United Supermarkets, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1291 (N.L.R.B. 1982)

UNITED SUPERMARKETS, INC.
United Supermarkets, Inc. and Retail Clerks Union,
Local No. 368, AFL-CIO, chartered by United
Food and Commercial Workers International
Union, AFL-CIO.' Cases 16-CA-7365, 16-
CA-7378, 16-CA-7473, 16-CA-7500, 16-CA-
7524, 16-CA-7554, 16-CA-7561, 16-CA-7666,
16-RC-7556, and 16-RC-7579
May 28, 1982
DECISION, ORDER, CERTIFICATION
OF REPRESENTATIVE, AND
DIRECTION OF SECOND ELECTION
On December 18, 1980, Administrative Law
Judge Robert C. Batson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent,
the Charging Party, and the General Counsel each
filed exceptions and supporting briefs, and Re-
spondent thereafter filed an answering brief to the
exceptions and briefs filed by the Charging Party
and the General Counsel.
The Board has considered the record and the at-
tached Decision in light of the exceptions2 and
briefs and has decided to affirm the rulings, find-
ings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 4 as
modified herein.
The Administrative Law Judge set aside the
election in the grocery unit on the basis of various
unfair labor practices and objectionable conduct
committed by Respondent. Having determined that
the evidence failed to demonstrate that the Union
had obtained signed authorization cards from a ma-
jority of the unit employees and citing United
Dairy Farmers Cooperative Association,5 the Admin-
i 'he name of the Charging Party reflects the merger of the Retail
Clerks International Union and the Amalgamated Meatcutters and Butch-
er Workmen of North America on June 7. 1979.
2 Respondent has excepted to certain credibility findings made by the
Admilistrative Ltaws Judge. It is the Board's established policy not .to
overrule an administrative la%% judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
The Charging Party's request for oral argument is hereby denied as the
record, exceptionls. and briefs adequately present the issues and positions
of the parties
3 In adopting the Administrative Law Judge's Decision we find that
his statement in sec. Ill,B, entitled "Preliminary Statement Concerning
the Evidence and Mode of Analysis Thereof" that by our decision in
Wright Line. a Division of Wright Line. Inc., 251 NL.RB 1083 (19801), "the
Board has obviated the 'perceivable significance' between pretext and
dual motive cases" is overly broad. For further discussion of this issue
see Limestone Apparel Corporation. 255 NI.RB 722 (1981).
4 We hereby correct an inadvertent error by the Administrative law
Judge wherein he refers to Steve Johns as the head meatcutter at Store
No. 527 rather than Store No. 529.
In accordance with his dissent in Olympic Medical Corporation, 25()
NLRB 146 (1980), Member Jenkins would award interest on the backpac
due based on the formula set forth therein
5 242 NLRB 1026 (1979), enfd. and remanded 633 F.2d 1054 (3d Cir.
1980), 257 NLRB 772 (1981). At the time the Administrative Law Judge
istrative Law Judge concluded that a bargaining
order is inappropriate in these circumstances and
ordered that a second election be held. Neverthe-
less, both the General Counsel and the Charging
Party contend that Respondent's conduct was so
serious and substantial in nature as to warrant im-
position of a remedial bargaining order irrespective
of whether the Union had demonstrated support
from a majority of the unit employees. In light of
the Board's most recent statement on this issue in
our Supplemental Decision in United Dairy, herein-
after referred to as United Dairy II, we believe the
General Counsel's and the Charging Party's excep-
tions merit further discussion.
The pivotal case dealing with the subject of re-
medial bargaining orders is N.L.R.B. v. Gissel
Packing Co., Inc.6 In that case the Supreme Court
grouped unfair labor practice cases dealing with
preelection misconduct into three categories. The
first category is characterized as "exceptional"
cases which are marked by conduct so "outra-
geous" and "pervasive" as to render traditional
remedies ineffective. In such cases, the lingering
coercive effects of the respondent's conduct pre-
clude holding a fair election. Under these circum-
stances there is no need to inquire into the majority
standing of the union, either by authorization cards
or otherwise, and a requirement that the respond-
ent bargain with the union is the only effective
means of ensuring the employees' representational
rights. Another group of cases is less extraordinary,
marked by less pervasive unlawful practices, but
which yet tend to undermine support for the union
and interfere with the electoral process. In cases of
this type the twin goals of effectuating employee
free choice and deterring employer misbehavior
stand on equal footing. Accordingly, the Board ap-
propriately is guided by objective manifestation of
employee sentiment as evidenced through authori-
zation cards. If the evidence indicates that the
union enjoyed majority support at some point, this
will suffice to justify a bargaining order. The third
category of cases involves less extensive unlawful
practices which affect the election processes to a
more limited extent. In cases of this type a bargain-
ing order is not necessary to provide adequate re-
medial relief.
In United Dairy II the Board determined that the
employer's course of unlawful conduct fell into the
first Gissel category, "completely foreclos[ing] the
possibility of a fair election," 7 and we ordered the
issued his Decision the Board had accepted the Third Circuit's remand
but had not issued its Supplemcna.l Decision
6 395 US 575 (1969)
7 257 NLRi} 772
261 NLRB No. 179
1291
DECISIONS OF NATIONAl I ABOR RELATIONS H()OARD
employer to bargain with the union. In that case
the employer embarked on its unlawful counter-or-
ganizational campaign as soon as it learned of the
unionization effort and continued its retaliatory ac-
tivities even after the election had taken place.
Among its responses were threats by the company
president to shut down the plant, discharging union
activists, distributing unprecedented cash bonuses
to employees, attempts to convert employees into
independent contractors, interrogations, and threats
of physical violence. The Board cited the "gravity,
extent, timing, and constant repetition of the viola-
tions . . . against a background of prior serious
misconduct" 8 in finding that no remedy short of a
bargaining order could prove effective.
A case which also fits into this "exceptional"
category is Conair Corporation, 261 NLRB 1189
issued this date. In that case the employer launched
its campaign of employee intimidation as soon as it
learned of the union's organizational efforts. A
series of unprecedented meetings was held in
which employee grievances were solicited and
threats of plant closure and loss of benefits were
made. The employer also interrogated employees
and implied that their activities were under surveil-
lance. In the face of this onslaught, employees
sought to retrieve their signed authorization cards
from the union. An unfair labor practice strike
ensued, whereupon the employer terminated all
strikers and offered nonstrikers increased benefits
and better working conditions. The employer con-
ditioned striking employees' return upon their sign-
ing away Section 7 rights. When some strikers
were eventually reinstated they were treated as
new hires, without any accrued seniority, only to
be later discharged because of their previous in-
volvement in protected activities. As the election
neared, the employer stepped up the pace of its un-
lawful conduct, which included soliciting griev-
ances, promising improved conditions, threatening
shutdown and cessation of benefits, interrogations,
and implementing a profit-sharing plan for non-
union members only. The employer's lengthy cam-
paign-lasting from early April 1977 until after the
December 1977 election-involved speeches, one-
to-one conversations, posters, and printed literature
and ranged the gamut of unlawful conduct aimed
at undermining employee support for the union. A
Board majority determined that the nature of the
violative conduct found in Conair fit squarely into
the outrageous and pervasive description under
Gissel category 1 and ordered that the employer
bargain with the union even though no card major-
ity was demonstrated.
R Id
Turning to the facts of the instant case, we find
that Respondent's conduct, while extensive and se-
rious, does not reach the level requiring a bargaia-
ing order where no card majority was found tlo
exist. Efforts to organize the meat department arid
grocery department employees 9 began in late Mey
1977.10 Respondent's unlawful reaction began
around mid-June. As more fully described in the
Administrative Law Judge's Decision, Respondent
discriminatorily discharged seven grocery unit em-
ployees between July 25 and September 26 ard
committed approximately 31 additional independ-
ent violations of Section 8(a)(1). The unlawful coi-
duct included interrogations, creating the impres-
sion that employees' activities were under surveil-
lance, soliciting employees to spy on union acti',i-
ties, promulgating an unlawful no-solicitation rule,
threatening losses of jobs and more onerous worx<-
ing conditions, warning that selecting the Union
would be futile, and promising improved wages
and benefits if the Union were rejected. While we
recognize the gravity of such disregard for employ-
ee rights by setting aside the election held in its
aftermath and ordering certain extraordinary access
and notice remedies, we do not believe that the to-
tality of Respondent's conduct has completely fore-
closed the possibility of holding a fair election.
A number of factors have led us to the conclu-
sion that the violations in this case do not warrant
a nonmajority bargaining order. Unlike the situ.i-
tion in Conair, supra, Respondent's illegal activity
subsided well in advance of the grocery unit elec-
tion. The last two unlawful discharges occurred in
late September, more than 2 months before the
election. Most of the unlawful activity took place
in July, prior to the meat market election. Thereaf-
ter, Respondent waged a less aggressive campaign
against the grocery unit unionization despite tle
Union's victory in the earlier election.
In addition, this case differs from Conair in that
there were no captive audience speeches, no mass
appeals to employees, no wholesale retaliatory te:--
minations, and no orchestrated escalation of anti-
union activity. Instead, most of the violations in-
volved individual encounters between a single su-
pervisor and a single employee. In addition, while
we do not discount the seriousness of a first-line su-
pervisor's remarks linking unionization to possible
job displacements, we recognize that the impact of
r This case involved elections in two separate units, the meat market
and the grocery unit The election among the meat department employ-
ces swas held on August 26, 1977, and resulted in the Union's election is
represenlative. The grocery unit election was held on December 7, 1977,
and the UnilonI was defeated Only those violations arising in the grocel y
unit are involved in our bargaining order determination.
0o All dates hereafter refer to 1977 unless noted otherwise.
1292
UNITED SUPERMARKETS, INC1
such remarks is less severe than a higher manage-
ment official's threat to close down an entire plant.
The impact of Respondent's unfair labor prac-
tices was also diffused in this case because seven
different facilities located throughout the Amarillo,
Texas, area were involved. Geographic separation
of this type would tend to lessen the effect that the
sheer number of violations would otherwise sug-
gest.
In brief, the circumstances of this case present
serious and rather widespread unfair labor prac-
tices. As indicated, however, these unfair labor
practices differ significantly in gravity, extent, and
timing from those found in either United Dairy or
Conair, where the employers waged unrelenting
and massive coercive efforts, demonstrative of their
complete and total disregard for employees' rights.
In neither of those cases was it necessary to inquire
into the majority status of the union in order to de-
termine that only a bargaining order could effec-
tively remedy the employers' outrageous conduct.
They were clearly "exceptional," first-category
Gissel cases, whereas the instant case falls short of
this level. In view of this determination, we are
guided by the fact that no card majority was found
to have existed in favor of union representation and
we therefore will issue no bargaining order. Ac-
cordingly, we adopt the Administrative Law
Judge's recommendations in section VI of his Deci-
sion entitled "The Remedy," including various ex-
traordinary remedies in recognition of the serious-
ness of Respondent's unlawful conduct.
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 modi-
fied and set forth in full below, and hereby orders
that the Respondent, United Supermarkets, Inc.,
Lubbock, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees con-
cerning their union activities and the union activi-
ties of other employees.
(b) Threatening its employees with loss of exist-
ing benefits or a reduction thereof if they support
or assist the Union or any other labor organization.
" In view of the Administrative Law Judge's failure to specify a time
period during which Respondent is required to grant the Union access to
store bulletin hoards and nonwork areas, we hereby modify pars 2(h)
and (i) of his recommended Order arid notice to provide for a 2-year
period We shall further modify pars 2(g) and (hi of his recommencded
)rder and notice to limit the application of those paragraphs to Respond
ent's Amarillo, Iecxas, stores.
(c) Soliciting employees to spy upon the union
activities of others and report on such activities to
management.
(d) Expressly or impliedly promising benefits to
its employees to discourage support of the Union
or any other labor organization.
(e) Threatening employees with store closures
and loss of employment if they continue to support
or assist the Union or any other labor organization.
(f) Engaging in surveillance of union activity or
creating the impression that such activity is subject
to surveillance.
(g) Threatening employees with discharge or
layoff if they select the Union to represent them.
(h) Threatening its employees that it will reduce
its work force and increase production demands if
the Union is selected to represent them.
(i) Threatening its employees that it would be
futile for them to select the Union to represent
them by telling them that it would never sign a
contract.
(j) Discouraging membership in a labor organiza-
tion by discharging, refusing to reinstate in timely
fashion or to reinstate at all, or otherwise discrimi-
nating against employees in their hire and tenure.
(k) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the purposes and policies of the Act:
(a) Offer to Priscilla Sain, Van Bollen, Donna
Bates, Rick Stanberry, Claude Murray, Tanna
Stoops, Mark Soltis, Judy Grove, and Faye Bonner
immediate and full reinstatement to their former
positions or, if those positions are no longer availa-
ble, to substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges previously enjoyed.
(b) Promote Mark Solitis to the position of third
man.
(c) Make the employees named above in para-
graph (a) whole for any loss of pay or other bene-
fits they have sustained by reason of the discrimi-
nation against them in the manner set forth in the
section of the Administrative Law Judge's Deci-
sion entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
1293
DIECISIONS OF NATIONAI IAI()OR RELATIONS BIOARDI
(e) Mail a copy of the attached notice marked
"Appendix A"1 2 to each and every employee at
his or her home address and post copies thereof at
all its retail grocery stores in west Texas. Copies of
said notice, on forms provided by the Regional Di-
rector for Region 16, shall be personally signed by
Respondent's owner. Copies of said notice shall be
mailed by Respondent to each and every employee
working at its retail grocery stores on the date on
which such notice is mailed, and additional copies
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(f) Convene during working time all employees
at its Amarillo, Texas, stores, either in shifts or de-
partments, or otherwise, and have Respondent's
owner read to the assembled employees the con-
tents of the attached notice marked "Appendix A."
The Board shall be afforded a reasonable opportu-
nity to provide for the attendance of a Board agent
at any assembly of employees called for the pur-
pose of reading such notices.
(g) Upon request of the Union made within I
year of the issuance of the Order herein, without
delay make available to the Union a list of names
and addresses of all employees employed at the
time of the request at Respondent's Amarillo,
Texas, stores.
(h) Immediately upon request of the Union, for a
period of 2 years grant the Union and its repre-
sentatives reasonable access to bulletin boards, and
all other places where notices to employees are
customarily posted, at Respondent's Amarillo,
Texas, stores.
(i) Immediately upon request of the Union, for a
period of 2 years permit a reasonable number of
union representatives access for reasonable periods
of time to nonwork areas within its Amarillo,
Texas, stores, so that the Union may present its
views on unionization to the employees, orally and
in writing, in such areas during changes of shift,
breaks, mealtimes, or other nonwork periods.
(j) In the event that any supervisor or agent of
Respondent convenes any group of employees at
Respondent's Amarillo, Texas, stores and addresses
them on the question of union representation, give
the Union reasonable notice thereof and afford two
union representatives a reasonable opportunity to
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
order of the National l.ahor Relations Board" shall read "PIoted Pursu-
ant to a Judgment (if the United States Court of Appeals Inlforcing an
Order of the National Labor Relations Board"
be present at such speech, and, upon request, give
one of them equal time and facilities to address the
employees on the question of union representation.
(k) Notify the Regional Director for Region 16,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
As we have adopted the Administrative Law
Judge's recommendation to overrule the Employ-
er's objections to the conduct of the election in
Case 16-RC-7556, we shall certify the Union as
representative.
As we have adopted the Administrative Law
Judge's recommendation to sustain Petitioner's Ob-
jections 6 and 8 to the conduct of the election in
Case 16-RC-7579, it is hereby ordered that the
election in that case be, and it hereby is, set aside,
and a second election directed.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Retail Clerks Union,
Local No. 368, AFL-CIO, chartered by United
Food and Commercial Workers International
Union, AFL-CIO, and that, pursuant to Section
9(a) of the Act, that labor organization is the exclu-
sive representative of all the employees in the fel-
lowing appropriate unit for the purposes of colle z-
tive bargaining with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment:
Included: all butchers and wrappers located in
the United Supermarkets, Inc., stores in Ama-
rillo, Texas. Excluded: Head meatcutters, all
other employees (grocery department employ-
ees), office clerical employees, managers, a,-
sistant managers, watchmen and supervisors as
defined in the Act.
[Direction of Second Election 1 3omitted from
publication.]
MEMBIER HUNTIR, concurring:
I join my colleagues in adopting the Administra-
tive Law Judge's unfair labor practice findings, and
I agree with my colleagues that a bargaining order
should not issue in this case. However, in declining
to issue a bargaining order, I rely on my separate
opinion in Conair Corporation, 261 NLRB 1191
(1982), in which I set forth my position that I
would not issue a bargaining order where, as here,
the union never attained majority status.
`: E I[x lvuo, r fooltnote omitted from publication
1294
UNITED SUPERMARKETS, INC.
CHAIRMAN VAN DE WATER, concurring in part
and dissenting in part:
I join my colleagues in adopting the Administra-
tive Law Judge's unfair labor practice findings.1 4 I
also agree with my colleagues that a bargaining
order should not be issued here. In this regard, I
rely on my separate opinion in Conair Corporation,
261 NLRB 1189 (1982), in which I set forth my
position that, for both statutory and policy reasons,
I would not issue a bargaining order where, as
here, the union never enjoyed majority status. In
fashioning a remedy for Respondent's unlawful
conduct, which the Administrative Law Judge
properly termed "outrageous" and "pervasive," I
believe that all the extraordinary measures upheld
by the District of Columbia Circuit Court in the
Haddon House case are warranted, and I dissent
from my colleagues' refusal to order them here.1 s
14 lloescer. I find it unnecessary to rely on the cases iited in fn. 12 of
the Administrativ e I.as Judge's Decision. Ill addition, since Respondernt's
unfair lhabor practices are sufficient to warrant setting aside the election in
Case 16-CA 7579, 'shich Petitioner I,'stl I find it unnecessary t)o pass on
Petitionler's Objectionlls and 8, which the Administrative LasW Judge rcc-
otnmended he sustained
1 liaumuteri l. ocal 115, aii International Brntherhod of crnamsteri.
Chauff cur., Warnhousietmen aunl Ihlpers of .4,nmeria [Iladdin Ifcuie' Iicid
Prodlut, Inc.] v. N .. KB., 6410 F.2d 392 (1981), iert denied 102 S.Ct
141, 92 .C 13.018 (1981). Thus, in addition toi the extraordinary remedies
provrided ill the Adnmitisiratise Law Judge', rectnmmlended Order and
adopted hb tiys colleagues, I would also require Resplrndentl include,
cop) of the notice ill appr.opriate company publications and local ners,
papers, and to prio ide the Union an uopportluits to delisver a 30-ttlillute
speech to employees ite cotmpany premises priior to all) scheduled clec-
tion, regardless of 'ihethcr Respondent makes a sinilar address ti enm-
plvyees
Furthermore, I swould niodify the Administrative Lau Judge's recom-
mended ()rder bh (I) requiring that the notice hbe read by "a responsihle
iofficer of Rcsponident," ratlher than by "Respondlent's ourlcr" (aee fit 28
in my Conauir oapiniion)i anid (2) placing a 2-N:car time lmnilatiol otn par
20() consistent with the 2-year limitation my colleagues place ion pars
2(h) and (i)
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THI-
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE. Wi.i NOT do anything that interferes
with, restrains, or coerces employees with re-
spect to these rights. More specifically,
WI; Wiltl. No-r discharge or in any other
manner discriminate against employees because
of their union activities.
WE WiiLL NOT threaten employees with, or
warn employees of, discharge, loss of benefits,
or other reprisals because of their union activi-
ties, membership, or support.
WI; WIlL NOT threaten to close any of our
stores in order to prevent union activities
among our employees.
WE Wl.l. NOTr discourage membership or
activities on behalf of Retail Clerks Local 368,
AFL-CIO, or any other labor organization, by
discharging employees or discriminating
against them in their hire or tenure.
WI: Wlll NOT coercively interrogate em-
ployees concerning their union membership,
activities, or support.
WI: WIl. NOT solicit our employees to spy
upon the union meetings or other union activi-
ty of our employees and report such activity
to us.
WE Wil l NOI promise improved or addi-
tional new economic benefits or other terms or
conditions of employment if they abandon
their support of a union.
WE WILl NOT create among our employees
the impression that their union activities are
under surveillance.
Wt WILL NOT threaten to never negotiate
with a union should it lawfully represent our
employees in order to discourage union mem-
bership, activities, or support.
WEI: WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WiE wlli. offer Priscilla Ann Sain, Van
Bollen, Donna Bates, Rick Stanberry, Claude
Murray, Tanna Stoops, Mark Soltis, Judy
Grove, and Faye Bonner immediate and full
reinstatement to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without loss of seniority
and other rights and privileges previously en-
joyed.
1295
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
WE WI1.l. promote Mark Soltis to the posi-
tion of third man.
WI! witi. make whole the employees named
above for any loss of pay or other benefits sus-
tained by them by reason of our discrimination
against them, with interest upon any moneys
due them.
WL wii.I. send to all our employees copies
of this notice; wi. wiI.I read this notice to all
our employees.
Wi. Wll.l., upon request of the Union made
within I year of issuance of the Board's Deci-
sion and Order, make available to the Union a
list of names and addresses of all our employ-
ees currently employed at our Amarillo,
Texas, stores.
WE Wil.l, immediately upon request of the
Union, for a period of 2 years, grant the Union
and its representatives reasonable access to our
bulletin boards, and all other places where no-
tices to employees are customarily posted, lo-
cated in our Amarillo, Texas, stores.
WI: wiI.I, immediately upon request of the
Union, for a period of 2 years, grant the Union
and its representatives reasonable access to our
Amarillo, Texas, stores in nonwork areas
during employees' nonwork time in order that
the Union may present its views on unioniza-
tion to employees, orally and in writing, in
such areas during changes of shift, breaks,
mealtimes, or other nonwork periods.
WI wil.l., if we gather together any group
of our employees on worktime at our stores
and speak to them on the question of union
representation, give the Union reasonable
notice and give two union representatives a
reasonable opportunity to be present at such
speech and, on request, give one of them equal
time and facilities also to speak to you on the
question of union representation.
Our employees have the right to join Retail
Clerks Union, Local No. 368, AFL-CIO, chartered
by United Food and Commercial Workers Interna-
tional Union, AFL-CIO, or any other labor organi-
zation or to refrain from doing so.
UNITI.t SUPIRMARKETS, INC.
DECISION
STATEMIEN OI01 I Hi CASI
ROBERT C. BATSON, Administrative Law Judge: This
consolidated proceeding under the National Labor Rela-
tions Act, as amended, 29 U.S.C. § 151, el. seq., herein
the Act, was heard before me in Amarillo, Texas, based
on a third amended order consolidating cases, amended
consolidated complaint, and notice of hearing issued by
the Regional Director for Region 16 (Fort Worth,
Texas), as further amended at the hearing, arising out of
charges filed by Retail Clerks Union, Local No. 36(8.
AFL-CIO, chartered by United Food and Commercial
Workers International Union, AFL-CIO, herein called
the Union,' alleging that United Supermarkets, In:.,
herein the Respondent, the Company, or the Employer,
had violated Section 8(a)(1), (3), and (5) of the Act. Con-
solidated for hearing also are the issues raised by tMie
Employer's Objection 5 and part of its Objection 1,
which were filed to the election in Case 16-RC-75'6,
and the Union's objection to the election in Case 16-RC-
7579.
The petition for an election in Case 16-RC 7556 was
filed on July 1, 1977,2 by General Drivers, Warehouse-
men and Helpers Local Union 577. On July 6, the Union
herein intervened. On July 25, the Regional Director for
Region 16 approved a Stipulation for Certification Upon
Consent Election in an appropriate unit, :' pursuant to
which an election was conducted on August 26. There
were 22 eligible voters, of which 12 cast valid votes f:r
the Union; none cast valid votes for the Teamsters; 4
cast valid votes against the Unions; and 3 cast challenged
ballots. On September 2, the Employer filed objections
to the election. On November 2, the Regional Direct.or
issued his Report on Objections, wherein he recommend-
ed that the objections be overruled and a Certification -.f
Representative be issued. Upon proper exceptions, the
Board directed that a hearing be held on the Employer's
Objection 5 and part of its Objection 1.
The petition for an election in Case 16-RC-7579 was
filed by the Union on August 5. Pursuant to a Decision
and Direction of Election dated November 4, an election
was conducted in the unit found appropriate 4 on Deceri-
her 7. There were approximately 109 eligible voters, of
which 26 cast valid votes for the Union; 62 cast valid
votes against the Union; and 22 cast challenged ballots.
The Union filed objections to the election on December
he chairge Cias(e It ( A 736h5 w\as filed on JulI 25, 1977. and
illended oiL AugL st 2 and 4, 1977. the charge in Case 16 ( A 7378 was
filed on July 29 and aImended on August 4, 1977; Ihe charge in Case I
CA 7473 was filed on September 12. 1977; the charge in Case 16 CA
751(It wasl filed or] September 23 and and mended on October 31, 1977; tie
charge in Case 16 CA 7524 wuas filed on September 10, 1977: the char 3e
in Case 16 CA 7554 was filed on October 13, 1977, the charge in Cawe
16 CA 7561 was filed on October 14. 1977; and the charge in Case 1>,
CA 7666 was filed on December 16, 1977 All charges were propersl
served (on the Respordent
All dates hereafter are in 1977 llnless otheruise Indicated
: lhe stipulated appropriate unit is
rlclhuded All hutchers and wrappers located in the United Super-
markets. Inc., stores in Amarillo, Texas.
Excluded: Iead mealcutters, all other employees Igrocery depart-
rllent employees). ofice clerical employees, managers, assistant mar-
agers. vatchlmen and supervisors as defined in the Act
The unit found appropriate is
Included: All regular full-time employees, including bakery depart-
ment emplyees, and regular part-time employees who have worktd
at least 18 separate weeks preceding this D)ecision and Directiotn )f
lectionl employed at the Employer's seven retail grocery stores o>-
cated in Amarillo, Iexas.
I xcluded: All part time sackers who have worked for the lFmployelr
less thatn 18 weeks, managers, assistant managers, meat department
eniployees, watchmen. guards and supervisors as defined in the Act.
as anlelnded
1296
UNITED SUPERMARKETS, INC
12. On January 31, 1978, the Regional Director for
Region 16 issued his supplemental decision wherein he
ordered a hearing on portions of Objections 6 and 8,
consolidated said objections with the unfair labor prac-
tice complaint for hearing, and further ordered that mat-
ters alleged in the complaint be considered in determin-
ing whether the election should be set aside.
The complaint, as amended at the hearing, alleges in
excess of 70 independent 8(a)(1) violations involving 17
of the Respondent's supervisors. The complaint further
alleges that between July 15 and October 8 the Respond-
ent discharged 12 employees in violation of Section
8(a)(3) of the Act, demoted and withheld wage increases
also in violation of Section 8(a)(3), constructively dis-
charged one employee in violation of Section 8(a)(3), and
further discharged its supervisor, Max Ward, in violation
of Section 8(a)( ).
The General Counsel and the Charging Party contend
that the Respondent's conduct alleged in the complaint is
so "outrageous and pervasive" that the traditional cease-
and-desist and make-whole remedies will not eradicate
the effects thereof, that a second free and fair election in
the grocery unit would be impossible, and that a bargain-
ing order is warranted under the Board's application of
the holding of the United States Supreme Court in
A'L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
At issue in this regard is the very close question of
whether at any relevant time on or after August 4 the
Union had valid authorization cards from a majority of
the employees in the unit.
As hereafter found, the General Counsel has sustained
his burden of proof by a preponderance of the credible
evidence that the Respondent has committed not all, but
a very substantial number, of the complaint allegations
which are of such a serious nature that the effects there-
of on the employees cannot be eradicated so that a free
and fair election can be held. Whether a bargaining order
is appropriate in this case depends on whether the Gen-
eral Counsel has established that at a relevant time after
August 4 the Union had obtained valid authorization
cards from a majority of the employees in the unit.
United Dairy Farmers Cooperative Association, 242 NLRB
1026 (1980).
Upon the entire record in this case, including consider-
ation of able briefs filed by counsel for the General
Counsel, the Respondent, and the Charging Party, and
from my observation of the testimonial demeanor of the
witnesses testifying under oath,5 I make the following:
FINDINGS 01 FACT
I. T HE BUSINESS OF I Hi R-SPONI)IEN I
The Respondent is, and has been at all times material
herein, a Texas corporation engaged in the sale and dis-
tribution of retail groceries. It maintains its principal
5 Numerous wilnesses testified in this hearing and frequently the testi-
mony of witnesses cannot be reconciled. The facts found herein are based
on the record as a whole and on my observation of the witnesses. Credi-
bility resolutions have been derived from such record and observatlion
with due regard for the logic of probability under the teachings of the
Supreme Court in NL.R.B. v Walron Manufacturing (Company & Iogan-
ville Panit Co., 369 U S 404 (1962)
office at Lubbock, Texas, and also operates and main-
tains seven retail grocery stores in and around Amarillo,
Potter County, Texas, which are the only stores in-
volved in the proceeding. During the 12 months preced-
ing the issuance of the complaint herein, in the course
and conduct of its operation at Amarillo, Texas, Re-
spondent purchased and received goods valued in excess
of $50,000 from suppliers located directly outside the
State of Texas, and during the same period the Respond-
ent derived gross revenue in excess of $500,000 from its
Amarillo operation.
The complaint alleges, the Respondent admits, and I
find that, at all times material herein, the Respondent
was an employer within the meaning of Section 2(2) of
the Act, engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
11. IHI I ABOR ORC;ANIZATION INVOI.VED
The complaint alleges, the Respondent admits, and I
find that the Union is, and has been at all material times
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. Il11i AII -GII) UNFAIR IABOR PRACTICES
A. Background and Cast of Characters
The Respondent operates a chain of 33 retail grocery
stores in west Texas, including the seven stores here in-
volved which may be called the Amarillo division. Max
Smithey is the grocery supervisor for the Amarillo divi-
sion. Bernard Phelps is the meat market supervisor for
the division. Jackie Pierce is the assistant meat director
for the entire Company. Max Tipton is the companywide
grocery supervisor.
The seven stores involved here shall be referred to by
store number and their supervisors as relevant here are:
Store 522
Store 524
Store 526
Store 527
Store
Store
Store
Dennis Daniel, manager
Jim Rush, manager
Walter Boldin, assistant
manager
Dick Bennett, assistant
manager
Worlin Robinson, head
meatcutter
Roy Burch, manager
Lewis Pena, assistant
manager
Steve Johns, head
meatcutter
Max Ward, head meatcutter
No supervisor involved
Fred McCain, manager
Jim Selman, manager
Charles Sooter, head
meatcutter
529
530
533
The union activity giving rise to the alleged unfair
labor practices here commenced among the meat depart-
ment employees in late May when they received a notice
that the method of evaluating them for pay raises would
1297
DECISIONS ()F NATIONAL LABOR RELATIONS H()ARD
be changed. Max Ward, a meatcutter in Store 527, as-
sumed a leading role in this activity and contacted both
the Teamsters and the Retail Clerks Union. By mid-July
the grocery department employees were also the subject
of the Union's organizing activities.
The General Counsel contends that from the time the
Respondent learned of the union activity in mid-June it
implemented a program to cut hack in man-hours, thus
eliminating certain "third man" positions and providing a
vehicle to transfer employees to other stores in order to
get rid of the union activists. The Respondent contends
that the union activity took place during a period of sig-
nificant readjustment in the Amarillo division which was
necessitated by its higher labor costs there in comparison
with its other two divisions.
Most of the independent 8(a)(l) allegations are sup-
ported by the testimony of the discharged employees and
will be considered in conjunction %with the discharges.
13. Preliminary Statement Conccrning the Evidence
and the Mode of Analysi.s hereof
At the conclusion of the hearing testimony and evi-
deuce in this case, there was uncontroverted testimony
from several witnesses presented by the General Counsel
with respect to statements made to them by admitted su-
pervisors of the Respondent which clearly interfered
with, restrained, and coerced these employees in the ex-
ercise of their Section 7 rights. T he Respondent ad-
vances no reason for its failure to call as witnesses sever-
al of its supervisory personnel, or former supervisors, to
whom this 8(a)(1) conduct was attributed and some of
whom played significant roles in the events surrounding
the discharges. The General Counsel requests that I
draw inferences that had the Respondent presented these
witnesses their testimony would have been adverse to
the Respondent's case. It has been established law" since
the early days of the Board that such inference is war-
ranted. I-ruehauf Frailer C'onpanor, 1 NI.RB 68 (1935),
enforcement denied 85 F.2d 391 (6th Cir. 1936), remand-
ed 301 U.S. 49 (1937).
The unfair labor practices established by this uncontro-
verted and credible testimony are substantial indeed and
create an ambiance of hostility toward the Union and
those employees supporting the Union in which all the
evidence must be analyzed and assessed. Tlhe discharges
considered hereafter occurred in an atmosphere of addi-
tional egregious unfair labor practices, as found herein,
and, with the exception of Supervisor Max Ward, fall
into three categories: (1) asserted misconduct or work
deficiencies, (2) to reduce the F.mploycr's labor cost, and
(3) constructive discharges.
In analyzing all the evidence relevant to the discharges
of those employees in the first two categories to deter-
mine causality, I am guided by the Board's decision in
Wright Line, a Division of Wright Line, Inc., 251 NI RB
1083 (1980), wherein it adopted the test of causality used
by the Supreme Court in Mt. Ilealthhv City School District
Board of Education v. Doyle, 429 U.S. 274 (1977), atid
Village of Arlington Heights v. Metropolitan Housing Corp.
et al., 429 U.S. 252 (1977).
In accordance therewith, the test of causation used
here requires that the "General Counsel make a prima
facie showing sufficient to support the inference that pro-
tected conduct was a 'motivating factor' in the employ-
er's decision. "Where this has been established the em-
ployer must then carry the burden of demonstrating the
action would have taken place even in the absence of the
protected conduct. Wright Line, supra. As advised there-
in, where the employer has failed to carry its burden, lo
quantitative analysis of the effect of the unlawful cause
will be made. Although a distinction might be raised be-
tween the cases in the first two categories, the first being
pretext cases and the second dual-motive cases, the
Board has obviated "the perceivable significance" be-
tween the two.
C. Ihe Dischurge¥ and Consideration of 8(a)(1)
.4 llega tion.s
1. Max Ward
As heretofore noted, Ward was the prime instigator of
the union activity from its inception in late May or early
June, at which time he was a nonsupervisory meatcutter
at Store 527. Around June 14, Ward was promoted to
head meatcutter or market manager?" a supervisory posi-
tion.7 After his promotion, Ward continued his active
support for the Union. About June 27, the date of tic
first meeting with the Retail Clerks, Assistant Meat Di-
rector Jackie Pierce read a statement to Ward and Store
Manager Burch entitled "Instructions to Supervisors"
wherein it was stated, "[S]upervisors have no legally
protected right to belong to a Union. The Company miay
fire any supervisor who is not loyal to the Company anid
who encourages employees to belong to a Union or who
joins the Union himself."8 Notwithstanding, Ward con-
tinued his active support for the Union and solicited em-
ployees to sign union cards and attend union meetings.
On July II, Ward sent the Respondent a notarized letter
advising it that he intended to support the Union during
his off-duty hours.
The events leading up to Ward's discharge are not in
dispute. On July 13, Ward attended a union meeting, at
which time he spoke to the group of some 50 employees
from both the market and grocery departments. Wa-d
exhorted the employees to join the Union and, according
to Head Meatcutter Charles Sooter, whom I credit in
this regard, stated that he knew there were employees
against the Union, that "he would not tolerate it if lihe
knew who they [were]," and that he would do cvery-
thing in his power to get the Union in.
" IThe termrs "head rileit ciuter" inrd "Irl;rkec manager" are used inler-
chlangahly
' he (eilleral CU pp l ale s ti, icorncede Ihal market maglragers rc
Sec 2(11) supervisors although the Board has made noi determination in
this case Ward had previously been a markel manager at another of the
Respoindenl's stores. Moreover, record evidence establishes that marl et
rmarlagers or head meatcutter, at the Respondent's stores have and exer-
cisc the authorit to, on beihailf of the lInrployer, exercise independent
judgmentr filr making w, ork assignmenlls. granting time off, and susperd-
ing emplyi)ees, which are indicia sufficient to make Ihem Sec 2(11) iu-
pervlsors
" I'he same tatement was apparently read to all supervisory personrcl
in Ihe Amarillo division. The stalcment also admonished the superviso rs
not to make any statements Ihat could be interpreted as a threat or a
priomise of benefits.
129X
UNITED SUPERMARKETS, INC.
The following day Ward went on coffeebreak with
Lynda Brownlee, a grocery checker at Store 526, at
which time he solicited her to sign a union card. When
she refused, he accused her of being a spy for the Com-
pany and told her that squealers were going to be the
first ones to be fired after the Union got in.9 There were
three other meat department employees present. Accord-
ing to Ward, Brownlee was crying when she left the
drug store where they were taking their coffeebreak. Ap-
parently Brownlee reported Ward's comments to Meat
Supervisor Phelps. According to Phelps, he conferred
with Grocery Supervisor Smithey and the decision was
made to discharge Ward for his remarks to B3rownlee,
which remarks Phelps viewed as a threat. The following
day, July 15, Ward was terminated by Phelps, who told
him that they had "evidence" against him.'°
The General Counsel argues that Ward's promotion,
the reprimands, and his discharge are all part of the con-
certed effort by the Employer to rid itself of the "prime
mover" of union activities. Neither Ward's promotion to
supervisor or the reprimands were alleged or litigated as
unfair labor practices. Accordingly, I decline to consider
either to have been discriminatorily motivated. More-
over, there is nothing in this record to suggest that Ward
was not free to refuse the promotion to market manager
and remain within the protection of the Act. It is true
that the Board determines the supervisory status of
"head meat cutters" or "market managers" on a case-by-
case basis and the determination depends on the facts of
each case. Here, Ward knew at least by June 27 that the
Respondent considered him to be a supervisor and re-
quested that he refrain from union activity. This the Re-
spondent clearly had a right to do. The General Counsel
concedes that a supervisor is generally considered to
owe his loyalty to his employer. However, he may not
be disciplined for refusing to engage in unfair labor prac-
tices or antiunion conduct against employees, " or in
some instances disciplined as an integral part of the em-
ployer's efforts to stop unionism among his employees. t2
The Respondent contends that it discharged Ward be-
cause of the threat made to Brownlee in conjunction
with Ward's soliciting her to sign a union card, and not
because he refused to harass or ascertain and terminate
union supporters. There is no evidence that the Respond-
ent, who knew of Ward's union activities, ever solicited
him to discriminate against union adherents. I do not
credit Ward's testimony that on July 3 or 4 Pierce and
9 Ward admitted the foregoing Brownlee did not lestify
"' On July 14, Ward's market was visited by Meat Supervisors Piercr
and Phelps and Ward was given a written reprimand for having too
much fat in his hamburger and for not cutting sirloins in acciordance with
"United Meat Systems Manual." On July 15, Ward was given another
written reprimand for not keeping his "pull back" sheets in accordance
with the manual. While it appears that prior to this time the Respondent
had not given written reprimands for failure to comply with the
manual-and the record indicates most market managers did not adhere
strictly to it-it does not appear that these reprimands. or the alleged der-
elictions giving rise to them, formed any basis for the discharge of Ward
Since the reprimands were not alleged or litigated as independent unfair
labor practices it is unnecessary to discuss them further at this time
Ad See Talladega Cotton Factory, Inc., 106 NILRH 295 (1953), enfd 213
F.2d 208 (5th Cir. 1954).
12 Buddies Supermarkets, 223 NLRB 950 (1976), and Murray Goluh. S'-
luryn Golub and Alert GColubh d/h/a Goluhb Bros. (:onncenion. 140 Nl RB
120 (1958).
Phelps told him he could no longer refuse to tell the
Company who the union adherents were. Pierce estab-
lished that he was not even in Amarillo on either day
and Phelps credibly testified that he did not see Ward
either day because he was busy at the grand opening of
Store 533.
In my view, Ward gave the Respondent no alternative
but to discharge him for continuing to actively partici-
pate in the employees' union activities and threatening
reprisals against those employees who did not support
the Union. It is irrelevant that Ward had no supervisory
authority over Brownlee or that he was not in a position
to implement the threat. It is also irrelevant that the Re-
spondent wanted to get rid of Ward because of his union
activity. It is well settled that supervisors have no pro-
tected right to support a union organizing campaign and
the least an employer can expect from a supervisor is
neutrality in a union election. N.L.R.B. v. North Arkan-
sa.s Electric Cooperative, Inc., 446 F.2d 602 (8th Cir.
1971). Accordingly, Ward's discharge did not violate the
Act.
2. Priscilla Sain
Sain worked for the Respondent about 1-1/2 years as a
meatwrapper in the market at Store 529 under the super-
vision of Market Manager Steve Johns. A week before
her discharge, Division Meat Director Phelps informed
Sain that she was to be transferred to Store 526. Sain ob-
jected because that store had only one meatwrapper and
this would put a hardship on her because of her weak
wrists. Phelps then agreed to transfer her to Store 533
where she would work with other meatwrappers.
Sain commenced work at Store 533 on Sunday and
was terminated the following Saturday. July 16, accord-
ing to the Respondent. for tardiness and taking too long
on break. Store 533 Market Manager Charles Sooter
scheduled Sain to report to work at 8 a.m. each day that
week. Sain complained to Sooter that the schedule
would work a hardship on her, and, according to Sain,
Sooter agreed that she could report between 8 and 8:30
a.m. 3 Sain reported to work between 8 a.m. and 8:30
a m. each day except Saturday when she reported at 8:32
a.m. according to her timecard.
During the week Sain worked at Store 533 Meat Di-
rector Phelps talked with her about the Union and read
her an antiunion letter from the Employer. While talking
with her, Phelps told her the Company knew the ones
going to the union meetings. t 4 I find, as alleged, that
Phelps' statement constituted an impression of surveil-
lance of union meetings. Also during that week Sooter
told Sain she could not go on break with other market
':- I do not credit Sooter's testimony that he told Sain she would hase
to adhere to the schedule until he could work something out Although
Saim reported to work after 8 a.m. each day, it was not until Saturday.
the day of her discharge. that Soolcr mentio ned her tardiness Had he
denied her request he would not haise anited 5 days to point out that she
was being tardy
14 Phelps admitted talking with Sain but denied that he told her the
Company knew who wa, attending the union meetings Of course, the
Company did know who attended the meetings because some of its su-
pcrisors also attended I do not credit Phelps' denial of this statement
1299
DECISIONS OF NATIONAL LABOR RELATIO)NS BOARD
employees and on the day before her discharge he told
her she could not take breaks with the checkers.
On the day of Sain's discharge, Meat Supervisor
Phelps went to Store 533 and told Sain she was being
transferred to Store 524 to replace the meatwrapper
there whose husband had been made market manager.15
Sain again called Phelps' attention to her handicap of
working in a one-wrapper store and Phelps told her he
would try to put her back in a two-wrapper market as
soon as possible. Sain then went on break and Sooter tes-
tified she was gone 35 minutes instead of the 15 minutes
allowed.
Later that afternoon Sooter told Sain that Phelps had
told him to terminate her for tardiness and taking too
long on break. Sain testified that Sooter told her he tried
to explain to Phelps that he had an arrangement about
her schedule. Sooter denied the latter statement and testi-
fied that he and Phelps had discussed Sain's tardiness and
long breaks while on coffeebreak that morning and that
later Phelps had called and asked about Sain's attitude, at
which time Sooter told Phelps that he would terminate
her.
Steve Johns, Sain's supervisor at Store 529, testified
that Sain was a satisfactory employee there and that her
starting time had been 8:30 a.m. and a few minutes tardi-
ness was not a matter of concern. Johns admitted that he
knew of Sain's prounion sentiments, as did Phelps and
Sooter.
Shedding light on the Respondent's motives in dis-
charging Sain is the testimony of meatcutter Larry Mills,
who was called as a witness by the Respondent. Accord-
ing to Mills, the week after Sain's discharge Sooter told
him the Company was looking for a reason to get rid of
Sain because she was a union supporter. Sooter tactilely
admitted the conversation but could not remember what
was said.
Mark Soltis, an alleged discriminatee herein, testified
that Store 533 Manager Jim Selman told him they had
fired Sain primarily because of her tardiness, but that
they knew she had talked to other employees about the
Union and that was also a reason. In the same conversa-
tion he told Soltis that he (Soltis) "could see what hap-
pened to her."'6 Selman was not called by the Respond-
ent to testify and no reason was given for its failure to
do so, although substantial and damaging testimony was
given involving Selman's conduct. Although Selman was
not employed by the Respondent at the time of the hear-
ing, it was established that he was still in the Amarillo
area and no contention is made that the Respondent
could not locate him.
I find that the Respondent seized upon Sain's asserted
tardiness during the week preceding her discharge and
the asserted long coffeebreak on the day of her discharge
to discharge her for her activities on behalf of the Union.
Sain was admittedly a good employee and it appears that
the Respondent had no problems with her work habits
until her transfer to Store 533. Sain had been tardy, by
the Respondent's version, each day that week. However,
"5 The Respondent apparently had a policy against relatives working
in the same store
"L It is alleged that this conversation colistituted an impression of sur-
veillance and a threat of reprisals. I so find
nothing was said to her about it until the day of her dis-
charge. It is also interesting to note that this was to be
Sain's last day at Store 533; Phelps had already directed
her to report to Store 524 the following week. While tne
foregoing is sufficient to find a violation, the comments
of Sooter and Selman to employees Mills and Soltis tie
following week discloses that Sain's union activities were
the motivating factor in her discharge.
3. Van Bollen
Bollen was employed by the Respondent for about 10
months as a stocker/checker at Stores 526 and 530
where his overall work was satisfactory and his relation-
ship with the Respondent's clientele was outstanding. He
requested, and was granted, a transfer to Store 533 for its
grand opening on June 27. He was terminated on July 23
in a reduction in force necessitated by the reduced
volume of business after the grand opening. The Re-
spondent contends he was choosen for discharge, not-
withstanding his greater seniority, because he was less ef-
ficient.
It is undisputed that on July 13 Store Manager Selman
informed Bollen of a union meeting that night and asked
him to attend and report back to him the activity there.
The following day Selman inquired of Bollen if he had
gone to the meeting and, upon being told that he had,
Selman asked Bollen what had been said. Bollen appears
to have evaded the question. It is also undisputed that on
July 15 Selman told Bollen that if the Union came in
there would be a reduction in the number of employees.
A few days later Selman told Bollen that some good
might come out of the Union, but again indicated that it
would bring about a reduction in employees. About the
same time, Selman told Bollen that there were some
union representatives at the drug store where some em-
ployees took their coffeebreak and that if he were seen
talking to them he would be fired. About the same da.y
Bollen told Selman that the more he considered the
Union the more inclined he was to vote for it.
The foregoing is not denied. Accordingly, I find that
by Selman's conduct described above the Respondent so-
licited Bollen to spy on and report the union activities of
its employees, threatened Bollen with a reduction n
force for selecting the Union, and created the impression
of surveillance of the employees' union activities.
The grand opening of Store 533 commenced on Jure
27, at which time the store had 47 employees, both full
and part time. It appears from the testimony of Smithey
and Tipton that it was the Respondent's practice in open-
ing a new store to transfer some experienced employees
from other stores to the new store for its "grand open-
ing" in addition to the new employees it hired for the
greater volume of business usually generated by the pro-
motional campaign in connection therewith. After the
"grand opening" when the volume of business leveled
off, needless to say, fewer employees were required and
layoffs or terminations were generally necessary and th s
proved to be true at Store 533. However, the Respond-
ent admits that it usually did not terminate the employees
it had transferred from other stores when it became nec:-
1300
UNITED SUPERMARKETS, INC.
essary to reduce the force, but would transfer them back
to their original stores.
On July 23 when Bollen checked the work schedule
his name was not on it. A note accompanying the sched-
ule stated that a reduction in force was necessary and
employees whose name did not appear on the schedule
were terminated. Five other employees were terminated
from Store 533 at or about the same time as Bollen, some
of whom it developed had signed union cards and some
of whom had not. Similarly, some employees retained by
the Respondent supported the Union and some did not.
There was much testimony concerning Bollen's ability
as a stocker. According to Smithey, Bollen was nick-
named "slow motion" by his fellow employees because
he was slow in stocking his aisle. However, this was true
in the other stores where Bollen had worked and in
which he was utilized to a great extent as a checker in
which job he excelled. Thus, assuming that Bollen was
not the most efficient stocker, this fact was known
throughout his employment and the Respondent had re-
tained him because of his other desirable abilities. It was
not until the union activity among the grocery employ-
ees gained momentum and the Respondent learned of
Bollen's support for the Union that it could no longer
tolerate his inefficiency.
While it is true that a reduction in the work force of
Store 533 was undoubtedly necessary at this time, I find
that the Respondent has not carried its burden of estab-
lishing that it would have selected Bollen for discharge
even absent his union activity. It could have transferred
him to the front of Store 533 or to another store as had
been its practice in the past. Although Assistant Store
Manager Barry Hawkins testified, equivocally, that he
had talked with Bollen about being slow, he also ad-
mitted that Bollen was an efficient employee. In any
event the Respondent does not contend that Bollen, an
employee of relatively long tenure, was ever put on
notice that his work must improve or he would be termi-
nated.
Here the Respondent knew of Bollen's union activities
and he refused to cooperate with Selman by reporting
the activity at the meetings. This is all that Respondent
learned about Bollen after his transfer to Store 533. It al-
ready knew that he was not its fastest stocker but had
other qualities which it desired. Accordingly, I find the
Respondent discharged Bollen to discourage union activ-
ity among its employees.
4. Donna Bates
Donna Bates was employed by the Respondent as a
checker at Store 524 in January and worked there under
the supervision of Jim Rush, store manager, until about
July 24. In late June, Bates asked Division Meat Director
Phelps about transferring to the meat department, at
which time Phelps told her, in effect, that he was op-
posed to such transfers because "it caused hard feelings."
Shortly thereafter, Bates learned of a possible opening in
the delicatessen at Store 529. On July 6, she asked Store
529 Market Manager Steve Johns about the job and indi-
cated that she wanted it when it became available. The
following day she told Rush she had requested the job.
Rush told her it was probably a mistake and later ex-
plained that the job would not last more than 6 months
because the meat department was in a "mess." Rush told
her they were screening all employees carefully to find
out who was "for or against." 7 The foregoing state-
ments by Rush are alleged and found to constitute a
threat of reprisal and an impression of surveillance.
A couple of weeks later, about July 22, Rush told
Bates that Steve Johns had called and said that she could
go to work in the delicatessen on Monday, July 25. Bates
asked Rush if she could return to Store 524 in the event
the job at the Store 529 did not work out, and Rush as-
sured her that she could.
Bates reported to Johns on Monday, July 25, and
worked her scheduled 4 hours. When she reported to
work the following day her timecard was not in the rack
and upon inquiry Johns told her she was laid off in a cut-
back in all the stores. Bates called Rush about her old
job and Rush told her he was having to lay off also and
she would probably have been laid off at Store 524 had
she remained there.
The Respondent contends that it had no knowledge of
Bates' union activity and, in any event, she was laid off
for economic reasons in a reduction in force. As to com-
pany knowledge of her union activity, Bates testified
without contradiction that, about the first of July,
Market Manager Worlin Robinson asked her if she wias
for the Union and she replied affirmatively. i Contrary
to the Respondent's contention, it is not necessary to
show by direct evidence that the supervisors who par-
ticipated in the discharge knew of Bates' union activity
where, as here, it is shown that one supervisor knew of
her union sentiments and practically all of the Respond-
ent's supervisors engaged in widespread unfair labor
practices, including threats, interrogation, and the im-
pression of surveillance. Accordingly, I find and con-
clude that Bates' prounion sentiments was known to the
supervisors who discharged her.
The General Counsel contends that Bates was trans-
ferred to a different store and discharged pursuant to a
pattern established by the Respondent to get rid of union
adherents under the guise of reducing its work force to
reduce labor costs. Phelps testified that transfers from
the grocery department to the meat department were
supposed to be approved by the area supervisors of both
departments. However, no approval for Bates' transfer
by Phelps or Smithey was obtained by Johns or Rush,
each testifying that he thought the other had obtained
approval. Phelps testified that he saw Bates at Store 529
on July 25 and asked Johns what she was doing there
and told Johns they could not keep her because they
were cutting back hours in the meat department.
The Respondent's evidence established that in midyear
its labor cost factor in the Amarillo division was approxi-
mately I percentage point higher than in its other two
divisions. The Respondent argues that in attempting to
'1 The petition for an election in the meat department had been filed
on July 1. No petition had been filed in the grocery department at this
time
8 Although there were several 8(a)(1 I) allegations involtilng Robinson,
the Respondent did not call Robinson to testify or offer an explanation as
to why it did not Accordingly. I conclude that Robinson's teslimony
would not have supported the Respondent's position this case
1301
DECISIONS OF NA'II()NAL LABOR RELA'HOl()NS BOARD
reduce this labor cost factor it had an inordinate 186 ter-
minations, both voluntary and involuntary, between July
and October. During the same period of time it hired 119
employees.
I agree with the General Counsel that Bates, who was
a satisfactory employee and a known union adherent,
was discharged because of her union advocacy. It is
clear that the Respondent could have achieved its goal
to reduce man-hours by natural attrition and that it was
not necessary to involuntarily terminate any employee.
This is not to say that it could not weed out inefficient
employees and replace them with employees who
worked more efficiently, for this is one method of reduc-
ing labor costs. However, Bates was a satisfactory em-
ployee of some 6 months' tenure. I do not credit the Re-
spondent's references to her tardiness as a factor in her
termination. There is no evidence of such tardiness other
than Rush's reference to it in his testimony. She had
never been counseled concerning tardiness and Rush did
not advise Johns prior to her transfer of such problem. It
is well settled that, where an employer's reason for dis-
charge is found to be false, the Board may infer that
there was another reason, one the employer sought to
hide; i.e., an unlawful one. This inference is clearly al)p-
propriate here, where the Employer has engaged in ex-
tensive unfair labor practices, some of which are unden-
ied. Accordingly, I find arid conclude that Bates' dis-
charge violated Section 8(a)(3) of the Act.
5. Rick Stanberry
Stanberry was employed at Store 527 for about 5
months as a stocker prior to his discharge on July 25 at
the direction of Store Manager Burch. The Respondent
contends that Stanberry was terminated for woefully in-
adequate work performance resulting from his laziness
and lack of interest in his job and that it had no knowl-
edge of Stanberry's union sentiments.
Store 527 was apparently the nucleus of the union ac-
tivity. As previously stated, Max Ward, who initiated the
union activity, was employed at Store 527 as were six of
the other alleged discriminatees. Store Manager Burch
testified that Union Representative Bill Glass was fre-
quently in the store and parking lot disturbing employees
and interfering with their work, which resulted in nu-
merous confrontations between himself and Glass when
he asked him to leave. Burch further testified that he saw
Stanberry talking with Glass on more than one occasion.
Store 527 was also the site of much of the antiunion
conduct alleged in the complaint to violate Section
8(a)(1). It is undisputed that on June 29 or 30 Store Man-
ager Burch summoned several employees, including
Stanberry, Dennis Cowan, Calvin Vaughn, and possibly
Russell Lyle, to the back of the store and for an hour
and a half or so discussed the Union with them. Assistant
Store Manager Lewis Pena was also present from time to
time during the discussion.
According to Stanberry, Burch initiated the discussion
by stating that he knew something was going on and he
wanted to know about it. He then started talking about
unions in general and the Retail Clerks Union in particu-
lar. As might be expected, there were as many different
versions of what Burch said as there were witnesses who
testified to the meeting. Stanberry testified that Burch re-
lated some personal experiences he had while working at
a union store on the west coast and told them that if the
Union came in "they" would have to cut back on the
number of employees in order to meet higher wage de-
mands. According to Dennis Cowan, in response to a
question Burch said that on the west coast they had to
lay off employees so they could stay in business. Stan-
berry further testified that Burch said he would arrange
a meeting with Max Smithey, area supervisor, and try to
get better wages and working conditions. Burch contin-
ued that if the Union came in Snell, the owner, would
lock the doors testifying that "before he let the union in
he would just close up." According to Burch, in re-
sponse to a question concerning the Company's closing
stores, he replied, "I guess they are big enough to do
what they want to do." However, Cowan testified that,
in response to the question Burch assured the employeees
that Snell would not close the store because he was not
the kind of man to kick people out of work. Burch ad-
mitted that he told the employees that if wages were in-
creased production would have to increase.
Relying principally on the testimony of Stanberry, the
General Counsel alleges that Burch's statements at the
meeting constitute an impression of surveillance; a threat
of discharge or reprisals; a threat to go out of business; a
promise of better wages and benefits; and a threat to
reduce the number of employees, all in violation of Sec-
tion 8(a)(1). While I have not set forth all conflicting
versions of testimony relating to this meeting, I have
considered all such testimony. During this 1-1/2 hour
discussion, primarily concerning the Union although
other matters were discussed, it is likely that Burch made
all the comments remembered by those present. I find
Stanberry to be an extremely credible witness who did
not deliberately embellish upon the truth. Accordingly. I
find that Burch made the statements attributed to him by
Stanberry. Moreover, even if these statements were
made under the guise of telling the employees what hap-
pened when other stores were unionized on the west
coast, it would still constitute coercive interference with
employees' Section 7 rights, for, in the context of all the
other unfair labor practices found here, the inference is
clear that Burch was saying the same thing would
happen in Amarillo. Therefore, I find the violations as al-
leged.
As noted above, the Respondent contends that Stan-
berry was fired for inefficiency and taking too many
breaks. The General Counsel argues that Stanberry was
selected for discharge because he was a union adherent.
On July 25, Stanberry and Russell Lyle found their time-
cards missing from the rack when they attempted to
clock out at the end of their shift. They went to the
office where third man' 9 Chuck Durbin informed them
that he hated to do the dirty work but Burch had in-
structed him to tell them "we can't use you anymore."
It appears that the position classified as third man might be char.c-
ierized as a second assistant manager and was found to be a nonsupervi-
sory position However, when neither the manager nor assistant manager
was present at the store the third man was charged with the proper opcr-
ation of' the store
1302
UNITED SUPERMARKETS, INC.
Upon inquiry as to why, Durbin told them it was their
lack of production. They then clocked out. 20 According
to Stanberry, the following day he telephoned Area Su-
pervisor Smithey, who informed him he was laid off in a
budget cut "because we wasn't selling enough to make
our wages."
First, with respect to company knowledge of Stan-
berry's union activity, Burch admitted that he observed
Stanberry talking with Union Representative Glass on
more than one occasion. Stanberry signed a union au-
thorization card on July 6, and, while there is no direct
evidence that any management official was informed of
this or any other union activity by Stanberry, I am con-
vinced that by July 25 the Respondent had a fairly accu-
rate count of which employees supported the Union.
This finding is supported by the fact that the Respondent
engaged in numerous unlawful acts, including surveil-
lance and interrogation, to identify the union adherents
and rid itself of them.
There was much testimony concerning Stanberry's
work performance. After commencing work at United in
March, it appears that Stanberry completed his 2-week
training program satisfactorily and was given the respon-
sibility of ordering for his aisle, the bake aisle. The testi-
mony relating to his deficiencies concerned the period of
June and July, after the union campaign commenced
among the grocery employees.
According to Burch and Pena, Stanberry constantly
failed to maintain his aisle in accordance with repeated
instructions from both men. On the other hand, Stan-
berry testified that on one occasion Burch instructed all
the stockers on his stocking techniques and, aside from
general comments, i.e., "lets get going," Stanberry was
never individually criticized or warned about his job per-
formance. Stanberry was transferred from the bake aisle
to the soap aisle and then to the paper aisle and each,
according to Burch, was progressively easier to stock.
About July 8, Stanberry, Lyle, and another stocker were
relieved of their duties to order for their aisles, but no
reason was given to them at the time. Stanberry admitted
that, after Pena began ordering for his aisle, there were
"holes" in it due to the fact that Pena did not order the
correct merchandise.
In addition to Burch and Pena, employees Cowan and
Sharon Sanders testified that Stanberry's aisle had
"holes" in it and that he took excessive breaks, both in
number and length. Cowan also testified that he had
heard Pena tell Stanberry to "get to work," or words to
that effect, on a number of occasions.
As noted above, there was a great deal of testimony
concerning Stanberry's performance, most of which was
general in nature and apparently dealt with the period of
June and July. It appears that Stanberry's "lack of inter-
est" in his job became a concern to the Respondent only
after union activity commenced among the grocery em-
ployees.
As already indicated, Stanberry's testimony was given
forcefully and with a ring of truth, and I credit him
20 Although Assistant Manager Lewis Pena testified that he ohbserved
Lyle working in the store several days later. I am persuaded by Stan-
berry's testimony and that of Burch that Pena was mistaken and that
Lyle was fired the sanle day as Stanberry
where his testimony is in conflict with Burch, Pena, and
Cowan. Stanberry may well not have been efficient in
his work performance. However, the Respondent tolerat-
ed these deficiencies until the height of the union cam-
paign when it elected to terminate him without warning.
This occurred in the midst of numerous other unfair
labor practices, many of which are not denied. Accord-
ingly, I find that the Respondent discharged Stanberry
for his union activities.
6. Claude Murray
Murray entered the Respondent's employ at Store 526
in November 1976 as a stocker. He was hired by Store
Manager Ronnie Sinclair, who was personally acquaint-
ed with him and knew of his 8 years' experience in the
grocery business. Around July 12, Sinclair was replaced
by Mike Stevens, who was transferred from the Re-
spondent's Lubbock division. Murray attended at least
two union meetings and on July 18 he signed a union
card. According to Murray, several rank-and-file em-
ployees sought information from him about the Union
because they knew that he had previously belonged to
the Union, and on one occasion he discussed this with
Assistant Store manager Walter Bolden. Murray also tes-
tified that on one occasion Bolden was in the immediate
vicinity when Union Representative Barber gave him ad-
ditional union cards.2 1
According to Murray, as he was leaving work on
August 1 Stevens told him that he had been told to cut
back on employees and that he was starting with him be-
cause he was not "properly producing." Contrary to Ste-
vens, Murray testified that Stevens had never spoken to
him until the day he was terminated and that he had
never been told that his production was inadequate.
Stevens made the decision to terminate Murray when
his labor costs rose 8 percent for the week ending July
30. Insofar as the record reveals, Stevens was unaware of
the divisionwide move to reduce labor costs as purport-
edly decided by Smithey in mid-June. While it is true the
record reveals an 8.5-percent labor cost for I week for
Steven's store, his labor costs for the quarter was 6.97,
well within the acceptable 7-percent figure.
Stevens' testimony was not convincing. He testified
that Murray worked the dog food aisle, whereas Murray
testified credibly that he worked the bake aisle. The only
specific criticism of Murray by Stevens was that he spent
too much tinle "facing" the cans on his aisle. There is no
contention that Stevens consulted with Bolden, the as-
sistant manager who had observed Murray's work for
several months, before deciding to select him for dis-
charge for lack of productivity. Although Bolden was
called to testify he did not testify with respect to Mur-
ray's work.
I find Murray's discharge, when viewed against the
background of this case, to be part of the pattern which
clearly emerges on this record which discloses that the
Respondent was reacting to the advent of the Union in
its grocery department with the unfair labor practices
2 B3olden denied that he observsed Murray talking with a union orga-
nizer and that Murral cser indicated ten him that he was for the Union
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found herein. As the General Counsel argues in his brief,
Murray's discharge differs from the others found viola-
tive herein only to the extent that it was apparently not
orchestrated by higher management.
I have no problem concluding that the Respondent
had knowledge of Murray's prounion sentiment based on
Murray's discussions of the Union with Bolden, his at-
tendance at two union meetings, and his open discussion
of the Union with fellow employees.
Murray was a relatively long-term employee and there
is no contention that his work, quality or quantity, was
less than satisfactory until 2 weeks before his discharge.
I am convinced and I find that the discharge of
Murray was motivated by the Respondent's objective to
rid itself of union adherents in order to discourage the
protected activities of its employees in violation of Sec-
tion 8(a)(3) and (1) of the Act.
7. Tanna Stoops
The record discloses that Stoops was employed by the
Respondent at Store 529 as a checker on June 7, and
some 10 days later was transferred to the meat depart-
ment as a wrapper under the supervision of Steve Johns,
market manager. During the week of June 22, she was
transferred to the market at Store 526 as a wrapper
under the supervision of Worlin Robinson. She worked
there until July 29, when she was discharged by Robin-
son for leaving meat out of the cooler while she went on
break.
Stoops' union activity started upon her transfer to the
meat department when she learned of the union activity
in the market from Max Ward. Stoops attended the ini-
tial union meeting conducted by the Teamsters about
June 20, and signed a union card for that Union. She also
attended the initial union meeting for the Retail Clerks
about June 23, where she also signed a union card. It is
undisputed that her supervisor, Steve Johns, saw Stoops
at both union meetings and that she told her last supervi-
sor, Worlin Robinson, that she had attended the meet-
ings. It is clear that Stoops promoted the Union in other
ways by talking with employees about the Union and by
giving cards to an employee for distribution at another
store.
About July 8, Division Market Supervisor Bernard
Phelps came to Stoops in the market and called her into
the "back room" where he handed her an antiunion
letter prepared by the Company and asked her to read it.
During the course of this meeting Phelps told Stoops
that if the Union came in it did not mean that United
would negotiate a contract and that it did not mean the
employees would be able to keep their jobs. In response
to leading questions by counsel, Phelps testified that he
could not recall making any statement to Stoops while
he did remember taking the letter to her and either read-
ing it to her or having her read it. I credit Stoops' ver-
sion of this July 8 incident. Her testimony was straight-
forward and free from embellishment, whereas Phelps
appeared tense and interested only in denying any act
which might be found unlawful. Further bolstering
Stoops' credibility is the fact that she freely admitted the
conduct charged by the Respondent for which it asser-
tedly discharged her.
The foregoing conversation between Phelps and
Stoops is alleged in the complaint to violate Section
8(a)(1) of the Act, since the words conveyed a threat of
reprisal and a threat of futility for the employees if they
selected the Union. Having found that the conversation
occurred as alleged by the General Counsel, I find and
conclude that the Respondent violated Section 8(a)(1) by
such conduct.
On July 29, at or about 2:30 p.m., Stoops was engaged
in wrapping meat. She asked Robinson if she could take
her "break" at that time. He gave her permission. As she
was returning to the wrapping area to place the meat left
on the conveyer belt under refrigeration while she was
gone, she "thought" she saw Lucy Mooney, another
wrapper, returning from lunch. On the assumption that
Mooney would, in accordance with standard practice in
the meat department, continue wrapping the exposed
meat, she left for her "break." When she returned 15
minutes later, Robinson met her in the market area and
"told me to go home because he couldn't use me any
more because I had left the meat."
The above facts are not in dispute. Also not in dispute
is the Company's policy that meat should not be left un-
refrigerated "any longer than possible" (Phelps). Pierce,
on the other hand, attempted to convey the impression
that it should not happen at all. Store Manager Roy
Burch stated that he had seen Stoops on four or five
other occasions leave meat unrefrigerated, and initially
stated that he had admonished her about it. On further
examination he conceded that he had spoken to Robin-
son about it, but not to Stoops.2 2 Mary Jane Walker, the
meatwrapper who had trained Stoops, testified that she
had left meat in an "unrefrigerated well" while on
break. 23
On the facts here, I am convinced, and I find and con-
clude, in accord with Stoops' testimony, that she had
never before left meat unrefrigerated or been admon-
ished about such act. While there is no dispute that leav-
ing meat unrefrigerated is detrimental and a breach of
standard procedure, there is no contention that the meat
was affected on this occasion. Robinson's precipitous dis-
charge of Stoops, without giving her an opportunity to
respond, is indicative of the Respondent's desire to "get
rid" of this employee. I am convinced, and I find and
conclude, that the Respondent seized upon this rule's in-
fraction to discharge Stoops because of her known sup-
port for the Union and to discourage concerted activity
by its employees.
8. Karen Renfroe
Karen Renfroe entered the Respondent's employ Ibr
the second time on May 25,24 when she was hired as a
22 Robilnson did not Iestify al the hearing Although not in the Erm-
ployer's employ at the time, the Respondent advanced no reason for not
calling him as a witness, but attempted to establish its defense with re-
spect to Stoops' discharge by the hearsay testimony of Burch
2:s There was much testimony to the effect that, contrary to Waller,
the "well" to which she referred was refrigerated. On the facts of this
case. I need not resolve this credibility conflict
4 TIhe record is unclear as to when and where she worked during ter
first employment.
1304
UNITED SUPERMARKETS, INC
clerk in the bakery section of Store 530 under the super-
vision of Store Manager Fred McCain. This section had
recently converted from a full-service to a self-service
section and this store was one of two stores in the Ama-
rillo division with a bakery. The only other employee in
this section was the baker, Bobby Lancaster.
Renfroe attended the union meeting on July 13, at
which time she signed a union authorization card. The
following day Market Manager Gonzales asked her what
she thought of the union meeting, to which she replied
that she "was all for it." 25 Sometime later in July, Store
Manager Fred McCain asked both Renfroe and Lancas-
ter what they thought about the Union. Renfroe's reply
was that "it can do good and it can do bad." McCain did
not testify; therefore, the foregoing is undenied. I find
and conclude that McCain's question to Renfroe and
Lancaster constitutes coercive interrogation as alleged in
the complaint. Contrary to the Respondent's contention
in its brief, in light of the numerous violations found
herein, such questioning cannot be viewed "more in the
nature of a passing comment than in the tone of informa-
tional interrogation."
The record indicates that on or about August 5 the
Respondent granted some pay raises. Both Renfroe and
Lancaster were dissatisfied with the amount of their
raises and so informed Store Manager Ed Stanton along
with their notice of intention to quit, Renfroe in I week
and Lancaster in 2 weeks. Stanton informed them they
would have to discuss the matter of the salary raises
with Area Supervisor Phelps. However, within a day or
two, Renfroe informed Stanton that she wished to con-
tinue working since her husband was on strike against his
employer and was not receiving a paycheck. Renfroe tes-
tified that Stanton replied that he was glad to hear that
because he did not want the bakery to close, but to
inform Phelps of her decision.
The following Wednesday, Renfroe discussed her
desire for more money with Phelps, who informed her
that he could not afford to pay more money and, more-
over, they were considering closing the bakery at Store
530 because business was not good. It is undisputed that
Renfroe then asked if she could be transferred to the
bakery section at Store 529, the only remaining bakery in
the division, and indicated that she wanted only bakery
work. According to Phelps, he told her he could not use
her there because he had a "full crew at that time." Ren-
froe's version was that he said he would have to "wait
and see." On August 11, the day before the bakery at
Store 530 closed, Renfroe again asked Phelps about
going to the bakery at Store 529 and he told her he
could not let her work there because her sister was the
bakery manager there. This conversation was not ad-
dressed in Phelps' testimony. It appears that the Re-
spondent did have a rather loosely enforced policy re-
quiring approval by its home office for relatives to work
together. On cross-examination, Renfroe admitted that
two of her sisters were already working in the bakery at
Store 529. The record further indicates that there were
25 The foregoing, while not denied since Gonzales did not testify, is
not alleged as a specific violation of the Act and was apparently offered
to establish company knowledge of Renfroe's union activity. No finding
will be made thereon
about eight other instances where relatives were working
together. Renfroe's last day of employment was August
12. Although the Respondent hired at least four new em-
ployees in the bakery at Store 529 within the following
several months, it never contacted Renfroe with respect
to such employment. On the other hand, there is no evi-
dence that Renfroe asked to be considered for future em-
ployment when an opening occurred.
The General Counsel contends in the first instance that
the Respondent's decision to close the bakery at Store
530 was based, "in part," on its desire to "rid itself of an-
other union adherent," or, in the alternative, assuming a
valid business reason for closing the bakery, that "it was
selective in its decision to deny Ms. Renfroe the opportu-
nity to transfer to the new store." The Respondent con-
tends that Renfroe quit; and that "she was not rehired
and the company was under no obligation to rehire her."
Additionally, it argues there is no substantial record evi-
dence that Respondent had knowledge of Renfroe's
union activity.
Addressing first the issue of company knowledge, it is
clear from the undisputed testimony of Renfroe concern-
ing the July 14 conversation with Market Manager Gon-
zales that the Respondent knew she attended the July 13
union meeting, and that she told Gonzales that she "was
all for it." It is well settled that knowledge of an employ-
ee's union activity by any supervisor or management of-
ficial, although not directly involved in subsequent
action affecting the employee's job, may be imputed to
the supervisors who were so involved. This inference is
clearly warranted here in view of the numerous instances
of impressions of surveillance and interrogation. Accord-
ingly, I find that the Respondent knew of Renfroc's
union sentiment.
With respect to the contention that Renfroe quit and
the Respondent was under no obligation to rehire her,
the record is clear that she attempted to rescind her
notice of quit and remain in the Respondent's employ,
which was denied her because the decision had been
made to close the bakery section of Store 530, and the
record does not establish that the Respondent had any
bakery positions available at Store 529. The Respondent
is correct, to a point, that it had no obligation to permit
Renfroe to withdraw her notice of resignation or to
rehire her. This is true only if such refusal was for rea-
sons totally unrelated to her union or protected concert-
ed activity.
Now, addressing the General Counsel's first conten-
tion, there is absolutely no record evidence to support
the argument that the Respondent's decision to discontin-
ue its bakery operation at Store 530 was motivated by
anything other than valid business considerations. Such
finding would have to be based on mere conjecture. Not-
withstanding the Respondent's admittedly strong opposi-
tion, and as found herein as an unlawful opposition, to
the Union, I am not persuaded that it would be influ-
enced to make this kind of operational change merely to
rid itself of one union adherent. Indeed, the record here
demonstrates that the Respondent's modus operandi was
to seize upon asserted individual misconduct or deficien-
cies to rid itself of individual union activities.
1305
DECISIONS OF NATIONAIl LABOR RELATIONS BO)ARD
The above findings lead to consideration of the Gener-
al Counsel's alternative contention that Renfroe was
denied a transfer to Store 529 because of her prounion
sentiments. As heretofore found, there is no evidence to
dispute the Respondent's contention that it had no posi-
tions available for bakery clerks at Store 529 at the time
it closed the bakery at Store 530. The General Counsel
argues that the fact that Lancaster, a baker, was trans-
ferred to Store 529 to work his last weeks' notice, and
thereafter was permitted to rescind his notice and remain
in the Respondent's employ at Store 529 with his father,
also a baker, is evidence of disparate treatment as to both
the right to transfer and to work in the same store with a
relative. There is no evidence with respect to Lancasters'
union sentiments. The Respondent does not advance as a
defense to its action the fact that Renfroe already had at
least one sister and apparently two sisters, working in the
bakery at Store 529.
The Respondent contends, and there is no evidence to
dispute, that it transferred Lancaster to Store 529, and
permitted him to remain there working with his father,
because of his skill as a baker. It appears that, upon clos-
ing the bakery at Store 530, the bakery at Store 529
would have to increase production in order to supply
bakery products to all stores in the division. According-
ly, another baker was needed. Thus, the final question is
whether, on the facts here, the Respondent had reason to
believe that Renfroe was interested in any future opening
occurring in the bakery at Store 529, and if so whether it
failed to seek her out and offer such position to her
when it became available because of her union activities.
While the issue is not free of some doubt in light of
the Respondent's pervasive and egregious unfair labor
practices, I find and conclude that the General Counsel
has failed to prove by a preponderance of credible evi-
dence that the Respondent's actions with respect to Ren-
froe were discriminatorily motivated.
Having found that the decision to close the bakery at
Store 530 was unrelated to any union activity, it follows
that the elimination of Renfroe's job there was not dis-
criminatory. According to Renfroe, the only reason
given to her by Phelps for declining her request for
bakery work at Store 529 was that her sister was bakery
manager there and it was against company policy to
have relatives working together without "home office"
approval. As noted above, Phelps testified at some length
concerning many complaint allegations, but did not ad-
dress this August 11 discussion with Renfroe. Whether
this was an oversight on the part of counsel or whether
the Respondent does not dispute Renfroe's version is not
clear from the record or brief. I am persuaded that
Phelps told Renfroe that there were no jobs available in
the bakery at Store 529 at that time, and, assuming, as I
must, that he also alluded to the company policy regard-
ing employment of relatives, it is clear that Renfroe
made no request to be considered for future employment
or request that approval be sought for her to work at
Store 529 with her sister or sisters. While it is not entire-
ly clear from the record, it appears that Renfroe had two
sisters working in the bakery at Store 529. Thus, one
may conclude that she was aware of waivers against rel-
atives working together, and, having observed Renfroe
on the witness stand, I am convinced that she would
have pointed this fact out to Phelps had that been the
only asserted reason for not transferring her.
Accordingly, I find and conclude that Renfroe was
not terminated for discriminatory reasons, and recom-
mend that the complaint be dismissed with respect to this
allegation.
9. Mark Soltis
The complaint alleges that the Respondent discriminat-
ed against Soltis by reducing his hours of work, with-
holding part of a promised wage increase, reducing his
wages, demoting him from "third man" to stocker, and
terminating him on September 7.
Soltis entered the Respondent's employ in November
1976 as a stocker at Store 529 earning $4.25 per hour. He
received periodic increases up to $4.59 per hour by June
27, when, at his request, he was promoted to "third
man" and transferred to the new store, number 533,
under the supervision of Jim Selman, store manager, and
Barry Hawkins, assistant manager, at which time his pay
was raised to $4.69 per hour. Soltis was raised to $5 an
hour about August 5 and demoted to stocker and trans-
ferred to Store 527 on September 3 at a rate of $4.75 per
hour. Three days later he was terminated by Store Man-
ager Roy Burch for alleged insubordination when Burch
attempted to discuss with him employee complaints
about his soliciting them on working time and his inabil-
ity to get along with other employees.
Before considering the alleged 8(a)(3) discrimination
against Soltis, consideration and findings of fact will be
made as to numerous alleged 8(a)(l) violations based on
the testimony of Soltis. Soltis testified to almost daily
conversations about the Union with store manager
Selman from about July 11 to July 25 which are alleged
as 8(a)(1) violations. The Respondent attacks Soltis credi-
bility contending that his testimony is contradictory and
that much of it is repudiated by the General Counsel's
witnesses. However, the Respondent did not call Seltrran
as a witness and argued in its brief that Selman was as
readily available to the General Counsel as he was to the
Respondent. Counsel apparently does not perceive the
adversary trial burdens of the parties. I find nothing in
Soltis' testimony requiring that I discredit him, particu-
larly on matters that are not disputed. The Respondent
asserts that it terminated Selman on November 6 because
of charges alleging Selman's unlawful antiunion activity.
Such charges also involved other supervisors who were
not terminated, which suggests that the Respondent was
convinced of Selman's proclivity to interfere with em-
ployees' Section 7 rights.
Soltis first learned of the union activity about July 11,
when Selman informed stocker Doug Lamascus and
Soltis that he (Selman) was aware that the Union was
trying to organize and he wanted to say a few things.
Selman told them that if the Union were selected the
Company would fire all the employees, and those who
wanted to work would be rehired and those who did not
work would go on strike. He continued that Travis Lin-
cecum, the owner, would never sign a contract. As al-
leged, I find the foregoing to violate Section 8(a)(1) of
1306
UNITED SUPERMARKETS, INC.
the Act because it contained a threat to employees of
discharge or other reprisals, a threat of futility its em-
ployees to select the Union, and a threat not to bargain
in good faith.
The following day several employees, including Soltis,
were having coffee in the office with Selman. One of the
employees mentioned a "credit" union. Selman apparent-
ly did not hear "credit" and "leaned back in his chair,"
and essentially reiterated the comments of the day
before, to the effect that Lincecum would never sign a
contract and that employees who struck would be fired,
and employees who wanted to work and did not go on
strike would be rehired. I find a repeat of the violation
found above.
About July 13, Soltis observed Selman talking with
two other employees after which Selman came to Soltis
and told him:
I'm going to tell you exactly what I've told them.
You are not to talk to the Union people on compa-
ny time. Your coffee breaks are paid for by the
Company, therefore that is company time. You are
not to talk to union people on store property.
Anyone seen talking to a Union representative, that
is grounds for immediate termination.
He added that Soltis, as his assistant, had a duty to
inform him if he observed employees talking to a union
representative. The Respondent argues that Soltis contra-
dicted himself on cross-examination w hen he testified
that Selman had told him that he could solicit on coffee-
breaks. It is not clear when Selman informed Soltis that
he could solicit on break. However, such does not de-
tract from the July 13 oral announcement of a clearly
overly broad and invalid no-solicitation rule. I so find. In
addition, I find a threat to discharge for engaging in pro-
tected activity and a solicitation to report the union ac-
tivities of other employees.
On July 14, Selman again approached Soltis and told
him that if the Union were voted in they would probably
not have a produce manager anymore and the "third
man" would have that job in addition to his regular
duties. As alleged, I find the foregoing to constitute a
threat to reduce the number of employees if they select-
ed the Union.
When Soltis reported for work on July 16, at or about
noon, Selman approached him and said, "We fired your
friend back in market." Soltis asked who, and was told
Priscilla Sain had been fired for being late for work; that
even union supporters would be expected to toe the line;
and that he knew she had been going to union meetings
as well as talking to employees and "you can see what
happened to her." The Respondent violated the Act as
alleged by telling its employees that Sain had been fired
for her union activity and by a thinly veiled threat that
the same would happen to other union adherents.
Also on July 16, Selman told Soltis that their produc-
tion rates had been increased from $45 to $50 per man-
hour to $60 per man-hour and that they would increase
$5 per week until United was comparable with Furr's (an
organized grocery chain). Selman continued, "Now the
employees will see what its like to work for a union
store." Selman also indicated that "third men" would be
relieved of their administrative duties and that their
hours would be reduced. To some extent Max Smithey
corroborated Soltis, for he testified that about this time
the Company decided as part of its plan to reduce labor
costs to also reduce the hours of "third men" from 48 to
40 hours per week. 26 I find the foregoing to constitute a
threat to increase production and a threat to reduce
hours because of the employees' union activities in viola-
tion of Section 8(a)(1) of the Act.
Around July 19, Selman told Soltis that he had a list
and knew who was for the Union and who was attend-
ing union meetings. He continued that people were up
from Lubbock (the home office), and they knew. The
foregoing constitutes an impression of surveillance and a
threat to surviel the union activities of employees.
On July 21 and 25, respectively, Selman told Soltis
that he knew Van Bollen and Soltis were for the Union.
Soltis had signed a card on July 19. I find from the fore-
going an impression of surveillance of employees' union
activities.
About July 21, employee Carl Davis visited Store 533
with a union representative. Soltis observed them and
advised Assistant Manager Barry Hawkins, who indicat-
ed he needed to inform Area Supervisor Bernard Phelps.
According to Soltis, Hawkins could not reach Phelps
and called Charles Sooter, market manager at Davis'
store, and informed him that Davis was there with a
union representative and they needed to do something
about it and inform Phelps. Afterwards, Soltis asked
Hawkins if they would "trump" up a charge against
Davis to get rid of him because he was prounion. Ac-
cording to Soltis, Hawkins replied, "Yes, and if you
know whats good for you, don't repeat it." Sooter, as
did Hawkins, denied the telephone conversation and
Hawkins denied admitting they would trump up charges
to get rid of Davis. Hawkins admitted an incident where
Davis came into the store with a union organizer, but
denied anything further. As noted above, I find Soltis to
be a credible witness while Hawkins' demeanor left
something to be desired. Hawkins' denials of all unlawful
conduct was not convincing. Accordingly, I find Haw-
kins violated Section 8(a)(l) by telling Soltis that the Re-
spondent would trump up charges to get rid of Davis be-
cause he was prounion.
Turning now to the allegation concerning the reduc-
tion in Soltis' working hours and the withholding of part
of a promised wage increase, the facts are not in serious
issue. As discussed above, around mid-July there were
rumors that the hours of "third men" would be reduced.
Soltis was informed of this and complained that a reduc-
tion in hours would hurt him financially. Selman told
him he could expect a raise around August 1, so it may
not hurt him too much. About August 5, according to
Soltis, Assistant Manager Barry Hawkins told him that
his raise would probably be $5 to $5.50 an hour. When
he received his first check reflecting the raise on August
12, he and Hawkins "figured out" that he was raised to
$5 an hour; Chuck Durbin, "third man" at Store 524 was
26 This is alleged as a violation of Sec 8(aX3 ) and will bhe considered
infra.
1307
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
raised to $5.50 per hour. The remaining five third men
were paid $250 per week for 48 hours. The Respondent
contends that the raises were based on the grocery expe-
rience evaluation. Thereafter, Durbin and the other
"third men" continued to work 48 hours per week. Soltis
was reduced to about 40 hours per week for the 3 weeks
that he remained a third man.
The Respondent contends that it reduced Soltis' hours
because the volume at Store 533 had dropped to about
$30,000 per week and it was attempting to reduce its
labor costs. It also contends that the volume at Store 524
had dropped to about that figure. However, Durbin, the
third man there, continued with one exception to work
48 hours per week. On this record it appears that Durbin
was not a supporter of the Union.
On the facts here, including company knowledge of
Soltis' strong union activities and the Respondent's pro-
clivity to discriminate against employees because of their
union activity, I find that, contrary to hours worked by
the "third men" in all the other stores, Soltis was singled
out for the reduction in hours because of his union sup-
port. Soltis had expressed to both Smithey and Selman
that he was having "financial problems," and thus the
Respondent knew this would be a particularly appropri-
ate way in which to retaliate against Soltis.
The same cannot be said with respect to the amount of
pay raise Soltis received on August 1. First, the General
Counsel has not sustained his burden of showing, as al-
leged, that Soltis was promised a specific amount. From
the context of the August 5 conversation with Hawkins,
it is clear that Hawkins was merely speculating or con-
lecturing as to the possible amount of the increase. This
certainly does not constitute a promise of a raise to $5.50
per hour. Furthermore, the General Counsel does not
contend, and in any event has not shown, that the Re-
spondent's use of the grocery experience evaluation was
discriminatorily motivated or applied to Soltis. Accord-
ingly, I recommend that this allegation be dismissed.
Lastly, considering the allegations that the Respondent
unlawfully demoted and reduced Soltis' pay and thereaf-
ter discharged him, the record presents many factual
issues to be resolved. According to Max Smithey, the
Respondent had been considering measures with respect
to the "third man" situation in Amarillo since mid-July.
It was decided that the two stores with the lowest
volume, Stores 524 and 533, would not have a "third
man" position and the two "third men" with lowest se-
niority, Soltis and Durbin, would be left "in limbo." In
late August, Smithey gave Soltis, the senior of the two,
the opportunity to transfer to a store in Plainview or
Perrytown, Texas, located about 50 and 80 miles, respec-
tively, from Amarillo, as a third man, or the option of
"stepping down" to a stocker. It is clear that the Re-
spondent had every reason to believe that Soltis could
not accept the transfer to Plainview or Perrytown since
he was a student at West Texas College located about 15
miles from Amarillo, and a transfer would interrupt his
education. In any event, Soltis accepted the stocker posi-
tion and was told by Smithey he would have to locate
one for him.
On Saturday, August 31, Smithey visited Store 533
and in the presence of Selman accused Soltis of spread-
ing rumors that he had been demoted because of his
union activity and told him he wanted to hear no more
of those rumors.
According to Roy Burch, he telephoned Smithey on
August 31 regarding the need for a stocker, and Smithey
told him he could send Soltis over but that Soltis had
"some problems" with the Company. Selman informed
Soltis that he was to be transferred to Store 527 the fol-
lowing day.
Soltis reported to Store 527 on Sunday where "third
man" Todd was in charge. Burch was on vacation
Sunday and Monday and Pena was not present at the
store on Sunday. On Tuesday, Soltis' day off, he went to
the store and talked with Selman about scheduling him
so as not to interfere with his school schedule and ex-
tracted a promise from Burch that he would see what he
could do.
The following day when Soltis reported for work his
timecard was gone from the rack and upon inquiry of
Burch about the card Burch asked Soltis to accompany
himself and Pena to the back room. Soltis' version, and
that of Burch and Pena, as to what occurred there differs
dramatically. According to Soltis, Burch told him he was
being terminated and upon Soltis asking why Burch told
him that he knew "good and well" what for, and contin-
ued, "You know the sins you've committed." Burch told
him that he had violated company policy. Soltis asked
Burch if he were being fired for discussing the Union on
coffeebreak. Burch told him that coffeebreak was compa-
ny time and he was not allowed to discuss the Union on
company time. When Soltis pressed Burch for a reason
he replied, "Laziness."
Burch testified that on Tuesday two employees, Mark
Mathis and Joey Detton, came to him and stated that
they wanted to sign a statement complaining that on
Monday Soltis had asked them to sign union cards on
company time. Burch prepared the statement which they
allegedly signed and Burch witnessed. Mathis and
Detton did not testify. Stocker Dennis Cowan testified
that he complained about harassment from Soltis con-
cerning Soltis "bossing him around."
According to Burch, he opened the interview with
Soltis by telling him that he wanted to know what had
been going on while he was away and told Soltis that
from what he had heard he had some "real disturbed
people." Soltis replied, "I have just been doing my job."
An argument ensued. Burch told Soltis that he had come
to the store as a stocker. Soltis said, "You are going to
fire me ain't you?" Burch told him he was just trying to
talk to him, and Soltis continued, asking if they were
going to fire him because he was for the Union. Bur h
told him, "These are your statements," and said he was
just trying to get to the bottom of what had happened.
After further discussion in the same vein, Burch teld
Soltis that he was insubordinate and that "it looks like
we are going to have to come to a parting of the ways
or something." When pressed for a reason for the termi-
nation Burch told Soltis that he was lazy.
At the hearing Burch testified that he did not intend to
fire Soltis when the interview started, based on the comn-
plaints that had been lodged against him, but when ie
1308
UNITED SUPERMARKETS, INC.
could not talk with Soltis he fired him for insubordina-
tion.
Based on my analysis of the record concerning the de-
motion and discharge of Soltis, I am convinced and find
that, under the circumstances herein, i.e., the demotion
and discharge of a relatively long-term and satisfactory
employee for asserted insubordination arising out of,
what I am convinced was, a setup, the Respondent vio-
lated Section 8(a)(3) and (1) of the Act. While there may
have been legitimate business reasons for the Respondent
to eliminate some "third man" position in Amarillo, I
find that the General Counsel has sustained his burden of
establishing that Soltis was singled out for demotion be-
cause of his support for the Union.
It is unclear from the Respondent's brief and oral com-
ments at the hearing whether its affirmative defense turns
upon its contention that Soltis violated, what the Re-
spondent asserts to be, a valid no-solicitation rule by so-
liciting employees Mathis and Detton to sign a union
card during working time or solely upon Soltis' asserted
insubordination to Burch on September 7. First, assum-
ing the existence of a valid no-solicitation rule, Burch
testified that he had observed discussion about the Union
among the employees and also union organizers in the
store and there is no evidence that disciplinary action
was taken against employees so involved. Secondly,
there is no admissible evidence to establish that Soltis ac-
tually solicited the two employees to sign cards on work-
ing time, since they were not called as witnesses, and
Soltis denied such activity, but only that such report was
made to the Respondent. Thus, to the extent that the Re-
spondent contends that the discharge was for violation of
its no-solicitation rule, it has established only that it had
reason to believe a violation of the rule had occurred
and Soltis' testimonial denial is sufficient to establish that
such solicitation did not in fact occur.
Even if one accepts Burch's version of the September
7 interview with Soltis, it is clear that Burch was "bait-
ing" Soltis. He declined to tell Soltis the nature of the
complaints about him and, instead, asked Soltis what had
been going on while he was away and told him he had
some "real disturbed people." I am convinced and find
that Burch terminated Soltis because of his union activi-
ties.
10. Diane Dickinson
Diane Dickinson was employed by the Respondent as
a checker at Store 524 for a little more than 3 weeks
when she was terminated on September 16 for an accu-
mulation of three insufficient funds personal checks she
had given to the Company. There is no dispute as to the
pertinent facts preceding the discharge. During Dickin-
son's brief employment she issued three personal checks
to the Company in the name of Mrs. C. C. Crowe, her
husband's stage pseudonym, which were returned by the
bank marked "insufficient funds." While Dickinson was
employed under the name "Diane Dickinson," her appli-
cation for employment indicated that she also used the
name "Mrs. C. C. Crowe."
According to Area Grocery Supervisor Max Smithey,
the Company's procedure for collecting insufficient fund
checks was to write a letter to the address shown on the
check and if there was no response to send a certified
letter. Dickinson's checks gave only a post office address
and there was no telephone number, nor was there a list-
ing for her in the telephone directory.
It appears that the "check man," Pete Moore, was not
immediately aware of the fact that "Mrs. C. C. Crowe"
and Diane Dickinson, their employee was one and the
same. On September 15, Moore telephoned Dickinson at
home and told her he had "a check" that had been re-
turned and she agreed to pick it up the next day. The
following day when she reported for work, Area Super-
visor Smithey and General Grocery Supervisor Max
Tipton met her at the timeclock where Smithey present-
ed her with three returned checks and terminated her
with the understanding that she would pick the checks
up with her last paycheck the following day.
The General Counsel contends that the Respondent
seized upon these unfortunate incidents as a pretext to
discharge Dickinson because of her union activity. Dick-
inson testified that she became active for the Union
shortly after she was employed and attended three or
four union meetings and talked to and solicited employ-
ees to sign authorization cards and signed such card her-
self on August 24. As company knowledge of such activ-
ity, the General Counsel appears to rely on an incident
occurring on September 13, when fellow employee,
Scott Spivey, asked Dickinson if she had attended the
union meeting the night before. Apparently Dickinson
did not answer. Dickinson asserts that Max Tipton was
nearby and heard the remarks and she subsequently saw
him talking with Spivey.
Smithey testified to the effect that company policy
was to terminate employees for giving bad checks to the
Company and subsequently it discharged Dan Green, the
Company's observer, at the December 7 election for
giving bad checks.
I find Dickinson's testimony that she was unaware of
any of the checks being returned to be incredible. One of
the checks was about 30 days old and Dickinson had re-
ceived a monthly bank statement which she had appar-
ently not opened. This fabrication casts doubt also on
her testimony with regard to the extent of her union ac-
tivity and company knowledge thereof.
In short, I find and conclude that Dickinson was dis-
charged for the reason asserted by the Respondent and
that her union activities were not a factor in the decision
to terminate her. Accordingly, I recommend that the
complaint be dismissed as to Dickinson.
II. Judy Grove
Grove entered the Respondent's employ on July 28, as
a checker at Store 527 under the supervision of Roy
Burch and Louis Pena. Grove testified that she immedi-
ately became aware of the union activity and attended
union meetings, discussed the Union with other employ-
ees, and called employees on the telephone. However, it
was not until September 20, 2 days before her discharge,
that she signed a union card.
Grove was terminated on September 22 after an inci-
dent in which she was alleged to have been "rude" to a
customer. According to the Respondent, only one of
1309
DECISIONS OF NATIONAL L ABOR RELATIONS BOARD
many incidents in which such misfeasance or malfeasance
of her duty occurred. The record is clear that at or
about 7 p.m. that date a Doctor Martin was checked out
by Grove at which time Dr. Martin felt that Grove had
treated him rudely in both the manner in which she
checked him out and her attitude and action when he
brought to her attention the fact that she had over-
charged him by 20 cents for his purchase. He reported
his version of these events to Assistant Manager Louis
Pena and returned the purchases that he had made, with
the exception of a package of cigars which he had
opened, and obtained the check he had given for the
purchase. While there was much testimony concerning
what really transpired at the "checkout" stand, in my
opinion the crucial question in what facts were reported
to management and whether management discharged
Grove for this conduct or seized upon it as a pretext to
discharge her for her union activities. Dr. Martin, the
customer, credibly testified to the effect that he reported
his version of Grove's attitude and actions to Pena and
rescinded his purchases. The question now is: was this
conduct under all the circumstances conduct for which
the Respondent normally discharged employees or did
the Respondent seize upon this report to discharge
Grove in order to discourage union activity.
As with some of the other alleged discriminatees,
Grove's embellishment of some facts in her testimony
does not make the decision as to her easier. First, I am
convinced that Grove did not engage in the extensive
union activity from early in her employment as described
by her. I am persuaded that if she had engaged in such
extensive union activity she would not have waited until
September 20 to sign a card, particularly since the Union
made a demand for recognition on August 4 claiming
majority status, and filed its petition for an election on
August 5. Further, Grove testified that on September 20,
when she returned from lunch at which time her hus-
band had told her that a union representative had been
trying to get in touch with her at home, Roy Burch
asked her if she had gone to the union meeting the night
before. She told him that she had not because her hus-
band had been sick. Burch asked if she knew who had
attended. In her testimony she first said no, but then
named at least two employees who had attended.
Grove's pretrial affidavit states that she told Burch she
did not know who attended the meeting. Burch admits
discussing the Union with Grove on more than one occa-
sion, but denies interrogating her concerning her attend-
ance at a union meeting or the attendance of other em-
ployees. He testified that in such discussions she had in-
dicated she did not like the Union.
As heretofore noted, Burch was not an impressive wit-
ness in his denials of the specific allegations against him.
In this instance he admitted discussing the Union with
Grove, but does not give his version of what was said.
On balance, I credit Grove that he interrogated her con-
cerning the union meeting, and that such interrogation
was coercive and violated Section 8(a)(l) of the Act, as
alleged.
Turning now to the discharge. Burch testified that
Grove was a good checker when first employed, but that
during her later employment he received a number of
complaints about her attitude toward customers. Accord-
ing to Burch, and contrary to Grove, Burch testified that
he talked with her about this on four or five occasions.
Head checker Sharon Sanders testified that she had re-
ceived several complaints about Groves' "being hateful"
to customers. She further testified that she received three
to four complaints a day about various checkers. Thus, it
appears that Grove was not alone among the checkers in
having complaints lodged against her.
Be that as it may, on September 22, Groves' conduct
toward the customer, Martin, was such that Martin re-
scinded his purchases and is clearly conduct about which
the Respondent should be justifiably concerned. The Re-
spondent contends that Grove was fired for her rudeness
to Martin and her refusal to "give her side of the story"
to Pena when he called her to the office to talk to her
about the incident.
Grove testified that when Pena came to her register to
retrieve Martin's check, she asked if she had done any-
thing wrong and Pena told her "no." Shortly thereafter,
he summoned her to the office and told her he had
called Burch at home and they had decided to terminate
her for being rude to a customer. Grove replied that the
customer was rude to her.
Pena's testimony in this regard is quite different. He
testified that he called Grove to the office to inquire
why she had not brought the incident with Martin to his
attention. Grove replied that she had "taken care of it."
According to Pena, she indicated that she did not want
to talk further about the matter and he terminated her.
Pena talked with Burch on the telephone before he sum-
moned Grove to the office and Burch told him to take
care of the matter any way he wanted. Burch testified
that Pena telephoned him about the incident and told
him that he was going to terminate Grove for the inci-
dent, and Burch agreed. At the hearing Pena testified
that he would not have fired Grove had she responded
differently to his questions.
I have a number of problems with Pena's version of
these events. First, while there appears to be a policy
that checkers report overcharges in excess of $1 to a su-
pervisor, the overcharge here was only 20 cents. In any
event, Grove knew that the entire incident with Martin
had already been reported to Pena by Martin. Thus, con-
trary to Pena's testimony, I find that Pena did not call
Grove to the office merely to ascertain why she had not
brought the incident to his attention. It is clear from
Burch's testimony, and in conflict with Pena's, that the
decision had been made to terminate Grove prior to the
time Pena called her to the office. This tends to lend cre-
dence to Grove's version of what was said in the office;
i.e., that Pena told her he had talked with Burch aind
they had decided to terminate her for being rude to a
customer. She was not permitted to give her version of
the incident.
It is evident that the Respondent knew or suspected
that Grove was prounion based on Burch's interrogation
of her on September 20, and her response that she had
not gone to the union meeting because her husband was
sick.
1310
UNITED SUPERMARKETS, INC.
As noted above, Grove's conduct toward customer
Martin on September 20, as reported to Pena by Martin,
is certainly conduct about which the Employer should
be concerned. The question here is whether Pena dis-
charged Grove for that reason or whether he and Burch
seized upon the incident to discharge her because of her
union activities. It appears that customer complaints
about employees are rather common and the record does
not disclose that others had been fired because of such
complaints. Considering all the facts here, I am con-
vinced and find that the Respondent seized upon this
complaint to terminate Grove in order to discourage
union activity among its employees. The promptness
with which Pena reacted to this incident by reporting it
to Burch and deciding to discharge her without any fur-
ther investigation of the incident or obtaining Grove's
version compels the conclusion that the Respondent was
not interested in determining the real egregiousness of
Grove's conduct, but was merely searching for a pretext
to rid itself of another union adherent. I find the dis-
charge of Grove violates Section 8(a)(3) and (1) of the
Act, as alleged.
12. Fay Bonner
Bonner entered the Respondent's employ as a checker
at Store 527 in June, under the supervision of Roy Burch
and Louis Pena. Bonner became active for the Union
soon after she commenced work. She attended union
meetings and signed a card at the July 13 meeting. She
testified that she handed out union cards and discussed
the Union with other employees while on break.
On July 13, she initiated a conversation about the
Union with Roy Burch. Burch took her to the back
room of the store where the discussion continued and
Burch told her about his experiences with a Union at an-
other store. During the course of this conversation,
Bonner testified that Burch asked her how she felt about
the Union and she responded that her father and husband
had always been Union. According to Bonner he told
her that if United went union they would close and hire
new employees firing those who had signed up for the
Union. Burch asked her if she would take fellow employ-
ee Lynda Brownlee to the union meeting that night and
she replied that she would but that she had to work late.
Brownlee did attend the meeting but did not go with
Bonner.
Burch admits a July 13 conversation about the Union
with Bonner wherein he expressed his views against the
Union based on his experience on the west coast at a
union store. He also admits that he asked Bonner if she
would take Brownlee to the union meeting, but denies
making the statements asserted by Bonner which are
here alleged as violations of Section 8(a)(1). The state-
ments made by Burch on July 13 are similar to those
which have been found herein to have been made to
other employees by him while discussing the effect the
union had on a store in which he had previously worked.
Based on Bonner's testimonial demeanor, I credit her
version and find that Burch's remarks constituted coer-
cive interrogation; a threat of discharge or other reprisals
and a threat to go out of business because of the Union,
all of which violates Section 8(a)(1) of the Act. I find
nothing in the conversation which constitutes an impres-
sion of surveillance of employees union activities.
The facts leading up to Bonner's separation from the
Company are brief. While there was much testimony
concerning Bonner's work habits and efficiency, some to
the effect that she was a good checker and other to the
effect that her performance was impaired by marital or
emotional problems, such does not appear to be a con-
tributing factor to her separation. In any event she was
given a 75-cent-per-hour raise in August, which suggests
that at that time she was, at least, a satisfactory employ-
ee.
At times relevant here, Bonner was scheduled to work
part time on Wednesdays and Saturdays. On Wednesday,
September 21, she worked about an hour and was sent
home by Assistant Manager Pena, according to Bonner
because business was slow but, according to Pena, she
had made some mistakes.
Shortly before 9 p.m. on Thursday, Bonner telephoned
the store and, in the absence of Burch, talked with Pena
and requested to be off on Saturday. According to
Bonner, Pena told her that he saw no reason why she
could not be off. On the contrary, Pena testified that he
told her he would have to check and if she were not
needed she could have the day off. Pena admits that
Bonner was not told to check back. Pena testified he re-
layed Bonner's request to Burch the following day and
Burch indicated that they needed her to work on Satur-
day and that he would take care of it.
On Friday, Bonner went to the store with Judy
Grove, as discussed above, to pick up her paycheck at
which time she talked with both Pena and Burch but
nothing was said by her or them concerning her request
to be off on Saturday. According to head checker
Sharon Sanders, Bonner told her that she was going to
be off the next day and upon her inquiry as to whether
she had permission, Bonner's initial response was "no,"
but she then said that she had told Pena.
The events of Saturday morning and the conduct of
Burch are somewhat perplexing. Bonner was at the store
at 9 a.m. on Saturday, according to her, to purchase gro-
ceries and cash a check. She admits that she probably
glanced at the work schedule as she had on Friday, and
that her name still appeared there as scheduled to work
on Saturday. This does not appear to be significant since
changes in the schedule after it was posted was not cus-
tomarily reflected thereon. Bonner asked Burch about
cashing a check and was told that the Armored truck
had not come. She then got a shopping cart and selected
some items for purchase and checked out with a checker
named Janet or Janice.2 7 She then went back to obtain
an item that she had forgotten and checked that out with
Betty Simonson (Todd). Simonson, who was no longer
employed by the Respondent at the time of the hearing,
testified that Bonner remarked to her, "I guess you heard
I got fired." Simonson replied, "no, when," and Bonner
said, "Oh, not yet, but I'm going to be." After which
Bonner left the store. Simonson testified that she report-
27 The record reveals that a checker named Janet Van Camp was
hired on September 9.
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed these remarks to Burch. Bonner denies that she made
these remarks to Simonson.
Burch testified that he saw Bonner in the store shortly
after 9 a.m. on Saturday and talked with her. He ob-
served her take a shopping cart and proceed to select
groceries and check out and leave the store. He said
nothing to Bonner about being scheduled to work. Testi-
fying as to his thought processes as he observed Bonner
in the store, Burch stated: "I didn't approve of her ac-
tions, but I was going to let her lead the situation. She
looked at the schedule, stood by it, she knew it was not
my duty to remind her of something she had seen five
minutes earlier." Burch asserted that they needed Bonner
to work that day. After Bonner left the store Burch dis-
cussed her failure to work with Pena. Pena assured
Burch that he had not given Bonner the day off as she
had requested.
According to Bonner, on Sunday, Judy Grove, a
former employee, told her that she (Bonner) had been
fired. On Monday she telephoned Burch and told him
that she had heard she had been terminated. Burch re-
plied, "you were not fired you walked out . . . you
didn't come to work." She told him she had permission
from Pena to be off on Saturday. Burch told her that he
was the manager and she would take her orders from
him. Burch's version of this conversation differs from
Bonner's in that when Bonner told him she had heard
that she was fired he replied that was news to him since
he was the store manager and insisted Bonner was still
on the payroll. Burch stated Bonner then told him she
did not want to work for United anymore.
There is no question that Bonner was originally sched-
uled to work on Saturdays as one of the two checkers
scheduled to open the store at 9 a.m. Her visit to the
store on Saturday for the purpose she indicated is con-
sistent with conduct of an employee who, at least, hon-
estly believes that she has permission to be off from
work. On the other hand, Burch's conduct toward
Bonner is not consistent with that of a manager who ob-
serves an employee in the store conducting herself as a
customer whom he believes should be working. Burch
had been informed by Pena that Bonner had requested
the day off and had told Pena that he needed her to
work but that he would take care of the matter. Thus,
when Bonner commenced conducting herself as a cus-
tomer instead of going to work, as Burch contends she
should have, it should have been apparent to Burch that
there was a possible misunderstanding on the part of
Bonner or himself as to whether she was supposed to
work. This is particularly true since Bonner had made
her request to Pena and Burch had not taken care of it as
he told Pena he would.
While, as Burch contends, he may not have had a duty
to remind Bonner that she was scheduled to work, under
the circumstances here it appears that some communica-
tion with Bonner concerning her working would have
been appropriate and reasonable. This is particularly true
if, as Burch contends, he really needed her to work.
It is evident from Burch's own testimony concerning
his thought processes as he observed Bonner in the store
that he was in effect laying a trap for her which he
could seize upon as a reason to discharge her. I am con-
vinced and find that the Respondent, by Burch, deliber-
ately contrived, at the very least, an ambiguous situation
concerning Bonner's desire to be off work on Saturday,
and seized upon it to discharge her because of her sup-
port for the Union, which was admittedly known to it.
Accordingly, I find that Bonner's discharge violated Sec-
tion 8(a)(3) and (1) of the Act.
13. Ronnie Bouknight
Bouknight was employed by the Respondent in May
as a meatcutter at Store 522, and at times relevant here
worked under the immediate supervision of Market Man-
ager Wayne Poynor. According to Bouknight, he attend-
ed two union meetings and signed an authorization card
in July. Wayne Poynor, a witness for the General Coun-
sel, admitted that about September 21 he told Bouknight
that they were aware that he had attended the union
meeting on September 19, and that he was going to be
watched.
The General Counsel contends that the Respondent,
by Meat Director Pierce, engaged in oral harassment of
Bouknight between September 21 and October 1 because
of his union activities and that such harassment created
intolerable working conditions for Bouknight, and that
his quitting his employment on October 1 constituted a
constructive discharge in violation of Section 8(a)(3) and
(1). The Respondent contends that Bouknight voluntarily
quit his employment and any instructions he received
from Pierce or Poynor, at Pierce's direction, were not
motivated by any union activity.
Pierce testified that he was in Amarillo to help i n-
prove the market operations there so the profit factor
would be favorable with its other divisions. According
to Pierce, on September 21, he and Area Meat Supervi-
sor Phelps inspected the market at Store 522 where he
observed Bouknight trimming meat too closely and the
meat wrapper improperly wrapping meat. Pierce advised
Poynor of his observations and told him to watch BoLk-
night's trimming. Bouknight's versions of this incident is
that Pierce stood behind him for about 45 minutes and
then complained to both Bouknight and Poynor that
Bouknight was wasting meat by trimming too close y.
Bouknight also recalled that the meat wrapper had to
rewrap some meat because it was improperly wrapped.
On September 23, Pierce returned to Store 522 aid
after watching Bouknight for about 10 minutes took
some scraps from the bone barrel and placed them on a
counter. Pierce told Poynor that his production was not
what it should be. However, he said nothing to Bouk-
night.
Pierce's next visit to Store 522 was the afternoon of
September 26, while Poynor was away. According to
Bouknight, Pierce rummaged through the bone barrell
and pulled out some pork scraps and shook them in his
face and told him pork should not be cut with a saw.
Pierce then left before Bouknight could tell him that
Poynor had cut the meat. Except for shaking the trim-
mings in Bouknight's face, Pierce confirmed this inci-
dent.
The final incident relied on by the General Counsel as
oral harassment occurred on September 29 when Pierc-e,
1312
UNITED SUPERMARKETS, INC
Max Tipton, and Phelps visited the store. Pierce ob-
served Bouknight for a while and then complained that
he was improperly cutting the meat, specifically the
manner in which he had broken down three sides of
beef. Pierce told Tipton, "this man is costing you
money." According to Bouknight, he asked Pierce to
step to the back of the market where he asked if he was
looking for a reason to fire him and complained about
the cutback in man-hours. Pierce denied that he was
looking for a reason to fire Bouknight and told him the
gross profit problem was being handled in other areas
and could be handled in Amarillo. Two days later Bouk-
night informed Phelps that he was quitting.
There was much testimony concerning the extent to
which the Respondent's meat markets were governed by
the "United Meat Systems Manual," which was supposed
to be available at each market. An analysis of this testi-
mony reveals that at least some of the market managers
had not read the manual as well as many of its meatcut-
ters. The testimony also reveals that meat might be cut
differently in every market to best appeal to the clientele
of that market. The market manager, in conjunction with
Phelps, decided the cuts of meat to be made at each
market.
The issues here present close questions. It is clear from
the evidence, including the Respondent's records, that its
profit factor in the markets in the Amarillo division were
not as good as in the other divisions. Thus, a legitimate
business reason existed for the Respondent to attempt to
improve the meat market profit in Amarillo by sending
its assistant systemswide meat manager there. However,
the methods the Respondent used to achieve its goal
must be analyzed against the recent election in the
market which the Union won and the pervasive union
animus as found herein which the Respondent has dem-
onstrated.
Bouknight testified that he had several years of experi-
ence as a meatcutter but had not been so engaged for
about 18 months preceding his employment with Re-
spondent. He had also not received any specific training
at United aside from day-to-day instructions from the
market manager. Bouknight does not contend that
Pierce's criticism of his trimming too much fat off the
sirloin might not be warranted, but argues that he was
cutting meat the way he was told. Nor is it denied that
Pierce, as the meat director, had the right to change the
method or manner in which meat was cut. Bouknight
had a tendency in his testimony to exaggerate Pierce's
remarks to him and about him, with respect to his tone
and attitude.
While the question is not free of some doubt in view
of the Respondent's propensity to violate the Act, I find
on the facts here that the General Counsel has failed to
sustain his burden of proof that Bouknight was harassed
by Pierce because of his union activities and that his sep-
aration from Respondent's employ on October 8 consti-
tutes a constructive discharge for union activities in vio-
lation of Section 8(a)(3) of the Act.
First, Pierce's criticism of Bouknight is not shown to
have been pretextual or delivered in a manner designed
to harass him because of his union activities and to make
his working conditions intolerable. On these facts, I do
not believe that an inference is warranted as argued by
the General Counsel that the Respondent either "pro-
mulgated new rules or more strictly enforced old ones in
an attempt to deliberately create such an unpleasant
working environment that an employee was forced to
quit." C. F 1Fidelity Telephone Company, 236 NLRB 166
(1978).
Even assuming that an inference is warranted that
Pierce's conduct here could reasonably be construed to
have been motivated by union animus, in my opinion the
interference with Bouknight's Section 7 rights was not
egregious enough to make his working conditions so in-
tolerable that he could no longer work there.
14. Mary Jane Walker
Walker commenced work for the Respondent as a
meat wrapper at Store 528 in August 1976, and worked
primarily under the supervision of Steve Johns. Around
the first of September, Walker was transferred to the
market at Store 527 under the supervision of Worlin
Robinson. According to Pierce, in an effort to cutback
on man-hours in the market to improve profit factors,
the decision was made to place its three best wrappers in
the three highest volume stores. Walker was the least
senior of the three best wrappers. Store 529 was also one
of the three highest volume stores. However, the Re-
spondent let the wrappers choose the store they wanted
in the order of seniority. A more senior wrapper, Miller,
chose Store 529 which necessitated the transfer of
Walker to Store 527.
Walker was one of the employees who became active
for the Union very early in the campaign and after the
election in the market was elected to the Union's negoti-
ating committee. In any event the Respondent admits
knowledge that Walker was an active prounionist. The
Respondent also admits that Walker was one of its best
wrappers as suggested by its characterizing her as one of
its three best wrappers in the Amarillo division.
Walker was clearly not happy with her transfer to
Store 527 where the meat wrapping equipment was "an-
tiquated" and was equipment with which Walker was
unfamiliar. As a result, Walker was not as efficient as she
had been at Store 529. When she complained about the
equipment, she was told that the Company was in the
process of obtaining new equipment. Walker was absent
for 10 days in mid-September and she returned on Sep-
tember 26. On September 28, Meat Director Pierce ob-
served her working for a few minutes and told her she
was not producing like she used to. Walker told Pierce
this could be attributed to the old equipment. According
to Walker, Pierce told her to stop double wrapping
roasts, as she had been instructed to do. He stared at her
and told her to increase her production. Walker testified
she became so upset she had to go on break. That same
afternoon Pierce returned to the store where he observed
Walker had not increased her production, "she wasn't
hustling," and he noticed she was not adjusting the scales
to deduct the weight of the packaging material. Later, he
requested Max Tipton to time Walker for 10 or 15 min-
utes.
1313
DECISIONS OF NATIONAI. LABOR REI.ATIONS BO()ARD
The Respondent contends, in effect, that Walker en-
gaged in a work slowdown after her transfer to Store
527. Except for the foregoing, the evidence to support
this is based on Pierce's testimony as to what Market
Manager Robinson had told him. As heretofore noted,
Robinson was not called to testify and no reason therefor
was given. I cannot make a finding as to Walker's con-
duct based on this testimony. In any event, the asserted
work slowdown does not appear to be directly related to
Walker's separation from the Respondent's employment.
The events leading up to Walkers' termination are not
in dispute in crucial part. On Wednesday, October 5,
Robinson assigned part-time "deli-girl" Ruth Green to
work with Walker wrapping meat. At or about 12:30
p.m., Walker and Green got into a "dispute" at which
time Green became "upset" and left the market area.
Robinson asked Walker what she had done to Green and
Walker replied that she had done nothing. Robinson left
the market, apparently in pursuit of Green, and returned
a few minutes later without Green. He told Walker to go
home and to talk with Jackie Pierce before she returned
to work. Walker left the store and went to a local motel
where she reported these events to Union Representative
Gilbert Barber. She did not attempt to contact Jackie
Pierce.
Walker attempted to telephone Pierce at Store 529 on
Thursday, October 6, in the afternoon, and was told that
Pierce was not there. She did not leave a message for
him to return her call because she was not planning to be
at home. When Walker returned home at or about 7 p.m.
on October 6, her roommate informed her that Worlin
Robinson had called that morning inquiring as to why
she was not at work. On October 7, at or about 9:30,
Robinson telephoned Walker and asked if she had talked
to Pierce. Walker replied in the negative, and Robinson
told her he was tired of her little "games" and hung up.
Walker then telephoned Union Representative Gilbert
Barber, who told her to come to the motel and they
would try to get "ahold" of Pierce. She did so, and
about 10:30 a.m. made an appointment to meet Pierce at
a local restaurant called "K-Bobs" located near Store
529. Gilbert Barber drove Walker to her meeting with
Pierce. Discharged employee Priscilla Sain also accom-
panied her to the restaurant. However, neither she nor
Barber was present when Walker met with Pierce.
Both Pierce and Walker testified with respect to what
was said at this meeting. They essentially corroborated
each other and there is no direct conflict of testimony. It
is unclear as to who initiated the conversation. It is clear
that Pierce discussed Walker's alleged slack in her work
and her lower production. Walker complained about the
old equipment at Store 527 and attributed her lower pro-
duction to the equipment. Pierce told her, apparently
several times, that she was going to have to do better
and that Pierce knew she could do better. According to
Pierce, Walker requested to be transferred back to Store
529. After some further discussion, Pierce asked Walker
if she wanted to discuss anything else and Walker said
"no." Neither Pierce nor Walker addressed the issue of
the dispute with Green for which Walker had been sent
home.
On these facts Walker testified that she "assumed" that
she was fired since Pierce did not specifically tell her to
return to work. On the other hand, Pierce testified that
he thought Walker was going to return to work at Store
527 at 1 p.m. that day. Walker did not thereafter report
to work.
According to Pierce, when Walker did not report to
work on Saturday, October 8, he instructed Robinson to
telephone Walker to find out why she was not at work.
Pierce testified he was present when Robinson phoned
Walker's residence and could not reach her. He then sent
Walker a telegram telling her that he assumed she had
quit by failing to report for work on Thursday, Friday,
and Saturday. The telegram also noted that Pierce had
talked with her on Friday and that in his presence Rob-
inson had tried to call her on Saturday and had been told
by her roommate that she had gone to Dumas. Pierce
testified that they did not normally send a telegram in
cases like this but he did not want Walker showing for
work on Monday.
The General Counsel argues that Walker was dis-
charged as of the time of her conversation with Pierce
on Friday and the telegram was a maneuver to bolster a
"somewhat questionable reason for terminating an avid
Union adherent." In the alternative he argues that her
separation constituted a constructive discharge because
of the "revised" working condition put into effect during
her last weeks of employment.
The Respondent contends that Walker quit and that its
telegram was merely a confirmation of her quitting.
Neither Walker's transfer to Store 527 nor her suspen-
sion on October 5 by Robinson are alleged as independ-
ent violations of the Act. However, the General Counsel
appears to contend that Walker's transfer to Store 527,
the Respondent's dissatisfaction with her work there, and
Robinsons' sending her home on October 5 are all part
of a scheme to either give the Respondent a pretext for
which to discharge her or to make her working condi-
tions so intolerable that she would quit, constituting a
constructive discharge because of her avid support for
the Union.
Notwithstanding the Respondent's pervasive union
animus as found herein, in my opinion the General Coun-
sel has not established by a preponderance of credible
evidence that the Respondent's efforts to improve its
profit factor was motivated by union considerations.
This, of course, does not preclude a finding that the Re-
spondent implemented its legitimate program in a manner
designed to get rid of union adherents. I have found such
to be the case in a number of instances discussed above.
The evidence, considering all the inferences to be
drawn from the Respondent's union animus, is insuffi-
cient on the facts here to find that Walker's transfer to
Store 527 was discriminatorily motivated or a part of a
plan to get rid of her. Once at Store 527, Walker was
clearly unhappy and her production admittedly dropped.
Whether the production drop was entirely due to the an-
tiquated equipment, as Walker contends, or whether she
"slowed" down as the Respondent contends, is not a cru-
cial issue. There is no contention that Robinson's sending
Walker home on October 5 constituted her discharge,
1314
UNITED SUPERMARKETS. INC
nor does the record support such. Thus, the events oc-
curring between October 5 and Walker's talk with Pierce
on October 7 must be analyzed.
Walker's conduct after October 5, when she was sent
home by Robinson with instructions to talk with Pierce
before she returned to work, is, to say the least, perplex-
ing. Just what she was to talk with Pierce about is un-
clear. I must presume that it had relevance to the dispute
with Green which precipitated the incident. As noted
above, the nature of the dispute with Green is also un-
clear. In any event, by Walker's own testimony, she did
not attempt to contact Pierce for more than 24 hours,
and that attempt does not appear to have been serious.
Walker knew Pierce did not have an office in Amarillo
but used Phelps office when he was there. She also ad-
mitted that she knew the best way to "get in touch" with
Pierce was to leave a message and let him return the
call. However, she did not do that with the only expla-
nation being that she was not going to be home. It was
only after Robinson left a message for her on October 6
and talked with her on the telephone on October 7, that
she made any serious effort to contact Pierce.
What transpired at the meeting with Pierce is also un-
clear. Neither the testimony of Walker nor Pierce pre-
sents a cogent dialogue of what was said. While it is
clear, as argued by the General Counsel, that Pierce did
not specifically tell Walker to return to work, it is equal-
ly clear that Walker did not address the apparent reason
for her suspension or ask Pierce if she could return to
work. The substance of Pierce's remarks to Walker at
this meeting was to admonish her that she needed to im-
prove her work efficiency at Store 527 and to express his
confidence in her that she could do so based on her past
performance. These statements to Walker clearly indi-
cates that Pierce contemplated her continued employ-
ment, and are not reasonably susceptible of the construc-
tion placed on them by Walker; i.e., that she was fired.
Upon the foregoing, I am convinced, and I find and
conclude, that Walker was unhappy with her transfer to
Store 527 and set about to let the Respondent know she
was unhappy by letting her production drop. I am also
convinced that Walker had no intention of returning to
work after her October 5 suspension regardless of any
talk with Pierce. Accordingly, I find and conclude that
she voluntarily quit her employment and that such action
was not caused by the Respondent's other unfair labor
practices including any harassment or disparate treatment
of her.
I recommend that the complaint be dismissed with re-
spect to Walker's discharge.
D. The Representation Proceeding in Case 16-RC-
7579 (Grocery Unit)
The unfair labor practices found above occurring be-
tween August 5 and December 7 are sufficient to war-
rant setting aside the election. Consolidated for hearing,
but not alleged as unfair labor practices, are the Union's
Objection 6 and a portion of Objection 8.29
29 Objection 6:
At various stores the employer posted literature, both before and
dunng the election, to the effect that a vote for the Union was a
In support of Objection 6, the Petitioner introduced
into evidence four pictures or leaflets which were either
posted in one or more of the four stores or mailed to em-
ployees prior to the election. The first subject is an 8- by
10-inch picture of a male individual carrying a picket
sign bearing the legend "ON STRIKE against FOOD-
WAY a ° No Contract-No Work RETAIL CLERKS
Local 462." The undisputed testimony of employee Pam
Nicholson and Union Representative Barber establishes
that this picture was posted near the timeclock located at
the front of Stores 526, 527, and 530. It is unclear from
the testimony as to how long, prior to the election, this
picture was posted or whether it was posted at the time
of the election. The parties stipulated that Retail Clerks
Local 462 was on strike in nearby New Mexico at the
time of the election herein. There is no evidence as to
who posted this picture. In any event I must presume
that management personnel were aware of this posting
and tacitly adopted its message.
About 2 weeks before the December 7 election, the
Respondent mailed to all employees a leaflet captioned
"THE TRUTH OF THE MATTER" and displayed a
picture of a "Piggly-Wiggly" store beside which was
printed in ink "Closing Saturday Night 12-10-77. Just
below this was "The union doesn't tell you how many
jobs have been lost because of unions. The Piggly-
Wiggly here in Amarillo is only one example." The re-
mainder of the closely typed 8-1/2- by 14-inch leaflet
dealt with a lengthy strike by the Retail Clerks in New
Mexico and strike violence at a store called "Treasure
City." It also alluded to wildcat strikes by members of
the United Mine Workers and ended with "The truth of
the matter is the Union never mentions the costs of be-
longing to the Union."
The third item objected to by the Union is a leaflet ap-
proximately 6 by 8 inches, captioned "THE REAL
TRUTH OF THE MATTER." At the top of this leaflet
is a picture of a man's face beside which was painted in
large letters "CASHLESS CHRISTMAS." Thereafter,
the leaflet purported to tell the story of a former United
employee who had left to work at Furr's Supermarket
which was represented by the Union at $1.29 per hour
more than United paid. After 2 weeks he was laid off
and although the Union promised to find him other work
it was either unable or refused to do so. The thrust of
the article was that "Phil" and his family would have a
sad Christmas. This leaflet was prepared by employee
Paul Baker and posted on several cash registers at Stores
522, 526, and 527 for an undisclosed period of time.
No effort was made to establish that any of the pur-
ported events or facts asserted in the propaganda dis-
cussed above were untrue or incorrectly presented. The
Respondent argues that the literature discussed is within
the legitimate parameters of its organizational campaign
vote to strike Such material was posted by the official election no-
tices, in the polling area, and elsewhere in the store . t. he
impact of this material was to the effect that Union people got laid
off and that Union stores would close permanently.
Objection 8: In pertinent part, "The Company observes [election] with
employees in the voting area.
30 Superimposed in smaller letters over "FOODWAY" is "WINN-
DIXIE."
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its privilege to express its views, arguments, and
opinions. The Union contends that this literature is ob-
jectionable since it "leave[s] the clear implication to em-
ployees voting in the election that there will be plant
closings and lay offs in the event the union were voted
in."
The literature here in issue deals exclusively with store
closings, loss of jobs, and violence resulting from em-
ployees selecting the Union to represent them. Notwith-
standing that the accuracy of the events asserted is not
contested, I find and conclude that, in the context of this
Employer's unlawful antiunion campaign, the posting
and distribution of this literature interfered with the em-
ployees' rights to cast a free ballot in the election.
It is well settled that an employer has a right to advise
its employees of potentially adverse consequences of se-
lecting the union to represent them and to do so by
giving examples of such adverse results at other employ-
ers. However, where, as here, the employer has already
engaged in widespread interference, restraint, and coer-
cion of its employees' Section 7 rights by threatening,
inter alia, that all or some of its stores would be closed;
that employees would be discharged or laid off if the
Union were selected; and that it would not bargain in
good faith with the Union and would never sign a con-
tract, the distribution of literature asserting that other
employers had done exactly what it had threatened to do
can only have the effect of reiterating its previous threat.
Accordingly, Objection 6 has been sustained.3
In support of Objection 8, the Union's observer at the
election in Store 527, Pam Nicholson, testified that the
Employer's observer, Dan Green, engaged in about a 2-
minute conversation with an employee who was waiting
to vote. She testified that although she was only about a
foot away from Green at the time she did not overhear
any part of the conversation. Neither Green nor the em-
ployee he allegedly talked with was called to testify.
The Union contends that this incident falls squarely
within the rule enunciated by the Board in Milchem, Inc.,
170 NLRB 362 (1968), that conversations between repre-
sentatives or agents of the parties with employees while
in the voting area or waiting in line to vote is per se ob-
jectionable conduct without any inquiry into the subject
matter of the remarks. The Respondent argues that this
undisputed incident falls within the exception to the rule
since it was a "chance, isolated, innocuous comment or
inquiry."
The length of this conversation, estimated to be about
2 minutes, appears to me to be somewhat more than the
chance or isolated remarks contemplated by the Board in
that exception. Whether the remarks were innocuous is
not known since there was no testimony in that regard.
Accordingly, I find that the Charging Party has sus-
tained Objection 8. True, were this the only objection-
able conduct it would not be sufficient to set the election
3J The Union also urged that a notice "To All Employees" (Exh 4)
posted in the stores for about a month before the election is al), objec-
tionable. The Union does not indicate any specific statement or context in
this 8-1/2- by 14-inch notice which it deems objectionable. I have care-
fully considered the contents of this literature and find nothing. in my
opinion, which is objectionable or would tend to interfere with employee
rights.
aside since it involved only one employee whose vote
was not dispositive of the election, The Mead Corporation
Harriman Division, 189 NLRB 190 (1971).
The unfair labor practice occurring between August 5
and December 7, as found above in conjunction with the
objectionable conduct found herein, require that the De-
cember 7 election be set aside. In view of my findings
hereafter that the union did not represent a majority of
the employees in the unit at any relevant time as demon-
strated by the authorization cards admitted into evi-
dence, a bargaining order will not be recommended. In-
stead, I shall recommend that a second election be con-
ducted among the employees in the unit at a time deter-
mined by the Regional Director for Region 16, after the
Respondent has complied with the remedial order at-
tached hereto, and to the extent possible have eradicated
the effects on the employees of the unfair labor practice
found herein.
E. The General Counsel's Request for a Remedial
Bargaining Order
The complaint alleges that the acts of the Respondent
alleged therein "was and is of so serious and substantial a
nature as to warrant the entry of a remedial bargaining
order requiring Respondent to recognize and bargain
with the Union in the appropriate unit" as described in
the complaint. The complaint alleges, and the General
Counsel and the Charging Party argue, that the Re-
spondent's duty to bargain arose on August 4, 1977, the
date on which the Union made a bargaining demand and
by which date the union had obtained valid authorization
cards for representation from a majority of the employ-
ees in the appropriate unit. In the alternative, it is argued
that if it cannot be found that the Union enjoyed major-
ity status on August 4, it thereafter, by October 29, did
obtain such status, and that the Respondent's outrageous
and prevasive unfair labor practices as alleged in the
complaint dissipated that majority status so that the
Union lost the December 7 election by a margin of 62-
to-26 with 22 challenged ballots. The General Counsel
further argues that it would be appropriate in this case to
consider the cards signed prior to the election and the
votes cast in the election to determine majority status as
the Board did in Pinter Bros., Inc., 226 NLRB 921 (1977).
The unfair labor practices found herein demonstrates
that from the time the Respondent learned of the union
activity among its meat department employees until
shortly before the December 7 election among the gro-
cery department employees, it set upon an unlawful
antiunion campaign designed to undermine the Union's
representative status and interfere with its employees'
Section 7 rights. While the Union conducted campaigns
in two separate units, in part simultaneously, to all in-
tents and purposes it was one campaign and it is neces-
sary to consider all of the Respondent's unfair labor
practices, including those committed by and against its
meat department personnel, in assessing whether such
conduct was so outrageous, egregious, and pervasive that
it cannot be remedied by the usual cease-and-desist and
make-whole order, and thus, a second free and fair elec-
tion cannot be held.
1316
UNITED SUPERMARKETS, INC.
It is not here necessary to review each of the numer-
ous acts of unlawful interference, restraint, and coercion
committed by the Respondent and directed to a substan-
tial number of employees. In addition thereto, the Re-
spondent unlawfully discharged nine of its employees
which clearly tended to discourage union activity among
other employees. The flagrant nature of these violations
are clearly within the purview of those found by the
Board in numerous other cases to warrant a bargaining
order since the effects thereof on the employees cannot
be eradicated by the usual remedial order. It is clear that
these unfair labor practices rise "to the level of imminent
or future threat to the process of collective bargaining."
Shulman's, Inc. of NVorfolk v. N.L.R.B., 519 F.2d 498,
502 (4th Cir. 1975).
The Union's Majority Status on or After August 4
The resolution of the question of majority status of the
Union at some relevant time between August 4 and Oc-
tober 29 presents a plethora of complex issues not only
with respect to the identity of the employees employed
in the unit but with respect to the Respondent's chal-
lenge to virtually all the authorization cards introduced
into evidence on a multitude of grounds.
The General Counsel introduced into evidence a copy
of the Respondent's payroll records for the week ending
August 6 and a copy of the official voters list which was
taken from the payroll records for the week ending Oc-
tober 29. These lists, as amended, constitutes the only
evidence as to the complement of the unit at any time.
There is no evidence in the record upon which a deter-
mination can be made as to whether the Union represent-
ed a majority of the unit employees during the interim
period. Near the conclusion of the hearing the General
Counsel subpoenaed the Respondent's payroll records
for the interim period. Although the motion to revoke
the subpoena was denied, the Respondent refused to
comply therewith on the grounds that those records
standing alone would not accurately reflect the employ-
ees in the unit. I suggested to the parties that after the
close of the hearing they endeavor to reach a stipulation
regarding the unit complement during this period and
submit it to me as a post-hearing exhibit. The Respond-
ent asserts in its brief that neither the General Counsel
nor the Charging Party ever contacted him to examine
such records to arrive at an appropriate list.
Rather than obtaining enforcement of the subpoena in
an appropriate United States District Court, as was his
option, the General Counsel urges that I apply the ad-
verse inference doctrine and infer that the production of
these documents would have been adverse to the Re-
spondent's interest and would have established that at
some relevant time the Union had valid authorization
cards from a majority of the employees in the unit. As
demonstrated above, I have liberally applied the adverse
inference doctrine where the Respondent has failed,
without explanation, to call material witnesses and pro-
duce relevance documents. However, I know of no case,
and the General Counsel does not cite one, where the
Board has determined majority status of a union based
on adverse inferences drawn from a respondent's refusal
to produce payroll records.3 2 The burden of proof is
upon the General Counsel to esablish by affirmative pro-
bative evidence that at some relevant time the Union
represented a majority of the employees in the appropri-
ate unit It should be noted that the General Counsel
could have obtained the record he sought by obtaining
enforcment of his subpoena. In my opinion, the potential
of thrusting a minority representative upon the employ-
ees is too great when done so by application of the ad-
verse inference doctrine as urged here.
The General Counsel introduced into evidence 69 au-
thorization cards purportedly signed by employees in the
unit on or before August 4 and 11, such cards signed be-
tween August 12 and September 14. From the Respond-
ent's August 6 payroll records the parties stipulated to
the identity of 132 employees appropriately within the
unit. As of August 454 of these employees had signed au-
thorization cards. Not on the employer's payroll for
August 6, but who must be included in the unit on
August 4, are the four grocery department employees
whom I have found herein to have been discriminatorily
discharged prior to August 4. (Bollen, Bates. Stanberry,
and Murray.) These four employees bring the comple-
ment to 136 with 58 signed authorization cards. Next,
there are several employees on whom the parties could
not agree.
Contrary to the Respondent, the General Counsel con-
tends that Janet Callaghan should be included in the
August 4 unit. Callaghan, an employee of Store 533, ap-
peared on the August 6 payroll record which reflects
that she did not work any hours that week or thereafter.
The Employer maintains 3-by-5 cards reflecting termina-
tions which the Respondent insists are not accurate since
they are kept primarily for unemployment compensation
purposes. In any event, this card reflects that Callaghan
was terminated on August 15. The fact that Callaghan
did not work the week of August 6, or thereafter, is not
controlling as to her employee status on August 4. in the
absence of evidence that she had been separated from the
unit prior to that date. Accordingly, Callaghan, who had
signed an authorization card, is included in the unit.
The General Counsel contends that Debbie Beaudrie,
an employee of Store 527, should be included. The Re-
spondent does not address the issue of Beaudrie in its
brief. However, her name is not included on the list of
employees the Respondent contends were agreed upon
by the parties. The record shows that Beaudrie was
hired on June 22 and worked thereafter through the
week of July 23. She did not work during the payroll
period ending August 6, but did work 5 hours during the
following payroll period. She was on the payroll list for
August 6. The fact that she did not work during the
week of August 6 is not controlling in the absence of
evidence showing that her employment status had been
32 The General Counsel cites Stone d Webster Engineering Corp., 229
NI.RB 612 (1977); International Union. United Automobile. .erospace and
Agricultural Implement Workers of America (L4 AW) v. N.'LR.B., 459 F 2d
1329 (D.C. Cir. 1972), and .%L.R.B. ' C. H Sprague d Sons Co., 428
F.2d 938 (Ist Cir 1970) These cases deal with the application of general
adverse inferences in Board cases. hut do not, in my view, support the
application of such adverse inference here
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrupted for that week. Accordingly, I include her in
the unit. Beaudrie signed a card.
Contrary to the Respondent, the General Counsel
would exclude Charlene Smithey as "supervisor in
charge of the drug crew." Smithey is the wife of Area
Grocery Supervisor Max Smithey and the record reveals
that she is responsible for stocking the drug sections in
each of the seven stores in the division and is apparently
under the supervision of the respective store managers
when working in the several stores. There is no evidence
that Smithey has been granted or that she exercises su-
pervisory authority over any employee. Unlike supervi-
sory personnel, she is hourly paid and does not attend su-
pervisory or managerial meetings. In the absence of evi-
dence that Smithey receives special privileges or favored
treatment, her relationship to the area supervisor is not
sufficient to exclude her from the unit. Notwithstanding
the fact that her position appears to be a unique one in
the Respondent's operation, on the facts here, I find that
she shares a sufficient community of interest with the
other employees to be included in the unit. Smithey did
not sign a union card.
The General Counsel would exclude Richard Garcia;
the Respondent would include him. The record reveals
that Garcia's name appeared on the August 6 payroll as
well as the August 13 payroll, but that he worked no
hours during those periods or thereafter. The Respond-
ent's 3-by-5 card on Garcia shows a termination date of
August 1, 1977, with a note "M.P.'s got him and not rec-
ommended for reemployment." There is no explanation
why Garcia's name continued to appear on the payroll
for 3 weeks after he was terminated and was possibly un-
available for work because of his encounter with the
M.P.'s. The parties appear to agree that neither the Em-
ployer's computer payroll printout or the 3-by-5 termina-
tion cards, above, are reliable indicia of employee status
in many instances. I agree. Although there is no evi-
dence as to when or by whom the 3-by-5 card was pre-
pared, I am persuaded in this instance that it is the more
reliable indicia of when his employment status ceased.
Accordingly, he is excluded from the August 4 unit.
Contrary to the Respondent, the General Counsel
would exclude Debbie Lynn Stacey from the unit on the
grounds that she occupies a security position, has no
community of interest, and is a confidential employee.
The record discloses that Stacey worked at Store 529 in
the "check office" with Pete Moore, who has heretofore
been called the "check man." Insofar as the record re-
veals her exclusive duties are to make telephone calls,
type, and mail letters, all with reference to bad checks. It
appears that she is hourly paid and enjoys the same
fringe benefits as the other employees. There is nothing
in her duties that suggests that her position has anything
to do with security or that her duties are those of a con-
fidential employee within the meaning of that classifica-
tion as utilized by the Board. Similarly, there is no evi-
dence that suggests that she has no community of inter-
ests in the wages, hours, and other working conditions of
the employees who work on the floor of store. I note
that the unit description alleged by the General Counsel
neither includes nor excludes office employees. The
Charging Party argues that she is a plant clerical. Plant
clerical employees are included in a P & M unit unless
excluded by agreement. I include her in the unit.
The General Counsel would exclude, contrary to the
Respondent, Janice Irene Harp of Store 529 as being in
the meat department and thus, not in the unit. The
record shows that Harp was classified "02-10," which is
the classification for meat wrappers and also, according
to the Respondent, for employees in the bakery depart-
ment. Grocery Supervisor Max Tipton testified that he
did not know whether Harp was a meat wrapper or
bakery department employee. In its brief, the Respondent
asserts that Harp was not shown on the voting list bor
the meat department. However, the August 6 payroll list
indicates that Harp was not hired until August 1, and
thus not employed when that list was prepared. The Re-
spondent was clearly in the best position to present evi-
dence concerning her duties and failed to do so. I ex-
clude Harp from the unit.
In addition, it appears that the General Counsel and
the Respondent agreed that Edith Staton, who did not
sign a card, should be included in the unit since the Gen-
eral Counsel concedes so in his brief and her name ap-
pears on the Respondent's list of agreed-upon employees.
At the hearing the Charging Party objected to the in-
clusion of Raymond (or Ramon) Garcia for some undis-
closed reason. The Respondent addresses this contention
in his brief but the General Counsel does not. The
record discloses that Garcia was hired as a stocker at
Store 529 on June 20, and appeared on the August 6
payroll during which payroll period he worked 40 hours.
He was clearly within the unit on August 4. He did not
sign a card.
At the hearing the General Counsel and the Charging
Party objected to the inclusion of Susan Jane Cumming
on the grounds that she was a supervisor. The issue is
not addressed in the brief of either. Max Tipton testified
that Cumming was a part-time bakery department em-
ployee which is supported by the payroll printout, which
shows her job classification as "10." He further testified
that she had never been assigned supervisory duties. I in-
clude her in the unit.
The Decision and Direction of Election which issued
November 4 included "all part-time sackers who worked
at least 18 separate weeks" prior to the issuance of that
decision. At the hearing the Respondent argued that only
those cards signed by part-time sackers who had been
employed 18 separate weeks at the time they signed the
card should be counted, or in the alternative only those
who had worked 18 separate weeks by August 4. The
record discloses that there were 32 part-time sackers em-
ployed on August 4, of which 7 signed cards. None had
been employed 18 weeks when they signed cards. The
General Counsel contends that cards signed by all part-
time sackers should be counted without regard to the
length of time they had worked prior to August 4, and
that only they be included in the unit. The Respondent
vigorously opposes this formula and argues that all such
employees should be included in the unit. If all 32 disput-
ed employees are counted in the unit when there is a unit
of 175 employees and 67 authorization cards signed prior
to August 4. However, structuring the unit in the
1318
UNITED SUPERMARKETS, INC.
manner most favorable to the General Counsel by in-
cluding in the unit complement only the 7 disputed em-
ployees who had signed cards there is a unit of 150 em-
ployees and 67 authorization cards as of August 4.
Also received into evidence was a card signed by
Eleazer Cantue on June 14. The August 6 payroll
records do not include Cantue's name. The only testimo-
ny relating to this issue is that of Gilbert Barber who tes-
tified that Cantue told him he had never quit the Re-
spondent's employment. Cantue's name was on the
voting list and he voted in the December 7 election. This
evidence is insufficient to warrant an inference that
Cantue was in the Respondent's employ on August 4. He
is excluded.
Also received into evidence was a card purportedly
signed by Sherri Somers on July 13. Somers name does
not appear on the August 6 list and the Respondent as-
serted that she was not employed on August 4 or there-
after. Neither the General Counsel nor the Charging
Party presented any evidence to the contrary. Accord-
ingly, she is excluded.
It is clear that structuring the unit by the formula most
favorable to the General Counsel and the Union that
there were 150 employees in the unit on August 4, and
on that date the Union had obtained 67 authorization
cards which fails to establish that the Union represented
a majority of those employees on that date.
In his brief, the General Counsel argues that the cards
of seven employees, one a part-time sacker, who were
employed on August 4, and subsequently, between
August 12 and September 14, signed cards, should be
counted as of August 4. He cites no authority for this
formula. Certainly the cards are to be counted as of the
date they are signed and measured against the employee
complement at that time. As heretofore noted, the only
reasonably accurate employee lists are those of August 6
and October 29 from which the voting list was compiled.
Received into evidence as the Respondent's Exhibits 21
through 27 are lists of terminations at each of the Re-
spondent's stores for the period July 9 through October
29 and as the Charging Party's Exhibits 16 through 22
are lists of new hires at each of the stores for the same
period of time. Both lists were prepared by the Respond-
ent. The parties refused to stipulate the accuracy of these
lists. However, it is the best evidence before me. I have
utilized these lists and laboriously endeavored to con-
struct the unit complement for each week between
August 4 and October 29. Considering the terminations
and hires for each week measured against the additional
cards signed after August 4, it is clear that the Union did
not have valid authorization cards from a majority of
employees in the unit at any given time.
Thus assuming that validity of all cards received into
evidence, the Union never enjoyed majority status.
Conclusion With Respect to the Request for a
Remedial Bargaining Order
The General Counsel and the Charging Party contend
that the entry of a remedial bargaining order is warrant-
ed in this case even if the Union never enjoyed majority
status based on valid authorization cards since the Re-
spondent's unfair labor practices as found herein are so
outrageous and pervasive that their coercive effects
cannot be eradicated by the traditional remedies and a
second free and fair election cannot be held.
The Respondent asserts that even were I to construct
a unit in which the Union enjoyed majority status based
on its cards, a bargaining order is not appropriate since
the traditional remedies could restore the employees free-
dom of choice.
In A'.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575
(1969), the Supreme Court approved the Board's use of
bargaining orders to remedy an employer's independent
8(a)(l) and (3) violations which fatally impeded the hold-
ing of a fair election in two situations. The first involves
"exceptional" cases where the unfair labor practices are
so "outrageous" and "pervasive" that "their coercive
effect cannot be eliminated by the application of tradi-
tional remedies, with the result that a fair and reliable
election cannot be had." The second covers "less ex-
traordinary cases . . which nonetheless still have the
tendency to undermine majority strength and impede the
election processes" but there must be "a showing that at
one point the union had a majority."33
The Board was presented with a Gissel first category
case, clearly similar to the instant matter, in United Dairy
Farmers Cooperative Association, 242 NLRB 1026, 1027
(1979), and a majority of the full Board held that:
In sum, upon careful consideration of the policies
contained in the Act, the special responsibility of
the Board to formulate remedies which further
those policies, and the proper scope of the Board's
remedial powers, we find that the Board's remedial
authority under Section 10(c) of the Act may well
encompass the authority to issue a bargaining order
in the absence of a prior showing of majority sup-
port.
However, the Board, while recognizing that the employ-
er's unfair labor practices in the United Dairy IFarmers
case were well within this first category delineated by
the Supreme Court in the Gissel case ("outrageous" and
"pervasive"), and for which, in accordance with Gissel, a
bargaining order might well be an appropriate remedy,
nevertheless declined to utilize such a remedy therein.
The rationale underlying the Board's refusal to issue a
bargaining order lay in its balancing of "the policy in
favor of enabling employees freely to exercise the right
to choose whether they desire to be represented by the
union via an election against the damage to the election
process caused by the employer's unfair labor practices."
The Board, in the United Dairy Farmers case, continued
(at 1028):
Where a majority of the employees have indicated
their support for the union by cards and an employ-
er's unfair labor practices have precluded the hold-
ing of a fair election, the Board has traditionally
3 .L.R.B. v. Gissel Packing Co.. Inc., supra at 613 614; ,NLR.B. v
S. S. Logan Packing Company. 386 F.2d 562, 570 (4th Cir. 1967);
A' LR.B. v. Heck's. Inc., 398 F.2d 237, 338 (4th Cir 1968) The Supreme
Court in GiLsel also indicated that the scope of the Board's remedial au-
thority is broad (395 U S at 614).
1319
DECISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
balanced those, interests in favor of the issuance of
a bargaining order as The Remedy best suited to re-
storing the status quo ante consistent with the poli-
cies of the Act. Thus, a bargaining order not only
eliminates the damage to the election process but, in
addition, restores the prior expression of employee
support for the union consistent with the principle
of majority rule.
A different question arises, however, where the
union has never obtained a showing of majority
support and an employer's unfair labor practices
have precluded the holding of a fair election. The
imposition of a bargaining order in such cases does
not restore the status quo---that is, an expression of
majority support for the union-because there was
no majority support and there is no assurance that a
majority of employees would have supported the
union had the employer refrained from engaging in
unfair labor practices. A bargaining order in these
circumstances presents a substantial risk of imposing
a union on nonconsenting employees and could
only be justified if it served a substantial remedial
interest.
. . . However, on the facts in this case we are
persuaded that, in the absence of a prior showing
by the Union of majority support at some point in
the proceeding, it is less destructive of the Act's
purposes to provide a secret-ballot election whereby
the employees are enabled to exercise their choice
for or against union representation than it is to risk
negating that choice altogether by imposing a bar-
gaining representative upon employees without
some history of majority support for the
Union.
However, the Board has not yet faced a case described
in United Dairy Farmers, fn. 11.34
:14 The Hoard has consistently declined to issue a bargaining order ill
cases where, although the employer has conlilited massive "outrageous"
and "pervasive" unfair labor practices. the unTion never attained majoriy
support off the employees at any time. See Iladdon HOUse Fosd Products.
Inc and Flavor Delight, Inc., 242 Nl RB 1057 I1979); Daniel Construction
Company, a Division of Daniel Ilnternatonal Cosrporation, 244 NL RI 7(14
(1979); Miami Springs Properties. Ins. and Jamss II. Kinley and 4 ssociates,
Joint Employers, 245 Nt.RB 278 (1979); Wooinssoket lealth Centre, 245
NIRB 652 (1979); lriana Industries, Inc. 245 NLRB 1258 (1979). and
Sambo's Restuarant. Inc., 247 NLRB 771 (1990) It should be noted that
the G(eneral Couunsel in its brief discuisses extensively and it great depth
the validity and number sof the authourization cards obtained by the
Union In its decisions issued subsequlent I the .'nited Dairy /Iarmerv
case, the Board appears to have attached little or no significance to how
close the union came to attaining a majority. 'lThe above cases in which
the signed authorization cards were obtained included: laddon liouse (27
of 56 unit employees), Daniel Construction (less than 30 percent of the
employees signed cards), Miami Springs (46 percent of the unit employees
supported the union), Woexnso-ket Iealth C'entre (nearly 40 percent signed
union authorization cards), Iriana Industries (between 40-47 percent s(f
the employees signed authorization cards), Samhss (the union garnered
less than 34 percent of the unit employees). In view of this, I merely
make reference to the General Counsel's assertion that approximately 46
percent of the unit employees in the instant matter signed union autholri-
In view of all of the above, and even though the ex-
tensive unfair labor practices committed by the Respond-
ent herein (numerous threats of plant closure; of dis-
charge of employees, and of loss of benefits; coercive in-
terrogation of employees; spying on and report the union
activity of fellow employees; the discharges and the fail-
ures and refusals to reinstate nine of its employees; creat-
ing the impression of surveillance, etc.) are so "outra-
geous" and "pervasive" as to tend to restrain its employ-
ees in the exercise of their Section 7 rights, thus render-
ing impossible a fair election. In view of the Board's De-
cision in United Dairy Farmers, supra, by which I am
bound. I will not recommend that the Respondent be or-
dered to recognize and, upon demand, bargain with the
Union as the exclusive bargaining agent of the unit
herein ."
F. The Representation Proceeding in Case 16-RC-
7556 (Mfeat Market)
Also consolidated for hearing with these cases are the
issues raised by the Employer's Objections I and 5
which were filed to the August 26 election in the meat
market."( The petition in this case was filed by the
Teamsters on July I and the Union herein intervened on
July 6.
With respect to Objection 1, the Employer contends
that the presence of Market Manager Max Ward, after
his promotion about June 15, and other market managers
at union meetings wherein employees were solicited to
sign cards supports Objection 1. The record discloses
that in addition to Ward one or more market managers
or assistant store managers attended some of the union
meetings early in the campaign. However, it is not
shown that, other than Ward, these supervisors actively
participated in urging employees to support the Union.
Moreover, it appears, again with the exception of Ward,
that once a determination of their supervisory status had
been made or an agreement thereon reached, they ceased
all such activity. It is clear that by the date of the elec-
tion the Employer had demonstrated to all the employ-
ees its unalterable opposition to unionization, and the em-
ployees were well aware that any prounion sentiment ex-
zation cards in supporl of the Union, assuming arguendo that all these
cards are valid. II this coinnection, the General Counsel proffered 67 au-
thlrizatiion cards signed hb the Respondent's unit employees in behalf sf
the th1uiisn sOit of i unit of 1511
:' I am aware that at this time the United States Court of Appeals fir
I Third Circuit had remanded United Dairy Farmers Cooperarive .4ssociation,
633 1; 2d 1054 (198(), io, the Board for reconsideration in light of that
coturt's finding that (;ihsel in fact authorizes the SBoard to issue remedial
bargaining orders even in the absence of a showing that the unison at rele-
sant times represented a majority of the employees in the unit Membh,r
Penell, was of the opinion in that case that the Board had no such aJ-
thsrity and did nost decide whether a bargaining order would be appr)-
pritec in that case if it had such authority
I; he I mplsyer's Objectio, 1
TIhe utlirl interfered with a free election by requesting that supersi-
ssors solicit authorization cards from the employees in the unit ard
engaged in other pro-union activities. Several supervisors did engage
in such activities on behalf of the union
IlThe Emplhyer', Objection 5:
The union interfered with a free election by making direct or indi-
rect threats that employees would be fired if the union were not sup-
porled
1320
UNITED SUPERMARKETS, INC
pressed by a supervisor did not represent that of manage-
ment. Even assuming, as the Employer argues, that the
presence of supervisors at these meetings may have in-
duced some employees to sign cards either because they
thought management was supporting the Union out of
fear of retaliation by a union-oriented supervisor, and,
thus, the cards might be tainted if used to establish ma-
jority, I am not persuaded that the employees' freedom
of choice was so affected at the time of the election. It
should be noted that the Employer had terminated Ward
for alleged threats of reprisal against nonunion employ-
ees thus assuring the employees that a prounion supervi-
sor would have no opportunity for retaliation.
Objection 5 deals exclusively with threats made by
Ward. In support of this objection, the Employer cites
three separate instances of Ward's conduct. The first oc-
curred on June 11, prior to Ward's becoming a supervi-
sor and prior to the date the petition was filed. Ward ad-
mitted that at a union meeting on June I1, attended by
about 27 meat department employees, he made the state-
ment "If someone is an informer then that person will be
punished."
The second incident involves a statement made by
Ward at the July 13 meeting. According to Charles
Sooter, whose testimony I credit:
A. [He] invited everybody else, you know, to join
that wanted to and he said he knew that we had
people that was against it and that was fine for the
company and he would not tolerate it if he knew
who they was, but he was going to continue to pro-
mote it and do everything within his power to get it
in.
The third incident as discussed in connection with
Ward's discharge occurred the following day. Ward ad-
mitted that in the presence of three meat department em-
ployees he told Linda Brownlee, a grocery department
employee, that "squealers were the ones that were going
to be fired first as soon as the union got in." Ward had
accused her of being a company spy when she refused to
sign a union card. It was this conduct that precipitated
Ward's discharge.
Ward's conduct here is very similar to that of the su-
pervisor considered by the Board in Rocky Mountain
Bank Note Company, 230 NLRB 922 (1977). There, as
here, the union knew him to be a supervisor and contin-
ued to use him as an organizer. He thereafter directly or
indirectly made threats of reprisals to employees who
failed to support the union. Some 5 weeks prior to the
election the Employer suspended and subsequently dis-
charged him. The Board concluded that such supervi-
sory participation in a union campaign can be grounds to
set aside an election in two different situations:
[F]irst, where the employer has taken no known
stance contrary to the union, thereby leading em-
ployees to believe that the employer favors the
union; and second, where the supervisor's remarks
are made to employees with whom the supervisor
will have a continuing relationship, thereby causing
employees to fear supervisory retaliation should
they not favor the union.'
' Flint Mrotor Inn ('ompany d'h/a Sheraton Motor Inn, 194
NLRB 733. 735 (1971)
Here it is evident that the first instance mentioned is
not applicable, for the Employer immediately made
known its stance contrary to the union. As to the second
situation, here, as in Rocky Mountain, supra, Ward, the
offending supervisor, was discharged some 6 weeks
before the election and at the time of the election was no
longer in the Respondent's employ. Here, unlike in
Rocky Mountain, charges were filed with Regional Office
of the Board contending that Ward's discharge was un-
lawful. However, at the time of the election no com-
plaint had issued seeking his reinstatement or rehire. In
my opinion, under the circumstances here, the employees
could have no reasonable expectation of having a con-
tinuing relationship with Ward when they voted. Ac-
cordingly, Ward's remarks during the critical period did
not destroy the laboratory conditions surrounding the
election. The Employer's Objection 5 is without merit
and is hereby overruled. It will he recommended that a
Certification of Representative issue in Case 16-RC-
7556.
IV. THE FFECT OF [HFi UNFAIR l.ABOR PRACTICES
UPON COMMERCI
The activities of the Respondent set forth above in
connection with its business as set forth in section 1,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to disputes obstructing the free flow of
commerce.
CONCIUSIONS Oi LAW
1. Jurisdiction of the Board is properly asserted in this
consolidated case including matters relating to the two
representation proceedings.
2. All regular full-time employees, including bakery
department employees, and regular part-time employees
who have worked at least 18 separate weeks preceding
this Decision and Direction of Election employed at the
Employers seven retail grocery stores located in Amaril-
lo, Texas. Excluded: all part-time sackers who have
worked for the Employer less than 18 weeks, managers,
assistant managers, meat department employees, watch-
men, guards and supervisors as defined in the Act, as
amended, constitutes a unit appropriate for the purpose
of collective bargaining within the meaning of Section
9(b) of the Act in Case 16-RC-7579.
3. All butchers and wrappers located in the United Su-
permarkets, Inc., stores in Amarillo, Texas. Excluded:
head meatcutters, all other employees (grocery depart-
ment employees), office clerical employees, managers, as-
sistant managers, guards, watchmen and supervisors as
defined in the Act constitutes a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act in Case 16-RC-7556.
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DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
4. The Union's Objections 6 and 8 to the December 7
election in Case 16-RC-7579 have been sustained and in
conjunction with the unfair labor practices found herein
occurring between August 5 and December 7, 1977, re-
quires that election be set aside and a new election be di-
rected and held as provided in the section of this Deci-
sion entitled "The Remedy."
5. The Employer's Objections I and 5 to the August
26 election in Case 16-RC-7579 have not been sustained
and are overruled. Inasmuch as a majority of employees
in the appropriate unit cast a free and uncoerced ballot
for the Union, a Certification of Representative should
issue.
6. By coercively interrogating its employees concern-
ing their union activities and the union activities of other
employees; threatening its employees that it would close
some or all of its stores if they selected the Union to rep-
resent them; threatening its employees that their hours of
work would be reduced and their production increased if
they selected the Union as their collective-bargaining
representative; threatening its employees with layoff and
reductions in force in retaliation of the Union; threaten-
ing its employees that it would never negotiate in good
faith with the Union or sign a contract; threatening its
employees that it would "trump up" charges to get rid
of union activists; promising its employees better wages
and benefits if they rejected the Union; soliciting its em-
ployees to spy upon the union activities of other employ-
ees and report such activities to it; and creating the im-
pression that it had their union meetings and other union
activity under surveillance, the Respondent has violated
Section 8(a)(1) of the Act.
7. By discharging and thereafter failing and refusing to
reinstate its employees: Priscilla Ann Sain, Tanna Stoops,
Van Bollen, Rick Stanberry, Claude Murray, Mark
Soltis, Faye Bonner, Judy Grove, Donna Bates, and, de-
moting Mark Soltis form "third man" to stocker and re-
ducing his hours of employment, the Respondent has
violated Section 8(a)(3) and (1) of the Act.
8. The Respondent has not been shown to have violat-
ed Section 8(a)(1), (3) and (5) in certain particulars dis-
cussed above.
9. At no time relevant herein, between August 4 and
October 29, 1977, did the Union represent a majority of
the employees in the unit set forth in item 2, above, as
demonstrated by valid authorization cards signed by em-
ployees in that unit.
THIE REMEDY
Having found that the Respondent has committed acts
in violation of Section 8(a)(l) and (3) of the Act, it shall
be ordered to cease and desist therefrom and from any
other unlawful activity and to take certain affirmative
action designed to effectuate the policies of the Act.
The usual remedy for the violations found herein is the
posting of the informational notice to employees in ap-
propriate places in locations involved and the reinstate-
ment of all unlawfully discharged employees and make
them whole for losses due to the discrimination agairst
them and cease and desist from any other unfair labor
practices. However, as noted above, the Board in United
Dairy Farmerv. supra, indicated that in a case such as this
additional remedial action may be directed that would
"emphatically . . . inform employees of their Section 7
rights and assure that Respondent will respect the rights"
and afford the union the "opportunity to participate in
the restoration and reassurance of employee rights by en-
gaging in further organizational efforts . . . free of fur-
ther restraint and coercion."
In order to achieve these objectives for the employees
here, I recommend that in addition to the usual remedy
the Respondent be ordered to post copies of the notice
to employees attached hereto marked "Appendix A," in
appropriate places as directed herein in all of its retail
grocery stores located in west Texas. Mail a copy of said
notice to the home address of each of its employees em-
ployed in those stores and further that the Respondent's
owner assemble the employees in its Amarillo division
and read the notice to them and that proof of such action
be submitted to the Regional Director for Region 16.
To provide the Union the opportunity to assist in the
restoration of the employees Section 7 rights destroyed
by it, the Respondent shall, upon request, grant the
Union and its representatives reasonable access to its bil-
letin boards and all places where notices to employees
are usually posted in all stores in its Amarillo division.
The Respondent shall also grant the Union reasonable
access to nonselling--nonwork areas of its stores during
employees nonworking time. Further, the Respondent
shall, upon request, supply the Union with an accurate
list of the names and addresses of all its employees in the
Amarillo division, within 1 year from the date of this
Decision.
The Union shall further be given equal time and facili-
ties to respond to any address by the Employer to its
employees on the question of union representation.
All loss of earnings and other benefits due under the
terms of this Order shall be computed with interest in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), Isis Plumbing & Heating Co., 1.38
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
[Recommended Order omitted from publication.]
1322