Mack'S Supermarkets, Inc.

National Labor Relations Board - Board Decisions

May 25, 1988

288 N.L.R.B. 1082 (N.L.R.B. 1988)

1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mack's Supermarkets, 'Inc. and Local 227, United
Food and Commercial Workers International
Union, AFL-CIO-CLC. Cases 9-CA-23688, 9-
CA-23763, 9-CA-23811-1, -2, and 9-RC-
15002
May 25, 1988
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On October 16, 1987, Administrative Law Judge
William N. Cates issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions' and briefs and
has decided to affirm the judge's rulings, 2 fmdings,
1 In excepting to the judge's finding that Store Manager Lewis unlaw-
fully threatened employee Scott with replacement, the Respondent
renews the posttnal argument it made to the judge, based on a posttrial
affidavit of Scott that it moved the judge to admit into evidence after
completion of the trial. In this affidavit, Scott averred that she under-
stood Lewis' comment "to be a joke" and that she had explained to coun-
sel for the General Counsel before testifying to the incident that she did
not feel threatened or coerced by the remark. In his decision, the judge
denied the Respondent's motion to receive Scott's affidavit on grounds
that the evidence contained within it was neither newly discovered nor
unavailable at the time of the trial. The General Counsel has moved to
strike the Respondent's argument—with its accompanying exhibits of
copies of the denied motion and Scott's affidavit—because it rests on
facts not contained in the record and because the Respondent failed to
except to the judge's denial of the Respondent's motion Without passing
on whether the Respondent's exceptions encompass the judge's ruhng,
we grant the General Counsel 's motion to strike the Respondent's argu-
ment based on Scott's rejected affidavit, and the resubmitted affidavit
itself Like the judge, we find the evidence in the affidavit was not newly
discovered nor unavailable to the Respondent at the time of hearing. Ac-
cordingly, we find merit to the General Counsel's contention that the evi-
dence is not properly before us and thus the Respondent's argument
cannot be entertained.
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
3 Chairman Stephens and Member Babson adopt the judge's conclusion
that the Respondent violated Sec 8(a)(1) of the Act by the statement
made to employee Enix concerning striker replacement during the con-
versation with the Respondent's vice president and its general manager.
In so doing, they emphasize that during the same conversation the Re-
spondent unlawfully threatened store closure, threatened that Emx would
be the first "to go" if the Union came in, and impliedly threatened retal-
iation against Enix by inquiring wliy he continued to work for the Re-
spondent if he wanted unionized employment. They agree with the Judge
that, in this context involving threats to Emx's job status, the finding of
the violation based on the striker replacement statement is fully in accord
with Eagle Comtronics Inc., 263 NLRB 515 (1982). Member Johansen
finds that the coercive context made the replacement threat unlawful re-
gardless of the vitality of Eagle Comtronics.
and conclusions 3 and to adopt the recommended
Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mack's Su-
permarkets, Inc., Harlan, Baxter, and Evarts, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
[Direction of Second Election omitted from pub-
lication.]
4 The General Counsel's request for a visitatonal clause is denied as
the circumstances of this case do not "demonstrate a likehhood that [the]
[R]espondent will fail to cooperate or otherwise evade compliance" See
Cherokee Marine Terminal, 287 NLRB 1080, 1084 (1988).
Donald A. Becher and Linda Finch,'Esqs. for the General
Counsel.
Kenneth W. Smith and Gregory P. Parsons, Esqs. (Stites &
Harrison), of Lexington, Kentucky, for the Company.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I
heard this case on 19 and 20 May 1987 at Harlan, Ken-
tucky. The cases arose when Local 227, United Food
and Commercial Workers International Union, AFL-
CIO-CLC (Union) filed unfair labor practice charges
against Mack's Supermarkets, Inc. (Company) at various
dates commencing on 31 October 1986. 1 Acting for the
Board's General Counsel, the Regional Director for
Region 9 investigated the charges and issued a third con-
solidated amended complaint (complaint) on 27 March
1987; the complaint was further amended at tria1.2
The Company answered admitting many background
and jurisdictional contentions made in the complaint but
denied all claimed wrongdoings.
The General Counsel makes extensive claims in the
complaint. It is claimed that the Company starting as
early as 30 September engaged in various conduct pro-
hibited by Section 8(a)(1) of the Act. 3 It is also contend-
ed the Company violated Section 8(a)(3) of the Act by
about 28 October laying off its employee Marie Scott
(Scott), by about 3 November transferring and discharg-
ing its employee Jimmy Cusick (Cusick), and by about 2
December reducing the work hours of its employee
Jerry Wayne Gibson (Gibson). Additionally, it is disput-
ed whether Peggy Owens (Owens), Ronnie Caldwell
All dates hereinafter are 1986 unless otherwise indicated The charge
in Case 9-CA-23688 was filed on 31 October; the charge in Case 9-CA-
23763 was filed on 20 November, and the charges in Cases 9-CA-23811-
1, -2 were filed on 5 December.
2 On 3 April 1987 the Regional Director issued an amended order con-
solidating cases in which Case 9-RC-15002 was consolidated for hearing
with the unfair labor practice cases. On 5 May 1987 he issued an amend-
ment to third consolidated complaint.
3 The specific 8(a)(1) allegations will be fully set forth elsewhere in
this decision.
288 NLRB No. 123
MACK'S SUPERMARKETS 1083
(Caldwell), and Jim Hendrickson (Hendrickson) are su-
pervisors and agents of the Company within the meaning
of Section 2(11) and (13) of the Act.
The Union filed the representation petition in Case 9-
RC-15002 on 12 September. Pursuant to a Decision and
Direction of Election issued on 30 October by the Re-
gional Director, for Region 9 of the Board, an election
by secret ballot was held on 2 December among the em-
ployees in the unit described below:
All full-time and regular part-time employees em-
ployed by the Employer at its Harlan County, Ken-
tucky stores, excluding all office clerical employees,
all managerial employees and all professional em-
ployees, guards and supervisors as defmed in the
Act.
The tally of ballots disclosed that 43 employees cast
votes for the Union, and 66 employees cast votes against
union representation. There were 17 challenged ballots
that were not determinative of the election results. On 8
December the Union filed objections to conduct affect-
ing the results of the election.
The Regional Director for Region 9 of the Board
issued on 20 January 1987 a Report on Election, order
directing hearing, and notice of hearing. In his Report
the Regional Director concluded that there were sub-
stantial material issues of fact regarding the Union's Ob-
jections 1-5 and 7-9 that could be best resolved by a
hearing. Accordingly, he thereafter ordered that the rep-
resentation case be consolidated with the unfair labor
practice cases for hearing. The Union withdrew its Ob-
jection 6.
All parties were given full opportunity to participate
and introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally, and to file briefs. All
briefs filed at various intervals have been carefully con-
sidered.
On the entire record in this case and my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Company is a Kentucky corporation engaged in
the retail sale of food and other general merchandise in
Harlan, Baxter, and Evarts, Kentucky. During the 12
months preceding the issuance of the complaint herein, a
representative period, the Company, in the course and
conduct of its business operations, derived gross rev-
enues in excess of $500,000 and purchased and received
at its Kentucky facilities products, goods, and materials
valued in excess of $50,000 which were shipped directly
from points located outside the State of Kentucky. The
parties admit, and I find, the Company is, and at all times
material has been, an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The parties admit and I find the Union is, and at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In attempting to establish the claims set forth in the
complaint, the General Counsel relied on the testimony
of certain adverse and a number of employee witnesses.
The testimony and responses thereto are set forth below
essentially in the order established by the complaint.4
Inasmuch as creditability is a material issue in the in-
stant case, I deem it appropriate to make some prelimi-
nary comments thereon. In deciding which of the con-
flicting versions of events is more credible I have given
considerable weight to the demeanor of the witnesses
while they were on the stand. I have considered each
witnesses' testimony in conjunction with established or
admitted facts, inherent probabilities, and reasonable in-
ferences that may be drawn from the record as a whole.
With respect to the testimony, I have borne in mind the
tendency of witnesses in general to testify their impres-
sions or interpretations of what was said or done rather
than attempting to give a verbatim account of what they
heard or saw. Further, I am not unmindful that even in
the case of persons testifying about their own remarks or
actions, they may well tend to express what they said or
intended to say in clearer or more explicit language than
they actually used in their discussions or conversations.
As to any witness having testified in contradiction of the
findings herein, their testimony has been discredited
either as having been in conflict with the testimony of
credible witnesses or because it was in and of itself un-
worthy of belief. All testimony has been reviewed and
carefully weighed in light of the entire record. As specif-
ic creditability conflicts arise, I shall state more specifi-
cally my reasons for crediting or discrediting any par-
ticular witness on any particular portion of their testimo-
ny.
A. The Alleged Supervisory Status of Owens, Caldwell
and Hendrickson
Before considering the status of Owens, Caldwell, and
Hendrickson, I note it is undisputed that Company Vice
President Harold Parsons (Vice President Parsons),
Company General Manager Don Parsons (General Man-
ager Parsons), Owner/General Manager Estelle Parsons
(E. Parsons) (collectively the Parsons), Store Manager
John C. Lewis (Lewis), Store Manager Grover Milwee
4 As will be obvious, certain complaint allegations overlapped other al-
legations. In that regard I have attempted for the greater part to address
the 8(a)(1) allegations before addressing the 8(a)(3) allegations. In consid-
ering the 8(a)(1) allegations I have generally attempted to do so in the
order they appear in the complaint, however, because of the overlapping
of allegations it has not always been feasible to do so I have, however,
considered all complaint allegations whether I have done so separately or
in conjunction with other allegations My concern with the overlapping
of complaint allegations has been heightened by the fact that certain of
the witnesses were unable to state with precision when certain matters
took place So that there is no confusion I have for example considered
the allegations contained in complaint pars. (IOW and (n) in conjunction
with the allegations set forth in par (d) of the complaint.
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Milwee), and Store Manager Robert Owens (R. Owens)
are, and at all times material have been, supervisors and
agents of the Company within the meaning of Section
2(11) and 2(13) of the Act.5
1. Statutory provisions and governing principles
pertaining to supervisory status
The statutory provisions and governing principles per-
taining to supervisory status within the meaning of the
Act are well known and established. Reference to the
status and a brief restatement of some of the governing
principles is appropridte, however, prior to examining
the specific facts applicable to Owens', Caldwell's, and
Hendrickson's status.
First, it is clear that an individual's status as a supervi-
sor is not determined by his/her title or job classification,
but rather is determined from the individual's functions
and authority. Section 2(11) of the Act defines a supervi-
sor as follows:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such
authority is not of a merely routine or clerical
nature, but requires the use of independent judg-
ment.
The statutory indicia outlined above in Section 2(11)
of the Act are in the disjunctive and only one need exist
to confer supervisory status on an individual. Opelika
Foundry, 281 NLRB 897 (1986); and Albany Medical
Center Hospital, 273 NLRB 485, 486 (1984). See also
Olympia Plastics Corp., 266 NLRB 519, 530 (1983). In
order for supervisory status to exist, however, the exer-
cise of one or more of the outlined powers must be ac-
complished with independent judgment on behalf of
management in other than a routine or clerical manner.
Put another way the statute expressly insists that a super-
visor (1) have authority, (2) to use independent judg-
ment, (3) in performing supervisory functions and (4) in
the interest of management. These latter requirements are
conjunctive. Hydro Conduit Corp., 254 NLRB 433 (1981),
NLRB v. Security Guard Service, 384 F.2d 143, 147-148
(5th Cir. 1967). The party alleging supervisory status has
the burden of proving it in fact exists. Commercial
Movers, 240 NLRB 288, 290 (1979), and Hydro Conduit
Corp., supra. As noted in Hydro Conduit Corp., supra,
"The Board has a duty to employees to be alert not to
construe supervisory status too broadly because the em-
ployee who is deemed a supervisor is denied employee
rights which the Act is intended to protect." Westing-
5 In his decision and direction of election issued on 30 October the Re-
gional Director for Region 9 of the Board concluded that the above-
named mdividuals, as well as Store Manager Don Richmond and Night
Manager Connie Richmond, were supervisors within the meaning of the
Act. As supervisors the Regional Director excluded all of them from the
bargaining unit
house Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th
Cir. 1970), cert. denied 400 U.S. 831 (1971).
I shall now consider the facts as they pertain to each
of the three alleged supervisors.
2. The status of Owens
Up until recently Owens worked as head cashier at the
Company's Baxter store. 6 She worked in that position
for 20 of her 22 years with the Company. The Company
employs approximately 11 cashiers at its Baxter store of
which approximately one-half are part-time employees.
No cashiers have worked at the Baxter store longer than
Owens.
Owens described her head cashier duties as basically
ensuring that the cash registers were covered and that
new cashiers were properly trained. The training given
by Owens consisted of her observing the new cashier's
run "load[s] of groceries. . . . through the register," in
order to ensure "the right amount [for the groceries pur-
chased] was entered into the register." Owens also in-
structed new cashiers on "how they [were to] conduct
themselves with the customers." Owens, for example, en-
sured that the new cashiers thanked the customers for
shopping with the Company and that they invited them
to shop again at the store. Other procedures that Owens
instructed the new cashiers on were how to accept and
process checks when that was the method of payment
tendered by customers. According to Owens, if a cashier
made a routine mistake she immediately discussed it with
the employee. If a cashier made a serious mistake, how-
ever, she took it up with the Parsons. Owens stated that
if a cashier engaged in anything that she considered to be
misconduct, she informed Vice President Parsons or
General Manager Parsons and the Parsons decided what
if any action would be taken with respect to the cashier.
Additionally Owens, from time to time, communicated
management decisions from the Parsons to the cashiers.
Owens testified that scheduling of work for the cash-
iers was very casually accomplished. She said she made
out the work schedules if nothing big was happening
such as vacations, but if something out of the ordinary
was expected to take place she consulted with Vice
President Parsons and General Manager Parsons before
making out the cashier's work schedules. Owens testified
she did not have the authority to and never had com-
pletely altered the cashier's work schedules, nor had she
ever moved employees from one department to another.
Owens stated she never altered store hours at any time in
any way. From time to time when business was slack,
Owens, as well as other cashiers, went home early.
Owens testified she knew other cashiers had gone home
early after she had left because they told her so when
she returned to the store the following day. Owens fur-
ther testified that when things were not busy at the store
the cashiers were sort of on their own and checked out
and went home as they wished. Owens said that employ-
ees leaving early had asked if they could take a shorter
than 1 hour lunch break to make up for the time they
6 Owens currently serves the Company as an office clerical employee.
MACK'S SUPERMARKETS 1085
lost by leaving early and she indicated she had told them
they could not.
Owens described the hiring process for cashiers during
the time she was head cashier as follows. First, anyone
seeking employment as a cashier had to prepare a com-
pany-provided employment application. Second, Owens
interviewed the applicants. Third, all applications were
then placed on file until such time as a vacancy was
about to occur or had already occurred. At the time
when a cashier was needed Owens would take the appli-
cations that were on file to the Parsons and they would
make a decision on which applicant would be hired.
Vice President Parsons testified that when Owens
worked as head cashier she stocked the health and
beauty aid section and physically wrote out the work
schedules for the cashiers at the Baxter store. Parsons
stated Owens did not have the authority to hire, fire, or
discipline employees nor had she ever had or exercised
the authority to effectively recommend such actions.
Parsons stated that any changes in the work schedules
had to be cleared with him prior to being implemented.
Vice President Parsons stated that from time to time as
head cashier, Owens had been allowed to communicate a
variety of work-related messages and management deci-
sions to the cashiers.
Employee Scott 7 testified that when Owens was head
cashier at the Baxter store she could and did hire cash-
iers. Scott cited herself as an example of Owens author-
ity to hire cashiers. 9 Scott said she filled out an applica-
tion for employment and thereafter talked to Owens
every 2 weeks for approximately a year about the possi-
bility of being hired. Scott stated that after about a year
she prepared a second application that she gave to
Owens. Owens looked the second application over and
told Scott she would call her if the Company needed a
cashier. Scott stated that about a couple of days thereaf-
ter, Owens telephoned her to come to work Scott said
Owens trained her for her cashier position.9 Scott testi-
fied Owens "made up" the cashiers' work schedules and
allowed them to go home early or have a day off if they
needed to be off by working the schedule around
them." Scott stated that when cashiers were needed for
overtime Owens "advised" them of that need. Scott also
stated that when she was laid off she asked for some-
thing in writing and Owens signed a handwritten note
for Vice President Parsons concerning her layoff.
Brenda Pace (B. Pace) testified she worked at the
Baxter store as a cashier trainee for approximately 3-1/2
hours in October. B. Pace stated she first spoke with
Lanola Parsons (wife of Vice President Parsons) at
'Scott's layoff, which is alleged to have been unlawfully motivated, is
addressed elsewhere m this decision
Employee Eddy Noe (Noe) testified Store Manager Lewis told him
Owens had the authority to interview, hire, schedule work for, and fire
cashiers. I have placed no credence m Noe's testimony on this matter.
Noe could not recall with any accuracy when the alleged conversation
took place nor did he offer any explanation why Lewis would make such
a statement lo him. As discussed elsewhere in this decision, I did not find
Noe to be a credible witness.
9 Scott did not provide a great deal of insight into her trainmg except
to say that if she made mistakes Owens called them to her attention.
" Assistant Produce Manager Gibson testified he had known of cash-
iers to ask Owens if they could change their days off, but he did not state
whether any such changes actually took place.
"Movies To Go" (a Company owned but unrelated busi-
ness) about employment. , Lanola Parsons told B. Pace to
check with Owens at the Baxter store that they might be
able to use her there. According to B. Pace, Owens told
her she did not know of any need for an employee but
she (B. Pace) could talk to Vice President Parsons. B.
Pace said Vice President Parsons came to the Baxter
store and told Owens to commence training her for a
cashier's position. B. Pace stated Vice President Parsons
did not indicate whether there were any openings at the
store. B. Pace testified Owens followed Vice President
Parsons instructions, but that about 3-1/2 hours later she
told her she was not working out, that she made too
many mistakes, and they would have to let her go. B.
Pace left the Baxter store at that time and was not there-
after employed by the Company.
Former employee Kimberly Blanton (Blanton) testified
she filled out an application for employment at the Com-
pany and once or twice thereafter talked to Owens about
a job. Blanton said that several months later she saw
Owens at the Baxter store looking at employment appli-
cations. Blanton said she told Owens she still needed to
work. According to Blanton, Owens told her to report
for work the next day."
Blanton testified that approximately 2 years before the
trial she heard Owens tell an employee named Linda
(not further identified) that she was fired. Blanton testi-
fied that on that occasion she and Linda had been to
lunch together and when they returned Owens met them
at the timeclock, and told Linda a customer had com-
plained about her conduct" and the Company could not
have that, so they were going to let her go.
Blanton stated that on occasion she had asked Owens
for time off and "usually" Owens changed the schedule
to accommodate her. Blanton also stated that when she
was required to work unscheduled overtime Owens was
the one who assigned the work to her.
It is necessary to make some credibility resolutions in
order to determine the facts surrounding the issue of
Owens supervisory status. At any point where there is,
or appears to be, a conflict regarding Owens' status, I
have credited Owens' and Vice President Parsons' testi-
mony. I have done so for a number of reasons. Owens
appeared to be a believable, although somewhat nervous,
witness. I am, however, persuaded her nervousness was
as a result of her anxiety at having to testify and not as a
result of any attempt on her part to misstate facts or to
conceal the truth about her job duties. Her testimony re-
garding her job duties was supported by Vice President
Parsons. Additionally, her testimony about the Compa-
ny's hiring, firing, and related policies is consistent with
what is contained in the Decision and Direction of the
Election prepared by the Regional Director in the under-
lying representation case herein.
11 Blanton was unaware of Owens consulting with anyone prior to
telling her to report for work the next day.
12 Blanton testified, "Apparently . . Linda got kind of smart with a
customer." Blanton acknowledged she had not been at the store when
the customer complained and she did not know who the customer had
complained to or who had made the decision to terminate Linda
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel contends Owens was a statutory
supervisor based on any number of factors related to her
job duties and functions. A careful review for the Gener-
al Counsel's contentions demonstrate they are without
merit. First, counsels- for the General Counsel contend
Owens could hire employees and they point specifically
to the hiring of employees Scott and Blanton. Scott testi-
fied she filled out two applications approximately a year
apart and talked with Owens about employment on sev-
eral occasions. About 2 days after she prepared her
second application Scott stated Owens telephoned and
asked her to report for work. Scott's testimony, howev-
er, does not establish who made the decision to hire her.
Nothing in Scott's testimony contradicts Owens and
Vice President Parsons' testimony that Owens did not
have the authority to hire or effectively recommend the
hiring of employees. Although Owens interviewed all
cashier applicants for the Baxter store when she was
head cashier, I credit her testimony that the applications
were placed on file until a need arose, and then a deci-
sion was made at that time by the Parsons' about who
would be hired. Furthermore, Scott's testimony does not
establish that any practiêe existed at the Company re-
garding hiring other than that described in the Decision
and Direction of Election in the underlying representa-
tion case, in which the Regional Director found the Par-
sons retained "final approval over all hiring."
Former employee Blanton filed an application for em-
ployment with the Company and thereafter spoke with
Owens on approximately three occasions prior to being
employed. On the last such occasion, which took place
"several months" after she had submitted her application,
Owens, who was reviewing applications at the time, told
her to report for work the next day. Although Blanton
was not aware of Owens consulting with anyone prior to
telling her to report to work, such does not establish that
Owens exercised independent judgment in the hiring of
Blanton. The fact Owens was reviewing' applications at
the time Blanton was told to report for work suggests a
decision had already been made to hire a cashier. In light
of the Company's hiring policies and practices, I am per-
suaded that Owens, although unable to recall specifics,
testified truthfully when she said she would not have
told Blanton to start work without first consulting with
the Parsons. Furthermore, Owens credibly testified that
E. Parsons had at one point discussed Blanton's applica-
tion with her and had concluded she might work out as
a cashier. Accordingly, I am persuaded the General
Counsel has failed to establish, by a preponderance of
the evidence, that Owens ever hired or effectively rec-
ommended the hiring of anyone at the Company.
j_ikewise, the General Counsel failed to establish that
Owens ever fired or effectively recommended the firing
of any employee. Former employee Blanton's testimony
that Owens, some 2 years ago, discharged an employee,
does not establish anything more than that Owens in-
formed an employee she had been discharged. The dis-
charged employee apparently had a customer complaint
lodged against her and someone, as a result of that com-
plaint, made a decision to terminate the employee. The
customer complaint occurred in the morning hours and
the discharged employee was not informed of her dis-
charge until after lunch. Former employee Blanton ac-
knowledged she had not been present when the com-
plaint was made nor had she been privy to the decision-
making process that led to the employee's discharge.
Thus, Blanton's testimony established nothing more than
that an employee was discharged because of a customer's
complaint and that Owens relayed the message to that
employee that she was fired. Such evidence falls far
short of establishing Owens had anything to do with the
decision to discharge the employee nor does it contradict
Owens and Vice President Parsons' testimony that she
did not have the authority to discharge or effectively
recommend the discharge of employees.
B. Paces' testimony regarding her 3-1/2 hours of em-
ployment at the Company does not establish, as the Gen-
eral Counsel contends, that Owens effectively recom-
mended her discharge. Pace stated Owens told her she
was making too many mistakes and would have to go.
Owens acknowledged that after reviewing the register
tapes generated by B. Pace during her short time at the
store that she recommended to Vice President Parsons
that Pace be let go. Owens' actions must be viewed in
proper perspective. Owens was told by Parsons to train
B. Pace. All the evidence establishes is that Owens re-
ported back to Parsons the results of register tapes and
recommended, based on that data, that Pace not be re-
tained or, stated differently, that B. Pace was not traina-
ble. Owens simply supplied Vice President Parsons with
information on which he could make the decision on
whether to retain B. Pace as an employee or let her go.
Furthermore, Vice President Parsons credibly testified
he personally observed B. Pace's work and reviewed the
register tapes she generated, and thereafter, decided she
was not qualified to continue as an employee of the
Company. Therefore, the evidence presented by the
General Counsel fails to establish Owens had the author-
ity to discharge or effectively recommend the discharge
of employees.
It is undisputed that Owens, at times material, was the
most senior cashier at the Baxter store and that she
trained new cashiers. It appears, however, that the train-
ing she provided—correcting simple mistakes, instructing
the cashiers on the procedures for accepting personal
checks as payment for merchandise, and reminding the
cashiers to be courteous to the public—was extremely
routine in nature and did not require the exercise of any
independent judgment on her part.
Owens prepared the Baxter store cashiers' work sched-
ules without input from management only when there
was not going to be any major changes in the set sched-
ules such as employees taking vacations or things like
that. Owens' testimony that she obtained approval for
changes was corroborated by Vice President Parsons
who stated that although Owens physically wrote out
the work schedules for the cashiers, she cleared any
changes with him. Owens' and Parsons' testimony is in
keeping with the Regional Director's Decision and Di-
rection of Election in the underlying representation case
in which he found, "Harold and Donald Parsons prepare
the 'employees weekly work schedules." It is clear that
Owens functions with respect to the work schedules
MACK'S SUPERMARKETS

1087
were simply clerical in nature and did not involve the
exercise of any independent judgment on her part. The
testimony, for example, of former employee Blanton that
she, from time to time, had asked for time off and that
Owens had usually made changes in the schedules to ac-
commodate her, does not, under the circumstances of
this case, detract from a finding that Owens' duties with
respect to the schedules were nothing more than clerical
in nature.
Scott testified Owens allowed employees to leave
work early or have a day off if they needed it. The cred-
ited evidence, however, reflects the scheduling of work
at the Baxter store was fairly casually done and the cash-
iers were for the greater part on their own with respect
to clocking out and/or going home early. The evidence
establishes Owens even left work early on some occa-
sions and after she had left for the day other cashiers did
likewise. Thus, again the evidence fails to demonstrate
that Owens exercised any effective control over when
employees could leave early, or that she exercised any
independent judgment on behalf of the Company with
respect to employees having time off.
The Regional Director in his Decision and Direction
of Election concluded that Vice President Parsons and
General Manager Parsons had to approve "any" over-
time worked at the Company. The General Counsel did
not present any conclusive evidence to the contrary. The
General Counsel relies in part on the testimony of Scott
to establish Owens could authorize overtime. However,
Scott only testified that when overtime was worked it
was Owens who "advised" the cashiers about the need
for overtime. Such does not establish Owens had any
input into the decision to authorize overtime or any
input into the selection process regarding who would
perform the overtime work. Furthermore, Blanton's testi-
mony that when she was assigned to work unscheduled
overtime it was Owens who assigned her to the work
does not establish Owens had any involvement in the de-
cision to authorize the overtime.
In light of all the evidence, I am persuaded and find
the General Counsel Counsel failed to establish by a pre-
ponderance of credible evidence, that Owens was, at ma-
terial times, a supervisor within the meaning of Section
2(11) of the Act.
The General Counsel contends that even if Owens was
not a statutory supervisor the Company is still liable for
her actions as a "conduit of management" because she,
from time to time, communicated management decisions
to the cashiers. The General Counsel's argument is with-
out merit. The record evidence establishes nothing more
than that Owens was a long-term experienced employee
entrusted with some nonsupervisory lead authority.
There is no showing she ever exercised any independent
judgment on behalf of management with respect to any
actions she took or decisions she relayed that involved
the cashiers. Functioning as a "conduit of management
communications" or "decisions" is insufficient, absent su-
pervisory status, to establish vicarious liability on the
part of management for the conduit's actions. Knogo
Corp., 265 NLRB 935 (1982). Furthermore, in the cir-
cumstance of this case, I cannot conclude the Company
placed Owens in a position such that employees could
reasonably have believed she spoke on behalf of manage-
ment with respect to her actions in the union campaign.
This is a Company that was, and is, managed strictly
from the very top. The ParSons alone make the signifi-
cant decisions for this Company. The Parsons have given
very limited authority even to their store managers. In
this regard the Parsons were and are in each of their
stores on a daily basis and on occasions even more often
than that. I am persuaded the employees could not have
failed to observe the Parsons in the stores, or to have un-
derstood they exercised very tight control over their op-
erations. In light of the above, I am persuaded the em-
ployees could not reasonably have concluded that some-
one who was simply a cashier, albeit a head cashier,
spoke on behalf of management. Inasmuch as the Gener-
al Counsel failed to demonstrate the Company vested
Owens with apparent authority to Act as its agent, I
shall not attribute her actions to it.
Having concluded that Owens is not a statutory super-
visor or that the Company is otherwise responsible for
her actions, I shall recommend that all complaint allega-
tions related to her be dismissed.
3. The status of Caldwell"
Caldwell was employed 14 at material times, as a lead
stockperson or assistant manager at the Baxter store."
Caldwell's functions were to see that merchandise dis-
plays were built, delivery trucks were unloaded, and
store shelves were stocked. 16 CaldWell from time to
time told baggers and stockers to bring stock from star-
age and place it on the shelves and to keep the aisles
looking good. It appears Store Manager Lewis, at times,
told Caldwell what needed to be done and Caldwell then
relayed Lewis' instructions to the baggers and stockers,
Whenever Store Manager Lewis left the store to go to
the bank, have a day off, or take vacation Caldwell was
asked to "see that everybody performed, and, if not,
report back to the leadership." Caldwell did not have the
authority to hire, fire, or discipline employees, or to ef-
fectively recommend such actions. Furthermore, Cald-
well did not have the authority to arrange employees
work schedules or to grant them time off.
The General Counsel contends Caldwell was a statuto-
ry supervisor based primarily on two factors. First, she
contends Caldwell responsibly directed the work of unit
employees and, second, that he regularly substituted for
Store Manager Lewis, an admitted supervisor. I reject
both contentions. With respect to responsibly directing
the work of others, it is clear, whatever directions CaId-
Caldwell's duties set forth herein have been assembled from credited
portions of the testimony of former employee Greg York (York), em-
ployee Noe, Baxter Store Assistant Produce Manager Gibson, Baxter
Store Manager Lewis, and Vice President Parsons. I have considered
Noe's testimony regarding Caldwell's duties only because it was corrobo-
rated by others and because there does not appear to be any real dispute
about the essential aspects of Caldwell's duties. As will be discussed else-
where m this decision, Noe's testimony generally was unworthy of belief.
14 Assistant Produce Manager Gibson testified Caldwell is no longer
employed by the Company. No party called Caldwell as a witness.
15 There was at least one other individual designated as assistant store
manager at the Baxter location, namely, Tim liensley.
16 One employee is permanently assigned to each aisle at the Baxter
store to ensure that shelves are properly stocked
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
well gave employees were routine in nature and did not
require any independent judgment on his part. Stocker!-
bagger employees were, for example, assigned specific
aisles to maintain; therefore, any directions Caldwell
might have given them would not have amounted to
anything more than his asking them to perform their spe-
cifically and permanently assigned duties. The same
would apply to unloading trucks and constructing mer-
chandise displays. All employees were required to
unload delivery trucks as quickly as possible after the
trucks arrived at the store.
In summary, there is absolutely no showing that Cald-
well exercised any independent judgment with respect to
his having asked employees to stock shelves, unload
trucks, or construct merchandise displays. Simply stated
he could not compel employees to do anything. His only
duty with respect to whether others performed their jobs
was to report to management any employees' failure to
do so. All the facts pertaining to his duties and responsi-
bilities, taken as a whole, fail to demonstrate that he, at
any time material, was a supervisor within the meaning
of the Act. Furthermore, I cannot conclude Caldwell
was a statutory supervisor because he occasionally filled
in for or substituted for Store Manager Lewis. Caldwell
did not possess statutory supervisory authority in his
own right, and the record fails to establish he possessed
any additional authority when he filled in for or substi-
tuted for Store Manager Lewis. Caldwell could not have
become a statutory supervisor merely by substituting for
Store Manager Lewis, because to become a statutory su-
pervisor by substituting for one the substituting employ-
ee must possess the full extent of the supervisory author-
ity that the substituted-for supervisor possessed.
Inasmuch as I have concluded Caldwell was not a stat-
utory supervisor and inasmuch as the record fails to es-
tablish any grounds by which the Company would be
libel for his actions, I shall recommend that all complaint
allegations related to him be dismissed.
4. The status of Hendrickson17
Hendrickson has been employed at the Evarts store for
the past 31 years. He testified he is nothing more than an
"employee" at the store; but, acknowledged on cross-ex-
amination, he had heard others refer to him as an assist-
ant store manager. He said he never referred to himself
in that manner. His duties include "look[ing] after the
front [of the store]" and doing "a lot of bagging [grocer-
ies]." Hendrickson testified he does "just about anything
that needs to be done," and that on some occasions,
when the store manager is away, he "look[s] after the
17 Hendrickson's name is spelled various ways m the record; however,
the correct spelling is as set forth herem The description of Hendrick-
son's duties has been taken from credited portions of testimony by Hen-
dricksons, Store Manager Milwee, Vice President Parsons, General Man-
ager Parsons, former employee Cusick, employee David Wayne Enix
(Enix), employee Eddie Johnson (E. Johnson), employee Timothy Lee
Johnson (T. Johnson), and employee Charles Soloe (Solon). Where I
have deemed it significant or helpful I have identified which witness or
witnesses provided certain specific information, otherwise I have simply
set forth the mutually corroborated testimony of the witnesses without
attributing it to any particular witness(es). I note at this pomt that by
crediting certain portions of any witness' testimony I do not mean to and
am not thereby necessarily crediting all of that witness' testimony
[bag]boys." Hendrickson stocked the dairy case until he
had surgery which "slowed [him] up a lot" and has pre-
vented him from doing much work in that area of the
store anymore. Hendrickson said if a disciplinary matter
came up while he was left in charge at the store that he
telephoned one of the Parsons, or he reported the matter
to Store Manager Milwee the next day." Hendrickson
stated he did not have the authority to hire, fire, or dis-
charge employees. 19 Hendrickson said he had from time
to time recommended for employment individuals he
knew from "off the street" that he thought might make
good employees. He stated his recommendations had not
always been followed. When Hendrickson fills in for
Store Manager Milwee 2 ° he can and does tell employees
to bag groceries or stock merchandise as needed. He can
also permit employees that are sick or that otherwise
need to go home early to do so. He "presumes" he could
ask employees to perform errands for the Company that
would require them to be away from and return to the
store. He stated that pursuant to longstanding orders
from General Manager Parsons and Vice President Par-
sons he could and had closed early when there were no
customers in the store. When that occurs, Hendrickson
and the others simply clock out and leave the store. Vice
President Parsons testified he not only had given Hen-
drickson instructions about closing early, but added,
Hendrickson had even called him to tell him there were
no customers in the store and to ask to close early. Vice
President Parsons also testified Hendrickson had called
him when the local high school was playing a ball game
and asked to close early to attend the game. Parsons told
Hendrickson to close early because Evarts was a "small
town" and "everyone" went to any local ball games.21
Former employee Cusick testified that "about three
years ago" he heard Hendrickson tell an employee by
the name of Cupp to "get out of the store" that "he
wasn't working there no more." Cusick stated that after
Hendrickson told Cupp he was fired he told him he
could come back the next day and see Store Manager
Milwee that Milwee might give him his job back, but he
would not.
Employee Soloe testified that in the summer of 1986,
Hendrickson told him to finish stocking the aisle that
Sam Mills was responsible for because Mills was away
on vacation. Soloe said he refused to do so because there
were "boys standing . . . doing nothing." Soloe stated
Hendrickson told him to "do it or go home." Soloe said
he threw his label gun down and told Hendrickson he
would go home, but Hendrickson would have to clock
him out. Soloe testified he returned to the store the next
18 Mftwee testified that all actions taken by Hendrickson while Milwee
is away from the store are subject to review.
18 In this regard General Manager Parsons testified that he along with
his brother, Vice President Parsons, and mother, E. Parsons, did all the
hiring, firmg, advertising, and planning for the stores.
20 There are two other individuals that fill in for Store Manager
Milwee when he is absent from the store, namely, Sam Mills and a Mrs.
Bradford who is an office worker. The record does not reflect how often
Milwee is away from the store for either a full day or any part thereof.
21 It appears Hendrickson was a high school athlete who still enjoys
going to the six or so basketball games held in Evarts each year. It ap-
pears the store is closed early on those six or so occasions.
MACK'S SUPERMARKETS 1089
,
day and spoke with Manager Milwee. Milwee told Soloe
"If you come back, then, you'll have to do what Jim
[Hendrickson] tells you next time."
The General Counsel argues Hendrickson is, and the
Company asserts he is not, a supervisor within the mean-
ing of the Act. At first glance, the evidence tends to re-
flect Hendrickson exercised certain powers that are su-
pervisory in nature. When reviewed more carefully,
however, the evidence fails to demonstrate he exercised
any independent judgment or had any significant discretion
in carrying out his job functions. Although Hendrickson,
some 3 years ago, told an employee (Cupp) to get out of
the store that he did not work there any longer, he also
told the employee he might get his job back the next day
from the store manager or others. Hendrickson made it
clear to the employee involved that his was not the final
say with respect to the employee's employment with the
Company. 22 Hendrickson's telling Cupp to check with
management the next day about his employment indi-
cates he recognized, as Store Manager Milwee, General
Manager Parsons, and Vice President Parsons testified,
that he did not possess the authority to make final deci-
sions on matters of that nature. The same is true with re-
spect to the fmality of the decision to send employee
Soloe home. Hendrickson simply asked Soloe to do
something that was part of his regularly assigned job,
stocking shelves, and when Soloe refused to do so, Hen-
drickson told him to leave the store. The next day, after
conferring with Store Manager Milwee and agreeing to
do what he was told, Soloe was permitted to return to
work. Again the evidence demonstrates that final deci-
sions, with respect to discipline, were and continue to be
made by Store Manager Milwee and/or higher manage-
ment personnel. These conclusions regarding discipline
are in keeping with the Regional Director's Decision and
Direction of Election in the underlying representation
case in which he concluded, "individual store managers
have limited disciplinary authority with all final decisions
reserved for one of the Parsons'." In a case such as this
where even store managers have such limited superviso-
ry authority" it is illogical to conclude or assume that
those who are or act as assistant store managers are su-
pervisors within the meaning of the Act. Furthermore
Hendrickson's authority to direct the work of employees
by telling them to stock shelves or bag groceries does
not constitute authority to responsibly direct their work,
but rather constitutes routine directions given to employ-
ees comparable to those given by nonsupervisory lead
persons. In Smitty's Foods, 201 NLRB 283 (1973), a case
factually similar to the instant one, the Board sustained a
finding that the produce manager therein was not a su-
pervisor within the meaning of the Act. In Smitty's
Foods, supra, the produce manager punched a timeclock
and was responsible for approximately 10 employees at
thrun when no supervisory personnel were present. The
produce manager was, during those times, responsible for
"cashiers," "sacker-stock boys," "a delicatessen employ-
22 The record does not reflect exactly when or what brought about
Cupp's ouster from the store, nor is there any indication who else, if
anyone, may have been involved in the matter.
23 Other aspects of their limited authority is alluded to at various
points throughout this decision
ee," "a produce employee," "a meat department employ-
ee," and "a frozen food dairy department employee."
The produce manager in Smitty's Foods, supra, was re-
sponsible for seeing the work was done and everyone
kept busy. If business was slow in one area of the store,
he could move employees to other areas. For example,
when baggers were not needed at the front of the store,
he sent them to stock shelves or to work in the back of
the store. When business was slack throughout the store,
he could send excess help home. He simply asked for
volunteers and then sent them home. Finally, he was not
the only one who filled in when management representa-
tives were away from the store. It is clear from the
above that Hendrickson in the case sub judice performed
essentially the same functions that the produce manager
in Smitty's Foods, supra, performed. Inasmuch as the
Board concluded the produce manager in Smitty's Foods,
supra, was not a supervisor within the meaning of the
Act, I likewise conclude Hendrickson was and is not a
supervisor within the meaning of the Act.24
Although the Board upheld the judge's finding, relying
on Smitty's Foods, supra, that the night manager therein
was not a supervisor within the meaning of the Act it
did conclude the respondent therein was responsible for
the conduct of its nonsupervisory night manager. The
Board held the respondent in Schulte's IGA Foodliner,
supra, responsible for the acts of its nonsupervisory night
manager because it concluded the employees, store man-
agers, and store owners clearly understood the night
manager was "a member of management." The parties in
Schulte's IGA Foodliner, supra, had stipulated to an ap-
propriate bargaining unit that excluded the night manag-
er as a member of management. Thus, the Board con-
cluded it was reasonable for the employees in Schulte's'
IGA Foodliner, supra, to conclude the night manager
spoke for management. No such conclusion can be
drawn in the instant case. The evidence herein tends to
indicate the owners, store manager, and employees did
not regard Hendrickson as a member of management.
Hendrickson was not held out in the underlying repre-
sentation case to be a member of management. In fact,
Hendrickson was not mentioned by name nor was the as-
sistant store manager's position addressed in the underly-
ing representation case. Supervisory positions, however,
were addressed in the underlying representation case and
those filling such positions were excluded by name from
the bargaining unit. That employees knew Hendrickson
did not speak with authority on behalf of management is
evidenced by, among other things, the fact that any deci-
sions he made for management were subject to review
by Store Manager Milwee or the Parsons. Hendrickson's
direction of the work of others did not place him in a
position of being held out as a member of management.
It is clear Hendrickson directed the work of others. The
21 Counsels for the General Counsel's argument that if I do not find
Hendrickson to be va supervisor there will be periods of time when the
employees are unsupervised is without merit. The work performed is rou-
tine and the Parsons are in the stores daily and are always available via
telephone to give guidance to the employees. I note the Board in
Schulte's IGA Foodliner, 241 NLRB 855 (1979), upheld a judge's findmg
that the night manager therein was not a supervisor within the meanmg
of the Act.
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
directions he gave, however, were of a routine nature
that did not require any independent judgment on his
part. therefore, Hendrickson, at best, could only be con-
sidered as a conduit of work-related information and di-
rections from management to the employees. Acting as a
"conduit of information" for management is not enough,
without supervisory status, to establish vicarious liability
on the part of an employer. Knogo Corp., supra. Thus
any statements Hendrickson may have made during the
union campaign simply constituted mere opinions of an
employee about the effects of unionization and did not
violate the Act. Finally, counsels for the General Coun-
sel citing Aladdin Hotel, 270 NLRB 838 (1984), contend
that assistant store managers (such as Hendrickson) who
substitute for store managers on a regular, rather than
sporadic or infrequent basis, must be found to be supervi-
sors within the meaning of the Act. In Aladdin Hotel the
Board concluded that when substituting employees pos-
sessed the full extent of the supervisory authority that
the supervisors for whom they were substituting had,
and when they exercised that authority over bargaining
unit employees, they were supervisors within the mean-
ing of the Act. In Aladdin Hotel, the Board held that em-
ployees who substituted for supervisors on an average of
two times per month over a 3-month period of time did
so with enough frequency to qualify as statutory supervi-
sors. In the instant case Hendrickson filled in for Store
Manager Milwee with enough frequency to qualify as a
"supervisor by substitution," under the Aladdin Hotel ra-
tionale. Hendrickson, however, did not and does not pos-
sess supervisory authority in his regular job and because
he did not and does not possess the full extent of Mil-
wee's supervisory authority when he fills in for him he
cannot be found to be a statutory supervisor by substitu-
tion. "Mere substitution" standing alone, even if done
regularly, does not confer supervisory status on the sub-
stituting employee. In order to be a statutory supervisor
by substituting for one the substituting employee must
possess the full extent of the supervisory authority that
the substituted-for supervisor possesses. Accordingly,
Hendrickson's substituting for Milwee did not confer su-
pervisory status on him
Inasmuch as I have concluded that Hendrickson was
not and is not a supervisor within the meaning of the
Act, or that the Company is otherwise liable for his con-
duct or actions, I shall recommend that all complaint al-
legations related to him be dismissed.
B. The 8(a)(1) Allegations Involving Vice President
Parsons
It is alleged at paragraph 5(a) of the complaint that the
Company about 19 November acting through Vice Presi-
dent Parsons in the presence of General Manager Par-
sons, at its Baxter store: (i) advised an employee that if
he wished to work at a unionized facility he should pro-
cure work at an employer other than the Company; (ii)
threatened an employee that if the Company's employees
selected the Union as their collective-bargaining repre-
sentative, certain of the Company's facilities would be
closed; (iii) threatened an employee with replacement if
the Union ever established a picket line at the Compa-
ny's facilities in which the employee participated, with-
out explaining to the employee his right to be recalled to
work should his former position become available; and
(iv) threatened an employee with filing unfair labor prac-
tice charges against him for asking other employees
whether they would support the Union. It is also alleged
at paragraph 5(b) of the complaint that Vice President
Parsons at the Company's Baxter store: (i) about 26 No-
vember coercively interrogated an employee regarding
his union activity, impliedly threatened to discharge him
if he supported the Union in its attempt to become the
collective-bargaining representative of the Company's
employees and threatened to discharge him if he engaged
in any strike activity; (ii) about 1 December coercively
interrogated employees about their union sympathies and
assured them that they would not be discharged provid-
ed they voted against the Union; (iii) about 3 December
informed employees that the Company was going to rid
itself of a certain known union adherent; and (iv) about 9
December coercively interrogated an employee concern-
ing the filing of an unfair labor practice charge.
Before addressing the 8(a)(1) allegations I note it is un-
disputed that the Union began its organizing campaign at
the Company in the fall of 1986. All the 8(a)(1) allega-
tions are alleged to have taken place during that time-
frame.
Evarts store employee Enix25 testified he campaigned
for the Union during the fall of 1986. He said he wore a
union button, signed a union card, and asked certain of
his fellow workers to sign union authorization cards
while on the job. Enix asserts Store Manager Milwee
told him during the campaign he had been harassing em-
ployees about signing union cards," and if he did it
again he would be discharged Enix testified that a few
minutes after Milwee told him that he told him if he
heard of him doing anything like that again while on the
clock he would replace him According to Enix, later
that fall, Milwee, told him he would have to meet with
Vice President Parsons and General Manager Parsons at
the Company's Baxter store. Enix went to the Baxter
store where for the first time he met the two Parsons.
Enix stated "they" 27 first asked him if he had ever
worked for a particular competitor (Cas Walkers Super-
markets). Enix told them he had worked for that com-
petitor for approximately 10 years. They then asked and
he told them what his rate of pay had been at the com-
petitor. They also asked him about his pay rate at the
Company. Enix testified they also asked him about his
marital status and how he felt about the Union Enix said
he told them his father was a union man" who had been
injured in the coal mines and there was no way he could
turn his back on this Union because it was what he had
been brought up with Enix testified they told him that if
25 At the time of the trial herein Emx had been on medical leave from
the store for approximately 2 to 3 months
26 This incident is alleged as a violation of the Act and is discussed
elsewhere in this decision.
27 Elia did not indicate which of the two Parsons he was referring to
when he used the term "they."
" Enix's father, Gene Emx, who was not and is not an employee of
the Company served as a union organizer during the campaign and was
the individual who explained the pros and cons of unionism to the em-
ployees at union meetings held in employees homes.
MACK'S SUPERMARKETS 1091
the Union got in and if there was a strike he could stand
on the picket line all summer, fall, winter, and spring,
but if he did not leave the picket line and return to work
he would be replaced. Enix said they did not mention
anything about any recall rights he might have. Enix
stated they also told him if the Union came in, the Com-
pany would have to shut down the less efficient stores
and only operate their more productive ones because
they were barely able to stay afloat. Enix said they men-
tioned that A&P Supermarkets and Kroger's were able
to have unions and be competitive because they pro-
duced some of their own product lines. They told Enix if
he was looking for a union job those would be the places
where he should work. Enix said they mentioned the fact
he had the least seniority and if the Union came in he
would probably be the first employee to go. Enix testi-
fied he asked them about Store Manager Milwee's ap-
proaching him regarding employees being harassed. Enix
said they told him what he had done was against the law
and they could file unfair labor practice charges against
him for harassing a particular employee, but they had
chosen not to do so.
Vice President Parsons testified he had a cashier from
the Evarts store call him in a nervous and upset manner
complaining Enix was "aggravating" her to death by
telling her she would lose her job if she did not sign a
union authorization card. According to Parsons, the
cashier wanted to know if what Enix was telling her was
true. Parsons said he told her it was not and that he
would ask Enix to stop harassing her.29
General Manager Parsons acknowledged he and his
brother, Vice President Parsons, met with Enix at the
Baxter store during the union campaign. He said Enix
was apprehensive and a little hostile at the meeting be-
cause he did not want to talk to them. General Manager
Parsons said they called Enix to the Baxter store because
they had received several complaints he had been harass-
ing cashiers and other employees about the Union, and
they "wanted to caution him not to do that." Vice Presi-
dent Parsons stated he asked Enix why he wanted to
work at a unionized store, and why he did not go some
other place to work if he really wanted to be at a union-
ized store. Vice President Parsons said he told Enix what
might happen if the Union established a picket line at the
Company He testified:
I said that if you vote to have a strike, it's my un-
derstanding that I go to you all and I'd say "Report
back to work or I will have to replace you." "If
you come back to work, fine. If not, I understand I
have the right to replace you."
Vice President Parsons testified he told Enix (and the
other employees) that harassing employees on the job
would not be permitted. He denied threatening to file
unfair labor practice charges against anyone, or threaten-
9 9 Vice President Parsons stated the cashier's mother, who is also em-
ployed at the Evarts store, complained about Enix harassing her as well
as her daughter. Store Manager Milwee testified he also informed Vice
President Parsons and General Manager Parsons that there were com-
plaints that Enix was harassing employees about the Union
ing to layoff or discharge anyone, or that any of the
Company's stores would close.
I am persuaded that either version of the facts—Enix's
testimony that Vice President Parsons asked how he felt
'about the Union or Vice President Parsons' testimony
that he asked Enix why he wanted to work in a union-
ized store—related to the initial questioning of Enix by
Vice President Parsons violated Section 8(a)(1) of the
Act. The test for evaluating whether interrogations vio-
late the Act is whether under all the circumstances the
interrogation reasonably tends to restrain, coerce, or
interfere with employee rights guaranteed by the Act.
Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d
1006 (9th Cir. 1985) and Sunnyvale Medical Clinic, 277
NLRB 1217 (1985). In Sunnyvale Medical' Clinic, supra,
the Board outlined some areas of inquiry that may be
helpful in applying its "totality of the circumstances"
test. The areas of inquiry include, but are not limited to,
the background surrounding the questioning, the nature
of the information sought, the identity of the questioner,
and the place and method of interrogation. The question-
ing herein was of a known union adherent, however, it
was conducted by two of the three top officials of the
Company. It took place in one of the Company's offices
located at a separate facility from where the employee
being questioned normally worked. The interrogation
was accompanied by other statements that constituted
unlawful conduct on the part of the Company. Accord-
ingly, I find the Company, through Vice President Par-
sons, coercively interrogated Enix in violation of Section
8(a)(1) of the Act.
Vice President Parsons' remarks to Enix that if he
wanted to work in a unionized store why didn't he go
somewhere that was unionized were unlawfully coercive.
I find his inquiry into why Enix continued to work for
the Company if he wanted unionized employment consti-
tuted an implied threat of retaliation in violation of Sec-
tion 8(a)(1) of the Act. See Herb Kohn Electric Co., 272
NLRB 875 at 878 (1984), and Groves Truck & Trailers,
281 NLRB 1194 (1986).
Counsels for the General Counsel contend it was un-
lawful for Vice President Parsons to tell Enix he could
be replaced in the event of a strike without further tell-
ing him about his reinstatement rights. The Board in
Eagle Comtronics, 263 NLRB 515 (1982), held an em-
ployer does not violate the Act by informing employees
that in the event of a strike they may be permanently re-
placed, without at the same time informing them of their
preferential reinstatement rights. The Board held that
unless the statement of the employer may be fairly un-
derstood as a threat of reprisal, or is explicitly coupled
with such threats, it is protected by Section 8(c) of the
Act. The Board in Gaso Pumps, 274 NLRB 532 fn. 2
(1985), specifically indicated its continued adherence to
the teachings of Eagle Comstronics, supra. Therefore, in
the instant case, the issue of a violation of the Act turns
on whether Vice President Parsons' comments may be
fairly understood as a threat of reprisal and/or whether
they were explicitly coupled with such threats. If it is
found that either or both conditions exist, then his com-
ments would lose their 8(c) protection. I fmd his com-
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ments taken in context fall into both categories and as
such violated Section 8(a)(1) of the Act. Parsons' state-
ment came, as has been or will be discussed, in the con-
text of other threats, namely, of store closures, layoffs,
and other retaliations. In this context the employee in
question could reasonably have understood Parsons'
comments to have constituted a threat that if he partici-
pated in a strike against the Company he would lose his
job permanently.
It is necessary to make certain credibility resolutions in
order to decide portions of the remaining allegations in-
volving Vice President Parsons.
The two Parsons and Enix testified about their meet-
ing in a candid manner with no indications, based on de-
meanor, that would warrant my crediting one version of
the facts over the other. I am, however, persuaded
Enix's version is more probable than the Parsons' ver-
sion Enix testimony that Vice President Parsons said if
the Union came in the Company would have to close its
less efficient stores and only operate its more productive
ones, and that Enix, as the least senior employee, would
probably be the first one laid off, is not inconsistent with
more generalized admissions made by Vice President
Parsons. For example, Vice President Parsons acknowl-
edged he had discussed his opinion of the effects of
unionization with the employees. His opinion, that he
discussed with the employees, was that if the Union
came in there was a possibility wages and benefits would
go up and if that happened prices would have to increase
accordingly. If prices increased the Company would lose
customers and be less competitive which might result in
the need for fewer employees and possibly result in lay-
offs. He acknowledged he also expressed his opinion that
if the Union came in the Company might have to close
its less productive stores. Furthermore, the campaign ma-
terials the Company mailed to its employees concerned
store closings at unionized grocery facilities. Thus, I fmd
it is highly probably that since Vice President Parsons
discussed the effects of unionization as outlined above
with other employees that he availed himself of the op-
portunity to do so on this occasion with Enix. Inasmuch
as I have credited Enix's version of the Baxter store
meeting, I find Vice President Parsons' comments about
store closures and layoffs violated the Act. See William-
son Memorial Hospital, 284 NLRB 35 (1987), I reject the
Company's contention that any comments made by Vice
President Parsons about the effects of unionization at the
Company were within the permissible guidelines outlined
in NLRB v. Gissel Packing Co., 395 U.S. 575 (1965). Vice
President Parsons' expressed opinions and predictions
concerning the impact of unionization at the Company
would only have been protected if he had based his pre-
dictions on objective facts. The evidence clearly demon-
strates he failed to meet the stringent requirements of
Gissel, supra, regarding the effects of unionization at the
Company. His comments that his major competitors in
the area, A&P Supermarkets and ICrogers, produced
their own product lines and, as such, were better able to
afford unionization and remain competitive simply does
not constitute the objective type facts contemplated by
the Court in Gissel, supra. Neither does relying on news-
paper articles detailing the closing of certain unionized
Kroger stores constitute such objective facts.
With respect to the remaining portions of the Baxter
store meeting, I find Enix raised with the two Parsons
the matter of Store Manager Milwee's accusing him of
harassing employees about the Union. It was this subject
matter that admittedly brought about the meeting in the
first place. The two Parsons were very concerned about
and interested in having Enix stop any such conduct.
Thus, I find Vice President Parsons told Enix that what
he had done was against the law and they could file
unfair labor practice charges against him, but had chosen
not to do so. An employer's threat to file charges against
an employee can violate the Act. See, e.g., Consolidated
Coal Co., 266 NLRB 670 at 675-676 (1983), Interstate
Food Processing Corp., 283 NLRB 303 (1987), and the
cases cited therein. See also Thomas Steel Co., 281
NLRB 389 (1986). I do not interpret Vice President Par-
sons' comments, however, to constitute a threat to file
unfair labor practice charges against Enix. Quite to the
contrary, Parsons specifically told Enix the Company
had decided not to file any such charges against him
Accordingly, I recommend that portion of the complaint
relating to Parsons' threatening to file unfair labor prac-
tice charges against Enix, as set forth in paragraph
5(a)(iv), be dismissed.
Employee Noe, an 8-year stockclerk at the Baxter
store, testified Vice President Parsons talked to him
during the campaign in his office about the Union. Noe
stated Parsons told him A&P Supermarkets and Krogers
were connected with the Mafia and for him to vote "no"
on the Union. Noe also said Parsons told him if he voted
no he would not get fired and added if the Union did not
get 500 members it would, not represent the employees.
Noe testified that at some point after the 2 December
Board-conducted election that he overheard Vice Presi-
dent Parsons say while pointing at him at the front of the
store that he would be the next employee the Company
would get rid of. Noe stated Parsons made that comment
to cashiers Della Loveday and Sandy Robbins.
Noe was a reluctant, unsure, nervous witness who
only acknowledged some matters after being confronted
with portions of some of his pretrial Board affidavits.30
He was unwilling to adopt portions of his pretrial state-
ments. He acknowledged on cross-examination that some
of what was contained in his 26 December affidavit was
not true, and that he made the statements therein just be-
cause he wanted to get out of all the commotion that
was going on and be free of everything. He further ac-
knowledged on cross-examination that he had been per-
suaded to file unfair labor practice charges against the
Company on matters some of which he guessed were
untrue. After carefully observing Noe testify and after
considering his apparent willingness to disregard the
truth, I am unwilling to give credence to or place any
reliance on his testimony to support any allegations in
the complaint. Accordingly, I shall recommend that any
3° Noe either gave sworn statements to or prepared memorandums for
the Board on 23 October, 20, 24, and 28 November, and 1 (two memo-
randums), 2, and 3 December (two memorandums). He gave sworn state-
ments to the Company on 17 and 26 December.
MACK'S SUPERMARKETS 1093
portions of paragraphs 5(a) and (b) of the complaint that
would be supported by his testimony alone be dismissed.
Assistant Produce Manager Gibson, 31 a 6-year em-
ployee at the Baxter store, testified he attended three
union organizing meetings held at employees homes and
served as an observer for the Union at the Board-con-
ducted election on 2 December.
Gibson stated that in late November he had a conver-
sation with Vice President Parsons, in Parsons' office,
about the Union. According to Gibson, Meat Depart-
ment Supervisor Paul Ball was present during some of
the conversation. 32 Gibson stated Parsons told him he
was aware that he was unhappy working for the Compa-
ny. Gibson told Parsons he was not unhappy working
for the Company, that he enjoyed working with people,
but he was unhappy with the wages he was receiving.
Parsons told Gibson he wished he could give the em-
ployees a raise, but they made more money the previous
year than he did. Parsons asked Gibson what the Union
could do for him and then answered his own question by
telling Gibson it could not do anything for him. Gibson
testified Parsons told him he had given him his job and
noted that,. "whosoever giveth can taketh away." Par-
sons told Gibson, "You need to think about what's good
for the Company. A no vote would help the Company
and secure your job." Gibson said Parsons then showed
him a paper that outlined the Union's expenses and how
it spent its money. Parsons then told Gibson that if the
Union came in and if there was a strike he could replace
him if he did not come back to work after being asked
and Gibson would then be out of a job.
Gibson asserts that immediately after, but on the same
day as the Board-conducted election, he was told by
General Manager Parsons that he would no longer be al-
lowed in the store until it opened. Gibson contends that
change resulted in a reduction of work hours for him. As
a result of Gibson's contentions additional unfair labor
practice charges were filed against the Company.33
Gibson testified that after the additional charges were
filed Vice President Parsons came to the produce depart-
ment and told him he was aware Gibson had filed an
unfair labor practice suit against the Company. Gibson
acknowledged he had. Parsons told Gibson he had better
not perjure himself, because if he lied he would file
charges against him.
Vice President Parsons denied coercively interrogating
any employee. He also denied ever threatening to dis-
charge any employee for supporting the Union. He
stated he never assured any employee that the employee
would not lose his or her job if they voted against the
Union. Parsons did acknowledge discussing with the em-
ployees what might happen if the Union established a
picket line at the Company. He said he told the employ-
ees that if they went on strike and did not return to
31 There is no contention that Gibson is or was a supervisor within the
meaning of the Act. He is, as reflected elsewhere in this Decision, alleged
as a discriminatee by counsels for the General Counsel.
32 Ball's status is not in issue in this proceeding. I note he was found
not to be a supervisor in the underlying representation case. Ball did not
testify herein
33 The allegations pertaining to an alleged reduction in hours of work
for Gibson is addressed elsewhere in this Decision.
work when he asked them to he could replace them.
Parsons denied he ever threatened to file unfair labor
practice charges against any employee because of the
employee's support for the Union. Parsons specifically
denied ever threatening Gibson with a reduction in
hours, layoff, or discharge because he supported or was
suspected of supporting the Union.
Both Vice President Parsons and Gibson were pleasant
witnesses. Gibson, however, seemed to be more thought-
ful, conscientious, and believable. Accordingly, I credit
his account of his conversations with Parsons.
The first question to be considered is whether Vice
President Parsons' comments, as testified to by Gibson,
constituted unlawful interrogation. Applying the "totali-
ty of the circumstances" test to the instant facts I am
persuaded Parsons' questioning Gibson about what the
Union could do for him had a reasonable tendency to
interfere with, restrain, and coerce Gibson in the exercise
of rights guaranteed by the Act and as such violated
Section 8(a)(1). First, Vice President Parsons was a top-
level management official who was not Gibson's direct
supervisor. Second, the questioning took place in the
store offices as opposed to Gibsons work area. Third, the
questioning took place in the context of Parsons telling
Gibson he knew he was unhappy working for the Com-
pany and his comments were of a nature that he knew
were likely to illicit a response from Gibson revealing his
overall union sentiments. Fourth, Vice President Parsons'
questioning of Gibson about his union sentiments took
place in the context of other unlawful threats and prom-
ises. For example, Parsons pointed out to Gibson it was
he who had given Gibson his job and he could take it
away. That comment clearly constituted a threat to dis-
charge Gibson if he supported the Union. Further, Vice
President Parsons' comment to Gibson that he could
secure his job if he voted against the Union violated the
Act. Vice President Parsons also told Gibson that if
there was a strike he could replace Gibson and he would
be out of a job. As is noted elsewhere in this decision, an
employer does not violate the Act by informing employ-
ees that in the event of a strike they may be permanently
replaced without further telling them of their preferential
reinstatement rights, unless the employer's comments
may be fairly understood as a threat of reprisal, or the
comments are explicitly coupled with such threats. I am
persuaded and find, Vice President Parsons' comments
about strike replacements lost their 8(c) protection be-
cause they came in the midst of other unfair labor prac-
tices such as the threat to discharge Gibson if he sup-
ported the Union.
Next, I turn to the question of whether Vice President
Parsons' December comments to Gibson, about the
unfair labor practice charge that had been filed on Gib-
son's behalf, violated the Act. Parsons told Gibson he
knew about the unfair labor practice charge and advised
Gibson not to perjure himself, because if he lied he
would file charges against him
Considering the fact Vice President Parsons' com-
ments came in conjunction with other unlawful state-
ments that I find he made, it is reasonable to conclude, as
I do, that his threat to file charges against Gibson was
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the purpose of harassing and intimidating him in the
exercise of his rights guaranteed by the Act, and as such
violated the Act. Consolidation Coal Co., 266 NLRB 670,
675-676 (1983). Cf. Interstate Food Processing Corp., 283
NLRB 303 (1987), and the cases cited therein (1987).
There is nothing in the record that would indicate
Gibson had in the past or would in the future commit
perjury. In fact, nothing was advanced that would in any
way justify Vice President Parsons' remarks about the
unfair labor practice charge."
C. The 8(a)(1) Allegations Involving General Manager
Parsons
It is alleged at paragraph 5(c) of the complaint that the
Company acting through General Manager Parsons at its
Baxter store: (i) about 26 November threatened an em-
ployee that the Company would impose more onerous
working conditions on employees and would lay off
and/or discharge many of them if they selected the
Union as their collective-bargaining representative; (ii)
about 28 November threatened an employee that if the
Union was successful in its organizing campaign the
Company would close its operations;33 and (iii) during
the latter part of October threatened employees that if
the Union was successful in its organizing campaign the
Company would cease operations or reduce its employ-
ees hours."
Former employee Cusick" worked at the Evarts store
from August 1981 until early November 1986. He par-
ticipated in the Union's campaign at the Company by:
signing a union card; attending approximately 13 to 15
union meetings (about half of which occurred before
early November); asking other employees to sign union
cards and/or to support the Union, giving employees
baseball type union caps and union buttons; and by wear-
ing a union hat and button in the store at times when he
was not working. It is uncontested that Cusick openly
supported the Union. Cusick testified General Manager
Parsons had not spent much time at the Evarts store
until the union campaign started, but after that he came
there on a daily basis. Cusick stated that in approximate-
ly the first week of October General Manager Parsons
came to the stockroom at the Evarts store and told him
and employees Glen Brock and Raymond Earl Hayes
that:
. . he tried to create employment for the young
people in Harlan County, and said if we chose this
union that he couldn't—wouldn't be able to survive,
34 I recognized that the complaint allegation on this particular matter
dealt with interrogation of an employee concerning the filing of an unfair
labor practice charge, however, the findings I have made herein are more
in keeping with the fully litigated facts.
35 I note in par. 5(c)(ii) what appears to be a typographical error. It is
alleged that if the Company is successful in its organizing campaign then
the Company would close its operations. I am persuaded the complaint
allegation was intended to read, if the Union was successful in its orga-
nizing campaign the Company would then close its operations.
36 I grant counsels for the General Counsel's unopposed motion to
correct as a labeling error par. 5(b)(iii) in the third consolidated amended
complaint to read 5(c)(iii)
37 The allegations pertaining to and the facts surrounding Cusick's em-
ployment status with the Company are set forth elsewhere in this deci-
sion
that he would either have to close the store or cut
hours.
General Manager Parsons testified he expressed his
opinion that a union was not needed at their small com-
pany that it would not be good for the Company or the
employees. He denied threatening anyone that the Com-
pany would close any portion of its operations if the
Union was successful in its campaign and he said he
never threaten any employees they would be discharged,
laid off, or have their hours of work reduced if they sup-
ported the Union.
I note the following with respect to the issue of
whether any such meeting between Cusick, Brock,
Hayes, and General Manager Parsons took place. It is
clear General Manager Parsons attempted to express his
views on the effects of unionization to "all . . . employ-
ees at one time. . . or other." Parsons was present when
his brother, Vice President Parsons, made certain com-
ments I have found violated the Act. Notwithstanding
the above, I fmd counsels for the General Counsel failed
to establish that the meeting in question took place.
Cusick in his testimony exhibited an undertone of anger
toward the Company that seriously detracted from his
overall credibility. Simply stated he harbors a strong bias
against the Company. As is discussed elsewhere in this
decision, I have concluded he misspoke the truth when
he denied making a statement to employee Cooper, that
Cooper understood to be a threat against Store Manager
Milwee. Accordingly, I am unwilling to credit Cusick's
uncorroborated testimony outlined above. The two other
employees Cusick claimed were present at the meeting
with General Manager Parsons did not testify.
I shall, therefore, recommend those portions of com-
plaint paragraph 5(c) that counsels for the General
Counsel rely on Cusick's testimony to establish be dis-
missed. 3 8
Employee Noe testified he had a conversation with
General Manager Parsons alone in Parsons' office in late
November. Noe said Parsons told him:
[If] the Union did get in, that they couldn't pay
Union wages and they would probably have to lay
off some and probably fire us. And. . . if there was
a strike he would probably . . . replace us with
some more workers and he wouldn't have to pay
Union wages.
Noe could not recall General Manager Parsons saying
anything about any reinstatement rights the employees
might have.
General Manager Parsons denied ever telling Noe, or
any other employee, that they would be laid off or dis-
charged if they selected the Union as their bargaining
representative.
For the reasons discussed elsewhere in this decision, I
am unwilling to place any reliance on the uncorroborat-
38 I note that the actions described in par 5(c) were alleged to have
taken place at the Baxter store. Cusick's testimony, if it had been cred-
ited, placed the location as the Evarts store.
MACK'S SUPERMARKETS 1095
,
and when they "acted" like they did not, he discussed
with them the contents of a company booklet on the
Union. The Company had mailed the booklet in question
to all its employees. Pace testified:
He said. . . if this Union gets in—all [it] was want-
ing was the money. And he was quoting about fees
and dues that we'd [have] to pay to the Union and
if the Union got in we might—fulltime might have
to go parttime and we might have to lose hours or
something. And he said the Union. . . couldn't get
us a pay raise.
ed testimony of Noe to establish any allegations in the
complaint.
Inasmuch as counsels for the General Counsel failed to
present any credible evidence with respect to the allega-
tions contained in paragraph 5(c) of the complaint, I rec-
ommend that paragraph be dismissed in its entirety.
D. The 8(a)(1) Allegations Involving Evarts Store
Manager Milwee
It is alleged at paragraph 5(e) of the complaint that the
Company acting through Store Manager Milwee at its
Evarts store: (i) about 30 September threatened the
Evarts store employees that if they selected the Union as
their collective-bargaining representative, full-time em-
ployees would be reduced to part-time status and em-
ployees would otherwise have their hours of available
work reduced; (ii) about 31 October (A) threatened em-
ployees that if they selected the Union as their bargain-
ing representative a number of employees would be laid
off; (B) threatened employees that if they selected the
Union as their collective-bargaining representative the
Evarts store might close, (C) threatened employees that
if they selected the Union as their collective-bargaining
representative full-time employees would be reduced to
part-time status, and (D) informed employees that if the
Evarts store was to remain open the employees would
have to keep the Union out; (iii) about 2 November
threatened to discharge an employee for attempting to
induce other employees to sign union authorization
cards; (iv) about 2 November ordered an employee to
stop soliciting other employees to sign union authoriza-
tion cards and threaten to discharge him if he continued
to do so; (v) about 3 November (A) threatened to dis-
charge an employee if he continued to talk to other em-
ployees about the Union as part of his effort to get them
to sign union authorization cards, (B) coercively interro-
gated an employee regarding his support for the Union,
(C) threatened to discharge employees if the Company's
employees selected the Union as their collective-bargain-
ing representative, (D) threatened to reduce employees
to part-time status if they selected the Union as their col-
lective-bargaining representative, and (E) threatened to
close the Evarts store if the employees selected the
Union as their collective-bargaining representative; (vi)
at various dates during October and/or November coer-
cively interrogated employees regarding their own and
other employees' union activities; (vii) during the latter
part of October threatened to discharge employees for
engaging in union activities; (viii) about 20 November or-
dered an employee to remove a union cap or face dis-
charge; (ix) during December impliedly threatened an
employee with more onerous working conditions if the
Union was successful in its organizing campaign and ad-
monished an employee for statements he allegedly made
during a union meeting; and (x) during the latter part of
December advised an employee that he would be treated
more favorably because he opposed the Union.
Johnnie Lee Pace (J. Pace), a 2-year Evarts employee,
testified Store Manager Milwee talked on 30 September
with him and Tim Johnson (T. Johnson) in the drink bot-
tles stock area about the Union. According to Pace,
Milwee asked if they knew anything about the Union
Although T. Johnson was unable to recall in detail the
conversation in question, he did corroborate J. Pace's
testimony in certain essential aspects.
Store Manger Milwee said he was given instructions
about how to conduct himself during the union cam-
paign. He stated he was specifically told not to question
employees about the Union and he asserts he followed
those instructions. He, however, acknowledged talking
about the Union with his employees. He testified, "I
went to them and expressed my opinion what I thought
about the Union . . . and [they] expressed their opinion
back to me." Milwee denied threatening employees that
if they chose to be represented by the Union the full-
time employees would be reduced to part-time status or
their work hours would be reduced.
J. Pace and T. Johnson both appeared to be telling the
truth to the extent they could recall what had been said
in their meeting with Milvvee. Nothing was advanced
that might suggest that these two disinterested current
employees had any reason to misstate the truth regarding
what their store manager said to them on 30 September.
Accordingly, I credit their testimony as outlined above.
Under all the circumstances, I find Milwee's asking J.
Pace and T. Johnson if they knew anything about the
Union constituted coercive interrogation that reasonably
tended to restrain or interfere with their rights guaran-
teed by the Act. Store Manager Milwee, the highest
management official at the Evarts location, sought out
the two for questioning. There is no showing that these
two employees had previously expressed their views one
way or the other about the Union. Furthermore, Milwee
not only questioned them about the Union but he, as al-
leged, threatened them with a loss of full-time employ-
ment and/or a loss of available hours of work if they
supported the Union.
T. Johnson testified that he, Eddie Johnson (E. John-
son, no relation), and an employee named Roe were sit-
ting outside the Evarts store offices when Store Manager
Milwee asked them if they had heard any talk about the
Union. They told Milwee they had not. According to T.
Johnson, Milwee said if the Union came in, the Company
might have to lay off or fire employees or they could
even shut the store down, but he did not think General
Manager Parsons and Vice President Parsons would do
that. T. Johnson asserts Milwee then talked about a new
competitor that was opening nearby and said the em-
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees would have to keep the Union out for the Com-
pany to survive.39
Store Manager Milwee acknowledged talking to T.
Johnson and Roe about the Union. He said he told them
if the Union came in it would hurt the Company and it
was his opinion they should vote against the Union. He
denied telling them that if the Union came in full-time
employees might be reduced to part-time work. As has
been noted elsewhere in this decision, Milwee denied
ever threatening employees that if they selected the
Union as their representative they would be laid off or
the store would close. Milwee also denied telling em-
ployees that in order to keep the store open the Union
would have to be kept out.
There is no dispute Milwee talked with T. Johnson
and Roe about the Union. I am persuaded E. Johnson
was also present. I find Milwee said more to them than
he acknowledges. On the basis of his demeanor and the
full record I am convinced T. Johnson testified truthfully
about the conversation he and the other two had with
Milwee. Milwee, while acknowledging certain facts, was
generally unimpressive as a witness. It is a clear violation
of the Act for a supervisor to threaten, as I fmd Milwee
did, that employees might be laid off and/or the store
might close if the Union came in. The coercive nature of
his statements are not lessened by the fact he told the
employees that this "might" happen. It is likewise clear
that Milwee violated the Act when he told the employ-
ees in question they would have to keep the Union out in
order for the store to survive. Milwee's initial question-
ing of the employees about the Union was coercive inas-
much as it was accompanied by the threats found above.
Cusick testified that in approximately mid-October, he
and employee Rick Poteet (Poteet) were in the stock-
room when Milwee just walked in and said, "If anybody
mentions a union, they're fired." Although Poteet was
called as a witness by counsels for the General Counsel
he was not asked about any conversation between him-
self, Cusick, and Store Manager Milwee. Milwee denied
threatening to discharge any one for their union activi-
ties.
Although I found Milwee to be an unimpressive wit-
ness, I found Cusick to be an unbelievable one. Accord-
ingly, I do not credit his uncorroborated testimony out-
lined above.
Employee Enix testified he asked his fellow workers
to sign union authorization cards during the campaign.
He said that sometime during the fall Store Manager
Milwee told him he had been harassing employees about
the Union and about signing union cards. Milwee told
Enix he knew his rights and if he did it again he would
be discharged.4 ° According to Enix, about 3 or 4 min-
utes later Milwee told him if he heard of him doing these
type things again on the clock he would replace him.
Store Manager Milwee testified Enix asked cashiers to
sign union cards while they were working. Milwee said
two of the cashiers complamed and he told Enix to "stop
campaigning while on the job, and [to stop] harassing
39 In essential aspects E. Johnson corroborated T Johnson's testimony
Roe was not called to testify.
49 E. Johnson's testimony generally supported Enix's on this point.
[the employees]." Milwee talked to General Manager
Parsons and Vice President Parsons about the situation
involving Enix, and they told him to warn Enix if he did
it again disciplinary action would be taken against him.41
Vice President Parsons said he had received com-
plaints from at least two cashiers at the Evarts store, that
they had been "aggravat[ed]" about joining the Union
with one of them saying she had been "harass[ed]" while
attempting to check groceries for a customer. Parsons
testified the Company adopted a no-solicitation rule. The
rule adopted was that employees could not discuss the
Union or attempt to persuade each other about the
Union while on worktime. Vice President Parsons said
the Company had never needed a no-solicitation rule
before that time because there had never been any prior
union activities at the Company. He stated the rule was
also adopted because it was economically wasteful to
have employees talking about things other than selling
groceries or taking care of customers. He said that al-
though there had been no prior union activities at the
Company there had been a long history of violence and
bloody labor-management relations in the Harlan, Ken-
tucky area that dated back to the 1930s. He said the local
community was very polarized and because of that fact it
had been a policy of the Company not to get involved in
local labor disputes.
First, I credit Vice President Parsons uncontradicted
testimony that the no-solicitation rule adopted by the
Company during the union campaign was that employees
could not discuss the Union or attempt to persuade each
other about the Union while on worktime. The Board in
Our Way, Inc., 268 NLRB 394 (1983), returned to the
standards set forth in Essex International, 211 NLRB 749
(1974), regarding the presumed validity of no-solicitation
rules. The Board in Our Way, Inc., supra, held that a no-
solicitation rule using the term "working hours" was pre-
sumptively invalid while one using the term "working
time" was presumptively valid, because the latter term
connotes only periods when the employees are perform-
ing actual job duties. The rule herein, standing alone, ap-
pears to be presumptively lawful. An otherwise valid
rule violates the Act, however, when it is promulgated
to interfere with the employees right to self-organization
rather to maintain production and discipline. Harry M.
Stevens Services, 277 NLRB 276 (1985), enfd. 793 F.2d
1288 (5th Cir. 1986). The question herein becomes, was
the Company unlawfully motived when, during the
union campaign, Vice President Parsons announced the
restrictions he did. I find he was unlawfully motivated in
doing so. First, the union campaign was very active. Em-
ployees were attending union meetings, attempting to
wear union hats and buttons, and there was considerable
talk both among the employees and management about
the Union. Second, the Company, particularly Vice
President Parsons, was hostile to the employees' organi-
zational efforts. Third, the Company during this same
period allowed its head cashier to solicit signatures from
employees on an antiunion petition even while some of
41 Milwee stated he told the employees at the Evarts store they were
not to talk about union activities or solicit union cards or do anything of
that nature while on the job.
MACK'S SUPERMARKETS 1097
them were working. 42 Thus, I am persuaded the Compa-
ny did not institute its no-solicitation rule in order to
maintain production or discipline. That it did not insti-
tute the rule in order to maintain discipline or production
is evidenced by the fact only two complaints of harass-
ment were made out of a work force of approximately
128 employees." One of the two complaints involved
matters that took place away from the store. I find the
Company's purpose in promulgating the rule in question
was to interfere with its employee's right to self-organi-
zation and as such violated Section 8(a)(1) of the Act
See Hunter Douglas, 277 NLRB 1179 (1985), enfd. 804
F.2d 808 (3d Cir. 1986). 44 Not only was the rule initiated
to interfere with the employee's right self-organization, it
was, as shown above, disparately enforced and invalidly
implemented. That the rule was disparately enforced is
demonstrated by the fact head cashier Owens was al-
lowed to solicit employees while they were working to
oppose the Union without any adverse action being
taken against her." Store Manager Milwee invalidly im-
plemented the Company's no-solicitation rule by telling
employee Enix he could not solicit for the Union while
"on the clock" or "on the job." Both of these terms con-
note periods from the beginning to the end of work
shifts, periods that include employee's own time. In fact
Milwee told Enix he would be fired if he solicited em-
ployees on the clock or on the job. Such a warning,
given in conjunction with the invalid implementation of
a valid no-solicitation rule, constitutes an unlawful threat
to discharge Enix and I so find.
Two-year Evarts employee Charles Soloe (Soloe) tes-
tified that in either August or September he was alone in
the stockroom when Milwee asked him what he thought
about the Union. Soloe told MiIwee it would be nice to
get a pay raise but he had heard the Parsons did not give
raises. According to Soloe, Milwee responded that the
Union was backed by the Mafia and all they wanted was
$25 per month in union dues. Milwee told Soloe he
would take it. Soloe was for the Union by the way he
talked. Soloe told Milwee there was a possibility he was
for it. 4 6
Soloe testified that at some point prior to early No-
vember he went into Milwee's office to look for a list of
items that was to go on sale but found instead a list that
indicated which employees were for and against the
Union. Soloe took the list to the bathroom and copied it.
42 Owens acknowledged soliciting signatures from her fellow workers
at times when they were performing their Job duties
43 According to Parsons, at the time of the campaign the Company
employed approximately 30 employees at its Evarts store, 62 at its Baxter
store, 22 at its Harlan store, and 14 at its commissary convemence store I
note 126 employees voted in the Board-conducted election
44 As noted earlier in this decision, it appears certam complaint allega-
tions overlapped others. I consider the above not only mcludes the alle-
gations contained in par 5(d) of the complaint, but it also includes the
allegations contained in pars 5(h)(1) and (n)
45 I find it is unnecessary to my finding of disparate application of the
rule to discuss whether the Company allowed other solicitations of a po-
litical nature to take place during working time without any actions being
taken by management against those doing so.
46 Soloe said that although he subsequently wore a baseball type umon
cap in the store, he had not, at the time Milwee spoke with him, done
anything to indicate his sentiments for or against the Union.
Former employee E. Johnson testified Store Manager
Milwee asked him if he thought the "front boys" were
against the Union. He told IVIilwee he thought they
were. E. Johnson further testified that sometime later in
the campaign Milwee asked him if he had gone to a
union meeting. E. Johnson told Milwee he had. Milwee
then commented he thought E. Johnson was against the
Union. E. Johnson said he had been but his father had
talked with him
Employee Poteet testified that sometime between
August and November Store Manager Milwee ap-
proached him in the stockroom and asked how he felt
about the Union. Poteet told Milwee lie thought it was
stupid. 4 7
Milwee acknowledged having a list in his office of
those he thought were for and against the Union, but he
added it was for his own information and for the purpose
of trying to see how the vote would go at the Evarts
store. Milwee denied questioning employees about their
union sympathies or asking how they were going to vote
in the union election, or of telling employees he thought
they were against the Union.
I credit Soloe's, E. Johnson's, and Poteet's testimony
as set forth above. It is clear Milwee had a keen interest
in knowing which of his employees were for or against
the Union. His preparation of a list to that effect demon-
strates such interest. It is, therefore, highly probable, and
I fmd that he asked Soloe, E. Johnson, and Poteet about
their union sympathies, and in E. Johnson's case about
the union sympathies of others. Neither Soloe, E. John-
son, or Poteet had expressed their views on the Union
prior to the time Milwee questioned them. Milwee is, as
previously noted, the highest management representative
at the Evarts store. When Milwee did not get a clear
answer from Soloe about his feelings toward the Union
he pressed further telling Soloe he would take it Soloe
was for the Union. Milwee knew his comment would in
all likelihood cause Soloe to reveal his union sympathies.
Under these circumstances, I fmd Milwee's questioning
of Soloe, E. Johnson, and Poteet had a reasonable tend-
ency to interfere with, restrain, or coerce them in the ex-
ercise of their Section 7 rights and as such violated Sec-
tion 8(a)(1) of the Act.
Employees J. Pace, T. Johnson, and Cusick 48 testified
that prior to the union's campaign most employees wore
baseball type caps at work. J. Pace stated there had been
no rule against wearing such caps. He credibly testified
he had even worn, at work, a baseball type cap that
noted his support for a local candidate for sheriff. T.
Johnson credibly testified" that after various employees
(J. Pace Soloe, Enix, and Cusick) commenced to wear
prounion baseball type caps at or near the Evarts store
the Company posted a notice next to the employee's
timeclock that contained the following paragraph:
47 Poteet said he had not done anything to demonstrate his feelings
one way or the other toward the Union prior to the time Mdwee talked
with him about it.
" I have considered Cusick's testimony on this pout only because it
was corroborated by others.
49 His testimony on this point was corroborated by that of E Johnson,
J. Pace, and Enix.
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(5) Political buttons, caps, and signs are not to be
worn or posted inside or outside of the stores.5°
J. Pace credibly testified that during the union cam-
paign he wore a prounion hat into the store and after he
started work, Store Manager Milwee told him "If you
want to continue working here, remove your hat." Ap-
proximately 20 minutes later Milwee told him, "You
can't wear that hat here. It promotes the Union. If
you're going to keep on wearing it, check out and go
home." J. Pace said he could not afford to miss a day's
work so he took off his prounion cap as requested.
Store Manager Milwee acknowledged he told employ-
ees they could not wear prounion hats in the store. He
said he did so because he felt it would affect some cus-
tomers. Milwee and Vice President Parsons both said the
issue of unionization was a very volatile one in the
Harlan, Kentucky area. Vice President Parsons testified
the restrictions on the wearing of union caps were initiat-
ed in order to be fair to its customers, whom he feared
might be turned off by the hats, and quit shopping at the
Company.
The right of employees to wear insignia for a union
while working has long been held to be activity protect-
ed by Section 7 of the Act, Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945). A company may, however,
limit or band the wearing of insignia for a union at work
if "special circumstances" exist. See, e.g., Page Avjet
Corp., 275 NLRB 773, 776, (1985). Special circumstances
exist if a company can, for example, show by substantial
evidence that the wearing by its employees of insignia
for a union affected its business or was necessary to
maintain employee discipline. In this regard, a determina-
tion must be made whether the claimed special circum-
stances outweighs the adverse impact on employees' or-
ganizational rights that a company's limitation or band
on the wearing of such insignia has. Alert Medical Trans-
port, 276 NLRB 631, 662 (1985). Mere contact with cus-
tomers is not a basis for barring the wearing of insignia
for a union, Burger King Corp., 265 NLRB 1507 (1982),
enf. denied 725 F.2d 1053 (6th Cir. 1984). Likewise, the
pleasure or displeasure of a company's customers does
not determine the lawfulness of employee rights under
the Act to wear insignia for a union, Howard Johnson
Motor Lodge, 261 NLRB 866 at 868 fn. 6 (1982). The ex-
istence of "special circumstances" that would justify a
limitation or band on employees wearing insignia for a
union while in contact with the general public would not
justify a limitation or band which, on its face, extended
beyond such periods.
5° It is alleged at pars 5(j)(1) and (n) that.
(i) During the latter part of November, a more precise date being
currently unknown to the undersigned, the Company instituted a
rule prohibitmg employees from wearing caps with certain types of
slogans at work, (ii) The Company did not previously have a rule
prohibiting employees from wearing caps of any sort at work and
promulgated the rule referred to above m paragraph (t) in order to
discourage Its employees from Joining, supporting or assisting the
Union and engaging in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection
I am treating these allegations at this point in the decision because they
are related to and overlap the allegations set forth in par. 5(d)(vni) of the
complaint
In the instant case, the Company's rule prohibiting the
wearing of political insignia (caps) had its inception be-
cause of its employees union activities. The evidence
overwhelmingly demonstrates the rule was instituted
only after the union organizing campaign had gotten un-
derway and after employees had begun to wear baseball
type caps in support of the Union. Traditionally, the em-
ployees had worn a variety of baseball type caps, includ-
ing caps in support of local politicians. It is obvious, and
I find, the Company instituted the rule in question in
order to discourage its employees from joining, support-
ing, or assisting the Union. Furthermore, the rule is
overly broad. It bands the wearing of political insignia
"inside or outside of the stores." The prohibition on
wearing such insignia "outside the stores" is limitless. No
reasonable reading of the rule could cause one to con-
clude the band was limited to times or places where em-
ployees might likely be in contact with customers. Even
if the rule had not had its inception in union activities,
and even if it had not been overly broad, it still would
not have been justified. The Company failed to demon-
strate the existence of any special circumstances that
would have warranted the band. Mere speculation by
Vice President Parsons that the Company might poten-
tially lose customers if its employees wore insignia for
the Union does not establish the requisite "special cir-
cumstances" that would justify a band of such insignia.
There is no showing that any customers had complained
about employees wearing prounion caps nor is there any
contention the employees were not projecting a profes-
sional image by wearing the insignia in question. For that
matter, the employees were never told the band on polit-
ical caps was so they would project a professional ap-
pearance, but rather, as was the case with employee J.
Pace, they were told it was because the caps promoted
the Union.
Accordingly, I find, as alleged in the complaint, that
the Company violated Section 8(a)(1) of the Act when
Store Manager Milwee ordered employee J. Pace under
the threat of discharge to remove his prounion baseball
type cap. See Armon Co., 279 NLRB 1242 (1986). I also
find the Company violated Section 8(a)(1) of the Act
when, during the union campaign, it instituted its unlaw-
fully motivated, overly broad, rule prohibiting its em-
ployees from wearing political (union) caps or buttons.
Employee T. Johnson testified Store Manager Milwee
talked with him about the Union on three occasions
during the campaign. On the third such occasion
Milwee, as they walked through the store aisles, told T.
Johnson the Union could not do anything about getting
the employees a raise unless the Parsons wanted to give
one. Employee Roe joined Milwee and Johnson as they
walked through the store. T. Johnson told Milwee he
had been to a union meeting. Milwee said he had heard
about Roe "jumping up [and] making a speech . . . at
the union meeting." T. Johnson told Milwee he thought
Roe had been talking off the top of his head and he did
not think Roe had meant everything he said. T. Johnson
testified Milwee then stated he was "a pretty easy going
guy right now," but "if the Union went in . . he'd have
to change," he could "get tougher."
MACK'S SUPERMARKETS 1099
Store Manager Milwee acknowledged discussing the
Union with employees T. Johnson and Roe shortly
before the 2 December Board-conducted election. He
said he told T. Johnson and Roe the Union would hurt
the Company and he had pretty much let them have
their way in that he had not pressured them like they
would be pressured in a unionized store. Milwee denied
telling T. Johnson and Roe he would not be himself or
that he could make it rougher on them if the Union came
in at the store.
After carefully weighing both versions of the above
conversation, I credit T. Johnson's account. Other
record evidence discussed elsewhere in this decision
tends to support his testimony. Furthermore, Milwee ac-
knowledged a great deal of what T. Johnson attributed
to him. Based on the credited testimony, it is clear that
Milwee in either late November or early December, in
violation of Section 8(a)(1) of the Act, impliedly threat-
ened his employees with more onerous working condi-
tions if the Union was successful in its organizing cam-
paign by telling them he would change from his easy self
to a tougher individual. I also find Milwee violated the
Act by telling employees Roe and T. Johnson that he
had heard what Roe said at a union meeting the night
before. His comments constitute interference with Sec-
tion 7 rights since he made them in the context of other
unlawful remarks.
E. Johnson credibly testified that during the union
campaign he had a conversation with Store Manager
Milwee about a customer complaint that had been
lodged against him. 51 E Johnson was told about the
complaint by a fellow worker, When E. Johnson asked
Milwee about the complaint, Milwee checked with an
office employee and ascertained a customer complaint
had in fact been made against Johnson. Milwee told E.
Johnson, "I figure we're good enough friends that I
know I'm not supposed to asI4 you this, but are you for
the Union." Johnson told Milwee he was not. Milwee re-
sponded, "Well, we'll take care of it [the customer com-
plaint]." Later that same date E. Johnson asked Milwee
how he could obtain credit at a variety store owned by
the Parsons. Milwee told T. Johnson he would have to
see the Parsons, but if he would let them know how he
felt about the Union they 'would consider extending
credit to him.
To promise or grant benefits to employees in order to
dissuade them from supporting the Union violates the
Act. Marchese Metal, 270 NLRB 293 at 300 (1984).
Milwee, after ascertaining E. Johnson was against the
Union, promised to take care of a customer complaint
that had been lodged against him. Likewise, Milwee led
Johnson to believe his opposition to the Union would
secure him a line of credit at another of the Company's
operations. Such promises and assurances violated Sec-
tion 8(a)(1) of the Act and I so find.
51 E Johnson impressed me as a truthful witness I note Milwee did
not specifically deny Johnson's account of this particular conversation
E. The 8(a)(1) Allegations Involving Baxter Store
Manager Lewis
It is alleged at paragraph 5(e) of the complaint that the
Company acting through Store Manager Lewis at its
Baxter location: (i) about 23 October threatened to dis-
charge an employee if she did not stop discussing the
Union with other employees; (ii) about 1 December
threatened employees that they would lose their jobs if
its employees did not vote against the Union; (iii) about
18 May 1987 threatened that a known union adherent
would be discharged after a proceeding was held before
the National Labor Relations Board.
Counsels for the General Counsel rely on one of the
pretrial Board affidavits given by employee Noe to es-
tablish the allegations contained in paragraph 5(e)(i) of
the complaint The affidavit reads in part as follows:
The next day, October 24, 1986, I was at work. I
was near the front office by one of the cashiers bag-
ging groceries. I believe John Caldwell one of the
assistant store managers was standing immediately
outside the front office. Caldwell was about five or
six feet away from me. Caldwell was talking to
John Lewis, store manager, who was standing right
next to Caldwell. Caldwell said to Lewis that he be
lieved Marie Scott was one of the Union leaders—
one of the ones trying to get a [u]nion in at the
store. Lewis answered by saying that something had
to be done about her. That the Parsons wouldn't
accept the Union. Lewis said if Scott didn't quit
talking about the Union, that the Parsons would fire
her, or get rid of her.
At the trial herein Noe denied overhearing the above
conversation, but rather testified he was told about it by
some other employee, Lewis denied making any such
statement. As indicated elsewhere in this decision, I am
unwilling to base any finding of any violation of the Act
on the testimony of Noe.. Noe was a totally unreliable
witness. Accordingly, I recommend that paragraph
5(e)(i) of the complaint be dismissed.
Employee Gibson testified he and employee Noe had a
discussion with Store Manager Lewis the night before
the 2 December Board-conducted election. Gibson testi-
fied:
He [Lewis] said that he suspected that if the store
did not go 100 percent in the election tomorrow
that me and [Noe] would not have a job.52
Gibson also testified that prior to the Board-conducted
election, but after he had attended a union meeting at an
employee's home, Store Manager Lewis told him to stay
busy because they were watching him. Gibson asked
Lewis if they were looking for a reason to fire him and
Lewis said they were.
Store Manager Lewis denied telling Gibson and Noe
that if the store did not go 100 percent for the Union the
employees would be laid off or fired.
'52 Noe's testimony about this conversation was essentially the same as
that given by Gibson.
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I do not credit Lewis' denials. Lewis acknowledged
telling an employee, albeit ,he contends in a joking
manner, that after the trial in the instant case was over
she might not have a job. Such an acknowledgement
persuades me Lewis was capable of making the com-
ments Gibson and Noe attribute to him, particularly
since the comments pertained to a loss of employment.
While the reasoning behind Lewis' comment—if the
store did not go 100 percent for the Union the employ-
ees would be out of a job—is not clear, it was nonethe-
less coercive and violated Section 8(a)(1) of the 'Act.
Lewis' statement to Gibson, in the midst of the union
campaign, that the Company was watching him, looking
for a reason to fire him, clearly constituted an unlawful
threat to discharge him
Employee Scott testified that on the day before the in-
stant case came to trial (18 May 1987) she checked cus-
tomer's groceries and Store Manager Lewis bagged
them. As they worked an individual came into the store
seeking employment. Lewis told the individual he did
not know of any job vacancies in the Company at that
time. After the individual left the area, Scott told Lewis
that since the Company had moved employee Owens
into an office job maybe they would be filling her old
job. Lewis later asked Owens if the Company was going
to fill her old job. Owens told Lewis she did not know.
Lewis thereafter told Scott the Company was not going
to replace Owens. According to Scott, Lewis said,
"They may be replacing you after tomorrow." Scott an-
swered, "Well" and Lewis then said, "I'd say that Jerry
will be [fired] when this is all over." Scott told Lewis,
"We'll probably all be gone." Lewis replied, "I don't
know that for sure."53
Lewis admitted that the day before the instant trial
began he made the statements attributed to him by Scott,
but stated, "I was only kidding with her and I'd be will-
ing to apologize to her for that remark that I made."
The Company contends that since Store Manager
Lewis' remarks were jokingly made they were not un-
lawfully coercive.54
I am persuaded, in agreement with counsels for the
General Counsel, that Store Manager Lewis' remarks
can reasonably be considered coercive within the mean-
ing of the Act. Lewis made his remarks after Scott had
asked him whether the Company planned to replace an
53 The company did not cross-examine Scott when she was recalled to
testify about the above incident.
54 In an effort to support its position that the remarks were jokingly
made, the Company submitted a posttrial "Motion to Submit Additional
Evidence or in the Alternative to Dismiss the Last Amendment to the
Complaint." The Company attached to its motion a posttrial affidavit
given by Scott, in which Scott addressed the issue of whether she felt
Store Manager Lewis had been joking when he spoke with her on the
occasion in question and whether he had subsequently apologized to her
for his remarks At trial the Company did not cross-examme Scott about
the conversation, nor did it elect to call her as its own witness after
Lewis had testified the conversation was a joke The responsibility of
making a record for the position taken by a party rests on that party to
do so during the trial of the case and before the record is closed. The
additional evidence the Company seeks to have considered is neither
newly discovered nor was it unavailable at the time of the trial: Accord-
mgly, I deny the Company's motion to receive the posttrial affidavit of
Scott. See Arizona Public Service Co, 273 NLRB 1757, 1758 (1985) The
Company's motion to dismiss the last amendment to the complaint is dis-
posed of in the body of this decision.
employee that had been reassigned from the position of
head cashier to that of an office clerical. There is noth-
ing in the record to suggest that Lewis' comments about
whether the head cashier's position would be filled were
made in jest or not. It was after that subject matter had
been discussed that Lewis told Scott she and another em-
ployee might not have their jobs after the trial of the
case herein. Lewis did not tell Scott he was joking. He
simply told her he was not sure whether she and the
other employee would lose their jobs after the trial.
Lewis never, prior to the trial herein, made any effort to
inform Scott he had been kidding when he made his
comments about her employment future with the Com-
pany.
Accordingly, I find Lewis' remarks constituted an un-
lawful threat to discharge Scott after the Board trial had
been completed.55
F. The Layoff of Employee Scott
It is alleged at paragraphs 6(a)-(e) and 8 of the com-
plaint that about 28 October the Company laid off its
employee Scott because she joined, supported, or assisted
the Union and because she engaged in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection and in order to discourage its
employees from engaging in such activities.
Scott commenced work for the Company as a cashier
at the Baxter store in June 1985. On , 22 October she
signed an authorization card for the Union at employee
Gibson's home. She said she gave authorization cards to
her fellow workers, but that she did so at her home.
Scott stated she talked to at least seven employees at the
store about their interest in the Union and about a union
meeting to be held at employee Blanton's home on 23
October. Scott testified she attended three union organiz-
ing meetings, one of which was the one at employee
Blanton's home. 56 Eight employees and a union organiz-
er attended the meeting at Blanton's home. Scott said she
"talked a little" in support of the Union at that meet-
ing.57
Scott stated she learned on a day when she was off
from work (28 October) that head cashier Owens had
been looking for her. Scott said she went to the store
where Owens told her the Company was going to lay
her off. Scott testified Owens told her Vice President
Parsons had selected her as the one to be laid off, but she
could not understand it because Scott had been one of
the best cashiers at the store. According to Scott, Owens
also told her another person had started to work at the
store that day. Scott told Owens she thought they were
laying her off because she had voiced support for the
Union. Owens gave Scott a layoff slip." Scott stated
55 I find the instant case is clearly distinguishable from the situation in
Barcor Corp., 270 NLRB 1083 (1984), in which the Board found no viola-
tion of the Act when a known company jester made an off-the-cuff
remark, m his capacity as a private party and not as a supervisor, to an
employee with whom he socialized.
56 The other two meetings took place at the local Armory in Novem-
ber
57 Scott testified other employees also spoke in favor of the Union at
that meeting
58 The slip indicates Scott was laid off due to a decline in business
MACK'S SUPERMARKETS

1101
that during the 2 to 3 months prior to her layoff she had
worked 32 and 37 hours per week on alternating weeks.
Scott testified that in April she asked the Company to
reduce her weekly work hours for personal reasons. For
some period of time after that request Scott only worked
2 days per week. In May Scott asked for and the Com-
pany granted her 3 weeks off from work for personal
reasons. Scott stated that during the summer of 1986 she
filled in for employees that were taking vacation.
Following her layoff Scott was called back to work
the second week in December. Immediately after being
recalled she worked 2 days per week plus every other
Sunday. Scott testified that as of the trial herein she was
working 3 days per week plus every other Sunday,
unless any employee wanted additional time off in which
case she worked additional hours.
Vice President Parsons testified that in September he
made a decision to lay Scott off because sales figures in-
dicated a downturn in business. He said he mentioned to
head cashier Owens that he was going to lay someone
off. She asked him to hold up doing so until certain em-
ployees that were taking vacations returned to work.
Parsons testified Scott had been a part-time employee
who in the spring had asked to have her work hours re-
duced and had asked for time to be away from work al-
together, therefore, he selected her as the employee to be
laid off. Vice President Parsons testified he did not learn
of Scott's union activities until she told him about them a
few days after she was laid off. Parsons stated Scott was
recalled to work in December because business had
begun to pick up. Parsons said the Company had not in
the past had to lay employees off because it operated its
facilities in small communities where it experienced high
attrition rates.
Counsels for the General Counsel contend that state-
ments made by Store Manager Lewis and head cashier
Owens establish Scott was laid off because of her in-
volvement with the Union. Further, counsels for the
General Counsel contend the timing of her layoff, which
took place 5 days after she attended a union meeting,
persuasively demonstrates the Company was unlawfully
motivated in its decision to lay her off. Finally, counsels
for the General Counsel contend the Company's explana-
tion for the layoff clearly reveals the pretextual nature of
its actions. They contend there was no downturn in busi-
ness at the time Scott was laid off nor had there been
any past practiee of laying employees off during slack
times.
The Company asserts Scott's layoff was brought about
due to a September slowdown in business. The Company
explains that its September decision was not implemented
until October because some cashiers were still taking
their vacations. The Company asserts Vice President
Parsons had no knowledge of any union activities on the
part of Scott at the time he made the decision to lay her
off. The Company asserts Scott was selected for layoff
because she was a part-time employee, who had demon-
strated a willingness to work fewer hours and to be
absent from work for extended periods of time.
Wright Line, 251 NLRB 1083 (1980,) enfd. on other
grounds 662 F.2d 899 (1st Cit. 1981), cert. denied 455
U.S. 959 (1982), approved in NLRB v. Transportation
Management, 462 U.S. 393 (1983), the Board set forth the
rule to be applied in discrimination cases such as the in-
stant one. The General Counsel is required to make a
prima facie showing sufficient to support the inference
that protected conduct was a "motivating factor" in the
employer's decision to take the actions it took. Once the
General Counsel establishes such a prima facie showing
the burden shifts to the employer to demonstrate it
would have taken the same actions even in the absence
of any protected conduct. An employer's proffered basis
must be by a preponderance of the evidence.
I am persuaded counsels for the General Counsel
failed to meet their burden of establishing a prima facie
case with respect to Scott's layoff. They failed to demon-
strate, by any credible direct or circumstantial evidence,
that Vice President Parsons had any knowledge of any
union activities on Scott's part at the time he made the
decision to lay her' off. Company knowledge of union ac-
tivities is the "threshold question" where a violation of
Section 8(a)(3) of the Act is alleged, because it is a "fun-
damental prerequisite" in establishing a discriminatory
motivation. See, e.g., Bayliner Marine Corp., 215 NLRB
12 (1974). Looking at the evidence about company
knowledge of Scott's activities, I note she distributed
some authorization cards and even signed one herself,
but she did so away from the Company. She talked to
fellow workers about the Union but there is no showing
the Company was aware of any such conversations.
Counsels for the General Counsel would rely on one of
several pretrial affidavits given by employee Noe to es-
tablish the Company had knowledge of Scott's union ac-
tivities. Noe's statements, however, whether given at
trial or in pretrial affidavits are unworthy of belief. I
reject counsels for the General Counsel's attempt to
demonstrate company knowledge of Scott's activities by
comments attributed to head cashier Owens because
Owens was not, at material times, a supervisor or agent
of the Company. I also reject counsels for the General
Counsel's assertion that the timing of Scott's layoff,
which took place 5 days after she attended a union meet-
ing, warrants an inference the Company knew of her ac-
tivities and was discriminatorially motivated in laying
her off. The most that can be said for the timing of
Scott's layoff is that it arouses some suspicions about the
Company's motivation. "Mere suspicions," however,
cannot substitute for actual or circumstantial proof.
Even if counsels for the General Counsel had estab-
lished a prima facie case with respect to Scott's layoff, I
would nonetheless have concluded the Company met its
burden of establishing it would have laid Scott off even
in the absence of any protected conduct on her part. At
the time in September when Vice President Parsons
made his decision to lay Scott off, the Baxter store had
suffered approximately an $83,000 drop in retail sales
from the previous month. In total sales September was
the second worse month at the Baxter store in 1986. It
was within approximately $4000 of being the worst
month for total sales in 1986. Thus, it appears Vice Presi-
dent Parsons had valid business considerations for the
layoff. The fact that sales rebounded in October does not
detract from his initial decision to reduce the number of
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cashiers at the Baxter store. His decision not to imple-
ment Scott's layoff until October appears to have been
based on legitimate business considerations in that Scott
was needed to fill in for other employees that were on
vacation. Parsons advanced nondiscriminatory reasons
for selecting Scott as the employee to be laid off not-
withstanding the fact other employees had less seniority
than she did at the time she was selected. His reasons
were that she had asked for less work hours and for ex-
tended time off in 1986 for personal reasons.
In summary, and for the reasons noted earlier, I rec-
ommend those portions of paragraphs 6 and 8 of the
complaint that relate to Scott's layoff be dismissed.
G. The Transfer and Alleged Discharge of Employee
Cusick
It is alleged in paragraphs 6(b), (c), (e) and 8 of the
complaint that on or about 3 November the Company
transferred its employee Cusick from its retail food sales
operations to a lumber company it operated and then dis-
charged him because he joined, supported, or assisted the
Union, and because he engaged in concerted activities
for the purpose of collective bargaining or the mutual
aid or protection and in order to discourage employees
from engaging in such activities.
Cusick's work history and union activities have been
discussed elsewhere in this decision, however, I shall
briefly highlight them at this point. Cusick worked as a
stockclerk at the Evarts store for approximately 5 years
(from August 1981 until November 1986). His involve-
ment with the Union was well known to the Company.
He, for example, signed an authorization card, attended
union meetings, talked to fellow workers about the
Union, and wore union buttons and a union hat at the
store when he was not working. 59 Cusick testified he
was in the Evarts store for personal reasons on 2 No-
vember and while there he spoke with Store Manager
Milwee. Cusick said he was wearing a prounion baseball
type cap at the time. According to Cusick, Milwee said,
"Starting tomorrow you no longer work here. You're
being transferred to Payless." 6 ° Cusick asked Milwee
why he was being transferred to Payless. He asserts
Milwee told him it was because General Manager Par-
sons had Vice President Parsons had said so. Cusick left
the store at that time."
On 3 November Cusick reported for work at 7 a.m. at
the Evarts grocery store. He stated Store Manager
Milwee told him he no longer worked there that he
needed to report to Payless for work by 7:30 a.m., and
added he had better get going if he was going to be
there on time. Cusick told Milwee he was just a grocery
store employee that knew nothing about the lumber busi-
59 As is set forth elsewhere in this Decision, Cusick attributed certain
statements to Store Manager Milwee and General Manager Parsons that
the General Counsel contends were unlawful. His testimony, however,
has not been credited and any allegations based solely on his testimony
have been dismissed
69 The Company owns and operates a retail and wholesale lumber
yard in Harlan, Kentucky, known as Payless Building Supplies.
61 Milwee testified the only thing Cusick said when he told him he
was being transferred to Payless was to ask who he would be reporting
to at Payless the next morning.
ness. Milwee told Cusick he had better go on to Payless
or he would forfeit his job. Cusick told Milwee he fig-
ured he was fired and he asserts Milwee told him to go
on and get out of the store. Cusick advised Milwee he
had been at the grocery store longer than most of the
other employees and asked why someone else could not
be transferred. According to Cusick, Milwee said they
wanted him at Payless.62
Vice President Parsons testified he made the decision
to transfer Cusick to the Company's Payless store. He
said he 'based his decision on two factors. First, the Com-
pany needed an employee at Payless who could drive a
truck and handle stock. Second, he said Store Manager
Milwee had reported to him that Cusick had made a
physical threat against Milwee. Parsons testified he told
Milwee, when Milwee reported the threat to him, that
Vice President Parsons would personally handle the
matter by transferring Cusick to Payless. Parsons said he
knew Cusick's family, that they basically were good, but
easily excited people. Parsons contends Cusick would
have had greater opportunities for advancement with the
Company at Payless than he would have had at the gro-
cery facility.
Store Manager Milwee testified that before Cusick was
transferred to Payless, a coworker of Cusick (David
Cooper) told him Cusick had threatened to have his
father come to the store and "settle the problem" he had
with Milwee or "take care" of Milwee. Milwee said he
was told Cusick was upset with him because he had been
bossing him around. Milwee testified that on a previous
occasion when Cusick had been upset with him about
damaged merchandise, Cusick's father had come to the
store and made a scene. Milwee said it offended him
when he learned Cusick had threatened him even though
he did not feel physically threatened. Milwee reported
Cusick's threat both to Vice President Parsons and Gen-
eral Manager Parsons.
'Evarts' 11-year stockclerk Cooper testified that on an
occasion in the fall of 1986 Store Manager Milwee asked
him and Cusick to report to the front of the store to help
out there. Cooper testified Cusick said, "Not me. I'm
getting tired of Grover [Milwee] telling me what to do.
I'm going to tell my Dad, and my Dad will take care of
it." Cooper testified Cusick's dad had "come up on
Grover [Milwee] once before" so he thought he should
make him aware of Cusick's comments. Cooper told
Milwee he felt Cusick had threatened Milwee's life."
Cusick denied making any threats against anyone and
asserted his father was totally disabled by black lung and
emphysema.
Even before any credibility resolutions are made with
respect to this aspect of the case, I am persuaded coun-
sels for the General Counsel have established a prima
facie showing sufficient to support the inference that
protected conduct was a motivating factor in the Com-
pany's actions related to Cusick. First, the Company
62 Milwee testified Cusick simply came to the grocery store the next
morning and announced he was not gomg to transfer to Payless and then
clocked out and left Milwee asserts Cusick was never terminated that he
Just quit.
63 Cooper stated Cusick had threatened him on a prior occasion
MACK'S SUPERMARKETS 1103
knew of Cusick's support for the Union. The Company's
animus toward the Union is well documented. The Com-
pany's announcement to Cusick that he was being trans-
ferred from the Company's grocery operations to its
lumber yard came at a time when Cusick was wearing a
prounion baseball type cap. These factors are sufficient
in my opinion to shift the burden to the Company to es-
tablish it would have taken the actions it did even in the
absence of any protected conduct on Cusick's part. I am
persuaded the Company met its burden. First,' I fmd
Cusick made what could reasonably be interpreted as a
threat against Store Manager Milwee's safety. I base this
initial fouling on employee Cooper's above outlined testi-
mony." The fact store Manager Milwee may not have
felt physically threatened by the remarks, does not de-
tract from a fmding that Cusick threatened Milwee's
safety. Milwee left the impression, as he testified, that he
was embarrassed to acknowledge feeling threatened by
Cusick's remarks. I note it was not out of character for
Cusick to make threats. The evidence shows his father
had in the past come to the store and made a scene, and
Cusick had also previously threatened employee Cooper.
Cusick's demeanor, while testifying, demonstrated to me
he was capable of being made angry easily. Second, it
was not refuted that the Company needed a driver/stock
handler at its lumber business. The Company demonstrat-
ed it had in the past transferred various employees from
its grocery to its lumber business. The record as a whole
supports, and I credit Vice President Parsons' testimony
that Cusick's transfer to the Company's lumber business
was for nondiscriminatory reasons 65 and would have
taken place even in the absence of any protected conduct
on his part.
Accordingly, I recommend that the 8(a)(3) and (1)
complaint allegations related to Cusick be dismissed.
H. The Alleged Reduction in Work Hours of
Employee Gibson
It is alleged in paragraph 6(d) and (e) and 8 of the
complaint that on or about 2 December the Company re-
duced the work hours of its employee Gibson because he
joined, supported, or assisted the Union and because he
engaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection and in
order to discourage employees from engaging in such ac-
tivities.
Although Assistant Produce Manager Gibson's work
history and union activities have been detailed elsewhere
in this decision, it is helpful to highlight some of those
facts at this point. Gibson has been employed by the
Company at its Baxter store for approximately 6 years.
During the fall of 1986, he attended various union meet-
ings. During that same time Vice President Parsons told
him he had heard he was unhappy working for the Com-
pany and asked what he thought the Union could do for
him. Parsons told Gibson the Union could not do any-
64 Cooper impressed me as an unreservedly honest witness and, as
such, I credit his testimony.
65 That Parsons did not fire Cusick was explained by the fact he knew
Cusick's family, that they were good workers just given to being easily
excited. It appears Parsons was simply aftemptmg to get Cusick away
from Stole Manager Milwee.
thing for him Parsons also told Gibson he needed to
think about what was good for the Company and that a
"no" vote in the election would give him job security.
During that same timeframe Vice President Parsons also
reminded Gibson he had given him the job he had and
he could take it away from him. 66 On the night before
the Board-conducted election 67 Gibson's immediate su-
pervisor, Store Manager Lewis, told him he suspected
that if the store did not go 100 percent for the Union,
Gibson and a fellow worker would be out of their jobs.
Lewis had also told Gibson during the union campaign
to stay busy because the Company was looking for a
reason to fire him.
After the election, but on that same day, General Man-
ager Parsons told Gibson he could no longer come to
work before the store opened." Gibson testified he had
been coming in about an hour before the store opened,
and he "guessed" he had been told to do so by Produce
Supervisor Faye Noe. Gibson was unaware of other em-
ployees being told not to come to work before the store
opened.
General Manager Parsons testified he did not reduce
Gibson's hours of work, but rather merely changed his
work schedule, along with 10 to 12 other employees'
work schedules, in December. He stated the Company
had been having some employees come in before the
store opened to stock shelves and perform various other
tasks. He stated he had visited the store several times,
however, and always found the front door open, which
allowed anyone to enter the store. He said there were no
supervisors present on those occasions when he visited
the store before hours, so he informed Gibson and the
others that he did not want them in the store except
when supervision was present. Parsons said he told
Gibson first about the change because he was the first
employee he saw after he made the change. Parsons
stated there had also been a change in the time the Com-
pany received deliveries at the store. He said the Compa-
ny had been receiving deliveries at 7 a.m. but that had
been changed to 8 a.m., in order to correspond with the
time when management would be present in the store."
General Manager Parsons denied union activities played
any part in the Company's decision to change the work
schedules for its Baxter store employees including
Gibson.
Counsels for the General Counsel established an argu-
able prima facie case sufficient to support an inference
that protected conduct was a motivating factor in the
Company's decision to change the work schedules at its
Baxter store that possibly resulted in a loss of work
hours for Gibson. 7 ° Gibson's union activities were
66 As noted elsewhere, Parsons' comments violated Sec. 8(a)(1) of the
Act.
67 Gibson served as an observer for the Union at the election.
68 As is noted elsewhere in this decision, Gibson believed his hours of
work were reduced by not being able to come to work early and as a
result of that belief an unfair labor practice charge was filed against the
Company on his behalf. I have found Vice President Parsons' comments
to Gibson about that charge violated Sec 8(al) of the Act.
69 The Baxter store opens at 9 a.m.
7° Counsels for the General Counsel would have established a strong
prima fade showing if they could have convincingly demonstrated that
Gibson actually suffered a loss of work hours.
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
known to the Company inasmuch as Vice President Par-
sons committed various violations of Section 8(a)(1) of
the Act that involved Gibson. Those violations included
threats of loss of employment, as well as statements
about how Gibson could assure his continued employ-
ment with the Company by voting against the Union.
Additionally, Gibson was told by his store manager the
Company was looking for a reason to fire him, and he
was also told the night before the Board-conducted elec-
tion that if the vote did not go 100 percent for the Union
he would be out of a job. The timing of the announced
change is suspect because it came immediately after
Gibson had served as an observer for the Union at the
Board-conducted election. In summary, all the elements
of a prima facie case appear to be present, namely, union
activities, company knowledge of those activities, union
animus, and possible adverse action against the employee
involved. I have concluded the evidence only establishes
possible adverse action against Gibson because the
record as a whole, rather than in isolation, does not es-
tablish a loss of hours of work for him It is clear that
during the week in which the schedule change took
place Gibson worked 2.15 hours less than he had the
previous week." During the 2 weeks after the schedule
change was announced, however,. Gibson worked a total
of 102.16 hours. 72 During the 2 weeks before the sched-
ule change was announced Gibson only worked 90.31
hours. 72 For the entire month of November, before the
schedule change took place, Gibson averaged working
45.99 hours per week. 74 For the entire month of Decem-
ber, after the schedule change had taken place, Gibson
averaged working 45.54 hours per week. 75 To the extent
that counsels for the General Counsel established (in iso-
lation) a prima facie case, the Company met its burden of
establishing the change in question would have taken
place even in the absence of any protected conduct on
Gibson's or any other employee's part. First, I credit the
unrefuted testimony of General Manager Parsons that
the change came about as a result of a new delivery time
for suppliers, and of efforts to avoid having unsupervised
employees at work before the store opened. Second,
General Manager Parsons testified business was tradition-
ally slow in January and February," thus resulting in
71 For the week ending 29 November Gibson worked 42.98 hours. For
the week ending 6 December (the week of the schedule change) he
worked 40.83 hours.
72 Gibson worked 52.94 hours during the week ending 13 December.
He worked 49.22 hours during the week ending 20 December.
73 Gibson worked 47.33 hours during the week ending 22 November.
He worked 42.98 hours during the week ending 29 November.
74 Gibson worked 48.88 hours for the week ending 1 November, 44 17
hours for the week ending 8 November, 46.61 hours for the week ending
15 November, and his hours of work for the remaining 2 weeks are set
forth in fn 73.
75 The hours Gibson worked during the week ending 6 December is
set forth at fn. 71, the hours he worked during the weeks ending 13 and
20 December are set forth in fn. 72. Gibson worked 39 17 hours during
the week ending 27 December.
76 / credit Parson's testimony that business was traditionally slow
during those months because the total sales records for 1986 reflect Feb-
ruary was the worst month for sales in that year. January was a much
better total sales month than February in that year, however, I do not
find that to detract from Parsons' testimony because total sales appear to
fluctuate somewhat from month to month.
Gibson working approximately 2 hours per month less
during those months in 1987 than he had worked in No-
vember and December. Third, it is clear the schedule
change not only involved Gibson, it also involved ap-
proximately 10 to 12 other employees and there is no
showing any of the other employees suffered any loss in
their hours of work.
In light of all the above, I recommend the complaint
allegations that the Company unlawfully reduced the
work hours of Gibson be dismissed.
L The Union's Objections to Conduct Affecting the
Results of the Election
The Union's objections to conduct affecting the results
of the election (the objections), which were ordered to
be heard in this proceeding, are Objections 1, 2, 3, 4, 5,
7, 8, and 9. 77 The objections are:
1.The Employer threatened employees with loss
of their jobs if they supported the Petitioner.
2. The Employer told employees that if the Peti-
tioner was voted in the store would be closed.
3. The Employer's supervisors with full knowl-
edge and consent of the owners intimidated and
threatened employees to discourage their activities
on behalf of the Petitioner.
4. The Employer informed employees that it
would not bargain with the Petitioner even if the
employees voted in favor of union representation.
5. Peggy Owens, a supervisor, used her control
over employees to unlawfully influence their votes.
7. Peggy Owens attended union meetings for the
sole purpose of intimidating employees.
8.Peggy Owens' actions undermined the employ-
ees' freedom of choice in the election.
9. The Employer's owners, Harold and Don Par-
sons, along with their legal counsel, threatened em-
ployees with loss of jobs if they voted in favor of
the Petitioner.
With regard to Objections 1, 2, 3, and that portion of 9
that relates to Vice President Parsons, I have concluded
the evidence supports those objections. For example,
Vice President Parsons threatened employees with dis-
charge; Store Manager Milwee threatened employees
with layoff, discharge, and store closure; and Store Man-
ager Lewis threatened employees with discharge if they
supported the Union. All of these comments violated
Section 8(a)(1) of the Act. These 8(a)(1) violations, as
well as others, occurred during the critical period which
was from 12 September through the election on 2 De-
cember. The Board held in Dal-Tex' Optical Co., 137
NLRB 1782 (1962), that conduct violative of Section
8(a)(1) of the Act is a fortiori conduct that interferes with
the exercise of a free and untrammeled choice in an elec-
tion.
In view of the foregoing I recommend to the Board
that Objections 1, 2, 3, and that portion of 9 that refers
to Vice President Parsons be sustained.
77 The Union withdrew objection 6.
MACK'S SUPERMARKETS 1105
With regard to the Objection 4, I have concluded no
evidence was presented to support that objection. Ac-
cordingly, I recommend to the Board that Objection 4
be overruled.
Objections 5, 7, and 8 refer to conduct attributed to
Owens. I have concluded Owens conduct may not be at-
tributed to the Company because she was not a supervi-
sor or agent of the Company within the meaning of Sec-
tion 2(11) and (13) of the Act. Accordingly, I recom-
mend to the Board that Objections 5, 7, and 8 be over-
ruled.
Because I have recommended to the Board that Objec-
tions 1, 2, 3, and that portion of 9 that relates to Vice
President Parsons be sustained, I further recommend that
the first election be set aside, and that the Board direct a
second election be held at a time deemed appropriate by
the Regional Director for Region 9 of the Board.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Peggy Owens, Ronnie Caklwell, and Jim Hendrick-
son are not supervisors and agents of the Company
within the meaning of Section 2(11) and (13) of the Act.
4. By engaging in the following conduct during the
fall of 1986 the Company committed unfair labor prac-
tices in violation of Section 8(a)(1) of the Act.
(a) By coercively interrogating its employees concern-
ing their union membership, activities, and desires.
(b) By impliedly threatening retaliation against its em-
ployees because of their union activities.
(c) By threatening its employees with discharge,
layoff, store closures, more onerous working conditions,
and loss of work hours because of their union member-
ship, activities, and desires.
(d) By threatening that its full-time employees wculd
be reduced to part-time employment status because of
their union membership, activities, and desires.
(e) By telling its employees they would have to keep
the Union out in order for the Company to survive.
.(f) By threatening an employee with discharge if the
employee did not remove a prounion cap the employee
was wearing.
(g) By promulgating and enforcing an overly broad
rule prohibiting its employees from wearing union insig-
nia.
(h) By promulgating and enforcing a no-solicitation
rule for the purpose of interfering with its employees'
right of self-organization.
(i) By telling an employee that the employee would be
treated more favorably because the employee opposed
the Union.
(j) By admonishing an employee for statements the
employee made during a union meeting.
(k) By threatening to discharge an employee after a
Board-conducted trial had taken place.
(1) By threatening to file charges against an employee
in order to discourage the employee from engaging in
protected conduct.
(m) By assuring employees they would not be dis-
charged if they voted against the Union.
(n) By threatening employees with replacement if the
Union ever established a picket line at the Company
without explaining their recall rights.
5. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist therefrom, and to take certain affirma-
tive actions designed to effectuate the policies of the
Act.
In addition to the ususal cease-and-desist order and
notice posting, I recommend the Company be ordered to
withdraw and abolish its overly broad rule that prohibits
employees from wearing political (union) insignia, and
that it cease giving effect to its no-solicitation rule pro-
mulgated for the purpose of interfering with its employ-
ees' right of self-organization.
Counsels for the General Counsel have requested that
a visitatorial clause be included in the order. The evi-
dence does not establish the necessity for such a clause.
Accordingly, I deny counsels for the General Counsel's
request.
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed78
ORDER
The Company, Mack's Supermarkets, Inc., Harlan,
Baxter, and Evarts, Kentucky, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees regarding
their union membership, activities, and sympathies.
(b) Impliedly threatening to retaliate against its em-
ployees because of their union activities.
(c) Threatening its employees with discharge, layoff,
store closure, more onerous working conditions, and loss
of work hours because of their union membership, activi-
ties, and desires.
(d) Threatening its full-time employees with part-time
employment status because of their union membership,
activities, and desires.
(e) Telling its employees they would have to keep the
Union out in order for the Company to survive.
(f) Threatening employees with discharge if they did
not remove their prounion caps.
(g) Promulgating and enforcing an overly broad rule
prohibiting employees from wearing union insignia.
(h) Promulgating a no-solicitation rule for the purpose
of interfering with employees' right to self-organization.
78 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of tie Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(i) Telling employees they will be treated more favor-
ably because they opposed the Union.
@ Admonishing employees for statements they made
during a union meeting.
(k) Threatening to discharge employees after a Board-
conducted trial had taken place.
(I) Threatening to file charges against its employees in
order to discourage them from engaging in protected
conduct.
(m) Assuring employees they would not be discharged
if they voted against the Union.
(n) Threatening employees with replacement if the
Union ever established a picket line at the Company
without explaining their recall rights.
(o) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Abolish its overly broad rule that prohibits employ-
ees from wearing political (union) insignia.
(b) Withdraw its no-solicitation rule that it promulgat-
ed for the purpose of interfering with its employees'
right of self-organization.
(c) Post at its Harlan, Baxter, and Evarts, Kentucky fa-
cilities, copies of the attached notice marked "Appen-
dix." 79 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by
the Company authorized representative, shall be posted
by the Company immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Company to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Compa-
ny has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint
herein be dismissed insofar as it alleges any unlawful
conduct other than as found above.
IT IS FURTHER RECOMMENDED that the election Con-
ducted on 2 December 1986 in Case 9-RC-15002 be set
aside and this proceeding be, and it hereby is, remanded
to the Regional Director for Region 9 for the purpose of
conducting a new election at such time as he deems that
circumstances permit the free choice of a bargaining rep-
resentative.
79 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board!'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labot Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT interrogate you regarding your union
membership, activities, and sympathies.
WE WILL NOT impliedly threaten to retaliate against
you because of your union membership, activities, and
desires.
WE WILL NOT threaten you with discharge, layoff,
store closure, more onerous working conditions, or loss
of work hours because of your membership in or activi-
ties on behalf of Local 227, United Food and Commer-
cial Workers International Union, AFL-CIO-CLC, or
any other labor organization.
WE WILL NOT threaten you who are full-time employ-
ees that you will be reduced to part-time employment
status because of your union membership, activities, and
desires.
WE WILL NOT tell you that you will have to keep the
Union out of the Company in order for it to survive.
WE WILL NOT promulgate and enforce an overly
broad rule that prohibits you from wearing political
(union) insignia and WE WILL NOT threaten to discharge
you for wearing political (union) insignia.
WE WILL NOT promulgate an otherwise valid no-solici-
tation rule in order to interfere with your right of self-
organization.
WE WILL NOT advised you that you will be treated
more favorable because you oppose the Union.
WE WILL NOT admonish you for speaking out at union
meetings.
WE WILL NOT threaten to discharge you after a Board-
conducted trial has taken place.
WE WILL NOT threaten to file charges against you in
order to discourage you from engaging in protected con-
duct.
WE WILL NOT assure you that you will not be dis-
charged if you vote against the Union.
WE WILL NOT threaten that you will be replaced if the
Union ever establishes a picket line at the Company,
without also explaining to you your recall rights.
MACK'S SUPERMARKETS 1107
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
MACK'S SUPERMARKETS, INC.