St. Louis IGA Foodliner

National Labor Relations Board - Board DecisionsApr 8, 1976

223 N.L.R.B. 793 (N.L.R.B. 1976)

ST. LOUIS IGA FOODLINER 793 B & B Grocery, Inc., d /b/a/ St . Louis IGA Foodliner and Amalgamated Meatcutters and Butcher Work- men of North America, Local 539, AFL-CIO. Cases 7-CA-11881, 7-CA-12161, and 7-CA- 12293 April 8, 1976 on, was that presented by William Eskuri, Respondent's secretary- treasurer, and that the General Counsel was not a party. Thus, unlike the present proceeding, there was not testimony by all interested parties . The conflicts in evidence here were resolved through the observations of the witnesses' demeanor and evidentiary considerations by the Administrative Law Judge with which we agree. In our opinion the issues received full and fair consid- eration, and are supported by the record as a whole. Accordingly, we adopt the Administrative Law Judge's findings and con- clusion . See Stanley Air Tools, Division of the Stanley Works, 171 NLRB 388, 389-390 (1968). DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 3, 1975, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions I of the Administrative Law Judge and to adopt his recommended Order as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that B & B Grocery, Inc., St. Louis, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(c) of the Administrative Law Judge's recommended Or- der: "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In agreeing with the Administrative Law Judge that Robert Mepham was an employee and not a supervisor within the meaning of the Act, we do not adopt his conclusion that the decision of the Regional Director in an earlier representation proceeding , Case 7-RC-10801, to the contrary, "is of no moment ." We have taken official notice of the prior representation pro- ceeding . We note that Mepham did not testify, that the only evidence relied APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, deny reinstatement, or otherwise discriminate against an employee because he has engaged in activities on behalf of Amalgamated Meatcutters and Butcher Work- men of North America, Local 539, AFL-CIO. WE WILL NOT refuse to bargain in good faith with Amalgamated Meatcutters and Butcher Workmen of North America, Local 539, AFL- CIO, as the exclusive collective-bargaining rep- resentative for the employees in the unit set forth below, by dealing directly with our em- ployees concerning wages, hours, and terms and conditions of employment; by refusing to meet with a duly designated representative of said Union; by declining to offer the Union propos- als for increased wages and benefits made di- rectly to employees; and by unilaterally chang- ing existing terms and conditions by refusing to accede to the Union's request for enforcement of a lawful union-security provision under the existing collective-bargaining agreement. The appropriate collective-bargaining unit consists of the following employees: All meat department employees employed at the Employer's 320 N. Mill Street, St. Louis, Michigan, place of business, excluding other store employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Amalgamated Meatcutters and Butcher Workmen of North America, Local 539, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective-bargain- ing or other mutual aid or protection as guaran- teed in Section 7 of the Act, or to refrain from any or all such activities. 223 NLRB No. 109 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL , upon request , bargain collectively with Amalgamated Meatcutters and Butcher Workmen of North America , Local 539, AFL- CIO, as the exclusive bargaining representative of our employees in the unit described above, and, if an understanding is reached , embody such understanding in a signed agreement. WE WILL offer immediate reinstatement to Robert Mepham to his former job or, if that job no longer exists , to a substantially equivalent po- sition , and make him whole for any loss of earn- ings he may have suffered by reason of our dis- crimination against him in the manner set forth in the Decision of the Administrative Law Judge. B & B GROCERY INC., d/b/a ST. Louis IGA FOODLINER DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: A hearing in Case 7-CA-11881 opened in St . Louis, Michigan, on June 18 , 1975, upon a charge filed on March 31, 1975, and a complaint issued on May 14 , 1975, alleging that Respon- dent violated Section 8 (aX5) and (1) of the Act by various acts demonstrating a refusal to bargain in good faith dur- ing contract reopener negotiations , and, further, that a strike by unit employees , which began on March 21, 1975, was caused by the Respondent's alleged unfair labor prac- tices . Respondent , in its duly filed answer , denied that any unfair labor practices were committed. During the course of the hearing , an informal settlement of the issues framed in Case 7-CA-11881 was reached, which was executed by all parties on or before June 19, 1975, and approved by me . This agreement provided for the posting of a notice relative to the alleged unfair labor practices , and further provided that Respondent would as- sume the following remedial obligation: We will , if and when they make unconditional appli- cation , reinstate unit employees to their former posi- tions of employment without prejudice to their senior- ity and any other rights and privileges previously enjoyed, dismissing if necessary , any replacement em- ployees hired into the unit subsequent to March 21, 1975. Thereafter , upon a charge filed in Case 7-CA-12161 on July 9, 1975, a complaint was issued on August 29, 1975, alleging that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate and terminating striker Robert Mepham on June 25 , 1975, following Mepham's unconditional application to return to work. On September 3, 1975, counsel for the General Counsel filed a motion to vacate and rescind approval of settlement agreement and request for order consolidating cases for hearing. By order dated September 8, 1975, the General Counsel 's motion was granted by me, thereby rescinding approval of the settlement agreement in Case 7-CA-11881 and consolidating that case for hearing with Case 7-CA- 12161. Thereafter , Respondent filed an answer to the com- plaint in Case 7-CA-12161, denying that any unfair labor practices were committed , but affirmatively alleging that Robert Mepham , the alleged discriminatee , is and , at times material , was a supervisor. Subsequently, upon a charge filed on September 4, 1975, a third complaint was issued on September 23, 1975, in Case 7-CA-12293, alleging that Respondent violated Sec- tion 8(a)(5) and (1) of the Act by unilaterally changing terms and conditions of employment by refusing to act on the Union 's request for enforcement of valid union-securi- ty provisions in the existing collective-bargaining agree- ment. By order dated October 2, 1975, pursuant to the General Counsel's motion of September 24, 1975, I consolidated Case 7-CA-12293 for hearing with pending Cases 7-CA- 11881 and 7-CA-12161. In its duly filed answer to the complaint in Case 7-CA-12293, Respondent denied that any unfair labor practices were committed. A hearing in the consolidated proceeding was conducted on November 4, 1975. Prior to the opening thereof, an agreement was reached , as between the parties , effectively reducing the litigation in this case to a single issue arising under the complaint in Case 7-CA-12161. The substance and effect of that agreement should be evident from the following, on the record, colloquy: JUDGE HARMATZ : Now, gentlemen , during a pre-trial conference, a conscientious effort was made by all parties to streamline this proceeding in a matter [sic] consistent with the interests of everyone in expeditious resolution of the key question in dispute in this pro- ceeding . I will go over the substance of my under- standing of the agreement reached on the various complaints eliciting the stipulation of the various counsel as I go along in order [that ] the record might reflect in outline form exactly the nature of the agree- ment made. Now, with respect to the complaint in 7-CA- 11881, which is the original complaint in this proceeding, it was agreed without an admission of guilt by the Re- spondent that Respondent would consent to the is- suance of a conventional Board remedy to remedy those allegations as if the General Counsel had proven each and every of the substantive allegations in that complaint and established merit in the unfair labor allegations therein. Is that correct , Mr. Monnich? MR. MONNICH: That is correct , Your Honor. MR. MEADOWS: That is correct. JUDGE HARMATZ : With respect to the complaint in case 7-CA-12293, which is the third of the complaints issued in this proceeding , here again Respondent has agreed to stipulate that the General Counsel , if called upon to prove the allegations in that complaint, he would establish merit in the substantive unfair labor ST. LOUIS IGA FOODLINER 795 practice allegations therein and consents to a conven- tional Board remedy with respect to those allegations subject to the understanding that Respondent is under no present obligation to terminate any employees who have complied with the union security provisions of the existing agreement between the Respondent and the Charging Union. MR. MONNICH: That is correct. MR. MEADOWS: That is correct. JUDGE HARMATZ: With respect to the complaint in case 7-CA-12161, which relates exclusively to the al- leged 8(a)(3) violation based on the admitted refusal to reinstate Mr. Mepham, it has been agreed that the sole question relative to the existence of merit in the allegations of that complaint is whether or not Mr. Mepham is a supervisor or a rank and file employee entitled to the protection or the Act. If, in fact, Mr. Mepham was not a supervisor, it is my understanding that Respondent would consent to a conventional 8(a)(3) remedy in his case with a-un- der that complaint; is that correct? MR. MONNICH: That is correct, Your Honor. MR. MEADOWS: That's correct. JUDGE HARMATZ: I wish to make clear that in the event that that complaint is dismissed, an order would run against the Respondent completely remedying the allegations in case 7-CA-11881 and case 7-CA- 12293. Everybody understands that? MR. MEADOWS: Yes. MR. MONNICH: I think that I would like to have that repeated, if I may. JUDGE HARMATZ: If the complaint in 7-CA-12161 is dismissed on the grounds that Mr. Mepham is a super- visor, it remains that Respondent-an order would run and issue by myself pursuant to Respondent's consent completely remedying the allegations in case 7-CA- 11881 and 7-CA-72293 [sic]. MR. MONNICH: That's correct. Consistent with the foregoing stipulation of the parties, the sole issue subject to litigation in this proceeding is whether or not Robert Mepham, immediately prior to his termination, was a supervisor within the meaning of the Act. Upon the entire record in this proceeding, including my observation of the witnesses while testifying, and consider- ation of the posthearing briefs filed by the General Coun- sel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Michigan corporation , with a place of business in St . Louis , Michigan , from which it is engaged in the retail sale and distribution of grocery products . During the calendar year ending December 31, 1974, a representa- tive period , the Respondent , in the course and conduct of such operations , derived gross revenues exceeding $500,000 , and purchased foodstuffs valued in excess of $50,000 from suppliers , who in turn received such goods directly from sources outside the State of Michigan. The complaints allege, the answers admit, and I find that Respondent is and has been, at all times material, an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaints allege , the answers admit , and I find that Amalgamated Meatcutters and Butcher Workmen' of North America , Local 539, AFL-CIO, is, and has been, a labor organization within the meaning of Section 2(5) of the Act. III. CONCLUDING FINDINGS A. Background The Union has represented a unit of meat department employees at Respondent's grocery store in St. Louis, Michigan, since December 8, 1971, when it was certified as exclusive bargaining agent pursuant to a Board-conducted election in Case 7-RC-10801. Thereafter, Respondent and the Union executed a collective-bargaining agreement, with a term of January 15, 1972, through January 16, 1977, but including a provision allowing the Union to reopen for wage negotiations on January 17, 1975. The Union and Employer began negotiations under the reopener in Janu- ary 1975. A strike commenced on March 21, 1975. At the conclusion of the strike, Respondent, as heretofore indi- cated, refused to reinstate Robert Mepham. B. Supervisory Issue Respondent's grocery store is operated essentially by Charles Elsley, Respondent's president, who is basically responsible for merchandising operations, and William Es- kuri, Respondent's secretary-treasurer, who has responsi- bility for all administrative matters. The store employs a work force of some 31 employees. Normally, the meat de- partment is manned by three employees. However, the col- lective-bargaining agreement recognizes four classifica- tions; namely, meat department head, journeyman meatcutter, clerk or wrapper, and helper. Between January 1975 and the strike, only three of these classifications were occupied. Robert Mepham was the "meat department head" or "meat department manager," Shirley Wood was the clerk or wrapper, and Jerry Erskine was the helper.1 Prior to the Union's certification, a Decision and Direc- tion of Election was issued by the then Regional Director for Region 7 in Case 7-RC-10801 on October 28, 1971, in which Robert Mepham was excluded from the unit as a supervisor. Mepham did not testify in that proceeding, and Eskuri was the only individual through whom evidence was 1 During that period no one occupied the position of journeyman meat- cutter. However, previously in July 1974, Al Alexandre was hired into this position and continued therein until January 1975 when his employment ended . There is no evidence specifically identifying any other individual as ever having been employed in this classification , nor does it appear that Respondent intended to fill the journeyman position in the future. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided in this case who appeared and presented evidence on the supervisor issue at the preelection hearing. Robert Mepham is highly experienced at his trade, with between 25 and 30 years ' experience in retail meat depart- ment operations . He was hired by Respondent as meat de- partment manager in 1969 and worked continuously in that position until the strike of March 1975 . Mepham punches a timeclock and is paid premium pay for overtime work .2 During his working hours , he spends 90 to 95 per- cent of his time cutting meat , and the balance ordering meat in quantities which , at his discretion based on years of experience , he deems necessary to meet anticipated sales , and stocking package meats in the display case. Mep- ham wears the same work clothes as other employees as- signed to the meat department , and his wages and benefits are provided in accordance with the collective -bargaining agreement covering that unit? Mepham has no authority to replace absent meat department employees by effecting transfers from other departments. With respect to the classical indicia of supervisory au- thority, much of which is subject to a conflict in testimony, Mepham denied that he had authority to discipline em- ployees , to hire and fire, or to recommend effectively such actions . He denied ever interviewing applicants or having ever been asked who should or should not be hired. He further denied authority to negotiate meat purchase con- tracts , to change suppliers , or to price or vary the price of meats . According to Mepham , he has no authority to grant time off and is not contacted directly by meat department employees in the event they are to be late or absent. Al- though Mepham apparently is responsible for posting the weekly schedule for meat department employees, their schedules , according to Mepham, were originally set by Elsley and have not been changed for some time . Those in the meat department simply continue to work the same schedule each week , except during holiday weeks when changes would be made . Mepham denied that it was his responsibility to schedule vacations for meat department employees . According to his testimony he had no access to personnel records , did not evaluate employee work perfor- mance, and was not consulted concerning wage increases, which apparently are set by the collective-bargaining agreement . He does not have keys to the store nor has he ever adjusted grievances . He denied responsibility for re- porting employee misconduct or infractions of the rules. The sole witness for the Respondent on the supervisory issue was William Eskuri , secretary-treasurer and with Els- 2 There is some question as to whether Mepham is an hourly rated or salaried employee . Although a division exists between Eskuri and Mepham on this question . this dispute is largely semantical since the weekly hours of Mepham are tabulated and recorded , his overtime premiums are computed on the basis of an average hourly base wage rate , and that same average hourly base rate would determine reductions in Mepham 's weekly earnings attributable to deliberate absences on his part. 7 Mepham 's weekly earnings break down to an hourly average of $5.57. Although this is in excess of the contract wage rate , including annual 5.5 percent cost-of-living increments received since execution of the contract. the following language in article 23 thereof ostensibly permits such a differ- ential: Should the Employer and employees agree to a compensation program based on incentive the Employer agrees that the employee never re- ceives less than the above schedule. ley, a co-owner of the Respondent. Eskuri testified that he and Elsley run the store. Although Eskuri is primarily en- gaged in the administrative side of the operation and testi- fied that 90 to 95 percent of his working time is spent in his office, Eskuri, who, though directly responsible for over- seeing store operations, and hence would be more conver- sant with actual authority of department heads, was not called. As shall be seen below, Eskuri was highly prone to generalized, highly exaggerated testimony, and was gener- ally regarded as an unreliable witness. According to Eskuri, Mepham was "totally" responsible for operating and managing the meat department in a proper and efficient manner. As related by Eskuri, this re- sponsibility included ordering meats and poultry, schedul- ing people, training people, and deciding on the best source of supply In an apparent effort to establish that Mepham recom- mended termination of certain meat department employ- ees, Eskuri on direct examination pointed to the cases of Ray Shadak, Daniel Freed, and Virginia Besan , suggesting that in each instance Mepham contributed effectively to the final termination of these employees. On cross-exami- nation, however, it was established that Mepham's role in the termination of Shadak and Besan, if any, was minimal, as both were terminated "automatically" under company policy as a result of their failure to report for work. As for Daniel Freed, a helper who was discharged because he was a slow worker, on cross-examination Eskuri admitted that Freed was terminated by Elsley, that he (Eskuri) was not present during the discharge interview, and further that Mepham's complaints about Freed's inability to perform were echoed by Shirley Wood, a rank-and-file employee, who in like fashion expressed her complaints about Freed's slowness.5 Eskuri did not testify that he ever informed Mepham that he had authority to discipline, terminate, or effectively recommend such action. In an effort to establish Mepham's involvement in the hiring process, Eskuri conceded that he himself interviewed applicants, but relates that those proving satisfactory to him would be taken to Mepham for the latter's approval. In addition, Eskuri claims that he hired Al Alexandre on Mepham's recommendation .6 Eskuri's initial testimony that Mepham had the authority to decide upon sources of supply was obviously exaggerated when considered against his admission on cross-examination that the IGA warehouse in Saginaw, Mich- igan. normally supplies 100 percent of the meat utilized by Respondent, with outside vendors utilized only where IGA is unable to fill orders. Doubt as to the reliability of Eskuri's testimony in this regard also was aroused by his admission , on cross-examination , that he had no firsthand knowledge as to whether Mepham was involved in the purchase of meats from a vendor known as Vlarsky Meat Products, and, similarly, that he did not have any "idea" as to how Morin Poultry became an occasional supplier. S See Lipsey. Inc., 172 NLRB 1535, 1551 (1968), Ward-McCarty Hot Oil Paraffin Service, 171 NLRB 731, 733 ( 1968). to the general effect that com- plaints by a craftsman as to the inadequacy of a helper's performance are not necessarily indicative of supervisory status. 6 Mepham 's denial that applicants were ever taken to him for approval, as well as the General Counsel's contention that Eskuri after hiring an individ- ual would simply introduce the new hire to Mepham seems confirmed by both the argumentative nature of Eskuri's responses on cross-examination as to this subject , as well as the statement in Eskuri's pretrial affidavit, "after I had hired anyone for the meat department, I take them to Me- pham ." As for the Alexandre hiring, on cross-examination, Eskuri admitted that Alexandre was a good friend of Mepham's and that when a vacancy arose Mepham suggested his availability. Alexandre was hired after being ST. LOUIS IGA FOODLINER 797 According to Eskuri, employees in the meat department who wished to take time off "can arrange that with Bob Mepham," and that Mepham would decide on overtime in the meat department. There is no evidence that Mepham was ever informed that he had such authority nor does Respondent's evidence indicate that Mepham ever in fact granted an employee time off, or, without Elsley' s assent, authorized overtime. Considering Eskuri's tendency to re- late facts beyond his knowledge, and the fact that overtime and time off were within Elsley's bailiwick, there is no foundation for Eskuri's knowledge, his testimony thus is rejected in this respect. Eskuri also testified to an instance in which Mepham extended credit for the purchase of meat to a private cus- tomer. However, Eskuri goes on to point out that this inci- dent involved conduct by Mepham which was contrary to company policy and an act plainly outside the scope of any authority entrusted to him by management. Although Eskuri testified that Mepham is responsible for evaluating employees in the meat department, on cross- examination he conceded that the Company has no em- ployee evaluation form nor periodic system of review either as to probationary or permanent employees. In fact, Eskuri conceded that the "evaluation" consisted of Eskuri "occa- sionally," as a "passing remark" asking Mepham how new employees are doing. In sum , Eskuri was a thoroughly unreliable witness. This was evident from my observation of his demeanor, and from other considerations heretofore related. His evasive- ness, tendency to exaggerate, argumentation, and tendency to relate as fact matters of which he had no direct knowl- edge appear on the face of record. In my opinion his testi- mony is sufficiently untrustworthy to warrant its discredit except where substantiated by documentary evidence. Based on the credited testimony of Mepham,? I find that the authority exercised by Mepham with respect to the two other employees in the meat department did not entail the exercise of authority to a degree warranting a conclusion that he was not entitled to the protection of the Act. Thus, I find that Mepham had no authority to hire employees, discipline or discharge employees, or effectively to recom- mend that such action be taken. He spends 90 to 95 per- cent of the time performing the work of a journeyman meatcutter and, during the period preceding the strike, was the only individual in the meat department qualified to perform that work. Furthermore, the limited number of employees in the meat department logically suggests that the work of that department is dictated by the classifica- interviewed by Elsley. Eskuri concedes that it was not unusual for the Com- pany to hire the friend of a rank -and-file employee on the latter's recom- mendation . See, e .g., J. C. Penney Co., Inc., 172 NLRB 1279, 1280 (1968). 7 In crediting Mepham, I have not overlooked his assertion that his hourly rate was fixed by and was no greater than that set forth in the collective- bargaining agreement , and his denial that he ever initialed timecards. De- spite these discrepancies in his testimony , he impressed me basically as a far more reliable witness than Eskuri . Unlike Eskuri, Mepham 's testimony was generally consistent with the probabilities and sincerely conveyed. The aberrations concerning the source of his average hourly rate and the initial- ing of the timecards aroused little suspicion as to the reliability of the bal- ance of his testimony , and impressed me as stemming from misconceptions which were of a nature not atypical of those made by otherwise entirely credible witnesses. tion to which the helper and wrapper are assigned and custom, rather than any exercise of independent judgment on Mepham's part. With respect to the helper, Mepham's responsibility for training is indicative of classical journey- men-apprentice relationships and is completely consistent with my overall view that any extra authority reposed in Mepham was based on his length of service with Respon- dent, his skills as a journeyman, his experience in, retail meat operations, and his status as a nonsupervisory lead- man. His responsibility for maintaining inventory levels in the meat department is consistent with my opinion in this regard, and considering Mepham's 25 years' experience in retail meat operations, and the fact that his ordering was limited to that area, the evidence in this regard does not suggest anything beyond the routine exercise of judgment gained by an employee through years of experience at his trade. The higher wage rate and Christmas bonuses re- ceived by Mepham, the appearance of his initials on time- cards,' the casual inquiries of Mepham as to how newer employees in the department were coming along, his con- tacts with State meat inspectors, though relevant to the inquiry, are no more than secondary indicia of supervisory status which do not outweigh the more convincing evi- dence that Mepham did not regularly, on a nonsporadic basis, or in a significant degree, possess or exercise supervi- sory authority. Accordingly, I find that Mepham was a nonsupervisory leadman,9 entitled to all the benefits of the Act, and based upon the stipulation of the parties, I find that Mepham's discharge and the refusal to reinstate him as well, violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. B & B Grocery, Inc. d/b/a St. Louis IGA Foodliner is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meatcutters and Butcher Workmen of North America, Local 539, AFL-CIO, is and all times ma- terial has been a labor organization within the meaning of Section 2(5) of the Act. 3. All meat department employees employed by Re- spondent at its place of business at 320 N. Mill Street, St. Louis, Michigan, excluding other store employees, consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 8 Respondent introduced three timecards which bore the initials "B.M." which , according to the testimony of Eskuri, were that of Mepham. In each instance , the timecards involved revisions relative to the noon hour of those affected . No other explanation of the effect of any action by Mepham in this respect is provided by the record. It would be entirely speculative to assume that Mepham's initialing of timecards, in conjunction with other facts found herein, constituted the exercise of significant authority. 9It is of no moment that this determination is at odds with the earlier decision of the Regional Director in Case 7-RC-10801. Under established Board policy, earlier determinations on eligibility in a representation case impose no limitation on relitigation of such issue in a subsequent unfair labor practice proceeding involving an alleged violation of Section 8(a)(3) and (1) of the Act. See, e.g., Leonard Niederriter Company, Inc., 130 NLRB 113, 115, fn. 2 (1961). Contrary to Respondent, under that policy no onus is placed upon the General Counsel to show a supervening change in circum- stances as a precondition for present relitigation of Mepham's status. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. At all times since December 6, 1971, and continuing to date , the Union has been the duly designated and recog- nized representative for the purpose of collective bargain- ing of all the employees in the unit described above and by virtue of Section 9(a) of the Act has been and is now the exclusive collective-bargaining representative of all em- ployees in said unit with respect to rates of pay , wages, hours, and other terms and conditions of employment. 5. Since February 1, 1975, Respondent has violated Sec- tion 8(aX5) and (1) of the Act by refusing to bargain in good faith as evidenced by its failure to meet in negotia- tions in the presence of Richard Phelps, a duly designated union representative ; its individual bargaining with unit employees concerning wage increases and other economic benefits ; and its refusal to offer the Union the same bene- fits previously offered employees. 6. Since March 21, 1975, certain unit employees have been engaged in a strike, which strike was caused by Respondent 's unfair labor practices set forth in paragraph 5 above. 7. Respondent violated Section 8(a)(3) and (1) of the Act by discharging and by refusing to reinstate Robert Mepham because of his union and protected activities. 8. Respondent , since July 11, 1975, has violated Section 8(a)(5) and (1) of the Act by unilaterally changing existing terms and conditions of employment in its refusal to ac- cede to the Union 's demands for enforcement of valid union-security provisions set forth in the currently effective collective-bargaining agreement. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully re- fused reinstatement to and discharged Robert Mepham it will be recommended that Respondent offer him immedi- ate reinstatement to his former position or, if such job no longer exists, to a substantially equivalent position , without loss of seniority or other rights or privileges, discharging if necessary any replacement , and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment of a sum of money equal to the amount he normally would have earned from the date of discrimination to the date of a bona fide offer of reinstatement in accordance with the Board 's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, the stipulation of the parties made at the hearing, and the entire record in this proceeding , and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 10 Respondent, B & B Grocery, Inc., d/b/a St. Louis IGA Foodliner, St. Louis, Michigan, its officers, agents, succes- sors , and assigns , shall: 1. Cease and desist from: (a) Discouraging activities on behalf of a labor organi- zation by discharging, denying reinstatement, or in any other manner discriminating against an employee with re- spect to terms and conditions of employment because they engage in protected, union activity. (b) Refusing to bargain in good faith with the Union as exclusive collective-bargaining agent for employees in the unit set forth below, by refusing to meet with representa- tives designated by the Union, by bargaining individually with unit employees, by refusing to offer the Union in- creases in wages and benefits previously offered employees directly, and by unilaterally changing existing conditions of employment by refusing to accede to union demands for enforcement of lawful union-security provisions contained in a subsisting collective -bargaining agreement . The appro- priate collective-bargaining unit within the meaning of Sec- tion 9(b) of the Act is as follows: All meat department employees employed by Respon- dent at its 320 N. Mill Street, St. Louis, Michigan, place of business, excluding other store employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the purposes and policies of the Act: (a) Upon request, bargain collectively in good faith with the Union, as exclusive representative of the employees in the above-defined appropriate unit with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Offer to Robert Mepham immediate and full rein- statement to his former position, without prejudice to se- niority and other rights and privileges, dismissing if neces- sary any replacement, and make him whole for loss of earnings resulting from the discrimination against him by payment of a sum determined in accordance with the for- mula set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful in analyzing the amount of backpay due under the terms of this recommended Order. (d) Post at its place of business in St. Louis, Michigan, 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and Order , and all objections thereto shall be deemed waived for all purposes. ST. LOUIS IGA FOODLINER 799 the attached notice marked "Appendix," tt Copies of said gion 7, after being duly signed by the Respondent immedi- notice on forms provided by the Regional Director for Re- ately upon receipt thereof, shall be maintained by it for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- In the event that the Board 's Order is enforced by a Judgment of a tered, defaced, or covered by any other material. United States Court of Appeals, the words in the notice reading "Posted by (e) Notify the Regional Director for Region 7, in writ-Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of ing, within 20 days from the date of this Order, what steps the National Labor Relations Board." Respondent has taken to comply herewith.