Bucyrus Foodland North

National Labor Relations Board - Board Decisions

Jan 16, 1980

247 N.L.R.B. 284 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frederick's Foodland, Inc. d/b/a Bucyrus Foodland
North and Bucyrus Foodland South and Retail
Clerks Union Local 31 a/w United Food and
Commercial Workers International Union, AFL-
CIO.' Cases 8-CA-11640 and 8-RC-11169
January 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDAL.E
On April 12, 1979, Administrative Law Judge Phil
W. Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge, as
modified herein.
1. The Administrative Law Judge found, and we
agree, that Respondent violated the Act by various
interrogations, threats, solicitations concerning union
activity and the motivation for the union activity, and
statements of futility in helping the Union. Though he
found this conduct unlawful, the Administrative Law
Judge did not specify which section of the Act was
violated. We find that each instance of unlawful
conduct cited above is violative of Section 8(a)(1) of
the Act.
2. In addition to the above conduct, the Administra-
tive Law Judge made several factual conclusions
regarding other conduct of Respondent, appearing to
find such conduct unlawful, but without specifically so
stating. He does provide a remedy for said conduct in
his recommended Order. In order to clear up any
possible ambiguity with respect to this conduct, we
make the following findings:
(a) The Administrative Law Judge found, and we
agree for the reasons set forth in his Decision, that the
same week that the union organizational meeting was
held at employee Jane McClintock's house, Respon-
dent solicited grievances from her, interrogated her by
' The name of the Union, formerly Retail Clerks Union Local 31 a/w Retail
Clerks International Association, AFL-CIO, is hereby amended to reflect the
merger between the Retail Clerks International Union, AFL-CIO, and the
Amalgamated Meatcutters and Butcher Workmen of North America, AFL-
CIO, effective June 7, 1979.
' 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 credibility unless the
247 NLRB No. 38
asking if she had signed a union card, solicited her to
withdraw the card, and created the impression of
engaging in surveillance, as fully set forth in the
Administrative Law Judge's Decision. We find the
conduct described above to be violative of Section
8(a)(1) of the Act.
(b) The Administrative Law Judge found, and we
agree for the reasons set forth in his Decision, that
Respondent, during the hours of the election, interro-
gated employee Beulah Stump as to how she voted,
and asked employee Beal if he was with Respondent.
We find this conduct constituted coercive interroga-
tion in violation of Section 8(a)(1) of the Act.
(c) The Administrative Law Judge found, and we
agree for the reasons set forth in his Decision, that
Respondent conducted a poll of its employees con-
cerning how they were going to vote and then revealed
the results of its poll under circumstances in which
employees could reasonably be expected to hear the
results. We find that by the conduct described above
Respondent violated Section 8(a)(l) of the Act.
(d) The Administrative Law Judge found, and we
agree for the reasons set forth by him, that Respon-
dent's remark to a job applicant that "a few here ...
will be leaving" was an implied threat that Respon-
dent would rid itself of the union adherents after the
election. We find that this threat constitutes a viola-
tion of Section 8(a)(1) of the Act.
(e) The Administrative Law Judge found, and we
agree for the reasons set forth by him, that on or about
November 19, 1977, employee Matthew Shafer was
called into the office where Respondent's president,
Galleher, and Supervisor Andrews interrogated him,
advised him that they knew who was present at the
union meeting, thereby creating the impression of
surveillance, and solicited grievances from him. Fur-
ther, on several occasions after the election, Respon-
dent threatened Shafer because of his union activities.
We conclude that by the foregoing conduct Respon-
dent violated Section 8(a)(1) of the Act.
(f) The Administrative Law Judge found, and we
agree for the reasons set forth by him, that, at
meetings with employees held in late December 1977
and early January 1978, Respondent promised benefits
to its employees, at least impliedly so, by stating to
them that management had done things incorrectly in
the past and would correct those errors in the future.
We find that by these promises of benefits Respondent
violated Section 8(a)(1) of the Act.
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
While the Administrative Law Judge failed to specifically so state, it is
clear from his discussion of the status of James Delaney that he found that
Delaney is not a supervisor. We adopt this finding.
284
BUCYRUS FOODLAND NORTH AND BUCYRUS FOODLAND SOUTH
(g) The Administrative Law Judge found that,
during the week of November 20, 1977, Respondent
reduced the scheduled hours of employee McClintock
from between 32 and 36 hours to 18, the smallest
number of hours Respondent ever had scheduled for
her. The Administrative Law Judge, while not specifi-
cally stating so, appears to have found this reduction
in hours to be unlawful, inasmuch as in his recom-
mended remedy and Order he provided that McClin-
tock be made whole for such reduction. In any event,
we find that the cutback in McClintock's hours was
discriminatorily motivated. Thus, the first union
organizational meeting was held in McClintock's
home on November 14, 1977, and thereafter, as found
above, she was interrogated and informed that Re-
spondent knew of the meeting in her house and was
aware of her other union activities. Further, Respon-
dent has failed to advance any reason which fully
explains the reduction,4 and the only apparent one that
does so is her support of the Union. We find,
therefore, that by reducing McClintock's scheduled
hours because of her union activity Respondent
violated Section 8(a)(3) and (1) of the Act.
(h) The Administrative Law Judge found that
employee Shafer's hours were reduced after he ap-
peared at the representation hearing on behalf of the
Union. Prior to the hearing, he was scheduled to work
40 hours one week and 25 hours the next week with
alternate weekends off. Thereafter, without explana-
tion, his scheduled hours were reduced to 25 hours
one week and 10 hours the next week with alternate
weekends off. Respondent points out in its exceptions
that the number of hours actually worked by Shafer
increased; however, Respondent does not deny that
Shafer's scheduled hours were in fact reduced. Only
through his own efforts was Shafer able to work in
excess of his reduced scheduled hours. He accom-
plished this by making himself available to work in
place of other employees and by working overtime.
Thus, the increased hours actually worked by Shafer
was a feat accomplished in spite of Respondent's
reduction of his scheduled hours and does not negate
the fact that Shafer's hours were reduced. Further, as
found by the Administrative Law Judge, Respondent
was aware of Shafer's key role in the union campaign.
As noted above, it interrogated him about his union
activities, threatened him with reprisal because of such
activities, and on one occasion after it learned of his
union adherence expressed a desire that he quit. And
when he complained about the change in his schedule
of hours he was told by Andrews, the south store
manager, that, if he, Andrew, had hours like Shafer,
I Respondent's assertion that the week was a short week in that
Thanksgiving was an offday does not constitute an adequate explanation for
the reduction, since it fails to explain the total number of McClintock's
reduced hours.
he would get down on his knees and pray. In these
circumstances, we find, as apparently did the Admin-
istrative Law Judge,' that Respondent reduced the
scheduled hours of Shafer because of his union
activity, thereby violating Section 8(a)(3) and (1) of
the Act.
(i) The Administrative Law Judge found, and we
agree for the reasons set forth by him, that Respon-
dent granted an across-the-board wage increase to its
employees on or about December 16, 1977, in order to
influence them to vote against the Union. We find that
the aforestated increase is violative of Section 8(a)(l)
of the Act.
3. In his recommended Order, the Administrative
Law Judge provided that Respondent cease and desist
from assigning union adherents to different equipment
and refusing to provide help for them. The only
possible basis for this provision in the recommended
Order is McClintock's testimony that, in late Decem-
ber or early January 1978, she was not allowed to
work at the front register which was an easier position,
but was told by Andrews she should stay on the back
register where she could be observed better by
supervision. However, on cross-examination, McClin-
tock admitted that she worked the back register on a
regular rotating basis, that she had no preference
between the front and back registers, and that she was
unable to get a bagboy to assist with carryout orders
on only three occasions. In light of this affirmative
testimony, we find the record inadequate to support
the allegations in the complaint that Respondent
discrimatorily reassigned McClintock to a different
cash register, refused to assign her a bagboy, and,
therefore, rendered her duties more onerous and
disagreeable. Accordingly, these allegations are hereby
dismissed.
4. The Administrative Law Judge found, and we
agree, that the unfair labor practices committed by
Respondent had "the tendency to undermine majority
strength and impede the election processes." N.L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1979).
The Union's organizational campaign began in No-
vember 1977. Within a week after this meeting,
Respondent's president, Gene Galleher, had interro-
gated every individual who attended the meeting with
only one exception. All of Respondent's supervisors
frequently and repeatedly interrogated employees
regarding their union sympathies; threatened employ-
ees with discharge and disparate treatment; promised
that working conditions would improve; created the
impression of surveillance by telling employees the
names of those present at union meetings; solicited
' As in the case of McClintock, the Administrative Law Judge did not
specifically state such as a finding, but did provide in his recommended
remedy and Order that Shafer be made whole for the unlawful reduction in his
scheduled hours.
285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances by inviting employees to come to manage-
ment if they had any problems; and made statements
concerning the futility of union organization by telling
employees that the Union could not help them and
could not get better wages for them. Respondent's
employees were subjected to these unfair labor prac-
tices by Respondent's supervisors both individually
and collectively. By December 14, 1977, 26 of the 49
unit employees signed authorization cards.' Thereaf-
ter, Respondent granted an unlawful across-the-board
wage increase.
It is, therefore, apparent that Respondent reacted
swifty to the union organizing activity by embarking
upon a course of unlawful conduct designed and
calculated to erode union support. In addition to the
numerous interrogations, threats, promises of benefits,
and other unfair labor practices, including the reduc-
tion in the scheduled hours of McClintock and Shafer,
Respondent granted an unlawful wage increase to all
unit employees. This wage increase clearly demon-
strated to the employees that they did not need a
Union to receive such a benefit. Thus, the employees
could reasonably believe that they had achieved a
large measure of what they were seeking through
union representation. Tower Enterprises, Inc., d/b/a
Tower Records, 182 NLRB 382, 387 (1970). Further,
it is unlikely that the employees missed the inference
that "the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged." N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405, 409 (1964). Thus,
in agreement with the Administrative Law Judge, we
find that Respondent's unfair labor practices are
serious and pervasive in their impact-the unlawful
wage increase in particular having touched all unit
employees. Such conduct can reasonably be expected
to have a lingering effect on employees. C & G
Electric, Inc., 180 NLRB 427 (1969); National Care &
Convalescent Industries, Inc. d/b/a Elmwood Nursing
Home, 238 NLRB 346 (1978). Therefore, we find, as
did the Administrative Law Judge, that a bargaining
order, rather than another election,' would best
protect employee sentiment as indicated by the autho-
rization cards.
We note that, while Respondent's unfair labor
practices began shortly after the union campaign
began, the Union did not achieve majority status until
December 14. We shall therefore require that Respon-
· The Union informed Respondent in a letter dated November 22, 1977,
that it represented a majority of Respondent's employees and requested
Respondent to recognize it as the exclusive collective-bargaining representa-
tive of the unit employees for the purposes of collective bargaining. The letter
suggested a meeting with Respondent on November 28. 1977, at which time
the Union stated it would be prepared to prove its majority status via a card
check. The letter ended with the statement that the Union was prepared to
meet with Respondent in the near future. On November 22. 1977, the Union
filed a representation petition which noted that a request for recognition had
been made and that no reply was received. The record reveals that
dent bargain with the Union as of December 14, the
date on which the Union attained majority status and
on which Respondent's unlawful course of conduct
continued.
5. Respondent, as noted above, granted an across-
the-board wage increase on December 16. Since we
find that Respondent was obligated to bargain as of
December 14, we conclude that the granting of the
increase without bargaining violated Section 8(a)(5) as
well as Section 8(a)(1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Frederick's Foodland, Inc., d/b/a Bucyrus Foodland
North and Bucyrus Foodland South, Bucyrus, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their and
other employees' union activities, membership, senti-
ments, and reasons for supporting the Union.
(b) Promising economic and other benefits to
employees to persuade them not to support a union.
(c) Soliciting employees to withdraw their union
authorization cards.
(d) Telling employees that their union activity
would be futile.
(e) Creating the impression of surveillance of
employees' union activities.
(f) Telling employees union activity interfered with
managerial prerogatives.
(g) Threatening employees with discharges and
other reprisals for supporting or selecting a union.
(h) Polling employees regarding their preference in
a Board-conducted election and disclosing the results.
(i) Soliciting employees to quit their jobs because of
union activity.
(j) Threatening employees with disparate treatment
because of union activity.
(k) Granting across-the-board wage increases in
order to influence employees to vote against the
Union. However, nothing herein requires Respondent
to rescind wage increases previously instituted.
(1) Reducing the number of scheduled working
hours per week for union adherents.
subsequently, by December 14, 1977, 26 of the 49 unit employees signed
authorization cards, thus establishing the Union's majority status. Although
the Union's formal demand for recognition predated the attainment of its
majority status, we find the demand was continuing in nature and that the
Union was still seeking recognition and bargaining on December 14.
' Respondent's unlawful conduct was clearly objectionable and warrants
setting aside the election. In setting aside the election, however, we rely on
only unlawful conduct which occurred during the period between the filing of
the petition and the date ofthe election.
Tylor Bros., Inc.. 230 NLRB 861 (1977).
286
BUCYRUS FOODLAND NORTH AND BUCYRUS FOODLAND SOUTH
(m) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with the Union as the
exclusive bargaining representative of its employees in
the following unit:
All full-time and regular part-time employees of
the Employer, including department heads, at its
facilities located at 133 North Sandusky Street
and 713 South Sandusky Street, Bucyrus, Ohio,
but excluding the owner and store manager, all
office clerical employees, and all professional
employees, guards and supervisors, as defined in
the Act.
(n) Granting wage increases without bargaining
with the Union.
(o) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization; to form, join, or assist labor
organizations; to bargain collectively through repre-
sentatives of their own choosing; and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from
any or all such activites.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collective-
ly with the aforesaid Union as the exclusive represen-
tative of all the employees in the above-described unit
with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such understanding
in a signed agreement; provided, however, that noth-
ing herein shall be construed to require Respondent to
vary or abandon the wage rate or benefit changes
made, or to prejudice the assertion by its employees of
any rights they may have emitting therefrom.
(b) Make whole Jane McClintock and Matthew
Shafer for any loss of earnings by reason of Respon-
dent's unlawful reduction of their scheduled work
hours, in the manner set forth in "The Remedy"
portion of the Administrative Law Judge's Decision.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(d) Post at its places of business in Bucyrus, Ohio
(both stores), copies of the attached notice marked
"Appendix B."9 Copies of said notice, on forms
provided by the Regional Director for Region 8, after
being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDEREDI) that the allegations of
unlawful conduct not specifically found to be violative
herein be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the election held on
January 5, 1978, be, and it hereby is, set aside, and
that the petition in Case 9-RC-1 169, be, and it hereby
is, dismissed.
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 Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concern-
ing their and other employees' union activities,
membership, sentiments, or reasons for support-
ing the Union.
WE Witl.l NOT threaten employees with dis-
charges or other reprisals for supporting or
selecting a union.
WE WIll.1. NOT promise economic and other
benefits to employees to persuade them not to
support a union.
WE WILl. NOT solicit employees to withdraw
their union authorization cards.
WE WILt. NOT tell or inform employees that
their union activities are futile.
WE WILl. NOT create the impression of surveil-
lance of employees' union activities.
WE WILL NOT tell employees that union
activities interfere with management.
WE WILL NOT illegally poll employees regard-
ing their preference in a Board-conducted elec-
tion and disclose the results.
WE WILL NOT solicit employees to quit their
jobs because of union activity.
WE WILL NOT threaten disparate treatment
among employees because of union activity.
WE WILt. NOT grant across-the-board wage
increases in order to influence employees to vote
against the Union. However, nothing in this order
requires us to discontinue the new rates of pay
previously given to you.
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT reduce the scheduled working
hours of union adherents.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with the
Union as the exclusive bargaining representative
of the employees in the following appropriate
unit:
All full-time and regular part-time employees
employed by us, including department heads,
at our facilities located at 133 North Sandusky
street and 713 South Sandusky street, Bucyrus,
Ohio, but excluding the owner and store
manager, all office clerical employees, and all
professional employees, guards, and supervi-
sors, as defined in the Act.
WE WILL NOT grant wage increases without
bargaining with the Union.
WE WILL NOT discourage membership in the
Union, or any other labor organization, by
discriminating against employees in regard to
their hire and tenure of employment or any terms
and conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
National Labor Relations, as amended.
WE WILL recognize and bargain collectively,
upon request, with the Union as the exclusive
representative of all the employees in the bargain-
ing unit described above with respect to rates of
pay, wages, hours of employment, and other
terms and conditions of employment, and, if an
agreement is reached, embody it in a signed
contract; provided, however, that nothing herein
shall be construed to require us to vary or
abandon the wage rate or benefit changes made,
or to prejudice the assertion by employees of any
rights they may have emitting therefrom.
WE WILL make whole Jane McClintock and
Matthew Shafer for earnings lost as a result of the
reduction in their scheduled hours, with interest
thereon.
FREDERICK'S FOODLAND, INC. D/B/A
BUCYRUS FOODLAND NORTH AND
BUCYRUS FOODLAND SOUTH
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Judge: Based on
charges and amended charges filed on January 12 and
February 17, 1978, by Retail Clerks Union, Local 31 a/w
Retail Clerks International Association, AFL-CIO, herein
called the Union or the Charging Party, a complaint was
issued on February 24, 1978, against Frederick's Foodland,
Inc., herein called Respondent or the Company, alleging
violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended. Respondent filed an
answer to the complaint denying it had engaged in the
alleged matter. Both Respondent and the General Counsel
filed briefs. The transcript is amended in accordance with
the motion from the General Counsel dated October 26,
1978.
Upon the record in the case, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent is an Ohio corporation which owns and
operates two retail grocery stores, herein called the north
and south store, in BucyrLs, Ohio. Annually, in the course
and conduct of its business operations, Respondent receives
gross revenues in excess of $50,000 directly from points
located outside the State of Ohio.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that on or about December
14, 1977, a majority of the employees in the unit described
below selected the Union as their bargaining agent.' It is
further alleged that since November 23, 1977, the Union
requested Respondent to bargain, and that since November
17, 1977, Respondent has interfered with, restrained, and
coerced its employees by various and numerous illegal
threats and interrogations, making promises of benefits,
soliciting an employee to request his card back, stating that
support for the Union would be futile, creating the impres-
sion of surveillance, advising an employee that management
equated union activities to interference with managerial
perogatives, refusing to permit an employee to work in an
area where a union adherent was present, advising employ-
ees that they were not permitted to discuss the Union in the
north store, polling employees and announcing the results as
The following employees of Respondent constitute an appropriate unit for
the purposes of collective bargaining within the meaning of the Act.
All full-time and regular part-time employees of the Employer, including
department heads, at its facilities located at 133 North Sandusky Street
and 713 South Sandusky Street, Bucyrus, Ohio, but excluding the owner
and store manager, all office clerical employees, and all professional
employees, guards, and supervisors, as defined in the Act.
288
BUCYRUS FOODLAND NORTH AND BUCYRUS FOODLAND SOUTH
to their union desires, soliciting an employee to quit his job,
granting wage increases to five employees and an across-the-
board increase, reducing the hours of Matthew Shafer and
making his schedule so as to isolate Shafer from other
employees, and reassigning Jane McClintock to a different
cash register with no assistance and also reducing her hours.
It is further alleged that commencing on or about November
17, 1977, and at all times thereafter, Respondent, by the acts
described above, dissipated the Union's majority and created
an atmosphere in which a fair and free election could not
take place.
As indicated previously herein, Respondent operates two
retail food stores in Bucyrus, Ohio. These stores are about 1
mile apart. The president and principal stockholder of the
Company is Gene Galleher, who is active in the day-to-day
running of the stores.' In March 1977, the retail store
located at 713 South Sandusky Avenue (the south store) was
destroyed by fire. From that time until the middle of March
1978, the only store in operation was the remaining one
located at 133 North Sandusky (the north store). The south
store was later rebuilt at the same location and opened for
business on or about March 15, 1978.
It appears that for approximately 3 weeks after the fire, all
of the south store employees, with the exception of the six
kitchen workers, were absorbed into the north store work
force. Respondent points out that a store meeting was then
held and employees were advised that layoffs would be
necessary, but that every effort would be made to recall all
laid off personnel. During the subsequent 3-week period
approximately 25 or more employees were laid off by
seniority, with the understanding that they would be recalled
when openings occurred and that every effort would be
made to get them back to work.
The Union started its organizational campaign during
November 1977, and the first union meeting with employees
was held on November 14, 1977. The Union sent a letter
demanding recognition dated November 22, 1977. On
November 23, 1977, a representative petition was filed in
Case 8-RC- 1169, and on December 13, 1977, a representa-
tive hearing was held. On January 5, 1978, a Board election
was conducted. The Union lost the election and thereupon
filed numerous objections and charges against Respondent,
and these charges and objections are the subject and
allegations contained in the consolidated cases and com-
plaint here being considered.
The General Counsel contends that there were 49 employ-
ees in the appropriate unit on December 14, 1977-which is
the critical date. In essence, the General Counsel and the
Union take the position that the list of unit employees was
agreed upon between the parties on December 13, 1977-the
date of the representation hearing and the Stipulation for
Certification upon Consent Election.
The Company maintains and argues that at the represen-
tation hearing it took the position that all employees on
layoff should be allowed to vote inasmuch as the new south
store was almost constructed, and it was anticipated that all
laid off employees would be recalled within 2 months.
However, at the urging of the Regional Director the parties
' The following individuals occupy supervisory positions with Respondent:
Gene Galleher-owner; Larry Blubaugh-store manager, north store: and
Chet Andrews-store manager, south store. The status of Bill Wilburn is in
issue, and will be discussed later herein.
agreed upon a list of five laid off employees whom both
parties agreed should vote in the forthcoming election.
Respondent further maintains that there was no agreement
with respect to all other employees, and also contends that it
was agreed that, rather than limiting the unit of the
employees at the single store, both the north and the south
store employees would be included in the unit. It is now
Respondent's contention that the number of employees who
should be counted for the purpose of determining majority
status should include the following:
1. All employees actively working on December 14,
1977.
2. All employees on temporary layoff status and leave
of absence on December 14, 1977.
3. All employees who were hired prior to December
14, 1977, in anticipation of the opening of the south
store.
4. All employees on active military service and leave
of absence on December 14, 1977.
It is also pointed out by Respondent that the total of these
categories approximates 80 employees. Furthermore, Re-
spondent contends that Bill Judy is an eligible employee
inasmuch as he is a regular part-time employee of long
service, and that Bill Wilburn is not a supervisor as defined
by Section 2(11) of the Act.
Turning first to the status of Judy and Wilburn. The
General Counsel contends that Bill Judy was not employed
by Respondent at the time the election agreement was
executed on December 13, 1977, or at the time of the
election, and in the alternative that, even if Judy was
employed, he enjoyed a special status which precluded him
from sharing a community of interest with unit employees.
The parties stipulated that from the time of the fire in the
south store to the time of the election Judy worked only the
following hours: Pay period ending 3-13-77-24 hours; pay
period ending 3-20-77-3 hours; pay period ending 4-10-
77-7 hours; pay period ending 4-17-77-6.8 hours; pay
period ending 5-1-77-6.9 hours; and from that time until
the time of the election in January 1978 Judy did not work.
The General Counsel points out that these hours establish a
prima facie case that Judy was not on the payroll on
December 13, 1977, when the election agreement was
executed, as aforestated, on the critical date herein, Decem-
ber 14, 1977, or on the day of the election, January 5, 1978.
It is further pointed out by the General Counsel that
Respondent did not include Judy on the supplemental
agreement as a laid-off employee.] Moreover, even if Judy
was on the payroll on layoff status, counsel for the General
Counsel contends that he enjoyed a special status because of
his ownership and knowledge of the "million dollar formu-
la" in the making of bratwurst, that this formula is
extremely valuable, that only Judy knows it, and that
Respondent has an exclusive agreement with Judy providing
that Judy cannot work for anybody else or sell his formula
through other outlets.' I am in agreement with the General
Counsel, that considering Judy's special and unusual status,
'See G.C. Exh. 5.
'See Reap. Exh. 7.
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he should not be included in the unit as he lacks a
community of interest with the other unit employees.
The General Counsel contends that Bill Wilburn is a
supervisor, and thus not includable in the unit.' The credited
evidence in the record reveals that Wilburn was the assistant
manager at the south store prior to the fire. At the south
store his duties included assuming full control of the store
during the regularly scheduled absences of Store Manager
Andrews. At such times employees could request permission
from Wilburn to leave early, and Wilburn could and did
send employees home when business was slow and when too
many employees were on hand. Wilburn, like other supervi-
sors, also adhered to a higher standard of dress, and his
duties did not change when he was transferred to the north
store subsequent to the fire. Thus, there were occasions
when Wilburn was in complete charge of the store during
the regularly scheduled absences of the other supervisors. As
pointed out, this obviously occurred less frequently in the
north store because the regular rotation was now among
three supervisory personnel. Even Respondent's president,
Gene Galleher, admitted that Wilburn was alone in the store
at nights on a regular basis. It is also noted that Wilburn was
present with other supervisors during the interrogation of
employees. Based on the above, I find that Wilburn was and
is a supervisor and should not be included in the unit, but as
a supervisor his acts and statements are attributed to
Respondent.
At the time of the representation hearing on December 13,
1977, Respondent wanted to add numerous names to the
voting eligibility list, but it was agreed that only five people
had a reasonable expectancy of recall, and as a result these
five names were included in the unit and put on a
supplemental list. As this record reveals, the Company had
transferred into the north store some of the employees who
had worked in the burned-out store, and these people were
included on the eligibility list along with the five employees
who had a good expectation of recall. The parties also agreed
that it would be a two-store unit as some of the employees
working at the north store would move over to the new
south store when it was reestablished.
It would appear from this record that most of the
arguments and contentions relative to the unit made by
Respondent in the instant case were raised and disposed of
on December 13.
Attached hereto as Appendix A, as documented by the
General Counsel, is an alphabetical listing of all persons
whose name appears either on the appropriate payroll
records, the supplemental agreement, or the Excelsior list.'
[Appendix A omitted from publication.] As pointed out, the
various columns on Appendix A indicate on which of those
list the names appear, and also indicate which of the named
persons signed cards and the dates on which the cards was
signed. In the last column various comments applicable to
' Respondent contends that Wilburn was the head stock clerk at the south
store before the fire, and acted in the same category when he was transferred
to the north store after the fire. Respondent argues that after the fire Wilburn
spent all of his time performing unit work, and that, on the rare occasion
when Wilburn might have been alone in the store, he received daily and
specific instructions from management and if a unique problem arose he
called either Galleher, Andrews, or Blubaugh. Moreover, Wilburn had no
authority to hire, schedule, promote, transfer, discipline, or discharge
employees, to adjust employee grievances, or to allow employees to leave early
or schedule overtime.
different names are set forth. Appendix A contains a total of
53 names. Of those, two are admitted supervisors-specifi-
cally Andrews and Blubaugh. This leaves a total of 51 names
as potential eligible employees. Of that 51, Bill Judy has a
special status, and Bill Wilburn is a supervisor, as detailed
previously herein, so neither one is to be included in the unit.
Based on the above, there were 49 eligible employees in the
unit on December 14, 1977. Those 49 people include
everyone on the Excelsior list with the exception of Wilburn
and Judy, including Henak and Pace, whose names were
crossed off the Excelsior list because they had quit before the
election. On December 14, 1977, the Union had signed
authorization cards from 26 of those employees, thus
establishing the Union's majority status. Furthermore, after
December 14, 1977, the Union secured four additional
authorization cards, thus securing its majority status.'
Before proceeding to consider this record as to the specific
8(a)(l) allegations and testimony relative thereto, there is
another threshold question bearing on the status of James
Delaney and Edwin Ricker.
The General Counsel maintains that Delaney was an
employee of Respondent so as to render the interrogation of
him a violation of the Act. On the other hand, Respondent
maintains that Delaney is clearly a supervisor as reflected by
Delaney's own testimony. Respondent points out that, when
testifying as a witness for the General Counsel, Delaney
referred to himself as the "supervisor" of the kitchen at the
south store prior to the fire. Management argues that
Delaney instructed and gave orders and assignments to
kitchen employees, and that, if employees did not under-
stand or accept assignments, they would discuss and resolve
their complaints with him. Delaney also testified that he
would handle problems jointly with Manager Andrews, that
employees would get his approval before leaving work early,
that he would ask people to stay overtime on occasions.
Andrews testified that when Delaney worked in the south
store he made schedules, gave instructions to the girls
working in the kitchen, and had authority to recommend
discipline.
Actual existence of true supervisory power is to be
distinguished from abstract, theoretical, or rule-book au-
thority. It is well-settled that a rank-and-file employee
cannot be transformed into a supervisor merely by investing
him or her with a "title and theoretical power to perform
one or more of the enumerated functions." N.L.R.B. v.
Southern Bleachery d Print Works, 257 F.2d 235, 239 (4th
Cir. 1958), cert. denied 359 U.S. 911 (1959). What is
relevant is the actual authority possessed and not the
conclusory assertions of company officials. And while the
enumerated powers listed in Section 2(11) of the Act are to
be read in the disjunctive, that section also "states the
requirement of independence of judgment in the conjunctive
with what goes before." Poultry Enterprises, Inc. v.
' (Excelsior Underwear Inc.. 156 NLRB 1236(1966).]1 See G.C. Exhs. 5, 6, 7,
8, and 10-payroll records, the supplemental agreement, and the Excelsior
list, respectively.
' See G.C. Exhs. 2(a)-2(ee). Even assuming, arguendo, that Judy and
Wilburn are a part of the unit in that their names were included in the list for
the election, the Union still attained a majority as it had cards signed by 26 of
the 51 employees.
290
BUCYRUS FOODLAND NORTH AND BUCYRUS FOODLAND SOUTH
N.L.R.B.. 216 F.2d 798, 802 (5th Cir. 1954). Thus, the
individual must consistently display true independent judg-
ment in performing one of the functions of Section 2(11) of
the Act. The exercise of some supervisory tasks in a merely
"routine," "clerical," "perfunctory," or "sporadic" manner
does not elevate a rank-and-file employee into the superviso-
ry ranks. N.L.R.B. v. Security Guard Service, Inc., 384 F.2d
143, 146-149 (5th Cir. 1967). Nor will the existence of
independent judgment alone suffice, for "the decisive ques-
tion is whether [the individual involved has] been found to
possess authority to use [his] independent judgment with
respect to the exercise by [his] of some one or more of the
specific authorities listed in Section 2(11) of the Act as
amended." N.LR.B. v. Brown & Sharp Mfg. Co., 169 F.2d
331, 334 (Ist Cir. 1948). In short; "[sjome kinship to
management, some empathetic relationship between employ-
er and employee, must exist before the latter becomes a
supervisor for the former." N.L.R.B. v. Security Guard
Service, Inc., supra at 149.
As indicated, the evidence in this record reveals that
Delaney was a kitchen employee at the south store whose
duties included preparing food, baking, and making salad.
While Delaney testified that he was "more like the supervi-
sor of the kitchen," it is clear from his description of his
duties that he did not enjoy supervisory status as defined in
Section 2(11) of the Act. While Delaney also testified that he
gave instructions to people in the kitchen concerning the
preparation of food, I am in agreement that this is not the
kind of instruction which evidences supervisory status.
Rather, as pointed out, this is more the relationship between
an experienced employee who had spent many years prepar-
ing foods and less experienced employees. In fact, Delaney's
testimony belies the supervisory nature of his job inasmuch
as he testified that the employees did not follow his orders
on occasions. With regard to overtime, Delaney could only
request 5 or 10 minutes of overtime. Moreover, employees
would have to report being off to Andrews, and if employees
reported being off to him, he would then have to so advise
Andrews. Delaney had no role in evaluating employees or
determining their raises. Furthermore, it is evident from the
testimony of Andrews that he did not consider Delaney to be
a supervisor. The General Counsel points out that it is
inconceivable that Andrews would deny having discussed an
important issue like the union campaign with a fellow
supervisor. Moreover, argues the General Counsel, An-
drews' contention that Delaney was a supervisor, coupled
with his denial that he discussed the Union's activity with
Delaney, reflects on Andrews' credibility and demonstrates
the lengths to which Respondent's witnesses are prepared to
give less than candid testimony.
In the final analysis, this record reflects that, whatever
assistance or direction Delaney may have given to the other
employees, it was of a routine nature and did not require the
' The facts found herein are based on the record as a whole and upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N.LR.B. v. Walton Manufacturing Company d Loganville Pants
Co. 369 U.S. 404 (1962). As to those witnesses testifying in contradiction of
the findings herein, their testimony has been discredited, either as having been
in conflict with the testimony of credible witnesses or because it was in and of
itself incredible and unworthy of belief. All testimony has been reviewed and
weighed in the light of the entire record. On occasions. as this record clearly
use of any meaningful independent judgment. Moreover,
even if on a few occasions he did participate in some activity
involving a degree of supervisory authority, the Board had
held that isolated or sporadic exercise of such authority is
insufficient to establish an individual as being a supervisor.
Directors Guild of America, Inc. (Association of Motion
Picture & Television Producers, Inc.), 198 NLRB 707 (1972).
Edwin Ricker is a labor management consultant who was
hired by Respondent to do consulting work with regard to
the instant union campaign. He admits that when he spoke
to employees during the campaign he spoke on behalf of
Respondent. Based on the above it is clear that Ricker was
an agent of Respondent acting on its behalf, and therefore
Respondent is liable for any violations committed by Ricker.
Employee James Delaney credibly testified that Store
Manager Andrews visited his home sometime in November
1977, and asked him whether he had heard anything about
the union activity at the store. This interrogation of an
employee is violative of Section 8(a)(1) of the Act, and I so
find.'
Shortly after employee Timothy Deppen had signed a
union authorization card in mid-November, he was interro-
gated by Manager Andrews who asked him if he had signed
an authorization card. Assistant Manager Bill Wilburn also
interrogated Deppen concerning whether he had signed a
card and whether he had gotten the card from Matthew
Shafer. Andrews then impliedly promised Deppen an eco-
nomic benefit by stating to Deppen that he, Andrews, had
not forgotten about the raises that they would get. A few
days later, Deppen was subjected to further interrogation by
Respondent's president, Galleher, who also asked Deppen
whether he had signed a card. Galleher then inquired into
the reasons why he had signed his card and what Deppen
expected to get from the Union. On this occasion, Deppen
was also subjected to additional interrogation by Store
Manager Larry Blubaugh. Blubaugh interrogated him con-
cerning why the organizational campaign had started and
what Deppen expected to get out of it. When advised that
Deppen wanted better wages, Blubaugh then communicated
the futility of the organizational activity by stating that the
Union could not get him better wages. Furthermore, on this
occasion, Blubaugh interrogated Deppen concerning wheth-
er he had signed a card and whether Shafer had given him a
card, and then inquired into whether other people had
signed cards. Manager Blubaugh then asked what their
problems were. Andrews, who was present during this
interrogation, then invited the witness to discuss his prob-
lems directly with management. As pointed out, Respon-
dent's intention is clear when one contrasts the foregoing
invitation to cooperate with management with the threat
made by Andrews on the above occasion that if the Union
was successful and Deppen was late for work once or twice
he would be fired. All of these interrogations, threats, and
reveals, Gene Galleher was an evasive witness who attempted to hide behind a
veil of claimed failure of memory and lack of understanding. As pointed out,
Galleher's testimony should be viewed in the light of his position with
Respondent. Galleher is the owner of a small business, and, with his day-to-
day supervision of the business, is in a position to know all of the goinp-on in
his stores. In regard to the testimony of Managers Larry Blubaugh and Chet
Andrews, their testimony generally consisted of complete denials of wrong
doing but without any explanation or elaboration of the incidents or events
which were attributed to them. These kinds of denials, without further
explanation, are not worthy of credit,
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitations concerning union activity and the motivation
for the union activity are clearly violative of the Act.9
Shortly after employee Jeffrey Watts signed his authoriza-
tion card on November 16, 1977, he was called into the
backroom by Manager Larry Blubaugh. A full array of
supervisory personnel, including Blubaugh, Galleher, An-
drews, and Wilburn, was present. The supervisors, mainly
Galleher, then proceeded to interrogate Watts as to whether
he had signed a union card, why he signed a union card,
what the card meant to him, and also told him that he could
ask to get his card back. Moreover, when Watts told the
supervisors that he felt he was not being treated fairly and
that the Union could help, management then also clearly
communicated the futility of the organizational activity by
advising Watts that the Union could not really help him.
These interrogations and statements of futility in helping the
Union are, of course, clearly violative of the Act.
Jane McClintock is a longtime employee of Respondent
who works as a cashier. The original organizational meeting
was held at her house on or about November 14, 1977, and
that same week McClintock was subjected to interrogations.
She was called into the office on or about November 19,
1977, and Galleher solicited grievances from her by asking
what her "trouble was." McClintock was asked by Galleher
if she had signed a union card, and was solicited or asked if
she would withdraw her union card. Respondent then
created the impression of engaging in surveillance of union
activities by telling McClintock that they-Galleher and
Andrews-knew of the meeting at her house, that there
would be another meeting there the following Monday, that
they knew that she and another employee had gone to the
hospital to visit an employee and to discuss the Union, and
that she was passing out cards. Galleher also stated that he
had kept unions out before and would keep this Union out
even though it might cost him $2,000 to do so.
Jane McClintock also credibly testified that, during the
very hours of the election on January 5, 1978,'° she observed
and overheard Galleher interrogate employee Beulah Stump
as to whether she had voted and whether she had voted the
"right way," and he also asked employee Dave Beal if Beal
was "with them." As pointed out, Galleher also further
coerced employees by announcing to a job applicant,
overheard by McClintock on the abo-'e date, that she should
come back in a couple of weeks because there would "be a
few here that will be leaving." I am in agreement that this
was an implied threat that Respondent would rid itself of the
union adherents after the election was over. Moreover, the
extent to which Respondent inquired of its employees
concerning the manner in which the employees would vote is
further disclosed by a remark made by Andrews to Galleher,
again overheard by McClintock on January 5, that he knew
the Company had 26 votes. As indicated, this shows, along
with the foregoing specific evidence of inquiries to employ-
' The General Counsel points out and argues that the above interrogations
of Deppen with their particular emphasis on finding out who was passing
cards, coupled with Galleher's statements to Deppen that he, Galleher, did
not want Deppen working with that "son-of-a-bitch" Shafer, demonstrate that
Respondent was interested in pinpointing the person responsible for the
organizational campaign, and was prepared to take action against that person,
and that such circumstances lend support to the matter subsequently
discussed herein that Respondent's treatment of Shafer was discriminatorily
motivated.
ees, that management must have conducted a poll of its
employees concerning how they were going to vote, and then
revealed the results of their poll under circumstances where
it was possible for McClintock to overhear the results."
Matthew Shafer was an employee of Respondent, and was
also active in soliciting cards for the Union. On or about
November 19, 1977, Shafer was called into the office where
Andrews and Galleher proceeded to interrogate him. Shafer
was told by Galleher that Respondent knew who was
present at the union meeting, naming several including
Shafer, and also told Shafer that he had talked to everybody
involved except one employee. By such statements Respon-
dent clearly created the impression of surveillance. Respon-
dent also solicited grievances from Shafer by asking him if he
had any problems, and then advising him that if he did have
problems he should go to management. Galleher also
threatened Shafer by telling him that he did not want a
"punk kid" telling him how to run the store, and again
Respondent interfered with Shafer's union activities by
asking him if he was going to "keep pushing" the Union.
Immediately following the election on January 5, 1978,
Galleher told Shafer several times to save his "self-respect"
and quit, but, when Shafer refused to quit, Galleher further
pursued the conversation by asking Manager Larry Blu-
baugh whether he thought that he could treat Shafer in a fair
manner and not be prejudiced against him. Blubaugh
responded in the negative and then threatened Shafer with
disparate treatment by telling him that, if he was caught
sitting or laughing in the back room, "you're dead." On this
occasion Shafer inquired about a remark he had heard
wherein Galleher had supposedly stated that he, Shafer,
should be "castrated," and asked if the remark was true.
Galleher replied, "yeah, maybe you should sing tenor for
awhile." Shafer was further told by Galleher that, since the
campaign was over with, Respondent would expect Shafer's
production to pick up, and Galleher's further comment to
Shafer to "keep your tailgate up" was also a coercive threat.
It is alleged that, during the first 2 weeks in December
1977, Galleher and Respondent's labor consultant, Edwin
Ricker, threatened economic reprisals, and also that Ricker
promised economic and other benefits if employees refrained
from union activities.
It appears that the Company had two meetings with its
employees during the period material herein-in late De-
cember 1977 and early January 1978. Employees Deppen,
Watts, McClintock, and Shafer gave testimony as to what
transpired at these meetings with management. Most of
them were in agreement that Ricker had told them at the
first meeting that Gene Gelleher had done some "things
wrong," but in the future would try to correct such matters,
and "that things would get better." McClintock testified
that, when Galleher spoke to them at these employee
meetings, he informed them that management was preoccu-
' The Board election took place from 4 to 6 p.m. on January 5, 1978, in the
backroom at the north store.
" When McClintock overheard the above remarks as to the Company's
having 26 votes, she was at her cash register, and at the time in question slid a
wall door open between partitions when Andrews and Galleher went by her
station. The door leads to the produce room and to the store office. She
testified that Andrews and Galleher were standing right on the other side of
the door or wall when she heard the results of their poll
292
BUCYRUS FOODLAND NORTH AND BUCYRUS FOODLAND SOUTH
pied with rebuilding the south store, and because of this the
employees had been neglected, but he would try to make
working conditions better for them. As pointed out, there is
ample evidence in this record to the effect that Galleher and
Edwin Ricker told employees at one or both of the employee
meetings that management had done things incorrectly in
the past and would correct those errors in the future. While
Respondent denied having made such statements, it is
contradicted in some respects by its own campaign litera-
ture. General Counsel's Exhibit 12, a letter from Galleher to
the employees dated in December, states, "I can see many
things that need to be changed and improved and, until this
union question is resolved, nothing can be done or said."
This, coupled with the admission by Ricker that there was a
carryover of the same theme from these employee meetings
to the written communications, corroborates the testimony
of the General Counsel's witnesses. As further indicated,
additional corroboration is also provided by General Coun-
sel's Exhibit 11, dated January 10, 1978, in which Galleher
states to his employees, "As we have indicated at our
meetings we have some homework to do and we are positive
that our future actions will provide a good feeling to you
that your choice on election day was the right one." This
must be considered as an admission that Respondent had
promised, or at least implied, benefits for the better, during
the employee meetings in question here.'
It is alleged that, during the week of November 20, 1977,
Respondent discriminatorily reduced the hours of Jane
McClintock, reassigned her to a different cash register, and
refused to assign her a clerk or "bagboy," and, therefore, in
all, Respondent rendered her duties more onerous and
disagreeable.
From the record, it is obvious that Respondent knew that
McClintock was a leader in the union campaign, and this is
evidenced by Respondent's interrogation of McClintock,
supra. There is reliable testimony in this record by McClin-
tock that, shortly after the commencement of the union
campaign and during the busy Thanksgiving shopping week
in November 1977, her work or time was cut to only 18
hours. This cut resulted in the smallest number of hours in a
week that Respondent had ever scheduled for McClintock."
Furthermore, in late December 1977 or early January 1978,
McClintock was not allowed to work at the front register
which was an easier position, but was told by Andrews she
should stay on the back register where she could be observed
better by supervision. It appears that the back register was
more onerous because of the location of the parking lot,
which meant that the large orders were checked out at the
back. McClintock further stated that during this period
there were also occasions on which she had large orders, but
was not provided with someone to sack or bag such orders.
She testified that prior to the union campaign, a bagboy or
clerk had always been provided.
It is alleged that since December 1977, and continuing
thereafter, Respondent also cut the hours of Shafer and,
further, scheduled his employment in such a manner as to
isolate him from other employees. As pointed out, Respon-
dent's interrogation of employees with questions concerning
" See Raley's Inc.. 236 NLRB 971(1978).
" McClintock testified that in recent months she has averaged about 32
hours a week, but her hours would sometimes alternate between 32 hours one
whether or not Shafer had handed out cards amply displays
that Respondent was aware of Shafer's key role in the
campaign. Furthermore, Respondent's specific remarks con-
cerning Shafer's being a "young punk" and a "son-of-a-
bitch," supra. displays considerable animus against him.
Shafer, along with McClintock, attended the representation
hearing on December 13, 1977, and both also solicited the
signing of numerous authorization cards.
Shafer testified that prior to the organizational campaign
his hours at the store during the summer of 1977 would
alternate between 40 hours one week and 25 hours the next
with little variance even when he started college in Septem-
ber. He stated that after December 13, 1977 his hours were
reduced in that one week he worked only 10 hour and then
25 hours the following week. After Shafer complained to
Manager Blubaugh about his cut in hours, he was then put
back to working on Fridays, but this arrangement was only
for 2 weeks, and then after Christmas his working hours on
Fridays were again eliminated. Shafer said that he also
complained to Andrews and Galleher but that nothing was
done about it.
The General Counsel arg'Jes that, during the 1977 holiday
season and just prior to the representation election, Shafer's
schedule was reduced to a fewer number of days per week
and a fewer number of hours per day, and that the
discriminatory motivation of this change is obvious both
when its timing is considered, i.e., in the middle of the busy
holiday season, and by the response which Shafer received
when inquiring as to the reason for the change. Thus,
Andrews told Shafer that if he, Andrews, had hours like that
he would get down on his knees and say a prayer, and when
Shafer broached the subject to Respondent's president,
Galleher, he responded that they would wait until the first of
the year to see what happened to the schedule.
Shafer was a student and a part-time employee, and
admittedly could not work days while actually attending
school. Shafer also testified that he often worked in place of
other employees and worked overtime quite often. He
admitted that he was never prevented from doing this.
Manager Blubaugh, the person who prepared the schedule,
testified that Shafer's hours were never cut, and, in fact, they
were increased during the holiday schedule. Respondent
Exhibits 8(a) and (b) show that Shafer worked the weeks
ending with the following dates for the following number of
hours: 12/4 /77-27.1 hours, 12/11/77-27.7 hours,
12 /18 /77-47.7 hours, 12 /25 /77 -21.9 hours, and
12/31/77-41.3 hours.
Shafer testified that prior to mid-December he worked 25
hours one week and 20 hours the next, as aforestated.
However, as indicated above, his hours worked subsequent
to December 13, 1977, show some curtailment in hours for
the pay period ending December 25, but more importantly,
and even though he could work overtime and work for other
employees, he admittedly still only averaged just over 20
hours per week between January and April 1978-when he
was terminated. There is no reliable testimony on this record
that his school attendance affected the part-time hours he
worked before mid-December 1977 or affected the hours he
week and 36 hours the next. McClintock admitted that this Thanksgiving
week was the only week in which her hours were cut. Respondent contends
that Thanksgiving was a "short week" because Thursday was an offday.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have worked during the periods material hereto in
1978.
Shafer contended that he was somehow isolated from
another employee, but he could only testify to a vague
incident wherein Galleher attempted to split him and Robert
Sherer up "because they didn't get along." There is
insufficient evidence in this record to support this specific
allegation.
It is alleged that, during late November or early Decem-
ber 1977, Respondent granted wage increases to Eula Thiel,
Mary Russell, Debbie Kalb, Nancy Jones, and Jane McClin-
tock.
On or about November 19, 1977, Jane McClintock had a
discussion in the store with Andrews and Galleher, and
during the discussion she was asked what her trouble was.
McClintock replied that she had not received a pay raise in 2
years, and Galleher then told her that he could not believe
this.
Galleher testified that in mid-November 1977 Debbie
Kalb inquired as to the pay raise she was suppose to have
received, and in reply to her question he informed Kalb that
her inquiry would be checked out. Galleher stated that he
then mentioned this matter to Manager Andrews, and he, in
turn, contacted Respondent's accountant Dennis Germann.
Respondent does not deny that in December 1977 it
granted pay increases ranging from 5 cents to $2.25 per
hour, retroactive to March 1977, to the five employees
named above. However, Respondent contends that the wage
increases were actually granted in March 1977, but were not
implemented due to a computer error. The General Counsel
maintains that Respondent's argument in this regard is
specious, and that, even if these five employees failed to get
their raises in March due to a computer error, Respondent
granted the retroactive wage increases only after soliciting
grievances from McClintock, and learning that the failure to
secure a raise was one of the reasons for the union activity.
Thus, argues the General Counsel, Respondent solicited
grievances and then responded to the grievances by correct-
ing them, and in so doing was motivated by a desire to
discourage the union activity of its employees.
Respondent's accountant, Dennis Germann, testified that
he received an inquiry about these five employees from Chet
Andrews in November 1977, and, when he checked the
records pertaining to them, he found that these five
employees here in question should have received a pay raise
in March 1977, i.e., 2 weeks after the fire in the south store.
Germann explained that the reason these employees did not
receive the pay increase in March was due to a computer
error resulting from the destruction of the south store, i.e.,
soon after the fire all employees were transferred to the
north store, but all pay raises for that pay period were keyed
into the south store computer number, and the result was
that all pay increase entries were dropped. Since none of the
five people mentioned it, the Company remained unaware of
this mistake.
In the final analysis, employees Jane McClintock and
Debbie Kalb specifically brought this pay matter to the
attention of management, as aforestated. Moreover, McClin-
tock testified that she received her back paycheck, as
" The parties stipulated as to a 35-cent minimum wage increase which was
effective on January 1, 1978.
apparently the others did, along with a letter of explanation
from Galleher in December 1977, and also stated that she
understood why she got retroative pay back to March 1977.
When further asked if she had any doubt that her back pay
was the result of a legitimate computer error, McClintock
answered, "I don't." As also pointed out, it is noteworthy
that the General Counsel did not produce ally other witness
to support its allegations concerning this matter except
McClintock. and she concluded that it was a legitimate error
and that she and the others had the pay increase coming to
them. This allegation is hereby dismissed.
It is alleged that on or about December 16, 1977,
Respondent granted an across-the-board wage increase
without notifying and/or negotiating with the Union.
Beginning with work performed on December 12, 1977,
Respondent granted a 35-cent-per-hour across-the-board
wage increase, and the fact that this wage increase was
instituted without bargaining with the Union is clear
inasmuch as Respondent at no time bargained with the
Union."
Galleher testified that he and his two managers-An-
drews and Blubaugh-made the decision to give the across-
the-board wage increase shortly after the 1977 September
calendar quarter ended (in October), but did not announced
this decision to the employees. Respondent's accountant,
Dennis Germann, testified that his firm called te Company
and other stores they serviced to advise them that the
minimum wage would be increased on January 1., 1978,
because it wanted to get the changes okayed ahead of time-
to bring everybody to the minimum if they were under it. He
also testified that Respondent had an excellent third calen-
dar quarter. that he knew that Respondent was going to end
the year in the 50-percent tax bracket, and that he advised
Galleher in early December that anything he did insofar as
equipment buying or wages would be helpful as to his tax
situation; but German testified that he did not participate in
the decision by Respondent to grant a wage increase to all of
its employees.
Respondent argues that their early implementation of the
minimum wage increase was for legitimate business reasons,
and that the timing could not have been a factor since, had
Respondent waited until January 1, 1978, it would have been
implemented on the very eve of the election instead of
several weeks previous thereto; this probably would have
had a more significant impact if, in fact, any impact at all
was made on the employees.
First of all, Germann admitted that there were no
computer or accounting-related reasons for implementing
the raises when they did. Furthermore, while the Federal
minimum wage was scheduled to increase by 35 cents per
hour effective January 1, 1978, this did not require Respon-
dent to grant an across-the-board wage increase of 35 cents.
As pointed out, it only required Respondent to raise the
wages of its employees who were not making the minimum
wage up to the minimum wage. Moreover, Respondent had
no past practice of granting across-the-board wage raises
when minimum wage increases were made, and the fact that
Respondent did not produce any documentary evidence to
show such a past practice warrants the inference that its
294
BUCYRUS FOODLAND NORTH AND BUCYRUS FOODLAND SOUTH
records would not support any contention of such past
practice. In addition, the discriminatory nature and motiva-
tion of the wage increase is clear when one considers its
timing and the alternatives. Had Respondent granted the
wage increase effective only on January 1, 1978, it would not
have shown up in paychecks until the payroll on January 9
or 10, and this would have meant that employees would not
have received the increase in their paychecks prior to the
election on January 5. 1978. Thus, as further indicated, it is
clear why Respondent implemented the wage increase in
mid-December-it was obviously to influence employees to
vote against the Union.
The remaining issue in this case is whether a bargaining
order is warranted under the authority of V.L.R.B. v. Gissel
Packing Co., Inc.. 395 U.S. 575 (1969). As set forth
previously herein, the Union has requested recognition in an
appropriate unit in which it represented a majority of the
employees.
In the instant case Respondent committed unfair labor
practices which clearly had "the tendency to undermine
majority strength and impede the election processes."
N..L.R.B. v. Gissel Packing Co., supra. It also appears that
"the possibility of erasing the effects of past practices . . . is
slight," and thus a bargaining order, rather than another
election, would best protect employee sentiment as indicated
by the authorization cards.
As fully outlined earlier herein, employees were frequently
interrogated, threatened, promised, solicited, put under
surveillance, and subjected to numerous other illegal con-
duct, as all detailed earlier herein. In accordance therewith, I
am of the opinion that the possibility of erasing the effects of
the Company's unfair labor practices and insuring a fair
election by the use of the traditional remedy of a cease-and-
desist order is slight, and that in this case the employee
sentiment expressed through the authorization cards ob-
tained by the Union would, on balance, be better protected
by a bargaining order, and I shall therefore recommend that
such an order shall issue.'
In the final analysis, Respondent's unlawful conduct
impeded the election process, undermined the Union, and
destroyed its majority status. This, unlawful conduct can be
remedied only by an order requiring Respondent to bargain
with the Union as of December 14, 1977, the date upon
which the Union attained its majority status.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
" It has been established that violations of Sec. 8(a)(l), ifr severe enough,
warrant a bargaining order under Gisse( See the Board's recent decision in
Great A/ontic & Pacific Tea Compay. Inc.. 230 NLRB 766( 1977).
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent has unlawfully refused to
bargain collectively with the Union, I shall recommend that,
upon request, it be ordered to do so concerning rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a signed agreement.
Having also found that Respondent discriminatorily
withheld hours of work from Jane McClintock and Matthew
Shafer, I shall recommend that Respondent make them
whole for any loss of earnings they may have suffered by
reason of the discrimination against them by payment to
them of a sum of money equal to that which they would
normally have earned during the relevant periods noted
herein. All backpay provided herein shall be computed on a
quarterly basis in the manner described by the Board in F
W. Woolworth Company. 90 NLRB 289 (1950), with interest
thereon computed in the manner and amount prescribed in
Florida Steel Corporation. 231 NLRB 651 (1977).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described and detailed in
section 111, above, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the Act.
4. The unit set forth herein constitutes a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
5. On or about December 14, 1977, and at all material
times thereafter, the Union represented a majority. of
employees in the appropriate unit, and has been the
exclusive representative of said employees for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
6. Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) of the Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
295