Alpha Beta Co.

228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Alpha Beta Company and United Food and Commer- cial Workers International Union , AFL-CIO, Local 1179 and Independent Alpha Beta Work- ers Association, Party to the Contract. Case 32- CA-3979 May 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 20, 1983, Administrative Law Judge James M. Kennedy issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The Respondent filed cross-excep- tions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, 2 and conclusions only to the extent consistent with this Decision and Order. 1. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to transfer any of the employees from its San Pablo, California store, which was being closed, to its newly opened Pinole, California store. We agree with the judge's finding. However, we modify the judge's recommended Order that provided a make- whole remedy, including backpay and reinstate- ment offers, for all employees working st San Pablo as of August 1981. We limit this affirmative remedy to those San Pablo employees who would have been transferred to Pinole absent the Re- spondent's discriminatory conduct. This determina- tion shall be made at the compliance stage of this proceeding. 2. The General Counsel excepted, inter alia, to the judge's dismissal of the portion of the com- plaint alleging that the Respondent violated Sec- tion 8(a)(5) and (1) by its refusal to grant recogni- tion to the Charging Party (Local 1179) at its Pinole store. When Local 1179 demanded recogni- tion at the Pinole store on January 8, 1982, the Re- ' The Respondent's motion to admit into evidence photographs depict- ing its Pinole, California combination store (R Exh 38) is granted 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent has requested oral argument This request is denied as the record, exceptions, and briefs adequately present all the issues and the positions of the parties spondent refused to submit to an independent third- party card check to verify that a majority of Pinole employees had signed authorization cards designat- ing Local 1179 as their exclusive bargaining repre- sentative. The Respondent informed Local 1179 that it declined to recognize Local 1179 as the bar- gaining agent for the Pinole store employees be- cause "authorization cards are an unacceptable and unreliable indicator of employee wishes." The Re- spondent further informed the Union that if Local 1179 decided not to file for a Board election, the Respondent would consider any other proposals the Union might submit. At all times material, Local 1179 and the Re- spondent were parties to a multiemployer, multiun- ion master agreement known as the Food Store Agreement, effective from January 1, 1980, to Feb- ruary 28, 1983. Section 1.1 of that agreement, enti- tled "RECOGNITION AND CONTRACT COV- ERAGE," provides that Local 1179 is the exclu- sive bargaining representative for an appropriate unit consisting of all employees working in the Employer's retail food stores within the jurisdiction of the Union except meat department employees and supervisors within the meaning of the National Labor Re- lations Act, as amended. The General Counsel and Local 1179 contend that section 1.13 of the agreement is an "after-acquired stores clause" waiving the Respondent's right to insist on a Board election when confronted with the Union's documented claim of majority status. Section 1.13 reads in pertinent part as follows: NEW STORES AND REMODELS: .. . Notwithstanding any language to the contrary contained in this agreement between the par- ties, it is agreed that this agreement shall have no application whatsoever to any new food market or discount center until fifteen (15) days following the opening to the public of any such establishment. . . . The Employer shall staff such new or re- opened market with a combination of both current employees and new hires, in accord- ance with current industry practices of staffing such stores with a cadre of current employees possessing the necessary skills, ability and ex- perience, plus sufficient new hire 4sic to meet staffing requirements. . . . The General Counsel and Local 1179 contend, by virtue of the above language, that after the 15- day "window" expires, and on proof of majority, a new store is automatically incorporated into the multistore bargaining unit. The judge found that 294 NLRB No. 13 ALPHA BETA CO the collective-bargaining agreement between the Respondent and Local 1179 did not contain an after-acquired stores clause waiving the Respond- ent's right to demand a Board election, and that, even if the contractual language did constitute an after-acquired stores clause, the Pinole store was not a "food store" within the contemplation of the parties' contract. We find' merit in the General Counsel's excep- tions to the judge' s dismissal of the 8(a)(5) allega- tion. We conclude that section 1.13 of the Food Store Agreement does constitute a waiver of the Employer's right to insist on an election when con- fronted with the Union's documented claim of ma- jority status. The judge reasoned that nothing in section 1.13 refers to waiver of the right to a Board election or to any alternative means of proving ma- jority and refused to infer such a waiver. The fact that section 1.13 does not explicitly waive the Re- spondent's right to insist on an election is not de- terminative. The Board has held that the only rea- sonable interpretation, which saves after-acquired store clauses from meaninglessness, is as a waiver of the employer's right to a Board-ordered elec- tion.3 Thus, the Board has interpreted such clauses to require, on proof of majority status by a union, recognition and extension of the current collective- bargaining agreement to the new operation. The title of section 1.13 is "NEW STORES AND REMODELS" (emphasis added). Section 1.13 of the Food Store Agreement delays applica- tion of the other provisions of the Food Store Agreement, including section 1.1, the recognition clause, to new stores for a period of 15 days after the new store opens. We find that, after the 15-day window period, the Respondent was contractually obligated to recognize Local 1179 and extend the current collective-bargaining agreement to the new Pinole store on Local 1179's showing of majority status.4 The judge erred in holding that section 1.13 was not an after-acquired stores clause because it fails to specify the method by which the required show- ing of majority status will be made. Once an em- ployer has waived its right to insist on a Board election by entering into a contract containing an after-acquired stores provision, it is obligated to recognize the union if the union presented it with concrete evidence of support by a majority of the employees in the group to be added to the existing 3 See Jerry's United Super, 289 NLRB 125 (1988), Kroger Co, 219 NLRB 388 (1975) ° In view of the title of sec 1 13 and the references to "new" stores, we cannot agree with the judge that that section "may simply refer to remodels where the [Charging Party is] already the representative and provide a 'window' for bargaining unit work to be performed by nonumt workers " 229 units Without any evidence of impropriety or mis- conduct in the solicitation of the authorization cards, the Respondent flatly rejected the proffered third-party card check as proof of Local 1179's ma- jority, and clearly breached its obligation to recog- nize Local 1179 at its Pinole store on a showing of majority status. We also disagree with the judge's conclusion that, assuming section 1.13 was found to constitute a valid after-acquired stores clause, the Pinole store as a combination food store-drugstore was not an after-acquired store within the contemplation of the parties' contract. The record establishes that al- though the Pinole store is larger and stocks larger quantities and a wider selection of merchandise, the store is operated and stocked by the Respondent in much the same manner as the Respondent's smaller stores. In the Pinole store, as in the Respondent's other retail food stores, food items and nonfood, general merchandise are interspersed. All merchan- dise, food and nonfood, is checked out through the same cash register area. Food and nonfood clerks, who work side by side at Pinole and at the Re- spondent's other stores, perform essentially the same duties : coding, marking, and stacking mer- chandise. The difference in the supervisory hierar- chy of the Pinole store, compared to the Respond- ent's other stores, appears to be due to the greater size of the Pinole store rather than to any differ- ence in employee duties or working conditions. We further note that the Food Store Agreement de- fines "non-food and general merchandise" and "non-food or general merchandise work," in con- templation that signatory employers would sell nonfood, general merchandise. There is uncontra- dicted evidence that other combination stores, simi- lar to the Pinole store, operated by other employ- ers within the multiemployer, countywide unit, are covered by the Food Store Agreement. Under these circumstances, we conclude that the Pinole store was an after-acquired store within the mean- ing of section 1.13 of the parties' contract and that, pursuant to that provision, the Respondent was ob- ligated to recognize Local 1179 as the exclusive bargaining representative of the Pinole store em- ployees and to extend the Food Store Agreement to those employees, on a showing of majority sup- port. The Respondent's statutory duty to recognize Local 1179 as the representative of the Pinole store employees and to apply the Food Store Agreement to the new operation arises only on presentation by Local 1179 of concrete evidence of support by a 'Joseph Magnin Co, 257 NLRB 656 (1981), enfd 704 F.2d 1457 (9th Cir 1983) 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD majority of the Pinole store employees. Therefore, it is necessary to determine whether Local 1179 had obtained an actual card majority on January 8, 1982, the date the demand for recognition was made.6 The Respondent and the General Counsel make various contentions in their briefs as to the number of unit employees at Pinole and the number of valid authorization cards. The record in- dicates that on the date the demand for recognition was made, Local 1179 had in its possession 87 au- thorization cards. The Respondent contends that employee John Bettencourt's card is ambiguous and should be excluded.? The Respondent further contends that the Local 1179 authorization cards of the nine employees who signed the petition circu- lated by Pinole employee William Purcell should be excluded because the petition revoked the previ- ously signed authorization cards. Local 1179 began to solicit authorization cards from the Pinole store employees in mid-September 1981, and continued to do so into January 1982. The Purcell petition, circulated between December 5 and 10, 1981, reads as follows: We the undersigned believe that we should have the right to vote on whether or not our Store Number 591 [Pinole] should be repre- sented by a Union with the election process being conducted by the National Labor Rela- tions Board. We revoke any union card we signed before. The judge concluded that the petition did not revoke the previously signed Local 1179 authoriza- tion cards because it had "no legal significance." We agree with the judge's conclusion that the Pur- cell petition did not revoke the previously signed authorization cards but for a different reason." The record shows that the Purcell petition was never sent to nor received by Local 1179. It is well estab- lished that an authorization card cannot be effec- tively revoked in the absence of notification to the union prior to the demand for recognition.9 We also reject the Respondent's assertion that even if the petition did not revoke the previously signed authorization cards, "it cast sufficient doubt on them to render them ambiguous and legally use- less." In this regard, we note that the authorization o The judge made no findings regarding Local 1179's actual card ma- jority ' Bettencourt's signed authorization card contains the following hand- written notation "This only means I would like a union in this stores [sic) but that 's all I'm saym " 8 We find it unnecessary to rely on the judge's discussion concerning the legal effect or "deceitful" nature of the petition e James H Matthews & Co v NLRB, 354 F 2d 432, 438 (8th Cir 1965), cert denied 384 U S 1002 (1966) See also NLRB v Southbridge Sheet Metal Works, 380 F 2d 851, 856 (1st Cir 1967) card clearly indicated the signer's intent to desig- nate Local 1179 as his or her bargaining represent- ative; but it is not at all clear whether an employee signing the petition for an election was repudiating his own support for Local 1179 or whether he simply thought that announcing an intent to revoke his card within the compass of such a petition would somehow make it possible for all to vote. Hence, in relying on the rule, noted above, that revocations are not effective until received by the union, we are not disregarding a clearly expressed employee choice against representation by Local 1179. Accordingly, we conclude that the cards of the nine employees who subsequently signed the Purcell petition should be counted toward the Union's majority. Even excluding the Bettencourt card, Local 1179 had 86 valid authorization cards on the date the demand for recognition was made. 10 In its brief, the Respondent concedes that the maximum number of potential unit employees at Pinole as of January 8, 1982, is 163 employees. The General Counsel asserts that there were no more than 153 nonsupervisory clerk employees who would have been represented under the Food Store Agreement, had the Respondent extended recogni- tion to Local 1179. The parties' briefs raise issues concerning whether certain positions should be ex- cluded from the unit as supervisory or professional employee positions. In light of our finding that Local 1179 had 86 valid authorization cards, how- ever, it is unnecessary to resolve these issues be- cause the Union would have had a clear majority even if the number of unit employees was as high as 163. Accordingly, we conclude that the Re- spondent violated Section 8(a)(5) and (1) by failing to recognize the Union on January 8, 1982, when the Union represented a majority of the Pinole store employees, and by failing to apply the Food Store Agreement to those employees. 3. We agree with the judge that the Respondent violated the Act by recognizing the Independent Alpha Beta Workers Association on March 2, 1982, and by executing collective-bargaining contracts with it on March 11, 1982, but we do not rely on his rationale. In light of our finding that the Re- spondent was obligated to recognize Local 1179 on January 8, 1982, and apply the Food Store Agree- ment to the Pinole store employees, we further find that the Respondent's conduct in thereafter recog- nizing another labor organization and executing collective-bargaining agreements with it violated 10 The Respondent did not otherwise challenge the validity of the au- thorization cards relied on by Local 1179 to establish majority status We do not pass on the validity of Bettencourt's card ALPHA BETA CO Section 8(a)(2) and (1) of the Act. See American Pacific Concrete Co., 262 NLRB 1223, 1226 (1982), enfd. 709 F.2d 1514 (9th Cir. 1983). 4. The Respondent excepted to the judge's find- ing that it violated Section 8(a)(1) of the Act by re- fusing to disavow the antiunion petition circulated by employee William Purcell which purported to revoke Local 1179's authorization cards signed by its Pinole store employees. i i We find merit to this exception. There is no evidence that the Respondent knew of or authorized the circulation of the petition by Purcell or that the employees might reasonably be- lieve that the Respondent condoned or had author- ized Purcell's activities. The record contains un- controverted testimony by Purcell and Pinole Unit Manager Danner that the Respondent did not learn of the petition until sometime after the original complaint was filed in this case. Purcell had been referred to as "Bill Brazil" in the original com- plaint issued on November 27, 1981. In response to questioning by Danner to determine who "Bill Brazil" was, Purcell revealed that he had been so- liciting employee signatures on his petition. Purcell gave the petition to Danner who then forwarded it to the industrial relations department. The Re- spondent did not use the petition for any reason other than to assert at the hearing that Local 1179 lacked majority status. Under these circumstances, the acceptance of the petition by the Respondent does not retroactively constitute Purcell an agent.12 Accordingly, we reverse the judge's find- ing of an 8(a)(1) violation based on the Respond- ent's failure to disavow the Purcell petition. REMEDY Having found that the Respondent has engaged in violations of Section 8(a)(5), (3), (2), and (1) of the Act, the Respondent shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The affirmative action shall include an order requiring the Respondent to offer the San Pablo employees who would have been transferred but for the Respondent's unlawful discrimination posi- tions of employment at the Pinole store, without prejudice to their seniority or any other rights or privileges, displacing, if necessary, any Pinole em- i l The judge concluded that Customer Service Manager Purcell was an employee, rejecting the General Counsel's contention that the custom- er service manager had supervisory authority The General Counsel ex- cepted to the judge's finding We agree with the judge's determination for the reasons set forth in his decision and find it unnecessary to rely on the alternative theory that even if Purcell was a supervisor, as a probable bargaining unit member, the Respondent would not be responsible for his conduct "Dietz Dietz Forge Co , 173 NLRB 19 (1968) 231 ployee in order to provide work for the discrimina- tees. In addition, the Respondent shall be required to make the discriminatees whole for any loss of earnings and other benefits, and any additional ex- penses they may have incurred as result of the dis- crimination practiced against them, with interest." To remedy the 8(a)(5) violation, the Respondent shall be ordered to recognize and bargain with the Union, on request, as the exclusive representative of all Pinole store employees in the appropriate unit as specified in the parties' collective-bargaining agreement; on request, apply and extend the 1980- 1983 collective-bargaining agreement to the unit employees at the Pinole store with retroactive effect from and after January 8, 1982, the date the Union attained its majority among the Pinole store employees; and to make the unit employees at the Pinole store whole for any loss of pay and benefits resulting from the Respondent's failure to apply the terms and conditions of such collective-bargaining agreement to them, with interest.14 The Respondent shall also be ordered to cease giving effect to the collective-bargaining agree- ments it executed with Independent Alpha Beta Workers Association. However, nothing herein shall authorize or require the withdrawal or elimi- nation of any wage increase or other benefits or terms and conditions of employment that may have been established pursuant to the performance of those agreements. The Respondent shall reimburse all present and former employees, who may have been coerced into membership in the Independent Alpha Beta Workers Association by virtue of the union-security clauses contained in these collective- bargaining agreements with the Association, for moneys paid by or withheld from them on or after March 11, 1982, the date the agreements were exe- cuted, with interest computed in the manner pro- vided in New Horizons for the Retarded, supra. 15 In general, employees who joined or signed authoriza- tion cards for Independent Alpha Beta Workers Association prior to the execution of the collective- bargaining agreements on March 11, 1982, are 13 The Respondent shall pay backpay as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971) Fur- ther, in accordance with our decision in New Horizons for the Retarded, 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 US 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) 14 See fn 13, supra Interest applicable to any trust fund contributions that the Respondent has failed to make shall be paid in accord with the criteria set forth in Merryweather Optical Co, 240 NLRB 1213 (1979) is See Human Development Assn , 293 NLRB 1228 (1989), Unit Train Coal Sales, 234 NLRB 1265 (1978) 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD found not to have been coerced into member- ship.16 In view of the closing of the San Pablo store, we shall provide for mailing the notice to the former San Pablo employees. CONCLUSIONS OF LAW 1. The Respondent, Alpha Beta Company, is an employer engaged in commerce within the mean- ing of Section 2(2) of the Act. 2. United Food and Commercial Workers Inter- national Union, AFL-CIO, Local 1179 and Inde- pendent Alpha Beta Workers Association are labor organizations within the meaning of Section 2(5) of the Act. 3. In August 1981, the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by refusing to trans- fer any of its San Pablo retail salesclerks to its newly opened store in Pinole in order to obtain contractual concessions from Local 1179. 4. All employees working in the Respondent's retail food stores within the geographical jurisdic- tion of Local 1179, except meat department em- ployees and supervisors within the meaning of the National Labor Relations Act, constitute a unit ap- propriate for the purposes of Section 9(b) of the Act. 5. Since January 8, 1982, Local 1179 has been the exclusive collective-bargaining representative of the Pinole store employees in the unit found to be appropriate in Conclusion of Law 4, above, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing, on or after January 8, 1982, to recognize and bargain with Local 1179 as the col- lective-bargaining representative of the employees at the Pinole store, as part of the appropriate unit, the Respondent violated Section 8(a)(5) and (1) of the Act. 7. By refusing, on or after January 8, 1982, to apply and extend to the employees at its Pinole store, as part of the appropriate unit, the existing collective-bargaining agreement it has with Local 1179, the Master Food Store Agreement, the Re- spondent violated Section 8(a)(5) of the Act. 8. By recognizing the Independent Alpha Beta Workers Association, on March 2, 1982, and there- after executing collective-bargaining contracts with it on March 11, 1982, the Respondent violated Sec- tion 8(a)(2) and (1) of the Act. 9. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. I6 Ibid ORDER The National Labor Relations Board orders that the Respondent, Alpha Beta Company, San Pablo and Pinole, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to transfer employees from existing stores to newly opened stores in order to obtain contractual concessions from a labor organization. (b) Refusing to recognize and bargain with United Food and Commercial Workers Union, AFL-CIO, Local 1179, as the exclusive representa- tive of their employees in their Pinole, California store, as part of the unit found appropriate herein. (c) Recognizing or bargaining with the Inde- pendent Alpha Beta Workers Association as the representative of the Respondent's Pinole retail sales employees unless and until that labor organi- zation has been certified by the National Labor Re- lations Board as the exclusive bargaining represent- ative of those employees. (d) Giving effect to its contracts of March 11, 1982, with Independent Alpha Beta Workers Asso- ciation or to any extension, renewal, or modifica- tion of it; provided, however, that nothing in this Order shall authorize or require the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employment that may have been established pursuant to the performance of those contracts. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer those former San Pablo store employ- ees, who would have been transferred to the Pinole store in the absence of the Respondent's discrimina- tory conduct, immediate employment in the same positions in which they would have been hired without the discrimination against them or, if those positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges and make them whole for any loss of earnings and other benefits, and any additional expenses incurred as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful refusal to transfer and notify the employ- ees in writing that this has been done and that action will not be used against them in any way. (c) On request, recognize and bargain collective- ly with United Food and Commercial Workers ALPHA BETA CO. Union, AFL-CIO, Local 1179, as the exclusive representative of its employees at its Pinole, Cali- fornia store, as part of the appropriate unit. (d) On request, apply and extend to the employ- ees at its Pinole, California store, as part of the ap- propriate unit, the parties' 1980-1983 collective- bargaining agreement, with retroactive effect from and after January 8, 1982. (e) Make whole the unit employees at the Pinole, California store for any loss of earnings and other benefits that they may have suffered by reason of the unfair labor practices engaged in by the Re- spondent in the manner set forth in the remedy sec- tion of this decision. (f) Reimburse all present and former unit em- ployees, except those who joined or signed authori- zation cards for Independent Alpha Beta Workers Association prior to the execution of the collective- bargaining agreements on March 11, 1982, for moneys paid by or withheld from them on or after March 11, 1982, for initiation fees, dues, or other obligations of membership in the Association, with interest computed in the manner provided in the remedy section of this decision. (g) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order. (h) Post at its Pinole, California store copies of the attached notice marked "Appendix." 17 Copies of the notice, on forms provided by the Regional Director for Region 32, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and be maintained for 60 consecutive days in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Mail a copy of the attached notice marked "Appendix" 18 to all former San Pablo employees who were employed by the Respondent immediate- ly prior to the closing of the store. Copies of the notice on forms provided by the Regional Director for Region 32, after being signed by the Respond- ent's authorized representative, shall be mailed im- mediately upon receipt. 17 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 " 18 See fn 17, supra 233 (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 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. In recognition of these rights, we notify you that: WE WILL NOT refuse to transfer employees from our San Pablo, California store to our Pinole, Cali- fornia store in order to obtain contractual conces- sions from United Food and Commercial Workers Union, AFL-CIO, Local 1179, at Pinole. WE WILL NOT refuse to recognize and bargain collectively with United Food and Commercial Workers Union, AFL-CIO, Local 1179, as the ex- clusive representative of our employees at our Pinole, California store, as part of the appropriate unit noted below with respect to wages, hours, or any other terms of conditions of employment: All employees working in the Employer's retail food stores within the geographical juris- diction of the Union except meat department employees and supervisors within the meaning of the National Labor Relations Act. WE WILL NOT recognize or bargain with Inde- pendent Alpha Beta Workers Association as the representative of our Pinole, California retail sales employees unless and until that labor organization has been certified by the National Labor Relations Board as the exclusive bargaining representative of those employees. WE WILL NOT give effect to our contracts of March 11, 1982, with Independent Alpha Beta Workers Association; provided, that nothing in this Decision and Order shall authorize or require the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employ- 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment that may have been established pursuant to the performance of such contracts. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of any rights guaranteed by the Na- tional Labor Relations Act. WE WILL offer those former San Pablo store em- ployees, who would have been transferred to the Pinole store but for our discriminatory conduct, immediate employment in the same positions in which they would have been hired absent the dis- crimination against them or, if those positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges, and WE WILL make them whole, with interest, for lost earnings, benefits and expenses they may have suffered as a result of our refusal to transfer them in August 1981. WE WILL notify each of them that we have re- moved from our files any reference to our unlawful refusal to transfer and that action will not be used against them in any way. WE WILL, on request, recognize and bargain with United Food and Commercial Workers Union, AFL-CIO, Local 1179, as the exclusive bargaining representative of all employees in the appropriate unit as set forth above. WE WILL, on request, apply our 1980-1983 col- lective-bargaining agreement with United Food and Commercial Workers, AFL-CIO, Local 1179, the Food Store Agreement, to the employees in our store located in Pinole, California, as part of the multistore appropriate unit described above, with retroactive effect from January 8, 1982. WE WILL make our employees at our Pinole, California store whole for any loss of earnings and other benefits resulting from our unfair labor prac- tices, plus interest. WE WILL reimburse all present and former unit employees except those who joined or signed au- thorization cards for Independent Alpha Beta Workers Association prior to the execution of the collective-bargaining agreements on March 11, 1982, for moneys paid by or withheld from them on or after March 11, 1982, for initiation fees, dues, or other obligations of membership in the Associa- tion, with interest. (Bunch & Andrews), of San Francisco, California, for the Retail Clerks. Cy Epstein (with Glenn Alex, on brief) and Janet Vales, of Alameda, California, President of the Independent Alpha Beta Workers Association, for the Independent. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This case was heard at Oakland, California, on 11 trial days between April 20 and May 19, 1982, pursuant to an amended complaint issued by the Regional Director for the National Labor Relations Board for Region 32 on March 25, 1982, the original having been issued on No- vember 27, 1981, and which is based on a charge filed by United Food and Commercial Workers International Union, AFL-CIO, Local 1179 (either the Retail Clerks or Local 1179) on October 6, 1981,1 and twice amended thereafter. The complaint alleges that Alpha Beta Com- pany (Respondent) has engaged in certain violations of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act (the Act) Issues 1. Whether or not Respondent refused to transfer em- ployees from its San Pablo store upon its closing to its new Pinole store because of union representation consid- erations 2 Whether or not Respondent refused to grant recog- nition to the Retail Clerks at its Pinole store in breach of the bargaining obligation. 3. Whether or not Respondent thereafter granted rec- ognition to the Independent Alpha Beta Workers Asso- ciation (the Independent) at a time when it was not privi- leged to do so, and 4. Whether it committed certain acts interfering with, restraining, and coercing employees in the exercise of their Section 7 rights independent of the foregoing ques- tions 2 All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of all parties. On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following ALPHA BETA COMPANY David Miller and Raoul Thorbourne, for the General Counsel. Henry F Telfeian and Patrick W. Jordan (McLaughlin & Irvin), of San Francisco, California, for the Respond- ent. Thornton C Bunch Jr. (with Anne H. Andrews on brief) (Nykodym, Epstein & Bonouich), of Pinole, California, ' All dates herein refer to 1981 unless otherwise indicated 2 In fn I of this brief, counsel for the General Counsel has moved to withdraw par 7(c) and 6(a)(2) of the complaint relating to the discharge of Ronald Aragon and the alleged encouragement of employees to form their own union In In 4 he has moved to strike from the complaint the names of alleged San Pablo employees Serb, Cates, and David Johnson, conceding they were not employed there when the store closed Those motions are granted At the hearing, pars 7(b) and (d) were withdrawn In addition I dismissed from the bench, as unsupported by any evidence, par 6(a)(1), a portion of par 6(b)(1) relating to September 10, and a por- tion of par 5 alleging Mike Hendrix to be a supervisor, but letting stand the allegation regarding his agent status ALPHA BETA CO 235 FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent admits it is a Delaware corporation which operates a chain of supermarkets throughout California It further admits that during the past year, in the course and conduct of its business its gross volume exceeded $500,000 and it annually purchases goods and materials valued in excess of $500,000 from sources outside Cali- fornia. Accordingly it admits, and I find, that it is an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent admits, and I find, both the Retail Clerks and the Independent to be labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background While the record is not clear regarding the exact nature of the ownership interests, it appears that Re- spondent is a division of American Stores. It further ap- pears that sometime in 1979 Skaggs Drug Company pur- chased a controlling interest in American Stores and sub- sequently influenced the creation of the so-called "com- bination" or "combo" store concept. A "combo" store is much larger than an ordinary supermarket, even larger than so-called "expanded" stores. In addition to offering wider varieties of groceries, a "combo" store incorpo- rates an entire modern drug store selling a wide variety of nongrocery items. The Pinole store, which opened for business in early August, was the first "combo" store in Northern Califor- nia. Respondent's oldest Northern California store was located in San Pablo. The two stores were quite close, both being adjacent to Interstate 80 and approximately 5 miles, or two freeway exits, apart. Respondent closed its San Pablo store nearly simultaneously with the opening of Pinole. The San Pablo store was part of a multistore collec- tive-bargaining unit represented by Local 1179. That union represents Respondent's retail clerks at each of its stores in Contra Costa County. In addition, sister locals represent, on a similar multistore basis, the employees at Respondent's stores located throughout the remainder of the San Francisco-Oakland-San Jose area. Collective bargaining here has been described as multi- employer, multiunion, as well, for Respondent, like other chains in the area, is represented by Food Employers Council, On a multiemployer, multiunion basis, the master agreement reached by the parties in the Bay Area is known as the "Food Store Agreement." In Contra Costa County however the only actual signatory parties are Local 1179 and the Food Employers Council. The current agreement is effective from January 1, 1980, to February 28, 1983. It appears that at least insofar as Respondent is con- cerned, whenever it has opened a new store in the Bay Area, it has regularly recognized the appropriate UFCW local covering the county in which the new store was lo- cated. Recognition was normally granted without proof of the union's majority status. Indeed, that appears to have been the standard practice of all the chains who are members of Food Employers Council. Not until recent years, according to the testimony of Food Employers of- ficials, have a few chains begun asking for proof of ma- jority status. The current Food Store Agreement contains a newly negotiated clause, paragraph 1 13 which reads in perti- nent part: NEW STORES AND REMODELS: . . . Not- withstanding any language to the contrary con- tained in this agreement between the parties, it is agreed that this agreement shall have no application whatsoever to any new food market or discount center until fifteen (15) days following the opening to the public of any such new establishment . . . . . . . The Employer shall staff such new or re- opened market with a combination of both current employees and new hires, in accordance with cur- rent industry practices of staffing such stores with a cadre of current employees possessing the necessary skills, ability and experience, plus sufficient new hire [sic] to meet staffing requirements. .. . As can be seen, the clause by its title relates specifical- ly to new stores and remodels. It permits an employer to ignore the collective-bargaining agreement for the first 15 days the establishment is open. It does, however, re- quire the employer initially to staff the store with a rea- sonable number of current employees. In addition, the employer is permitted to hire new employees. The Union and the General Counsel contend that after the 15-day "window" expires, the new store, by virtue of the clause, and on proof of majority, is automatically in- corporated into the multistore bargaining unit. Thus they assert that the clause is a relatively ordinary "after ac- quired store" clause. Respondent, on the other hand, argues that the clause does nothing more than to provide the employer with the opportunity initially to stock the store and operate it free of the contract obligations for the first 15 days It argues that the clause should not be interpreted as being broader than that. Both parties agree that the clause, in accordance with good business practice, also requires/permits an employ- er opening a new facility to bring in experienced em- ployees from other stores to staff and train new employ- ees. Whether those transfers are considered temporary or permanent appears to be discretionary as is the number of new hires. The Pinole store had been under construction since sometime in 1980. It was not, however, until May 1981 that Respondent's officials began concerning themselves with staffing it. In May, believing the store to be signifi- cantly different than its ordinary supermarkets, Director of Labor Relations Rick Hinshaw had a breakfast meet- ing with Retail Clerks President Bill Henderson at the Edgewater Hyatt House. Hinshaw explained the concept of the "combo" store and told Henderson that such 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stores had been opened in Las Vegas, Nevada. He said there had been a dispute between the UFCW local there and Respondent lasting for 6 months which had been re- solved only after that union had made some concessions. Hinshaw explained that due to the size of the Pinole store, as well as differences in the chain of supervision, Respondent, prior to recognizing the Retail Clerks, would insist on concessions similar to those made in Las Vegas and that without them some kind of confrontation would occur. According to Henderson, Hinshaw told him the needed concessions would be in the area of man- agement exclusions from the bargaining unit and lower rates of pay for the employees working on the "drug side " In addition, according to Henderson, but denied by Hinshaw, Hinshaw observed that Respondent's labor relations department was going to take a tougher stance where necessary as a result of the purchase by Skaggs; indeed, the Las Vegas dispute supposedly was the result of that policy change. Henderson says he replied that because this was the first store of its kind in Northern California and the first time an employer had asked for such concessions, he would not make the decision himself but would refer the question to the Bay Area Clerks Council, a committee of UFCW locals which are parties to the Food Store Agreement. That meeting occurred in July. Shortly thereafter Hen- derson advised Hinshaw the Council had taken the posi- tion that it would not make concessions or deviate from the Food Store Agreement. He said he was bound to adhere to that position. In the meantime, beginning in June, and knowing there was a dispute developing between the Retail Clerks and management regarding contract coverage at Pinole, Re- spondent's district manager, Steve Giordano, together with the personnel department and the Pinole "unit man- ager," Monty Danner,3 met for the purpose of determin- ing which employees would be assigned to open the Pinole store. The decisional process continued even after the store opened on August 30. Simultaneously, the San Pablo store was in the process of being closed No official announcements were made until it actually closed although many employees, but not all, were aware of rumors that the store soon would be Because of the rumors, a number of employees had filed transfer requests asking to be sent to Pinole. When Store Manager Rich Peterson ran out of transfer request forms, others asked him orally for transfer to Pinole. When the San Pablo store was actually closed on August 15 (although a few employees worked in the closed store, performing merchandise transfer and clean- up work for a week thereafter), all the employees were transferred to other stores within the jurisdiction of the Contra Costa County UFCW, Local 1179.4 On August 30, according to Danner, the Pinole store opened with approximately 425 employees. He testified that this complement, which does not total 425, included 40 checkers, 20 bakery clerks, 125 courtesy clerks (as- signed to the grocery side), 65 drug clerks, 15 meatcut- ters, and 5 custodians.-' B. Management 's Statements 1. To San Pablo employees regarding transferring to Pinole Because of the rumors that San Pablo would close, many of those employees began to take steps to ensure continued employment. The parties stipulated that 10 employees filed transfer requestss and there is testimony that others were filed but those appear to have been lost in the shuffle. It should be observed that although it is Respondent's practice to insist on the finding of a trans- fer request form, several employees testified that they have been voluntarily transferred at various times in their careers without filing one. In addition there is testi- mony that the San Pablo store's supply of forms became exhausted. Moreover, bookkeeper Lupe Feliciano testi- fied that when she filed her transfer request in June with San Pablo Store Manager Rich Peterson, he told her it was unnecessary because all the San Pablo store employ- ees would be sent to Pinole Later, after Peterson had approved her request, she saw it unsent in his office. She asked him to send it to headquarters in Milpitas. He told her he would but repeated that a transfer request was un- necessary. 7 In June San Pablo Produce Manager Ronald White asked Respondent's produce specialist Dana Green, White's district supervisor, about transferring to Pinole. Green asked what job White wanted and White asked to become the head of the produce department. Green told White that Linda Pastor, the produce department manag- er in Livermore, had already been selected. White, un- aware of the pending closure, said he thought he would stay in San Pablo. A few days later Green informed White that San Pablo was being closed. White said noth- ing at that point. On June 20 he suffered an industrial injury and was off work until late August. Sometime in July, while still on injury leave, White had occasion to go to Pinole. He testified he asked Danner if he could come to Pinole as "second man." Danner replied the only people he was sure of were the department heads. He then told White, "They plan to open th[e] store nonunion, and if they [do] open it non- union, they wouldn't use any Alpha Beta people or Retail Clerks to open the store." Although White's quo- tation of Danner is perhaps imprecise I understand his testimony to mean that Danner said that no Local 1179- 9 In a "combo" store the unit manager is the highest management bff- cial in the store Immediately beneath him are the grocery department and the drug department managers By way of comparison , the grocery manager's duties in the "combo" store are the same as those of a store manager in an ordinary supermarket 4 The sole exception appears to have been bookkeeper Lupe Feliciano She had only been in San Pablo for 3 - 1/2 months and was transferred to the San Leandro store , located in Alameda County, whose employees are represented by UFCW Local 870 5 That it does not total 425 is of no consequence, all agree that this total is reasonably accurate In addition, there were several pharmacists and office clericals The meatcutters and custodians are represented sepa- rately by different labor organizations and are not involved in this dis- pute Although the Retail Clerks may have initially sought to represent the pharmacists, there is testimony that that interest was abandoned in August 6 One, Serb, was transferred long before the store closed ' Peterson was not called as a witness to testify ALPHA BETA CO represented individuals would be transferred to the store. Danner denies White's testimony. Sometime thereafter, while White was still on leave, he returned to the Pinole store where he encountered Green He says he asked Green if he was "going to still get to come to Pinole as second man." He says Green told him "as soon as they solve `the problem"' White would be coming to Pinole as second man. Green generally denies the conversations and has an entirely different version. He agrees that White asked if he could be considered as the Pinole produce manager and agrees that he relayed White's interest to District Manager Giordano. When Green told Giordano of White's interest, Giordano chuckled in disbelief. Later, Green said, after Pastor had been selected, White tele- phoned him saying he had learned of Pastor's selection and no longer wanted to go to Pinole as a second man for he did not wish to work with a woman. He said he was not impressed with Pastor's "wet rack" in Liver- more. Green says he relayed that to Giordano. He denies any other conversations with White and further denies ever telling White that he could go to Pinole as second man when the "union problem" was settled. White rejoins, testifying that he never told Green that he would not work with a woman, he never mentioned Pastor's "wet rack" at Livermore and would not have done so because he had never been to her store. Further- more, White points out, he has worked for and with women in the past, including Pinole's current grocery manager, Cheryl Harrington. Indeed, his then assistant in San Pablo was a woman. Elvena Johnson had been employed by Respondent at San Pablo for 14-1/2 years. She was Local 1179's stew- ard at that store when it closed. Johnson testified that on July 27 she saw Distnct Manager Giordano at San Pablo. By then she knew the store was to be closed and asked Giordano if "we" were going to Pinole She says Giordano replied he "didn't think so because they were having a labor dispute." Giordano went on to say that he would not let the San Pablo employees "starve" and they were not to worry. According to her, Giordano said that the employees would be transferred to other stores. 11 Similarly, bookkeeper Madeline Riley, on the closure of the San Pablo store, was transferred to Concord. Her new manager, McMillan, told her the transfer was tem- porary. About 2 weeks after Pinole opened, Riley called Giordano to talk to him about the nature of her Concord transfer, saying she wanted to work in Pinole. She had earlier filed a transfer request She says Giordano told her that matters were still unresolved with Local 1179 regarding Pinole and they were still negotiating. She re- plied she understood, but the commute to Concord was bothering her. Giordano told her he would contact her personally "when matters were settled" and she could work in Pinole. Giordano denies Riley's testimony, saying that when they spoke on the telephone in mid- September she asked about transferring to Pinole but he 8 In a preheating affidavit, Johnson reported Giordano as only saying he could not tell her whether she was going to Pinole 237 replied that he had decided to send no San Pablo em- ployees to Pinole. The other San Pablo bookkeeper, Lupe Feliciano, was transferred to San Leandro, in the jurisdiction of UFCW Local 870. The store manager there was Rich Peterson who had been her manager at San Pablo before it closed. Feliciano testified that Peterson told her she would only be at San Leandro for 2 weeks. She, too, had filed a transfer request. Earlier, while at San Pablo, Peterson had told her the transfer request was unnecessary as all the people from San Pablo would be going to Pinole. Later, in mid-September, several weeks after Pinole had opened, having heard nothing regarding her transfer, she telephoned the personnel department in Milpitas. There she spoke to the individual who had interviewed her for her initial hire some months before, Personnel Specialist Mike Hendrix.9 Feliciano asked him when she was going to Pinole. Hendrix told her that she would not be going to Pinole, that San Leandro was now her permanent store. She became upset and began to argue saying she had been led to believe she would get to go to Pinole. Hendrix re- plied, "Well, you are in the union and we are sending nonunion people to that store until we get it settled." Fe- liciano, angered, hung up the phone. She then tele- phoned Giordano telling him that if she had known that San Leandro would be her permanent store she would not have gone. Giordano replied, "Well, the reason you are not there [at Pinole] is because we still haven't nego- tiated a contract with your union and . . . you may get to go there once they get it settled " She asked what would happen to her. He told her not to worry about it, he had not forgotten the San Pablo employees. During that conversation she referred to the fact that Hendrix had said San Leandro was her permanent store. She re- calls Giordano saying Hendrix did not know what he was talking about. 10 Giordano has a different version of the conversation. He remembers Feliciano asking if she was going to be transferred to Pinole and says he replied, she was "lucky to have a job and that Peterson had taken her." He said there was no further conversation with her 2. To Pinole employees a. Charlotte Moore, prior to being assigned to Pinole, had worked for Respondent for about 9 years. She was represented by UFCW Local 870 and worked in San Leandro. She had recently received special training to program the scanners-a cash register system which automatically reads the product and records the price. She was hired in Pinole as the "UPC [Universal Price Code] coordinator." She was selected for the job by Dis- trict Manager Giordano and was interviewed by him 9 At the hearing I ruled that personnel department employees such as Hendrix were not 2(11) supervisors, but were probably 2(13) agents See Red Oaks Nursing Home, 241 NLRB 444, 446 (1979) Hendrix, as an interviewer and counselor would necessarily be seen as someone who spoke on management's behalf and must be considered Respondent's agent Red Oaks, supra, J P. Stevens & Co, 247 NLRB 420, 435 (1980) 10 Much later Feliciano filed a grievance over the matter and settled it on the basis of taking a layoff 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about a month before the store opened She remembers that during the interview, sometime in July, Giordano asked her how she felt about working without a union. She replied she would be concerned about her fringe benefits. She remembers Giordano telling her that it would only be temporary, that she would probably have to withdraw from Local 870, but "as soon as it was set- tled [she] would be a member of 1179." He also told her there was a "very real chance that when the store opened, there will be pickets on the front door." She re- membered Giordano saying that Retail Clerks President Henderson was being stubborn, was internationally known, had a reputation to uphold, and that Henderson was "the problem." Giordano testified differently. He said that in June 1981 while at the San Leandro store Moore asked about the UPC coordinator job at Pinole. He told her that he did not know about it, that he had to visit the Las Vegas "combo" store first. Nothing more was said. Later, at his request, he had a second conversation with her at Pinole Danner was present. Giordano said she asked about the UPC job and they discussed its description. She asked if there would be a union and he replied he did not know. She also asked if there would be pickets. He replied, "There may be." He denies saying anything to Moore re- garding her union membership or about how she felt working in a nonunion store. He says he neither told her she could withdraw from Local 870, nor told her that she would become a member of Local 1179. He denies referring to Henderson as either internationally known or as stubborn. He claims he did not know Henderson. Moore's testimony is offered for two purposes first, to prove an allegation in the complaint [amended paragraph 6(e)] asserting that it violated Section 8(a)(1) as condi- tioning Moore's tranfer to Pinde on her abandoning union representation, second, as evidence of motive for Respondent's refusal to transfer San Pablo employees to Pinole. I conclude that it is good evidence for the latter pur- pose, but fails as coercion of Moore. According to her, she and Giordano discussed the fact tht there was no union at Pinole. He asked if that bothered her. When she replied she would be concerned about her negotiated fringe benefits, he said it was a matter of little concern because "as soon as [the dispute] was settled Local 1179 would become her representative." He did say she would probably have to withdraw from Local 870, but the remark is legally insignificant. First, she did not quote Giordano as conditioning the UPC job on her withdraw- ing from Local 870. Second , his assessment was couched in "probable" terms; and third, if Local 1179 had become the representative she would have, under the union shop clause, been required to ,loin. i i No doubt that would have involved a simple transfer from one UFCW local to another (within the same multiunion bargaining unit), lit- erally resulting in a withdrawal from Local 870. I find nothing coercive in the statement, which was relatively factual. I I All parties, including Moore, believed the Food Store Agreement or a close facsimile, would be applied to Pinole However, it is another instance, see section C, infra, where Giordano refers to resolution of the Pinole dispute in favor of Local 1179. It is consistent with remarks made to several San Pablo employees. To that extent, therefore, Giordano's denial is not credited. b. Drug clerk Brenda Gilday testified that on October 13 she spoke with Drug Manager Jack Ault. She was working in the aisles when Ault asked her for a union application form saying, "Rumor has it you are passing applications for the union." Gilday replied she knew ap- plication forms were being circulated but denied doing it. She recalls Ault saying to her that if she "got the chance, vote nonunion." He also told her to tell the other employees that UFCW benefits were "not that great" and to tell other employees that initiation fees and dues were too high. Ault observed that Gilday had been laid off in January for lack of work. He denies telling her he knew she was soliciting for the Retail Clerks. He testified he did not discuss union dues and fees with her and never told her they were too high. He simply denies the conversation occurred. Gilday also testified that on January 19 or 20, she and drug clerk Sue Bradshaw went to Ault's office to discuss a scheduling question. Both had had complaints that they were working too many evenings. Bradshaw had earlier resolved her scheduling problem through Danner; Gilday had asked her to accompany her in dealing with Ault. Gilday testified that during the conversation Ault told them "to make sure we voted nonunion; that he didn't like working in a union store because he had to work with "stewards and robots." If the Union got in, he "would leave." She says he also asserted that "because of the Union there will be layoffs which wouldn't be by se- niority." She says he told her layoffs should be done "by lot." Bradshaw, however, does not corroborate Gilday. She recalls Gilday asked her to come to the meeting "for moral support." She remembers Gilday telling Ault that she was working too many nights. Ault replied he "would work with her on that." Bradshaw denies Ault said anything at all about the Retail Clerks, is certain he did not tell them to vote against it or suggest that he would quit if Local 1179 came in She further denies Ault said he did not like unions. She says that the only time she ever discussed unions with Ault was once in November when she asked him what was happening with the Retail Clerks. He replied he did not know. Again, Ault denies Gilday's testimony. Frankly, Gilday was unimpressive as a witness where- as both Ault and Bradshaw were quite sure of them- selves. Indeed, based on Bradshaw's description of the January conversation, I must conclude that Gilday, who may have an ax to grind over her layoff, was fabricating. If she fabricated the January conversation, there is no reason to credit her regarding the October conversation, either. Accordingly, I conclude that the General Coun- sel's evidence regarding these incidents has been effec- tively rebutted and fails for lack of credible evidence. ALPHA BETA CO C, Respondent 's Asserted Reasons for Not Transferring Any San Pablo Employees to Pinole Respondent's District Manager Giordano admits he made the decision not to transfer any San Pablo employ- ees to Pinole This decision was made regardless of whether or not the San Pablo employees had actually filed transfer requests . Indeed, all the transfer requests which were actually filed were approved by Giordano; some were also approved by Pinole Unit Manager Danner; each had earlier been approved by San Pablo Manager Peterson. Giordano , explains that none of the approvals were final, but principally observes that he had only recently become district manager and did not truly know the qualifications of the San Pablo employees . He says that after observing the San Pablo store for a period of months he decided Peterson's recommendations were not to be trusted . He cites statistics regarding business volume and efficiency at San Pablo and asserts they demonstrate that "as a group " the San Pablo comple- ment was unworthy of transfer to Pinole, which he viewed as a new, flagship store. He says he did not want to transfer problems from an old store into a brand new store Even so, he concedes "as individuals" the San Pablo employees were probably at least adequate, and some might even have been good . But, he claims, the San Pablo employees were imbued with a less than an exem- plary attitude toward their work. He claims this mani- fested itself by the fact that the San Pablo store was dirty, unprofitable, and had poor cash control Thus, Giordano concedes that at one point he had made a "tentative decision" to transfer some of the San Pablo employees to Pinole. He says he reviewed ap- proximately 50 transfer requests which were then on file although he needed between 300 and 400 employees But, approximately the first week in August Giordano retreated and concluded that he did not wish to transfer any San Pablo employees to Pinole after all. He says he and his boss, Bob Braley, Respondent's director of oper- ations for Northern California, and Labor Relations Di- rector Hinshaw had a meeting in Milpitas about that time. Giordano says he called the meeting asking Hin- shaw to attend because he wanted to ask Hinshaw's advice regarding any legal problems he might have if he did not transfer the clerks from San Pablo to Pinole Giordano says he informed Hinshaw and Braley of the problems which he perceived with the San Pablo em- ployees and told them he did not want to transfer those clerks to Pinole. He says Hinshaw advised , "Legally there is no problem if you take clerks from other stores and put them in there as well." On August 10, a meeting was held , apparently at the Pinole store attended by Giordano and all the other Contra Costa County store managers , together with per- sonnel specialist Hendrix. At this meeting virtually all the San Pablo employees were distributed to other Contra Costa County stores None were sent to Pinole. The Pinole store, insofar as transfers are concerned, was largely staffed with employees from stores whose employees were represented by UFCW locals other than Local 1179. Respondent's Exhibit 29 lists 38 employees 239 who came from UFCW bargaining units at other stores. Of that number five came from two stores represented by Local 1179, Danville and San Ramon . Three of those employees, Glavaris, Wellbrok, and Kawinski had earlier filed transfer requests . One, Frampton, had not; the last, Gural, was a courtesy clerk who was on layoff status at San Ramon ; he was a newly hired employee. All the other transferees assigned to Pinole were rep- resented by other UFCW locals . Some were drawn from stores which were great distances from Pinole . One em- ployee came from Stockton, at least 70 miles away. Some were drawn from areas north of San Francisco, such as Petaluma, San Rafael, Novato, and Santa Rosa; others came from the South Bay near San Jose , such as Mountain View . One was from 115 miles further south, Salinas. Still others came from locations on the penin- sula, between San Jose and San Francisco, such as San Mateo. Most of the others came from Alameda County and the greater Oakland area , cities such as Alameda, Hayward, Fremont, Union City , and Milpitas (the head- quarters). Two more distant Alameda County stores ac- counted for the remaining transfers to Pinole. These were Livermore and Pleasanton . Because of the configu- ration of the two counties , to commute to Pinole from the last two cities one must pass through most of Contra Costa County. Indeed, nearly all the other Contra Costa County stores are located on or near the same highway, Interstate 680, which would be the principal commute route for those going to Pinole from Pleasanton or Livermore . Of the 38 employees listed on Respondent's Exhibit 29, 29 did not file transfer requests for Pinole. By that observation I do not find that they did not want to go to Pinole, simply that , unlike many of the San Pablo employees, they did not take the clerical step of filing a transfer request form . Some of those may have been asked to go, others may have simply orally mentioned their interest. D. The Pinole Store As a combination food store-drug store, the Pinole fa- cility is far larger than an ordinary supermarket. A normal Alpha Beta supermarket runs between 19 ,000 and 23,500 square feet . So-called expanded stores are some- what larger. Ordinary Skaggs drug stores range between 19,000 and 22,000 square feet. Pinole, unlike them, is 58,000 square feet . It is not physically divided . Both drug and food items may be stocked in the same areas of the store. There are obvious department areas, however, such as meat, produce, deli, sporting goods, clothing, and cosmetics. 12 Although perhaps not particularly significant , at Pinole all grocery items are sold by self-service whereas drug clerks are asked to know more about their products and do some face-to-face selling. Indeed Pinole employs cos- metic clerks , sporting goods clerks , and clothing clerks whose duties require special knowledge of their products and the use of face-to-face sales techniques. The drug clerks and grocery clerks wear different color smocks/vests. The supervisory hierarchy within the store 12 This list is not meant to be all inclusive 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is also different. The drug side of the store is managed by the drug manager, Jack Ault. At the time of the hear- ing the food side was managed by Grocery Manager Cheryl Harrington. Each of them has an assistant and both of them report to Unit Manager Monty Danner. E. Respondent's Negotiations with Local 1179 Regarding Pinole I have earlier described Hinshaw's and Henderson's discussions occurring in May regarding the opening of the Pinole store. They did not resume discussions with any seriousness until early to mid-August when the re- spective parties met at Local 1179's office in Martinez. It was at this meeting that Henderson realized Respondent would not grant recognition absent contractual conces- sions to which the Retail Clerks could not, for policy reasons, agree. He insisted on treating the drug clerks as "nonfood clerks" under the Food Store Agreement rather than as a new classification as proposed by Re- spondent. Nor could Henderson agree with Respondent's request to classify the "lobby" employees as "non-food" clerks under the contract. He believed they fit the "food clerk" definition. Finally, Henderson, aware that the Food Store Agreement bargaining unit included all em- ployees except the store manager (and meatcutters and janitors) could not agree to exclude the grocery and drug managers F. The Retail Clerks Seek to Organize the Pinole Store As a result of his conversations with Respondent's offi- cials, Retail Clerks President Henderson realized that before Respondent would recognize Local 1179 it would have to prove its representative status in some fashion. Believing that the Food Store Agreement would auto- matically apply to Pinole once majority status was dem- onstrated, Henderson directed his staff to begin soliciting authorization cards from Pinole employees. This began sometime in mid-September and continued until January 8 when the Union actually demanded recognition, claim- ing proof of majority. The card solicitation occurred at the store and at various employee meetings held at a nearby pizza restaurant and a bowling alley. While there is no solid evidence that the Retail Clerks actually engaged in any misconduct regarding a card so- licitation, Respondent contends that it had received re- ports that the authorization card solicitations were, on some occasions, being solicited by means it deemed im- proper. These included serving liquor to underage em- ployees, telling employees that signing the cards meant they would receive union benefits, and telling employees that Local 1179 already represented the employees so they might as well sign up With respect to serving liquor to underage employees, meaning the high school students who served ,as part- time courtesy clerks, the evidence before Respondent at the time was clearly hearsay. Even at the hearing the evidence was less than persuasive. Union organizer Ron Stainer admitted that after one of the bowling alley meetings liquor was served from its bar for which the Union paid. He denied, however, serving liquor to any courtesy clerks. He observed that the bowling alley's owner was the bartender and it was the bartender's re- sponsibility to check the ages of the drinkers. Thus, al- though it is certainly possible that a minor may have been served and may even have drunk too much, no evi- dence was presented that the liquor had any influence on the employees' decision to sign the card. Neither is there evidence that the Union actually intended to provide minors with liquor.13 Regarding the claim that cards were being solicited by misrepresentation, Respondent points to the testimony of Industrial Relations Labor Manager Hinshaw who had a conversation with union organizer Chuck Matson one day near the main entrance to the Pinole store. Hinshaw and Personnel Manager Kent Pembroke had come to the store to confer with Danner because Matson had asked to use the breakroom to meet with employees for pur- pose of soliciting their signatures . According to Hin- shaw, after he and Pembroke arrived at the store, he was approached separately by two employees. He does not know their names. He said one told him she had signed the card because a solicitor had represented to her that she had to sign in order to get union health and welfare and pension benefits. The second employee supposedly told him that she had signed because she was "intimidat- ed" by a solicitor who would not let her out of her auto- mobile until she signed On hearing this, Hinshaw ap- proached Matson and asked him why the Union was tell- ing employees they had to sign cards to get their health and welfare benefits 14 He quotes Matson as replying, "All is fair in love and war." He is in part corroborated by Pembroke who did not hear all of the conversation. Matson denies the incident occurred that way. He says first Hinshaw laughingly denied him the opportunity to use the breakroom; then Hinshaw referred to Henderson as a "hard-headed son-of-a-bitch" saying Local 1179's bargaining demands were unrealistic. He suggested that if Matson and he could work together on the subject they could probably resolve the entire question Matson says he replied that he and Henderson were of the same mind and that he doubted he would take a different stance than had Henderson. Matson says Hinshaw did not even discuss the solicitation of authorization cards and did not accuse him of any impropriety or intimida- tion. He denied saying that "all was fair in love and war." He also says Hinshaw never accused him or his fellow organizers of preventing anyone from getting out of their cars. There is no evidence that the underlying incidents ac- tually occurred. Respondent was unable to produce the individuals to whom the solicitations and/or threats were made. Moreover, even if Matson said "all is fair in love and war," the remark hardly constitutes a clear-cut ad- mission that such conduct was occurring. While it might be interpreted as an admission of misconduct, it can equally be interpreted as a flippant statement immediate- ly following an equally flippant statement of Hinshaw's. 13 Apprentice clerk Henry Chan's testimony fails to establish the con- tention 14 His omission of the automobile incident tends to corroborate Mat- son's testimony, infra, that the auto incident was not mentioned ALPHA BETA CO. When Hinshaw had denied Matson the use of the break- room, he had laughed and said something to the effect that Matson should "get serious." Matson, too, had been amused for he had not expected permission . Indeed, Hin- shaw admits to having probably referred to Henderson as a "son-of-a-bitch," but even that remark was not taken offensively by Matson. Most likely the entire conversa- tion was of a semi-serious vein, jocular and facetious. I conclude it had no significance whatsoever. Matson and Hinshaw have known each other for a long time and were likely to have spoken to each other in such a fash- ion. Thus, even crediting Hinshaw, no admission of mis- conduct can be inferred. To the extent that there is actual evidence of misrepre- sentation, apprentice clerk Henry Chan testified that at one of the union meetings in December, after the "Pur- cell petition" (see discussion, infra) had been circulated, a union meeting was conducted by Henderson at the bowl- ing alley. Chan says Henderson suggested authorization cards be signed again because the "Purcell petition" had apparently revoked them. He remembers Henderson saying that if a majority signed the cards, the "contract" would be implemented. With respect to the last state- ment as being a misrepresentation, I am not persuaded. In fact, there is case law to the effect that if a union which represents an existing bargaining unit and seeks to represent a fringe group the contract may be applied to the after-acquired group upon showing of majority status in that group.' a While I recognize that that view may not be the Board's, nonetheless it hardly qualifies as a misrepresentation sufficient to imply misconduct in solic- iting the cards. The purpose of the foregoing discussion is simply to demonstrate that Respondent had a belief, approaching the unwarranted, that the authorization cards to some extent had not been executed under the best of condi- tions. This view is significant only as it affected Respond- ent's answer to the Retail Clerks' demand for recognition in January 1982. Henderson's January 8, 1982 wire de- manding recognition, asked Respondent to submit to a card check by an independent third party. Hinshaw, however, did not want to leave the question up to an in- dependent third party. His reply, while not perfectly clear, so suggests See section H,1, infra. Henderson never agreed to any other procedure so a card check in- volving Local 1179's authorization cards never occurred. G. The Purcell Petition Bill Purcell, while employed at the Pinole store, had the title of customer service manager. He assumed that title, if not the responsibilities that usually went with it, when in September his predecessor Cheryl Harrington became food manager replacing John Smrekar . Purcell had been customer service manager for about a month at the Alameda store prior to being transferred to Pinole. Indeed, he later left Pinole for the store in Fremont where he also served as customer service manager. De- 15 See NLRB v ABEX Corp, 543 F 2d 719 (9th Cir 1976), declining to follow the Board majority in Federal Mogul Corp, 209 NLRB 343 (1974), and adopting the dissents of Members Kennedy and Penello 241 spite the title, it is clear that while at Pinole, he did not have the same authority which Harrington had had. Cus- tomer service managers generally throughout Respond- ent's system serve as assistant store managers. They are "managers in training" and often have supervisory au- thority to fire and discipline. Harrington had that author- ity as Pinole CSM as well as at her previous store, Peta- luma, where she was customer service manager for a month prior to coming to Pinole. She had even had such authority much earlier when she was assistant manager at San Ramon. While customer service manager at Pinole she was Danner's first assistant and even dis- charged one employee, Aragon. When Smrekar left, Danner asked her to become food manager and she agreed. The title of customer service manager then de- volved upon Purcell who had about the same length of customer service manager experience at Alameda. He, however, was not as experienced generally. Danner, who had supervised Purcell sometime earlier, did not trust him to the same extent as he did Harrington and would grant him authority to fire or discipline employees. In- stead, he gave Purcell about the same power as a "person in charge" or PIC. PIC's were employees of greater levels of experience to whom operational respon- sibilities could be entrusted Generally speaking, the Food Store Agreement covers all these classifications, if indeed that is what they are. Even persons who serve as customer service managers or assistant managers have traditionally been included in those bargaining units despite any supervisory status they may have enjoyed. Thus Harrington was a bargaining unit member both as an assistant manager and as a cus- tomer service manager prior to her arrival at Pinole. Likewise, Purcell had been a bargaining unit member while a customer service manager at Alameda Only the store managers were excluded from coverage under the Food Store Agreement. As customer service manager in Pinole, but without supervisory authority, Purcell can only be seen as little different from other senior employees. All the employees were interested in the union representation question. Most had been solicited by Local 1179 and most were aware that some sort of ongoing negotiation was occur- ring between that union and Respondent over the status of the Pinole store. In this regard, it should be observed that Respondent had officially opposed union organiza- tion of the Pinole store. To this end it had, sometime early in September, posted a notice. The notice asserted that Retail Clerk organizers were, in some cases, obtain- ing signatures under false pretenses, including a state- ment that they were gathering "pledge cards" with the company's approval, something which the notice assert- ed was not true. It asked employees, before signing any cards, to consider, inter alia, that by signing the card the Union may call upon the signer to engage in a strike, ob- serving that this very Union had caused a 6-week strike somewhat earlier in the year and suggesting that employ- ees did not get their money's worth from the dues they paid. It concluded saying, "We don't think we need the union." 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On September 18 a company vice president issued a letter which purported to answer questions regarding Local 1179's organizing techniques. It stated that it was Respondent's position that the Retail Clerks had no right to immediate recognition or the collection of monthly dues without the employees having approved representa- tion via an election. The letter also advised employees how to revoke their authorization cards. On November 27, that same vice president issued an- other letter. The first paragraph announced a wage in- crease. The second paragraph, however, warned employ- ees not to be misled into signing authorization cards, saying that by signing a card an employee was "really signing away [the) right to cast a free vote." It went on to say that Respondent "wants an election so you'll have an opportunity, without being pressured and harassed by salesmen who want your money, to vote on whether you need this kind of Union."ts Aware of these communications, in December Purcell, together with some other bargaining unit employees, cir- culated a petition for the employees' signatures. The wording of the petition was: We the undersigned believe that we should have the right to vote on whether or not our Store Number 591 [Pinole] should be represented by a Union with the election process being conducted by the National Labor Relations Board. We revoke any union card we signed before. This petition was signed by at least 95 employees be- tween December 5 and 10 17 UPC coordinator Charlotte Moore testified that some- time earlier, either in October or November, Purcell in- vited her to have coffee with him in the drug receiving room. She said Purcell told her he knew she was "a leader of the union movement" and said he wanted her to know that unionization would result in loss of jobs for some employees, specifically mentioning one of Moore's friends. He said he had learned she was passing out au- thorization cards. He also said he was aware that Local 1179 had a large number of people on its layoff list and that Moore had no seniority with that Local and would be "bumped" if Local 1179 got in. He also said he knew Hamngton was aware of the card, but would try to keep that information from Danner. Moore told him she doubted his claim that there was a large number of people on Local 1179's layoff list. Later that afternoon Purcell returned and admitted the list was not as large as he had thought. In general Purcell agrees with Moore's testimony. He said that he was afraid of "bumps" and was aware that the Food Store Agreement required certain ratios of courtesy clerks and apprentice clerks to full-time clerks. From his analysis, adoption of the Food Store Agree- ment at Pinole would mean that the ratios would become applicable and a large number of courtesy clerks and ap- 16 None of the notices or letters are alleged to be unlawful 17 The petition took the form of multiple pages each providing for 21 signatures There was some testimony that additional pages were in exist- ence at one time, having been signed by a number of employees, but have since disappeared prentice clerks would lose their jobs. Whether that is in fact what would occur is unclear. However, Local 1179's president Bill Henderson later explained the ratio provisions of the Food Store Agreement to large num- bers of employees and the fact of their existence is not open to question. Whether those employees would have lost their jobs immediately or through attrition is un- clear. Purcell does deny saying to Moore that he thought she was the leader In December, Purcell's petition came to Moore's atten- tion via employee Hand At first she refused to sign it. Later, after conferring with Local 1179, she decided it would be best for her job protection if she went ahead and signed it. On December 12 she did so. When the petition came to Local 1179's attention, President Henderson at one organizing meeting, and per- haps more, asserted that the petition was illegal, but if it had the effect of withdrawing an authorization card, a new card could be signed which would be valid. He sug- gested that course to employees who feared for their jobs if they did not sign Purcell's petition. Purcell says he prepared the petition on his own and without any company participation. There is no evidence to dispute his testimony. He also says it was not until the original complaint was filed in this case that he became aware that something might be amiss with his petition and he immediately turned it over to Danner, who then learned of it for the first time. Danner concurs. H. The Demands for Recognition and Respondent's Reply 1 Local 1179 By telegram of January 8, 1982, Local 1179 President Bill Henderson wired Respondent's labor relations direc- tor, Rick Hinshaw, in Milpitas. Henderson asserted that the Retail Clerks represented a majority of employees in the Pinole store and demanded that Respondent adhere to the terms and conditions of employment as specified in the Food Store Agreement. The wire stated that the Union expected the agreement to apply on the 15th day after commencement of store operations at Pinole [mean- ing retroactive application to approximately September 15, 1981]. He concluded saying, "If you have any ques- tions concerning the Union's claim of majority status, please be advised that the union is willing to verify said status through a mutual impartial party, by a cross-check of authorization cards." By letter dated January 12, Hinshaw replied saying he had received the telegram on January 11 but Respondent declined to recognize Local 1179 as the bargaining rep- resentative at Pinole. He asserted that the cards were un- acceptable and an unreliable indicator of employee wishes. He concluded saying, "If you decide not to file for an NLRB election so our employees may vote, we will consider any other proposals you may submit." Hinshaw explained that it was his understanding, as previously discussed herein, that some of the cards had been solicited in an improper manner and that he was willing either to undergo an NLRB election or to con- ALPHA BETA CO duct the card check himself. He did not want a third party to do it. 2 The Independent Sometime in late January a number of employees, un- happy with both Local 1179 and with Respondent decid- ed to form their own labor union. The General Counsel has stated on the record that he has no evidence that Re- spondent was in any way responsible for the formation of the Independent.18 Indeed, its president Janet Vales, testified that she sought assistance from the NLRB Re- gional Office and ultimately retained counsel. She asked Danner if she could solicit signatures and he replied that she was free to do so, as long as she followed the same rules any other labor union must follow, i.e., soliciting employees in their off-duty hours and off the floor of the store. Accordingly, Vales and some fellow employees so- licited authorization cards. On February 26 she wrote Danner a letter demanding that Respondent recognize the Independent as the representative of the drug and food employees at Pinole asserting that she had a majori- ty of pledge cards for both departments. Her letter caused Hinshaw to send mailgrams to both Vales and Henderson in which he stated- 243 sistance to the Independent and threatened to file appro- priate charges. On March 2, as scheduled, the card check was con- ducted. The Independent's officials presented authoriza- tion cards demonstrating that it represented a majority of employees in each of the two proposed units. The Retail Clerks did not appear and did not participate in any way. Vales testified that there were, in early March, 120 em- ployees at the Pinole store, about 20 in the drug depart- ment and over 100 in food. She said she had two more than the majority in the food department and had over 70 cards altogether. Recognition was granted and shortly thereafter negoti- ations took place over a 4-day period. Two contracts were ratified by the employees on March 11. Those two collective-bargaining agreements are in evidence as Gen- eral Counsel's Exhibits 98 and 99 and by their terms do not expire until February 28, 1985. Currently the Pinole clerks, together with some miscellaneous employees, are covered by one of those two agreements. IV ANALYSIS AND CONCLUSIONS A. The Refusal to Transfer the San Pablo Employees to Pinole Conflicting demands have been made by your re- spective unions for recognition as the exclusive bar- gaining representative of our Pinole store employ- ees. Alpha Beta is prepared to recognize any union which can prove it has the uncoerced majority sup- port of our employees in the appropriate unit. You are invited to prove that your union has such support by attending a meeting in the office of unit manager, Monty Danner, at 11 a.m., on Tues- day, March 2, 1982, in our Pinole store. At that time you should be prepared to prove your majori- ty, by a reliable method, in either or both of the units described below. If you intend to use "authori- zation cards" to prove your majority status, you must produce for us the original signed cards so that we can both authenticate the signature and be sure it is uncoerced. The mailgram concluded by describing two units, a drug department unit and a grocery department unit, both of which would exclude the unit manager, the de- partment managers, their assistants, meatcutters, janitors, the confidential secretary, guards, and office clericals. On March 1, Henderson replied that Local 1179 was not willing to participate in the meeting. He asserted however that the Retail Clerks stood ready to verify its majority status as of January 8 through a "mutual third party." He said he did not believe that it could be deter- mined from a review of the original signatures whether or not any were coerced. He concluded with an asser- tion that the Food Store Agreement applied to Pinole and the attempt to split the Pinole store into two units violated that agreement and was inconsistent with "fed- eral law." He accused Respondent of giving unlawful as- 18 Complaint allegations to this effect have been withdrawn Much of the analysis with respect to Respondent's treatment of the San Pablo employees is simply one of fact. Considering that the San Pablo store was closed only 2 weeks before the Pinole store opened, at a time when the Pinole store was being stocked and could use experienced employees, it appears quite odd that not a single San Pablo employee would have been selected for Pinole. This fact becomes even more odd with District Manager Giordano's admission that at least some of the individuals who worked at San Pablo were good enough to have been selected for Pinole. Indeed, the transfer re- quests of most of the San Pablo employees which were on file were approved not only by their transferring manager, Peterson, but by Giordano himself as well as by Danner, the Pinole unit manager. What, then, moti- vated Respondent to change its mind and to deny Pinole to all the San Pablo clerks? Giordano says it was his assessment of the San Pablo employees that they simply were not good enough-that as a group they had attitude problems, cash flow prob- lems, and failed to keep the store in good shape. I do not believe Girodano's reasons for deciding to bar all San Pablo employees from coming to Pinole to with- stand careful scrutiny. It may well have been that some San Pablo employees would have been inappropriately assigned to a "flagship" store like Pinole. Perhaps his as- sessment of individual employees, such as Produce Man- ager White, was accurate. It may have been that White was not capable of handling a large produce department such as Pinole's He had only worked in smaller stores before where he had only one assistant. The Pinole store required seven or eight produce employees. Yet, White must have been regarded as a reasonably good employee for when he came off disability he was immediately made produce manager in San Ramon. Clearly he was not so bad as to bar him from Pinole altogether and his 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD request for consideration as second man should not have been looked upon with total disfavor. i 9 Giordano also claimed that as "a group" the San Pablo complement displayed an attitude problem which he could not accept. Yet, he conceded that "as individuals" some were perfectly good employees. Why did not he pick out those he knew to be good? He knew White had a good attitude ; he was made produce manager in San Ramon after his disability ended. Giordano's saying he distrusted Peterson's recommendations can only be seen as an abdication of his district manager duties and is not an acceptable explanation. Moreover, Giordano's assessment of the cash handling question is subject to strong disagreement. In fact, the San Pablo store was fourth best of the nine nonscanner stores in Giordano's district. Finally, Giordano had no difficulty transferring the meatcutters and custodial staff to Pinole. These individuals were in large part responsi- ble for the appearance of the San Pablo store. There is an additional oddity which may be inferred20 from this record, the geographic treatment given both the San Pablo and Pinole staffs. For example, San Pablo steward Elvena Johnson lived so close to the store that she went home for lunch on a regular. basis. She was transferred to Concord which, given her lack of trans- portation, was nearly intolerable. Similarly, bookkeeper Riley lived 10 miles from San Pablo but only 3 from Pinole. Yet she was sent to Concord and Walnut Creek. Likewise, Feliciano lived in Rodeo, quite near both stores, but was transferred to San Leandro, a distance so great she could not endure it and was forced to resign. The commuting distances were even worse for Pinole transferees. One commuted from Stockton, 70 miles away, and others came from as far away as Santa Clara, San Mateo, and Mann counties. The natural drawing area would have been western Contra Costa, northern Alameda and southern Solano and Napa counties. It makes no sense to have barred all of the San Pablo em- ployees, at least some of whom who lived near Pinole, from working at Pinole while at the same time requiring some of the transferred employees to commute from dis- tant cities such as Stockton, San Mateo, Mountain View, Santa Rosa and the like.21 In addition, I cannot help but notice the effect of the transfer of the Local 1179 members from San Pablo to other stores in Contra Costa County. The decision dis- persed a closely knit group of about 30 Local 1179 mem- bers, trading them for four full-time employees represent- ed by Local 1179.22 19 Regarding the dispute between White and Green regarding White's supposed declaration of opposition to working with women, Green is not believed I was not impressed with Green , both on the basis of his de- meanor and on the inherent improbability that White resented working for a woman He had worked for a woman in the past , Harrington, and his assistant at San Pablo was a woman 20 I recognize that many of these observations are subject to possible explanation Nonetheless, Respondent's actions here are curious enough to be pondered in the factual mix 21 I have not concerned myself with the two transfers who came from Las Vegas, Nevada, or the one from Salinas Clearly those involved per- manent residence moves , they did not commute daily from those cities 22 The fifth Contra Costa County transferee is also strange He was a part-time courtesy clerk (probably a high school student), newly hired but on layoff status at San Ramon Why did Giordano prefer him over Beyond that, this transfer policy had the effect of sub- stituting for the San Pablo Local 1179 employees a large number of employees who were members of UFCW locals, but who were not as closely knit yet for whom Local 1179 could not lay an immediate claim. And, the policy did not violate paragraph 1 13 of the Food Store Agreement but tended to reduce the likelihood that the selections would be seen as discriminatory. This treatment can be contrasted with the geographi- cal consideration given management officials . Danner lives in Emeryville, a short distance down Interstate 80 from the Pinole store John Smrekar, the original food manager, lives in Richmond, the city immediately adja- cent to Pinole. Harrington, at first Pinole's customer service manager and later Smrekar's successor, lives in San Pablo itself.23 Obviously Respondent was giving consideration to its management officials with respect to their daily commute. Had it been treating the San Pablo employees benignly as it claims, the same consideration would have been given them. Thus it is clear that Respondent was not acting in a way that is commensurate with ordinary business prac- tice and its explanations cannot be believed. It therefore must have had another motive. What was the real pur- pose behind Giordano's decision? On this record, the only credible explanation is that given by employees Elvena Johnson, Madeline Riley, Ron White, Lupe Feli- ciano, and Charlotte Moore to the effect that transfers to Pinole would be made as soon as "the problem" was cor- rected, i.e., resolution of the disagreement between Retail Clerks President Henderson and Respondent over the nature of the collective-bargaining contract at Pinole. I can only conclude therefore that Respondent somehow believed its refusal to transfer these employees to Pinole would exert leverage against Local 1179 in order to obtain the contract concessions it sought. Had those con- cessions been made, given Respondent 's past practice of immediate recognition, I have no doubt that such recog- nition would have been granted to Local 1179. Without the concessions, Respondent decided to make it difficult for the Retail Clerks to organize the Pinole store. One of the tools to accomplish that end was to hold hostage the transfers of those San Pablo employees who could have worked effectively at Pinole.24 The timing of the deci- sion so suggests Apparently, Respondent believed the Pinole store was a significantly different sort of oper- ation, and as will be seen below, I tend to agree. But that does not justify affecting the hire and tenure of employ- ees in order to obtain those concessions. Such a motiva- tion is violative of Section 8(a)(3) and (1) and I so find. experienced courtesy clerks from San Pablo who, presumably, lived much closer to Pmole'i 23 Jack Ault, the drug manager, was transferred from a Skaggs facility in New Mexico He located in Vallejo, near Pmole, but I do not regard his situation as similar to those of the other management officials 24 I do not mean to suggest that each and every San Pablo employee would have been transferred to Pinole had matters gone according to Re- spondent's expectation No doubt some of those employees would not have been transferred to Pinole and would have been absorbed else- where However, I am unable on this record to determine who they were or how those employees would actually have been treated In any event it is the way all of them were actually treated which is significant here ALPHA BETA CO B. Purcell's Conduct at Pinole Aside from Respondent's declination of recognition to the Retail Clerks in January the only remaining miscon- duct alleged to have occurred at Pinole involves Cus- tomer Service Manager Bill Purcell. As noted, in stores where the Food Store Agreement applied, persons in that position were bargaining unit members , whether or not they had supervisory authority. At Pinole, Purcell's predecessor, Harrington, had su- pervisory authority for she had the power to fire which she in fact had exercised. When Purcell became custom- er service manager that power was not granted him. His duties were not dissimilar from those of a PIC. He was principally "in charge of the front end" during the after- noon and early evenings, when Danner, Harrington and Harrington's assistant, Mike Porter, were absent Howev- er, even then Purcell's duties were limited as he was under orders, as were the PIC's, to communicate with Harrington if some incident occurred requiring decision making. He did some scheduling, but so did some PIC's. Scheduling did not involve independent judgment and was reviewed by higher supervision. As previously noted, Harrington, as customer service manager, had the power to fire. Indeed there is testimo- ny that the customer service manager in other stores was a manager in training ; those stores did not have assistant managers and the customer service managers performed those duties. There is no evidence that Danner ever told any rank-and-file employee that Purcell's authority was circumscribed, but Danner did require Purcell to report to Porter, the assistant grocery manager, instead of him- self as had Harrington. That change was known to the clerks. Yet, he was, or would have been, a bargaining unit member under either the Food Store Agreement or, later, the Independent's contract. In the November-De- cember issue of Respondent's in-house publication, The Vanguard, Respondent announced the opening of the Pinole store to its entire system. In the article Purcell was listed as a customer service manager. The article also listed at least two nonsupervisory "managers," Louise Cunningham, the service/deli-bakery manager, and Linda Pastor, the produce manager . Thus, the article does not clearly hold Purcell out as a person who spoke for management, for knowledgeable employees reading the article would know that neither Pastor nor Cun- ningham were anything other than PIC's in charge of a given area . Likewise, Purcell was treated like a PIC and had duties quite similar to the PIC at the front end. In those circumstances I am unable to conclude that the General Counsel has proven Purcell to have been a supervisor within the meaning of Section 2(11) of the Act. Even if he was, however, he was a probable bar- gaining unit member. Certainly the Retail Clerks claimed his job. Such an individual, even if imbued with supervi- sory authority, is generally free to engage in unauthor- ized antiunion activity. The Board has said:25 25 Montgomery Ward & Co, 115 NLRB 645, 647 (1956), enfd 242 F 2d 497 (2d Or 1957), cert denied 355 U S 829 (1957) 245 Statements made by a supervisor violate Section 8(a)(1) of the Act when they reasonably tend to re- strain or coerce employees When a supervisor is in- cluded in the unit by agreement of the Union and the Employer and is permitted to vote in the elec- tion, the employees obviously regard him as one of themselves. Statements made by such a supervisor are not considered by employees to be the represen- tations of management, but of a fellow employee. Thus they do not tend to intimidate employees. For that reason, the Board has generally refused to hold an employer responsible for the antiunion conduct of a supervisor included in the unit, in the absence of evidence that the employer encouraged, author- ized, or ratified the supervisor's activities or acted in such manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of management. [Footnote omitted.] Purcell was a young man with ambition. He was aware of Respondent's announced opposition to the unionization of the Pinole store. He also viewed his se- lection as customer service manager to be a promotion and a step toward upper management. To further his career, he was willing to do whatever he thought Re- spondent would approve of with respect to opposing the unionization of the store. Accordingly, he attempted to frighten Charlotte Moore from engaging in organization- al activities, suggesting that Danner would disapprove if he found out that Moore was soliciting cards, and telling her he could keep the information from Danner but only if she would cease card solicitation. He also told her that her conduct would result in the job loss of her friends and other employees. Later, he solicited the signatures of nearly 100 employ- ees on a petition which can only be described as bizarre. The petition stated that the signers wanted an NLRB election in order to choose whether or not to be repre- sented by the Retail Clerks Yet in the same breath, it sought to revoke the very authorization cards which that union could use to support an election petition Obvious- ly, something is wrong here. If Purcell wanted an NLRB election, why did he seek to revoke Local 1179's cards? Without answering that question, one thing which is unassailable is that Respondent did not know Purcell was pursuing his petition. Purcell had been referred to as "Bill Brazil" in the General Counsel's original complaint issued on November 27. When Danner, trying to deter- mine who "Bill Brazil" was, settled on Purcell as a possi- ble candidate, Purcell revealed that he had been solicit- ing signatures on his petition . He immediately turned it over to Danner who sent it to the industrial relations de- partment. Although it is clear that Purcell had not been specifically authorized to circulate such a petition, by the same token, it appears that Respondent thereafter did nothing to disavow it once it had been discovered. Ac- cordingly, I conclude that Respondent was willing to take advantage of Purcell's petition to the extent that it was consistent with its posture of opposing unionization. I conclude, therefore, that Respondent adpoted the peti- tion as its own and that Purcell therefore must have 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD beenseen by employees as Respondent's agent for that purpose. What, however, was the significance of the petition? I conclude that Purcell, not having been specifically au- thorized by Respondent, to engage in the conduct was, as he claims, on a misguided mission . He wanted to have an election to resolve the representation question, prob- ably in the belief that the Union would lose. Yet Local 1179 had not sought one; indeed it believed it did not have to. Neither had management. The lead line of his petition, which an employee would read first, clearly seeks such an election. It is not until the last line were the cards are revoked that the petition becomes self-de- feating. In these circumstances, I conclude that the peti- tion itself is of no legal effect. In a sense, it is deceitful for it says it has one purpose, when it actually results in the opposite. As the signatures were solicited upon a false premise, I conclude that the Union's authorization cards were never revoked and that the petition has no legal significance. Be that as it may, there remains a question whether or not the solicitation of the petition had a coercive effect within the meaning of Section 8(a)(1). I have already concluded that Respondent, by failing to disavow the pe- tition and choosing to take advantage of it, has adopted Purcell's conduct as its own. Clearly, then, Purcell's so- liciting signatures which sought to trick employees into revoking union authorization cards is an interference with employees' right to join a union as protected by Section 7 of the Act. I therefore find that conduct to have violated Section 8(a)(1). However, I cannot find Purcell's earlier statements to Moore to be violative. Respondent was unaware of. these statements, and to some extent Purcell's statement that people would lose their jobs in the event the Food Store Agreement was adopted was correct. That contract did contain employment ratios for courtesy and apprentice clerks which Pinole was then exceeding. It was not un- reasonable of Purcell, who was familiar with that agree- ment, to make such a surmise. Indeed, Moore was equal- ly aware of the ratios. Neither knew, nor can anyone know, what actually would have happened had the Food Store Agreement been adopted.26 To that extent, there- fore, the statements are not as coercive as it would appear on first blush. In any event, there is no evidence that Respondent knew what Purcell was saying or con- doned any of it. As a bargaining unit member he was en- titled to express his opinion to another bargaining unit 26 Appentice Clerk Ann Kollewe and Courtesy Clerk Kim Johnson both testified that Purcell induced them to sign his petition by telling them, in addition to saying the petition's purpose was to obtain an elec- tion, that if the Union came in they would lose their jobs Purcell says that he was simply referring to the apprenticeship ratios and never said layoffs were a certainty Moreover, he contends that he told them the petition was neither for or against the Retail Clerks In view of the actual existence of the ratios and in view of Johnson's partial corroboration of Purcell saying she heard him say nothing regarding layoffs, I conclude that Purcell was reasonably accurately describing the contract's ratios and their possible effect Indeed, Local 1179 President Henderson admits describing those ratios to the courtesy clerks and apprentice clerks at var- ious organizing meetings, conceding that he told them some jobs might be lost upon application of the Food Store Agreement at Pmole Under these circumstances, I cannot find Purcell's conduct to have been viola- tive of the Act member and if he couched it in coercive terms, such conduct is not imputable to Respondent. In conclusion, I find that the only unfair labor practice which occurred at Pinole was Respondent's failure to disavow the Purcell petition. C. The Refusal to Recognize the Retail Clerks and the Subsequent Recognition of the Independent at Pmole The complaint asserts that the appropriate unit is the countywide unit as set forth in the Food Store Agree- ment. While both the General Counsel and the Charging Party disavow that they are seeking to add Pinole to Local 1179's multistore unit by accretion, they nonethe- less claim Pinole has been bound to the agreement since at least January 8, 1982, when the recognition demand was made. Local 1179 argues for an even earlier date, 15 days after Pinole opened, relying on paragraph 1.13 of that agreement Clearly the question of whether Respondent had a bar- gaining obligation to the Retail Clerks is different than whether the Retail Store Agreement applies to Pinole. The bargaining obligation must exist independent of the contract. I think therefore, that the General Counsel and Local 1179 have confused the two concepts, probably because they grant excessive weight to the meaning of paragraph 1.13, which they term an "after-acquired store" clause If I assume that it is such a clause, it does not follow that it merges Pinole into the countywide unit. Under the Kroger doctrine27 an after-acquired store clause is only an employer's waiver of the right to insist upon an NLRB election That case did not also hold that recogni- tion automatically applied the contract to that store, though as a matter of practice parties commonly do so.28 Because of their insistence that the Food Store Agreement is in effect at Pinole, I can only conclude that the General Counsel and the Charging Party are ac- tually attempting, despite their disavowals, to "accrete" Pinole into the countywide unit. Such an effort is con- trary to the Board's policy set forth in Federal Mogul Corp., supra, fn 15. Aside from that, however, are two separate, but relat- ed questions: 1. Does paragraph 1.13 constitute a waiver by Respondent of its right to a Board election? 2 Even if it does, is Pinole an after-acquired store within the contemplation of that clause? Frankly, I think both ques- tions must be answered negatively. An employer's right to an election is a statutory right. Linden Lumber Co., 419 U.S 301 (1974). As such, a waiver of that right must be clearly and unequivocally expressed. Timken Roller Bearing Co. v. NLRB, 325 F 2d 746 (6th Cir. 1963). Nothing in paragraph 1.13 refers to waiving an NLRB election or to any alternative means of proving majority. Indeed, one of the problems which arose in this case is the appropriate method of proof. Absent a resolution of that issue by language in the clause, I cannot infer a 27 Kroger Co, 219 NLRB 388 (1975), following a remand from the Court of Appeals from the District of Columbia Circuit, Retail Clerks Local 455 v NLRB, 510 F 2d 802 (D C Cir 1975) 28 At least one court has disagreed, saying the contract applies immedi- ately NLRB v ABEX Corp, supra, fn 15 ALPHA BETA CO waiver. Even if that was the intent, the language does not rise to the clear an unequivocal level. It may simply refer to remodels where the Retail Clerks are already the representative and provide a "window" for bargaining unit work to be performed by nonunit workers. Moreover, is Pinole a "food store" as paragraph 1.13 specifically contemplates? I do not think so. Pinole is not simply a supermarket. It is a combination supermarket and super-drug store. It closely approximates a small de- partment store. It even has its own clothing center. The work tasks outside the grocery department are somewhat different. At least some drug clerks must utilize face-to- face techniques and the lines of supervisory authority are different. Thus, assuming paragraph 1.13 is an after-ac- quired store clause, it does not encompass a store of this kind. Even if Pinole were an ordinary supermarket within the meaning of paragraph 1.13, however, it would clear- ly constitute a separate appropriate unit-one in which the employees not only should have a free choice in se- lecting a bargaining representative, but a voice in deter- mining how that representative should proceed In such a situation the Board has said:29 Assuming that both [multi-store and single store] units may be appropriate . . . it does not follow that the Board should permit the employees of the Orchard Park store, in the circumstances of this case, to be'subject to a contract between their em- ployer and a union without their having had the op- portunity to determine for themselves whether or not they wish to be represented by the contractual bargaining representative. The Board, here, must examine fundamentals and put the Section 7 rights guaranteed the employees and the appropriate unit concept of Section 9(b) into proper perspective. Excessive preoccupation with "appropriate unit" in the circumstances of this case leads to the abrogation of those rights. Section 7 of the Act is not subordinate to Section 9(b). As the Board indicated in Haag Drug [169 NLRB 8771 quite the opposite is true. Section 9(b) directs the Board to select units to "assure to employees the fullest freedom in exercising the rights guaranteed by this Act"-which rights, of course, are those set out in Section 7. If the Board were to permit the extension of the contracts covering other stores to the employees of this store (thereby very effectively disenfranchising them) on the ground that this store (although an appropriate unit in itself) may be part of that unit also, it would, in our opinion, do serious violence to the mandate that employees' rights are to be protected and that appropriate unit findings under Section 9(b) must be designed to preserve those rights. It is of paramount importance to protect both interests here, particularly as neither Respondent nor the Retail Clerks have shown great interest in doing so. The Retail Clerks early on sought to represent the Pinole employees 29 Melbet Jewlery Co, 180 NLRB 107, 109 (1969) 247 without any concern whatsoever for their desires. Re- spondent, if the Retail Clerks had granted the contract concessions it wanted, would have permitted it. The past history of both parties clearly demonstrates that would have occurred.30 Given the initial size of the Pinole em- ployee complement, over 400, more than three-fourths of whom were new employees, guaranteeing their free choice is a substantial concern. Accordingly, I am unable to give any meaning under Section 8(a)(5) of the Act to paragraph 1.13 of the Food Store Agreement. It follows, therefore, that the General Counsel's original theory cannot be sustained. Yet, lurking in the background are two not insubstan- tial, unremedied unfair labor practices-the refusal to transfer the San Pablo employees and the implied adop- tion of Purcell's petition. The Purcell petition had a direct coercive impact at Pinole; the refusal to transfer, while serious, was less direct. With regard to Purcell's petition, it ultimately had no effect on the validity of the cards, for deceit was used to obtain their revocation. Thus, it did not serve to revoke any Local 1179 card It did, however, have an in- timidating effect within the store People who did not wish to sign it, did so anyway out of fear. Yet the fear must have been overcome for not only did employees continue to sign Local 1179's cards, a majority also signed the Independent's cards shortly thereafter. The General Counsel concedes no evidence of coercion exists to have caused that The San Pablo situation is of greater concern. Normal- ly numerous 8(a)(3) violations, usually discharges, to- gether with a demonstrated majority, will be enough for the Board to declare the election atmosphere to be such that a fair election cannot be conducted and will issue a bargaining order under either the first or second Gissel category.31 Local 1179 did not, in early September, represent a majority of Pinole employees. This would have been true even if the 26-30 San Pablo clerks had been transferred. It did, however, claim majority as of January 8, 1982, over 4 months later. Certainly its organizing job was made more difficult by Respondent's treatment of the San Pablo complement, but it was not impossible. Indeed Local 1179 appears to have succeeded despite that handi- cap.32 Shortly thereafter the Independent also succeded. Those very successes demonstrate, in my opinion, that the San Pablo discrimination did not so undermine the atmosphere at Pinole as to render a fair election impossi- ble. If anything, it seems to have had the opposite effect, galvanizing employees into seeking representation.33 I therefore do not believe that a bargaining order is the appropriate remedy. It would, contrary to the Melbet policy, tend to disenfranchise the employees from 30 It did occur at Pmole with the meatcutters and janitors 31 NLRB v Gissel Packing Co, 395 U S 575, 602 (1969) 32 In view of my recommendation below I make no findings regarding Local 1179's actual majority on January 8, 1982 a' Since both unions apparently had obtained the signatures of a major- ity of Pinole employees, I must assume that some employees signed cards for both As the Independent's cards are not in the record I cannot de- termine who these individuals are or how many did so 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD making a free choice.34 This is not to say" that Respond- ent was free to recognize the Independent. Its unfair labor practices were unremedied and the atmosphere had not yet cleared. In that situation an employer should not be permitted to recognize a rival union. That recogni- tion, too, equally deprives employees of their chance to make a free choice. This factual situation is thus somewhat different from the Board's recent decision in Bruckner Nursing Home, 262 NLRB 955 (1982), in which the Board modified the Midwest Piping35 doctrine. There the Board found an at- mosphere free of any unfair labor practices and held that no 8(a)(2) violation was committed in rival organizing situations where the employer recognized one union over another absent a Board petition being filed. In one sense this case is similar to Bruckner for there is no evidence that the Independent was assisted in any traditional way. Yet there are unfair labor practices yet to be remedied. Neither unfair labor practice, however, has polluted the atmosphere to the extent that an election could never be conducted. Thus, I do not find Bruckner to be control- ling.36 Instead, I find that Respondent's recognition of the Independent any subsequent contractual relationship with it violated only Section 8(a)(1).37 A disestablish- ment order will remove any restraints on free choice which that recognition may have caused. Thereafter, upon completion of a remedial period any party may seek an election and the employees will be able to cast ballots in a free atmosphere. THE REMEDY Having found that Respondent has engaged in viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectu- ate the policies of the Act. The affirmative action shall include an order requiring Respondent to offer the San Pablo employees positions at Pinole. I recognize that had Respondent been acting in a nondiscriminatory fashion, some of the San Pablo employees would not have been 34 The instant fact pattern may be contrasted to Pace Oldsmobile, 265 NLRB 1527 (1982), in which the Board on a court remand, found the unfair labor practices including four 8(a)(3) violations (one discharge, three unreinstated unfair labor practice strikers), so pervasive that they were unlikely to be erased, justifying a bargaining order See the case with which the court was concerned, J J Newberry Co v NLRB, 645 F 2d 148 (2d Cir 1981) 3s Midwest Piping & Co, 63 NLRB 1060 (1945) 36 Even Bruckner reiterates that Board elections are "the optimum ve- hicle for ascertaining employee preferences " 262 NLRB at 958 31 It is unnecessary to concern myself with Sec 8(a)(2) here The Inde- pendent's majority status was not "assisted" by Respondent, it cannot be said that it was ever a minority union sent to Pinole. However, in view of'the confusion caused by Respondent in this regard, it is impossible now to de- termine who those employees would have been. Accord- ingly, each and every employee working at San Pablo during August 1981 shall be offered an equivalent job at Pinole, displacing any Pinole employee if necessary. In this regard the order shall specifically include Feliciano despite the fact that she later accepted a voluntary layoff from San Leandro. Had she not been discriminated against by being sent to San Leandro, she never would have been laid off. In addition, Respondent shall be required to make the San Pablo employees whole for any loss of pay they may have suffered as a result of the discrimination against them, or because of any additional expenses they may have been caused as a result of Respondent's failure to transfer them to Pinole.38 Interest on those amounts shall be computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977) See generally Isis Plumbing Co., 138 NLRB 716 (1962). On the foregoing findings of fact and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Respondent, Alpha Beta Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers International Union, AFL-CIO, Local 1179, and Independent Alpha Beta Workers Association are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent, in August 1981, violated Section 8(a)(3) and (1) of the Act by refusing to transfer any of its San Pablo retail sales clerks to its newly opened store in Pinole in order to obtain contractual concessions from Local 1179. 4 Respondent in December 1981 violated Section 8(a)(1) of the Act by refusing to disavow the antiunion petition circulated by employee William Purcell which purported to revoke Local 1179's authorization cards signed by its Pinole store employees 5. Respondent, by recognizing the Independent Alpha Beta Workers Association on March 2, 1982, and by thereafter executing collective-bargaining contracts with it violated Section 8(a)(1) of the Act. 6. Respondent did not in any other respect violate the Act. [Recommended Order omitted from publication ] 3s The Pinole wage rate at least, as negotiated by the Independent, was actually higher than that in the Food Store Agreement Fringe benefits may have been less