Big Star No. 185

National Labor Relations Board - Board Decisions

Sep 25, 1981

258 N.L.R.B. 300 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G.E.S., Inc., d/b/a Big Star No. 185 and United
Food & Commercial Workers Local 1529, AFL-
CIO. Case 26-CA-8239
September 25, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 22, 1981, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed cross-exceptions and a supporting brief,
and Respondent filed a brief answering the General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge as modified herein, and to adopt his recom-
mended Order,3 as modified herein.
Contrary to the Administrative Law Judge, for
the reasons discussed below, we find that Charles
Dorsey is not a supervisor as defined by Section
2(11) of the Act. We shall therefore include him in
the unit.
The Administrative Law Judge found, and we
agree, that Dorsey's duties as produce manager are
relatively simple and routine and consist for the
most part of manual work. Dorsey orders produce,
signs the invoice for it when it arrives, calculates
the retail price with assistance from the store man-
ager or his assistant by adding an established per-
centage markup to the wholesale price, unpacks
the produce, and displays it for sale. The record
clearly establishes that Dorsey cannot hire, fire,
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law 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 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
z Member Fanning would not find, as did the Administrative Law
Judge, that Respondent had a bargaining obligation beginning November
6, 1979. Rather, he would require that Respondent bargain with the
Union prospectively from the date of this Decision and Order. See his
separate opinions in Beasley Engergy. Inc.. d/b/a Peaker Run Coal Compa-
ny, Ohio Division #1, 228 NLRB 93 (1977), and Ilambre Ilombre Enter-
prises, Inc., d/b/a Panchiros, 228 NLRB 136 (1977). enfd 581 F.2d 204
(9th Cir. 1978).
a We will modify the Administrative Law Judge's recommended
Order by deleting par. (d) and relettering the subsequent paragraphs ac-
cordingly, as the cease-and-desist provision contained in that paragraph is
duplicative of par l(e).
258 NLRB No. 40
discipline, or recommend effectively that such ac-
tions be taken.
Dorsey has an assistant who was told to obey his
instructions. The two of them are the only employ-
ees who regularly work in the produce department.
They perform the same manual tasks and, in Dor-
sey's absence, his assistant fills in for him, ordering
produce and signing invoices, when necessary.
Store Manager Cobb sets the work schedule for
Dorsey's assistant, and any request for time off
must be cleared either through him or the assistant
manager. Although Dorsey is empowered to au-
thorize overtime, he can do so only in very limited
circumstances. If a produce truck arrives late, for
example, Dorsey has the authority to have his as-
sistant stay on to help unload it.
Unlike the store manager, assistant manager, and
meat manager, who are salaried, Dorsey punches a
timeclock and is hourly paid. Six other employees
receive the same hourly rates as Dorsey. One em-
ployee gets 25 cents more. Dorsey does, however,
earn a 5-percent bonus based on the net profit of
his department, and only he and the three manag-
ers mentioned above receive this form of compen-
sation.
Based on the foregoing and the record as a
whole, we find that Dorsey's duties do not reflect
the indicia necessary to warrant a finding that he is
a supervisor. Dorsey spends the majority of his
time unpacking and stocking produce. His other
duties require at most only a limited exercise of in-
dependent judgment. His assistant performs the
same routine functions and needs no responsible di-
rection to carry them out. As previously noted,
Dorsey has no authority to hire, fire, or discipline,
or to make effective recommendations in that
regard. Further, his ability to grant overtime is re-
stricted to situations that demand little, if any dis-
cretion. Finally, with respect to the size and nature
of Dorsey's compensation, the record evidence re-
veals a greater distinction between Dorsey and Re-
spondent's supervisors than between Dorsey and
Respondent's employees. Accordingly, we con-
clude that Dorsey is not a statutory supervisor. 4
Dorsey signed a union authorization card on
September 19, 1979. Therefore, we find that, on
October 13, 1979, the Union had in its possession
13 valid authorization cards, a card majority in the
appropriate unit which, including Dorsey, consist-
ed of 19 employees.
4 In sec. III.E, of his Decision, the Administrative Law Judge found
that Dorsey's solicitation of two union authorization cards did not render
them invalid, citing El Rancho Market. 235 NLRB 468, 473-474 (1978),
enfd. 603 F.2d 223 (9th Cir. 1979). Inasmuch as we have found that
Dorsey is not a supervisor, we find it unnecessary to reach the issues
raised by Dorsey's solicitation of cards.
300
BIG STAR N() 185
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 below, and hereby orders that the Respondent,
G.E.S., Inc., d/b/a Big Star No. 185, Tunica, Mis-
sissippi, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Delete paragraph (d) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise or grant benefits or
solicit or adjust employee grievances for the
purpose of discouraging our employees from
selecting a labor organization as their collec-
tive-bargaining representative.
WE WILL NOT in the future grant our em-
ployees wage increases, for the purpose of in-
terfering with their self-organizational efforts
or to interfere with their activities on behalf of
United Food & Commercial Workers Local
1529, AFL-CIO, or any other labor organiza-
tion.
WE WILl. NOT threaten our employees with
store closure if they select the Union as their
collective-bargaining representative.
WE WILL NOT interrogate our employees
with respect to their union activities or those
of other employees, and WE WILL NOT ask our
employees to report on the union activities of
other employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, upon request, recognize and bar-
gain with United Food & Commercial Work-
ers Local 1529, AFL-CIO, about wages,
hours, and other conditions of employment of
the employees in the following unit, and
reduce to writing and sign any agreement
reached:
All full-time and regular part-time employ-
ees employed at our Tunica, Mississippi,
store, including the head checker, excluding
the store manager, assistant managers, meat
department employees, guards, watchmen,
and supervisors as defined in the Act.
G.E.S., INC., D)/B/A BIG STAR No.
185
DECISION
SIAlIMII NT oF 1HI. CASI.
CI.AL.I)I R. WoI.it, Administrative Law Judge: This
case was heard before me at Memphis, Tennessee, on
June 16, 17, and 18, and November 5, 1980, pursuant to
charges timely filed and served and a complaint duly
issued. The complaint alleges various threats and interro-
gations, solicitation of employees to inform on union ac-
tivities of others, promises and grants of benefits, with-
drawal of benefits, reduction of employee hours, and the
hiring of excess employees to undermine the Union's ma-
jority status. The complaint also alleges the Union has
been designated by the employees as their collective-bar-
gaining representative and prays for a bargaining order
as part of the remedy for the alleged unfair labor prac-
tices.
Respondent denies the unfair labor practice allegations
and the appropriateness of the bargaining unit alleged.
Upon the entire record,' including my observations of
the demeanor of the witnesses as they testified before
me, and after due consideration of the post-trial briefs re-
ceived, I make the following:
FINDINGS ANI) CONCIUSIONS
I. JURISDICTION
Respondent is a corporation with an office and place
of business in Tunica, Mississippi, where it is engaged in
the operation of a retail grocery store. Annually, Re-
spondent, in the course and conduct of this business op-
eration derives gross revenues in excess of $500,000, and
purchases and receives at its Tunica, Mississippi, facility
products, goods, and materials valued in excess of $5,000
directly from points outside the State of Mississippi. Re-
spondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES2
A. Background
Respondent and the Union were party to a collective-
bargaining agreement covering employees of its store at
I The General Counsel's uncontested motion to correct the record is
granted 'ith certain exceptions.
2 The violations found herein, although not all specifically alleged. are
fairly covered by complaint allegations
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tunica, Mississippi, until its expiration on January 31,
1977. The bargaining unit included all full-time and regu-
lar part-time employees, including the produce manager,
and excluded, inter alia, meat department employees.
The current organizing campaign commenced on Sep-
tember 19, 1979, when employee Sylvester Daley se-
cured authorization cards from the union agent and
began to solicit employees to sign them.
On November 5, 1979, the Union filed a petition for
election in a unit consisting of all employees at the
Tunica store, excluding the manager, assistant manager,
employees working in the meat department, guards,
watchmen, and supervisors. This petition in Case 26-
RC-6126 resulted in a representation hearing conducted
by the Region, but no decision ever issued therein in
view of the charges filed herein. The official report of
proceedings in Case 26-RC-6126 was received in evi-
dence by me and has been considered where relevant to
the issues before me.
The bargaining unit alleged as appropriate in the com-
plaint is:
All full-time and regular part-time employees em-
ployed at the Employer's Tunica, Mississippi, store,
including the head checker, excluding the store
manager, assistant managers, employees working ex-
clusively in the meat department, guards, watchmen
and supervisors as defined in the Act.
The parties do not agree on the appropriateness of this
unit, the placement of certain employees, or the Union's
majority status.
B. The Appropriate Unit
Respondent contends that meat department employees
should be included in the unit. A unit of grocery em-
ployees excluding meat department employees is pre-
sumptively appropriate,3 and that presumption has not
been rebutted in the instant case.
Although all store employees, including those in the
meat department, are under the general supervision of
the store manager and the assistant manager, the meat
department employees are under the direct supervision
of Meat Department Manager Horton. The department is
physically separated from the rest of the store by a meat
counter. There is apparently no established apprentice-
ship program for the meat employees, but that the work
of a butcher at this facility requires skills other than
those of the grocery employees is shown by the evidence
that on-the-job training is given within the department to
trainee butchers. This happened in the case of Delaine
Mayo who went from part-time grocery to full-time
meat employee and was trained to be a butcher. Meat
employees occasionally sack groceries, help prepare fruit
baskets, or assist customers in locating items outside the
meat department, but Store Manager Cobb testified that
they spend at least 90 percent of their time in the depart-
ment. Grocery employees do not substitute for absent
meat employees. It appears from Cobb's testimony that
the only time grocery employees enter the meat depart-
:' Wilhow Corporation d/b/a Town d Country Supermarkelt, 244 NLRB
303 (1979).
ment to slice luncheon meat or procure boxes of meat is
after 6 p.m., when the meat department employees
would cease working for the day. At other times these
tasks are performed by meat employees. There is some
indication that grocery employees may on occasion do
some meat wrapping.
There have been three instances in the past when gro-
cery employees were permanently transferred to the
meat department and a regular produce employee has
regularly worked Thursdays in the meat department.
All store employees share the same benefits and the
same wage scale, except for supervisory personnel.
Considering all the foregoing facts together with the
history of bargaining between Respondent and the Union
for a unit of grocery employees, and further considering
that the Union does not seek to include the meat depart-
ment employees in the unit, I find that the evidence af-
fords no sufficient reason to depart from the Board's
normal practice,4 and I therefore find that the following
unit is appropriate for purposes of collective bargaining:
All full-time and regular part-time employees em-
ployed at Respondent's Tunica, Mississippi, store,
including the head checker, excluding the store
manager, assistant managers, meat department em-
ployees, guards, watchmen, and supervisors as de-
fined in the Act.
C. The Status of Hern, Barlow, and Dorsey
The unit placement of Jerry Hern, Pat Barlow, and
Charles Dorsey was placed in issue at the hearing.
In their post-trial briefs both the General Counsel and
Respondent take the position that Hern is not a statutory
supervisor. I agree, noting that all the record shows are
duties of Hern amounting to nothing more than those
common to nonsupervisory grocery clerks. Accordingly,
Jerry Hern will be included in the bargaining unit.
The parties stipulated that Pat Barlow is not a supervi-
sor. The General Counsel contends she should be ex-
cluded from the unit because her interests are more
closely aligned with management than with the employ-
ees. Respondent contends Barlow should be included.
Barlow has been employed as a checker (running a
cash register) for several years, is the senior checker, and
was covered by the union contract throughout its dura-
tion. She earns 25 cents more per hour than the next
highest paid grocery employee. Most of Barlow's work,
Cobb at different times estimated 60 or 75 percent, 5 con-
sists of running a checkout register. She also helps stock
shelves and spends an hour or two each day in the office
performing routine clerical duties. These office duties
consist of filling out a daily report form showing the
daily volume of business; 6 utilizing timecards to prepare
4 See, e.g., Stephen Davis and Michael Pronvenzano d/b/a Carlrons
Marketr. 243 NLRB 837 (1979); Wilhow Corporarion, rupru: R-.VN Market,
Inc., 190 NLRB 292 (1971); uechler'\ Food Markets. Incorporated, 232
NLRB 785 (1977).
" Employee Norwood's testimony that Barlow spends 95 percent of
her time working in the office is given little weight inasmuch as Nor-
wood worked a difTerent shift from that of Barloss.
6 This data is gleaned from the cash register sales slips.
302
BIG STAR NO. 185
a weekly payroll sheet which she forwards to Respond-
ent's accountant who then causes paychecks to be issued;
tabulating bank deposits and preparing the deposit slip;
filling out insurance claim forms for injured employees in
the absence of the store manager and assistant manager;
and logging in the weekly invoices for trading stamps
before forwarding said invoice to the accountant for pay-
ment. She does no typing, has no desk of her own, does
no personnel work, and has the same fringe benefits and
break areas as other nonsupervisory employees. There is
no evidence Barlow has any familial relationship with
members of management. 7
Inasmuch as Pat Barlow has no supervisory authority 8
and considering that she works closely with other cash-
iers and has essentially the same wages, hours, and work-
ing conditions as other employees in the storewide gro-
cery unit, I find she has a sufficient community of inter-
est with these employees that she should be and is prop-
erly included in the unit.9
Respondent says Charles Dorsey is a supervisor. The
General Counsel says he is not. Dorsey is the produce
manager. O He, like several other grocery employees, is
paid an hourly rate 25 cents less than that of Barlow, but
he is also paid a 5-percent commission on the net profit
of his department. The only other individuals earning a
commission are the store manager, the assistant manager,
and the meat manager, but they, unlike Dorsey, receive a
base salary rather than an hourly wage.
The following assessment of Dorsey's duties and re-
sponsibilities is derived from a composite of the credible
portions of the testimony of all witnesses testifying there-
on. Most of the relevant evidence flows from the testi-
mony of Cobb and Dorsey, neither of whom impressed
me as totally credible witnesses because Cobb's testimo-
ny contains numerous inconsistencies of varying degrees
of importance and Dorsey did not always seem to under-
stand the import of questions propounded to him and
was at times rather vague and inaccurate in his answers.
As his title implies, Dorsey is in charge of the produce
department. He orders produce directly from the suppli-
er in accordance with projected estimate of store volume
which he ascertains from Assistant Store Manager Wil-
liams. After receiving this information from Williams, he
checks his stock, determines what is needed, and pre-
pares his order. He then phones the supplier directly and
places his order. He does not check his order out with
his superiors before ordering. When it arrives he signs
the invoice. He calculates the retail prices to be posted
by adding an established markup percentage to the
wholesale price. It appears, however, that he often re-
ceives assistance from Cobb and Williams in calculating
the prices because he was so instructed and because Wil-
liams is experienced in produce work. I am persuaded
that this assistance is a necessity to insure accuracy of
computation. After pricing the produce Dorsey unpacks,
7 Cf. Wilhow Corporation. supra.
8 Nor is there any substantial evidence that she is a confidential em-
ployee, even though the General Counsel so implies.
9 Big YFoods. Inc., 238 NLRB 855, 858-859 (1978).
'O That this is in fact his job title is buttressed by Dorsey's notation on
his union authorization card, dated September 19, 1979, that he is pro-
duce manager.
trims, and displays it for sale. Most of his workday is
spent at manual work in the department.
The only other employee in the department works 32
hours a week and assists and fills in for Dorsey in his ab-
sence performing the same duties Dorsey would do if
present. Dorsey has no authority to hire or fire and I
credit his testimony that he has not been told he can dis-
cipline his assistant, and that requests for time off by his
assistant must be cleared with Cobb or Williams. The as-
sistant works a regular schedule set by Cobb.
Dorsey concedes that he was told his assistant should
work under him, and Cobb credibly testified that he in-
structed Dorsey's assistant that Dorsey was the produce
manager and the assistant should obey his instructions.
Cobb's instructions, absent any accompanying words of
limitation, were sufficient to clothe Dorsey with the au-
thority to exercise his independent discretion in directing
the work of his assistant, and to advise his assistant that
Dorsey had such authority. Cobb also credibly testified
that Dorsey can authorize overtime for his subordinate
when necessary, such as an instance where late arriving
supply trucks need to be unloaded. I am persuaded that
Dorsey provides the daily direction of his subordinate in
the performance of his duties and I note there is no sub-
stantial evidence that the assistant receives direct super-
vision from anyone else with respect to produce work.
Dorsey's work is relatively simple and routine but the
fact that he receives a bonus based on the performance
of his department; exercises some independent discretion
in stocking his department and committing his employ-
er's funds to suppliers; has the authority to responsibly
direct his assistant in the performance of his day-to-day
work; and can authorize overtime for his assistant per-
suades me that Respondent has delegated sufficient au-
thority to Dorsey to bring him within the statutory defi-
nition of a supervisor. Accordingly, I conclude and find
Charles Dorsey is a supervisor within the meaning of
Section 2(11) of the Act and is not a member of the bar-
gaining unit found appropriate herein.
D. Newly Hired Employees
The complaint alleges the following employees were
hired in order to inflate the bargaining unit and thereby
defeat the Union. The dates set forth after their names in
the first column are those alleged in the complaint as
their dates of hire. The actual dates of hire are set forth
in the second column. All dates are in 1979, except
where otherwise shown.
Harvey Wilkerson
Frankie Flemmons
Janice Glover
Bobby Rowton
Hal Munson
Clara Johnson
Curtis McCoy
Tim Spencer
Al-
leged
date
of
hire
11/21
11/21
11/21
11/21
11/21
11/28
12/24
12/27
Actual date
of hire
11/14
11/21
11/21
11/21
11/19
11/29
12/24
12/24
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Al-
leged Actual date
date of hire
of
hire
Terry Stacey 12/29 12/22
Brian Emmons 1/20/80 12/23
The General Counsel contends that a finding of hiring
for antiunion purposes is supported by Respondent's
hiring of employees "far in excess of its normal prac-
tices," and "an abnormal increase in the number of em-
ployees with 15 regular hours or less per week."
Respondent's payroll records, proffered in evidence by
the General Counsel and covering the period June 1978
through May 1980 inclusive, reflect the following with
respect to hourly paid unit employees:
The records show the number of unit employees
during the weeks set forth below to be:
ires Termina-Hires lions
1978:
June
July
August
3 0
0 1
1 2
Hires Termina-
tions
I 0
I 0
5 2
0 0
September
October
November
December
1979:
January
February
March
April
May
June
July
August
September
October
November
December
1980:
January
February
March
April
May
1 2
2 3
I I
2 0
1 2
4 2
0 1
0 2
1 2
8 1
4 0
0 1
0 1
0 2
1 2
1 0
The records show the number of
during the weeks set forth below to be:
unit employees
1978:
Week ending
Unit employees
1979:
Week ending
Unit employees
11/4 11/11 11/18 11/25 12/2 12/9 12/16 12/23 12/30
16 17 19 18 19 19 19 19 19
11/3 11/10 11/17 11/24 12/1 12/8 12/15 12/22 12/26
16 15 16 22 " 21 22 22 22 26
Two unit employees were hired between December
24, 1979, and May 31, 1980, and 6 were terminated, re-
ducing the unit to 22 by May 31, 1980.
The General Counsel's contention that the increase in
employees working 15 hours a week or less is abnormal
does not take account of the fact that Cobb credibly tes-
tified that he had fewer full-time and more part-time em-
ployees in 1979 than he had in 1978. This argument also
suffers from the fact the General Counsel's computations
do not take account of the fact that Ushlean Dorsey,
who often worked less than 15 hours, works in the meat
department and several of the employees working less
than 15 hours were hired or terminated in midwork
week, nor does it appear he noted the overtime hours are
separate from the regular hours in the record and must
be added together. A sample comparison of the General
Counsel's computation submitted with his brief against
II Wayne Waggener worked only 3 hours and was terminated.
12 Wilkerson hired 11/14/79.
13 Waggener hired 11/19 and Rowton, Flemmons and Glover all
hired 11/21/79.
14 This is Wayne Waggener who only worked 3 hours on 11/19 and
never returned.
s5 This includes Emmons who was hired on 12/23 and Spencer,
Stacey and McCoy who were hired on 12/24
'l Including Wilkerson who terminated on 1/4/80.
the payroll records illustrates
two:
Week ending
11/17/79
11/24/79
12/1/79
12/8/79
12/15/79
12/22/79
12/29/79
1/5/80
1/12/80
1/19/80
1/26/80
2/2/80
2/9/80
2/16/80
the disparity between the
15 hrs. or
15 hrs. or less per
less per G. C. payroll
record
2 12 1
4 134
2 "I 1
2 0
3 0
2 1
7 1 6
5 163
4 2
6 4
6 5
5
5
7
4
2
5
Moreover, I note that Cobb's testimony that he hired
the employees in question in order to replace some who
had quit, and in order to cut down on overtime while
handling a larger business volume is not inconsistent
304
BIG STAR NO. 185
with the record showing only one hire but five termina-
tions in the 3 months preceding November 1979, and the
further record showing that for the period encompassing
the workweeks of November 24, 1979, through January
5, 1980, the total average hours worked per week was
850.86, including 98.64 average weekly overtime hours,
compared with the comparable period of the weeks
ending November 25, 1978, through January 6, 1979,
when the total average hours per week were 837.18 in-
cluding 130.68 overtime hours. Computing the overtime
hours at time-and-a-half, Respondent paid an average of
900.18 hours of straight time pay during the 1979 period
and 902.52 hours during the 1978 period.
The General Counsel also attempts to support his basic
thesis of unlawfully motivated hiring with the credible
testimony of Annie McMullen, Sylvester Daley, and
Charles Dorsey that they were told' by Manager Cobb
that the payroll was too high.
Additionally, the General Counsel proffered new hires,
Clara Johnson, Eugene Wilkerson, and Tim Spencer,
who testified with respect to events surrounding their
hiring.
Spencer credibly testified that when Cobb interviewed
and hired him on December 24, 1979, Cobb asked if he
had heard the Union was trying to get in. Spencer an-
swered that he had. Cobb then asked if Spencer still
wanted to work. Spencer said he did and nothing else
was said about the Union in this conversation.
Eugene Wilkerson's version of his job interview with
Meat Manager Horton in November 1979 differed but
slightly on cross-examination from that ventured on
direct examination, and I credit him. Wilkerson, who
was 14 years old at the time, was asked by Horton if he
knew anything about the Union. Wilkerson said he did
not. Horton then told him that whatever he did he
should vote "no" in the election.
Clara Johnson applied for work in early November
1979. Cobb told her he had two openings, but was not
then hiring. Johnson reapplied about November 23 and
was hired on November 29.
Of the employees whom the General Counsel claims
were hired for unlawful reasons, at least two, Wilkerson
and Glover, signed cards for the Union, and Johnson
was told of the job opening by her friend, Annie
McMullen, a union adherent."s
Respondent proffered credible testimony that the store
had doubled in physical size in 1979 and its volume of
business had significantly increased for the November-
December 1979 period over the same period in 1978.
The work force which is built up over this 2-month
period, the busiest of the year, settles back to normal via
attritionS9 without need for discharges.
iT McMullen in the summer of 1979. Dorsey in August 1979, and
Daley in October 1979.
18 The General Counsel relates in his brief that "During the hearing
[he] made several efforts to prove that certain of the employees hired by
Respondent in November-December 1979 were hired to work against the
Union.' He further states I rejected these efforts and urges me to recon-
sider. I did so rule at hearing and again adhere to my earlier rulings be-
cause the evidence sought to be adduced was of two types (1) hearsay
not binding on Respondent, and (2) irrelevant and not probative of the
violations alleged.
19 This testimony is supported by Respondent's records.
All 10 employees named by the General Counsel were
hired between November 14 and December 24. This is
clearly the Thanksgiving and Christmas season and it is
impossible to ignore the well-known fact that these are
seasons peculiarly oriented to the consumption of ex-
traordinary amounts of food. That Respondent increased
its grocery unit to 22, and then 26, during this period
does not at all seem to be hiring "far in excess of its
normal practices." During the same period in 1978, Re-
spondent increased its force from 16 to 19. Considering
the doubling of store size and the uncontroverted testi-
mony that business at Tunica had increased 30 to 40 per-
cent in 1979 over 1978, I do not believe that an increase
of 3 to 6 employees in the 1979 holiday season is unrea-
sonable. This is in the range of a 15- to 30-percent in-
crease, not out of line with the increased business. More-
over, I am not at all satisfied that the General Counsel
has in fact shown any substantial deviation from Re-
spondent's normal business practices. Looking again to
the records, which I conclude can be, as they have been,
argued any way that suits the parties respective objec-
tives, I note that, although Respondent only hired 11 and
terminated 5 employees the last 7 months of 1978. the
fact it hired 18 in the same period in 1979 is offset by the
termination of 10. In sum, there was a net gain of six
grocery employees during June through December 1978
and eight during the same months in 1979 at a time of
business expansion both in physical size and volume.
point this out only to emphasize that these hiring re-
cords, without more, simply are insufficient to constitute
the preponderance of the credible evidence nor does my
examination of the hours worked by employees persuade
me that they prove the General Counsel's case.
What we have here is hiring suspicious because it
occurs in the midst of a union campaign with some other
contemporaneous unfair labor practices, of which more
later. It is quite obvious to the most casual and disinter-
ested observer that grocery stores generally do more
business at Thanksgiving and Christmas time. More busi-
ness requires more employees. Respondent's 1979 holiday
hiring has not been shown to be extravagant, nor is there
any reason to exalt the General Counsel's business judg-
ment over that of Respondent. There is no evidence or
reason to believe Respondent knew or suspected its new
hires would be antiunion. Two in fact signed union
cards. The testimony of Johnson, Wilkerson, and Spen-
cer, which will hereinafter be discussed in connection
with other alleged violations of Section 8(a)(1) of the
Act, adds little weight to the evidence in support of the
General Counsel's illegal hiring thesis.20
On all the foregoing I find and conclude the General
Counsel has not shown by a preponderance of the evi-
dence that Respondent hired employees in order to
defeat unionization or that Respondent violated Section
8(a)(3) or (1) of the Act in this regard.
I further conclude and find that inasmuch as the gro-
cery employees hired during November and December
1979 had a reasonable expectancy of continued employ-
ment in view of Respondent's policy of hiring all em-
2" Horton's conversation with Wilkerson sbias neither alleged nor liti-
gated as an unfair labor practice
305
DECISIONS OF NATIONAl. L.ABOR RELATIONS BOARD
ployees on a permanent basis, letting attrition level the
work force, they are included in the unit as either full-
time or regular part-time employees, depending on the
hours each regularly works.
E. Authorization Cards and the Unions Majority
Status
The following unit employees signed union authoriza-
tion cards on the dates (all in 1979) set after their names:
Sylvester Daley
Eddie Webber
Willie Humphrey
Eddie Smith
Demetrice Norwood
Dennis Hayes
Bernard Spencer
Janice Glover
Annie McMullen
Michael Gentry
Helen Mills
Bill Mosley
September 19
September 19
September 19
September 23
September 23
September 23
September 26
September 26
October 7
October 8
October 8
October 13
All of these cards were properly authenticated and
clearly designate the Union to represent the signers for
purposes of collective bargaining. The signers were told
the purpose of the cards was to secure union representa-
tion and they were told nothing that would render the
cards invalid.
Respondent contends that Willie Humphrey and Eddie
Webber were influenced to sign a card by the presence
of Produce Manager Charles Dorsey, which renders
their cards invalid. The applicable law is:
This Board has long recognized that a supervi-
sor's involvement in organizational activities will
taint a union's card majority only where the super-
visor's participation may be said to have deprived
employees of the opportunity to exercise free
choice in selecting a collective-bargaining repre-
sentative. In explicating this principle, we have
pointed out that at a minimum it must be affirma-
tively established either that the supervisor's activi-
ty was such as to have implied to employees that
their employer favored the union or that there is
cause for believing that employees were coercively
induced to sign authorization cards because of fear
of supervisory retaliation. [El Rancho Market, 235
NLRB 468, 473-474 (1978).]
Neither of the situations set forth by the Board as a
minimum has been affirmatively established in this case.
Accordingly, I find that all of the cards listed above are
valid.
The Union attained a card majority in the unit found
appropriate herein on October 7, 1979, and that numeri-
cal majority continued, except for the 3-hour period that
Wayne Waggener was employed during the week ending
November 19, through the week ending December 1,
1979.
F. Respondents Posters
In early November 1979, within a few days of the No-
vember 5 petition for election, Manager Cobb prepared
and posted two copies of a hand-lettered notice. Accord-
ing to Cobb, the notice read, "Figure it out for yourself.
There are 2.000 people in Tunica and the surrounding
counties who are looking for a job. How many people
do you know of' who would like to have your job?"
Employees Webber, Norwood, and McMullen substan-
tially agree with Cobb's version of the first sentence, but
Norwood and McMullen testify that the question posed
was, "Would you like to see them with your job?"
Webber recalls, "Would you like for these people to
have your job?"
The notices have been destroyed. Cobb was not an im-
pressive witness, was given to evasion and generalities,
and seemed to be not entirely certain of that whereof he
spoke. The three employees are still working for Re-
spondent, and were therefore unlikely to be fabricating
testimony contrary to that proffered by Cobb who con-
trols their employment future,2 but it appeared to me as
I watched them that they were not certain of the exact
words of the notice. I am persuaded that it makes no dif-
ference. There is no good reason shown for Cobb's prep-
aration of this notice in either version. His explanation
that he merely wanted to inform employees of the
county unemployment figures is incredible. He gives no
credible explanation as to why he had this impulse to
advise the employees, and I conclude that the notice was
prompted by the filing of the election petition and was
prepared and posted for the purpose of discouraging
union activity. It was posted in the context of another
posted by Cobb, apparently about the same time, conced-
ed by Cobb to contain the sentence, "No union ever
gave you anything: and no union ever will."
I agree with the General Counsel that by drawing em-
ployees' attention, in the midst of an election campaign,
to their expendability Respondent impliedly threatened
them with replacement. Occurring within a few days of
the election petition, contemporaneous with another
notice patently antiunion, and justified by a feeble and in-
credible explanation as it was, I find that the notice's
purpose was to discourage employees' union activity by
threatening them with replacement because of their
union activity. Such a threat is nothing less than a threat
of discharge. I conclude Respondent violated Section
8(a)(1) of the Act by uttering this threat.
G. The "Hold-Check" Policy
There was some confusion at the hearing, which per-
sists in the General Counsel's brief, as to what a "hold
check" is. All it amounts to is a process whereby em-
ployees borrow money from Respondent and tender a
signed counter check which serves as a note held by Re-
spondent to be redeemed by the employee when he pays
the debt. These counter checks are not forwarded to any
bank for collection, nor need the borrower even have an
21 Federal Stainless Sink Div, of Unarco /ndurrie. Inc, 197 NLRB 489,
491 (1972).
306
BIG STAR N(). 185
account. It is a simple promisory note situation set up to
accommodate employees.
The hold-check policy was discontinued by Manager
Cobb on December 29, 1979. Cobb gave credited testi-
mony that he discontinued the policy immediately when
Lanny Brown quit on December 29, 1979, leaving Cobb
holding the bag with $225 in hold checks. Brown's sev-
erance date was December 29, 1979, as the payroll
record shows.
I am persuaded that Cobb's explanation, in the absence
of any material evidence to the contrary, is not unreason-
able and sufficiently explains why the policy was can-
celed while a union campaign was in progress. I con-
clude and find that the cancellation of the hold-check
policy was based on reasonable business consideration,
was not effected for antiunion reasons, and did not vio-
late the Act.
H. Conduct of Manager Cobb
1. On November 6, 1979,22 Cobb asked Demetrice
Norwood if she had heard a rumor or anything about a
union. When Norwood answered that she had, Cobb re-
sponded the Company was going to win, did not need
outsiders telling them what to do, and would do any-
thing they could to win. He continued that Owner
Storey did not have to agree to anything if the Union
got in and Storey would lock the store doors.
In the first week of December 1979, Cobb again told
Norwood that Storey could close the store.
2. About a week after the petition was filed, Helen
Mills was called into the office by Cobb who asked her
if she had heard the rumor that the Union was trying to
get in. She replied she had heard it was coming in. Cobb
rejoined that it was not coming in if the Respondent
could help it. Mills then mentioned attending some union
meetings and that she had been all through this before. 23
Cobb said he did not want to lose her because of the
Union.
3. In November 1979,24 Cobb called Annie McMullen
into his office and told her there had been rumors going
around that the Union was trying to get in the store, that
it was no longer rumors but fact, and they did not need
the Union in the store. Cobb asserted to her that Re-
spondent would do everything legally possible to keep
the Union out. I credit McMullen that Cobb also told
her he did not know who started the Union or if she had
gone to any union meetings. 25
22 I credit Norwood's ersion of her conversations with Cobb because
she appeared more forthright and candid than he, because she is still
working for Cobb and not likely to invent false testimony, and because
her version of these conversations was detailed and believable.
23 She had come to Respondent after quitting a strike-bound plant.
24 conclude this happened within a few days of the election petition
because of its similarity in opening remarks made by Cobb to other em-
ployees within days of the petition.
2b McMullen did not testify exactly as her prehearing affidavit read.
The General Counsel therefore attempted to refresh her recollection with
her prehearing affidavit. After reading it, she testified she was refreshed
and that Cobb had told her he did not know who started the Union or if
she had gone to any union meetings. The General Counsel, not satisfied,
proffered a portion of her affidavit into evidence on the ground she had
not testified to what vwas in it. After some colloquy, this evolved into a
proffer as past recollection recorded. On objection, I rejected the affida-
vit. The General Counsel urges me to reconsider What he wishes me to
4. About 3 weeks after Clara Johnson was hired on
November 29, 1979, Cobb talked to her in his office and
asked, "Have you heard that they are trying to get a
union?" She answered that she had not and inquired if
the new people could vote. He said the Company was
trying to insure that everyone had the right to vote. 2'
5. I credit Eugene Wilkerson2 7 that shortly after
Christmas 1979 Cobb called him aside and asked if em-
ployee Mosley had been talking about the Union. When
Wilkerson said he had not, Cobb told Wilkerson to let
him know whenever anybody talked to him about the
Union.
Conclusions
There is no good reason shown by Respondent why
Cobb would call employees into his office merely to in-
quire whether they had heard of the Union. I am per-
suaded it was a calculated maneuver designed to elicit in-
formation about the Union and most probably to ascer-
tain the strength of its support. The meetings with Nor-
wood, Mills, and McMullen in his office all started off
the same way. I conclude that Cobb's opening remarks
in each of the three instances were subtle interrogations
into these employees' positions vis-a-vis the Union, and I
therefore find all three were unlawfully interrogated in
violation of Section 8(a)(l) of the Act by Cobb with re-
spect to their union activities and those of others.
Apart from the coercion implicit in private interviews
by the store's top resident official in his office with
regard to union matters, Cobb's remarks that the Union
was not coming in, Respondent would do anything to
defeat the Union (albeit he defined that as anything legal
in the McMullen conversation), and that Storey could
lock the store, each of which comments appeared in one
or more of these interviews, clearly conveyed to Nor-
wood, Mills, and McMullen Respondent's displeasure
with union activity and thereby discouraged further
union activity. The interviews served as the vehicle to
convey this displeasure and the three employees were
unlawfully coerced in violation of Section 8(a)(l) of the
Act.
By twice telling Norwood that Storey could lock the
store if the Union got in Cobb twice unlawfully threat-
ened her in violation of Section 8(a)(1) of the Act.
Cobb's remark to Mills that he did not want to lose
her because of the Union is not found to be an unlawful
do is accept in evidence one statement in the affidavit. "He [Cobb] said
he'd like to know who started this." After refreshment, McMullen ex-
pressly testified Cobb did not ask her anything about the Union. I am
persuaded that if her affidavit, taken by a Board agent, was accurate she
would not easily have forgotten such an ominous inquiry into who start-
ed the Union. I credit her oral testimony that Cobb did not ask her any-
thing about the Union. I reaffirm my ruling excluding her affidavit as
substantive evidence See J P Stevens Co.. Inc., 245 NLRB 198 (1979).
as I credit Johnson's recollection on this approximate date. The ac-
count of what transpired is a fair composite of the complementary testi-
mony of Cobb and Johnson.
27 Cobb's version that he asked Wilkerson if Mosley had been harass-
ing him, and told him to report to Cobb if anybody harassed him is ex-
pressly discredited Cobb's efforts to extricate himself from this fiction by
claiming he asked the question because Mosley had reported that Mosley
had been threatened foundered completely when he was unable Io ex-
plain why he would conclude Mosley ,was threatening Wilkerson from
the infiormation Mosley himself had been threatened
307
DECISIONS OF NATIONAL LABOR REI.A TIIONS BOARD
threat because it refers to the fact she had quit a prior
job because of a strike and because this appears to have
been a response to her unsolicited comments about her
prior experience with a union.
I further find that Cobb subtly but unlawfully interro-
gated McMullen about her attendance at union meetings
and the identity of the employees who led the organiza-
tion when he volunteered he did not know who had
started the Union or if she had gone to the meeting.
There was no valid reason for this statement, and the
entire context of the meeting with her persuades me it
was part of Cobb's overall plan to gather information
generally about employee sentiment, and specifically
about hers. This interrogation violated Section 8(a)(l) of
the Act.
Cobb's questioning of Clara Johnson in December,
about 3 weeks after she was hired, as to whether she had
heard employees were trying to get a union is of the
same genus as preliminary questions posed to Norwood,
Mills, and McMullen, may reasonably be said to have a
tendency to interfere with the exercise of employee
rights, and is coercive interrogation violative of Section
8(a)(1) of the Act for the same reasons. Johnson, like the
other three, had been on the job long enough that it was
surely obvious to Cobb that she, as the others, had to be
aware of the union campaign which had long since rip-
ened into a petition by the Union and Respondent's
posted notices of disapproval. Cobb had no discernible
reason to ask such a question unless he was seeking in-
formation, and this fact was not likely to escape the at-
tention of employees being questioned.
Cobb's questioning of Wilkerson regarding Mosley and
union talk and the accompanying solicitation of Wilker-
son to report on the union activities of other employees
are individually and collectively clear-cut violations of
Section 8(a)(1) of the Act.
I am persuaded that when Cobb asked Tim Spencer,
on December 24, 1979, if he had heard the Union was
trying to get in, and followed Spencer's affirmative
answer up by asking if he still wanted work Cobb was
engaging in conduct consistent with his questioning of
others which I have found to be unfair labor practices,
and was attempting via his followup question to ascertain
Spencer's sympathies with respect to the Union. Accord-
ingly, I find Cobb coercively interrogated Spencer in
violation of Section 8(a)(1) of the Act.
I. Conduct of President Herman Storey
1. Storey and employee Dennis Hayes agree that
Hayes said the employees needed new raincoats to per-
form carryout work, and that Storey then had Cobb give
Hayes the money to go buy raincoats, which Hayes
did. 28 Hayes and Storey also agree that when Storey
visits the store he does usually ask employees if they
have any problems that he can help with.
Hayes adds that Storey approached him, inquired into
his school plans, and then asked if employees really
needed anything at the store and how he could improve
the store. Hayes then advised of the need for raincoats.
2 I credit Hayes that this all happened on Saturday, December 29,
1979.
Storey moved then to the topic of the Union, stating that
there was no problem at the store until the union issue
arose. To which Storey added there had been a union
there once and all employees did was pay union dues.
Storey continued that all the Union wanted was to strike
and it was his responsibility to hire people in place of
employees if they went on strike.
Storey's version is that he usually talks to employees
and inquires into their problems during his weekly visit
to the store. He did so on this day and directed Hayes to
get the money from Cobb to buy raincoats, after Hayes
stated the need therefor. Storey does not deny Hayes'
testimony in regard to Storey's comments about the
Union.
Storey further states that he has remedied problems in
a similar way at other stores, and specifically testifies to
one occasion, just when he does not recall, in his Clarks-
dale, Mississippi, store when he caused raincoats to be
replaced.
Storey's testimony was believable and his testimonial
demeanor was superior to that of Hayes who often had
to have questions repeated, seemed not to comprehend
questions at times, and had several failures of recall on
other topics. Posed against these considerations are the
facts that Hayes was an employee of Respondent when
he gave his testimony and testified with considerable cer-
tainty regarding the conversation in issue, and the fur-
ther fact that Storey did not deny the conversation about
the Union. I am persuaded that Hayes' version, which
stands uncontroverted and is corroborated by Storey in
part, is credible.
Given Storey's credible testimony that he is in the
habit of inquiring into employee problems and remedying
them where possible, it would appear that his response to
Hayes' raincoat complaint was in accordance with his
practice in such instances. The difficulty with this con-
clusion is that while it might well be an appropriate dis-
position of the issue in the absence of antiunion context,
such a context was here present. Nothing that Hayes said
was an invitation to Storey to point out there were no
store problems until the union campaign, or to express
his opinion on either the Union's wish for a strike or the
necessity of striker replacements in the event a strike oc-
curred. The reference to the absence of problems in the
absence of a union, contemporaneous with the remedy-
ing of the raincoat problem, suggests an effort by Storey
to emphasize to Hayes that Respondent had and would
resolve employee problems when no union was present.
The matter is not entirely free from doubt, but the stand-
ard is preponderance of the evidence rather than the ab-
sence of reasonable doubt, and I conclude and find that
the General Counsel has shown by a preponderance of
the evidence that the purchase of raincoats was a confer-
ral of a remedy in response to a grievance solicited, and
was a benefit affecting working conditions. On the fore-
going facts I find Respondent violated Section 8(a)(1) of
the Act by granting employees benefits and adjusting a
grievance in order to discourage their union activities. 29
"2 Although the complaint only alleges solicitation of grievances and a
promise to remedy, the actual adjustment was litigated and is closely re-
lated to the complaint allegations. .4ckerman .Manufacturing Company. 241
NLRB 621 (1979).
308
BIG STAR NO. 185
2. Storey and Annie McMullen had a conversation in
the store break area about a week before Christmas 1979.
The following recitation of what happened is derived
from their complementary testimony, crediting Storey
where their versions appear to conflict.3 0
McMullen asked Storey what would happen if the em-
ployees went on strike. He told her pay would stop
when they went on strike. She inquired about benefits if
a union got in. Storey explained that when you bargain
with a union nothing is guaranteed because employees
may gain some benefits and may lose some and some-
times will bargain away some benefits in exchange for a
checkoff of union dues. Storey did not specify which
benefits might be lost, but said there was a chance some
could be lost. He emphasized that Respondent did not
know what benefits she would end up with because
when Respondent and the Union sit down to bargain
they have a blank piece of paper and they bargain over
every issue and they win some and lose some. While
making this explanation he held up a blank sheet of
paper. McMullen asked Storey what would happen if
there was no agreement on certain issues. Storey replied
that in that event she had the right to strike.
Storey's remarks do not, as the complaint alleges,
threaten the loss of benefits because of employee union
activities and desires, nor do they threaten unlawful re-
taliation in the event of a strike. His statements were in
response to what appear to be unsolicited questions and I
find that the clearly articulated thrust of the paper dis-
play and accompanying statements is that all benefits are
subject to bargaining, and no violation here exists.3 '
J. The Reduction of Hours
The complaint alleges reduction of hours of Daley,
Webber, and Dorsey "and others." In the case of these
three employees it is true that their hours were reduced
in the sense that their overtime hours were reduced by
the hire of additional employees during the holiday
season. They continued to work a 40-hour week, with
two exceptions of 39.25 and 38.75 hours in the case of
Daley and two of 30.75 and 38.5 hours in the case of
Dorsey, through February 1980. Thereafter Daley had 2
short weeks of 39.50 and 25.5 hours through May 31,
1980, and Dorsey and Webber had none.
I have found that one of the lawful purposes of Re-
spondent in hiring replacement and additional employees
during November and December was to cut down on
overtime. Inasmuch as I have found the hiring of addi-
tional employees warranted by business considerations
and not unlawful, it necessarily follows that the resultant
reduction in overtime, as contemplated by Respondent
when hiring extra employees, or any incidental reduction
in regular hours was not unlawful. Accordingly, I find
30 On the basis of comparative demeanor Storey was the superior wit-
ness, and there are some discrepancies between McMullen's estimony
and direct and cross-examination as well as her prehearing affidavit.
Those portions of McMullen's testimony on this conversation not recited
herein are expressly discredited.
3' Coach and Equipment Sales Corp., 228 NLRB 440. 441 (1977): Chei
Pantry. Inc., 247 NLRB 77 (1980).
Respondent has not violated the Act by reducing hours
of employment for Daley, Webber, Dorsey,3 2 or others.
K. The Wage Increases
The complaint alleges that Respondent unlawfully in-
creased employee benefits, about January 1, 1980, by
granting wage increases in excess of those normally
given. Respondent did grant wage increases to all em-
ployees on January 5, 1980. The timing of the increases
is not in issue because Respondent regularly grants in-
creases in January and July of each year.
Respondent's payroll records show the following pat-
tern of wage increases for unit employees:
Table 1
Raises in cents p/hr
5
10
15
20
25
30
35
40
80
95
100
05
120
7/8/78 1/6/7933 7/7/7934
4
8 6
3 3
1 3
3 3
I I
10
6
1
1/5/80
2
7
3
8
2
1
The nine grocery employees on the payroll throughout
these four wage increases received the following
amounts (in cents per hour):
Table 2
7/8/78 1/6/79 7/7/79 1/5/80
Barlow
Daley
Webber
McMullen
Flemmons
Hern
Mills
Humphrey
Norwood
10 10 10 20
35 10 25 40
95 10 15 40
25 20 10 80
25 10 10 120
20 15 10 100
25 10 10 105
10 20 15 35
15 15 15 35
Table 1 shows the biggest concentration of increases at
the 10-cent level during the first three raises, with the
next most numerous raises at 15 cents. On January 5,
1980, the concentration of raises was at the 25- and 35-
cent levels.
Table 2 shows the most common amount of increase in
1978 and 1979 was 10 cents (12 of 27 total increases). Ex-
cepting Webber, whose increase of 95 cents on July 8.
3 I have found Dorsey to be a supervisor and a reduction of his hours
therefore would not be a iolation of Sec 8(a)(3) of the Act
:3 One emplolsee was reduced 10 cents on I //79
a4 One cmplosee as reduced 5 cents on 7/7/79
309
I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1978, is unexplained, none of the nine employees had re-
ceived more than 35 cents, and that only once by Daley,
before 1980.35 The size of the raises given McMullen,
Flemmons, Hern, and Mills on January 5, 1980, is un-
precedented except for the single 95-cent raise given
Webber.
Respondent's president, Herman Storey, testified that
the corporation reviews the collective performance of its
13 stores at 6-month intervals, and, based thereon, grants
wage increases every January and July. The employees
of all the stores, according to Storey, receive raises of
like amounts. He further avers that the wage increase in
January 1980 was "probably a little more than usual" be-
cause the corporation collectively, and the Tunica store
as well, had the best year ever in 1979 by virtue of its
30- to 40-percent increase in profit. Storey says he called
Cobb and the other store managers and advised them of
the amount of the January 1980 raise.
According to Storey, in addition to the regular 6-
month wage increases, both part-time and full-time em-
ployees get raises at 6-month intervals, computed from
their hiring date, until they reach the top rate. Part-time
employees reach this level after 18 months. Full-time em-
ployees reach their top rate at 30 months. Moreover, if
an employee converts from part time to full time his rate
is raised. All of these basic increases become effective in
the January or July first following the completion of a 6-
month "seniority" interval or a job change. It is there-
fore possible to actually receive a large composite wage
increase in January or July by virtue of the regular cor-
poratewide raise combined with a job change increase
and a 6-month progression raise. This possibility was
ably argued in Respondent's brief.
An employer is obliged to carry out his wage setting
practices during a union campaign in the same manner it
would have done in the absence of the Union.3 6
The General Counsel has shown that the January 5,
1980, wage increases were substantially greater than
those previously granted. With respect to McMullen,
Flemmons, Hern, and Mills the increases appear to be
grossly disproportionate, ranging from 200 percent to
400 percent greater than any previous raise they or any
other employee received, except in the single instance of
Webber on one isolated occasion. The increase to
McMullen amounts to a 20-percent increase in base
hourly wage. That to Flemmons is a 33-percent increase
in base rate. Hern got an hourly rate increase of more
than 25 percent. Mills received a 31-percent increase in
base salary.
All of these increases may possibly be justifiable, but
the burden falls on Respondent to explain them. Re-
spondent has not met that burden. Storey's testimony
merely states the general claim that the unusually large
wage increases were occasioned by an extraordinary
business year. That is possible, but Respondent has prof-
fered no specific testimonial or documentary evidence to
show how or why individual increases were arrived at.
a5 Flemmons did receive 10 cents on January 20, 1979. Webber re-
ceived 10 cents on November 11, 1978. Hern received 25 cents on June
16, 1979.
.6 McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1243
(1966).
Similarly Storey's explanation of individual increases for
seniority and job change is interesting, but no convincing
evidence of specific application of these factors to specif-
ic employees was adduced.
Considering the context of other unfair labor practices
reflecting Respondent's union animus and antiunion ac-
tivities, the granting of unusually large wage increases in
the midst of an organizational campaign, and the failure
of Respondent to rebut the General Counsel's prima facie
case, I find the size of the January 5, 1980, wage in-
creases was calculated to induce employees to abandon
union support, thus assisting Respondent to fend off
unionization, and by granting these extraordinary wage
increases Respondent violated Section 8(a)(l) of the Act
as alleged. 3 7
IV. THE REQUESTED BARGAINING ORDER
The Union attained a numerical majority in the appro-
priate unit on October 7, 1979, and still had that majority
when Respondent commenced its unfair labor practices
on or about November 6, 1979. Respondent's threats of
plant closure, even though made to only one employee,
and its posted implied threat of discharge are unfair labor
practices of a type the Board has found to be of such
gravity as to render a reliable election unlikely and to
warrant the issuance of a bargaining order. 38 Add to this
Respondent's other unfair labor practices, notably the
grant of excessive wage increases which touched the
entire work force, and the conclusion must be that the
violations of the Act in this case are sufficiently exten-
sive and of sufficient gravity that the impact of Respond-
ent's coercive conduct can reasonably be expected to
make a fair election unlikely and, therefore, the employ-
ees' signed authorization cards are a more reliable indica-
tion of their desire for representation.3 s In the absence
of a request for bargaining, I shall recommend that the
beginning of Respondent's bargaining obligation be es-
tablished as November 6, 1979, at which time it com-
menced its unfair labor practices. 40
Upon the foregoing findings of fact, and conclusions
based thereon, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for
collective bargaining:
All full-time and regular part-time employees em-
ployed at Respondent's Tunica, Mississippi, store,
including the head checker, excluding the store
manager, assistant managers, meat department em-
7 Chester Valley. Inc. 251 NLRB 563 (1980).
" General Slencil. Inc.. 195 NLRB 1109 (1972).
: L. R. B. v. Gissel Packing Co.. Inc., 395 U S. 575 (1969).
40 Chester Valley, Inc., supra.
310
BIG STAR NO. 185
ployees, guards, watchmen, and supervisors as de-
fined in the Act.
4. At all times since October 7, 1979, and continuing
to date, the Union has been the designated representative
of all the employees within said appropriate unit for pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By threatening its employees with store closure if
the Union becomes their collective-bargaining repre-
sentative, Respondent violated Section 8(a)(1) of the Act.
6. By coercively interrogating employees with respect
to their union activities and those of other employees,
Respondent violated Section 8(a)(1) of the Act.
7. By soliciting employees to report on the union ac-
tivities of other employees, Respondent violated Section
8(a)(1) of the Act.
8. By promising and granting benefits and soliciting
the presentation of grievances and adjusting such griev-
ances to discourage its employees' designation of a repre-
sentative for the purposes of collective bargaining, Re-
spondent violated Section 8(a)(1) of the Act.
9. By granting its employees excessive wage increases
on January 5, 1980, with knowledge of and for the pur-
pose of affecting the Union's organizing campaign, Re-
spondent has interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by the Act
and has committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
10. The unfair labor practices set forth above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Ii. The violations of the Act found herein interfered
with the election process, had a tendency to undermine
the Union's strength, prevented the holding of a fair
election, and warrant the issuance of a collective-bar-
gaining order.
12. Respondent did not engage in any other unfair
labor practices alleged in the complaint.
Pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 4
The Respondent, G.E.S., Inc., d/b/a Big Star No. 185,
Tunica, Mississippi, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Promising and granting benefits or soliciting the
presentation of grievances and adjusting such grievances
41 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
to discourage its employees' designation of a collective-
bargaining representative.
(b) Granting wage increases to employees for the pur-
pose of impeding or interfering with their self-organiza-
tional activities; provided, however, that nothing herein
shall be construed to require Respondent to revoke any
wage increases heretofore granted.
(c) Threatening employees with store closure if they
select the Union as their collective-bargaining representa-
tive.
(d) Interrogating employees with respect to their union
activities, or those of other employees.
(e) Interrogating employees with respect to their union
activities and sympathies or those of other employees.
(f) Soliciting employees to report on the union activi-
ties of other employees.
(g) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with United Food & Commercial Workers Local 1529,
AFL-CIO, as the exclusive representative of all employ-
ees in the following unit and embody in a signed agree-
ment any agreement reached:
All full-time and regular part-time employees em-
ployed at the Respondent's Tunica, Mississippi,
store, including the head checker, excluding the
store manager, assistant managers, meat department
employees, guards, watchmen, and supervisors as
defined in the Act.
(b) Post at its Tunica, Mississippi, facility copies of the
attached notice marked "Appendix." 42 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's au-
thorized representative, shall be posted by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the
complaint found to be without merit are hereby dis-
missed.
42 In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted b)
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor Relations Board."
311