County Market

National Labor Relations Board - Board Decisions

Jun 20, 1984

270 N.L.R.B. 1283 (N.L.R.B. 1984)

COUNTY MARKET
Prospect Foods, Inc. d/b/a County Market and
United Food Local 550R. Cases 33-CA-6552
and 33-RC-2930
20 June 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 28 December 1983 Administrative Law
Judge Richard L. Denison issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in support of the judge's decision and an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Prospect
Foods, Inc. d/b/a County Market, Danville, Illi-
nois, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
[Direction of Second Election omitted from pub-
lication.]
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings. We also find totally without merit the Respondent's allega-
tion that the judge resolved credibility conflicts in accordance with a
predisposed view of the case. There is no basis for finding that bias and
partiality existed merely because the judge resolved important factual
conflicts in favor of the General Counsel's witnesses. As the Supreme
Court stated in NVLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659
(1949), "[Tlotal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact."
In sec. II of the judge's decision, the judge found that Kirpatric asked
Milliken if she "had" anything to do with organizing and that it would be
bad news for her if she had. The record reveals that Kirpatric asked Mil-
liken if she "heard" anything to do with organizing. We find that Kirpa-
tric's comments violated Sec. 8(a)(1) of the Act. Further, in discussing
Kirpatric's "bad news" statement to Milliken in the last paragraph of sec.
1 of his decision, the judge inadvertently referred to Kirpatric, instead of
Milliken, as being threatened.
In the second paragraph of sec. 11 of his decision, the judge attributes
certain statements to Assistant Store Manager Stewart. The record indi-
cates that although Stewart was present at the meeting with employee
Prunkard, it was Store Manager Rose who questioned Prunkard about
union activity.
270 NLRB No. 193
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
This consolidated proceeding was heard on November 7
and 8, 1983, in Danville, Illinois.' The charge in Case
33-CA-6552 was filed on June 28. The complaint, issued
August 3 and amended August 31, alleges violations of
Section 8(a)(1) of the Act in that, in the context of an
organizational drive and election campaign, the Respond-
ent allegedly engaged in 18 separate counts of interfer-
ence, restraint, and coercion. These events allegedly oc-
curred both within and without the critical period be-
tween the filing of the Union's election petition on June
6 and the election, lost by the Union, on July 28, as spec-
ified in the Regional Director's Report on Objections,
Order Consolidating Cases, and Direction of Hearing,
dated August 31, which consolidated the complaint alle-
gations in Case 33-CA-6552 with the issues raised by the
Union's timely filed Objections 1, 2, and 3 in Case 33-
RC-2930 for purposes of hearing.
The Respondent's answer, as amended, denies the
commission of any unfair labor practices. All parties
were afforded full opportunity to participate in the trial.
Oral argument was waived. The briefs have been careful-
ly considered. On the entire record in the case, including
my observation of the witnesses, consideration of their
demeanor, and consideration of the briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations of fact in paragraphs 2(a) and
(b) of the complaint, as amended, admitted by the Re-
spondent's answer, as amended, and the stipulations en-
tered into by the parties at the outset of the hearing, I
find that the Respondent is, and has been at all times ma-
terial herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Among the various grocery stores owned and operat-
ed by the Respondent is the County Market located in
the Town Centre Mall in Danville, Illinois. This store
opened in March following the February closing of Re-
spondent's Holiday Square and Vermilion IGA stores.
Some of the County Market employees who testified in
this proceeding were formerly employed as either the
Holiday Square or Vermilion IGA stores. A few days
before County Market opened Patricia Prunkard, who
worked in the accounting and bookkeeping and courtesy
offices of County Market under Front End Manager
Scott Bechtel, contacted the Union and began an organi-
zational drive. She testified that, on the Friday before
the County Market store opened, Assistant Store Manag-
er Jack Stewart and Store Manager Vernon Rose talked
I All dates are in 1983 unless otherwise specified.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her. Stewart handed her an anonymous letter which
mentioned Prunkard and stated that the Union was
trying to organize the store. He asked if this were true,
and if she had contacted the Union. Prunkard replied
that it was true, and that she had. Stewart asked why,
and Prunkard replied that the employees were concerned
about the cuts in wages, hours, and benefits, and about
their seniority being taken away when they came to
County Markety from IGA. Rose said that the store
would not be able to operate with the Union, that a
union was not what it was cracked up to be, and that
Respondent had been losing money. He asked if the
Union had mentioned the concessions Eisner and A&P
had had to make. She remembered that either Rose or
Stewart also said that the owner, Garfield McDade,
would not allow it. "He just wouldn't have it."
Toward the end of May, around May 26, Prunkard
was at work in the breakroom when Head Cashier Julie
Davis told her Rose and Stewart wanted to see her in
the office. Rose began by saying since she had been very
honest with them before, he wanted to ask her if she
knew anything more about union activity or card sign-
ing. Prunkard answered, "Possibly." Then Stewart asked
why people wanted the Union. Prunkard stated that the
employees were concerned about their seniority, pay,
hours, and benefits. Stewart asked who signed, and who
passed out cards. Prunkard responded that she would not
say. Stewart said that, even though the store was doing
well, they could not offer more pay or benefits at that
time. He asked why the people did not come to him with
their problems, and Prunkard replied that they were
scared of him, and did not care for him. The conversa-
tion ended with Stewart remarking that perhaps he
should work on his attitude and try to change it.
Prunkard further testified that, about the last of May
or first of June, Rose talked to her again in the store's
courtesy office. They were alone. He asked if she had re-
ceived a 25-cent raise, and Prunkard answered she had
not. Rose told her she should have received one because
it had been recommended and approved, and to see
Bechtel about it. Accordingly, Prunkard inquired about
the promised raise on the following day. She and Bechtel
were alone. Bechtel responded that her raise had been
approved, and would appear on her next paycheck. He
said not to discuss the matter with anyone, since some
were not receiving raises, and it was a matter between
her and management. Nevertheless, Prunkard learned
from certain other employees that they had received
raises, and had also been cautioned not to discuss this
matter. Prunkard testified that in the past, at IGA, the
raises had been given haphazardly. On cross-examination
Prunkard acknowledged that she had worked for Pros-
pect Foods since February 1981, but never at a new
store before. She testified that she had never heard of
any company policy concerning employees receiving a
25-cent raise after the first 30 days of employment.
Prunkard was a calm, precise, and deliberate witness
who displayed an excellent memory. Her entire testimo-
ny conveyed the impression that she knew precisely
what she was talking about. I am persuaded that she
should be credited.
Beatrice Kerchief was hired by the Respondent in
February 1979, and worked at the Vermilion IGA store
until it closed in March. She then became employed the
next day at County Market as receiving clerk. In early
July, Manager Rose talked with her alone concerning
the upcoming NLRB election. He told her that as a sala-
ried employee who was a part of management she was
not eligible to vote. Consequently, she did not vote.
After the election was over she learned that her name
was on the eligibility list. On cross-examination she
denied the suggestion that this conversation occurred in
March or April, and again insisted that it took place as
she testified. Kerchief's brief testimony was delivered
with precision and self-assurance.
Maxine Weir has worked for Prospect siiice April
1973. She is currently deli cook at County Market under
the supervison of Deli Manager Gail Pratt. She testified
that about midmorning in early July, at home, she re-
ceived a telephone call from Pratt, who asked if she had
been approached by the Union or overheard conversa-
tions about the Union in the breakroom. The record does
not disclose whether or not Weir answered the question.
About 45 minutes later Pratt called again and asked if
she had filled out a union card. Weir responded, "No,"
and the conversation ended.
About a week and half later Pratt talked to Weir at
her work station. They were alone. Pratt said she had re-
ceived some union papers from a union employee and
turned them into the Company, and requested that Weir
give her copies of any union literature she had received.
Weir accused Pratt of violating her rights by talking to
her about the Union, and Pratt retorted that there would
not be a union in the store.
Finally, Weir testified that Pratt talked to her a final
time in mid-July in the presence of Sally Kittell, the
bakery manager. Pratt asked if Weir was the person who
had been putting all the union literature in the break-
room. Weir replied that she did not know from whom
Pratt received this information, but that she was not
doing it.
Spring Milliken first worked for Prospect Foods at the
Vermilion IGA beginning February 1978. She came to
County Market when it opened in March, and last
worked there on October 8 as a cashier. Around the end
of May she was approached by Health and Beauty Aids
Manager Kathy Kirpatric who asked if she had anything
to do with organizing the Union. When Milliken re-
sponded she had not, Kirpatric stated that it would be
bad news for her if she had.
About the second week in June, while at home, she
called Scott Bechtel, and asked why she did not get a
pay raise. Bechtel said he had not had time to evaluate
her file, and for her to come to the office later to talk
about the matter. At the store office, she again asked
why she did not receive a pay raise, and Bechtel an-
swered that the Respondent could not legally give her a
raise until the union stuff was over. He asked who told
her that raises were being given out. Milliken refused to
tell him.
Milliken further testified that during the period be-
tween July 22 and 27 the Company held a series of meet-
1284
COUNTY MARKET
ings for employees in the upstairs staff office. Each meet-
ing lasted about an hour and a half. She attended two of
these meetings, of which the last was held on July 26.
The meetings were conducted by Produce Manager Bob
Gillian. Scott Bechtel also attended, but merely passed
out literature and said little. Store Manager Rose came in
and participated near the end of the meeting. According
to Milliken, Gillian stated that if the Union got in the
senior people would get the better wages, hours, bene-
fits, store times, and vacation times. He said the Compa-
ny would negotiate from zero, that their wages would go
to the minimum wage and would work their way up to
whatever was put in the contract, and that the Company
did not have to agree to anything. Gillian used Milliken's
name in hypothetical examples of how, under union, se-
niority and bumping affected employees. After Rose
came in, he stated that if the Union came in more than
likely the store would close, because they could not
work with a union in that store. He said he did not have
to agree to anything-he would simply attend negotia-
tions and that would be it.
Lora Peat is employed at County Market under the su-
pervision of Deli Manager Gail Pratt. Peat testified that
one morning during the first week of June, while they
were alone in the women's restroom, Pratt asked if Peat
had heard anything about the Union. Peat answered that
she had heard nothing.
On another morning during the first or second week of
June, according to Peat, Gail Pratt approached her at
work and asked how she was going to vote. Pratt an-
swered that the Union's initiation fee was going to be
$50 or $100. Peat replied it was only $15. Pratt said not
to believe everything she heard. Pratt also stated that
under a union they would have to get permission from
three or four union people to take their days off.
On another occasion in mid-June, Pratt told Peat that
she was going to receive a 25-cent raise, but not to tell
anyone else. According to Peat, she knew nothing of the
raise prior to this time.
One day at the end of June, while they were working
in the bakery, Sally Kittell asked Peat if she knew where
the meetings for the Union were being held. Peat an-
swered that she did not know.
Lastly, in July, Peat attended one of the meetings the
Company held for employees. Bob Gillian spoke, but
Bechtel, Rose, and about a dozen other employees at-
tended. She remembered Gillian said, during this meet-
ing, that the reason the Kroger store had closed was be-
cause of the union, because the company had to raise
prices in order to pay their employees.
Although Peat clearly remembered only a portion of
what occurred during the July company meeting for em-
ployees, which she attended, she impressed me as being
quite positive and sincere about the events she was in
fact able to recall.
Diane Barnett was employed as a cashier and in the
courtesy office from the last of March until August 5,
under the supervision of Scott Bechtel. Around the first
of June, she learned from Bechtel that she would be re-
ceiving a 25-cent-per-hour raise. Bechtel told her in the
staff room that she had done a good job, would receive
an additional 25 cents per hour, and should not tell
anyone about the increase since everyone was not get-
ting a raise. He said if she heard anything about the
Union or that the Union was engaging in harassment of
employees she should let him know.
Barnett also attended one of the employee meetings
held by the Company shortly before the election. Bech-
tel, Gillian, and about 10 other employees were present.
Gillian spoke. He said that if the Union came in they
would have to lower the employees' wages, raise prices,
probably would have to lay some people off, and prob-
ably have to close the store. He said the Union was why
A&P and Kroger were closing.
About 2 days before the election, Barnett received in
the mail a copy of the company letter introduced into
evidence as General Counsel's Exhibit 4.
Melaine Brinkley has worked as a cashier at County
Market since March under the supervision of Bechtel.
She testified that on the morning of June 9 in the staff
room, Scott Bechtel asked if she had noticed a difference
in her paycheck. When Brinkly replied in the negative,
Bechtel stated that she was receiving a 25-cent raise. He
said for her to tell no one because some employees did
not receive a raise. Then he asked if she wanted to know
his opinion about the Union. He asked if she knew where
negotiations concerning her wages would start under the
Union. When she said she did not, he wrote a zero on a
piece of paper, showed it to her, and said, "This is what
they're going to start your wages at." Bechtel stated that
they were starting with a clean slate at County Market,
and they were going to install a 6-month merit raise
system. Then he talked about union dues and fees. He
said that the unions had a lot of fees and assessments, and
caused strikes and violence. He stated he would like for
her to vote no, and that she could ask him any questions
she wanted any time she wanted.
Brinkley also attended two of the company meetings
for employees. One was on July 26 in the staff room
along with between 9 and 12 other employees. Spring
Milliken was not present at these two meetings. She also
remembered that Gillian did most of the talking as Bech-
tel looked on, but that Rose came into the meeting at a
later time. Gillian talked about the store's history, and
how the Company gave full-time employees vacation
and insurance and made insurance available for purchase
by part-time employees. He said to vote no against the
Union to protect their job security. He stated that
Kroger had closed their store because of the Union. She
recalled that he mentioned the topic of union fees and
asssessments. He talked about strikes, violence, and re-
placements, and said that striking employees might not
regain their jobs. He said, in response to Brinkley's ques-
tion concerning former Holiday Square and Vermilion
IGA employees losing seniority, that she was lucky to be
hired by County Market after the other two stores had
closed.
On cross-examination Brinkley remembered "negotia-
tions" being mentioned at the July 26 meeting, and the
word "zero" with a line drawn beneath it having been
written on the blackboard in the meeting room. She re-
membered Gillian stating that the bargaining relationship
between the Company and the Union would start with
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zero and work up to a point. She recalled Gillian also
mentioning that in the Union there was potential for
fines and fees and the possibility of replacement during a
strike. Brinkley's testimony was very similar to that of
Milliken.
Store Manager Vernon Rose testified that, although
the store opened March 29, he first actually knew about
the existence of a union campaign when he received the
Union's formal letter demanding recognition, dated May
27. However, he admitted that he had seen the anony-
mous letter warning the Company about a union cam-
paign, and was present when Jack Stewart questioned
Prunkard about it in March before the store opened. He
also acknowledged first hearing rumors about the Union
during either the last week of March or the first week of
April.
Concerning the Company's wage increase policy and
the increases granted to employees during May and June,
Rose testified that it was company policy to dispense
wage increases based on merit. Thus, according to Rose,
at the end of the first 30 days of employment a new em-
ployee either received a 25-cent-per-hour increase or was
terminated. Thereafter employees are reviewed every 6
months. Employees who transferred to County Market
from the IGA stores which closed were considered new
employees within the meaning of this policy. He testified
that the decision to grant certain increases in the face of
an active union campaign was his alone. He stated that in
proceeding in this manner he took into consideration his
previous experience at the Richards Supermarkets,
owned by Prospect, where, during an election campaign,
the company was accused of objectionable conduct by
withholding raises. Therefore, he decided to go ahead
and give the 25-cent raise "on schedule." However, on
cross-examination, on the basis of Respondent's records,
it was pointed out to Rose that these wage increases
were granted well after either 30 to 60 days. Rose at-
tempted to explain by stating that the store needed to op-
erate for a while in order to assess the state of its busi-
ness. Thus, I find Rose's efforts to explain the wage in-
creases granted to certain employees in terms of follow-
ing "normal" company policy inconsistent with the
events as they actually occurred. This inconsistency,
coupled with the antiunion remarks made to certain em-
ployees at the time they were first informed that they
were to receive a wage increase, convinces me that the
increases were benefits granted employees for the pur-
pose of defeating the Union. As such, the granting of the
wage increases violated Section 8(a)(1) of the Act, as al-
leged in paragraph 5(i) of the complaint, and I so find.
Rose admitted telling Kerchief that as a salaried em-
ployee she was ineligible to vote in the election. Rose ex-
plained that this statement was based on his past experi-
ence that usually salaried people were not eligible to
vote. He stated that it was only later that he learned that
the Company had agreed in the stipulation for certifica-
tion upon consent election that salaried persons were in
fact eligible. However, he never bothered to tell Ker-
chief she was, in fact, eligible. Also, he claimed that his
conversation with Kerchief took place much earlier than
she testified. In testifying, Rose was frequently general,
conclusionary, and imprecise. He contradicted himself,
or else was contradicted by admitted facts on a number
of occasions. I do not credit his testimony where it con-
flicts with that of other witnesses except where specifi-
cally stated.
Rose remembered having a "general conversation"
with Prunkard in March about the Union, based on his
experience and newspaper articles about the closing of
other stores. He denied telling her McDade would not
allow a union in the store. He denied having any conver-
sation with Prunkard about why people wanted the
Union or about union cards. He agreed he talked with
Prunkard about the subject of the Company's cash flow,
but denied promising employees raises. I credit Prun-
kard's testimony and find that Rose interrogated and
threatened Prunkard as alleged in paragraphs 5(b), (c),
(d), and (e) of the complaint.
Concerning the testimony of Spring Milliken, Rose
denied stating that the store might have to close because
of a union but admitted stating that, based on his experi-
ence and newspaper releases, the Company's costs might
increase to the point where they were not able to com-
pete in the marketplace. He remembered mentioning spe-
cifically a newspaper article which said that a Kroger
store in Champaign closed because it could not compete
with other stores in the area. Rose also denied stating
that he would not negotiate with the Union, but remem-
bers saying if the Union won he would sit down and ne-
gotiate, but everything depended on being able to come
up with a contract. He denied stating that more stores
would close because of union involvement.
Although Spring Milliken was able to relate only a
portion of what occurred at the company meetings, her
account of Rose's remarks are reasonably complete. Fur-
thermore, Milliken is supported by the testimony of
others present at the meetings held for employees by the
Company. It is plain from this credited testimony and
from Rose's letter to employees, dated July 25, that Rose
intended to convey to employees the distinct message
that a successful organizational drive by the Union at
County Market would be futile, since it would not result
in a collective-bargaining agreement but would only
bring about adverse economic consequences for the em-
ployees, including loss of jobs and store closure. In this
manner the Respondent further violated Section 8(aXl)
of the Act as alleged in paragraphs 5(n), (q), and (r) of
the complaint.
Deli Manager Gail Pratt first denied having any con-
versation with Weir about union activity, but immediate-
ly thereafter agreed that she asked Weir if she signed a
card, because she was "curious." Pratt displayed virtual-
ly no independent recollection of the events which she
described with the assistance of specific leading questions
from counsel. Pursuant to one of these, she agreed that
her conversation with Wier occurred before June (and
thus outside the critical period). Pratt did not specifically
deny asking Weir for copies of union literature. She ad-
mitted she had heard a lot of talk about the Union, and
had observed employees engaged in union activity. I
credit Weir and find that the Respondent violated Sec-
tion 8(aXl1) of the Act in accordance with Weir's testi-
mony as set forth in paragraph 5(j) of the complaint.
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COUNTY MARKET
Concerning Lora Peat's testimony, Pratt admitted talk-
ing to Peat about the Union, but had no recollection
whatsoever of the conversation. All her answers were in
response to specific leading questions. Pursuant to one of
these, she set the date of the conversation prior to the
critical period. She then acknowledged telling Peat that
she received a raise and not to talk to employees about it
pursuant to her instructions from management. Then she
admitted that she did not remember when she talked to
Peat or how many times she talked to her since they
worked together all the time. I credit Peat's clealy supe-
rior memory and find that the Respondent, through
Pratt, violated Section 8(a)(l) of the Act as alleged in
paragraphs 5(i) and () of the complaint.
Jack Stewart admitted asking Prunkard about the
anonymous letter concerning her having started a union.
During the conversation, which lasted about 15 or 20
minutes, he admitted talking to her "basically" about
why she was "unhappy with her job," but denied ques-
tioning her about the Union. He also denied threatening
her that the store would close because of the Union.
Stewart acknowledged that he did say it was possible
some day County Market might not be able to operate,
because the Kroger stores had not been able to compete
under a union and had closed in Danville. Prunkard re-
membered her conversations with Stewart in much
greater detail. Stewart's more general version varies
mainly in emphasis. He did not testify at all about the
conversation with Prunkard near the end of May. Prun-
kard is credited, and I find that through Stewart Re-
spondent violated Section 8(aX)() of the Act as alleged in
paragraphs 5(b) and (d) of the complaint.
Produce Manager Bob Gillian testified that he held
small group meetings, of approximately 10 to 15 employ-
ees each, during regular work hours of the days immedi-
ately prior to the election. Gillian related his experiences
concerning "bumping" by seniority when he worked for
Kroger. He discussed negotiating contracts. He referred
to "zero" and a blank sheet of paper as a starting point
for bargaining. He also mentioned two Kroger stores
that were about to close in Champaign and an A&P that
was up for sale because of the cost of a union, and dis-
cussed job security in the context of a statement that nei-
ther the Union or the Company could guarantee job se-
curity whereas the only guarantee of a job was a well
run store. He also raised the subject of strikes, explained
that economic strikers could be replaced, and then re-
called first when there was an opening for which they
were qualified. He remembered talking to Brinkley at
one meeting about economic strikes. He denied stating
that the Company would "start from scratch" in negotia-
tions.
As discussed earlier, Brinkley, Milliken, Peat, and Bar-
nett each testified about the remarks made by Gillian and
Rose at the employee meetings they attended. Each at-
tended different meetings. However, their testimonies are
mutually corroborative. At each Gillian's remarks were
markedly similar, heavily emphasizing the futility of or-
ganization, with considerable emphasis on loss of benefits
through union "bumping" or from "zero" negotiation,
strikes, and store closure. I credit their testimonies,
which vary from Gillian's only in that Gillian clearly at-
tempted to soften the tenor of his remarks in order to
avoid the legal consequences to Respondent. Thus, Gil-
lian's conduct violated the Act as alleged in paragraphs
5(m), (o), and (p) of the complaint.
I do not find in the record any testimony that Gillian
threatened that if the Union got in Respondent would
withhold wage increases during negotiations. I shall dis-
miss that allegation.
Scott Bechtel remembered talking to Spring Milliken
about a raise. He admitted stating that he did not know
whether they legally could give raises or not, and insists
he had no "further conversation" with her. He did not
specifically deny stating that the Company could not le-
gally give raises until the "union stuff was over," and
asking who told her about the raise. He also remembered
talking to Diane Barnett, and cautioning her not to dis-
cuss her raise with anyone, since it was no one else's
business. He did not deny telling Barnett that if she
heard about the Union, or was harassed by the Union, to
let him know. Bechtel did not testify at all concerning
his conversation with Brinkley. I credit Milliken's, Brink-
ley's, and Barnett's versions and find that the Respondent
violated Section 8(a)(l) of the Act, as alleged in para-
graph 5(i) of the complaint, by linking the granting and
denial of raises to employees to their union activities as
indicated in Bechtel's conversations with Milliken and
Barnett. However, the record contains no evidence that
Bechtel told Brinkley, in their June 9 conversation, to
protect her job security by voting against the Union, as
alleged in paragraph 5(h) of the complaint. I shall dismiss
this allegation.
Bakery Manager Sally Kittell denied questioning Peat
about the location of union meetings. However, she re-
membered raising the subject of the Union with Peat by
saying that there was a lot of union activity at the store
about this time, after which Peat "volunteered" that
union meetings were being held at the Danville Shera-
ton. Kittell could not recall the date of their conversa-
tion. In view of the Respondent's other interrogations
and threats to employees, I find it highly unlikely that
Peat would volunteer such information. I credit Peat's
version, and find that the Respondent violated Section
8(aX1) of the Act, through Kittell, by questioning Peat
as alleged in paragraph 5(k) of the complaint.
Kathy Kirpatric remembered talking to Milliken about
the Union, and admitted asking her if she knew of any
union activity going on in the store, to which Milliken
allegedly replied, "If you hear of anything else let me
know." She agreed with counsel for Respondent that this
conversation occurred sometime in May (and thus out-
side the critical period). She did not deny threatening
Kirpatric that it would be "bad news" if she had any-
thing to do with union organizing. I credit Milliken's tes-
timony and find that the Respondent violated Section
8(a)(l) of the Act as alleged in paragraph 5(f) of the
complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
1287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights under Section 7 of
the Act by interrogating employees concerning their
union support, activities, sympathies, and the location of
union meetings; threatening employees with store clo-
sure, loss of jobs, and loss of hours of employment; that
Respondent would not allow a union in the store; and
that the Respondent would bargain from zero on wages
if the employees selected the Union; by telling employees
who were eligible voters that they were ineligible to
vote in the NLRB election; and by granting wage in-
creases during the election campaign for the purpose of
undermining support for the Union; the Respondent vio-
lated Section 8(a)(1) of the Act as alleged in the com-
plaint.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not violated Section 8(a)(1) of
the Act as alleged in paragraphs 5(g), (h), and (1) or in
any respects other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act, including the posting of an appropriate
notice at the County Market store in Danville, Illinois.
Since much of Respondent's unlawful conduct occurred
during the critical period between the filing of the elec-
tion petition and the election of July 28, 1983, I shall also
recommend that the election be set aside and a new elec-
tion held.2
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Prospect Foods, Inc. d/b/a County
Market, Danville, Illinois, its officers, agents, successors,
and assigns, shall
I. Cease and desist from
(a) Interrogating employees concerning their union
support, activities, sympathies, and the location of union
meetings.
(b) Threatening employees with store closure, loss of
jobs, loss of hours of employment, that Respondent
would not allow a union in the store, and that the Re-
spondent would bargain from zero on wages if the em-
ployees selected the Union.
(c) Telling employees who were eligible voters that
they were ineligible to vote in the NLRB election.
Goodyear Tire & Rubber Co., 138 NLRB 453 (1962).
s If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(d) Granting wage increases during the election cam-
paign for the purpose of undermining support for the
Union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its County Market store in Danville, Illi-
nois, copies of the attached notice marked "Appendix." 4
Copies of the notice, on forms provided by the Regional
Director for Region 33, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that those portions of
the Union's Objections 1, 2, and 3, which fall within the
critical period, as set forth in the Regional Director's
Report on Objections, Order Consolidating Cases, and
Direction of Hearing, dated August 31, be sustained, and
that the results of the election of July 28 be set aside and
a new election directed.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
4If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning their
union support, activities, sympathies, and the location of
union meetings.
WE WILL NOT threaten employees with store closure,
loss of jobs, or loss of hours of employment; nor will we
threaten employees that we will not allow a union in the
store.
WE WILL NOT threaten employees that we will bargain
from zero on wages if our employees select the Union as
their bargaining agent.
WE WILL NOT inform employees who are in fact eligi-
ble voters that they are ineligible to vote in an NLRB
election.
WE WILL NOT grant wage increases during an election
campaign for the purpose of undermining support for the
Union.
1288
COUNTY MARKET
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
All our employees are free to engage in union activi-
ties on behalf of any labor organization, or concerted ac-
tivities for the purposes of collective bargaining or other
mutual aid or protection. Our employees also are free to
refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(aX3) of
the Act.
PROSPECT FOODS, INC. D/B/A COUNTY
MARKET
1289