the Act by its discharge of employee Kimbrough. 14. The alleged violations of Section 8(a)(5) and (1) of the Act by reason of the course of conduct engaged in by Sewell-Allen Big Star, Inc., and Sewell-Allen Big Star No. 2 and by Sewell's Big Star, Inc. With respect to Sewell's Big Star, Inc., there has been no evidence presented by the General Counsel of any in- dependent violations of the Act apart from withdrawal of recognition from the Union in November 1982, and actions undertaken thereafter. However, with respect to Sewell-Allen Big Star, Inc., No. 2 Inc., I find that for all purposes here, the two corporations were operated as a single employer as demonstrated by a common approach by its two owners, Sewell and Allen, with respect to labor relations and the handling thereof and specifically with respect to the instances cited here previously in this decision regarding the findings of various violations of the Act and coordinated approach to their solicitation of their employees' withdrawal from the Union It is appar- ent from a review of the testimony in this case that Sewell and Allen because of their dislike of Sheppard, the president of Local 1529, determined that they would not deal with him and initiated a pervasive campaign to rid themselves of him and the Union which he represent- ed which included the gamut of unfair labor practices as found here.5 These Respondents threatened their em- 5 A note concerning credibility determinations with respect to Lex Sewell and Dan Allen in this proceeding As will be noted here, I have descredit- ed the testimony of Sewell and Dan Allen on a number of occasions in this proceeding wherein there versions of the incidents in question con- flicted with those of the individual employees who testified I found the testimony of the employees to be candid and believable although I recog- nize there were variances in their testimony However, there was a common thread throughout their testimony, that Sewell and Dan Allen initiated the meetings between themselves and the employees, which meetings were ostensibly held to discuss problems with the merger Much of the testimony of the employees in this regard is not disputed by Sewell and Dan Allen (i e, that the meetings took place, were on at least some occasions initiated by Sewell and Allen who discussed their dislike of Sheppard, their previous difficulty in dealing with the Union, the pos- sibility of a strike, the employees withdrawal from the Union, and wages and benefits in the event of their withdrawal from the Union) These meetings were utilized by Sewell and Allen to interrogate their employ- ees concerning their support for the Union, to advise the employees of their dislikes of Local 1529's president Leon Sheppard, referring to him in derogatory terms and advising of their perceived inability and/or un- willingness to accept or deal with Local 1529 as the collective-bargaining representative of their employees These meetings were characterized by the carrot and stick approach with Dan Allen, principally holding the carrot in terms of improved pension and other benefits and competitive wages if the employees would abandon the Union and Sewell principally holding the stick in terms of his perceived inability and unwillingness to deal with Sheppard and the issuance of threats of strikes and discharge and store closure if he were required to bargain with Local 1529 While Dan Allen had a ready answer to questions propounded to him on the stand in his testimony, and Sewell's manner at the hearing was mild, I cannot credit their version of these meetings to effect that they were merely informing the employees of perceived problems as a result of th merger and responding only to questions initiated by employees Rather, Continued SEWELL-ALLEN BIG STAR ployees with strikes, discharge, and store closure. Re- spondents followed through on certain of these threats by the discharge of four employees, and the demotion of one employee as well as by their withdrawal of recogni- tion from the Union and refusal to bargain and the insti- tution of unilateral changes in the terms and conditions of employment of their employees without notice to or bargaining with the Union. I find that this pervasive campaign initiated by Respondent and followed over a course of several months up to the time of the hearing in this case with respect to the discharge of Kimbrough constitutes a separate and continuing violation of Section 8(a)(5) and (1) of the Act as this attempt to undermine the Union was wholly inconsistent with Respondent's obligation to bargain in good faith with the Union and that Respondents Sewell-Allen Big Star, Inc., and Sewell-Allen Big Star, Inc., No. 2 thereby also violated Section 8(a)(5) and (1) of the Act. Taurus Waste Disposal, 263 NLRB 309 (1982). E. Independent Allegations of Violations by Baker Bros., Inc., d/b/a Baker's Big Star Store Nos. 31, 61, 64, and 81 The complaint, as amended, alleges that Respondent Baker Bros., Inc. committed various violations of Section 8(a)(1) and (5) by engaging in interrogation of its em- ployees, the issuance of threats, promise of benefits, and solicitation of its employees to abandon its support of the Union and by sponsoring the circulation of two decertifi- cation petitions to decertify Local 1529 as the collective- bargaining representative of its employee. 1. The supervisory status of employees Mike Hamm, Todd McClellan, Mark McClellan, and John Westmoreland The General Counsel contends that Respondent Baker committed violations of Section 8(a)(1) during the course of its campaign to decertify the Union through the circu- lation of two decertification petitions during the summer and fall of 1982 and by engaging in acts of interrogation, threats, promises of benefits, and solicitations to abandon support for the Union and to decerfity Local 1529 en- gaged in by bargaining unit member employees Mike Hamm, Todd McClellan, Mark McClellan, and John Westmoreland, whom the General Counsel contends were supervisors under the Act. Respondent contends that these individuals were not supervisors and that it is not responsible for their activities in this regard. a. The supervisory status of Mike Hamm Mike Hamm was designated as the meat market manager/head meatcutter at Bakers Store No. 61. Mary Monasco, a meat wrapper at Baker's No. 61, testified concerning the duties of Hamm as follows. Hamm is the market manager at Big Star No. 61. She went to the old Baker's Big Star store down the street in July 1982 and applied to Hamm for employment. Hamm had hired an- I find that the evidence overwhelmingly shows that Sewell and Dan Allen engaged in a protracted effort to nd themselves of Local 1529 as the collective -bargaining representative of their employees 357 other meat wrapper and told her to check back when the new store (the current Store No. 61) was opened. She did so, and Hamm took her name and address and called her on the Saturday of the grand opening whereupon the commenced working at Big Star No. 61 in July 1982. Hamm writes out the employees' work schedules. Her hours vary from week to week. She has only taken 1 day off since she has been employed as a result of a death in the family. She spoke to Hamm concerning this day off, and he allowed her to take the time off. She has asked Hamm for instructions with respect to wrapping meat. He instructs her on how to work smoked meats and change prices. Vickie Mason, who had been employed at Big Star No. 61 in 1982 as a meat wrapper, testified as follows. The market manager at Baker's Big Star No. 61 is Mike Hamm. Hamm disciplined her when she was 3 hours late for work. On that occasion, he told her not to come in the rest of the day, and that if she did not come in on time the next day, she should not come in. Hamm does the hiring at Baker's Big Star No. 61, and she is aware of this because he hired a friend of hers, Patricia Doty, whom she had recommended. This took place after an interview at which only Hamm and Doty were present. On cross-examination, she testified that when she re- ferred Patricia Doty to Hamm, Hamm told her he was going to need some help, and he was going to call Al Baker and talk to him about hiring someone. Richard Floyd, who had been employed by Baker's Big Star No. 61 in the meat department as a meatcutter for approximately 6 months from June until December 1982 when he was transferred to Big Star No. 64, testi- fied as follows. Hamm instructed him on what meat to cut and would leave a list of items form him to do such as to make ground beef, fill the meat counter, work smoked meats, and the like. Hamm made out the em- ployees' work schedules, and if Floyd needed a day off, he asked Hamm, and Hamm would change it. On occa- sion, Hamm asked Floyd to work overtime. Roy Needham, who is employed at Baker's Big Star No. 61 as a journeyman meatcutter and who had been at the store since it opened, testified as follows. Needham has requested time off from Hamm, who has told him that he would let him know. On occasions when business has been slow, Needham has asked Hamm to take a per- sonal holiday, and Hamm has allowed him to do so. Hamm prepares the work schedules at the store. Need- ham worked overtime when the store initially opened. On those occasions when he worked overtime, Hamm asked if he would mind staying an hour or two more, and he agreed to do so. Sometimes there would be very little notice prior to this. Hamm spends approximately 25 percent of his time cutting meat. Hamm usually inspects Needham's work, and directs him to change it, if it is not according to the way he wants it. Hamm orders the meat and poultry. Al Baker testified as follows concerning the superviso- ry status of Hamm. Patricia Doty was employed at Big Star No. 61 just prior to that store's move to its new lo- cation a few blocks south. The decision to employ her was made jointly by Al Baker and his son Mike Baker. 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hamm, the head meatcutter in Store No. 61, informed them that Patricia Doty was a friend of meat wrapper Vicki Mason who had recommended Patricia Doty to them for employment. Hamm suggested that as they were getting ready to go into a larger store and were going to need more wrapping help, they should be train- ing the new meat wrapper (Patricia Doty) in the few weeks that they would have prior to going into the store. Mary Jane Monasco was employed during the grand opening of the new larger store that came about was a result of a large overflow of work that could not be handled by the existing crew during the opening as every employee was working all the overtime they were able to and they were still unable to keep up with the work. Hamm had her application on hand as he had checked with them prior to this before he had talked to Mike Baker about her. Al Baker authorized the hiring and told him to hire her as soon as he could get her as it was his understanding that she was an experienced meat wrapper and would be able to start right away. Al Baker did not review her application prior to her hire. Mike Baker, a vice president of Baker 's Bros. Inc. and the son of Al Baker, testified concerning the duties of Hamm as follows. Hamm is employed at Big Star No 61 as a head meatcutter and has been so employed for 3 years. The head meatcutter's duties at Big Star No. 61 do not differ from those at Big Star Nos. 31 , 64, or 81. In 1982, the high level of employment at Big Star No. 61 in the meat market was 11 employees and the low level was 4 employees . The highest number of employees was reached in July 1982 and the low was reached in June 1982. As a head meatcutter, Hamm ordered fresh meat, cut meat, trayed meat, wrapped meat, directed the work of other employees in the market, and had the same duties as Todd McClellan . Hamm was hourly paid throughout 1982 and was covered under the collective- bargaining agreement for the Meat Cutters (Local 452) health and welfare trust fund throughout 1982, and the pension fund from June through August 1982. Hamm did not have the authority to hire or fire individuals as head meatcutter at Big Star No. 61 nor to grant wage in- creases or discipline employees during 1982 as only Mike and Al Baker had that authority. The circumstances under which Mary Jane Monasco was employed at Big Star No. 61 were that Baker had moved Big Star No. 61 to a new location a few blocks south of its previous loca- tion into a larger store, and they were involved in a grand opening sale and business had quadrupled and em- ployees were working 40 to 50 hours a week overtime and Hamm asked Mike Baker to give him additional help from other stores because people were worn out after 2 weeks of such long hours. Hamm told Mike Baker he knew of an experienced wrapper who had an application in at the courtesy booth. Mike Baker told him that be- cause it was an emergency situation, to call her and get her in to work as soon as he could and hire her on that basis. The circumstances under which Patricia Doty was hired in June 1982 were that she was recommended to A] and Mike Baker by Vicki Mason who was a meat wrapper at Big Star No . 61. She had been recommended to Mike Hamm, and he asked Mike Baker it he could call an additional wrapper to be trained for the grand opening, and Mike Baker directed him to do so. Mike Baker made the decision to try and train an additional wrapper in June to prepare for the grand opening and, after the grand opening, determined that this was not enough, and All and Mike Baker determined that it would be necessary to hire additional help because of the large amount of overtime hours what were being in- curred by present employees . This is when the decision was made to hire Monasco. Mike and Al Baker together made the decision to hire Doty and were also together the day the decision was made to hire Monasco. Mike Baker was responsible for deciding when overtime would be worked at Big Star No . 61, and he authorized Hamm to ask employees in the market to stay later each day until work was performed because of the great deal of business during the grand opening . The level of over- time has since ceased . Mike Baker made the decision as to when overtime would stop Hamm has never had the authority to determine when overtime would be worked until Mike Baker gives him that authority by directing him to schedule a person for more hours in a particular week if someone is sick or the like. The authorization is dust for a particular day. Mike Baker visits the stores daily. Hamm has no authority to issue reprimands of any nature to employees. I credit the testimony of employees Mary Jane Mon- asco, Vicki Mason, Richard Floyd , and Roy Needham, concerning the authority exercised by Hamm. On cross- examination, Mike Baker acknowledged that although he appears at the store on a daily basis, he is only there for a brief period of time. For the remainder of that time, Hamm is in charge of the meat department . As such, he has instructed the employees, corrected the employees' work, approved days off, assigned overtime , made out work schedules, and has ordered meat products . Accord- ing to the testimony of Needham , Hamm only spent ap- proximately 25 percent of his time actually cutting meat. I find that Hamm is a supervisor although he unquestion- ably performs meatcutting duties. Liberty Markets, 236 NLRB 1486, 1495 (1978); Big John Super Stores, 232 NLRB 134, 135 (1977). Moreover, the specific testimony of the employees that Hamm interviewed and made ef- fective recommendations to Mike and Al Baker with re- spect to the hiring of both Monasco and Doty as meat wrappers at Store 61 was uncontroverted . Gerbes Super Markets, 176 NLRB 11 , 15-16 (1969). I have considered the testimony of Mike Baker that Hamm did not have the authority to hire, fire, reprimand employees, or to schedule overtime without his consent However, the facts as developed through the unrebutted testimony of the employees demonstrate that he has actually exercised the authority to hire, or at least effectively recommended the hire of, new employees; schedule overtime ; repri- mand employees; and grant time off to employees as well as instruct them in their work . Accordingly, I find that Hamm was, at all times relevant , a supervisor within the meaning of Section 2(11) of the Act. b. The supervisory status of Todd McClellan William Mayfield, an apprentice meatcutter employed by Baker's Big Star Store 61, at the time of the hearing SEWELL-ALLEN BIG STAR but who had previously worked at Big Star No. 81 testi- fied as follows. Todd McClellan was the meat market manager for Store No 81 for the 3 to 4 months preced- ing August 1982 when Johnny Westmoreland became the store manager for Store 81. During this period Todd McClellan ordered beef, pork, chickens, and smoked meats. He instructed Mayfield how to cut the meat on order and also for special orders for customers. If May- field needed a day off, he asked Todd McClellan. In late June or early July, he asked Todd McClellan to change his day off for the week of August 27 as he was getting married. Todd McClellan told him there would be no problem and they would work it out. At the end of the week, Todd McClellan totaled the hours of the employ- ees' timecards on Saturdays. Randy Inman, a meatcutter who at he time of the hearing had been employed at Baker Bros., Inc., Big Star No 64 for approximately 2-1/2 months prior thereto but prior to that had been employed at Big Star No. 81 for approximately a year and who had been with Baker for 13 years, testified as follows: At the time he left Big Star No. 81 about 2-1/2 months prior to the date of the hear- ing, the meat market manager was Johnny Westmore- land. Prior to that in the summer of 1982, Todd McClel- lan had been the meat market manager from approxi- mately the end of March 1982 until August 1982. As meat market manager, Todd McClellan corrected Inman's work. Inman, who was a second man, also cor- rected other employees' work that he saw an employee make. When Todd McClellan was the meat market man- ager, if overtime was required, he would ask the employ- ees to work overtime and would approve the overtime. In 1982, Inman took a vacation and asked Todd McClel- lan to approve it Mike Baker testified as follows. Head meatcutters were responsible for directing journeymen meatcutters and assigning tasks to other employees. Todd McClellan is the brother of Mark McClellan who is the brother-in- law of Michael Baker and the son-in-law of Alvin Baker. In the spring of 1982, Todd McClellan was a journey- man meatcutter at Baker's Big Star No 31. In June 1982, Todd McClellan moved to Big Star No. 81 and became the head meatcutter There were three people in the market. Tonya McClellan, who was Todd and Mark McCellan's sister, was a part-time wrapper for several months during the spring of 1982. Baker testified that Todd McClellan was employed at Baker' s Big Star No. 31 from January to June 1982 as a journeyman meatcut- ter and ordered and cut meat as necessary, received de- liveries and waited on customers as necessary and other- wise performed the functions of a journeyman meatcut- ter. He also trained his sister to wrap meat on a part-time basis for several months during early 1982. At Big Star No. 31, Todd McClellan did not have the authority to hire or fire anyone, to grant wage increases, or to disci- pline employees. Todd McClellan was a unit-employee and payments were made on his behalf to the Union's pension fund. Todd McClellan was also covered by the Union's health and Welfare plan throughout 1982. Mike Baker made the decision to move Todd McClellan to Big Star No. 81 where he assumed the position of head meatcutter. Including Todd McClellan, there were four 359 employees at Big Star No. 81. Todd McClellan remained as the head meatcutter at Big Star No. 81 until Mike Baker transferred him to Big Star No. 61 on August 15, where he became a journeymen meatcutter. As a head meatcutter at Big Star No. 81, Todd McClellan's duties were to lead, direct, order, cut meat, receive deliveries, wait on the counter, and perform the same duties he had as a journeyman meatcutter. Ninety-eight percent of his time was involved in cutting meat, traying meat, and performing other journeymen related meatcutting duties, including waiting on customers, pulling meat out of the counter, and putting meat in the counter, Todd McClel- lan did not have the authority to hire, fire, grant wage increases, discipline employees, or assign overtime work to be performed in the meat department at Big Star No. 81 as only Mike Baker or Al Baker had that authority. Todd McClellan punched a timeclock at Big Star Nos. 81, 61, and 31. Approximately 1 day a week, Todd McClellan was the only employee in the meat market In McClellan absence from the market, Randy Inmann served as head meatcutter at which time he would turn in orders and direct the work of other employees. Todd McClellan did no have the authority to issue any written or oral reprimands and has never had such authority as a journeymen meatcutter. I find that Todd McClellan was given and exercised the indicia of supervisory authority, and was a supervisor within the meaning of Section 2(11) of the Act during the period when he serviced as head meatcutter at Store No. 81. In making this determination, I have considered the fact that McClellan was the highest-ranking employ- ee on the job in the meat department except for those limited occasions each day when Mike Baker was present and visited the store. Todd McClellan exercised supervisory authority by the granting of time off and the assignment of overtime in his position as well as correc- tion of employee mistakes and direction of work. Thus, Todd McClellan exercised the authority to permit em- ployees time off, to leave work early, to schedule and assign overtime, and in his absence the employees in the meat department would have operated essentially with- out any direct supervision. See Gerbes Supermarket, supra; Big John Super Stores, supra. Moreover, I find that as a result of the relationship of Todd McClellan as the brother of the son-in-law of Al Baker, his interests were much more closely identified with management than with the other employees, and as will be hereinafter dis- cussed, he exercised this unique position on behalf of management in the circulation of the decertification peti- tions, which petitions were subsequently endorsed by Al Baker. See Indian Head Lubricants, 261 NLRB 12, 18 (1982). c. The supervisory status of Mark McClellan Mark McClellan is the son-in-law of Al Baker, and served as the meat market manager at store No. 31 in the summer of 1982. There was no direct evidence presented by the General Counsel concerning the supervisory status of Mark McClellan except their contention that he held the same position as meat market manager and had the apparent authority of a meat market manager, and 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD should, accordingly, be found to be a supervisor under the Act. I find, however, that the absence of direct evi- dence of 'supervisory status is insufficient to support a finding that he was a supervisor within the Act. Howev- er, Mark McClellan is the son-in-law of AI Baker, and this relationship cannot be ignored in assessing his appar- ent authority, placement, and position as meat market manager . Moreover, his utilization of that apparent au- thority on behalf of management in the circulation of the decertification petitions which petitions were endorsed by Al Baker demonstrated his close identification with management. Under these circumstances, I find that he possessed the apparent indicia of supervisory authority, was closely identified with management, and acted on behalf of management. Indian Head Lubricants, supra. d. The supervisory status of John Westmoreland John Westmoreland served as a roving head meatcut- ter from November 1981 until July 1982 at which time he was assigned to Store No. 61 and once again became a journeymen meatcutter but continued to be paid as a head meatcutter until he was transferred to Store No. 81 in mid-August as a head meatcutter. As a roving meat- cutter, Westmoreland was paid at the rate of a head meatcutter, was provided an automobile, went from store to store to demonstrate the cutting of three-piece bone- less chucks and other laborsaving devices, and the teach- ing of improved sanitation methods to persuade head meatcuttters that those particular stores should institute these ideas and programs. Both Mike Baker and Al Baker testified that Westmoreland did not have the au- thority to hire, fire, discipline, or schedule employees Apprentice meatcutter Mayfield testified that from August 1982 until the time he left Store No. 81 approxi- mately 3 to 4 months prior to the hearing in January 1983, Westmoreland ordered beef, pork, and chickens and gave Mayfield a price list and told him what the prices were and to change the prices for upcoming ads. If there was any need for discipline, the meat market manager would talk to the emplyee and would then call Baker. When Westmoreland was initially put in charge of the meat market, he talked to Mayfield and told him he was in charge of the market and told him how he wanted things done, and if the employees did not do as he wanted them, he would find a way to have them re- moved or see that they would be transferred to another store. Robert Travis, a journeyman meatcutter, who at the time of the hearing was employed at Baker' s Big Star No. 61 but had previously been employed at Baker's Big Star No. 64 after having been initially transferred from Baker's Big Star No. 61 to No. 64 in January 1982, testi- fied as follows. While he was at Baker's Big Star No. 61 in early January 1982, John Westmoreland's title was that of supervisor as he was told this by Mike Hamm who told him that Westmoreland would be his new su- pervisor. At that time, Hamm's position was that of market manager . Shortly after this conversation, Travis had a conversation with Westmoreland wherein he asked Westmoreland if he could bet transferred back to Store No. 64. Westmoreland replied he probably could, but it would be after the first of the year. While Westmoreland was meat supervisor, he had the authority to discipline emloyees and write up employees. Westmoreland came into Store No. 64 when Travis was transferred there, had a notebook and stated he would be back at 10 a.m., and if he found a brown piece of meat in the counter, he would write the employees up. On cross-examination, Travis testified he talked to Westmoreland about his transfer from Store No. 61 to No. 64 before Christmas and was transferred to Store No. 64 after the first of the year. I credit the testimony of Travis and Mayfield as set out above. I find that, on the basis of their unrebutted specific testimony concerning the exercise of supervisory authority by Westmoreland as meat market manager of Store No. 61 and as a roving meatcutter, Westmoreland was a supervisor within the meaning of Section 2(11) of the Act. Liberty Markets, supra; Big John Super Stores, supra. 2. The interrogation of Mayfield by Todd McClellan Mayfield testified that in June 1982, he was asked by Todd McClellan, the meat market manager at Store No. 81 if he was in the Union, and that at that time Todd McClellan complained to Mayfield concerning the Union as Union Representative Mancini had recently been in the market looking at the work schedules. As Todd McClellan did not testify at the hearing, the testimony of Mayfield in this instance is unrebutted. Accordingly, I find that Respondent Baker Bros., Inc violated Section 8(a)(1) of the Act by Todd McClellan's interrogation of Mayfield concerning his union membership. 3. The solicitation of Mayfield to sign a decertification petition in early to mid-August 1982 Mayfield testified as follows. He was asked to sign a decertification petition during the grand opening of the store by Todd and Mark McClellan who brought the pe- tition around and asked Mayfield to go in the back of the store and asked if he would sign the petition. They told Mayfield they were trying to get the Union decertified as it was better for the stores if they were nonunion, that the employees would make more money without the Union, and referred to a nonunion market that paid over union scale. Mayfield was also told that if the decertifica- tion petition were delayed, there could be a strike, and the Union would hire people to walk picket line, throw things in the parking lot, and damage customers' cars and that everyone would be hurt by a strike. The McClellans also told Mayfield they had enough signa- tures to decertify the Union, and they did not need his signature but he could sign the petition. He signed at the time because Mark and Todd McClellan told him that the employees would have better wages and better bene- fits, that Baker was growing into a bigger corporation, and that in the future it would be better for everyone without the Union. During the course of this conversa- tion, Todd and Mark McClellan also stated that Al Baker was not going to sign a contract with the Union. I credit the testimony of Mayfield, which testimony is unrebutted as neither Todd nor Mark McClellan was SEWELL-ALLEN BIG STAR called to testify in this proceeding. Accordingly, I find that Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act by the circulation of the decertification petition and by the solicitation of employee Mayfield to sign the petition. I, additionally, find that the Respondent violated Section 8(a)(1) of the Act by the -promise to Mayfield that wages and benefits would be better with- out the Union. I find that the statements that there could be a strike with picket lines and misconduct and that Al Baker would not sign another contract with the Union were also violations of Section 8(a)(1) of the Act as it demonstrated to the employees the futility of continued representation by the Union. 4. The solicitation of Roy Needham to sign the decertification petition Needham testified that in either late July or August 1982, he was called into the office by Meat Market Man- ager Hamm who asked him to sign a petition to decertify the Union. Todd and Mark McClellan were also in the office at this time. Hamm told him he did not have to do so but he would like for him to do so. Needham told Hamm he would like to think about it. During this meet- ing, Hamm also asked Needham if the Union were decer- tified, whether he would still work there. Needham re- plied he probably would until he could find something else. Todd McClellan asked Needham whether he would walk out if the Union picketed the store and told Need- ham that "if I [Needham] did, I might as well kiss it be- cause I would lose my job." On review of his affidavit, Needham recalled that Hamm also stated at that meeting that Al Baker did not like Leon Sheppard. I credit the testimony of Needham that is unrebutted as Todd and Mark McClellan and Hamm did not testify in this proceeding. Accordingly, I find that Baker Bros., Inc., by the circulation of the decertification petition by Hamm in the presence of other supervisors, violated Sec- tion 8(a)(1) of the Act. I also find that the Respondent violated Section 8(a)(1) of the Act by reason of Todd McClellan's threat that Needham would lose his job if he joined a strike by the Union. 5. The solicitation of employees Monasco and Floyd for the first decertification petition Monasco, a meat wrapper who has been employed by Baker's Big Star at Store No. 61 since approximately July 1982, testified that she was asked on two occasions to sign a petition to decertify Local 1529. The initial oc- casion occurred shortly after she went to work when Hamm spoke to her in August 1982 in the office of Store No. 61. Also present were Todd McClellan, Mark McClellan, and Westmoreland Hamm called her into the office and explained that the contract with the Union would no longer be honored by Baker, and that a new contract was coming up in October and asked her to sign the petition which she did. Richard Floyd, a meatcutter at Baker's Big Star No. 61 from June to December 1982, testified that approxi- mately in August 1982, he was called into a meeting in the office at Baker's Big Star No. 61 by Meat Manager Hamm. Present in that meeting were Todd and Mark 361 McClellan, Westmoreland, and Monasco. He testified that the two McClellans, Hamm, and Westmoreland asked him to sign a petition to decertify the Union and he did so. After signing the petition, he asked whether the employees would lose any benefits if they withdrew from the Union and was told that they would not, and that the store could be run better without a union. I credit the testimony of Monasco and Floyd that is unrebutted as Hamm, Todd McClellan, Mark McClellan, and Westmoreland were not called to testify. According- ly, I find that Respondent, by the circulation of the peti- tion to decertify Local 1529 as the collective-bargaining representative of its employees Monasco and Floyd in August 1982, violated Section 8(a)(1) of the Act. I fur- ther-find that the remarks that were made to Floyd that the Company could run better without the Union were violative of the Act as they constituted a promise of better conditions if the employees abandoned their sup- port for the Union . I also find that the statement made to Monasco by Hamm that Baker would no longer honor the contract constituted a violation of Section 8(a)(1) of the Act as it demonstrated the futility of continued mem- bership in and support of the Union. 6. The solicitation of Mason Mason testified that in August 1982, while she was working at Store No. 61, she and employee Patricia Doty were called into the office by Hamm. When they arrived, they found Todd and Mark McClellan, Hamm, Westmoreland, and another employee. Todd McClellan told them he was circulating a petition to give the em- ployees the right to vote on whether to retain the Union, that there was a new president in the Union, Leon Shep- pard, and that the contract (labor agreement) would not be signed because it was not the same local. He also stated there would be a lot of strain involved, and if there were a strike, it would cause the store to lose busi- ness and would cause a layoff of the employees. Mason inquired whether her position would be secure if this happened Todd McClellan told her that the Bakers were some of the fairest people he had ever worked for and assured her that signing the petition would in no way jeopardize her job Mark McClellan stated that he had worked for the Bakers, they were very good people to work for, and that this was merely a petition to give the employees the right to vote on whether or not they wanted to vote the Union in or out. Either Mark or Todd McClellan told her that getting rid of the Union would not result in lower wages or benefits. I credit the unrebutted testimony of Mason and find that Respondent Bakers violated Section 8(a)(1) of the Act by its solicitation of Mason and Doty to sign the de- certification petition engaged in by Hamm, by Todd and Mark McClellan, and also by Westmoreland as the solici- tation and remarks by Todd and Mark McClellan were not disavowed by Westmoreland or Hamm. I also find that Todd McClellan's statement that a new contract would not be signed with the new local union was viola- tive of Section 8(a)(1) of the Act as it demonstrated the futility of continued representation by the Union. 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7. The solicitation of Inman Randy Inman testified that in approximately mid to late August 1982, while he was employed at Baker's Big Star No. 81 , he was asked to sign a petition to decertify Local 1529 by Todd McClellan . He was cutting meat at the time and the two McClellans walked into the meat department and Todd McClellan asked if he would come to the back room to talk about something. Inman did so, and Todd McClellan then laid a piece of paper on the table and stated that he was circulating a petition against the Union, and he would like for Inman to look at it and read it. He told Inman he did not have to sign the peti- tion. Inman did not sign the petition . At that time, Inman told Todd McClellan that he had been in the Union too long and could not afford to sign the petition Todd McClellan then told Inman, "Randy, the Union is out, the Union is history " At that time, Mark McClellan told Inman that this time next year, Baker's Big Star would be a nonunion organization. I credit the testimony of Inman which is unrebutted I find that Respondent violated Section 8(a)(1) of the Act by the circulation of the decertification petition by Todd and Mark McClellan. I also find that the comments of Todd and Mark McClellan that the Union was out, and that Respondent would be a nonunion organization, dem- onstrated to Inman the futility of his continued support of the Union and that Respondent thereby violated Sec- tion 8(a)(1) of the Act. 8. The solicitation of Robert Travis Travis testified that while he was employed at Baker's Big Star No 64 in August 1982, he was asked by Todd and Mark McClellan to sign a petition to decertify Local 1529. Todd McClellan told Travis that he had a petition to decertify the Union , that they already had 52 percent of the employees' signatures , and that it made no differ- ence if Travis signed or not . Travis signed the petition. At that time Todd McClellan told Travis that the Bakers would not negotiate with the new union, and that Todd McClellan would not be surprised if the employees got a raise just to get rid of the Union . Todd also asked Travis to talk to two other employees concerning the decertifi- cation petition. Todd also made a statement that Leon Sheppard was out to get the Baker stores and that Baker did not want anything to do with Sheppard. I credit the unrebutted testimony of Travis and find that Respondent violated Section 8(a)(1) of the Act by the solicitation of Travis to sign the petition by Todd and Mark McClellan. I further find that Todd McClel- lan's statement that Baker wanted nothing to do with Sheppard and would not negotiate with the Union was a threat of the futility of continued membership in and sup- port of the Union, and was violative of Section 8(a)(1) of the Act. I further find that the statement by Todd McClellan that he would not be surprised if the employ- ees got a raise just to get rid of the Union was an im- plied promise of a wage increase if the employees chose to decertify the Union , and was violative of Section 8(a)(1) of the Act. 9. The interrogation of Mayfield by Westmoreland Mayfield testified that on August 5 (1982), Westmore- land talked to him near the meat department and asked whether he had been to the union meeting the night before. Mayfield replied that he had and wanted to hear the Union's side of the story, and told Westmoreland what had transpired at the meeting. Westmoreland told Mayfield that when the election came up pursuant to the decertification petition Mayfield should think about how he was going to vote because if he voted to keep the Union out, his job would be secure and he would not have to ever worry about anything . Westmoreland re- ferred to Mayfield's upcoming wedding at the end of the month and told him that Mayfield needed a job and that if he voted to keep the Union in , he would either lose his job or be cut from 40 hours to 20 to 25 hours per week, and that Mayfield had better think long and hard about how he was going to vote I credit the unrebutted testimony of Mayfield, and I find that by Westmoreland 's interrogation of Mayfield as to whether he had attended the union meeting Respond- ent Baker violated Section 8(a)(1) of the Act . I further find that by the issuance of the threat by Westmoreland to Mayfield that if Mayfield voted for the Union, he would either lose his job or have his working hours re- duced, and by Westmoreland 's statement that Mayfield's job would be secure and he would not have to worry about anything again which was a promise of security if Westmoreland voted to decertify the Union, that the Re- spondent also violated Section 8 (a)(1) of the Act 10. The interrogation of Mayfield by Al Baker Mayfield testified that approximately 3 weeks after the interrogation by Westmoreland, he was coming out of the cooler putting smoked meat out and Westmoreland was out front talking to Al and Mike Baker, and that Al Baker stopped him and asked him if the Union had been harassing him and he told Al Baker that it had not. Al Baker then told him if he had any trouble with the Union or any problems to go tell Westmoreland and Westmoreland would take care of it. Mike Baker also asked him whether he had had any trouble with the Union . Al Baker testified that in the latter part of August 1982, while he and Mike Baker were in Store No. 81, he was informed by Westmoreland that a unionman had interfered with Mayfield's work and they were probably discussing union matters. Al Baker then approached Mayfield and told him that he had been informed by Westmoreland that someone from the Union had inter- rupted his work, that Mayfield did not have to put up with that type of harassment, that if it occurred again, to let Westmoreland know or to call him (Al Baker), and that "we" would see that something is done about it. Baker acknowledged that Mayfield had not complained to him or anyone about being harassed by the Union, and that A] Baker had initiated the conversation. I credit the unrebutted testimony of Mayfield as set out above. I find that Respondent violated Section 8(a)(1) of the Act by the comments of Al Baker to May- field which constituted interrogation of Mayfield con- cerning his union activities and the solicitation of May- SEWELL-ALLEN BIG STAR field to bypass his bargaining representative by bringing union contracts to the attention of management. 11. The statements by Al Baker to employees of Baker's Big Star No. 81 concerning the decertification petition Inman testified that in late August 1982, Al and Mike Baker came into the meat department and A] Baker told the employees that he appreciated them standing up for the Company and for signing the petition, and that he felt as soon as he could get rid of all the interruptions, the Company would operate a lot smoother. Also present during this conversation was Todd McClellan. On cross-examination, Inman recalled Baker stating that he had been informed by the NLRB that a petition had been filed for an election in their stores regarding union representation, and he understood that an overwhelming majority of the people in the meat department had signed it, that he appreciated those people who had stood up and signed the petition and he wanted employ- ees to know that there would be an election and regard- less of the outcome, they would not lose any benefits. Al Baker testified that he went to each of his three stores with his son Mike Baker and informed the employees that he had been notified by the NLRB that a petition for an election had been filed, and the employees would decide by secret ballot whether they wanted to continue union representation, but he understood that an over- whelming majority of the employees had signed the peti- tion, and he appreciated the employees' confidence in him. He did not deny that he had made references to the interruptions with the Company or that he had told the employees the Company would operate a lot smoother without them. He acknowledged that he had been in- formed of the number of employees who had signed the petition by Todd McClellan. Baker also testified that he told the employees, regardless of the outcome of the election, there would be no loss in pay or benefits. His testimony was corroborated by Mike Baker. I credit the unrebutted testimony of Inman. I find that under the circumstances, AI Baker's statement was an implied promise of improved working conditions as he was telling the employees that things would be better if they chose to decertify and get rid of the Union. This clearly referred to working conditions, and I find it was thereby violative of Section 8(a)(1) of the Act. St. Fran- cis Hospital, 249 NLRB 180, 189-190 (1980). 12. The solicitation of Monasco and Floyd to sign a second decertification petition Floyd and Monasco testified that they were each ap- proached in August 1982 by Todd McClellan while in the meat department at Big Star No. 61 and again asked to sign a second decertification petition that was then being circulated by Todd McClellan. At the time McClellan was no longer a market manager but was a journeyman meatcutter. Monasco refused to sign the pe- tition stating that she had previously signed one and would not sign another. I credit the unrebutted testimony of Monasco and Floyd and find that Respondent violated Section 8(a)(1) 363 of the Act by its circulation of the second decertification petition by Todd McClellan. I recognize that at this point in time, Todd McClellan was no longer a market manager but was rather a journeyman meatcutter. How- ever, it is clear that McClellan was serving as an agent of Respondent in the circulation of this petition and was reflecting company policy in this regard in light of the statements made by Al Baker as found here and the prior attempts to decertify the Union by Todd McClellan. I find that Todd McClellan was placed in a unique posi- tion whereby he was least perceived to be speaking on behalf of Respondent in its attempts to decertify the Union. Regal Shoe Shops 2421 & 2340, 249 NLRB 1210, 1214-1215 (1980). This is so particularly with respect to Todd McClellan's relationship with Baker as a relative of the Bakers. Indian Head Lubricants, supra. 13. Additional comments and analysis of the 8(a)(1) violations, the circulation of the decertification petitions, and its sponsorship by Bakers Bros., Inc. I find that the solicitation of the employees to sign the decertification petition and the various violations of Sec- tion 8(a)(1) of the Act by Hamm, Westmoreland, and Todd and Mark McClellan were clearly sponsored and endorsed by Respondent Baker Bros., Inc. A review of these violations demonstrates that these individuals on behalf of Respondent circulated the decertification peti- tion, interrogated employees, promised them benefits if they abandoned the Union and signed the decertification petition, and threatened them with adverse consequences, including strikes, layoffs, and discharges, if they did not do so, and further threatened them with the futility of continuing to support the Union as Respondent would not sign a contract with the Union or deal with Shep- pard. Al Baker endorsed these activities by his statement that he appreciated the signing of the decertification peti- tion by the employees, and that he thought that things would run smoother if the interruptions (the Union) were out of the Company made in the presence of Todd McClellan who had circulated the petition. Moreover, his interrogation of Mayfield concerning whether the Union was harassing him and asking him to report any further harassments to Westmoreland or to himself was consistent with the conduct of Todd and Mark McClel- lan, Hamm, and Westmoreland in the campaign to decer- tify the Union. Moreover, the supervisors were allowed to carry out those activities during the employees' work- ing time on the Employer's premises. Thus, I find that Baker Bros., Inc. bears responsibility for each of these violations. 14. Respondent Baker Bros., Inc 's response to handbilling by Local 1529 on January 19, 1983, at Baker's Big Star No. 64 Joe Price Jr., a representative of the United Food and Commercial Workers International Union, testified that on January 19, 1982, he and two members of Local 1529 went to Baker's Big Star No. 64 which was located in a shopping center at South Perkins and Knight Arnold Roads and offered union handbills to customers at Baker's Big Star. The shopping center consists of ap- 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proximately 20 stores and also includes another grocery store. Price testified that they offered handbills to cus- tomers and did not attempt to stop the customers or get in their way. The handbills consisted of a price compari- son between Kroger and Baker's Big Star on several items (G.C. Exh. 54, Tr. 1877). They commenced hand- billing at approximately 2 p.m. on the sidewalk in front of Baker's Big Star No. 64 and stayed to the side of each entrance to the store and did not block the entrance and did not have any physical contact with or make any de- rogatory remark to any customer. Price testified that the sidewalk was approximately 8 to 10 feet wide in front of the store. Bob Bruce, the manager of Baker's Big Star No. 64, acknowledged that he telephoned the police and asked them to handle a handbilling problem in front of the store. About 4 p.m. two policemen arrived at the store and threatened to arrest Price and the other two handbillers if they did not move as they were on Baker's leased property. The police then told them they must picket at the entrance of the shopping center. They then did so and remained there until approximately 7 p.m. The entrance to the shopping center was approximately 50 yards from the sidewalk to the store and, in order to enter the shopping center, drivers were required to pull in quickly as automobiles were moving in a line almost continuously into the entrance from the street which was heavily trafficked. Customers were required to pull in their automobiles quickly or be subject to possible colli- sion. As a result, the cars turned into the entrance and it was difficult to provide them with a handbill. The hand- bills specifically related to a dispute with Baker's Big Star rather than with any of the other tenants of the shopping center. I find that Respondent Baker Bros., Inc. violated Sec- tion 8(axl) of the Act by calling the police and causing the handbillers to leave the immediate sidewalk area in front of Baker's Big Star No. 64. I have considered the Section 7 rights of the handbillers to hand out messages on behalf of the Union and the private property rights of the leaseholder (Bakers). It is clear that the Union's dis- pute was with Bakers and that the Union had the right to engage in informational handbilling at a place where it could reasonably expect its handbilling to have the most effect. Giant Food Markets, 241 NLRB 727, 728-729 (1979). It is also clear that the intended audience of the handbillers were the customers of Baker 's Big Star and this intended audience was readily identifiable only at such times they actually decided to enter Baker's Big Star that was only 1 of 20 stores in the shopping center. The most reasonable method for the Union to get its message across was to stand on the sidewalk near Baker's Big Star No. 64. The alternative of attempting to hand- bill at the entrance of the shopping center was unreason- able under the circumstances as it created a danger for oncoming motorists and rendered the handbilling highly inefficient. Most motorists did not stop to take the hand- bills and those who did so may have been customers of the other stores in the shopping center . The placement of the handbillers at the shopping center was more detri- mental to neutral employers than if the handbillers were stationed in front of Baker's Big Star No. 64. As Baker's Big Store No. 64 holds its public areas out to potential customers it has diminished property rights. The hand- billers, but for the fact that they were handing out hand- bills on behalf of the Union, would have otherwise been welcome as potential customers at the store. Montgomery Ward, 265 NLRB 60 (1982); Giant, supra. Accordingly, I find that by interfering with the handbillers' Section 7 rights, Baker Bros., Inc. violated Section 8(a)(1) of the Act. 15. The overall course of conduct of Baker Bros., Inc. I find that Baker Bros., Inc.'s course of conduct by the circulation of the decertification petition , the interroga- tion of its employees, the threats, and promise of benefits made in order to convince the employees to decertify the Union all in violation of Section 8(a)(1) in Bakers' ef- forts to rid itself of Local 1529 was inconsistent with its obligation to bargain with Local 1529 as the collective- bargaining representative of its employees . As such, I find that Baker Bros., Inc. violated Section 8(a)(5) and (1) of the Act by its course of conduct to undermine Local 1529 as the bargaining representative of its em- ployees. Liberty Cleaners, 227 NLRB 1296, 1303 (1977). G. Independent Allegations of Violations by Respondents Pic-Pac, Inc and Giant Foods, Inc. Contemporaneous with and Subsequent to the Withdrawal of Recognition 1. The November meetings of Respondents Giant and Pic-Pac representatives with their employees After the withdrawal of recognition from the Union in November 1982, Respondents Giant and Pic-Pac repre- sentatives met with employees at their stores and distrib- uted booklets describing employee benefits (G.C. Exh. 74; C.P. Exhs. 26 and 27). In addition, another booklet for Giant's part-time employees was distributed. Melba Chesteen testified that in November 1982, she was work- ing at Pic-Pac No. 11 and was present at a meeting where the Union was discussed among part-time check- ers. The meeting was conducted by Larry Keith, a Pic- Pac supervisor, who commenced the meeting by inform- ing the employees that Pic-Pac and the Union were in court, and that as of that day they were no longer repre- sented by a union, but Pic-Pac would continue to deduct their union dues and would put them in a separate trust fund. He also told them that if Pic-Pac won the court de- cision, the dues would be returned to the employees with interest, but if the Union won, they would get nothing. Keith also informed them that in prior meetings, employ- ees had asked how they could get out of the Union and that they would have to send a certified letter to Bill Creech, the division manager of Pic-Pac, stating that they no longer wanted union dues withheld from their checks and would have to send one to the Union stating the same thing. No one asked questions and Keith then handed out literature. She also recalled on further ques- tioning by the General Counsel that Keith stated that as of that date, everyone would receive a 50-cent raise on the upcoming paycheck, and that in the future, there SEWELL-ALLEN BIG STAR would be more. I credit Chesteen's testimony which is unrebutted as Keith did not testify. DeLois Barnett and Mary Houston, who were both full-time checkers at Pic-Pac No. 11, testified that they were present at a meeting attended by full-time employ- ees on either November 8 or 9, 1982, held by Larry Keith, a Pic-Pac supervisor. Keith told the employees that they no longer had a union as the Company did not recognize the new Union and the old union no longer existed, but they would have the same benefits as under the present union contract with the exception that they would receive a raise and, further, the full-time employ- ees would be given a retirement benefit that they previ- ously did not have. He also told them that as far as Pic- Pac was concerned, they were union free but their union dues would continue to be withheld and put in a special fund that would draw interest and, if the courts decided for Pic-Pac, the employees would get the money back with interest If the matter were decided for the Union, the Union would get the money. Keith was asked by the employees what would occur if they went on strike if the Union told them to walk out, and Keith replied that if the employees walked out, they might as well keep walking because he could assure them they would never hold a position with Pic-Pac again, and that he could have a new crew in their place within an hour. Keith also informed them that Pic-Pac had instituted a hotline to answer employee questions. Houston also testified that she saw a notice in the store concerning the retirement plan that was posted near the timeclock about a week or two after the meeting in November 1982. I credit the tes- timony of Barnett and Houston, which testimony is unre- butted as Keith did not testify. Donald Gilmore, a part-time employee at Giant Food Store No. 4, testified that he attended a meeting for Giant employees which was one of four meetings held for Giant employees approximately I or 2 weeks after a letter was sent from Giant indicating that it no longer recognized the Union. At this meeting, Giant's Division Manager LaRue spoke and the meeting was also attend- ed by Store Manager Ashe. LaRue read from a prepared text and stated that because Local 452 had ceased to exist, there was an illegal merger, that there was a legal question over the merger, and, therefore, Giant Food did not recognize Local 1529 as the bargaining agent of the employees, did not feel compelled to negotiate with Local 1529, and had filed a lawsuit, and the Union would file a counter lawsuit, and that Giant would con- tinue collecting their union dues and deposit them in an escrow account and that the employees no longer needed the Union because the Union had not done anything for them. He further told the employees that Giant was a fair employer and then stated that he would show them how fair Giant was as he was giving them a raise which he then announced. LaRue also told them that he had their guaranteed contract and they did not need a union to negotiate their contract because Giant was a fair em- ployer. LaRue had a small booklet that stated the em- ployees were guaranteed a good job at a fair wage and a paid vacation. LaRue also informed the employees that Giant was setting up a hotline and if they had any dis- putes, they did not have to bother with the Union, but 365 could call Giant representatives directly through the hot- line and the matter could be worked out with either the store manager or with the division manager . LaRue also informed them that the Employer was attempting to start a pension plan for full-time employees that would not affect part-time employees. After reading from the pre- pared text, LaRue stated that if they did not wish to have their dues deduction deposited in an escrow ac- count, they could obtain them by going to the office next door and signing a slip of paper to withdraw from the Union. LaRue acknowledged that shortly after the withdraw- al of recognition, Giant gave wage increases to its em- ployees. He believes it was approximately 2 to 4 days afterward. There was also a new grievance procedure in- stituted as was the production and printing of employee benefit booklets. Additionally, there was a new pension plan implemented for grocery employees. Giant has since refused to accept any grievances from Local 1529 and that policy has continued until the date of the hearing I credit the testimony of Gilmore which is unrebutted as LaRue did not specifically address the contents of this meeting, nor did he dispute in his testimony that the grievance procedure was changed, raises were given to employees, or that a pension plan was instituted. I find that Respondents Giant and Pic-Pac as set out in the meetings above violated Section 8(a)(1) of the Act following their withdrawals of recognition from the Union by soliciting their employees to withdraw from the Union by telling them that their continued contribu- tions to the Union would be withheld although they would not be accorded the benefits of union representa- tion because Respondent no longer recognized the Union and by volunteering instructions, to the employees for their withdrawal from the Union.! Tunica Mfg. Co., 236 NLRB 907 (1978). 2. The meeting at Giant Store No. 5 between employee Hurdle and Store Manager Bradford Hurdle, who is employed at Giant Store No. 5 as a sacker, testified that he attended a mandatory meeting for Giant store employees at which the employees were informed by the employer's representative that Giant no longer recognized Local 1529, which meeting I find to have occurred in November 1982. After this meeting, Store Manager Bradford spoke to him on the same date. Bradford asked Hurdle to come into his office and then asked Hurdle how he thought everything would work out with the union situation. Hurdle replied that the em- ployees were having problems finding out when the union meetings were. Bradford told Hurdle that if he were dissatisfied with the Union and wanted to leave, he could write the Union and tell them he no longer wanted to be in the Union and that would be the end of it. I credit Hurdle's testimony that is unrebutted as Bradford did not testify.6 I find that Giant violated Section 8(a)(1) 6 I also credit Hurdle's unrebutted testimony that Bradford was manag- er of Store No 5 and scheduled and granted vacation days, directed the employees, told the employees when to go on breaks, and was the high- est ranking management representative at the store I find that Bradford was a supervisor within the meaning of Sec 2(11) of the Act 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Act through the interrogation of Hurdle by Brad- ford concerning his attitude and union sympathies on how the dispute with the Union would be resolved, and that said Respondent also violated Section 8 (a)(1) of the Act when Bradford solicited Hurdle to withdraw from the Union and instructed him how to do so. 3. The conversation between Donald Gilmore and Giant Food Store No. 4 Manager Joe Ashe Gilmore, an employee at Giant Food Store No. 4, tes- tified that Joe Ashe is the store manager and the highest ranking person in authority at Giant Store No. 4 and is in charge of all personnel operations in the store , includ- ing the filling out of disciplinary action forms and has the authority to fire employees . In early October 1982, Gilmore obtained a letter from the Union that stated that there was a problem in negotiating the contract (with Giant). Gilmore was in the office looking at the schedule and asked Ashe if he knew anything about the letter. Ashe stated he did not and asked what letter Gilmore was referring to and asked Gilmore to show him the letter. Gilmore showed Ashe the letter, and Ashe asked if he could borrow it and said he would return it after he was finished with it. He then asked Gilmore to keep him informed of any further developments in the labor dis- pute. Gilmore discarded the letter himself after he re- ceived it back. I credit Gilmore's unrebutted testimony as set out above. I find that Ashe was a statutory supervisor within the meaning of Section 2(11) of the Act, as he is the highest ranking person in authority at the store. I find that Respondent Giant Food violated Section 8(a)(1) of the Act by Ashe's request that Gilmore keep him in- formed about any further developments concerning the labor dispute. 4. The conversation between checker Allie Conard and Pic-Pac Store No. 14's Assistant Manager Noel Knott Allie Conard testified that on the Thursday before Thanksgiving 1982, Knott returned from a manager's meeting and Conard asked him how the meeting had gone. Knott replied that the managers had been chewed out during the meeting by Creech who had ,told them that the store was not making any money . During the course of this conversation, Knott also informed Conard that Creech had told the managers that the day the em- ployees took a strike vote was the day Respondent Pic- Pac would begin laying off the employees . Creech is an admitted supervisor. Conard also testified that as the as- sistant manager of Store No. 14, Knott and the other as- sistant store managers made out work schedules , did not punch the timeclock, utilized an office, told the employ- ees when to take lunch breaks, were in charge of time- cards, asked the employees if they wanted to go home early when business was slow, and attended manager meetings. Knott did not testify . I credit the unrebutted testimony of Conard and I find that Knott is a supervisor within the meaning of Section 2(11) of the Act. I further find that Respondent Pic-Pac violated Section 8(a)(1) of the Act by Knott's relay of Creech' s statement that employ- ees would be laid off if a strike vote were taken by the employees. This statement was clearly a threat that the employees would be laid off if they chose to exercise their Section 7 rights to strike. 5. The meeting of January 15, 1983 Conard testified that Manager Creech talked in general about the hearing and the Union , and stated that if the employees decided to take a strike vote Respondent Pic- Pac would commence laying employees off. • According to Conard, Creech brought up the subject of a strike. Al- though Creech testified at the hearing, he did not ad- dress any statements made at this meeting . I credit the testimony of Conard which is unrebutted. I thus find Re- spondent, through the issuance of a threat of layoffs to its employees if they chose to exercise their Section 7 rights to engage in a strike, violated Section 8(a)(1) of the Act. H. The Unilateral Changes The evidence established, and it is undisputed, that in conjunction with their withdrawal of recognition from and refusal to bargain with the Union, the Respondents implemented certain unilateral changes in terms and con- ditions of employment of their employees and without furnishing notice thereof to the Union and without af- fording the Union an opportunity to bargain concerning those changes. Specifically, Respondent Gilbert Allen Big Star unilaterally instituted wage increases and re- fused to furnish information to the .Union. Respondents Sewell's Big Star, Sewell-Allen, and Sewell Allen No. 2 unilaterally instituted wage increases, refused to process grievances filed by the Union, denied access of union representatives to their stores, and refused to furnish in- formation to the Union. Respondent Baker instituted wage increases, refused to process grievances filed by the Union, failed to deduct and remit union dues to the Union as required by the terms of its expired labor agree- ment, and refused to furnish information to the Union. Respondent SMF instituted wage increases, refused to process grievances, and refused to furnish information to the Union. Respondents Giant and Pic-Pac instituted wage increases, instituted a new pension plan for its full- time employees, refused and failed to remit union dues deducted from their employees to the Union as required by the terms of their expired labor agreement, denied access of union representatives to its employees in its stores, refused to process grievances filed by the Union, instituted a new grievance procedure, instituted a change in insurance carrier for its meat department employees, and refused to furnish information to the Union. All Respondents stipulated that at the time of the im- plementation of the wage increases, the current financial condition of their stores was not a factor in determining the amount of the increases . Giant and Pic-Pac also stip- ulated that at the time of the implementation of the pen- sion plans for full-time employees, the current financial condition of their stores was not a factor in determining the amount of the wage increases. Respondents contend that the wage increases were implemented in accordance SEWELL-ALLEN BIG STAR with their determination that a wage increase was due at the time. It is also undisputed that the Respondents did not comply with the request of John Sheppard in July 1982 for information with which to bargain concerning the new labor agreement in the fall of 1982. Additional- ly, Respondent Giant instituted a new notice on vacation policies. Although Giant Manager John LaRue contend- ed this notice was merely an affirmation of the existing policy, Union Representative Mancini contended other- wise. I find that the posting of the notice by Giant con- stituted a unilateral change in the terms and conditions of employment of its employees. I find that each of the changes in the terms and condi- tions of employment as set out above by the Respondents constituted separate violations of Section 8(a)(5) and (1) of the Act as the Respondents had an obligation to fur- nish notice of these changes and bargain with the Union, but in accordance with their rejection of the Union as the collective-bargaining representative of their employ- ees refused and failed to do so. I find that each of the Respondents thereby violated Section 8(a)(5) and (1) of the Act by the implementation of each of the unilateral changes by it. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices as found herein in section IV, above, in connection with the business of Respond- ents as found in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. Respondents Sewell's Big Star, Inc.; Sewell-Allen Big Star, Inc.; Sewell-Allen Big Star, Inc., No. 2; Baker Bros., Inc.; SMF Management, Inc.; Gilbert Allen Big Star, Inc.; Pic-Pac, Inc.; and Giant Foods, Inc. are each an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers, AFL-CIO, Local 1529 is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent Sewell's Big Star, Inc., d/b/a Sewell' s Big Star No. 187 constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrapper-clerks. 4. The following employees, of Respondent Sewell's Big Star, Inc., d/b/a Sewell-Allen Big Star No. 189 con- stitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrapper-clerks. 5. The following employees of Respondent Sewell- Allen Big Star, Inc., No 2, d/b/a Sewell-Allen Big Star 367 No. 103 constitute a unit appropriate for collective bar- gaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrapper-clerks 6. The following employees of Respondent Baker Bros., Inc., d/b/a Baker's Big Star Stores Nos. 31, 61, 64, and 81 constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrapper-clerks. 7. The following employees of Respondent SMF Man- agement, Inc., d/b/a SMF Food Rite Supermarkets con- stitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrappers. 8. The following employees of Respondent Gilbert Allen Big Star, Inc., d/b/a Big Star No. 142 constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrapper-clerks. 9. The following employees of Respondent Pic-Pac, Inc. constitute a unit appropriate for collective bargain- ing within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrappers. 10. The following employees of Respondent Giant Foods, Inc. constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All head meat cutters, journeymen meat cutters, ap- prentices and wrappers. 11. The following employees of Respondent Pic-Pac, Inc. constitute a unit appropriate for collective bargain- ing within the meaning of Section 9 of the Act: All employees except meat market and professional employees. 12. The following employees of Respondent Giant Foods, Inc. constitute a unit appropriate for collective bargaining within the meaning of Section 9 of the Act: All employees except meat market and professional employees. 13. At the election held by United Food and Commer- cial Workers International Union, AFL-CIO, Local 452 among its members in February 1982 to merge with United Food and Commercial Workers International Union, AFL-CIO, Local 1529, unit included employees who were not members of Local 452 were denied the right to vote. As a consequence thereof, the merger be- 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tween Local 452 and Local 1529 whereby Local 1529 was to be the successor and surviving union was invalid. 14. Each of the Respondents had knowledge of the merger in April 1982 and recognized Local 1529 as the successor of Local 452 and continued to do so until after the expiration of their collective-bargaining agreement(s) with Local 452 on October 31, 1982. 15. On or about November 8, 1982, Respondents Sewell's Big , Star, Inc.; Sewell-Allen Big Star, Inc.; Sewell-Allen Big Star, Inc., No. 2; Baker Bros., Inc.; SMF Management, Inc.; Gilbert Allen Big Star, Inc.; Pic-Pac, Inc.; and Giant Foods, Inc. each withdrew rec- ognition from and refused to bargain with Local 1529 as the collective-bargaining representative of their employ- ees in the above appropriate units. 16. As a result of their voluntary recognition of Local 1529 as the successor of Local 452 as the collective-bar- gaining representative of their employees and their fail- ure to withdraw recognition from the Union until more than 6 months after their voluntary recognition of Local 1529 in April 1982, each of the Respondents is barred by Section 10(b) of the Act from raising the lack of majori- ty status of Local 1529 as a defense to the unfair labor practice charges against them stemming from their with- drawal of recognition from Local 1529. 17. By reason of their delay in withdrawing recogni- tion from Local 1529 until after the expiration of their collective-bargaining agreements with Local 452, each of the Respondents is estopped from withdrawing recogni- tion from Local 1529 by challenging the validity of the merger. 18. Respondents Sewell-Allen Big Star, Inc., -d/b/a Big Star No. 189 and Sewell-Allen Big Star, Inc., No. 2, d/b/a Big Star No. 103 are a single employer. 19. By their withdrawal of recognition in November 1982 and continuing refusal to bargain with Local 1529 as the collective-bargaining representative of their em- ployees in the appropriate units as found above, and to furnish information to the Union for bargaining, Re- spondents Sewell 's Big Star, Inc.; Sewell-Allen Big Star, Inc.; Sewell-Allen Big Star, Inc., No. 2; Baker Bros., Inc.; SMF Management, Inc.; Gilbert Allen Big Star, Inc.; Pic-Pac, Inc.; and Giant Foods, Inc. violated Sec- tion 8(a)(5) and (1) of the Act. 20. By its June 28, 1982 solicitation of its employee Johnny Worrell to withdraw as a member of Local 1529 and its promise of improvements in working conditions if he did so, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 21. By its June 30, 1982 solicitation of its employee Worrell to withdraw from the Union, by its promise of improvements in benefits if he did so, and by its issuance of a threat of store closure if the employees did not aban- don the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 22. By its July 12, 1982 solicitation of employee Wor- rell to withdraw from the Union, and by its issuance of an unspecified threat to Worrell regarding his future; by its statement that it would be unable to bargain with Union President Sheppard; by its threat of plant closure if Worrell and the other employees remained in the Union; and by its promises of improvements in wages and benefits if the employees abandoned the Union, Re- spondent Sewell-Allen Big Star, Inc., No. 2 violated Sec- tion 8(a)(1) of the Act. 23. By its July 26, 1982 interrogation of employee Worrell concerning whether he had decided to withdraw from the Union; by its threat of the futility of continued representation by the Union; and by its implied promise of improvements in benefits and other terms and condi- tions of employment if its employees withdrew from the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 24. By its late July 1982 solicitation of employees Thomas Shelton Jr. and Michael Rowley to withdraw from the Union; by its promise of improvements in their retirement and insurance benefits if they did so; and by its threat of less desirable working hours and loss of em- ployment if they did not withdraw from the Union, Re- spondent Sewell-Allen Big Star, Inc., No. 2 violated Sec- tion 8(a)(1) of the Act. 25. By its early August 1982 solicitation of employees Herbert Bobbitt, James Kimbrough, and Worrell to with- draw from the Union, by its threat of the futility of con- tinued union representation as it would not allow Union President Sheppard in its store; and by its promise of im- provements in wages and benefits if the employees with- drew from the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 26. By its mid-August 1982 interrogation of its em- ployees Worrell, Kimbrough, Shelton, Rowley, and Mary Armour concerning their support of the Union; by its representation to the employees that it would not bar- gain with or sign a labor agreement with Union Presi- dent Sheppard demonstrating the futility of the employ- ees' continued support of the Union, by its promises of improvements in pension benefits if the employees with- drew from the Union; and by its threat of discharge to employee Kimbrough if he did not withdraw from the Union, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. 27. By its solicitation of its employee, William Gar- land, in August 1982 to withdraw from the Union and that Garland solicit the withdrawal of its other employ- ees from the Union; by its promise of improvements in benefits if the employees withdrew from the Union; by its subsequent mid-August 1982 interrogation of its em- ployees Garland, Bobby Thurman, and Jim Perry con- cerning their sentiments with respect to the circulation of the decertification petition; by its solicitation of the em- ployees to withdraw from the Union; by its promise of improvements in wages and benefits if they withdrew from the Union; by its statement that it would not nego- tiate with or sign a labor agreement with Union Presi- dent Sheppard and the Union; and by its threat of a strike by the Union, Respondent Sewell-Allen Big Star, Inc violated Section 8(a)(1) of the Act. 28 By its solicitation of employee Mary Fortner in late August 1982 to bypass her collective-bargaining rep- resentative and to bring grievances to the attention of its management, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) of the Act. SEWELL-ALLEN BIG STAR 29. By its solicitation of its employee Leroy Dancer to withdraw from the Union; by its promise to give him ad- ditional working hours if he did so; and by its solicitation and sponsorship of the filing of the decertification peti- tion by Dancer, Respondent violated Section 8(a)(1) of the Act. 30. By the discharge of its part-time employees Bill Gross, Theresa Heist, and Becky Hordyk; and by its de- motion of head meatcutter Johnny Worrell to journey- man meatcutter in August 1982, Respondent Sewell- Allen Big Star, Inc., No. 2 violated Section 8(a)(3) and (1) of the Act. 31. By its discharge of employee James Kimbrough, Respondent Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(3) and (1) of the Act. 32. By their implementation of unilateral changes in the terms and conditions of employment of their employ- ees following the withdrawal of recognition from Local 1529 by the unilateral granting of wage increases to their employees, their refusal to accept or process grievances filed by the Union, and their denial of access of union representatives to their employees at their stores; and by refusing to furnish information to the Union, Respond- ents Sewell's Big Star, Inc.; Sewell-Allen Big Star, Inc.; and Sewell-Allen Big Star, Inc., No. 2 violated Section 8(a)(1) and (5) of the Act. 33. By their unlawful course of conduct initiated in the summer of 1982 and continuing thereafter, whereby Re- spondent Sewell-Allen Big Star, Inc. engaged in viola- tions of Section 8(a)(1) and (5) of the Act and Respond- ent Sewell-Allen Big Star, Inc., No. 2 engaged in viola- tions of Section 8(a)(1), (3), and (5) of the Act, each of the above-named Respondents has engaged in an unlaw- ful course of conduct inconsistent with its obligation to bargain with Local 1529 as the collective-bargaining rep- resentative of its employees, and has thereby committed a separate violation of Section 8(a)(5) and (1) of the Act. 34. By its interrogation of its employee William May- field in June 1982 concerning whether he was a member of the Union, Respondent Baker Bros., Inc. violated Sec- tion 8(a)(1) of the Act 35. By its solicitation of its employee Mayfield in August 1982 to sign a petition to decertify the Union; by its promise to Mayfield of improvements in wages and benefits if the Union were decertified; and by its threat that it would not sign another contract with the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 36. By its solicitation of its employee Roy Needham to sign a petition to decertify the Union; and by its threat of discharge issued to Needham if he engaged in a strike, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 37. By its solicitation of employees Richard Floyd and Mary Jane Monasco to sign a petition to decertify the Union; by its promise of improved working conditions if the employees abandoned the Union ; and by its statement that it would no longer honor the labor agreement with the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 38. By its solicitation of its employees Vickie Mason and Patricia Doty to sign the decertification petition; and 369 by its statement to these employees that a new labor agreement would not be signed with the Union, Re- spondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 39. By its solicitation of its employee Randy Inman to sign the decertification petition; and by its statement to Inman that it would be a nonunion company and that the Union was out, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 40. By its solicitation of its employee Robert Travis to sign a decertification petition; and by its implied promise of a wage increase if the employees chose to decertify the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 41. By, its interrogation of employee Mayfield on August 5, 1982, as to whether he had attended a union meeting; by its threat to Mayfield that if he voted for the Union, he would either lose his job or have his working hours reduced; and by its promise of job security if May- field voted to decertify the Union, Respondent Baker Bros., Inc violated Section 8(a)(1) of the Act. 42. By its interrogation of employee Mayfield concern- ing his union activities; and by its solicitation of Mayfield to bypass his bargaining representatives and notify man- agement of contacts by the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 43. By the statements of its President Al Baker to the employees of Baker's Big Star Store No. 81 in August 1982 that the Company would run smoother as soon as he could get rid of the interruptions (the Union), Re- spondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 44. By its solicitation of employees Monasco and Floyd to sign a second decertification petition, Respond- ent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 45. By its sponsorship and circulation of two petitions to decertify the Union, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 46. By its interference with the rights of handbillers to distribute union handbills on the sidewalk area in front of Baker's Big Star Store No. 64, Respondent Baker Bros., Inc. violated Section 8(a)(1) of the Act. 47 By its implementation of unilateral changes in the terms and conditions of employment of its employees fol- lowing the withdrawal of recognition from Local 1529 by the unilateral granting of wage increases; by its refus- al to accept or process grievances filed by the Union; by its deduction of union dues from its employees and its failure to remit them to the Union; and by its refusal to furnish information to the Union; Respondent Baker Bros., Inc. violated Section 8(a)(5) and (1) of the Act. 48. By its unlawful course of conduct in its attempt to rid itself of the Union, which was inconsistent with its obligation to bargain with the Union, Respondent Baker Bros., Inc. violated Section 8(a)(5) and (1) of the Act. 49. By its implementation of unilateral changes in the terms and conditions of employment of its employees fol- lowing its withdrawal of recognition from the Union by the granting of wage increases; and by its refusal to fur- nish information to the Union; Respondent Gilbert Allen Big Star, Inc. violated Section 8(a)(5) of the Act. 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50. By its implementation of unilateral changes in the terms and conditions of employment of its employees fol- lowing the withdrawal of recognition from the Union by the granting of wage increases; by its refusal to furnish information to the Union; and by its refusal to process grievances; Respondent SMF Management , Inc. violated Section 8(a)(5) and (1) of the Act. 51. Respondents Giant Foods, Inc. and Pic-Pac, Inc are, and have been at all relevant times, a single employ- er under the Act. 52. By the solicitation of their employees to withdraw from the Union following their withdrawal of recogni- tion from the Union, Respondents Gaint Foods, Inc. and Pic-Pac, Inc. violated Section 8(a)(1) of the Act. 53. By the implementation of unilateral changes in the terms and conditions of employment of their employees following their withdrawal of recognition from the Union in November 1982, by granting wage increases to their employees; by their institution of pension plans for their full-time employees; by their failure to remit union dues to the Union in accordance with the terms of their expired labor agreements; by their denial of access of union representatives to their employees during working hours; by their refusal to accept or process grievances; by their institution of new grievance procedures; by their refusal to furnish information to the Union; and by their change of insurance carrier for their employees in their meat departments, Respondents Giant Foods, Inc. and Pic-Pac, Inc. violated Section 8(a)(5) and (1) of the Act. 54. By its unilateral change in its vacation policy for its employees, Respondent Giant Foods, Inc. violated Section 8(a)(5) and (1) of the Act. 55 By its interrogation of employee Stanley Hurdle concerning his union sentiments and its solicitation of Hurdle to withdraw from the Union, Respondent Giant Foods, Inc. violated Section 8(a)(1) of the Act. 56. By its solicitation of employee Donald Gilmore to keep it informed concerning the Union, Respondent Giant Foods, Inc. violated Section 8(a)(1) of the Act. 57. By its threat of layoff if the employees chose to strike relayed to employee Allie Conard in November 1982, Respondent Pic-Pac, Inc. violated Section 8(a)(1) of the Act. 58. By its threat of layoff if the employees chose to strike issued to its employees at a meeting on January 15, 1983, by its Manager Bill Creech, Respondent Pic-Pac, Inc. violated Section 8(a)(1) of the Act. 59. The above unfair labor practices have an effect on commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondents have engaged in viola- tions of the Act, it will be recommended that Respond- ents cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act and post the appropriate notices. In accordance with my findings that Respondents un- lawfully withdrew recognition from Local 1529 follow- ing the expiration of their collective-bargaining agree- ments with Local 452, I shall order Respondents to re- scind their withdrawal of recognition, and make any and all payments that would have otherwise been due under the terms of their expired labor agreements , including the payment of union dues to the Union that were un- lawfully withheld by certain of Respondents. The Board does not require that employees suffer the loss of in- creases in wages and improvements in benefits under cir- cumstances as have occurred in these cases regarding the wage increases and various improvements or increases in existing benefits or implementation of new benefits and I, accordingly, do not recommend that the increases in wages and improvements or increases in benefits or im- plementation of new benefits by Respondents after their withdrawal of recognition be rescinded. Kendall College, 228 NLRB 1083 (1977); Dura-Vent Corp., 257 NLRB 430 (1981); and Pace Oldsmobile, 256 NLRB 1001 (1981) I do, however, recommend that all other terms and condi- tions of Respondents' collective-bargaining agreements that expired on October 31, 1982, be reinstated to the status quo ante until Respondents fulfill their obligations by bargaining, on request, with the Union as the collec- tive-bargaining representative of their employees in the appropriate units, and either reach and execute written agreements with the Union or until a valid impasse occurs. I further recommend that Respondents be or- dered to furnish the information requested by the Union necessary for it to bargain, on request by the Union, within a reasonable period after the request. I further recommend that Respondent Sewell-Allen Big Star, Inc., No. 2's discharge of employees Bill Gross, Theresa Heist, Becky Hordyk, and James Kimbrough, and the demotion of employee Johnnie Worrell, be re- scinded, and that the Respondent remove its personnel records of all references thereto and make the above- named employees whole with respect to any loss of se- niority, earnings, and benefits that they may have in- curred by reason of Respondent's unlawful actions against them. All loss of earnings and benefits suffered by any em- ployees of Respondents by reason of Respondents' with- drawal of recognition from the Union and refusal to bar- gain with the Union, and by the Union and/or employ- ees by reason of Respondents ' refusal to remit union dues as found above, and suffered by employees Gross, Heist, Hordyk, Kimbrough, and Worrell by reason of the dis- crimination by Respondent Sewell-Allen Big Star, Inc., No. 2 against them shall be computed with interest in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).' Respondents' withdrawal of recognition and refusal to bargain, as found above , constituted a complete rejection of the Union and of their employees' rights to represen- tation for purposes of collective bargaining. Moreover, Respondents Sewell-Allen Big Star, Inc., Sewell-Allen Big Star, Inc., No. 2, and Baker Bros., Inc., committed numerous violations of the Act in disregard of the rights of their employees under the Act. I, accordingly, find that all Respondents' conduct in repudiating the Union goes to the heart of the collective-bargaining relationship 7 See generally Isis Plumbing Co, 138 NLRB 761 (1962) SEWELL-ALLEN BIG STAR 371 and the Section 7 rights of their employees under the Act. I, accordingly, recommend that a broad order be issued to each of the Respondents requiring it to cease and desist from violating the Act in any other manner. Hickmott Foods, 242 NLRB 1357 (1979). I also recom- mend that Respondents be ordered to preserve and make available to the Board or its agents, on request, for in- spection and copying, all records necessary to determine the payments due and owing by Respondents under the terms of this Order, and to ensure that Respondents have otherwise fully complied with the terms of this Order. [Recommended Order omitted from publication.]