Town and Country Family Center

National Labor Relations Board - Board Decisions

Aug 13, 1975

219 N.L.R.B. 1098 (N.L.R.B. 1975)

1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big G Supermarket, Inc., d/b/a Town and Country
Family Center and Meatcutters Union Local No.
88, a/w Amalgamated Meatcutters and Butcher
Workmen of North America, AFL-CIO. Cases 14-
CA-8063 and 14-RC-7688
August 13, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
reduction in the number of hours he worked be-
cause of his discriminatory transfer, with back-
pay, if any, to be computed in accordance with
F. W. Woolworth Company, 90 NLRB 289
(1950), with interest at the rate of 6 percent per
annum.
3. Insert "and Clifton Mercer" after "Fuchs" in
paragraph (c).
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
On February 25, 1975, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs.
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 of the Administrative Law Judge and to
adopt her 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,
and hereby orders that the Respondent, Big G Super-
market, Inc., d/b/a Town and Country Family Cen-
ter, Owensville, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as modified below:
1. Delete paragraph 1(b) of the Administrative
Law Judge's recommended Order and reletter the
succeeding paragraphs accordingly.
2. Insert the following language at the end of
paragraph 2(a):
and make Clifton Mercer whole for any loss of
earnings he may have suffered as a result of the
i The General Counsel excepts, inter aba. to the failure of the Administra-
tive Law Judge to provide backpay for Clifton Mercer We find merit to this
exception and shall modify the Administrative Law Judge 's recommended
Order and notice accordingly . Additionally , we shall delete par. 1(h) of the
Administrative Law Judge's recommended Order which orders the Respon-
dent to cease and desist from refusing to bargain with the Union The
complaint did not allege that Respondent had violated Sec. 8(a)(5), no such
violation was urged by any of the parties, and none was found , nor does the
complaint allege that the Respondent was requested to, or refused to. bar-
gain with the Union.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice. We intend
to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes
with , restrains , or coerces you with respect to
these rights.
WE WILL, upon request, bargain collectively
with Meatcutters Union Local No. 88, a/w
Amalgamated Meatcutters and Butcher Work-
men of North America, AFL-CIO, as the exclu-
sive collective-bargaining representative of our
employees in the following appropriate unit:
All meat department employees at Town
and Country Family Center in Owensville,
Missouri, excluding all office clerical employ-
ees, supervisors as defined in the Act, and all
other employees.
WE WILL NOT discriminate against any em-
ployees by discharging or transferring them to
discourage membership in Meatcutters Union
Local No. 88, a/w Amalgamated Meatcutters
and Butcher Workmen of North America,
AFL-CIO, or any other labor organization, ex-
cept to the extent that such right may be affect-
ed by an agreement requiring membership in a
labor organization as a condition of employ-
219 NLRB No. 176
TOWN AND COUNTRY FAMILY CENTER
ment, as authorized by Section 8(a)(3) of the
Act.
WE WILL offer Wilbert Fuchs, Clifton Mercer,
and Glen Mercer immediate and full reinstate-
ment to their former jobs at the Owensville, Mis-
souri, market, or, if those positions no longer
exist, to substantially equivalent positions, and
WE WILL compensate Wilbert Fuchs and Clifton
Mercer, with interest, for any loss of pay they
may have suffered because of the discharge and
transfer.
WE WILL NOT question you about the union
activities of any employees.
WE WILL NOT threaten you with discharge,
loss of earnings or opportunities, stricter super-
vision, worsened working conditions, or any
other detriment for choosing to be represented
by a union.
WE WILL NOT do anything to create the im-
pression that your union activities are being
watched.
BIG G SUPERMARKET , INC., D/B/A TOWN
AND COUNTRY FAMILY CENTER
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge and two amended charges filed on Au-
gust 5, September 5, and 10 , 1974,' respectively, by Meat-
cutters Union Local No. 88 affiliated with Amalgamated
Meatcutters and Butcher Workmen of North America,
AFL-CIO (the Union), a complaint was issued against Big
G Supermarket, Inc., d/b/a Town and Country Family
Center 2 (Respondent) on September 11, 1974. The com-
plaint alleges that on numerous occasions between June 26
and August 7 Respondent, through Wayne Gott, its presi-
dent , engaged in conduct interfering with the statutory
rights of the employees in the meat department of its mar-
ket in Owensville , Missouri , in violation of Section 8(a)(1)
of the Act 3 and that it discharged employee Wilbert
Fuchs, transferred employees Clifton Mercer and Glenn
Mercer , and constructively discharged employee Melba
White to discourage union activities.
Pursuant to the Union's petition and a Stipulation for
Certification Upon Consent Election, an election was held
on August 7. One ballot was cast for and one against the
Union. Four additional ballots were cast under challenge,
two by the Union and two by the Employer. Additionally,
the Union filed objections to the conduct of the election.
On September 17 the Regional Director issued his report
on the challenged ballots and objections . In that report he
1 Unless otherwise stated , all dates herein are in 1974.
2 Respondent-Employer's name appears here as corrected at the hearing.
3 National Labor Relations Act, as amended (61 Stat . 136, P.L. 93-360,29
U.S.C. Sec. 151 et seq.).
1099
directed that the challenges and objections be consolidated
with the complaint for hearing before an Administrative
Law Judge.
Pursuant to due notice, a hearing was held before me in
Hermann, Missouri,4 on October 21 through 24. All parties
were represented and were afforded full opportunity to
present oral and written evidence and to examine and
cross-examine witnesses . Oral argument was waived at the
hearing. Posttrial briefs have been filed on behalf of the
General Counsel and the Respondent-Employer.
Upon the entire record, together with careful observa-
tion of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a Missouri corporation, with its princi-
pal office and place of business in Salem, Missouri, is, and
was at all times material herein, engaged in the retail sale
and distribution of meats, groceries, foodstuffs, and related
products at various locations within Missouri, including a
market in Owensville, the facility involved herein. During
the year 1973, a representative period, Respondent, in the
course and conduct of its business, purchased and caused
to be transported to its Owensville facility goods and mate-
rials valued in excess of $25,000 directly from points out-
side Missouri. During the year 1973, a representative peri-
od, Respondent, in the course and conduct of business at
its Owensville store, sold and distributed goods and prod-
ucts valued in excess of $500,000. Respondent is, and was
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6),--and (7) of
the Act.
B. The Union is, and was at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Chronology and Issues
Respondent's Owensville market was opened and began
operations in December 1971. Elmer Grannemann was ap-
pointed store manager and still serves as such. Granne-
mann and President Gott hired Wilbert Fuchs as the head
meatcutter.5 The other employees in the meat department
at the commencement of operations were Glenn Mercer, a
meatcutter, and Melba White, a wrapper. Around the end
of 1972 Clifton Mercer was transferred from the market's
grocery department to the meat department, where he be-
came a meatcutter.
On June 5, 1974, all four meat department employees
(Fuchs, the Mercer brothers, and White) executed union
authorization cards. The Union then filed a representation
petition on June 26. A Stipulation for Certification Upon
4 One witness ' testimony was heard at her home in Owensville , Missouri.
S Although Fuchs, as head meatcutter, was, generally speaking, "in charge
or, the department , all parties agree that he was not a "supervisor" within
the meaning of Section 2(11) of the Act.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consent Election was entered into on July 9 and 10 and
approved by the Regional Director on July 11. The elec-
tion was scheduled for August 7, with July 7 as the eligibili-
ty date.
On several occasions between the end of June and early
August Respondent 's president, Wayne Gott, discussed the
Union with each of the four-named meat department em-
ployees . These conversations are the basis of numerous
allegations of violation of Section 8(a)(l).
On July 27 Glenn Mercer was transferred to a market
operated by Respondent 6 in Bourbon , Missouri. On Au-
gust 17 Clifton Mercer was transferred to Respondent's
market in Saint James, Missouri . On August 3 Fuchs was
discharged . The transfers of the Mercer brothers and the
discharge of Fuchs are alleged as violative of Section
8(a)(3) and (1) of the Act.
Sometime around the end of June or the beginning of
July employee Joan Williams was transferred from the
market's grocery department to the meat department, al-
legedly to work as a wrapper . Williams voted in the elec-
tion without challenge.
Robert L. Senter had started to work full times in the
market's grocery department in May 1974 . Sometime be-
tween the Union 's filing its representation petition and the
election 9 Senter was assigned to the meat department to
"help clean up, and [do] just whatever needed to be done."
After this assignment he worked around 35 hours per week
in the meat department , with the rest of his time spent in
the grocery department. At the time of the transfer Senter
was under 18 years of age and thus by law was prohibited
from operating the meat grinder and saw. He is still em-
ployed at Respondent 's Owensville market . The Union
challenged Senter's ballot and his eligibility to vote in the
August 7 election is an issue in the present consolidated
proceeding.
Respondent maintains that Fred Nance was hired and
commenced work on Saturday , July 6, and thus was eligi-
ble to vote in the election . Nance lives in Saint James,
Missouri , about 35 to 40 miles from Owensville . He oper-
ates a hamburger stand next to a school in Saint James.
When school closes for the summer he closes the hamburg-
er stand and takes other employment. In the summer of
1974 he was engaged in driving a gravel truck for a con-
struction company . Because of the relative inactivity in the
building industry at that time , Nance had considerable free
time . According to Nance and Grannemann , on occasion
in the past Nance had requested part-time work with Re-
spondent . According to Nance and Grannemann, Nance
6 The Bourbon market apparently is operated by a different corporation
from the Owensville market . That fact, however , is not of material signifi-
cance in the present case.
7 Although it was generally alleged and assumed that Clifton was trans-
ferred on August 3, his request for time off to vote in the election is dated
August 1 , suggesting that the transfer was ordered on August 1, effective as
of Saturday, August 3.
8 Seater had previously worked in the meat department of Respondent's
Licking, Missouri , store part time while going to school.
9 Senter first testified that he had been transferred to the meat department
at the end of July or the beginning of August. On cross-examination by
Respondent's counsel, however , Senter , after having been shown his pretrial
affidavit, changed the date to June 27. No records were produced to estab-
lish the correct date.
visited Respondent 's Owensville market on Saturday, July
6, shortly after 6 p.m., after the meat department employ-
ees had left for the day . Nance asked for work and, accord-
ing to their testimony , Grannemann hired him to do some
cleaning. They testified that he worked a little under 2
hours that evening and was paid for 2 hours' work. He did
not at that time punch the timeclock but Respondent intro-
duced into evidence a timecard which Grannemann said
he had prepared , in pen and ink, and submitted to the
company office . Thereafter Nance allegedly worked about
12 to 17 hours per week at miscellaneous chores, mainly
cleaning up , until August 16 or 17 , about a week after the
election . No record or other specific evidence of his work
hours was presented . He quit because the commuting
proved too costly. Although Respondent's counsel,
through leading questions , elicited testimony that Nance
intended to try to make a career of meatcutting , Nance's
unled testimony was that he did not intend to do so, that
his employment by Respondent was simply "extra" work,
and that he expected to resume operation of the hamburger
stand during the school year as his regular , principal occu-
pation. He voted in the August 7 election under challenge
by the Union, and this challenge is one of the issues in the
representation proceeding.
On July 27 and August 1, respectively, Glenn and Clif-
ton Mercer wrote Respondent 's counsel requesting time off
from work to vote in the Owensville market election on
August 7. On August 6, the day before the election, Gott
visited the Saint James and Bourbon stores, where he deliv-
ered letters to Clifton and Glenn denying their requests.
The letters stated that the men were not employed at the
Owensville market and therefore were not eligible to vote.
They further stated that the employees would "be expected
to be at work [at their current assignments ] during regular
working hours on 8/7/1974."
On August 7, pursuant to direction of a representative of
the Board, Gott telephoned Clifton and Glenn Mercer and
advised them that they were free to leave work for the
purpose of voting in the Owensville election . The calls ap-
parently were made about 1:15 p.m., with the election
scheduled for 2 to 2:15 p.m. Clifton went to Owensville
and cast a challenged ballot, but Glenn did not do so.
Glenn testified that it was doubtful whether he could have
made the trip in time and, in any event , he was afraid to do
so, fearing that his absence from work would be used as the
basis for his being discharged . The parties are in dispute as
to whether, as Respondent maintains , Glenn Mercer vol-
untarily chose not to vote or, as the Union maintains, he
was prevented from voting.
On August 9 Melba White quit her employment with
Respondent . The General Counsel maintains, and Respon-
dent denies , that the circumstances of White 's resignation
establish that she was constructively discharged , in viola-
tion of Section 8(a)(3) and (1).
In addition to those heretofore outlined, some issues are
presented by the question of the remedy to be ordered if
unfair labor practices are found as alleged.
First, the General Counsel contends that the Union's
majority has been established and Respondent 's unfair la-
bor practices are such as to warrant a bargaining order
under Steel-Fab, Inc., 212 NLRB 363 (1974); N.L.R.B. v.
TOWN AND COUNTRY FAMILY CENTER
Gissel Packing Co., 395 U.S. 575 (1969); and General Sten-
cils, Inc., 195 NLRB 1109 (1972). If it is found, as alleged,
that the Fuchs discharge and the Mercer transfers were
violative of Section 8(a)(3), then the maximum size of the
unit is seven-White and Williams, who voted without
challenge; Nance and Senter, challenged by the Union;
plus Fuchs, Glenn Mercer, and Clifton Mercer, alleged dis-
criminatees . Since it is undisputed that four employees-
Fuchs, White, and the two Mercers-executed valid union
authorizations , there can be no question as to the Union's
majority on and after June 5, whatever decision might be
made on the challenges to Nance and Senter . Additionally,
if the unfair labor practices alleged during the postpetition
and preelection period are found, a fortiori the election will
have to be set aside. The issue will then become whether a
bargaining order should be issued without pursuing the
representation route.
Finally, Respondent maintains that if it is found that
Fuchs was discriminatorily discharged he should not be
ordered reinstated because of alleged misconduct after his
discharge . As incidental to this issue , Respondent contends
that it was prejudiced by the erroneous exclusion from evi-
dence of an ex parse written statement previously signed by
one of Respondent 's witnesses.
B. The Specific Allegations
1. Preliminary observations
Here, as in many similar cases, there are numerous alle-
gations of specific violations of the Act. As to most of the
allegations there is a sharp conflict of evidence, with Gott
specifically denying, either expressly or impliedly, the ac-
cusatory testimony by the General Counsel's witnesses. As
recently emphasized by the Court of Appeals for the Dis-
trict of Columbia, conclusory denials, standing alone, do
not necessarily constitute weighty evidence. Teamsters Lo-
cal 633 [Bulk Haulers, Inc.] v. N.L.R.B., 88 LRRM 2072,
2077 (C.A.D.C., 1974). To be sure, there are many situa-
tions in which there can be no corroborative proof of a
negative. That is the case as to a substantial part of Gott's
testimony. However, as will be seen below, there are some
significant areas in which Respondent failed to present rec-
ords which one would expect to produce if they supported
Gott's contentions. Additionally, much of the testimony of
Respondent's witnesses, including Gott, was vague, incon-
sistent, and improbable. But absence of corroborative evi-
dence where presumably available, inconsistencies as to
some details, and/or that somewhat ephemeral element
called "demeanor" are not necessarily decisive of the credi-
bility of conflicting evidence in vacuo, without reference to
the context. Accordingly, it is essential at the outset to view
the situation in its totality, as established by undisputed
evidence.
The undisputed evidence establishes the following back-
drop. Since the store was opened late in 1971 the meat
department was operated by its three original employees,
augmented by a fourth in February of 1973. Those four
employees then all signed union authorization cards and a
representation petition was filed. Gott, Respondent's prin-
cipal, was admittedly opposed to unionization and prompt-
1101
ly and repeatedly stated his position to each of the four
employees. Between the filing of the representation petition
and the election scheduled pursuant thereto the following
happened: Three employees were allegedly added-a sec-
ond wrapper and two inexperienced part-time employees
for essentially odd job cleanup work; the "head" of the
department was summarily discharged, allegedly for very
serious deficiencies wthich assertedly had been obvious
from the beginning of the operation, a period of over 2-1/2
years; another of the original meatcutters was transferred,
over his stated and reasonable objection, to a smaller and
less active store, allegedly to be trained as head meatcutter
for a new store to be built in the future on land not yet
chosen; a third employee was summarily transferred to an-
other store, considerably farther from his home, purported-
ly to replace a "retiring" meatcutter, who the evidence
shows had long since retired from that store, leaving no
present vacancy.
Thus Respondent's personnel actions after the represen-
tation petition was filed resulted in a busy, large-volume
meat department consisting of two "wrappers" and two
new part-time employees with virtually no experience, one
of whom was at the time prohibited from being trained on
major equipment and the second of whom was, at best,
doing a little "extra" work to supplement his temporary
summertime job. After the extraordinary and unprecedent-
ed spate of personnel changes, there was only one employ-
ee who had been employed when the representation peti-
tion was filed 10 and not one of the four alleged employees
had any competence or experience in meatcutting.
On these undisputed facts, it would be virtually impossi-
ble not to infer that Respondent, under the guidance of its
principal, had undertaken to assure defeat of the Union by
any possible means, including elimination of prounion em-
ployees and "padding the payroll" with unqualified nomi-
nal employees. It is this background against which the spe-
cific evidence must be appraised.
2. Section 8(a)(3)
At the outset, Respondent's union animus is clear. Gott
conceded that on several occasions he spoke against the
Union to each of the four employees here involved. Wheth-
er or not Gott made statements constituting violations of
Section 8(a)(1) (a matter discussed below), it is undisputed
that he clearly made known his disapproval of unioniza-
tion.ll
Respondent denies having had knowledge of the union
10 In its brief Respondent states that the four original employees had
"initiated the abortive unionization attempt ." Referring to the campaign as
"abortive" indicates knowledge of the views of the three alleged new em-
ployees. It is significant that Gott did not talk to any of these three employ-
ees about the Union , as he admittedly did on several occasions to the four
oniinal employees.
For example, concerning his talk with employee Clifton Mercer shortly
after the petition was filed , Gott testified , in part : "My opening statement to
him was essentially the same again that I related that I had received a letter,
that I was kind of disappointed in . . . that I was here to tell them that I was
against the union and that I felt the union couldn 't help them any more than
they could themselves. . . . I came back again probably about a week later
than that conversation , probably, maybe , the 10th of July or thereabout and
again stated my position , that I was against the union...."
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities or sympathies of the individual alleged discrimi-
natees . But there is no question that he knew of the repre-
sentation petition . That petition in itself would establish
that at least two of the four employees in the meat depart-
ment had signed authorization cards . Since removal of
three would assure destruction of any existing majority, it
would be unnecessary to show that Respondent knew the
position of each employee to establish discriminatory moti-
vation.
In any event , employees White and Glenn Mercer each
testified that Gott said he had learned that they had signed
union cards . Clifton Mercer testified that Gott "said that
he'd heard we had signed union cards" and Clifton had
confirmed that fact . I credit these employees ' testimony
and on the basis of it, together with the filing of the repre-
sentation petition, I find that Respondent had knowledge
of the alleged discriminatees ' union activities when they
were terminated or transferred.
I find that the abrupt elimination of all three meatcutters
and the purported acquisition of three new inexperienced
employees within a brief period immediately preceding the
election establishes a strong prima facie showing that, as
alleged , the transfers of the Mercer brothers and the dis-
charge of Fuchs were effectuated for the purpose of pre-
venting unionization of the Owensville meat department.
With such prima facie showing, it becomes necessary to
analyze Respondent's tendered explanation of the actions.
a. Transfer of Glenn Mercer
In October 1972 Glenn applied for a transfer to fill an
existing vacancy in the position of head meatcutter in
Respondent's Bourbon store . His request was denied and
the job of head meatcutter at Bourbon was given to Paul
Leaser, with Glenn remaining as a meatcutter at Owens-
ville. On July 24, 1974, Gott told Glenn that meatcutter
Lloyd Hoffineister wanted to "retire" and thus there would
be a vacancy in the Bourbon store . Gott said that, in view
of Glenn's prior request for transfer to Bourbon, he was
being offered a job there, with a wage increase to
Hoffineister's rate. Glenn said he would talk it over with
his wife . On Saturday, July 27, Glenn reported to Gott that
he did not want to transfer because the Bourbon store was
located in the opposite direction from his wife 's current
place of employment . Gott said that, nonetheless, the
transfer was being made and Glenn was to report at the
Bourbon store the next Tuesday, July 30.
Respondent maintains that the transfer was necessitated
by the "retirement" of Lloyd Hoffmeister. Credited, and
largely uncontradicted , evidence , much of it provided by
Respondent's witnesses , establishes the following facts con-
cerning Lloyd Hoffineister . He lives in Saint James, Mis-
souri, but, apparently for a long time, had worked full-time
in the market in Bourbon, which is about 25 miles from
Saint James . In October 1972 12 he decided to go into
"semi-retirement," giving up the relatively long drive to
and from work and possibly working less than full time.
Lloyd Hoffmeister at that time transferred to the Saint
12 Thu, it should be noted , was the same time that Paul Leaser was made
head meatcutter at Bourbon.
James store. In March of 1974 Hoffineister transferred
back to Bourbon temporarily, while Leaser was incapaci-
tated by surgery. Respondent produced no time records
concerning Hoffineister although the evidence clearly es-
tablishes that he, like all other employees, punches a time-
clock. The testimony, though somewhat vague, indicates
that Leaser had fully recovered and Hoffmeister had re-
turned to the Saint James market at least by mid-June.
Further, Clifton Mercer, who was transferred from the Ow-
ensville market to the Saint James market a few days be-
fore the election, testified that Lloyd Hoffmeister was pres-
ent and working there on a virtually full-time basis. Carl
Hoffineister, head meatcutter at Saint James, disclaimed
knowledge of how many hours his brother, Lloyd, worked.
Thus Clifton Mercer's testimony was uncontradicted and
disproves Lloyd Hoffineister's alleged "retirement."
Harlen Kirkham, store manager in Bourbon, testified
that when Lloyd Hoffmeister "retired" back to the Saint
James market, a full-time replacement was needed at Bour-
bon. However, as previously noted, Lloyd Hoffineister had
originally gone to Bourbon only for the duration of
Leaser's incapacity. Thus there was no apparent reason for
replacing Lloyd Hoffmeister upon Leaser's full recovery.
Respondent presented no records or other probative evi-
dence of any increase in the volume of business or other
factors calling for enlargement of the Bourbon meat de-
partment above its personnel strength before Leaser's ill-
ness . The uncontradicted testimony indicates that the Ow-
ensville market is larger and busier than that in Bourbon.
Yet Respondent would have one believe that Lloyd
Hoffineister's "retirement" created such an urgent need
that Glenn's abrupt and reluctant transfer was required
even though the Owensville market would be left soon with
no meatcutter, at the same time that, according to Granne-
mann, new employees Williams and Senter were being
added at Owensville because more help was needed.
b. Transfer of Clifton Mercer
Clifton Mercer lives in Sullivan , Missouri, which is about
6 to 8 miles northeast of Owensville . As previously stated,
he started to work in the Owensville meat department in
February 1973.
On July 3 and 12, 1974, after the Union' s representation
petition had been filed, Gott spoke to Clifton about the
Union. The details of the conversations are discussed be-
low; suffice it to say at this point that in these conversa-
tions Gott admittedly expressed his strong disapproval of
unionization . After the second conversation Clifton went
on vacation , returning around the end of July.
Clifton testified that after he returned from vacation he
was approached by Gott, who said that Respondent had
just purchased some land in Steelville , Missouri, where Re-
spondent planned to erect a new market . Gott then pro-
posed to transfer Clifton to the Saint James market, to be
trained by head meatcutter Carl Hoffineister for eventual
assignment as head meatcutter in Steelville . Clifton twice
rejected the offered transfer because Saint James was ap-
proximately 40 miles from his home. Gott then ordered the
transfer and Clifton obeyed, still expressing his reluctance
despite Gott's offering to pay mileage for the 80-mile per
TOWN AND COUNTRY FAMILY CENTER
day round trip and to provide Clifton with new tires at a
low price.
Gott testified that, as of the time of the hearing, in Octo-
ber 1974, Respondent was still "searching very diligently
for property" on which to build the proposed Steelville
market . Carl Hoffmeister , called by Respondent, testified
that he "heard that it would be at least a year or more"
before a market would be opened in Steelville.
When Clifton went to the Saint James market, he was
the fourth meatcutter (and sixth employee) in that depart-
ment, while , with the simultaneous discharge of Fuchs, the
Owensville market department was left with two wrappers,
one young general utility worker, one part-time cleanup
man and no meatcutter . Carl Hoffmeister conceded that in
the 5 weeks Clifton worked at the Saint James market he
was given "very little" training . Hoffmeister "had him,
mostly acquainting him with stocking the cases , keeping
fresh products, rotating the products , working on lunch
meats and showing him the trim . He done very little cut-
ting." If, as Gott testified , Clifton had been chosen for
training as a future head meatcutter because of his abili-
ty,13 it is doubtful that he needed extensive training in
stocking and rotating merchandise , which functions can be
performed by wrappers and inexperienced personnel like
Senter . Clifton testified , credibly and without contradic-
tion, that he did not and could not receive any significant
training in cutting meat at Saint James because the volume
of meat sales was very low. Whatever deficiencies Respon-
dent claims to have found in Fuchs' performance as head
meatcutter (a matter discussed below), it was conceded
that Fuchs was a fully competent meatcutter and butcher.
Thus , with the large volume of business at the Owensville
store, Clifton could learn more there than he could at the
low-volume Saint James meat department.
In its brief Respondent attaches considerable impor-
tance to the fact that while Clifton repeatedly expressed his
reluctance to transfer to Saint James, he "at no time re-
fused" to transfer when so directed by Gott (emphasis in
the original). That Clifton apparently wanted his job suffi-
ciently to accept an undesirable assignment has no tenden-
cy to rebut the clear inference that Gott was intent on
removing Clifton from the bargaining unit before the
scheduled election.
Respondent 's brief also says that "Clifton quit after
working only a few weeks with Carl Hoffmeister at Saint
James, because he apparently could not keep up with the
pace demanded of him there ." But uncontradicted testimo-
ny by Clifton establishes that he left Respondent's employ
to work as a meatcutter in Sullivan , Missouri , his home, at
a wage of $3 per hour as opposed to the $2 .70 he received
from Respondent.
c. Discharge of Fuchs
Respondent contends that Fuchs was discharged for
poor performance. The congeries of charges leveled against
Fuchs included maintenance of unsanitary conditions, im-
proper purchasing, deficient "merchandising," 14 inade-
13 In defending Fuchs' discharge, Respondent' s witnesses maintained that
all the Owensville meatcutters were incompetent.
1103
quate "rotation," IS failure to maintain records and failure
to claim credits due from suppliers.
To support its criticism of Fuchs Respondent presented
the testimony of Eddie Watson, Respondent's systemwide
meat supervisor; Elmer Grannemann, store manager at the
Owensville market; Ronald Torbit, assistant meat supervi-
sor; Charles Holland, meat supervisor of Associated
Wholesale Grocers, a membership association to which
Respondent belongs and from which it purchases much of
its merchandise; and Wayne Gott, Respondent's presi-
dent.16 Each of these witnesses testified that the deplorable
condition of the Owensville meat department had pre-
vailed from the very beginning of the operation in Decem-
ber 1971. For example, Holland testified that on his visits
to the Owensville market during 1972 he observed: "Over-
buying, sanitation has been a problem from the start of the
store, from the time the store opened." And then in his
visits during 1973 he noticed that conditions were "pretty
near all the same as they had been in the past, poor sanita-
tion , overbuying, misrotation, sanitation." Watson testified
that he visited the Owensville market about 6 to 10 times in
each of the years 1972 and 1973 and the problems were
always the same despite Watson's efforts to instruct and
help Fuchs each time. Watson said that, although he saw
some improvement "from time to time," matters always
soon deteriorated so that there was no general or overall
improvement.
Grannemann's role is illuminating. According to
Respondent's witnesses, the store managers have virtually
complete autonomy, with Gott delegating all operating and
most personnel details to the store managers . Grannemann
has had some 28 years' experience as a meatcutter, includ-
ing operation of his own meat market. He testified that he
visits every department of the store 17 at least 5 to 10 times
each day. While he maintained that conditions were always
bad, the only action he ever took was to increase the staff,
first by adding Clifton Mercer early in 1973 and then add-
ing Williams and Senter around the end of June or the
beginning of July 1974, to "put some help back there" be-
cause of the deplorable conditions. Although Grannemann
testified that he had spoken to Watson about the problems
on several occasions, Grannemann never recommended or
even suggested that Fuchs be discharged. At no time was
any attempt made to find or train a replacement. Granne-
mann was not consulted about or given any advance notice
of Fuchs' discharge.
After having testified critically concerning Fuchs' alleg-
edly bad buying habits, Grannemann was pressed for some
details . He specified three instances: the underpurchase of
turkeys for Thanksgiving in 1972, the overpurchase of tur-
keys for Thanksgiving in 1973, and an overpurchase of
chickens. But Grannemann then disclosed that in each in-
stance the quantities to be purchased were decided upon at
14 "Merchandising" consists generally of cutting meat in such a manner
as to create relatively high-priced cuts, thus increasing the total sales value.
15 "Rotation" refers to the practice of having the relatively older products
at the front of the counters so they will be the first items sold.
16 In addition , Senter and Nance, "new employees" discussed above, indi-
cated their disapproval of the condition of the Owensville meat department.
17 Contrary to Grannemann 's testimony , Senter, testifying on behalf of
Respondent , said that Grannemann virtually never visits the meat depart-
ment.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least jointly by Grannemann and Fuchs. Indeed, I credit
the testimony by Fuchs and Clifton Mercer to the effect
that the purchasing errors were committed by Granne-
mann in countermanding Fuchs' decisions. Fuchs had pre-
viously complained to Watson and Gott about
Grannemann's improper interference in ordering.
Holland also suggested that Fuchs made excessive pur-
chases from independent suppliers rather than at lower
prices from the Association. Holland did not attribute this
conduct to any suspected venality by Fuchs, but rather
ascribed it to Fuchs' probable desire to avoid having to
unload trucks, which generally is required on Association
shipments but not on independents' shipments. However,
the evidence establishes that grocery department personnel
generally do the unloading so that outside purchases would
not materially lessen Fuchs' work. Moreover, Holland con-
ceded that all of Respondent's 17 markets make purchases
from outside suppliers and there is no record or other evi-
dence to indicate that Fuchs did so any more than other
head meatcutters.
Grannemann also testified that the Owensville meat de-
partment "lost money" in 1972 and in 1973, although he
disclaimed knowledge as to which year showed the greater
"losses" or whether the department was making or losing
money in 1974. In the absence of any records, no findings
can be made on the basis of Grannemann's vague, conclu-
sionary testimony, particularly in view of Clifton Mercer's
uncontradicted testimony that Gott said the department
had broken even in 1973 and was showing some profit in
1974. In any event, it is significant that Grannemann ap-
parently did not attribute any unfavorable financial results
to Fuchs' performance, since Grannemann's method of
correcting matters was to enlarge the staff and increase the
volume of business by selling more "hot ad" items; i.e.,
well-advertised bargains. Grannemann testified that while
such "hot" sales would increase the sales volume, and thus
the amount of work to be done in the department, they
would "not necessarily" increase profits. Grannemann's
action thus is inconsistent with a belief that inefficiency on
the part of Fuchs and his colleagues 18 was the source or
cause of any alleged "losses."
Respondent stresses the alleged unsanitary condition of
the meat department as a primary reason for Fuchs' dis-
charge. A major problem was the presence of water on the
floor of the cooler. The evidence shows that water did ac-
cumulate as a result of melting ice when chickens were the
"hot" sales item. There was no drain in the floor of the
cooler and frequently there was insufficient manpower to
keep the floor mopped when the volume of chickens was
high. After testifying that Fuchs' problems were perennial,
Watson proceeded to describe a visit he made to the store
in February 1974, when he found conditions very bad and
assisted Fuchs in getting the department cleaned up. De-
spite his claim that any improvement Fuchs had occasion-
ally shown in the past was always temporary, Watson did
not recommend Fuchs' discharge in February and did not
18 In this connection it may be observed that at least Torbit condemned
the entire staff of the Owensville meat department ; yet Gott testified that
both Clifton and Glenn Mercer were qualified to be chosen for training by
Carl Hoffmeister for the position of head meatcutter.
return to the store until June 22, when he again found the
department in bad condition. He testified that it was then
that he recommended Fuchs' discharge.19 Significantly,
however, he testified that he made the recommendation to
Max Penner, who is associated with Gott in ownership of
some stores but who apparently has no interest in or con-
nection with the Owensville market. No explanation was
forthcoming of Watson' s failure to discuss his recommen-
dation with Gott although they had offices in the same
building in Salem. Penner never mentioned the matter with
Gott.
Torbit also testified that he had been at the Owensville
market , filling in for vacationing employees, during the last
2 weeks in May and the first week in June. Although he
allegedly found extremely unsanitary conditions, he did
not mention the matter to Gott, whom he saw frequently.
It would serve no useful purpose to review the volume of
additional testimony by Respondent' s witnesses concern-
ing the execrable conditions they claim to have found in
the Owensville meat department under Fuchs' supervision.
The significant fact is that during the entire 2-1/2 years
before the union campaign began nobody ever recom-
mended that Fuchs be discharged, demoted, and/or re-
placed. Nor is there any credible evidence that he was ever
reprimanded. In marked contrast to Respondent's claimed
2-1/2 years' indulgence of Fuchs, another head meatcutter
had been discharged after 3 or 4 months' service because
he refused to follow Respondent's methods of merchandis-
ing and rotation.
Respondent also complains of Fuchs' alleged failure to
maintain adequate records. There was no credible evidence
that Respondent required its head meatcutters to keep any
type of records. Holland testified that he had frequently
asked Fuchs to keep records but Fuchs had not done so.
Grannemann testified that he himself kept "running" in-
ventory records and that the Association prepared formal
inventory reports for Respondent on an annual basis.
Grannemann never made clear what additional records he
had fruitlessly asked Fuchs to keep. Grannemann testified
that for a while White had voluntarily undertaken to keep
certain records but that she reported to Grannemann that
Fuchs had declined to refer to them. Grannemann did not
undertake to explain his indulgence of Fuchs' alleged dis-
obedience for over 2-1/2 years.
Gott testified that the "distribution" 20 of the Owensville
market became progressively unsatisfactory after April
1974. No record or other specific evidence was produced.
And Respondent provided no enlightenment as to the dis-
tribution in the Saint James market, where the meat de-
partment was managed by Carl Hoffmeister, whom Re-
spondent points to as a superlative head meatcutter. Nor
did Respondent tender any reason for blaming Fuchs for
the claimed decline of the meat department distribution in
19 Watson's memory was most selective . While he gave the precise time,
date, and place (between 3 and 4 p.m. on June 22 at Mountain Grove) at
which he allegedly recommended Fuchs' termination , he was unable to re-
call even the approximate dates of virtually all other incidents to which he
testified. For example , he first testified that sometime in 1973, which he
could not even vaguely date, he recommended to Gott that Fuchs be fired.
However , he later denied having done so in 1973.
20 "Distribution" refers to the ratio of sales by the department to total
sales of the market.
TOWN AND COUNTRY FAMILY CENTER
Owensville after April. Gott apparently never looked to
Grannemann, who, as store manager, would presumably
be primarily responsible.
From time to time retail stores are entitled to receive
credits from their suppliers for defective goods. Around the
middle of July 1974 the Owensville market asked Associat-
ed Wholesale Grocers about two claims for credits which
had not as yet been granted. In response to the inquiry, an
Association representative noted: "We have never received
or issued any credits to this store. Does he know how to
handle credits?" From this evidence Respondent argues
that Fuchs' inefficiency had necessarily cost Respondent
money in lost credits over the years. Fuchs, however, testi-
fied that he had frequently claimed and received credits.
Watson testified that on numerous occasions he had exam-
ined Fuchs' credit books and: "I don't recall on any occa-
sion that [there] were items listed in the book that needed
to be sent in or any-in other words, the pages were gone
and I assumed they were being sent to the warehouse."
Respondent never suggested any explanation for the ab-
sence of pages from Fuchs' book other than the obvious
inference that Watson had drawn. There is no apparent
reason why Fuchs would have removed slips from his book
but then failed to send them in for credit. And, as the
General Counsel points out, there is no suggested explana-
tion of Fuchs' having inquired in July 1974 about two cred-
its, totalling around $30, if to do so would bring to light a
longstanding nonperformance. Nor is there any suggested
explanation for the Association's failure to note the ab-
sence of claims, in view of its important function of main-
taining close advisory supervision over the operations of its
members' stores. And most significantly, there is no indica-
tion of how such an alleged longstanding dereliction of
duty could have escaped the watchful eye of Grannemann,
who alone handled all monetary phases of the store's oper-
ation. Although Gott testified that he considered the mis-
handling of credits to be the "cork in the bottle" as to
Fuchs, he did not discuss the matter with either Fuchs or
Grannemann before discharging Fuchs. Indeed, Gott con-
ceded that as late as August 23 he had taken no action
concerning alleged unclaimed credits, which might repre-
sent a substantial sum of money over an extended period
of time.
The vagueness of Respondent's evidence underscores the
overall picture of an employer searching for any and every
potential justification for Fuchs' discharge. Respondent
has so overdrawn its picture as to constitute its own refuta-
tion; as the General Counsel argues , it is inconceivable that
Respondent would have left Fuchs in charge of the meat
department of its new and large market for "so much as
half a day, much less 2-1/2 years," if his performance had
been even remotely as bad as Respondent now contends. It
bears emphasis that throughout Fuchs' employment, Re-
spondent made no attempt to hire or train or otherwise
obtain a replacement.
d. Conclusion as to pre-election discrimination
The abrupt transfers of Glenn and Clifton Mercer and
the discharge of Fuchs, three of the four experienced and
long-term employees in the meat department, within 10
1105
days before the scheduled election, particularly when cou-
pled with the purported recent addition of three inexperi-
enced new employees, were obviously designed to under-
mine the Union's majority and assure its defeat in the
scheduled election. If the timing did not by itself establish
Respondent's motive, Gott's formalized attempt to prohib-
it the Mercer brothers from voting would remove any
doubt. The conclusion is underscored by the unsupported
and incredible explanation for its actions that Respondent
has presented. On all the evidence, there can be no doubt
that the discharge and transfers were violative of Section
8(a)(3) of the Act.
e. Constructive discharge of Melba White
As previously noted, White had been hired when the
store opened in December 1971. The undisputed evidence
establishes that she had been a satisfactory employee and
her work had never been adversely criticized.
She signed a union authorization card on June 5 and
served as the union observer at the election on August 7. It
is essentially undisputed that on August 7, right after the
election, she announced her resignation, to be effective,
with Gott's concurrence, at the end of her next working
day, Friday, August 9.
White testified as follows concerning the circumstances
of her "resignation":
We were excused from the voting, it was over with,
and we went back to work. A little later Mr. Gott
came in the room and he and Ronnie 21 walked off
into the store room and they were gone approximately
two or three minutes. Then they came back and Mr.
Gott came over to where I was working and he said,
"Well, Melba, I see that you voted" and I said, "Yes,
I did," and he said, "You know no one was in that
booth to tell you how to vote?" and I said, "No," and
he said, "Ronnie tells me that you will be leaving,"
and I said, "Yes, I'll leave."
White testified that she had become nervous and thus
largely unable to work because of fear that she would be
discharged. This fear stemmed from the discriminatory
treatment that had been given her three colleagues. As
she put it to Torbit on August 9, she "would rather go
today than have Wayne [Gott] fire [her] tomorrow." White
conceded that she had never been directly threatened with
discharge, but added that Gott "didn't tell [her] that he
wouldn't fire" her.
Torbit testified that White was extremely nervous and
was crying. He quoted her as having said, in part:
I have gotten into something that I really didn't want
to. I am in it with the boys. We are all in it together. I
can't get out. We live in a small town, and people
would talk about me. I am just going to have to go
through with it.
According to Torbit, White also expressed her fear that she
was about to have a "nervous breakdown" and she was
21 Ronald Torbit, who assumed temporary management of the Owensville
meat department after Fuchs' discharge.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to be a proper wife and mother. He further testified
that he urged her to stay because she was "the only one we
can depend on in this job." He said he suggested that he
would try to get her a week or two off to recover her com-
posure . Torbit testified that after White thought it over she
reported back that she would have to quit because she and
the three men "were in this together " and that "people
[would] talk about" her if she remained.
Gott testified that he urged White to remain . Gott's testi-
mony proceeded:
She said, "I appreciate that ," but she said , "I feel like
that I had better go ahead and quit ." She said , "I feel
like that I would be letting the other fellows down if I
stayed here and that they might think that I was
brown nosing and got a raise to stay ." She said , "I just
think I would be better off to quit."
Although White denied that she had been requested to
remain , she did disclose that both Torbit and Grannemann
asked her if she had changed her mind , which might be
viewed as at least an implied request that she reconsider
her decision to quit.
I find both White 's and Respondent 's versions of her
resignation essentially credible and not substantially incon-
sistent with each other . There is no question that White felt
under great emotional pressure. She had made common
cause with Fuchs and the Mercer brothers and they had
suffered for the group 's activity . White certainly could not
be condemned if she felt some guilt , even though not factu-
ally warranted , if she took advantage of her preferred treat-
ment . Nor would it be totally irrational for her to fear
disapproval in the community for letting her buddies
down . Solidarity was the core of the matter . Additionally,
her colleagues' fate would reasonably create in her a feel-
ing of insecurity , which might well be aggravated by the
recent addition of Williams as a wrapper with no evidence
that the services of two wrappers were required . This com-
bination of fear of community censure and feelings of guilt
and insecurity could readily make continued employment
with Respondent so uncomfortable as to be virtually un-
bearable, particularly to a person as nervous as Respon-
dent describes White . Cf. N.L R.B. v. Saxe-Glassman Shoe
Corp. 201 F .2d 238 , 243 (C.A. 1), enfg. 97 NLRB 332, 333,
349-351 . In the present case there can be no doubt that
Respondent's unfair labor practices were the effective
cause of her dilemma , which inevitably affected her health
adversely . Thus, analytically it might be said that she was
constructively discharged because Respondent 's unfair la-
bor practices had made it impossible for her to continue to
work with any semblance of equanimity or comfort. And it
might also be said that Respondent should have antici-
pated White's reaction to the situation.
On the other hand , however, it is established Board law
that an employee is not constructively discharged if he
quits in anticipation of being discharged , as White testified
she did . Acute Systems, Ltd. d/b/a McDonald's, 214 NLRB
No. 127 ( 1974), citing Action Wholesale, Inc., 145 NLRB
627, enfd . 342 F .2d 798 (C.A. 9, 1965). Nor is an employee
deemed to have been constructively discharged if he quits
rather than accepting working conditions improperly im-
posed by the employer's unfair labor practices . Walker
Electric Co., 142 NLRB 1214, 1215 (1963). In Coats &
Clark, Inc., 113 NLRB 237, 238 (1955), enfd. in pertinent
part 241 F.2d 556 (C.A. 5, 1957)?2 the Board said broadly:
An employer violates Section 8(a)(3) of the Act with
respect to an individual employee only if, by some
action, it discriminates against that employee. There-
fore , if an individual quits his job, the employer is not
legally responsible for that action , unless it can be
shown that the quit was the culmination of a plan or
scheme on the part of the employer to force such ac-
tion.
Subsequent decisions have sharply distinguished between
unfair labor practices calculated only to discourage union
activities , on the one hand, and conduct successfully de-
signed to force the employee's resignation , on the other
hand. See, e.g., Omark-CCI, Inc., 208 NLRB 469 (1974),
holding that an employee had not been constructively dis-
charged when she quit after having been the object of sev-
eral unfair labor practices. In dismissing the constructive
discharge allegation, Administrative Law Judge Shapiro
said "The unfair labor practices directed against Gau did
not constitute the kind of misconduct calculated to cause
Gau to quit. The discriminatory change in her job duties
did not make the job undesirable or working conditions
onerous. . . . These unfair labor practices . . . . were de-
signed merely to thwart the employees', including Gau's,
union activities , and were not a tactic designed to drive
Gait into an involuntary quit." 23 In Central Credit Collec-
tion Control Corp., 201 NLRB 944 (1973), the Board af-
firmed without comment a decision by Administrative Law
Judge O'Brien which included the following statement:
This case presents the common situation where an
employer's unfair labor practice is designed to thwart
its employees' union activity while retaining them as
employees . In such circumstances, voluntary aban-
donment of employment is not a constructive dis-
charge.
One can hardly fail to have considerable sympathy for
Melba White , who, through Respondent 's unfair labor
practices , suffered considerable anxiety by being placed in
an embarassing situation vis-a-vis her colleagues, with
whom she had embarked on concerted activities . Avoid-
ance of the appearance of personal disloyalty cost her her
job. However, it cannot be said on the present record that
Respondent's conduct represented or reflected any desire
to have White leave its employ. To the contrary, having,
hopefully, assured defeat of the Union by eliminating three
of the original employees and adding three neophytes, Re-
spondent was undoubtedly most desirous of retaining
White, the only employee familiar with the work of the
department . Under these circumstances , Board precedents
appear to require rejection of the claim that White was
constructively discharged.
22 The court held that the Board could not properly order reinstatement
of an employee who quit because of unfair labor practices but was held not
to have been constructively discharged.
22 This holding, however, is not completely authoritative as precedent
since it was not excepted to (208 NLRB 469).
TOWN AND COUNTRY FAMILY CENTER 1107
3. Section 8(a)(1)
The complaint alleges multiple violations of Section
8(a)(1) in the course of conversations Gott had with the
four meat department employees between early July (after
the representation petition was filed) and early August (just
before the election). There is also one allegation of unlaw-
ful interrogation on August 7, just after the election.
The four employees (Fuchs, White, and the two Mercer
brothers) all testified that around July 5, approximately a
week after the Union filed its representation petition, Gott
visited the Owensville market and spoke to each of them
individually. As detailed below, the employees testified
that, in the course of making clear this opposition to union-
ization, Gott engaged in numerous unfair labor practices,
including unlawful interrogation, threats and promises,
and creating the impression of surveillance. The employees
testified to further similar activity by Gott at later dates
during the preelection period.
Gott confirmed having had the conversations in ques-
tion but maintained that he had kept his statements within
the bounds of statutorily protected free speech. He specifi-
cally denied virtually all employee testimony concerning
the crucial, violative statements.
As is apparent from the previous portion of this decision,
I have found that Gott was motivated by a determination
to defeat the Union at any cost. As an essential part of my
previous findings, I have discredited his testimony so far as
it relates to the reason for the discharge of Fuchs and the
transfers of Clifton and Glenn Mercer. His testimony con-
cerning the content of his conversations with the four em-
ployees bears no greater indicia of truth or accuracy. In the
nature of things, it could not be corroborated. On the other
hand, the testimony of the four alleged discriminatees is in
large part mutually corroborative. In contrast to the appar-
ent excesses of Respondent 's testimonial evidence concern-
ing Fuchs' alleged deficiencies , the employees' testimony
was essentially free of bombast or exaggeration .24 Each of
the employees impressed me as attempting to state the
facts truthfully and without embellishment. Overall, I cred-
it the employees over Gott where their testimony conflicts.
The testimony of the four employees establishes the fol-
lowing facts:
a. Interrogation and impression of surveillance
Around July 5 Gott spoke to each of the four employees
individually. It is undisputed that he told each of them that
he was opposed to unionization and believed that the
Union could not do anything for the employees that they
could not do for themselves.
Clifton Mercer testified that in his conversation, Gott
said that "he'd heard we had signed union cards, and I said
yes." Similarly, Glenn Mercer testified that Gott said
"Glenn, I understand you signed a union card, is this cor-
rect? And I said yes, it is." Fuchs also testified that at
the outset of his conversation Gott asked if Fuchs had
24 A possible exception to this judgment was Fuchs ' probable overestima-
tion of the number of armed guards posted at the market after he was fired.
That matter is discussed below.
signed a union card and Fuchs answered in the affirmative.
And Melba White testified that Gott started his conversa-
tion with her by saying "that he had received the bad news
that [she] had signed a union card and [she] said yes [she]
had." 25
According to Fuchs, around July 10 Gott asked if Fuchs
had made up his mind how he intended to vote and Fuchs
replied that he had not decided. Similarly, White testified
that around July 20 Gott asked her if she had made up her
mind which way she was going to vote. When she replied
that she thought she had decided, Gott asked if she could
tell him her decision, but she declined to do so. Fuchs
further testified that as he was leaving work one day
around July 27 (about a week before he was discharged),
he was stopped by Gott. According to Fuchs, Gott asked if
Fuchs had decided to say that he was going to vote against
the Union. When Fuchs answered in the negative, Gott
said that Fuchs would have to make up his mind soon
because the election was fast approaching.
Despite Gott's denials, I credit the foregoing testimony
and find that it establishes that during the preelection peri-
od Respondent, through Gott, coercively interrogated em-
ployees and created the impression that their union activi-
ties were under surveillance, all in contravention of Section
8(a)(1) of the Act.
The General Counsel also contends that Gott engaged in
unlawful interrogation when, in the conversation early in
July, he asked if Fuchs had "ever worked for a Union." In
context, as quoted by Fuchs,26 this question by Gott ap-
pears to have been but a step in a valid argumentative
process and not in itself designed to secure information.
The question could not have been understood as suggest-
ing that past union membership would be held against
Fuchs. Accordingly, I do not find that it was violative of
Section 8(a)(1).
On August 5 the Union filed a charge alleging, inter alia,
that Respondent had violated Section 8(a)(1) by "granting
employees fully paid health insurance." Melba White cred-
ibly testified that on August 7, right after the election, Gott
asked her who had informed the Board about the grant of
health insurance . I find that, as the General Counsel con-
tends, Gott's question was violative of Section 8(a)(1) since
it would naturally tend to discourage employees' recourse
to the Board, a valuable statutory right.
b. Threats
Clifton and Glenn Mercer, White, and Fuchs all quoted
Gott as having said that he would not negotiate with the
Union if it won. And in the course of these conversations
he indicated that a strike would inevitably follow upon a
union victory. White's testimony was that Gott said: "Mel-
ba, you know I am against the union and there is no way
that I can negotiate and if the union goes in they can put a
25 There was no contradiction of Gott's testimony that he did not speak to
the three alleged new employees (Williams, Nance , and Senter) about the
Union.
26 Fuchs testified : "He said , 'Well, you know how I feel about a union.' I
said, No, I don't ' He said , 'Have you ever worked for a union before" I
said , No. I never have.' He said , 'It's something else.' I said, 'Is that right?'
He said, yes."
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket all around the store." Clifton Mercer testified that
Gott said "if the union was voted in that he would not sign
a contract." Glenn Mercer quoted Gott as having said: "If
the union goes in, I will not negotiate, no contract ." Fuchs
testified that Gott said he would not negotiate a contract
and added: "You might have picket lines all over this
place, but, . . . I'm not going to tell you what I'm going to
do. . . . I'm not going to be asleep."
Such indications of the futility of unionization and the
inevitability of strikes are clearly violative of Section
8(a)(1).
Fuchs credibly testified that Gott said that if the Union
came in the meat department employees would have to
unload trucks , whereas at present the unloading was done
by the truckdrivers or by grocery clerks. White credibly
testified that Gott concluded his conversation with her
around July 5 by saying: "Melba , you will be seeing a lot
of me and you will hate to see me walk in that door." And,
according to White, on July 20 Gott said he might "be
forced to take drastic steps," which he would not specify.
Fuchs also quoted Gott as having said that the employees
were "going to see [his] face more often." Though possibly
somewhat ambiguous in themselves, in the total context
these statements could not reasonably be understood as
other than threats of increased top-level supervision and
adverse working conditions to be imposed in reprisal for
the employees' union activities. As such they were violative
of Section 8(a)(1).
At one time during the preelection period Gott showed
Clifton Mercer a collective-bargaining agreement (between
unidentified parties) and pointed out that the contractual
wage rate for grocery clerks was only $2.80 per hour, which
is substantially less than experienced meatcutters earn and
only slightly more than Clifton was then making. Since
Clifton had originally worked in the grocery department
and was still working there part of his time, Gott's conduct
could not have been meant or understood as other than an
implied threat that Clifton would be transferred back to
full-time classification as a grocery clerk, with attendant
restriction on his earning potential, in the event of union-
ization. The conclusion is reinforced by Clifton's addition-
al credited testimony that Gott noted that Grannemann
held union membership and thus could work short periods
to avoid a union requirement that a meatcutter be paid for
at least 4 hours each time he works. I thus find, on the basis
of Clifton Mercer's testimony, that Respondent, through
Gott, unlawfully threatened an employee with loss of work
and pay if the employees chose to be represented by the
Union.
Finally, Fuchs credibly testified that on July 27 Gott
threatened to discharge Fuchs if he persisted in refusing to
say that he had decided to vote against the Union. That
this was no idle rhetoric is demonstrated by Fuchs' actual
discharge a week later. This threat blatantly violated Sec-
tion 8(a)(1).
c. Benefits and promises
The General Counsel contends that Respondent unlaw-
fully held out the prospect of a profit-sharing plan if the
employees rejected the union. To support this contention
he relied on the following testimony by Clifton Mercer:
[Gott] said that the first year that the store was open
the department went in the hole, and the second year
that it broke even, and that as of this year, it has made
a little . . . he said that if his profits continued to
grow, he would share them with us.
This testimony establishes no more than an indefinite, gen-
eral indication that the employees could look forward to
increased pay if the business prospered. It cannot reason-
ably be understood as having been a promise, express or
implied, of any definite profit-sharing benefit, which would
be granted if the employees rejected the Union but with-
held if the Union was voted in. Accordingly, I shall recom-
mend dismissal of the relevant allegation.
The complaint also alleges that Respondent unlawfully
"promised . . . new insurance coverage" during the pre-
election period. The evidence establishes that by June 19,
before the representation petition was filed, Respondent
had made arrangements to cover the Owensville market
employees by company-paid health insurance, a benefit
then enjoyed by employees at only 5 of Respondent's 17
stores. In his brief, the General Counsel expressly disavows
any contention that securing the insurance coverage was
violative of the Act; he maintains only that it was unlawful
for Respondent to inform the employees of the new cover-
age during the preelection period, after the representation
petition was filed.
The General Counsel's contention must be rejected. It
cannot reasonably be held that Respondent was required
to conceal innocent facts from the employees simply be-
cause the facts (namely the existence of insurance cover-
age) might lessen their ardor for unionization.
The complaint alleges further that Gott "impliedly of-
fered an employee a benefit, and solicited employee griev-
ances" to discourage union activities. The General Counsel
supports this allegation by reference to Clifton Mercer's
testimony that on or about July 12 Gott approached Clif-
ton about the Union for the second time, and "said that he
wanted me to know that he was still deadly against it and
that he couldn't ask me no questions of how I felt about it,
but he could listen to what I had to say." In my opinion
this testimony is insufficient, even in the context of
Respondent's aggravated unfair labor practices, to estab-
lish the solicitation of grievances and an implied promise
to meet any employee complaints. Accordingly, I shall rec-
ommend dismissal of this allegation in the complaint.
Finally, the General Counsel contends that because the
discriminatory transfers of the Mercer brothers and the
discharge of Fuchs led White to quit, they were violative of
White's rights under Section 7 and thus independently vio-
lated Section 8(a)(l). But the essential vice in any discrimi-
natory action is its discouragement of union activities by
other employees as well as by the discriminatees. Yet it has
not generally been held that such discriminatory action is
violative of Section 8(a)(1) other than derivatively. Accord-
ingly, I do not find that the unlawful discrimination
against Fuchs and the Mercer brothers was independently
violative of Section 8(a)(1)?7
27 As heretofore set forth , even if it were found that the discriminatory
TOWN AND COUNTRY FAMILY CENTER 1109
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material
herein, 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 meaning
of Section 2(5) of the Act.
3. By transferring Glenn Mercer from the Owensville
market to a market in Bourbon, Missouri, on July 27, 1974;
by transferring Clifton Mercer from its Owensville market
to a market in Saint James, Missouri, on August 3, 1974;
and by discharging Wilbert Fuchs on August 3, 1974, and
by refusing thereafter to reinstate said employees in the
Owensville market, Respondent has discriminated in re-
gard to hire and tenure of employment to discourage mem-
bership in a labor organization, and thereby has committed
and is committing unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act.
4. By coercively interrogating employees concerning
their union activities and sentiments; by creating the im-
pression that employees' union activities were being kept
under surveillance; and by threatening to discharge an em-
ployee, to impose less desirable working conditions and not
to engage in good-faith collective bargaining if the employ-
ees chose to be represented by the Union, Respondent has
committed and is committing unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
5. It has not been established that Respondent has en-
gaged in any unfair labor practices other than those herein-
above found.
6. The appropriate collective-bargaining unit consists
of:
All meat department employees at the Employer's
Owensville , Missouri , facility , excluding all office cler-
ical employees, supervisors as defined in the Act, and
all other employees.
7. At all times material herein the Union has repre-
sented a majority of the employees in the above -described
appropriate collective-bargaining unit.
THE REMEDY
Having found that Respondent has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend
that it be required to cease and desist therefrom and take
affirmative action designed to effectuate the policies of the
Act, in accordance with Board practice in such cases. Be-
cause of the aggravated nature of the unfair labor practic-
es, which go to the heart of the Act, I shall recommend
issuance of a broad cease-and-desist order. Having found
that Clifton Mercer and Glenn Mercer were discriminato-
rily transferred I shall recommend that Respondent be re-
quired to offer them full and immediate reinstatement to
their former positions at the Owensville market.
Respondent contends that it should not be required to
reinstate Fuchs because of his alleged misconduct after he
was discharged. The relevant evidence is summarized here-
after. '
Fuchs testified that Gott refused Fuchs' request for an
explanation of the summary discharge at about 5 p.m. on
August 3. As he was leaving the store, Fuchs asked Melba
White to telephone the police to come to the scene. Melba
White did so and a policeman arrived shortly thereafter.
Standing outside the market, Fuchs asked the officer to go
into the store and require Gott to state why Fuchs had
been fired 28 The policeman refused to do so and departed.
Fuchs then left and repaired to a tavern in the center of
Owensville.
Shortly thereafter Gott telephoned the Burns Detective
Agency for guard protection. According to Gott, one guard
arrived around 6 p.m. and another came later.
Fuchs testified that about 8 p.m., after consuming six to
eight beers, he drove past the market on his way home
from the tavern. He testified that he saw some six to eight
guards in front of the store, all armed with hand guns in
holsters hanging from their belts and blackjacks in their
boots. He said that he was travelling about 30 miles per
hour along the opposite side of the street from the market,
which is set back from the road by a parking lot. He did
not notice any lights and was not clear as to how many
cars were there. About 10:40 p.m. Fuchs telephoned the
police and spoke to Mrs. Jeannette A. Wiles, the police
dispatcher. According to Fuchs, he told Mrs. Wiles "that
there were a bunch of guards up there got guns and stuff
and . . . they had better get up there, they would probably
have a shoot out " When asked why he thought there might
be a shoot out, Fuchs replied: "They were running around
with all those guns, so what would you think?" Fuchs was
not asked, and thus did not say, why he waited over 2
hours to telephone the police. He maintained he had not
drunk any alcohol after leaving the tavern and denied hav-
ing been intoxicated at any time that evening.
Mrs. Wiles' log for the day in question, which was admit-
ted as a record kept in the regular course of business, con-
tains the following entry:
10:40 Was advised by Phone by Wilbur Fuchs. Would
be at Town & Country in 20-25 min. For a Shoot Out.
Officers was advised. i9
28 Gott's testimony in this connection was confused and internally incon-
sistent. He first testified that he had heard Fuchs' conversation with the
policeman . However , Gott later testified that he had not been outside of the
store and had heard about Fuchs' demand of the policeman from another
source.
29 At the time of the hearing Wiles was, according to her doctor , suffering
from a heart ailment and chronic anxiety and thus unable to appear at the
hearing . However , with the doctor's approval, she testified at her home. She
was unable to recall any details of Fuchs' call Thereupon Respondent
sought to introduce a statement she had signed on August 7, 4 days after the
event . The statement was written by Respondent' s counsel and signed at
Wiles' home in the presence of Gott, Respondent's counsel and Maples,
Wiles' superior . Wiles was unable to recall any of the circumstances sur-
rounding her signing the statement . Specifically, she could not recall wheth-
er it had been given in narrative form or in answers to leading questions.
She maintained, however, that there could be no question about the truth of
the statement because under no circumstances would she sign any false
action against Fuchs and the Mercers violated Section 8(a)(1), the finding statement. She testified that the purpose of keeping a log is to obviate the
would not warrant a further conclusion that White's quitting her job consti- necessity of remembering calls, and added: "like today I received several
tuted a constructive discharge. calls and like yesterday, I could not tell you what was on that log from
Continued
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chief of Police Paul A. Maples testified that when Wiles
transmitted Fuchs' message he "knew something had to be
wrong.... Wilbert had to be drinking." Maples sent a
police officer to Fuchs' home . Thereafter the officer report-
ed to Maples that Fuchs had "passed out" and would not
be leaving his home . Maples communicated this reassuring
information to the Burns guard .30 On cross-examination,
Maples testified that he had known Fuchs all Fuchs' life as
a "reliable citizen" who "had never made any threats on
anybody or anything else." Maples himself had "even had
drinks with Mr . Fuchs."
There was no evidence contrary to Maples' view that
Fuchs was a "reliable citizen." It does not appear that he
had ever been known as a chronic or excessive drinker or a
"troublemaker" in any way.
The extraordinary aspect of this matter is Gott's con-
duct . Gott engaged the guards around 6 p .m. He testified
as follows:
JUDGE KLEIN : . . . did you personally get in touch
with the Bums people?
THE WITNESS: Yes.
JUDGE KLEIN : What did you tell them?
THE WrrNEss : I told them that I needed someone to
watch our store for a few days.
JUDGE KLEIN: Did you say why?
0
THE WITNESS : I told him [that] Mr. Fuchs had called
the police at the time he had got off and that he had
said that there was going to be trouble.
yesterday until I looked on my log ." She finally recalled that she had been
able to give the statement dated August 7 only after checking the log for
August 3 . She also revealed that she had been "under a strong medication.'
apparently for a considerable period of time . In view of these factors. I
determined that her ex parse statement , given at the -request of Respondent
after the present charge had been filed, was unreliable . The log , a contempo-
raneous notation kept in the regular course of business , was clearly more
reliable, although even that was somewhat questionable because it con-
tained no notation of the call which Melba White had made around 5 p.m.
and Maples and Wiles testified that all calls were supposed to be logged. I
hereby reaffirm my ruling rejecting Wiles' statement of August 7. Cf. 3
Wigmore Evidence, p. 104 (Chadbourn Rev.).
It may be added that the August 7 statement , which appears in the reject-
ed exhibit file, would not affect the present decision . Respondent apparently
relies on that statement to establish that Fuchs said he had a gun and in
effect threatened to initiate a "shoot out." The pertinent part of the state-
ment reads : "Fuchs called and said that ... he would be at Town and
Country in approximately 20-25 minutes for a shootout and he asked me to
advise the officers that there would be a shootout . He first told me that he
would have a gun and later in the conversation when I asked him if he
would have a gun he said 'I didn't say that ."' In the statement Wiles also
said that she had known Fuchs for 5 or 6 years.
Under the circumstances , as discussed in the text, this portion of Wiles'
statement , accepted as true , would not warrant disqualification of Fuchs for
further employment by Respondent.
30 Maples testified as follows : "I went up to Town and Country and when
I arrived up there, there was a security guard up there at that time, and I
said , knowing this party , Mr. Fuchs, I figured he had been drinking....
That's what I told the security guard. He was very much alarmed about it
and I told him I didn 't think we had anything to fear because me knowing
Mr. Fuchs that Mr. Fuchs had probably had a few drinks and he made this
threat, threatening call. I said we will soon work it out and find out what's
it all about.... I did remain on the premises until I made sure that Mr.
Fuchs wasn 't coming in to town."
JUDGE KLEIN: Where had you heard that about
Fuchs' threat that there was going to be trouble?
THE WrrNESS : I called the city marshall's office, the
dispatcher, and she told me the conversation.... She
said that a lady from our store in a very hysterical
voice had called and told them to send police to Town
and Country immediately that there was going to be
trouble.
But Gott later testified that Wiles had not said anything
about Fuchs ' threatening to cause trouble . Wiles had not
even recorded White's call in the police log.
Gott testified that he told the guards "to watch for Wil-
bert Fuchs ," who "wasn 't allowed around the store." Gott
said he took this action because he "didn 't want the place
burned or blowed up ." However , he maintained that the
guards were unarmed at his specific request . Gott testified
that he remained on the parking lot until about 10:30 p.m.,
sitting in his car with a friend part of the time and talking
with the guard (or guards) part of the time . He retained the
guard service for about 2 weeks.
There is no credible evidence that Fuchs made any
threat, express or implied , before Gott called the Burns
agency, about 5:30 p .m. Whatever Gott's reason for engag-
ing the guards, there is no credible evidence that it was a
reasonable response to any conduct by Fuchs. Despite his
denial, it is probable that Fuchs was somewhat intoxicated
at 8 p .m., when he passed the store and thought he saw six
to eight armed guards. Whether or not Fuchs was intoxi-
cated later in the evening, the evidence would show only
that he reacted briefly and only verbally to the presence of
the guards . Gott never satisfactorily explained his provoca-
tive conduct in engaging the guards several hours earlier
and keeping them for about 2 weeks.
Accordingly , having found that Fuchs was discriminato-
rily discharged and that he was not shown to have engaged
in disqualifying misconduct , I shall recommend that Re-
spondent be required to offer him immediate and full rein-
statement , with backpay computed in accordance with F.
W. Woolworth Co., 90 NLRB 289, with 6 percent per an-
num interest in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716.
Respondent's unfair labor practices included numerous
violations of Section 8(a)(1) as well as discriminatory elimi-
nation of three out of four persons constituting the bar-
gaining unit when the representation petition was filed.
Additionally, although I have refrained from specifically
passing on the employee status of Nance and Senter, as
presented by the Union's challenges to their ballots, it is
significant that Gott found no reason to talk with them and
Williams about the Union, as he admittedly had talked
with White, Fuchs, and the Mercer brothers. The unfair
labor practices thus were clearly egregious and pervasive.
And Gott underscored his continuing union animus by un-
necessarily keeping guards on the premises after the elec-
tion . These considerations inevitably lead to the conclusion
that conventional remedies , such as cease -and-desist and
notice-posting requirements, will "be insufficient to over-
come the impact of past unfair labor practices or to deter
future conduct, so that a fair election could not be held
TOWN AND COUNTRY FAMILY CENTER 1111
within a reasonable time ." Walgreen Co. v. N.L.R.B., 509
F.2d 1014 (C.A. 7, 1975). Whatever the status of the pur-
ported "new" employees (Williams, Nance , and Senter),
the Union's majority was unassailably established. Thus a
bargaining order is called for without the delay and addi-
tional administrative burden entailed in resolving the mat-
ters raised in the representation proceeding . Federal Pre-
scription Service Inc., 203 NLRB 975 (1973), enfd. in
pertinent part, 496 F.2d 813, 818-819 (C.A. 8, 1974) cert.
denied, 419 U.S. 1049 (1974); Four Winds Industries Inc.,
211 NLRB 542; Plastic Composites Corp., 211 NLRB
824. Accordingly, I shall recommend that the election
be set aside , the representation petition be dismissed, and
Respondent be ordered to bargain with the Union on re-
quest.
Upon the foregoing findings of fact , conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 31
Respondent, Big G Supermarket, Inc., d/b/a Town and
Country Family Center, its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Transferring or discharging employees or otherwise
discriminating in any manner with respect to their tenure
of employment, or any term or condition of employment,
because they have engaged in concerted activity or activity
on behalf of Meatcutters Union Local No . 88, affiliated
with Amalgamated Meatcutters and Butcher Workmen of
North America, AFL-CIO, or any other labor organiza-
tion.
(b) Failing and refusing to bargain with said Union as
the exclusive bargaining representative of all its employees
constituting the unit herein found to be appropriate for the
purpose of collective bargaining.
(c) Coercively interrogating employees concerning
Union and other concerted activities.
(d) Threatening to refuse to bargain and contract with
the Union ; to discharge or otherwise discriminate against
employees ; to impose greater supervision , reduced earn-
ings , or earning potential, or other detriment if a union is
selected to represent the employees.
(e) Creating the impression that employees ' union activ-
ities are being kept under surveillance.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-orga-
31 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.
nization , to form labor organizations , to join or assist
Meatcutters Union Local No. 88, affiliated with Amalga-
mated Meatcutters and Butcher Workmen of North Amer-
ica, AFL-CIO, or any other labor organization (except to
the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act).
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Clifton Mercer and Glenn Mercer immediate
and full reinstatement to their former positions at
Respondent's Owensville, Missouri, market (or, if such po-
sitions no longer exist, to substantially equivalent posi-
tions), without prejudice to their seniority or other rights
and privileges.
(b) Offer Wilbert Fuchs immediate and full reinstate-
ment to his former position at Respondent's market in Ow-
ensville, Missouri (or, if such position no longer exists, to a
substantially equivalent position), without prejudice to his
seniority and other rights and privileges and make him
whole for any loss of earnings in the manner set forth in
the section herein entitled "The Remedy."
(c) Preserve and make available to the Board or any of
its agents , upon request, all records necessary to analyze
the amount of backpay due Fuchs under the terms hereof.
(d) Upon request, recognize and bargain with the
above-named Union as the exclusive representative of all
the employees in the bargaining unit described herein and,
if an understanding is reached, upon request embody such
understanding in a signed agreement.
(e) Post at its market in Owensville , Missouri, copies of
the attached notice marked "Appendix." 32 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by an authorized repre-
sentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 14, in writ-
ing, within 20 days of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint not hereinabove found to be supported by the
evidence be and they hereby are dismissed.
IT IS FURTHER RECOMMENDED that the election held pur-
suant to Case 14-RC-7688 be set aside and the petition for
election in said case be dismissed.
3' In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
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
the National Labor Relations Board." -