Gerbes Super Market., Inc.

National Labor Relations Board - Board Decisions

Oct 3, 1974

213 N.L.R.B. 803 (N.L.R.B. 1974)

GERBES SUPER MARKET, INC. 803
Gerbes Super Market , Inc. and Retail Store Employ-
ees Union Local No. 782 and Amalgamated Meat
Cutters & Butcher Workmen of North America, Lo-
cal Union 576. Cases 17-CA-5746, 17-CA-5758,
and 17-CA-5821
Administrative Law Judge's finding of an 8(a)(5) violation upon which he
predicated the Order . They would instead rely solely on the serious and
extensive 8(a)(l) and (3) violations committed by the Respondent as the basis
for such a bargaining order.
Member Jenkins dissents to the dismissal of the 8 (a)(5) finding and remedy
provided by the Administrative Law Judge and, for the reasons stated in his
concurring and dissenting opinion in Steel-Fab, Inc., supra, would adopt the
Order and notice set forth in the Administrative Law Judge ' s Decision.
October 3, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 28, 1974, Administrative Law Judge Ra-
mey Donovan 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified,
and hereby orders that the Respondent, Gerbes Super
Market, Inc., Versailles, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as modified below:
1. Insert the following as paragraph 2(f) and relet-
ter the subsequent paragraphs accordingly:
"(f) 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."
2. Insert the following after paragraph 2(g):
"We hereby dismiss all other complaint allegations
not specifically found to be sustained herein."
'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 clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record
and find no basis for reversing his findings.
2 Members Kennedy and Penello agree that a bargaining order is appropri-
ate herein as part of the remedy . However , in accordance with the views they
expressed in Steel-Fab, Inc., 212 NLRB No. 25 (1974), they do not adopt the
DECISION
RAMEY DONOVAN, Administrative Law Judge: This is a
case under Section 10(b) of the National Labor Relations
Act, herein the Act. Charges in Cases 17-CA-5746 and
17-CA-5758 were filed by the Retail Store Employees
Union, Local 783, herein the Retail Clerks, on August 10
and September 10, and October 31, 1973, respectively. The
charge in Case 17-CA-5821 was filed by Amalgamated
Meat Cutters & Butcher Workmen, Local 576, herein the
Meat Cutters, on October 30, 1973. The complaint in Case
17-CA-5921 issued on November 29, 1973, and an amend-
ed complaint on December 5, 1973. The complaints in Cases
17-CA-5746 and 17-CA-5758 issued on October 31, 1973.
For the purposes of hearing the complaints were consolidat-
ed.
In substance, the General Counsel alleges that Respon-
dent has violated Section 8(a)(1), (3), and (5) of the Act by
interrogating employees concerning union activity; threat-
ening to discontinue Respondent's profit-sharing plan if the
Union came in; promising wage increases if employees dis-
continued union activity; threatening discharge if the
Union came in; withholding previous planned wage in-
creases and other benefits because of union activities; fail-
ing and refusing to reinstate six named unfair labor practice
strikers; refusing to bargain with the Meat Cutters as the
majority representative in an appropriate unit; and refusing
to bargain with the Retail Clerks as the majority representa-
tive in an appropriate unit. Respondent's answers deny the
commission of the alleged unfair labor practices.
The case was tried in Versailles, Missouri, on February
5-7, 1974.
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Missouri corporation engaged in the op-
eration of retail stores in the State of Missouri, with a gro-
cery and variety store located in Versailles, Missouri, the
store herein involved.
In the course of its business operations, Respondent has
annual gross sales in excess of $500,000 and annually pur-
chases products valued in excess of $50,000 from outside
Missouri.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. Meat Cutters
and Retail Clerks are labor organizations within the mean-
ing of Section 2(5) of the Act.
213 NLRB No. 112
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Appropriate Units; Union Majority; Supervisory Status
Respondent operates 12 supermarkets and 1 Ben Frank-
lin store in Missouri.' The main office of Respondent is in
Tipton, Missouri. This case arises out of union activity and
activity by Respondent at the latter's Versailles, Missouri,
store.
About June 4, 1973, employee Fields, a meat cutter in the
meat department of the Versailles store, met with Wolff, a
representative of Local 576 of the Meat Cutters Union, at
a meeting in Sedalia, Missouri. Thereafter, at the end of
July, there was a meeting at a private home in Versailles. As
of July 31, 1973, all three employees in the Versailles store
meat department had signed unambiguous authorization
cards designating the Meat Cutters as their collective-bar-
gaining representative. The fourth person in the meat de-
partment is "Meat Manager" Morrison. The General
Counsel and the Unions contend that Morrison is a supervi-
sor as defined by the Act and should be excluded from the
meat department bargaining unit . Respondent contends
that Morrison is not a supervisor and should be included in
the bargaining unit.
By letter of August 6, 1973, the Meat Cutters wrote to
Fehrenbacher, president of Respondent. The letter enclosed
copies of the authorization cards aforementioned and
claimed that the Union represented a majority of the Ver-
sailles meat department employees. Recognition of the
Union was demanded in the following unit:
All regular full-time and part-time employees in the
Company's meat department located in the store at
Versailles, Missouri. Exclude: All food clerks, hard-
ware clerks, office and clerical, casual employees,
guards and supervisors within the meaning of the Na-
tional Labor Relations Act.
Collective bargaining was requested.
Respondent's attorney, Haynes, by letter of August 13,
replied to the above letter. The reply asserted that the Em-
ployer "has a good faith doubt that your union represents
a majority in an appropriate unit" and suggested that the
Union use the procedures of the Board.
On August 7 and 9, 1973, Reeds, business agent of the
Retail Clerks Union, Local 782, held two meetings with
Versailles store employees at Versailles. At the second meet-
ing held in a private room of a Versailles restaurant, attend-
ed by approximately 20 employees of the store, Reeds
passed out unambiguous Retail Clerks union authorization
cards to those present at the meeting. During the meetin
cards were signed and passed back or collected by Reeds.
By letter of August 10, 1973, Reeds wrote to Fehrenbach-
er stating that a majority of the Versailles store employees
had designated the Retail Clerks as their collective-bargain-
ing representative. The letter named 18 employees that had
authorized the Union "to inform you that they have given
representative authority to this Local union." Request for
1 The Ben Franklin store is a variety or "5-and- l0-cent" store.
2 The room was approximately 40 by 45 feet in size.
recognition and bargaining was made and an offer to sub-
mit proof of majority representation was made. The unit
was described as all employees, excluding meat department
employees, store manager, guards, and all other supervisors
as defined in the National Labor Relations Act.
Respondent's attorney, Haynes, answered the above by
letter of August 14. The response was the same as that made
to the earlier Meat Cutters' letter, i.e., assertion of good-
faith doubt of majority in appropriate unit and suggestion
that Board procedures be used.
The General Counsel introduced into evidence 21 signed
Retail Clerks Union authorization cards, of which one is a
duplication; employee Lamm signed two cards on different
dates. Of the remaining 20 cards, all are dated August 9,
1973, except 3 which are dated, respectively, August 8, 10,
and 13, 1973. Eighteen of the card signers also participated
with Reeds in preparing an August 22, 1973, letter to Feh-
renbacher which they signed individually? Reeds testified
that the employees signed the letter in his presence. The
letter stated, inter alia, that the undersigned regretted the
Company's failure to recognize the Union and affirmed that
We authorized our union representatives to submit our
names to you via registered letter when the request for
recognition was made to you.
The parties stipulated that as of August 10, 1973, there
were 29 store employees at the Versailles store, excluding
meat department employees, office clerical employees,
guards, and supervisors as defined in the Act.4
I find that at least 18 store employees, in Respondent's
Versailles store, excluding meat department and office cleri-
cal employees, and guards and supervisors, have designated
Retail Clerks as their collective-bargaining agent and that
since August 10, 1973, and continuing thereafter, Retail
Clerks has demanded recognition and bargaining from Re-
spondent as the representative of the store employees, with
the above exclusions, and that Respondent has refused rec-
ognition and bargaining. I also find that in the aforemen-
tioned period Retail Clerks has represented a majority of
the employees in an appropriate unit, which is all Versailles
store employees, excluding meat department employees, of-
fice clerical employees, guards and supervisors as defined in
the Act.
The Meat Cutters, since July 31, 1973, has been designat-
ed the representative of three employees in an appropriate
unit of employees, which is all regular full-time and part-
time employees in the meat department of Respondent's
Versailles store, excluding all food clerks, hardware clerks,
office clerical employees, casual employees, guards and su-
pervisors as defined in the Act. Since I find that there are
three employees in the above unit, I also find that the Meat
Cutters represents a majority in an appropriate unit. Re-
spondent has refused to recognize the Meat Cutters as the
exclusive bargaining agent of the above-described unit since
August 13, 1973.
3 These individual signatures, in my opinion, are the same signatures that
sprat on the corresponding authorization cards in evidence.
At the hearing , Respondent 's counsel stated that he did not object to the
authenticity of the signatures on the cards but reserved "the right to object
to the validity of the cards for purposes of recognition."
GERBES SUPER MARKET, INC. 805
Respondent contends that a single-store unit is not an
appropriate unit and, by introducing evidence regarding the
centralized administration of all 12 stores, Respondent ar-
gues that only a 12-store unit is an appropriate unit.5
This basic contention was considered and rejected by the
Board in a 1969 decision.6 In that case it was held that a unit
of all full-time and regular part-time meat department em-
ployees at Respondent's Columbia, Missouri, store, exclud-
ing all other employees, office clericals and supervisors, was
an appropriate unit. The Retail Clerks, the other union in
the case, in that case sought a unit of all store employees
excluding the meat and hardware department employees.
The Board, in effect, held that such a unit at the Columbia
store was appropriate but that the hardware employees be-
longed in the unit together with the other nonmeat depart-
ment store employees. In its decision the Board stated,
For reasons set forth by the Trial Examiner in finding
the meat department at the Columbia store an appro-
priate unit, we disagree with Respondent's additional
contention that only a unit of its 10 stores is appropri-
ate. See Haag Drug Company, Inc., 169 NLRB 877.
[Evidently at that time Respondent had 10 stores and
subsequently added two additional stores]."
The Board, at another point in the decision, referred to the
appropriate grocery unit at the Columbia store.
There is no union that is contending that a multistore unit
is appropriate, and a single store unit of the meat depart-
ment employees at the Columbia store has been in existence
and covered by a contract between Respondent and the
Meat Cutters Union for several years.7
The fact, as shown by Respondent in the instant case, that
attempts have been or are being made to organize other
stores in Respondent's chain is not determinative of the
question whether single-store units or a multistore unit is an
appropriate unit. There is no basis for asserting that if a
single-store unit of a chain is appropriate that a union may
not organize or attempt to organize and represent individu-
ally more than one store in the chain except at its peril, and
at the peril of proving the inappropriateness of single-store
3 A supervisor named Gaschler conducts a training course for checkers and
carryout employees at the main office. Such personnel are a relatively small
percentage of a store's complement and no other personnel are thus centrally
trained. Presumably most new personnel receive their training and instruc-
tion in the store where they are employed and receive it from the store
manager or the meat manager, depending on where they work.
Respondent introduced evidence showing transfer of employees between
its stores . Unquestionably there are transfers but the 1973 figures shown by
Respondent are admittedly neither normal nor typical. President Fehren-
bacher testified that the list of 1973 transfers was not representative of prior
years and that the transfers shown were "a lot more than prior years." This
was because the Company in 1973 was cutting back "on big ticket items and
general merchandise " and thus had too many people in general merchandise
whom it tried to take care of by transfer. Also, in 1973, the Company closed
its bakery in one area and took care of the bakery employees by transfers
rather than by terminations.
6 Gerbes Super Markets, Inc., and Amalgamated Meat Cutters, Local 576 and
Retail Store Employees Union, Local 655, 176 NLRB 11, enfd . N.L.R.B. v.
Gerbes Super Markets, Inc., 436 F.2d 19 (C.A. 8, 1971).
7 Although a nonmeat department unit confined to the employees at the
Respondent 's Columbia store was held to be appropriate , the Board found
in the above decision that the Retail Clerks did not represent a majority in
that unit.
units.' The Act's interdiction is limited to the proposition
that extent of organization shall not be the determining
factor as to appropriate unit.
While it is true that Respondent, like many retail store
chains, exercises a high degree of centralized administrative
control over the individual stores, I am not persuaded that
the day-to-day work and problems of employees in the
Versailles store are not handled by supervisors in that store.
At the hearing and in its brief Respondent contends that
the Versailles store, and apparently every other individual
store in the chain , is supervised only by Vice President
Hayes, in charge of operations, and by Market Supervisor
Scholtz, who work out of Respondent's main office in Tip-
ton. Respondent asserts that the local store manager at
Versailles, Cable, who wears a badge reading " store manag-
er," bears the title, "store manager," bestowed by Respon-
dent, and is held out to employees and to customers as
"store manager" and as the highest ranking person in the
store complement, is not a supervisor. From the assertion by
Respondent that the store manager is not a supervisor, it
follows that Respondent also contends, as it does, that no
lower ranking person in the store is a supervisor and that the
Versailles store and the other 11 stores function without
local supervision and are supervised entirely by Hayes and
Scholtz working out of the Company's main office.1°
While Hayes and Scholtz spend about 80 percent of their
time out of the main office and on the road visiting the
stores, their supervision, in my opinion, and the supervision
exercised by President Fehrenbacher, is the supervision ex-
ercised by higher management and not the essential local
supervision necessary in Versailles and in the other stores on
an hour-by-hour, day-to-day basis in dealing with local em-
ployees, customers, and circumstances as they arise. I t
The evidence in the instant case persuades me that both
the store manager at the Versailles store, Cable, and the
meat manager at the store, Morrison, are supervisors within
the meaning of the Act.
The store manager is the highest ranking representative
of the employer in the store and he is in charge of its day-to-
day operation. He responsibly directs employees regarding
their work and in doing so he exercises independent judg-
ment. The fact that basic policies are determined in
Respondent's central office and that Cable as store manager
is not completely autonomous and has limitations on his
authority does not alter his exercise of the power to direct
the operation of the store and of its employees on a day-to-
day basis.
9 Cf. Equitable Life Insurance Company and Insurance Workers Internation-
al Union, 138 NLRB 529 (1962); enfd . N.L.R.B. v. Equitable Life Insurance
Company, 395 F.2d 750 (C.A. 6, 1968).
9 Haag Drug Company, Inc., supra.
10 Respondent states that "the store manager's duties are purely adminis-
trative in nature" and do not qualify him as a supervisor within the meaning
of Sec . 2(l 1) of the Act.
11 The 12 stores are located at various distances from the main office and
from each other. One store , for instance, is approximately 85 miles from
Tipton , and others may be 40, 50, or less miles away. The complements of
employees in the stores vary but Versailles , which is not one of Respondent's
larger stores, has over 30 employees . It is apparent that in such circumstances
and under geographical and physical facts, Hayes and Scholtz could not
exercise day.to-day supervision in each store . Hayes, for instance , in testify-
ing about the Columbia store , one of Respondent's largest , testified that in
the course of his duties he visited the store approximately twice a month.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morrison, meat manager at the Versailles store, had pre-
viously held the same position in Respondent's Columbia
store. In Gerbes Super Markets, Inc., supra., the Trial Exam-
iner and the Board, and ultimately the court, held that
Phillippe, a predecessor of Morrison as meat department
manager at Columbia, was a supervisor, and that Respon-
dent was responsible for the meat department manager's
illegal antiunion activities.12
As furnished and directed by Respondent, Morrison, at
the Versailles store, wears a badge bearing his name and the
title "meat manager." He has been with the Company for
I I years. For about 1 1/2 years he was meat manager at the
Columbia store and since February 1972 has been meat
manager at Versailles.
According to store manager Cable, at the time that Mor-
rison came to the store as meat manager, Cable spoke to
Morrison about labor costs in the store. He asked Morrison
for suggestions and ideas about holding down labor costs in
the store so that the store operation would be profitable.
Subsequently, after looking into the situation in the meat
department and after discussion with the meat department
employees, Morrison did suggest that when business was
slow on Saturdays he might allow one or more of his meat
department employees to leave early.13 He also proferred
the idea of allowing meat department employees to have
Saturday as a day off on a rotating basis. Both of these ideas
were placed in operation although the "Saturday off" idea
did not go into effect until a new store manager, Blomberg,
succeeded Cable about the middle of September 1973. As
described by Morrison, Blomberg thought that Morrison's
idea of giving meat department employees a Saturday off
once a month on a rotating basis was "a good idea" and
Blomberg told Morrison "that he [Blomberg] was even
going to work out his [Blomberg's] employees' schedule that
way."
It is apparent from the foregoing that the store manager,
whose position caused him to be concerned about such
things as labor costs and profitability, consulted and treated
with Morrison as a fellow management representative spe-
cializing in and being cognizant of the meat department
labor costs and operation. Interestingly enough, Blomberg,
in saying that he would institute Morrison's idea of rotating
Saturdays off for meat department employees for
Blomberg's "own employees," appears to recognize the
meat department as Morrison's domain and the rest of the
store and its employees as Blomberg's "own employees,"
although Blomberg, as store manager, was the head of the
entire store.14 And it was Morrison, according to the degree
of business and activity in the meat department, who would
select and tell an individual meat department employee that
12 In the cited case Respondent conceded that its store manager was a
supervisor but denied that either the assistant store manager or the meat
department manager were supervisors . The Board and the Trial Examiner
and, as enforced by the court of appeals , found that the assistant store
manager and the meat department manager were also supervisors within the
meaning of the Act.
13 Since the employees were hourly paid, the store would save money if the
employee decided to accept Morrison 's permission to leave early.
1 Fields, a meat department employee , testified that one day the store
manager came over to the meat department and asked Fields, "where's the
boss at?" Fields replied, "Well, I thought you were boss ." The manager said,
"No, I mean the meat boss [Morrison]."
he or she could leave early on a Saturday if he or she wished.
Every employee in the meat department testified that
Morrison was the meat department "boss." This in itself is
not determinative of Morrison's status but the record is
clear that Morrison was the person of authority who was in
the meat department exclusively and on a consistent basis.
The store manager, although he was supervisor of the entire
store, including the meat department, was infrequently in
the meat department and was fully occupied with general
managerial duties over the store and with the direct supervi-
sion of the nonmeat departments where at least 90 percent
of the store's employees were performing their work.15
Fields is a skilled and qualified meat cutter in the meat
department. He testified that when he comes to work in the
morning, Morrison has ready a list of items that he wants
Fields to cut. On some occasions, however, Morrison may
give instructions to Fields by word of mouth. The foregoing
procedure is repeated during the course of the day accord-
ing to circumstances or, as Fields stated, in describing the
start of his workday, aforedescribed, "and it goes through
the day like that."
Meat is secured from outside suppliers that have been
designated by the central office. Morrison contacts these
suppliers and orders from them the type and amount of
meat needed in the meat department. If Morrison is on
vacation or away from the store, he writes out in advance
an order for fresh meat during the period of his absence.
Thereafter, Fields will telephone the order to the supplier at
the appropriate time or will read the items to a supplier's
salesman . On occasions when Fields has asked to be off
work for a day or half a day, he has made his request to
Morrison and the latter has given him permission. Although
substantially all the retail meat prices of items sold by the
meat department are set forth on lists prepared in the cen-
tral office, there are certain items on which the store's meat
department must compute a price. Morrison ordinarily
makes these computations and, in his absence, the task is
usually performed by Fields who has been instructed by
Morrison as to the formula to be used in figuring the correct
price. Occasionally, on fresh meat, Morrison will set a price
higher than shown on the central office price sheet. Other
employees, such as Dorothy McClennan, the meat wrapper,
who places prices on the meat as she wraps it for display and
sale, are governed entirely by the price sheet except when
Morrison, as aforementioned, may occasionally determine
a different price or when the price must be computed ac-
cording to a formula.
Morrison takes care of the invoices and all paper work of
the meat department. Morrison, who at one time had been
meat manager at the Columbia store, testified that at the
Versailles store he probably has even slightly more meat
department paper work to take care of than was the case at
Columbia. Mail addressed to the meat department is carried
by the store manager, unopened, to Morrison and the latter
15 Hayes, as we have seen , testified that he visited a specific store , Colum-
bia, one of Respondent 's larger stores and presumably important for that
reason, approximately twice a month. Hayes testified that he would, on these
occasions , go back in the meat department for "a few minutes" and observe
how the meat department manager was performing his duties . Morrison
testified that supervisor Scholtz, who worked out of the Company's main
office, sometimes visited the Versailles store once a week but that on other
occasions there might be "a couple of weeks in between" such visits.
GERBES SUPER MARKET, INC.
opens and handles it as part of the paper work of his depart-
ment. The department's employees usually take breaks at
the same time but, on occasion, Morrison, in his judgment,
tells an employee to take a break at this or that time rather
than at some other time. Morrison directs employees in the
department in the performance of their work and may as-
sign an employee to perform one task rather than another
at a particular time. '
Comstock was hired for the Versailles meat department
in March 1973. He had secured an employment application
form at the store and gave it to store manager Cable after
filling it out. Early in the week, Tuesday, Cable telephoned
Comstock and told him to come in on Thursday, saying that
Wednesday was Morrison's day off, which was the fact.
Accordingly, Comstock came to the store on Thursday and
Cable introduced Comstock to Morrison, stating that this
was Mr. Morrison, the meat manager. Both Cable and Mor-
rison together spoke to Comstock telling him about the job
and in effect interviewing and appraising Comstock. Cable
testified that he concluded that Morrison was satisfied
about Comstock as to the latter's appearance, demeanor,
and so forth. After Morrison returned to the meat depart-
ment following the Comstock interview, Cable told the lat-
ter to report for work in the meat department on Monday.
In this connection Cable's testimony indicates that not only
Morrison's first hand impression of Comstock was impor-
tant but that Morrison would have the responsibility of
judging Comstock's actual work ability once Comstock was
employed. Thus, according to Cable, at the initial interview,
Morrison "wouldn't know anything about whether he
[Comstock] would be capable of doing the work that we
were hiring him for until he had worked, but, as far as the
personal introduction to him [Comstock, at the interview],
he [Morrison] was satisfied."17
Comstock was used for general work in the meat depart-
ment . Morrison instructed him how to clean the machines
in the department and about the general cleaning work that
was part of his duties in the meat department. Morrison also
told him that on occasion part of his duties would include
wrapping meat. Two or three months after he started, Com-
stock performed some meat wrapping after instruction from
the meat wrapper, McClennan. Morrison told Comstock
what to do during the course of the day, whether to burn
boxes, clean this, or do that. He would also tell Comstock
when to report for work on a Saturday, e.g., 8 a.m. or 10
a.m., and so forth. At the time of the hearing, Comstock's
rate was $1.80 per hour. Morrison was a working supervisor
and spent a substantial amount of time cutting meat; he was
hourly paid but at a substantially higher rate, $5.20 per
hour, than his subordinates. Morrison was guaranteed 45
hours per week and this entitled him to overtime pay at time
and a half. No other employees in the department had any
16 An employee such as McClennan, who has been in the department for
4 years as a meat wrapper , performs a routine type of work and requires little
direction , but Morrison is still supervisor and corrects her if, for instance, she
has placed an incorrect date on the meat packages.
17 At another point, Cable testified that with respect to working conditions
in the meat department he would discuss these matters with Morrison and
would discuss with him problems regarding vacations in the department, and
"how people were doing their work" in the department, and that he relied
on Morrison to a great extent regarding the meat department.
807
similar guarantee.
In contesting Morrison's supervisory status, Respondent
points to the fact that after the Meat Cutters' Union orga-
nized the meat department at the Columbia store and nego-
tiated a contract with the Company, Morrison, who had
been meat manager at the store just prior to the contract,
was included in the contract as "Head Meat Cutter" al-
though his duties had not changed.18 Morrison's work as
meat manager at Versailles, Morrison states, is the same as
what he did at Columbia although he may do somewhat
more paperwork at Versailles.
In the Gerbes case at Columbia, which I have previously
cited herein, the Board and the Court held that the then
meat manager was a supervisor. Respondent had contended
that the meat manager was not a supervisor. Thereafter,
evidently, the Union and the Company agreed to include
the head meat cutter, formerly the meat manager, in the
contract. Inclusion or exclusion of a particular job or person
in a contract by private parties is not dispositive of whether
a job and a person in the job is or is not a supervisor within
the meaning of the law. In a number of craft unions, for
instance building construction and printing, foremen who
are supervisors are union members and are included in the
contracts. But, if a case arises before the Board and if the
status of a particular foreman is in issue, it is decided on the
basis of whether or not he possesses the indicia of a supervi-
sor within the meaning of the Act, and contract inclusion
is not determinative and may, in fact, be irrelevant. In the
Columbia situation, moreover, as we have seen, it has been
found that the meat manager, who at the time was Phillippe,
was a supervisor and subsequent contract inclusion or
change of title are not determinative.
Another aspect adverted to regarding Morrison at Ver-
sailles is that in early June 1973 employee Fields, at the
preorganizational stage, had invited Morrison as well as
others in the meat department to meet with a Meat Cutters
Union representative in Sedalia. Fields credibly testified
that the reason for his invitation to Morrison was because,
in April 1973, Morrison had visited some of his friends who
were still working in the Columbia meat department. When
Morrison returned, he told Fields that the fourth man in
rank in the Columbia meat department was making more
money under the union contract at Columbia than Morri-
son was making as meat manager at Versailles. Fields con-
cluded that Morrison was therefore disgruntled over the
situation and, evidently, on the theory that Morrison might
be well disposed to union organization at Versailles, Fields
invited him to meet the union representative. From the
standpoint of a prounion employee it is certainly better to
have a supervisor on the union side rather than as a hostile
antiunion force. In any event, Morrison declined the invita-
tion.
Respondent raises additional contentions regarding the
units and the obtaining of the authorization cards from the
'a The contract states:
The "Head Meat Cutter" shall be a qualified journeyman meat cutter.
He shall be considered the employee responsible for the operation of the
market and under the direct supervision of the store manager. He shall
in the performance of his work direct the movements and operations of
the less skilled employees in the meat department.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Respondent refers to certain EOC high school
students who are not excluded from the units sought by the
two unions and Respondent asserts that such employees are
temporary or casual employees who should be excluded.19
The most specific evidence in the record regarding the
nature of the employment of these student employees who
work while attending school is furnished by Comstock, an
employee in the meat department and previously referred
to.
In my opinion, the evidence reveals that Comstock is a
regular part-time employee. During the school year he
works 33 to 34 hours per week in the meat department.
During the summer he works 40 hours per week. Whether
Comstock will pursue a career in Respondent's store as he
receives raises and gains experience is obviously not known.
Nor is it known how long a nonstudent young man or
woman hired in the store as a full-time employee or as a
regular part-time employee will remain in Respondent's em-
ploy. The record also reveals that during the August 1973
strike Respondent replaced a full-time checker or cashier,
who worked 40 hours per week, with two EOC employees,
one of whom worked 4 hours in the morning and the other
worked 4 hours in the afternoon, for a total of 20 hours a
week each.20 The ability and the regularity of employment
of these two EOC checkers was such that Respondent con-
tinued to employ them after the strike and refused to reem-
ploy the full-time checker, Merriott. Quite evidently
Respondent viewed these EOC checkers as regular part-
time employees on whom it placed the same reliance for
conducting its business as non-EOC employees.
While the record reveals that the store employs regular
part-time employees, the Company refers to its regular part-
time EOC employees as class 5 and uses the designation
class 2 to refer to nonstudent regular part-timers. I do not
view such a distinction as dispositive of the unit issue al-
though the Company is obviously free to use designations
or appellations of its choice. The Company does make a
distinction based on age as to employee eligibility for parti-
cipation in its profit-sharing plan. Without going into the
validity of a distinction based on age, such a distinction
could affect both EOC and non-EOC part-timers. Hayes
testified that an employee who was at least 20 years old and
who averaged 20 hours per week was covered by the profit-
sharing plan. Presumably a 19-year-old nonstudent regular
part-time employee would be ineligible and a 20-year-old
veteran or other older student would be eligible." The fact
that Comstock, an EOC, started at $1.65 per hour and then
was increased to $1.80 is of little help. In the absence of
evidence, it is not unreasonable to assume that non-EOC
young men and women and older persons also started their
careers at modest rates. Other than skilled workers, such as
meat cutters, the average grocery clerk and similar person-
nel in the area were also probably hired at modest rates. 22
19 In its brief Respondent states that there were three EOC employees at
the Versailles store at the time recognition was requested.
20 Variations in schedules were not unusual even for the regular full-time
checkers, all of whom had different hours, e .g., some reported at 8, some at
9, or 10, and so forth.
21 The Company, according to Fehrenbacher, has a hospitalization plan
for all full-time employees. This plan apparently does not apply to regular
part-time employees whether EOC or not.
In any event, as regular part-time employees, the EOC em-
ployees have a community of interest regarding wages,
hours, and working conditions with other regular part-time
employees and with full-time employees.
Regarding Respondent's contention that the Unions of-
fered improper or illegal financial inducement to employees
in securing signed authorization cards, the pertinent evi-
dence is as follows:
The Retail Clerks representative, Reeds, told employees
that it was the Union's uniform policy that because unorga-
nized employees did not enjoy the same economic benefits
as organized employees, the initiation fee was $10 for the
Retail Clerks Union and that fee applied to all, and would
remain in effect for 30 days after a contract was signed with
the employer, if in fact the Union was able to achieve a
signed contract; but after that, the initiation fee would be
$60 which was the normal union initiation fee.
The Meat Cutters representative, Wolff, told the meat
department employees that the initiation fee for meat cut-
ters was $5 and that this fee would apply at any time up to
30 days after a contract had been signed between the Union
and the Employer; but, after the 30-day period, aforemen-
tioned, the initiation fee would be $150 for meat cutters and
apprentices and $75 for meat cutters.
Respondent relies on the N.L.R.B. v. Savair Manufactur-
ing Co. case 23 as support for its contention that the cards
signed pursuant to the foregoing inducements are invalid. I
do not agree that the doctrine enunciated in Savair em-
braces the factual situation in the instant case . In Savair, the
employees were told that there would be no initiation fee for
those who signed authorizations before the election. The
vice in the situation, as viewed by the Court, was that the
union was buying "endorsements and paint[ing] a false por-
trait of employee support during its election campaign,"
and thus there was a useful campaign tool in the hands of
the union to enable it "to convince other employees to vote
for the Union"; moreover, some employees who had been
thus induced to sign authorization cards would feel obligat-
ed to vote for the union; and, finally, the authorizations,
which the union had in effect bought, could be used to
secure recognition from the Employer in a Gissel situation.24
As I view the facts in the instant case, no employee, who
was not genuinely interested in supporting a union and in
authorizing a union to represent himself or herself for pur-
poses of collective bargaining, was offered any improper
financial inducement to sign an authorization card in July
and August 1973, when the instant cards were signed.
At the time the cards were signed it was clear that the
union effort was still at the organizational stage and there
was nothing to indicate that a signed contract between the
Unions and the Company was imminent or indeed that such
a contract was inevitable. In any event, the same low initia-
tion fee that was available in July and August would still be
available up to 30 days after the signing of a contract with
the Company, and any employee could thus wait and see
whether the contract, in his opinion, by reason of its success
or failure to provide substantial wage increases and other
benefits, merited his support of the Union. If, after the
22 Amanda Allison, a full-time employee, had been hired at $1.60 per hour.
23 414 U.S. 270 (1973).
24 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969).
GERBES SUPER MARKET, INC. 809
union organizing effort, there was to be an election, no
employee would have had any financial inducement in the
form of low initiation fees to either sign a card or to vote
for the Union since the same low initiation fee would be
available after the card signing and after the election and up
to 30 days after a contract was executed, if the latter ever
was achieved.
In my opinion, neither the Act nor the Supreme Court
have outlawed all persuasion and inducement in organiza-
tional activity. Almost all human relationships, whether per-
sonal or business, involve some degree of persuasion and
inducement. But if a union's initiation fee was $10 in 1970;
$20 in 1971; $30 in 1972; $40 in 1973; and pursuant to
decision or bylaws was to be $50 in 1974, I perceive no
reason why a union, during a 1973 campaign, could not
point out such facts to prospective members and thereby use
such facts as one of its campaign selling points to induce
employees to sign union cards in 1973. Nor do I perceive a
meaningful difference if the union, in 1973, had decided to
allow employees to pay only the old $30 fee instead of the
regular 1973 fee of $40 and publicized this situation to pros-
pective members.
In the case before us, the low initiation fee inducement
was neglible or totally absent as a genuine inducement for
signing a card in July and August 1973. The same fee was
available for an almost indefinite future, contingent on such
imponderables as a signed contract, plus 30 days after that
indefinite and future occurrence. Indeed, the terms were
such that any hostile or undecided employee, in July and
August 1973, could be expected not to sign a card at that
time since he could wait, without detriment, until he saw
whether a contract was ever achieved or wait until a con-
tract was not only achieved and signed but until he saw
whether the Union, by the terms of the signed contract, had
demonstrated the worth of the Union to the employee's
satisfaction; and, at such later point, the employee, for 30
more days, would have had available the same initiation fee
as was available many months before during the organiza-
tional campaign. Moreover, unless the Union had proposed
and the employer had agreed to and had signed a contract
with a union-shop provision, the employee would never
have to sign a union card or pay any union initiation fee,
reduced or otherwise. I therefore perceive no improper in-
ducement in the securing of cards in the instant case.
Summarized briefly, I have hereinabove found that
Respondent's Versailles store is an appropriate bargaining
unit and that the Meat Cutters unit and the Retail Clerks
unit, both in the Versailles store and previously described,
are appropriate units. I have also found that the Meat Cut-
ters Union and the Retail Clerks Union represent majorities
of employees in their respective units, as demonstrated by
valid signed authorization cards from employees. My find-
ings also include determinations that the store manager,
Cable, and the meat manager, Morrison, are supervisors
within the meaning of the Act.
B. Alleged Illegal Activities by Respondent
It is alleged in the complaint that Respondent did "with-
hold previously planned wage increases and other benefits
employees' union activities... .
Gerbes Supermarkets is a subsidiary of Dillon Compa-
mes, Inc. Fehrenbacher was formerly with the Kansas Divi-
sion of Dillon. He came to Gerbes as president on January
17, 1973. After he was on the job for 2 or 3 weeks, Fehren-
bacher reviewed the Gerbes payroll.25 He states that he was
"disappointed" about the Gerbes pay because he consid-
ered it low compared to the Dillon Kansas stores. However,
because of the illness of the accountant, Fehrenbacher
states that he had no financial reports on the state of the
business until April 15. At that time he learned that "we
were not making money." However, Fehrenbacher became
aware that in the past Gerbes policy called for a general
wage increase in all its stores in June of the year. According-
ly, on June 25, pay raises were granted in all the Gerbes
stores. Fehrenbacher, in effect, claims that he would have
liked to have given greater pay increases than those given
in June since he states that even with the June increase he
was unable to bring the Gerbes employees "up to what
Kansas employees [of Dillon] were being paid." He attrib-
utes the foregoing to the fact that no money had been made
in the first quarter "and we didn't know if we was making
anything in the July quarter because we were on a three-
month accounting period"; therefore a greater raise than
was given in June could not be given at that time in June
until the Company knew where it stood financially. Howev-
er, Fehrenbacher testified that at the meeting where he and
his department heads had decided on the June 1973 raises,
it was also decided that further increases would be made, if
at all possible, when the Company "got the books closed."
The foregoing testimony of Fehrenbacher makes it clear
that Fehrenbacher as early as February 1973 contemplated
raising the wages in all Gerbes stores to the level or to a level
approximating wages in the Dillon Kansas stores. He also
intended to adhere to the Gerbes policy and practice of
granting wage increases in all Gerbes stores in the month of
June. There was therefore a preunion company plan and
practice to grant a chainwide increase in June. Presumably,
the June increase should have been substantial since it
would be the logical occasion for implementing
Fehrenbacher's intention of raising the Gerbes wages to the
Kansas level of the Dillon stores. According to Dillon, the
only thing that prevented the full implementation of the
Company's preunion plans and past practice was the fact
that the Company had not made money in the first quarter
and did not know its financial standing at the time it placed
in effect its past-practice June raise. The June raise was
therefore a modest one and did not include or effectuate
Fehrenbacher's preunion plan to bring the Gerbes wages up
to the Kansas level. However, it is clear that the last men-
tioned preunion plan of Fehrenbacher would be implement-
ed as soon as possible and as soon as the financial picture
was clear, and Fehrenbacher so testified. Consequently, the
Fehrenbacher plan, when subsequently implemented,
would relate back, stem from, and have the status of a
preunion plan.
Fehrenbacher testified that on July 17, 1973, he received
the quarterly financial statement and it showed that "we
from all its employees at the said store because of said 25 Gerbes is on a July fiscal year basis
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had turned the corner," i.e., the stores were making money.
About the third week in July, Fehrenbacher and his man-
agement people decided to grant a wage increase which
would in effect be of the general proportions that Fehren-
bacher had contemplated and planned prior to June 1973.
However, although the decision had now been made in the
latter part of July to grant this preplanned increase, the
precise amount of the increase was not decided in July.
Fehrenbacher at that point was using "ballpark" figures as
to the amount of the increase, pending more precise finan-
cial data. However, even at that stage , the process, as de-
scribed by Fehrenbacher, had its roots and guidelines in his
original plan and Fehrenbacher and his colleagues "started
the process of raising [Gerbes] wages up to the Kansas
Division."
The Company's past practice of June raises had applied
to all stores in the chain. Consistent with this, all the stores,
including Versailles, had received the June 1973 raise.
Fehrenbacher's pre-June plan of raises to bring the Gerbes
rates up to the Kansas division wages also contemplated
chain wide application. Accordingly, in July 1973, when it
was determined to grant a further raise, as had been con-
templated previously, the Company included the Versailles
store in its planning and determined raises for Versailles
and every other store individually and by going down the
list of employees at each store.
Although the decision to make the raises had been made
in the latter part of July and although the planning had
proceeded using "ballpark" figures, the precise amount of
the raises was not determined until August 15, 1973. After
the August 15 determination, which included Versailles and
all other stores, and before August 19, Fehrenbacher had a
conversation with Ryan, who was vice president of person-
nel for Dillon. Ryan was aware of the decisions by Fehren-
bacher and the other Gerbes management people in July
and on August 15 to pay certain wages in all the Gerbes
stores. Ryan was also aware of the Unions' organizational
efforts at Versailles 26 Ryan directed Fehrenbacher that, in
granting the wage increases in all the stores, the Versailles
store should be excluded. According to Fehrenbacher,
Ryan said that the granting of increases at Versailles might
be construed as an unfair labor practice. The substantial
wage increases that the Company placed into effect at all its
stores on August 19, 1973, were not placed in effect at
Versailles.
As could be foreseen, the receipt, in the latter part of
August, of substantial wage increases by employees in
Respondent's other stores except Versailles became known
to the Versailles employees. An outside bread salesman on
about August 22 told employee McClennan at Versailles
that one of the female employees at Respondent's Eldon
store had received a 79-cent wage increase 27 Thereafter
McClennan had a conversation with store manager Cable
and said that she had heard about raises in other stores.
Cable said, yes, he had heard that too. Cable said that he
hoped the Versailles employees would receive the raise be-
cause he thought they deserved it. Cable said, however, that
26 The Unions had demanded recognition from Respondent on August 6
and 10, 1973.
27 Eldon is approximately 20 miles from Versailles.
the way he understood it, the raises would not be given at
Versailles as long as union activity was taking place and
would not be given "until the Union was over with." Cable
went on to say that he also understood that if the employees
secured withdrawal cards from the Union they would re-
ceive their raises. McClennan was so impressed by this intel-
ligence that she concluded that, if she could get a raise
without the Union, she would do so. She therefore wrote to
the Meat Cutters Union and requested the return of her
authorization card.
On August 22, 1973, a union meeting was held in Ver-
sailles attended by employees in both the Meat Cutters
unit and in the Retail Clerks unit. At the meeting employ-
ees and Union Representative Reeds reported and dis-
cussed the Company's action of giving wage increases at
the other stores but not at Versailles. They also discussed
the Company's refusal to recognize the Unions at Ver-
sailles and some employees complained of surveillance. In
the course of the discussion, the conclusion expressed (and
it was correct) was that the Versailles store had been ex-
cluded from the wage increases because of the union activi-
ty among the Versailles employees. A strike vote was taken
and a strike commenced on August 23 and lasted until
August 31. Picket signs carried during the strike stated that
the employees were on strike "in protest of Company's un-
fair labor practices, in protest of Company's refusal to rec-
ognize" the two unions who were named on the placards.
I find that Respondent' s action in August 1973, in with-
holding from the Versailles employees substantial chain-
wide increases because of union activity by the Versailles
employees, was an unfair labor practice in violation of Sec-
tion 8(a)(1) of the Act 28
The applicable legal principle has been well expressed in
the following language:
An employer's legal duty in deciding whether to grant
benefits while a representation case is pending 29 is to
determine that question precisely as he would if a union
were not in the picture. If the Employer would have
granted the benefits because of economic circum-
stances unrelated to union organization,30 the grant of
these benefits will not violate the Act. On the other
hand, if the employer's course is altered by virtue of the
union's presence, then the employer had violated the
Act, and this is true whether he confers benefits be-
cause of the union or withholds them because of the
Union. 1
28 In January 1974 the Versailles employees did receive the previously
withheld increases.
29 In the instant case the representation issue was pending by virtue of the
Unions' organizational activity, by virtue of the majority status they had
obtained , and by virtue of their continuing demand for recognition.
30 Respondent has vigorously asserted that the August wage increases were
due entirely to economic considerations , and that, before June 1973, Fehren-
bacher had contemplated , desired, and planned to grant chainwide increases
to raise the Gerbes store wage level to that of the Dillon Kansas stores. It
is abundantly clear, that, but for the union activity, the Versailles employees
would have received the August increases in August at the same time as the
other stores.
31 McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242 (1966).
See also The Gates Rubber Company, 182 NLRB 95 (1970), where the Board
stated , "It is well settled that the employer 's legal duty is to proceed as he
would have done had the union not been on the scene. Here the Respondent
GERBES SUPER MARKET, INC 811
Although not an essential element in the finding made
above, and since the Unions were neither solicited nor were
they under any obligation to enunciate a position regarding
Respondent's decision and action to withhold increases for
the Versailles employees, the fact is that on September 18,
1973, the Meat Cutters Union wrote to Respondent's attor-
ney, Haynes, about the raises that the Company had "previ-
ously planned to put into effect for the employees at the
Gerbes store at Versailles, Mo." The Union stated that it
was its position that scheduled increases for all the Gerbes
stores should be "put into effect" and that it had no objec-
tion to the increases unless they were used as a deterrent to
organizing efforts at the Versailles store. The Retail Clerks
Union had previously, on September 14, 1973, written the
same type of letter to Haynes, advising that it had learned
that the Company had scheduled raises for the employees
prior to any union activity at the store. Under such circum-
stances, the Union stated, it had no objection to the raises
being granted immediately and urged that the raises be
granted.
At the hearing, Fehrenbacher stated that, after receipt of
the Meat Cutters letter of September 18, it was decided not
to change the Company's August decision and action of not
granting the increases at the Versailles store because permis-
sion to grant the increases had been received only from one
Union, the Meat Cutters. Fehrenbacher stated that he did
not see the September 14 letter from the Retail Clerks until
January 14, 1974. Regardless of the latter assertion, the
Retail Clerks letter had been timely received by company
counsel, Haynes. The Unions had addressed their earlier
letters, claiming majority and demanding recognition, to
President Fehrenbacher. They received written answers
from Haynes, as previously described, and were told in the
answers to direct any further communications or correspon-
dence on the matter to Haynes. Respondent, therefore, be-
fore the end of September, in my opinion, had been
informed by both unions that they had no objection to
increases being placed into effect at Versailles. But as late
as the end of December 1973 Respondent had not paid the
increases at Versailles and had, at about that time, issued a
notice to all its employees, including those at Versailles, in
which it was stated, inter alia, that "A few months ago, we
made pay adjustments for all employees. .. .
Additional conduct of Respondent that is in issue is as
follows:
Meat wrapper McClennan testified credibly that in the
first half of June 1973 she was questioned in the meat de-
partment by Meat Manager Morrison. Morrison asked Mc-
Clennan if she knew that Fields, a meat cutter, was thinking
about the Union. She said yes. He then asked her if she had
gone to the union meeting and she replied no. Morrison
then referred to the Company's profit-sharing plan in which
the employees, including McClennan, participated. He
asked her if she knew that if the Union came in we would
not have the profit sharing any more, and in effect told her
they would not.
I do not regard Morrison's question to McClennan about
Fields as illegal. Fields had told Morrison that he was going
to the Union meeting in Sedalia and had invited Morrison
as previously described herein. Fields had also told Mc-
Clennan of the foregoing. However, Morrison's questioning
of McClennan as to whether she had gone to the meeting,
and his statement about the loss of the profit-sharing plan
if the Union came in, constituted conduct in violation of
Section 8(a)(1) of the Act. The profit sharing, for one thing,
was an existing term or condition of employment and was
not subject to unilateral action if the Union became the
collective-bargaining agent.
On about August 9, 1973, approximately a week after she
had signed a union card, McClennan had left work at 5 p.m.
which was her usual quitting time. She went across the street
to a beauty shop and at about 6 p.m. she walked back to her
car which was parked at the rear of Respondent's store.
Morrison, who had also quit work at 5 p.m., had gone home,
changed his clothes, and returned to the store area. When
McClennan reached her car after returning from the beauty
shop, Morrison called to her. He asked her "if we were going
to go union." McClennan said she did not know. Morrison
then said that Comstock had told him that all three of us
had signed cards, and McClennan acknowledged this to be
true.32 Morrison said that he wanted to see if McClennan
understood what she was getting into and if she knew that
if the Union came in, we would not have the profit-sharing
plan.33
Morrison's reference to Comstock as the source of infor-
mation about the three meat department employees having
signed union cards invites scrutiny of the Morrison-Com-
stock conversation which took place about a week or so
after Comstock had signed a card on July 31. While in the
meat room with Comstock, Morrison asked him, according
to Comstock's credible testimony, "if we were going union
and I [Comstock] said yes.. .." Morrison then asked
Comstock if he had signed a union card and Comstock said,
yes, and so had Fields and McClennan.
About August 22, 1973, the day before the strike, Mc-
Clennan asked Morrison what he thought would happen if
she went with the Union. Morrison said he did not think
anything would be done because "it" had not "gone that
far." Morrison then stated that if the employees had talked
to President Fehrenbacher about a raise they "might have
gotten it" because Fehrenbacher was a reasonable man.
In short, if the employees had gone to Fehrenbacher in-
stead of the Union they might have received a raise. This
point could be understood by McClennan and other em-
ployees at the Versailles store since she and the others were
aware that in August 1973, the Company was withholding
a substantial wage increase from the Versailles employees
that had been granted at all other stores in the chain. More-
over, as we have earlier seen, in September 1973 Store Man-
ager Cable told McClennan that, as he understood the
situation, the Company would not give the raises at Vers-
32 it is clear that in asking McClennan "if we were going to go union,"
Morrison was referring to the three meat department employees, Comstock,
McClennan, and Fields, since on August 9 he mentioned that Comstock had
told him that "all three of us" had signed union cards
33 McClennan was aware of Morrison's earlier membership in the Union
withheld increases which would normally have been granted", General Mo- at the Columbia store and she asked him some questions However, her
tors Acceptance Corporation, 196 NLRB 137 (1972) testimony is definite on the point that it was Morrison who first raised with
her the profit-sharing plan topic
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ailles because of the union activity but if the employees at
Versailles had withdrawals from the Union then they would
received their raises. McClennan therefore wrote to the
Union requesting the return of her card.
During the strike in August 1973, employee Hagerman
had a telephone conversation with Cable. Hagerman, a
striker, discussed with Cable the possibility of coming back
to work and indicated that she had not made up her mind
whether to continue striking or to return. It was agreed that
Hagerman would call Cable if she decided to come back to
work during the strike. By way of affecting Hagerman's
decision, Cable asked her, in this conversation, if she had
heard about the raises. She said she had and that she and
the other union supporters regarded the raises as a bribe to
get them to forget the Union. Cable said the raises had been
planned before the strike.
I am satisfied that the above reference by Cable to the
raises was to the August increases that had been granted in
all company stores except Versailles. Since Cable had told
McClennan that the Versailles employees had not received
the increases because of union activity but that Versailles
would receive the increases if the employees secured with-
drawals from the Union, he evidently reminded Hagerman
of the raises with the implication that the raises would be
forthcoming if she abandoned the strike and returned to
work. In a conversation where Hagerman revealed that she
was undecided whether to return or to continue striking,
Cable's asking her if she had heard about the raises is intelli-
gible only with the aforementioned implication.
Hagerman had signed a union card on August 9, 1973.
Not long after this Morrison spoke to her in the store. "He
asked me, well, he said, 'I hear you're going union.' " Hager-
man replied that they were not sure yet but "we were dis-
cussing it."
It is interesting to note that in the foregoing testimony of
Hagerman, her original and basic description of her conver-
sation with Morrison was that Morrison had asked her if she
was or was not going union. Although Morrison said, I hear
you're going union, his statement was in effect an interroga-
tion calling for an affirmative or negative answer by Hager-
man and she so understood it but responded
noncommitally.
In September 1973, Cable told employee Vogt that "with
the raises that were supposed to be in, he would have to let
some people go;34 and if the Union tried to get in, he would
have to let some people go."35
Employee Allison attended a union meeting with other
employees from the Versailles store on August 9, 1973. She
signed a union card at the meeting. The next morning at the
store, in a fairly clear reference to the signing and handing
in of the union card or cards at the meeting, Cable asked
Allison, "did you get it in." Allison told Cable that she did
not know what he was talking about. Cable said, "Hell,
yes," or yes, "you know what I'm talking about. I know you
were out at that meeting last night [and] didn't you get it in."
Allison said that she did not wish to talk about the subject.
I find that the various incidents hereinabove described
constitute, respectively, illegal interrogation; threats of eco-
nomic detriment regarding the profit-sharing plan and ter-
minations if the Unions came in; and implying and
indicating that wage increases would be forthcoming if the
union activity ceased and disappeared. Such conduct is vio-
lative of Section 8(a)(1) of the Act.16
C. The Failure To Reinstate Certain Strikers
Since I have found that the strike was an unfair labor
practice strike because the, or, a, principal cause of the
strike was the withholding of scheduled wage increases for
Versailles employees because of union activity, it follows
that the strikers are unfair labor practice strikers. As unfair
labor practice strikers the employees are entitled to rein-
statement upon termination of the strike and upon an un-
conditional request for reinstatement.
On August 31, 1973, Reeds, writing for both Unions,
advised Respondent that the strike "is terminated effective
immediately." The letter stated that both the Retail Clerks
and the Meat Cutters "hereby make an unconditional appli-
cation for reinstatement on behalf of all striking employ-
ees." On the evening of August 31, Reeds, accompanied by
employees who had been on strike, spoke to Store Manager
Cable at the plant and asked that the employees be reinstat-
ed.
The following strikers' reinstatement rights are in issue:
Jerry Francis. This employee had signed a union card and
had gone on strike. The evening that the strike ended, Fran-
cis said to Cable, "The strike's over and I'd like to have my
job back." Cable replied that Francis had been replaced.
The replacement, King, like Francis, was an EOC regular
part-time employee. King had not been employed by Re-
spondent prior to the strike. About 2 months after the end
of the strike on August 31, 1973, and the above conversation
with Cable, Francis was rehired by Respondent. Since his
reemployment, Francis worked only 10-15 hours per week
as compared to his prestrike average of 35-40 hours per
week.
As an unfair labor practice striker, Francis was not sub-
ject to permanent replacement by King or anyone else. The
failure to reinstate Francis upon application is found to be
violative of Section 8(a)(1) and (3) of the Act. Subsequent
reemployment at reduced hours does not fulfill the obliga-
tion to reinstate the employee to his former or substantially
equivalent job.
Wanda Hagerman. This employee was a full-time cashier
or checker prior to the strike After the strike she was re-
fused reinstatement on the ground that she had been perma-
nently replaced. Her replacement was Nicholson who was
hired during the strike and who has continued in
Respondent's employ. On November 12, 1973, Hagerman
was recalled but has been working approximately 35-37
36 in his brief, the General Counsel cites the fact that in early June 1973,
34 The reference is to the August raises that were scheduled for all the Morrison asked Fields if he had attended the union meeting in Sedalia Since
stores, including Versailles, but which were withheld from the Versailles Fields had volunteered to Morrison that he was going to the meeting and had
emcloyees because of the union activity invited Morrison to attend, I regard Morrison's asking Fields if he did attend
It is the portion of the conversation about letting people go, if the Union the meeting as normal conversation in the particular overall context and not
came, that is material as illegal interrogation.
GERBES SUPER MARKET, INC 813
hours per week, which is less than her previous hours of
approximately 39 per week.
I find a Section 8(a)(1) and (3) violation as to Hagerman.
Anna Bell Merriott. This employee worked at the Ver-
sailles store as a full-time checker or cashier since 1968 or
1969. About June 21, 1973, she had to take care of two
orphaned nieces. Although it is not entirely clear, she appar-
ently quit herjob on June 21 under the mistaken impression
that she had a leave of absence; or she had asked for a leave
of absence and it had not been effectuated. In any event, she
returned a few weeks before the August 1973 strike. She
asked to work full time. Cable said that he was putting her
back on a temporary basis and would have to check with the
main office about her status. She had no further information
from Cable about what the office had determined. Howev-
er, she was working full time, 40 hours, as a checker at $2.55
per hour during this period. Shortly before the August
strike, Merriott spoke to personnel director Hayes. She
asked Hayes if she had a full-time permanent job. Hayes
replied, "oh, you're on full time, if we'd have known .. .
you wanted time off we would have given you time off, that
he knew I was a little upset over not getting a 30-day leave
but he fully understood why that I asked for it, the leave of
absence."
Merriott had signed a union card and was one of the
signers of an August 22, 1973, letter sent to the Company,
affirming that the signatories had designated the Retail
Clerks as their representative and asking the Company for
recognition. She went on strike.
Merriott was not taken back after the strike. In addition
to the Union's unconditional request for reinstatement of
the strikers, Merriott had spoken to Cable about her fob.
Cable told her that there was no place for her because he
had hired two EOC girls as cashiers who were working out
real well and one of them worked 4 hours in the morning
and the other worked 4 hours in the afternoon. These re-
placements had not worked for the Company prior to the
strike.
Employee Hagerman, who had spoken to Cable about
her own reinstatement after the strike, testified that he asked
her if she had seen the newspaper article about hiring per-
manent replacements for strikers. He went on to say that he
had hired one full-time girl, Nicholson, as Hagerman's re-
placement, and had hired two EOC girls as replacements for
Merriott.
Merriott was rehired on November 12, 1973, on a part-
time basis, and worked until January 5, 1974, when she was
laid off. According to Hagerman's uncontroverted testimo-
ny on the matter, the two EOC replacements for Merriott
are still employed.
I find a violation of Section 8(a)(1) and (3) of the Act with
respect to Merriott. Despite her approximately 5 years of
service as a full-time cashier, I am persuaded that she was
not reinstated as a full-time cashier because, as the evidence
shows, the Company took the position that she had been
permanently replaced by two EOC employees working as
cashiers.
Calvin Vogt This employee, who had been employed as
a sack boy and stockman, was a striker, and, through the
Union, had requested unconditional reinstatement after the
strike. He also personally made a series of requests for rein-
statement to Cable and made further requests to the new
manager, Blomberg, after Cable retired.
In refusing reinstatement to Vogt, Cable told him that he
had not been replaced but that business was down. Cable
also said that with the raises he would have to let some
employees go and would also have to let some go if the
Union came in. Blomberg told Vogt that there was no way
for Vogt to "get on" (be reemployed). Vogt then secured
employment elsewhere. Approximately at the end of Octo-
ber or early November 1973, Blomberg offered reinstate-
ment to Vogt.37 Although he was earning less in his new job
than he had earned with Respondent, Vogt declined
Blomberg's offer. According to Vogt, he declined because
he felt that without a raise the situation at Respondent's
store "would be just like it was when the Union was trying
to get in" and he decided to stay where he was.38
The lack of a raise that Vogt was referring to apparently
was a 25-cent raise that he had been promised when he
commenced working for Respondent in 1973. Vogt was
hired at $2 per hour 4 months before the strike. He had been
promised a 25-cent raise after 3 months but had never re-
ceived it.
In my opinion, Vogt declined the offer of reinstatement
and decided to stay where he was because he believed that
to be the best thing to do from his personal standpoint.
I find that Respondent's failure to reinstate Vogt from the
time of his application at the end of the strike until October
or November 1973, when Vogt was offered reinstatement,
was a violation of Section 8(a)(1) and (3) of the Act. As an
unfair labor practice striker making unconditional applica-
tion for reinstatement after the strike, Vogt was presump-
tively entitled to reinstatement.
Cable testified that he told Vogt "that the volume wasn't
what it was before they went on strike" and therefore there
was no job for Vogt. No evidence was introduced to show
a decline in business or in volume of business during the
brief August 23-31 strike, or that any brief decline contin-
ued for several months thereafter when Vogt was making
fruitless requests for reinstatement. Moreover, during this
same period, there is no indication that other jobs were
eliminated; and, in fact, other strikers were replaced by new
employees hired during the strike who continued to work
after the strike. In the same period in August, because of an
increase in business and profits, Respondent granted sub-
stantial wage increases in all its stores and had programmed
similar increases for the Versailles store, which it withheld
because of union activity. In January 1974, Respondent did
give the Versailles employees the increases they would have
received in August 1973 but for union activity. The substan-
tial nature of these increases is shown by the fact that they
ranged from 20 cents to $1.35 per hour, and 30 to 50 percent
of the employees received increases of $1 or more per hour.
All of the foregoing facts do not jibe with the claim that
volume of business was down and that Vogt's job that was
in existence on August 22 was eliminated by August 31 in
37., . I remember him [Blomberg] asking me if i wanted my job back"
38 It is not entirely clear why Vogt had made so many requests for reinstate-
ment after the strike when there was no indication that he would receive a
raise and his requests for reinstatement were not conditioned on receiving a
raise
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a business decline 39
Amanda Allison. This employee had worked for Respon-
dent since 1967. She was a full-time employee working 40
hours per week. The evening of August 31, 1973, when the
strike ended, Cable told Allison that she had been perma-
nently replaced by Walker who had been hired during the
strike. A few days later Allison was rehired as a part-time
employee working I day a week for about 8 hours. This
situation continued for several weeks. Allison then worked
weeks of 18 hours, 20 hours, 35 hours, and, the week of the
hearing, 37 hours. She testified that "my hours are all differ-
ent."
I find that Respondent's action in failing to reinstate
Allison to her former job as a full-time employee constituted
a violation of Section 8(a)(1) and (3) of the Act.
Lorena Housworth. Housworth had commenced working
for the Company in 1960. In her subsequent years, she had
worked full time some of the time and part time at other
periods. As of August 1973, before the strike, she was work-
ing part time. She was a striker and her request for reinstate-
ment was made by the Union on behalf of all strikers at the
end of the strike.
The afternoon after the strike ended she received a tele-
phone call from Cable4° Cable asked her if she could come
to work on Sunday, September 2. Housworth said that she
was sorry that she could not come in on that day because
she had a previous engagement. That was the end of the
conversation. Thirty minutes later Housworth called Cable
and said that she could cancel her prior engagement and
would be available Sunday. Cable said that he was sorry but
he had called someone else. Later, on November 21, 1973,
Blomberg offered her part-time work and she started on
November 26.
As an unfair labor practice striker, Housworth was enti-
tled to reinstatement after the strike that ended August 31.
She was a part-time worker prior to the strike and on the day
after the strike she was asked if she was available to come
to work on Sunday, September 2. This offer was for part-
time work, the same as she was performing before the
strike 41
In view of Housworth's unavailability on the particular
Sunday, September 2, the Company was entitled to make
other arrangements for that particular day. However, sim-
ply because Housworth was not available for 8 hours on
Sunday, September 2,42 upon very short notice, I do not
believe that she had foreclosed her right to reinstatement for
part-time work on the Sundays following September 2.
While the Company is not to be faulted for securing
39 If business and profits were such that substantial wage increases and
new fringe benefits such as free dental care could be granted, it would follow
that business was good and had not declined. Since the grocery business is
basically a high volume business with relatively low markup per unit, it would
be generally true that higher profits, justifying substantial wage increases,
bespeak a higher and not a lower volume of business.
a0 The strike ended on Friday, August 31. Housworth was evidently called
on Saturday, September 1.
41 Before the strike, according to Housworth, she "would work one day 8
hours, say a Sunday or a day during the week" and she would also fill in for
other employees in vacation periods.
42 In fact, 30 minutes after Cable's call, Housworth was prepared to cancel
her engagement and to be available for work on Sunday but Cable had called
someone else.
someone else to work on Sunday, September 2, after Hous-
worth was unavailable, I perceive no equity in the
Company's position in not offering reinstatement to Hous-
worth after September 2 and prior to November 21.
When Housworth told Cable that she could not work
Sunday, September 2, Cable called Amanda Allison, anoth-
er striker, supra. Allison had been a full-time 40-hour-a-
week employee before the strike. Instead of offering Allison
reinstatement to her former job, Cable had told her that she
was permanently replaced by Walker who had been hired
during the strike. Then, when Housworth was not immedi-
ately available on short notice to work on Sunday, Septem-
ber 2, Cable gave Housworth's part-time job to Allison and
Allison worked I day a week, evidently on Sundays, or at
least she worked the first Sunday, September 2.
From the standpoint of law and equity, the proper course
of action was that Allison should have been restored to her
former full-time job, displacing Walker, after the strike.
Since Housworth, in the particular circumstances, was not
available for Sunday, September 2 (and had Allison been
offered reinstatement to her ownjob she presumably would
not have been available), someone else , possibly Walker,
might have been able to work that particular Sunday. Cer-
tainly, if Housworth or some other employee had been ill on
a day she was supposed to work or had some other legiti-
mate reason for absence, Cable would have improvised
some coverage of the job. Unexpected circumstances are
not unusual in matters concerning employees' availability.
Moreover, if Housworth, for instance, had been out of town
visiting relatives on September 1 when Cable phoned her
and thus was not available to work on September 2, this, in
my opinion, would not have foreclosed her legal right to
reinstatement thereafter. Accordingly, after September 2,
Housworth should have been restored to her part-time job
and should have displaced Allison, and Allison should have
been restored to her full-time job, displacing Walker.
I find that Respondent has violated Section 8(a)(1) and
(3) of the Act by failing and refusing to offer Housworth
reinstatement to her former part-time job after September
2, 1973, and up to November 21, 1973.
CONCLUSIONS OF LAW
As more fully set forth above, Respondent has violated
Section 8(a)(1) of the Act by illegal interrogation of employ-
ees; by predicting and threatening economic detriment to
employees by loss of the profit-sharing plan and by layoffs
or terminations of employees if the Unions attained repre-
sentative collective-bargaining status in the store; by imply-
ing and indicating that wage increases would be
forthcoming if union activity among the Versailles store
employees ceased and disappeared; and by withholding
preplanned chainwide wage increases from the Versailles
store employees because of union activity at that store.
Respondent has violated Section 8(a)(1) and (3) of the
Act by failing and refusing to offer to reinstate to their
former or substantially equivalent jobs six unfair labor prac-
tice strikers, upon their unconditional application for rein-
statement at the termination of an unfair labor practice
strike, as more fully described hereinabove.
The Meat Cutters Union and the Retail Clerks Union, at
GERBES SUPER MARKET, INC.
all times material, have represented a majority of employees
in the respective appropriate units described hereinabove.
Respondent has refused to recognize the aforesaid
Unions in their respective appropriate units and he has
engaged in illegal conduct in response to the demands for
recognition.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it be
ordered to cease and desist from such conduct and to take
affirmative action to effectuate the policies of the Act.
It is recommended that the wage increases illegally with-
held from the Versailles store employees in August 1973 be
paid to them from the date in August 1973 when increases
were given to employees in all other stores of Respondent,
until the date in January 1974 when the Versailles employ-
ees did receive wage increases. The aforesaid retroactive
wage increases are to be paid with 6-percent interest.
The recommended remedial order will direct the follow-
ing steps by Respondent with respect to the strikers:
Francis is to be offered reinstatement, including seniority,
to his former or substantially equivalent job as to hours,
pay, and other conditions of employment. A person or per-
sons hired as replacements for Francis is or are to be dis-
placed, if necessary. Francis is to be paid the wages he lost
from the date of the application for reinstatement to the
date of the offer of reinstatement to his former job or its
substantial equivalent, less any intermediate earnings,43
Any wages due are to bear interest at 6 percent. Computa-
tions are to be made on a quarterly basis. Restoration is to
be made as to any fringe benefits in which the employee
participated before the strike, such as the profit-sharing
plan or any health or medical plan, or other. If, for instance,
any of the six strikers that are the subject of this Decision,
were participants in fringe benefits such as the profit-shar-
ing plan before the strike, their accounts are to be compen-
sated or credited with any employer payments that would
have been made thereto but for the fact that the employee
was not reinstated as and when required by this remedial
Order.
The above formula shall apply to Hagerman, Merriott,
and Vogt (no further offer of reinstatement to Vogt is re-
quired and with Respondent's liability terminating as of
approximately November 1, 1973, when Vogt declined
Respondent's offer of reinstatement to his former job), Alli-
son, and Housworth (with Respondent's liability as to this
employee commencing on Sunday, September 9, 1973, in
view of Housworth's unavailability on Sunday, September
2, 1973).
We come now to the Gissel aspect of the remedy.
While the Supreme Court has approved the imposition of
a bargaining order in "exceptional" cases where the unfair
labor practices were so "outrageous" and "pervasive" that
"their coercive effects cannot be eliminated and by the ap-
43 Included in the intermediate earnings would be earnings from Respon-
dent, when , about 2 months after the end of the strike, Francis was reem-
ployed for a reduced number of hours per week as compared with his
prestrike hours.
815
plication of traditional remedies," the Court has also held
that a bargaining order is appropriate " in less extraordinary
cases marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength and
impede the election process."44
The Board's authority to issue such an order on a lesser
showing of employer misconduct is appropriate, we
should reemphasize, where there is also a showing that
at one point the Union had a majority; in such a case,
of course, effectuating ascertainable employee free
choice becomes as important a goal as deterring em-
ployer misbehavior.
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair election
(or fair rerun) by the use of traditional remedies,
though present, is slight and that employees sentiment
once expressed through cards would, on balance, be
better protected by a baraining order, then such an
order should issue. . . . If
In my opinion, Respondent's action, among its other con-
duct, in withholding a substantial wage increase from the
Versailles employees because of their union activity and
Respondent's action in denying strikers reinstatement to
their former jobs, would have and did have a strong and
continuing impact on all employees in the store. The simple
message to the employees was that Respondent could and
did deny them wage increases because of their union activi-
ties; and that, after the strike, striking employees were re-
fused reinstatement or were reemployed weeks or more later
in inferior jobs with less hours of work, in contrast to those
who did not strike or those who were hired during the strike
and replaced the strikers.
While there are remedies for the foregoing and other
conduct and while I have prescribed such remedies, it is
extremely doubtful that the remedies can restore the status
quo, particularly in the outlook and attitude of the employ-
ees in the store.
In its brief, Respondent, in arguing against the propriety
of a Gissel type of remedy in this case, cites Central Diagnos-
tic Laboratory, 206 NLRB 754 (1973), where the Board
found that certain illegal 8(a)(1) conduct of the employer
did not require a bargaining order. After describing the
unfair labor practices in the cited case, Respondent states
that it was "held these unfair labor practices were not suffi-
cient to require a bargaining order as the unfair labor prac-
tices are unlikely to be repeated and their residual impact
could be dispelled by posting of the usual Board notices."
However, in the instant case, I am unable to say that
Respondent's unfair labor practices are unlikely to be re-
peated since Respondent had already repeated in this case
similar unfair labor practices that it committed in another
a4 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 at 613-615.
45 Gissel, supra.
46 The unfair labor practices occurred in 1973. This Decision is written in
1974. With the prospect or at least the possibility of further litigation before
the Board and the courts it is not unrealistic to believe that, if the General
Counsel is successful, it will be 1975 or 1976 before the conventional reme-
dies, short of a bargaining order, would be effectuated.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store in its chain where the Retail Clerks and the Meat National Labor Relations Act.
Cutters Union were seeking recognition .47 Further, as I have
indicated above, it appears unlikely that the residual impact
of Respondent's conduct can be effectively dispelled by the
Board 's more common remedies . Accordingly, a bargaining
order will be recommended.
ORDER 4s
Gerbes Super Market, Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Withholding planned wage increases from the em-
ployees in its Versailles, Missouri, store, because of union
activity among employees of the said store.
(b) Illegally interrogating its employees about union ac-
tivities.
(c) Predicting or threatening economic detriment to its
employees by terminations of employees or by the loss of
any existing benefits if the store was successfully organized
by a union.
(d) Stating or implying that wage increases that were not
granted would be granted if union activity ceased among
the employees either by employee withdrawal from the
Union or otherwise.
(e) Discriminating against and refusing to reinstate un-
fair labor practice strikers after termination of the strike and
after an unconditional request for reinstatement.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer reinstatement to their former jobs or, if such
jobs are no longer available because of legitimate economic
reasons, to substantially equivalent jobs, with all former
rights and privileges, displacing, if necessary, any replace-
ments, to Jerry Francis, Wanda Hagerman, Anna Bell Mer-
riott, Amanda Allison, and Lorena Housworth.
(b) Pay to the aforenamed five employees and to Calvin
Vogt the wages they may have lost from the dates of the
refusal to reinstate them to their former jobs to the date or
dates of the offers of reinstatement and with interest of 6
percent on any wages due, all as more fully set forth in the
portion of the Decision entitled "The Remedy."
(c) Pay to employees at the Versailles, Missouri, store,
with 6 percent interest, the wage increases that they would
have received in August 1973 and for the period from Au-
gust 1973 to January 1974, the latter being the date when
the Versailles store employees first received the wage in-
crease.
(d) Upon request, bargain collectively with Retail Store
Employee Union, Local 782, as the exclusive bargaining
representative of employees in an appropriate unit, and, if
an agreement and understanding is reached, embody such
understanding and agreement in a signed contract . The ap-
propriate unit is:
All employees at the Gerbes Versailles, Missouri store,
excluding meat department employees, office clerical
employees, guards, and supervisors as defined in the
(e) Upon request, bargain collectively with Amalgamat-
ed Meat Cutters & Butcher Workmen of North America,
Local Union No. 576, as the exclusive bargaining represen-
tative of employees in an appropriate unit, and, if an agree-
ment and understanding is reached, embody such
agreement and understanding in a signed contract. The ap-
propriate unit is:
All regular full-time and part-time employees in the
Company's meat department in the store at Versailles,
Missouri, excluding all food clerks, hardware clerks,
office clerical employees, casual employees, guards and
supervisors within the meaning of the National Labor
Relations Act.
(f) Post at its Versailles, Missouri, store, copies of the
attached notice marked "Appendix."49 Copies of said notice
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that such notices are not
altered, defaced, or covered by other material.
(g) Notify the Regional Director, Region 17, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
47 Gerbes Super Markets, Inc., 176 NLRB 11, supra, enfd . 436 F.2d 19 (C.A.
8, 1971).
48 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
49 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides were represented by their
attorneys and presented evidence, it has been found that we
have violated the National Labor Relations Act in certain
respects . To correct and remedy these violations , we have
been directed to take certain actions and to post this notice:
WE WILL pay to all employees at the Versailles, Mis-
souri, store the wage increases withheld from them
from August 1973 to January 1974, with interest at 6
percent.
WE WILL NOT withhold planned wage increases from
GERBES SUPER MARKET, INC
our employees at the Versailles, Missouri , store because
of union activities.
WE WILL NOT illegally question our employees about
their own or other employee's union activities.
WE WILL NOT threaten employees with loss of jobs or
loss of any other benefits if a union organizes the store.
WE WILL NOT say or indicate that wage increases can
be secured by employees if they cease their union activ-
ities.
WE WILL NOT discriminate against or refuse to rein-
state to their former jobs unfair labor practice strikers
who apply for reinstatement.
WE WILL NOT in any other manner interfere with,
coerce , or restrain employees in the exercise of their
rights as guaranteed in Section 7 of the National Labor
Relations Act. All our employees are free to join or not
to Join a union of their choice except as such latter right
may be affected by a lawful contract between the Com-
pany and a union in which both parties agree to a
lawful union -security clause.
WE WILL offer reinstatement to their former Jobs with
all rights and privileges to Jerry Francis, Wanda Hag-
erman , Anna Bell Merriott, Amanda Allison, and
Lorena Housworth.
WE WILL pay to the foregoing five named employees
and to Calvin Vogt the wages they may have lost from
the date of our refusal to reinstate them in September
1973 to the date of our offer of reinstatement to their
former jobs and with interest at 6 percent on any sums
that may be due.
WE WILL, upon request, bargain collectively with Am-
algamated Meat Cutters & Butcher Workmen of North
America, Local Union No. 576, as the exclusive bar-
gaining representative for all employees in an appropri-
ate unit , and, if an agreement and understanding is
reached , WE WILL embody such agreement and under-
817
standings in a signed contract The appropriate unit is:
All regular full - time and part- time employees in the
Company's meat department in the store at Ver-
sailles, Missouri , excluding all food clerks, hard-
ward clerks, office clerical employees , casual em-
ployees, guards , and supervisors as defined in the
National Labor Relations Act.
WE WILL , upon request , bargain collectively with Re-
tail Store Employees Union, Local 782 , as the exclusive
bargaining agent for all employees in an appropriate
unit, and, if an agreement and understanding is
reached, WE WILL embody such agreement and under-
standing in a signed contract . The appropriate unit is:
All employees at the Gerbes Versailles , Missouri,
store , excluding meat department employees, office
clerical employees , guards, and supervisors as de-
fined in the National Labor Relations Act
GERBES SUPER MARKET, INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , 616 Two Gateway Center , Fourth
at State, Kansas City , Kansas 66101 , Telephone 816-374-
4518.