Butera Finer Foods

950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Joe B. Foods, Inc. d/b/a Butera Finer Foods and UFCW Local 546, affiliated with United Food & Commercial Workers International Union, AFL-CIO, CLC. Case 13-CA-26866 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On February 22, 1989, Administrative Law Judge Richard L. Denison issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering 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,' and conclusions and to adopt the recommended Order. 1. In agreeing with the judge that a separate unit of fish and meat department employees is an appro- priate bargaining unit, we find that the Respondent has failed to show that this historic unit is no longer appropriate. The meat and fish employees have a separate community of interest from the other Ogden store employees. The record reflects that the employees' job functions require special- ized skills. Although 70 to 80 percent of the meat sold at the Respondent's facility is boxed, the addi- tion of "rails" to the meat department requires the employees to process full fore and hind quarters of meat. The employees cut, package, and price the meat and cut to order for customers. Meat and fish department employees work exclusively in their department, which is separately supervised. There is no evidence of interchange between meat and fish employees and other store employees. More- over, a separate unit composed of meat and fish employees has been the bargaining unit historically recognized. Cf. Hall's Super Duper, 281 NLRB 1116 (1986), where the Board found the petitioned- I The Respondent excepted to the judge's failure to allow evidence on the prevalence of multistore bargaining units in the Chicago area. After considering the Respondent's offer of proof, we find that the exclusion of the evidence was not prejudicial. The Respondent contended that the only appropriate bargaining unit encompasses all three of its supermar- kets. However, when the Union demanded recognition, only the Ogden store was in existence As there was only one store in existence at that time, evidence of multistore bargaining units is not relevant. We find the Respondent 's allegations that the judge exhibited extreme prejudice throughout the hearing to be without merit After considering the record and the decision , we can find no evidence that the judge pre- judged the case, made prejudicial rulings, or demonstrated bias against the Respondent The judge inadvertently miscited Big Y SupermarAets. The citation should read Big Y Supermarkets, 161 NLRB 1263 ( 1966). for separate unit of meat department employees tb be inappropriate. In that case, the meat department employees shared common supervision with the other store employees and did not perform tradi- tional meatcutting work. The meat department had been represented as a separate unit, but the em- ployees had voted to decertify the union 2 years before the petition was filed. We also find Indianapolis Mack Sales, 288 NLRB 1123 (1988), distinguishable from the present case.2 On remand from the Seventh Circuit Court of Ap- peals, the Board concluded that a separate unit of service employees, appropriate under the predeces- sor, was inappropriate under the successor. The Board held that the respondent had satisfied its burden of showing the historic unit was no longer appropriate because circumstances had changed since the successor employer had taken over the business. Interaction and transfers between the em- ployees of the parts and service departments in- creased, and the successor employer began training parts and service employees together to familiarize them with new stock. The parts department em- ployees began to perform semiskilled work on the trucks that had previously been done by the serv- ice department employees. Here, the successor employer, Joseph Butera, op- erates the Ogden store meat and fish department in the same manner as the predecessor employer. The Ogden meat and fish employees continue to utilize traditional meatcutting skills. In fact, Butera's in- stallation of "rails" in the meat department, which enable the employees to process larger cuts of meat, has allowed the meat and fish department employees to utilize their meatcutting skills more often. Therefore, the separate unit of the Ogden store meat and fish employees appropriate under the predecessor employer remains appropriate under the successor employer. 2. We agree with the judge that Joseph Butera's impromptu speech on April 24, 1987, violated Sec- tion 8(a)(1) of the Act. According to Butera's cred- ited testimony, Butera told a group of employees that he had received a letter from the Board stating the Union had enough votes for "either a vote, or that they could come right in." Butera also told the employees that he was disappointed they did not give him a chance to put his package together and give him a little more time to see if his way of doing things would have worked. Butera said that £ In NLRB Y Indianapolis Mack Sales, 802 F 2d 280 (7th Cir 1986), the court rejected the Board's finding, in 272 NLRB 690 (1984), that a sepa- rate unit of service department employees was appropriate, on the basis of the employees' work interests and history of separate bargaining under the predecessor employer The court remanded the case to the Board for a unit determination based on community -of-interest factors 296 NLRB No. 123 BUTERA FINER FOODS even though the Union was going to come in, they would still have to negotiate a contract, and that everything would have to be negotiated. He also stated that he did not know what wage rate the employees would receive and that negotiations would probably take 3 to 4 months. The Board has found similar employer state- ments to be lawful when made during an organiza- tional campaign and when, inter alia, they "accu- rately reflect the obligations and possibilities of the bargaining process." Clark Equipment Co., 278 NLRB 498, 500 (1986). The Respondent's state- ments, however, were not made in the context of an organizational campaign but rather during a period when the Respondent was failing to fulfill its obligations as a successor employer to recognize and bargain with the Union. Thus, the judge found, and we agree, that on April 21, 1987, just 3 days earlier, the Respondent violated Section 8(a)(5) by announcing a pension plan for unit employees. In addition, we agree with the judge's further finding that the Respondent again violated Section 8(a)(5) on the same day it made the speech in issue by ex- plicitly refusing to bargain with the Union. In these circumstances, the conclusion is warranted that in its speech the Respondent was paying only lip service to its obligation to negotiate with the Union. The Respondent's reference to the possibili- ty of a loss of pay cannot be explained as merely reflecting the normal give and take of the bargain- ing process when it was the Respondent itself that was refusing to bargain. Similarly, the Respond- ent's remark about an extended time period for ne- gotiations cannot be regarded as simply a lawful prediction of the course bargaining was likely to take. Rather, we find, in agreement with the judge, that in the context of its unlawful refusal to engage in negotiations with the Union, the Respondent's statements constitute a threat of reduced wages and of the futility of the process of collective bargain- ing.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Joe B. Foods, Inc. d/b/a Butera Finer Foods, Chicago, Il- linois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 8 Chairman Stephens would not find a violation of Sec 8(a)(1) on the basis of Joseph Butera 's April 24, 1987 speech, and thus would not adopt that portion of the recommended Order that requires the Respondent to cease and desist from threatening employees with loss of wages and other benefits if they selected the Union as their bargaining agent Mark A. Spognardi, Esq., for the General Counsel. 951 G. Roger King, Esq. and J. Michael Kota, Esq. (Bricker & Eckler), of Columbus, Ohio, for the Respondent. Charles Orlove, Esq. (Jacobs, Burns, Sugerman & Orlove), of Chicago, Illinios, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard in Chicago, Illinois, on August 24- 28, and September 1 and 2, 1987.1 Based on a charge filed May 4, the complaint, issued June 10, as amended, alleges that the Respondent is a successor employer which, since on or about April 16, has refused to recog- nize and bargain with the Charging Party as the exclu- sive collective-bargaining representative of the meat and fish department employees at Respondent's 3939 W. Ogden Avenue store, in violation of Section 8(a)(1) and (5) of the Act. It is also alleged that Respondent unilater- ally instituted a 401(k) pension plan without notice to or bargaining with the Union, in violation of Section 8(a)(1) and (5). It is further alleged that Respondent violated Section 8(a)(1) of the Act by soliciting employees to as- certain and report and by interrogating employees, con- cerning their union membership, activities, and sympa- thies; and by threatening them with loss of wages and other benefits if they selected the Union as their bargain- ing agent. Finally, the appropriateness of the unit and the inclusion or exclusion from that unit of certain employ- ees and alleged supervisors is in issue. The Respondent's answer denies the allegations of unfair labor practices alleged in the complaint. Upon the entire record in the case, including approximately 1150 of transcript, 700 pages of exhibits, consideration of briefs filed October 9, and observation of the witnesses, I make the following2 FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Based on the allegations in paragraphs 11(a), (d), (e), and (f), and III of the complaint, respectively, admitted in the answer, I find that the Respondent is, and has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act; and that the Charging Party, the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES3 Several years ago The Great Atlantic & Pacific Tea Company, Inc. closed its Chicago division as a part of ' All dates are in 1987 unless otherwise specified. 2 Counsel for General Counsel 's unopposed motion to correct the tran- script is granted . Readers of the record should especially note the correc- tion of the error which reversed the names of counsel for General Coun- sel and counsel for Respondent wherever they appear in the August 28 transcript of proceedings , pp 898 through 986. a The facts set forth herein are based on a composite of the credited aspects of the testimony of witnesses and the exhibits , and consideration of the logical consistency and inherent probability of the facts found Al- Continued 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their nationwide consolidation program . A subsidiary company, Super Plus Food Warehouse , was created and certain former A&P stores in Chicago became the prop- erty of Super Plus. Among these were the stores located at 3518 Division Avenue, 4608 Belmont Avenue, and 3939 W. Ogden Avenue, each of which ceased operating as a full service supermarket and became warehouse op- erations, wherein customers obtain their groceries from boxes on warehouse type shelves and forgo certain amenities, such as bagging, found in the traditional type supermarket. Each of these stores had its own meat and fish department whose employees were represented by the Charging Party on the basis of a single store depart- mental unit. About 1984, A&P sold its Super Plus Food stores to CGI Wholesale, Inc., also called Certified Gro- cers of Illinois, d/b/a Super Plus Warehouse Foods.4 When Certified opened its doors at 3939 W. Ogden Avenue, it was once again a traditional retail supermar- ket containing grocery, produce, fish and meat, and bakery departments. It contained a lunchmeat counter, but no delicatessen . Certified recognized Local 546 as representative of each of its meat and fish department units, and signed separate collective-bargaining agree- ments for each of those units . The 3939 W. Ogden Avenue agreement had as its term May 26, 1985, to May 29, 1988. The meat and fish department at Certified's Ogden Avenue store prepared and sold a complete line of beef, pork, lamb, veal, poultry, and fish, supplied almost en- tirely in boxes by the independent suppliers. For exam- ple, a company named Henry Putz supplied meat, and Chicago Fisheries was one of the fish suppliers. The meat and fish was delivered to the store in trucks, un- loaded and placed in a cooler room from which it was taken, as needed, for processing by meat and fish depart- ment employees. Traditional meat cutting equipment was utilized, including scrapers , knives, hand saws, band saws, tenderizer, grinder, wrapping machine, and scales. Certified's Ogden Avenue store did not process meat from fore and hind quarters, since it had no rails from which to hang such large quarters of meat. Certified did not make its own sausage. On December 24, 1986, the State of Illinois issued an incorporation certificate to Joe B. Foods, Inc., a corpo- ration formed by Joseph Butera who had left his family's grocery operations, Butera Foods, to form his own busi- ness. Although Butera Foods was organized, Joseph Butera was determined to operate on an unorganized basis. That same day he purchased from CGI Wholesale, Inc. (Certified Grocers of Illinois) their three supermar- kets at 4608 West Belmont Avenue, 3518 West Division Street, and 3939 W. Ogden Avenue. Shortly thereafter, Yvonne Harris, Certified's store manager at Ogden Avenue, distributed Butera Finer Foods' employment ap- though I may not, in the course of this Decision , refer to all the evi- dence, it has been weighed and considered, and to the extent that testi- mony or other evidence not mentioned herein might appear to contradict the findings of fact, it has not been disregarded , but has been rejected as incredible, lacking in probative worth , surplusage, or irrelevant In those instances where I may not have specifically detailed who I have credited, it is clear from the narrative who has been credited Hereafter called Certified plications to store employees at Ogden Avenue, includ- ing those in the meat department . For example, Harris told journeyman meatcutter Arthur Bradley to fill the application out and return it to her. Certified closed its Ogden Avenue store in the middle of January . As of the store's closing the following employees were regularly working in the meat and fish department at Ogden Avenue. Tom Ademak Arthur Bradley Fred Feller John Russell Marilyn Bell Gus Rodriquez Emanuel Rodriquez Market Manager Journeyman Meatcutter Journeyman Meatcutter Journeyman Meatcutter Wrapper Fish Man Fish Man and Wrapper Each of these Certified employees belonged to the Union and was included in the bargaining unit. The Ogden store remained closed until the week of February 22, while remodeling, rearranging , and other preparations were performed by the Respondent. It was during this period that employment interviews were con- ducted. On February 1, Joseph Butera personally inter- viewed Certified's Ogden employees in the manager's office at the store in the presence of Jose Firman, Bu- tera's selection for Ogden store manager.5 The inter- views were short. He asked each employee how they felt about working for him. He told them what the wages would be, and invited them to work for him. According to Butera, he had prepared "a little statement," on which he based his remarks. He testified that, having considered the possibility that the Union would seek to organize his operation, he told each applicant that he did not like the Union, since he did not like anyone telling him how to run his store, and planned to operate without one. He told Arthur Bradley that he was not going to have a union, and asked if Bradley could "deal with crossing a picket line if it came to that." After Bradley had indicat- ed a willingness to work for Butera under those condi- tions, Joseph Butera gave him another blank Butera Finer Foods' application to fill out "for the record." Bradley filled out the application after the interview had ended, and turned it in before leaving the store . Butera told Bradley he would contact him, and that the store would open at a later time . During the course of these interviews there was no mention of any intention on the part of Butera to install a 401(k) pension plan as an em- ployee benefit. The Ogden store opened under the auspices of Butera Finer Foods on February 26 as a full-service retail super- market. The only significant departmental change was the addition of a "fresh deli" where employees behind a counter filled customers' orders with freshly cooked or sliced meats, potato salad, chicken, and other typical del- icatessen type products . This area is separate from the meat and fish department and is serviced by four or five employees none of whom are regularly assigned to work in the fish and meat department, which remained located in the rear of the store in the same position it occupied 5 Firman did not testify BUTERA FINER FOODS under Certified's ownership. Butera received 70 to 80 percent of its meat and fish in boxes from which meat and fish department employees processed it in the same manner as had been done at Certified, utilizing, for the most part, the same tools and equipment , much of which Butera had purchased from Certified when it closed. The sole significant exception was the addition of rails which permitted the Butera meat department to process hang- ing quarters of meat. Butera obtained its meat from basi- cally the same suppliers as did Certified, such as Forest Poultry, Jane Provision, Henry Putz, and Sasosy Sau- sage. In addition, he purchased meat from Certified Gro- cers, and other independent meat suppliers . In the words of Joseph Butera, he purchased his meat from the same suppliers plus others. In the leading case of Burns Security Services, 406 U.S. 272, 279-281 (1972), the United States Supreme Court adopted "substantial continuity in the employing enter- prise" as the test for deciding whether an employer is a successor who must bargain with the bargaining agent which represented the employees of its predecessor. Whether this test has been satisfied is determined by ex- amining whether substantial continuity exists with re- spect to the employing industry , specific business oper- ations, plant, jobs and working conditions, supervisors, machinery, equipment, methods of production, product or service, and work force . The substantial continuity test remains the yardstick utilized by the Board for de- ciding issues of successorship. Applying this principle to the facts thus far developed in this case , it becomes read- ily apparent, and I find, that at its 3939 W. Ogden Avenue store, the Respondent operates the same business in the same industry as did Certified Grocers . Butera is located in the same building and also has a separate meat and fish department. Butera has the same job classifica- tions and working conditions. With the exception of using a slightly lower percentage of boxed meat and the processing of a small percentage of meat from rails which it had installed , Butera operates its meat depart- ment with the same machinery, equipment, and methods of production used at Certified. Indeed, much of the equipment was purchased from Certified when Respond- ent purchased the store. Although the record shows that Certified Grocers operated warehouse type stores at other locations, it is clear that the store at 3939 W. Ogden Avenue had for some time prior to its sale to Butera been operating as a full-service retail supermar- ket. This fact was acknowledged by Joseph Butera in his testimony when he noted that he chose to open the Ogden Avenue store first because it did not have to be converted. Thus, the chief difference between Certified's operation and that of Respondent at Ogden was the in- stallation by Respondent of a full-service delicatessen, none of whose employees worked in the meat and fish department. Therefore, the evidence is convincing that each of the Burns' criteria had been satisfied except for consideration of the remaining issue of whether or not there exists a substantial continuity in the work force. It is to this issue that this Decision must now turn its atten- tion. Continuity of the work force exists where a majority of the successor's work force is composed of the employ- 953 ees of the predecessor. Contract Carriers, 258 NLRB 353, 355 (1981 ). The controlling point in time for deciding the majority question is when a bargaining demand has been made by the representative of the predecessor 's employ- ees and when a representative complement of the succes- sor's work force is on the job . Aircraft Magnesium, 265 NLRB 1344, 1345 (1982). A representative complement exists when the successor's job classifications have been substantially filled and the successor is conducting normal or substantially normal operations . Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). Applying these principles to the instant case, it becomes immedi- ately obvious that the following facts are highly relevant. Joseph Butera opened 3939 W. Ogden for business as Butera Finer Foods on February 26.6 The meat depart- ment opened 1 or 2 days later . By this time Joseph Butera had hired each of the employees who had worked in Certified's Ogden meat department at the time the store closed, except for Meat Market Manager Tom Ademak. Indeed, Ademak had been offered a job by Butera, but declined. At all times material herein, the six former Certified meat department employees occupied the same job classifications and performed the same type of work for Butera as they had for the predecessor. Thus, Arthur Bradley, John Russell, and Fred Feller were and continued to be journeyman meatcutters. Mari- lyn Bell remained the wrapper , Gus Rodriquez and his brother Emanuel continued to operate the fish depart- ment. In addition to the former Certified employees, Steve Butera, Paul Palazzolo , and his brother Frank Pa- lazzolo were hired and began working in Respondent's meat department from the outset of operations. Steve Butera was hired by Joseph Butera 2 weeks before the store opened for the position of meat and fish department manager. Paul Palazzolo was hired in January for the position of back room boss and meat manager trainee. Frank Palazzolo was hired on February 27 as a meatcut- ter and back room boss trainee . Thus, it is clear, and un- disputed, that Respondent's meat department at Ogden Avenue began normal operations with a complete staff of employees almost from the day of opening. In addition, between February 27 and April 16, the date on which the Union demanded recognition, Joseph Butera hired additional employees. Stanley Sokolowski was hired on March 6 as a back room meat manager and meat manag- er trainee. Respondent also employed Chris Hill, James Presley, Michael Williams, Harold Wells, and Chris Minter as utility clerks , sometimes called "meat depart- ment trainees."7 On April 24, by letter, the Respondent 6 It is undisputed the Joseph Butera is a supervisor within the meaning of the Act in that he possesses and exercises the authority and responsi- bilities set forth in Sec 2(11) of the Act, and I so find ' In his initial testimony Joseph Butera omitted the names of Harold Wells and Chris Minter from his recitation of the employees who he claimed were working in the meat and fish department as of April 16 He also omitted these employees' names from a list he furnished to the Board following the Union's filing of a representation petition However, both Minter and Wells are listed in the testimony of meatcutter Arthur Brad- ley as having worked in the Ogden meat department in April I therefore find that they must be considered along with the other utility clerks 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD declined to recognize the Charging Party as the collec- tive-bargaining agent of its meat and fish department em- ployees. It is uncontested that Respondent had filled the job classifications in the meat department and was engaging in substantially normal operations as of the date of the Union's demand . Thus, the pivotal issue in this case is what constitutes an appropriate collective-bargaining unit and which employees should be included in that unit for purposes of determining whether or not the Union had a majority as of that date. The Respondent argues that the only appropriate bargaining unit includes the meat and fish department employees at all of the Respondent's stores. In the alternative, it urges that the only appropri- ate bargaining unit consists of a wall-to-wall unit of all grocery and meat and fish department employees at all of the Respondent's stores. As a further alternative, it is urged that the only appropriate unit consists of a wall-to- wall unit of all grocery and meat and fish department employees at the Ogden Avenue store. I disagree. It has long been axiomatic that all that is required under the National Labor Relations Act with respect to a bargain- ing unit, in this regard, is that the unit be an appropriate unit. It need not be the only appropriate unit or the most appropriate unit. Moreover, it is settled that a single store meat department unit is presumptively appropriate. Great Scott of Florida, 256 NLRB 885 (1981); Big Y Su- permarkets, 161 NLRB 292 (1971). The cases cited by Respondent in support of its position are inapposite. Fur- thermore, the evidence with respect to Certified's oper- ation of the Ogden store shows that a unit composed of its fish and meat department is the bargaining unit his- torically recognized . Finally, the Respondent's allusion to the principle of an expanding unit has no merit. The evidence shows that the Respondent opened its division store a month after the Union's demand, and its Belmont store 2 months thereafter. Thus, the Respondent's con- tention is at odds with the Supreme Court's holding in Fall River. I find that a collective-bargaining unit com- posed of all meat and fish department employees at the Respondent's 3939 W. Ogden Avenue store, excluding office clerical employees, guards and supervisors as de- fined in the Act, is an appropriate unit for the purposes of collective bargaining. It is now necessary to evaluate which employees should be included and which should be excluded from the appropriate unit. Since, as noted earlier, it is agreed that Joseph Butera is a supervisor within the meaning of the Act, he is excluded. It is likewise agreed among the parties that as of April 16, meatcutters Bradley, Russell, and Feller, the wrapper, Marilyn Bell, and fish depart- ment employees Emanuel and Gus Rodriquez were at that time rank-and-file meat department employees and should be included. I so find. The disputed categories are alleged supervisors and the utility clerks. The Utility Clerks Five irregular part-time utility clerks , referred to by Joseph Butera as "kids," worked at irregular part-time employees 4 to 5 hours a day on varying days bagging chickens in a rear hallway behind the meat department. While bagging chickens and cleanup work occupied most of their time, they also occasionally assisted the wrapper by catching meat as it left the wrapping proc- ess, placed trays of meat in the cooler, and placed price labels on wrapped meat . They were paid $3 .80 per hour, as opposed to the meatcutters who were paid $13.20 per hour. None of these employees were ever trained in meatcutting, or ever performed any meatcutting work. The evidence shows that Chris Hill fluctuated his work- ing time between the meat and grocery departments, while James Presley spent from February 18 to May 18 working in a vacant building rented by the Respondent at 3518 Division. Since it has been conclusively proven that the wages, hours and working conditions of the util- ity clerks are distinctly different from those of other meat department employees , I find that they have a sepa- rate and distinct community of interests from other meat department employees and I exclude them from the ap- propriate collective -bargaining unit. The General Counsel contends that Steve Butera, Paul Palazzolo, Stanley Sokolowski, and Frank Palazzolo were each supervisors of the Respondent at its Ogden Avenue store as of April 16, and therefore should be ex- cluded from the collective-bargaining unit. The Respond- ent takes the opposite position . I shall now consider each of these employees separately. Steve Butera About 2 weeks before the Ogden store opened, Joseph Butera hired his cousin to be meat department manager at Ogden Avenue. Joseph Butera conceded that, know- ing of Steve's prior experience as meat supervisor over 18 stores of Butera Foods, he employed him for the pur- pose of supervising all meat operations at all stores after they opened . Steve Butera ran the meat department at Ogden Avenue throughout February and March, but in April he began spending much of his time at the Divi- sion store which was preparing to open . Following the opening of the Belmont store, he became overall meat department supervisor. The parties stipulated that as of the first week of May Steve Butera had the duties and responsibilities referred to in Section 2(11) of the Act which made him a supervisor as of that time. Steve Butera did perform some work in the meat department at Ogden. Much of his time was spent ordering meat from suppliers, preparing lists of meat items to be cut , check- ing the quantity and freshness of meat in the meat counter, and taking special orders from customers which he referred to the meatcutters for preparation . However, Steve Butera did not spend much time performing actual meatcutting work. He prepared lists of what needed to be done in the way of meatcutting, and passed these in- structions on for others to perform. He decided what cuts and quantities were needed. He issued orders to the fish employees concerning when the fish case should be cleaned. He gave instructions to the employees concern- ing when they should take their breaks, and the employ- ees were expected to follow his directions. He orally rep- rimanded employees for improper job performance, and issued written reprimands to them for neglect of duty. He recommended that Emanuel Rodriquez receive a raise, and Joseph Butera accepted the recommendation BUTERA FINER FOODS 955 without further investigation . Steve Butera does not punch a timeclock, but instead writes his own time on the timecard and approves it. He has authority and does in fact make necessary alterations to employees' time- cards when, for example, they fail to punch the clock. In conclusion, employees who worked under Steve Butera testified that they considered him to be their supervisor. Paul Palazzolo Joseph Butera hired Paul Palazzolo in January as back room boss and a meat manager trainee. Joseph Butera testified that Paul was hired with the intention that he would become a meat manager at the Division Avenue store when it opened in May. In May, Paul Palazzolo became meat department manager at the Division store. At Ogden, Paul received $ 14.30 per hour and an addi- tional $20 per week manager's premium. He did not per- form much actual meatcutting work although he occa- sionally cut meat on the saw, ground meat , made sau- sage, checked in deliveries, and wrapped meat in the evening hours when others were gone. Mainly, he worked on the meat counter as part of his training for the forthcoming meat manager 's position, performing many of the same duties there that were assumed by Steve Butera. Although he had no authority to hire, fire, transfer employees, or set store policy, he did spend most of his time giving directions to the meatcutters con- cerning what meats he wanted cut and correcting their work when they cut meat improperly. He was responsi- ble for seeing that the employees completed their work in a proper and timely manner, inspected deliveries, and told employees when to take their breaks . He gave the fish department employees directions concerning the pricing of fish to insure that the fish was sold before it spoiled. He reprimanded employees for being late and enforced the Company's dress code . On one occasion he reprimanded an employee for wearing the wrong col- ored shirt and told him he would send him home if the incident were repeated. Paul Palazzolo likewise wrote his own hours on the card and verified it with his own signature. In April, when Steve Butera spent much time preparing for the opening of the Division Avenue store, Paul Palazzolo was frequently left in charge of the meat department. Frank Palazzolo Frank Palazzolo was hired in February as a meatcutter and trainee for the position of back room boss, which position Joseph Butera intended him to assume at Ogden as the other stores prepared to open . In April he became back room boss . Although he did actual hands on work in the meat department, grinding meat, making sausage, cutting meat, wrapping, working the counter, relieving the fish man, and accepting deliveries and loading the cooler, he also told employees what work to do and how it should be done . While he testified that he had no au- thority to hire, fire, discipline, transfer, set store policy, assign unscheduled overtime, or designate employee breaks, the evidence shows that a month after the store opened Steve Butera admonished meatcutter Arthur Bradley that he would have to follow Frank Palazzolo's orders or be terminated . Subsequently, on May 2, Arthur Bradley was discharged for failing to follow orders from Frank Palazzolo . In April, after he became back room boss, employees were expected to follow his instructions and accept assignments from him. Thereafter he would tell meatcutters what cuts of meat were needed and how much meat to cut each day. He also gave employees in- structions, which they were supposed to follow, con- cerning when to take their breaks . He frequently worked different hours from the other employees, staying on to finish work which needed to be done in the department before leaving in the evening. Frank frequently worked on Saturdays, assisted by a meatcutter and a utility clerk. He served as acting supervisor for 20 hours in a 44- to 48-hour week, and during April and May, when Paul Pa- lazzolo and Steve Butera were frequently away prepar- ing other stores for opening, Frank Palazzolo performed much of the supervision of the meat department. He has authority to and does interview prospective meat depart- ment employees for employment. Joseph Butera has hired applicants based solely on Frank Palazzolo's rec- ommendation, and without further investigation. Meat and fish department employees look to him as their su- pervisor. He also signs for his hours on his timecard, and is paid the $20 per week manager's premium. Stanley Sokolowski8 Stanley Sokolowski was hired by Joseph Butera on March 6 for work in the Ogden Avenue store , pursuant to an application requesting a job as a meat manager. According to Joseph Butera, he hired Sokolowski with the intention of employing him as a meat manager in the future at one of his other stores. Sokolowski had also worked at Butera Foods and knew how Joseph Butera wanted meat cut. Thus, shortly after he was hired, Soko- lowski became a meat manager trainee . Initially, he spent a great deal of time cutting meat on the saw , grinding, unloading deliveries, wrapping meat, and performing other hands on meat department functions. As time pro- gressed he began instructing employees concerning how Joe Butera wanted meat cut, giving other instructions and directions, and working on the meat counter, as did Steve and Paul. By mid-April , employees understood that they were to follow Stanley's orders, and considered him their supervisor. He referred to them as his employ- ees. His authority had, by that time , become the equal of Frank Palazzolo's. Beginning at the end of March and continuing thereafter, Sokolowski assigned work to em- ployees, and directed their work concerning what to cut and in what order of priority to cut it . He corrected the work of the experienced meatcutters when, in his opin- ion, the meat was not cut in accordance with Joseph Bu- tera's standards. In late April he held a meeting of the meat department employees wherein he informed them that Frank Palazzolo would henceforth be the back room boss with authority to assign them their duties. It was 8 Stanley Sokolowski was not a candid witness His testimony was fraught with inconsistencies , contradictions, and implausible explanations In other instances his testimony was contradicted by clear documentary evidence I do not credit his testimony except where it is supported by the testimony of other witnesses 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sokolowski who first told Arthur Bradley that he must follow instructions from Frank or else leave the store. Sokolowski received $ 14.30 per hour plus the manager's $20 per week premium . He signed for his own time in- stead of punching a timeclock . In April, when Steve Butera and Paul Palazzolo were away preparing to open other stores, Sokolowski performed Steve Butera's job. I find that the evidence, summarized above, concern- ing Steve Butera, Paul Palazzolo , Frank Palazzolo, and Stanley Sokolowski shows that they possess attributes of supervisory status set forth in Section 2(11) of the Act. Accordingly, I find that they are supervisors, and were supervisors on April 16 when the Union made its demand for bargaining. In my view, any concern that a reader of the record might otherwise have with respect to the otherwise obvious disproportionate number of su- pervisors to employees in a single retail store meat de- partment, is fully explained by the testimony of Joseph Butera to the effect that he was using the Ogden Avenue store meat department to form a cadre of supervision for use at other stores. The fact that each of these four per- sons possessed and exercised supervisory authority is un- derscored by the testimony of Arthur Bradley concern- ing the many conflicting instructions he received and was supposed to try to follow . Moreover, separate and apart from the supervisory issue, I further find that as of April 16, Steve Butera and Paul Palazzolo , by virtue of their responsibilities with respect to Joseph Butera's other stores; Stanley Sokolowski, because he was in training to become a meat department manager else- where; and Frank Palazzolo, because of his benefits and alignment with management, had a community of inter- ests considerably different from those of the Ogden store meat department employees. Consequently, I would ex- clude them from the collective-bargaining unit in any event. I therefore find that on April 16, the date of the Union's demand for bargaining, the Ogden store meat department bargaining unit was composed of meatcutters Bradley, Russell, and Feller; wrapper Marilyn Bell, and fish department employees Gus and Emanuel Rodriquez, each of whom had been previously employed by the predecessor, Certified Grocers. Therefore, I find that a substantial continuity in the work force between the em- ployees of Certified and those in the meat department of Respondent's Ogden store exists, and that the Respond- ent is the successor to Certified at Ogden , and thus is ob- ligated to bargain collectively with the Union . Having failed and refused to do so on April 24 and thereafter, the Respondent has violated Section 8(a)(1) and (5) of the Act. The Announcement and Implementation of the 401(k) Pension Plan and the Allegations of Violations of Section 8(a)(1) of the Act On Tuesday morning, April 21, about 10:30 a.m., Arthur Bradley, Fred Feller, and Marilyn Bell were walking toward the break room when Joseph Butera ap- peared and stated that he wanted to talk with them. They proceeded to the break room together, where, eventually, about 10 to 12 Ogden store employees assem- bled to listen to what Butera had to say . Among the group were Paul Palazzolo and Gus Rodriquez. Butera passed out a paper from which, he said, he was reading. He announced that he was going to be installing a new pension program in the form of a 401 (k)-type pension plan. He said that he would deduct a sum of money from the paychecks of each of the employees, before taxes, which would go into the plan every week . Then, at the end of the year he would make a contribution . He said that the employees would have the plan as long as they were with the Company, that they could take the money out at any time, but that if they did they lost his contri- bution. The meeting lasted about 20 to 30 minutes and ended with Butera stating that he was working on the details with his lawyers, and that they would have a fur- ther meeting to answer the employees' questions after the details were complete. On Friday, April 24, Joseph Butera came to the cutting room about 9 or 9:30 a.m., where Bradley, Feller, Bell, Emanuel Rodriquez, Frank Palazzolo, and Stanley Sokolowski were working . Butera was visibly upset. According to Arthur Bradley, Butera said he'd received a letter from the Union saying they had 80 percent of the people "back there" that wanted to be represented by the Union . He stated that they were not giving his program a chance to work, and that if the Union came in they could not have his pension plan. He stated that negotiations with the Union would take a while and that it would take months for the Union to come in. When that happened he said he might not be paying them the same salary , and that it might be lower. He said that the employees could not have two pension plans, and that they could either have the union plan or his plan. The meeting ended without any questions or any discussion. Emanuel Rodriquez testified that Joseph Butera read a letter about the butchers wanting a union, and then said that if they wanted the pension plan they couldn't have a union. According to Rodriquez , Butera stated that he might lower their salary if they had a union , and asked the employees to give him a chance to work things out with the Union and with the employees . He concluded his remarks by reminding them that he had "brought in kids" to clean up and do the easy things for them. Joseph Butera testified that he stated he had just re- ceived a letter from the Labor Board which said the Union claimed they had enough votes either for an elec- tion or "that they could come right in." Butera said he was disappointed that they did not give him a chance to put his package together, and give him a little more time to see if his way of doing things would have worked. He reminded the employees that even though the Union came in, they would still have to sit down and negotiate a contract, and that "it is not that they are going to walk in and get so and so and so. Everything has to be negoti- ated. We don't know what rate you are going to make. It is not going to be overnight. What I mentioned was that if you belonged to one union-one pension plan, you couldn't belong to the other." According to Butera, he got the "impression" that employees could only belong to one pension plan from his insurance agent, Jerome Mancuso. Butera denied ever stating that he would take away the 401 (k) plan if the Union came in, and insisted that he did say he would sit down and nego- BUTERA FINER FOODS tiate with the Union, which would probably take 3 or 4 months. None of the other members of Respondent 's meat de- partment testified concerning Joseph Butera's remarks, although, according to Bradley, Frank Palazzolo, Stan- ley Sokolowski, and others were present. The three ver- sions of Joseph Butera's April 21 speech are not dissimi- lar in content. Butera's version is more complete and de- tailed and coherent . Therefore, I am persuaded that his account is the more accurate version. Nevertheless, it is clear that the motivation behind Butera's impromptu speech was his anger over receiving the letter from the NLRB Regional Office concerning the Union's election petition. This event caused him to berate the meat and fish department employees in a manner clearly designed to discourage their organizational efforts. Under all the circumstances, Butera's statements to the effect that col- lective-bargaining negotiations would take a long time and might well result in their receiving less pay, in my view, exceed the boundaries of permissible rhetoric, and as such constitute a threat of reduced wages and of the futility of the organizational process. As such, I find that his remarks constitute a violation of Section 8(a)(1) of the Act as alleged in the complaint. Later in the day Stanley Sokolowski had a conversa- tion with Steve Butera in the coffee room upstairs above the store. Steve asked what was going on with the letter which Joseph Butera had received. He said he had not seen a union agent. Sokolowski replied that he would like to know what "my employees think of it and what is going on." Steve answered that he would like to know also, and for Sokolowski to find out if he could. Shortly thereafter Sokolowski approached Arthur Bradley in the cutting room . He said he had talked to Steve Butera and that Steve had asked him when the union man had come into the store. Sokolowski said that he had not seen him, whereupon Butera said he wanted him to find out, and how the employees were going to vote, but that he was not going to do it because it was none of his business. Having considered all of the circumstances surrounding this incident, including the fact that it followed close on the heels of Joseph Butera's threat, I find that this con- versation was coercive and constitutes unlawful interro- gation in violation of Section 8(a)(1) of the Act.9 On April 24, Joseph Butera also sent a binder check to the insurance company for the 401 (k) pension plan. He had been urged to do this by his insurance agent, Jerome Mancuso, who feared that Butera might delay and there- by have to pay less favorable interest rates. Butera and Mancuso testified that they began talking about soliciting quotations from various insurance companies for the 401(k) plan in the fall of 1986. Butera announced the plan to employees on April 21, but nothing was firm until the binder check was sent on April 24, the day Re- spondent refused to bargain with the Union. The plan was not effective until May 1. On these facts the law is clear. It has long been settled that employee pension If Sokolowski were not a supervisor, Steve Butera's remarks to him would, in my view, constitute unlawful solicitation of an employee to as- certain and report on employees' union sympathies, in violation of Sec 8(a)(l). 957 plans are mandatory subjects for bargaining, and when an employer unilaterally announces and implements such a plan without first bargaining with the Union which represents its employees, it violates the Act. Under Burns, supra, once an employer which acquires a busi- ness becomes a successor employer under the Act, that employer is no longer free to unilaterally set the terms and conditions of employment of its employees without notice to and bargaining with the Union. In the instant case the Union demanded recognition on April 16, by which time the Respondent had employed a substantial and representative complement of Respondent's Ogden meat and fish department employees, and was, therefore, a successor. On April 21 the Respondent announced the creation of the 401(k) plan, and refused to recognize and bargain with the Union, by letter, on April 24. The binder check was sent to the insurance company on April 24, and the plan was implemented on May 1. The fact that the Respondent had decided to install a plan and was actively considering various insurance company proposals, with the insistence of Mancuso , as early as late 1986, is immaterial . What is important is that the plan was announced and implemented after the Union made its demand for bargaining and at a time when it represented a majority of Respondent's Ogden meat and fish department employees. Thus, the Respondent violat- ed Section 8(a)(1) and (5) of the Act as alleged in the complaint. CONCLUSIONS OF LAW 1. Joe B. Foods, Inc. d/b/a Butera Finer Foods is, and has been at all times material herein , an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. UFCW Local 546, affiliated with United Food & Commercial Workers International Union, AFL-CIO, CLC, the Union, is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. All employees who process, pack, wrap, handle, price and sell frozen and fresh meats and fish in the meat and fish department of Respondent's store at 3939 W. Ogden Avenue, Chicago, Illinois; excluding office cleri- cal employees, guards and supervisors as defined in the Act and all other employees , constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, President Joe Butera, Meat and Fish Department Manager Steve Butera, Meat Manager Stanley Sokolowski , Back Room Manager Frank Palazzolo, and Back Room Manager Paul Palaz- zolo are each supervisors and agents of Respondent acting on its behalf within the meaning of Section 2(11) and (13) of the Act, respectively. Moreover, their bene- fits and responsibilities apart from their supervisory status are such as to align them with management to a degree which renders their community of interests differ- ent from those of rank-and-file meat and fish department employees. Consequently, they are excluded from the ap- propriate collective-bargaining unit. 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5. Because they have an insufficient community of in- terest with Respondent's meat and fish department em- ployees at its 3939 W. Ogden Avenue, Chicago, Illinois, store, Respondent's utility clerks are excluded from the appropriate collective-bargaining unit. 6. By virtue of the operations and circumstances found to exist herein, the Respondent has continued the em- ploying entity at the store at 3939 W. Ogden Avenue, Chicago, Illinois, and is the successor of Certified Gro- cers d/b/a Super Plus Warehouse Foods at that location. 7. At all times material herein the Union has been the exclusive collective-bargaining representative of the em- ployees in the unit described above in paragraph 3, and, by virtue of the Respondent's status as the successor em- ployer to Certified, has at all times material herein con- tinued to be, and is, the exclusive collective-bargaining representative of the employees in said unit at Respond- ent's store at 3939 W. Ogden Avenue, Chicago, Illinois. 8. By failing and refusing to recognize and bargain with the Union as requested, as the exclusive collective- bargaining representative of the employees in the appro- priate unit described in paragraph 3, including but not limited to the announcement, and implementation of a pension plan for those employees on or about April 21 and May 1, respectively , the Respondent violated Sec- tion 8(a)(1) and (5) of the Act. 9. By coercively interrogating employees and threaten- ing them with loss of wages and other benefits if they selected the Union as their bargaining agent, Respondent violated Section 8(a)(1) of the Act. 10. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. The Act has not been violated by Respondent in any respects other than those specifically found. THE REMEDY Having found that the Respondent violated the Act as specified in the section of this Decision entitled "Conclu- sions of Law," I shall order the Respondent to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Since the Re- spondent has failed and refused to recognize and bargain collectively in good faith with the Union as requested, including but not limited to the unilateral creation, an- nouncement, and installation of an employee pension plan without notice to or bargaining with the Union, I shall order Respondent, as successor, to recognize UFCW Local 546, affiliated with United Food & Com- mercial Workers International Union, AFL-CIO, CLC, as the exclusive collective-bargaining representative of its employees in the unit found appropriate in this Decision, and, upon request, bargain with the Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. If any agreement is reached, Respondent shall embody such understanding in a signed collective-bargaining agreement . I shall also order the Respondent to post an appropriate notice con- cerning all violations found to have occurred. Because the record shows that certain of Respondent's 3939 Ogden Avenue employees have been transferred by Re- spondent from store to store in the Chicago area since the events which gave rise to this proceeding occurred, I shall order the Respondent to post a notice at each of its Chicago area stores. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- edto ORDER The Respondent, Joe B. Foods, Inc. d/b/a Butera Finer Foods, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with UFCW Local 546, affiliated with United Food & Commercial Workers International Union, AFL-CIO, CLC, as the exclusive collective-bargaining representative of Re- spondent's employees in the appropriate unit with re- spect to wages, rates of pay, hours of employment, and other terms and conditions of employment.' 1 (b) Unilaterally changing the wages, hours, and work- ing conditions of its bargaining unit employees , including but not limited to unilaterally announcing , and instituting an employee pension plan, without notice to or bargain- ing with the Union. (c) Coercively interrogating employees concerning their union membership, activities, and sympathies. (d) Threatening employees with loss of wages and other benefits if they selected the Union as their bargain- ing agent. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, upon request, bargain collectively with UFCW Local 546, affiliated with United Food & Commercial Workers International Union, AFL-CIO, CLC, as the exclusive representative of the employees in the appropriate unit described in paragraph 1(a), footnote 11 of this Order, and embody any understanding reached in a signed agreement. (b) Post at each of its Chicago, Illinois stores copies of the attached notice marked "Appendix." 12 Copies of this notice, on forms provided by the Regional Director for Region 13, after being signed by an authorized agent of Respondent, shall be posted by it immediately upon re- ceipt and maintained for 60 consecutive days thereafter 10 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ii The appropriate unit is- All employees who process , pack, wrap, handle, price and sell frozen and fresh meats and fish in the meat and fish department of Respondent 's store at 3939 W Ogden Avenue, Chicago, Illinois, ex- cluding office clerical employees , guards and supervisors as defined in the Act and all other employees IY 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." BUTERA FINER FOODS in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that these notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this Order, what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain with UFCW Local 546, affiliated with United Food & Com- mercial Workers International Union, AFL-CIO, CLC, as the exclusive collective-bargaining representative of Respondent's employees in the appropriate unit with re- spect to wages, rates of pay, hours of employment, and other terms and conditions of employment . The appro- priate unit is: All employees who process, pack, wrap, handle, price and sell frozen and fresh meats and fish in the 959 meat and fish department of Respondent's store at 3939 W. Ogden Avenue, Chicago, Illinois; exclud- ing office clerical employees, guards and supervi- sors as defined in the Act and all other employees. WE WILL NOT unilaterally change the wages, hours, and working conditions of its bargaining unit employees, including but not limited to unilaterally announcing, and instituting an employee pension plan, without notice to or bargaining with the Union. WE WILL NOT threaten employees with loss of wages and other benefits if they selected the Union as their bar- gaining agent, nor will we coercively interrogate em- ployees concerning their union membership, activities, and sympathies. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL recognize and, upon request, bargain with UFCW the above- named Union, as the exclusive collec- tive-bargaining representative of the employees in the ap- propriate unit, and , embody any understanding reached in a signed agreement. JOE B. FOODS, INC. D/B/A BUTERA FINER FOODS