Olney Iga Foodliner

National Labor Relations Board - Board Decisions

Oct 22, 1987

286 N.L.R.B. 741 (N.L.R.B. 1987)

OLNEY IGA FOODLINER 741
Don's Olney Foods , Inc. d/b/a Olney IGA Food-
liner and United Food and Commercial Work-
ers, Local 550-R. Cases 14--CA-17697 and 14-
CA-17915
22 October 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 23 December 1985 Administrative Law
Judge Karl H. Buschmann issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, the General Counsel filed cross-ex-
ceptions and a supporting brief, the Respondent
filed an answer to the General Counsel's cross-ex-
ceptions, and the Charging Party filed an answer to
the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
1 The Respondent has excepted to some of the judge 's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
The Respondent has excepted to the judge 's failure to find Tom Gilles-
pie was a manager as well as a supervisor We find merit in the Respond-
ent's exception , but find that Gillespie was a manager rather than a super-
visor As a manager, we find that Gillespie's authorization card was in-
valid and owner Carletta Jones' conversation with him was not a viola-
tion of the Act
The Respondent has also excepted to the judge 's finding that Debra
Millman was correctly excluded from the bargaining unit We find it un-
necessary to reach the issue of whether Millman was erroneously ex-
cluded from the unit as it would not affect the Union 's majority
We also find it unnecessary to pass on the Genera l[ Counsel's excep-
tions to the judge's dismissals of an allegation that Deb Millman interro-
gated employees at the 18 October 1985 meeting and an allegation that
Store Manager Bill Zuber created an impression of surveillance through
certain remarks he made to employee Mike Luber on 24 November 1985
In both instances , findings of violations would be merely cumulative to
other violations already found
2 In affirming the judge 's conclusion that the Respondent violated Sec
8(a)(5) of the Act when it withheld merit increases at a time when past
practice dictated that they normally would have been given , we note that
the unilateral break with past practice is deemed unlawful because it falls
within the period after the Respondent had embarked on a course of seri-
ous misconduct that undermined the Union 's majority and prevented the
holding of a fair election See Trading Port, 219 NLRB 298, 301 (1975)
The General Counsel excepted to the portion of the judge 's decision
that stated the General Counsel 's position to be that "a bargaining order
is necessary to erase Respondent 's conduct and to insure a fair election."
The General Counsel states her position to be that "because of Respond-
ent's conduct , the possibility of erasing the effects of Respondent's con-
duct and ensuring a fair election by the use of traditional remedies is
slight and employee sentiment expressed through authorization cards
would, on balance, be better protected by a bargaining order ." We find
merit in the General Counsel's exception , which is consistent with the
General Counsel's pleadings and brief to the judge
conclusions, 2 to modify the remedy, 3 and to adopt
the recommended Order.
The judge found that the instigator of the union
campaign , Joe Wilson, was demoted and was not a
supervisor thereafter. We agree. The dissent, how-
ever, argues that because Wilson was a statutory
supervisor before his demotion (an unproven
premise), he was a supervisor after the demotion
and thus not protected by the statute. But Wilson's
previous status is of little importance. The proper
question is whether Wilson was a statutory supervi-
sor at the relevant time. He was not.
Statements of the Respondent's own managers
indicate that Wilson was not considered a supervi-
sor after his demotion. Store Manager Bill Zuber
told Wilson when he put him on days that Wilson
was "no longer in charge." Zuber also told em-
ployee Ochs, who had been asked by Wilson to
bale boxes, that Ochs was to "ask the manager
[Dave Bunting] what to do and he's not here."
Employee Rick Rariden also testified he heard
Zuber tell Day Manager Dave Bunting that "Dave
was the manager and he wasn't supposed to take
any static from Joe [Wilson] because Joe wasn't the
manager , that Dave was the manager and not to
put up with anything from Joe." Zuber's comments
corroborate Wilson's understanding .that he was not
considered a supervisor.
Additionally, Wilson's job duties changed signifi-
cantly after his demotion. After his demotion to
day shift, Wilson primarily performed carryout and
stocking duties . Even on the Saturday night shift
he allegedly managed , Wilson spent a great deal of
his time side by side with the rank and file per-
forming unit work such as cleaning the meat and
produce cases.
Even assuming that Wilson, after his demotion
had some limited supervisory authority during the
8-9-hour shift that he worked every third Saturday
night in rotation with employees Rick Rariden and
Mike Zuber, we would not find that he has the
requisite 2(11) status. Evidence that an individual
who otherwise occupies the position of an employ-
ee is "called upon to take charge" on certain "lim-
ited occasions" does not automatically transform
the individual into a supervisor. Fall River Savings
Bank v. NLRB, 649 F.2d 50, 54 (1st Cir. 1981). Our
dissenting colleague agrees that the record does not
clearly show that employees Rariden and Zuber,
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S.C § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621 ) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
286 NLRB No. 75
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
who rotate with Wilson as persons "in charge" on
these Saturday night shifts, are supervisors; and we
see no reason for finding that occasional service on
the same shift should convert Wilson to that
status.4
Accordingly, for all the foregoing reasons, we
conclude that Wilson was not a supervisor after his
demotion and that his discharge for union activity
violated the Act.
As to the bargaining order, the violations found
to have been committed by the Respondent are
substantial violations and include: discharging the
employee organizer; interrogating employees;
threatening employees with loss of jobs, loss of
benefits, store closure, more onerous working con-
ditions, and less pay; making statements indicating
that the Respondent would know how employees
voted; and creating the impression that union ac-
tivities, including card signing, were under surveil-
lance. These violations are sufficiently numerous,
severe, and pervasive to warrant a bargaining
order. In view of the size of the unit involved, the
widespread knowledge of the violations, and the
severity of the Respondent's conduct, we find it
unlikely that the lingering effects of the Respond-
ent's conduct will be dissipated by a cease-and-
desist order. Accordingly we, like the judge, find
that a bargaining order is warranted.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Don's Olney
Foods, Inc. d/b/a Olney IGA Foodliner, Olney, Il-
linois, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
CHAIRMAN DOTSON, dissenting in part.
I cannot agree with my colleagues' adoption of
the judge's finding that the Respondent's discharge
of employee Joe Wilson violated Section 8(a)(3). In
my opinion Wilson was a supervisor at the time of
his dismissal. I further disagree with my colleagues'
issuance of a bargaining order to remedy the viola-
tions found.I
• Wilson's access to the store keys and his ability to release employees
for their breaks on some occasions when the manager was out of the
store for an hour or so apparently differentiates him from Zuber and Rar-
iden , but this insignificant occasional exercise of authority is also insuffi-
cient to mark him out as a supervisor Fall River Savings Bank v NLRB,
supra
i I agree with my colleagues ' adoption of the judge's findings that the
Respondent violated Sec 8(a)(1) by interrogating employees , threatening
employees with loss of jobs and benefits, less pay, plant closure, and
more onerous working conditions , and creating the impression of surveil-
lance and Sec 8(a)(3) by denying employees their wage increases I fur-
ther agree with my colleagues ' adoption of the judge 's dismissal of the
remaining allegations of the complaint
The judge found that Joe Wilson was "demoted"
from an admittedly supervisory capacity to a posi-
tion with insignificant supervisory characteristics
not warranting a finding that Wilson was a supervi-
sor at the time of his discharge. I find, however,
that Wilson's reassignment did not entail a loss of
supervisory status.
In 1981 the Respondent promoted Wilson from
full-time grocery clerk to the admittedly superviso-
ry position of night manager, with an accompany-
ing wage raise of 75 cents an hour. Wilson worked
as night manager on Monday, Tuesday, and
Wednesday, and during the day on Thursday and
Friday. His duties included assigning work to em-
ployees such as stocking shelves, sending employ-
ees on breaks-while taking his own at his own
convenience, requesting that employees work late,
initialing timecards when necessary, seeking re-
placements when scheduled employees did not
come into work, and authorizing employees to
leave before the scheduled time if business was
slow. Wilson had access to the store keys and the
cash register keys. Cashiers sought his approval
prior to granting customer refunds, approving
checks, or correcting errors on the cash register.
Wilson "checked in" vendors, ensuring that the
merchandise was properly delivered to the store,
and he authorized payment to vendors. Wilson did
not punch a timeclock, he received pension and in-
surance benefits, and his wage rate as manager in-
creased to $7.20 an hour. As a supervisor, Wilson
had no authority to hire, fire, transfer, promote,
adjust employee grievances, or effectively recom-
mend such actions. He did not order produce for
the store, was not authorized to sign checks, and
did not attend management meetings.
In September 1984 Wilson was reassigned to the
day shift and was charged with operating the store
every third Saturday night. Wilson was directly
below the day manager in the chain of command,
and on Saturdays he alone was in charge of the
store. Wilson's wage rate remained the same and
he continued to exercise many of the same func-
tions as when he was the night manager.
Wilson's reassignment did not constitute a "de-
motion" with loss of supervisory status . The judge
found that length of service was a prime consider-
ation in determining the employees' wages. The
record, however, more readily supports the conclu-
sion that supervisory authority and not length of
service explains the managers' higher salaries. Bob
Malone, who was hired as night manager on 17
October 1984, received a salary of $6 an hour, an
amount higher than that of all the Respondent's
nonsupervisory personnel, irrespective of date of
hire. In contrast, employee Ellen Harmon, a deli
OLNEY IGA FOODLINER 743
clerk hired on 20 October 1976, only received
$5.80 an hour. The fact that many of the superviso-
ry personnel had been in Respondent's employ for
long periods of time does not, of itself, warrant the
conclusion that it is the employees' length of serv-
ice rather than their supervisory status that ac-
counts for their higher salary. In addition, the
judge ignores the fact that Wilson's promotion to
night manager was accompanied by a relatively
substantial salary increase. Because salary was
clearly a factor denoting supervisory status, had
the Respondent intended to demote Wilson to a
nonsupervisory position, the logical step would
have been to reduce his salary accordingly.
After his reassignment, Wilson continued to exe-
cute many of the same duties as when he was night
manager . He continued to answer cashiers' assist-
ance calls for managers , "check in" vendors, and
approve payment to them. In the store manager's
absence, Wilson had access to the store keys and
would send employees on breaks. On Saturday
nights Wilson continued to exercise the same au-
thority as when he was night manager. He deter-
mined employee breaks and enforced them, as-
signed tasks to employees, and ensured the per-
formance of additional duties typical of the Satur-
day night shift. Although the judge dismisses these
later duties as routine, these are precisely the re-
sponsibilities that in the Respondent's business dis-
tinguish the day and night managers from the non-
supervisory personnel.2
In relying on Wilson's lack of authority to hire,
fire, promote, discipline, adjust employee griev-
ances, and his nonattendance to management meet-
ings, the judge ignores that Wilson did not exercise
this authority even when he was the night manag-
er. Consequently, his continued lack of authority in
these areas is not necessarily indicative of a loss of
supervisory status. Moreover, the Respondent's
statements that Wilson would no longer be "in
charge," or that he was no longer the manager, are
inconclusive and cannot be construed as reflecting
the Respondent's clear intention to strip Wilson of
his supervisory authority, especially when the Re-
spondent also stated Wilson was still considered a
supervisor by management and where the evidence
indicates Wilson continued to receive the same
salary and exercise supervisory authority. In view
of the above, I would find that Wilson was a super-
visor at the time of his dismissal and therefore the
Respondent's discharge of Wilson did not violate
Section 8(a)(3) of the Act.3
Further, I find that the remaining unfair labor
practices committed by the Respondent are not of
such a nature or magnitude to warrant the issuance
of a bargaining order. The majority of the 8(a)(1)
violations were directed at Wilson, and at Rick
Rariden and Mike Zuber, both of whom hold posi-
tions analogous to that of leadmen and could argu-
ably even be considered supervisors. Conduct di-
rected at individuals whom the rank and file may
perceive as holding positions of authority cannot,
in my view, have the same coercive impact on the
unit as acts directed at the rank-and-file employees.
Further, the unlawful conduct was not directed at
a small unit where the effects of the conduct might
have a more lasting effect on the employees.
The lingering effects of the 8(a)(1) violations and
the denial of wage increases may be dissipated by
the Board's issuance of a cease-and-desist order and
the posting of its notice specifying to employees
the unfair labor practices committed by the Re-
spondent and the Respondent's agreement to re-
frain from such conduct in the future.4 It is not
necessary in this case to resort to the use of the
Board's extraordinary remedies when there is no
evidence that the employees' free choice would be
forever co-opted, thereby making the holding of a
fair election impossible. In finding a bargaining
order appropriate, neither the judge nor my col-
leagues have adequately explained why the Board's
traditional remedies would not erase the Respond-
ent's unlawful conduct and why a fair election
could not be conducted.5 Accordingly, for all the
above reasons, I would not grant a bargaining
order in the present case.
3 Parker-Robb Chevrolet, 262 NLRB 402 (1982) For the same reasons I
do not find that the Respondent's interrogation and surveillance of
Wilson constituted violations of the Act
4 Mariposa Press, 273 NLRB 528 (1984)
5 Even assuming Wilson was no longer a supervisor and his discharge
was unlawful , it is unlikely that his discharge would affect employees in
their decision regarding union representation Rather, the employees
would , given the nature of his duties and responsibilities , still view
Wilson as part of management His discharge, therefore, should not be a
significant factor in determining whether a bargaining order is warranted.
Dorothy D. Wilson, Esq., for the General Counsel.
Robert H. Brown and Thomas O. Magan, Esqs. (Kahn,
Dees, Donovan & Kahn), of Evansville, Indiana, for the
Respondent.
Jairus M. Gilden, Esq. (Karmel & Rosenfeld), of Chicago,
Illinois , for the Charging Party.
2 Although the judge found that Wilson's position was equivalent to
that of Rick Rariden and Mike Zuber, whom the Respondent alleges are
supervisors , the record does not clearly establish , as it does with Wilson,
that Rariden and Zuber are supervisors Unlike Wilson , neither Rartden
nor Zuber ever occupied a concededly supervisory position, their salary
was significantly lower than Wilson 's, and they did not exercise many of
the supervisory functions Wilson performed even after his reassignment
DECISION
KARL H. BUSCHMANN, Administrative Law Judge.
These cases were tried in Olney, Illinois, on 3, 4, and 5
June 1985. The charges were filed by the Union on 24
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
October (amended on 26 October) in Case 14-CA-17697
and on 3 April 1985 in Case 14-CA-17915. The consoli-
dated complaint issued on 26 April 1985. The primary
issues are whether the Respondent (a) unlawfully interro-
gated, threatened, or otherwise coerced employees
during the Union's organizational drive, (b) discrimina-
torily discharged the employee organizer, and (c) unlaw-
fully refused to bargain while preventing a fair election,
necessitating a bargaining order, in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Company, and
the Union, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Don's Olney Foods, Inc. d/b/a
Olney IGA Foodliner, is a Missouri corporation located
in Olney, Illinois , where it operates a grocery store. The
store is owned by Don and Carletta Jones and sells typi-
cal grocery items, including frozen food, dairy, meat,
and produce items, as well as bakery and deli products.
The Company is admittedly an employer within the
meaning of Section 2(6) and (7) of the Act.
In charge of the Company's day-to-day operation was
Bill Zuber, the store manager. The store's labor force
consisted of approximately 43 employees, which included
a computer manager, day and night managers, managers
for various departments, as well as approximately 11
"carryouts," 16 checkers, 4 bakery or deli clerks, a head
checker, and a bookkeeper.
The issues in this case arose after employee Joe Wilson
was reassigned in his duties as the night manager. On 13
September, Bill Zuber, the store manager, told Wilson
that he had been "loafing" and informed him that he had
hired a new employee as the night manager and that
Wilson would henceforth be working during the day
shift and that he would no longer be "in charge," except
every third Saturday night.
Wilson promptly contacted several unions, including
the United Food and Commercial Workers. On 10 Octo-
ber he met with Jim Newman, business agent for Local
550-R of the United Food and Commercial Workers.
Wilson signed a union organizational card and had 25
cards signed by his fellow workers by 16 October. By
letter of 17 October 1985, the Union notified Respondent
that it represented a majority of the employees and that
it requested recognition as their bargaining representa-
tive. By letter of 23 October, Respondent refused the
Union's requests for recognition.
During this time, Respondent committed, according to
the complaint, numerous violations of the Act, including
engaging in unlawful threats of its employees, coercive
interrogations, denial of wage increases, the discriminato-
ry discharge of Joe Wilson, and a refusal to bargain.
Based on these violations, it is the General Counsel's
position that a bargaining order is necessary to erase Re-
spondent's conduct and to ensure a fair election. A reso-
lution of these issues presupposes a determination on the
supervisory status of several principals in this case.
II. SUPERVISORY STATUS
The Respondent has denied the allegation that Joe
Wilson, the discriminatee, was an employee at the time
of his discharge and alleges that Wilson was a supervi-
sor. The supervisory status of other employees, notably
Deb Millman, Tom Gillespie, Rick Rariden, and Mike
Zuber are also in dispute . Supervisors are usually not
permitted to join the bargaining unit , nor generally enti-
tled to the protection of Section 7 of the Act when they
engage in union activities ; moreover , threats, interroga-
tions, and other coercive conduct violate the Act only if
such conduct was committed by a supervisor or an agent
of the Respondent.
Section 2(11) of the Act defines a "supervisor" as:
. .. any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall , promote , discharge , assign, reward , or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
Only one of the criteria mentioned in Section 2(11)
need be present to justify a finding that the questioned
occupation is supervisory. Arby's v. NLRB, 640 F.2d 893
(7th Cir. 1981). However, "[i]t was the intent of Con-
gress to distinguish between minor supervisory employ-
ees, on the one hand, and the supervisor vested with .. .
genuine management prerogatives?" C & W Super Mar-
kets v. NLRB, 581 F.2d 618, 662 (7th Cir. 1978), citing S.
Rep. No. 105, 60th Cong ., 1st Sess . 4 (1947); NLRB v.
Security Guard Service, 384 F.2d 143, 147 (5th Cir. 1967).
Therefore, a supervisor is not an employee who merely
had "greater responsibilities than their fellow employees
... and some additional duties." NLRB v. Merchants
Police, 313 F.2d 310, 312 (7th Cir. 1963); NLRB v. Flori-
da Steel Corp., 544 F.2d 896, 897 (5th Cir. 1977). "This
section is designed to apply to supervisors with genuine
management prerogatives as distinguished from 'straw
bosses, leadman, set-up men, and other minor superviso-
ry employees."' Ross Porta-Plant v. NLRB, 404 F.2d
1180, 1182 (5th Cir. 1969).
Section 2(11) does not require the exercise of power
described "for all or any definite part" of the employee's
time, but it must be more than "sporadic or insignifi-
cant," and it requires "the exercise of some degree of in-
dependent judgment." Arby's v. NLRB, supra; Aladdin
Hotel, 270 NLRB 838, 840 (1984).
Board decisions that address this issue involving gro-
cery store employees are of particular relevance. In C &
W Super Markets v. NLRB, 581 F.2d 618 supra, the court
upheld the Board's finding that three employees who
were primarily stockers and who rotated as "night man-
agers" were not supervisors even though they had power
to assign employees to specific tasks. In reaching its con-
clusion the court relied on the limited amount of inde-
pendent judgment required of the employees. In Park-
wood IGA Foodliner, 210 NLRB 349 (1974), the Sunday
OLNEY IGA FOODLINER 745
afternoon store manager, who worked as store manager
on Sundays with duties to make out work lists, with the
responsibility for getting the work done, cashing checks,
and seeing that the store was secure when he left, was
held not to be a supervisor because his responsibilities
were of a routine nature and did not involve the exercise
of independent judgment. The produce manager, howev-
er, who was in complete charge of the produce depart-
ment and who was assisted by a part-time employee, was
a supervisor. Similarly, in Quik-Pik Food Stores, 252
NLRB 506, 509 (1980), and Town & Country Supermar-
kets, 244 NLRB 303, 308 (1979), the "assistant manager"
with responsibility for store operations did not fall within
the definition of Section 2(11) because his authority as
assistant manager was of a routine nature and did not re-
quire the exercise of independent judgment.
The supervisory hierarchy at Respondent's operation
consisted of Store Manager Bill Zuber, followed by
Computer Manager Ed Millman, Day Manager Dave
Bunting , and a night manager. Joe: Wilson had been the
night manager until 17 September when Bob Malone was
hired for that position. Wilson was demoted at that time
to the day shift and essentially assumed the position of
Brent Pampe who had left Respondent's employ. In that
capacity Wilson, like Mike Zuber and Rick Rariden, was
classified as a "carryout" with the added responsibility of
being "in charge" every third Saturday night. Respond-
ent also employed heads or managers of its bakery, deli,
produce, frozen food-dairy, and meat departments.
The supervisory status of Bill Zuber, Ed Millman,
Dave Bunting , and Bob Malone is clear and needs no
elaboration. With respect to Tom Gillespie, Joe Wilson,
Rick Rariden, and Mike Zuber, the record shows that,
with the exception of Gillespie, they did not fall within
the definition of Section 2(11) of the Act.
Joe Wilson: Wilson's discharge occurred in October.
His status at that time is, therefore, relevant, and not his
status as the night manager prior to his reassignment on
17 September; nor is it necessary to analyze his status
while he temporarily acted as manager of the day shift
during the week of 17 through 22 September, when Day
Manager Bunting trained Malone for his night manager
assignment . On 21 September, Zuber informed Wilson
that he was no longer in charge except every third Sat-
urday, and that his position was below that of the day
and night managers . The record further shows that Wil-
son's job change amounted to a demotion. Zuber, in his
testimony, omitted any reference to Wilson's "loafing,"
but Wilson credibly testified that Zuber accused him of
loafing when he was informed of the job change. In his
capacity as a carryout on the day shift, Wilson possessed
none of the enumerated indicia of a supervisor; he had
no authority to hire, fire, promote, discipline, adjust the
employees' grievances, or effectively recommend any
such action. The only indicia that he may have possessed
every third Saturday night when he was "in charge" was
to assign other employees. In all other respects Wilson
worked as an employee who performed some added re-
sponsibilities. Wilson described his normal duties as fol-
lows (Tr. 35-36):
Okay, I'd stock-I'd stock shelves or I'd carry out.
That was basically it, stocking and carry out... .
Yes, I did check. I was supposed to help out wher-
ever I could.
Additional duties occasionally included checking in
vendors, approving checks of customers, and giving
money to checkers. But Wilson lacked the authority to
write checks. He was also in charge of the keys to the
soda cases and had access to the keys for the cash regis-
ter. The keys were necessary for a cashier to correct
mistakes. Wilson did not punch the timeclock and was
the highest available employee every third Saturday
night. During that time, however, he had no authority to
hire, fire, discipline, or interview employees; he had no
power to schedule employees or transfer them from one
department to another or effectively recommend them
for pay raises or for any personnel action. His work on
Saturday night when he "managed" the store with usual-
ly three employees present consisted of cleaning the
inside of the produce and the meat department cases,
taking down the ads, and also assigning the employees to
take their breaks. Whenever a problem arose, he was ex-
pected to call Bill Zuber or Ed Millman . Wilson did not
attend management meetings , which were held every
Thursday and attended by Zuber, Millman, and the de-
partment heads.
Although Respondent claims that Wilson was in total
charge of the store in the absence of Night Manager
Malone or Day Manager Bunting , the record shows that
such authority was exercised only every third Saturday
or during the temporary absence of the manager, and
that such authority consisted of checking in vendors, re-
sponding to cash register calls for managers, authorizing
payments and receiving credits to the store's account,
and assigning work to employees. It is clear, however,
that these duties, save the authority to make assignments,
do not rise to the level of supervisory indicia, they are
merely extra duties that a leadman may possess. For ex-
ample, the task of checking in vendors consisted of no
more than watching or counting the products being de-
livered and paying the vendor. Similarly, the control of
the key to the cash register involved the unlocking of
the checker's machine enabling the cashier to correct
any mistakes. Nevertheless, Respondent claims that
Wilson possessed supervisory indicia, including the au-
thority to handle disciplinary problems, enforce breaks,
suspend employees, and ensure that employees did their
jobs properly. Yet, the record shows that Wilson did not
perceive himself to be a supervisor, nor was he per-
ceived as such by his fellow employees or by Bill Zuber,
the store manager . For example, on occasions when em-
ployees came up to Wilson for instructions, he simply re-
ferred them to Dave Bunting , and told them that he
could no longer assign breaks or participate in manage-
ment decisions. Other employees, like Thomas Gillespie,
Shawn Heindselman, Judy Crask, Kerry Travis, and
David Harrison, all testified that Wilson no longer made
assignments or exercised any managerial authority.
Indeed, Bill Zuber's statements to several employees in-
dicated that he did not regard Wilson as part of Re-
spondent's management team. For example, Rariden
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
overheard Bill Zuber telling Dave Bunting that "Dave
was the manager and he wasn't supposed to take any
static from Joe because Joe wasn't the manager, that
Dave was the manager and not to put up with anything
from Joe." A similar instance occurred when Wilson had
asked employee Bob Ochs to make a bale of boxes.
Zuber told Ochs that he was "supposed to ask the man-
ager what to do and he's not here."
Wilson's "managerial" duties on Saturday nights were
routine and limited so as not to require any independent
judgment. The three employees were familiar with their
duties.' The night manager usually left instructions for
specific assignments. Seniority determined whether one
or both of the two checkers would work on the register.
A checker decided when an additional checker was
needed and then signaled a carryout, usually the more
senior one . The other tasks on Saturday nights, such as
cleaning and filling the dairy case, sweeping the floors
and cleaning the meat and produce cases, as well as the
moving of stock in the stockroom, are also regular and
usual assignments with which the employees are familiar
and which are performed without the necessity of direc-
tions by a supervisor. Indeed, Wilson actively participat-
ed in the performance of these duties. When acting as
the Saturday night manager, Wilson told one or two of
the three employees when it was time for their break.
Because that decision is based on the hours the particular
employee had worked, it did not require an exercise of
independent judgment.
Respondent's basic argument , that Wilson was not de-
moted in the reassignment from his night manager 's posi-
tion to the day shift and that, in any case, Wilson pos-
sessed sufficient indicia of supervisory authority every
third Saturday night, is not persuasive. Wilson, by most
accounts, had no supervisory authority during the day
when Bunting was the day manager or, when in his ab-
sence, Zuber or Millman was available. Zuber's state-
ment to Wilson that he was "to help out any way" that
he could, such as answering cashier's calls, is not neces-
sarily an indication of supervisory status. And Zuber's
remark that he was still a manager is at odds with
Zuber's other statements made to Wilson and the em-
ployees. Other factors cited by Respondent, namely, that
Wilson's pay was as high as that of some managers, or
that Wilson did not punch the timeclock, that he re-
ceived medical insurance and participated in the pension
plan, are in this case not persuasive.2 A survey of the
pay of all employees, for example, indicates that the em-
ployees' length of service was of prime consideration and
that an employee's rate of pay was not an indication of
supervision. Mike Zuber, who Respondent claims was a
supervisor, received less pay than most of the employees
who worked supposedly under Zuber's direction. Final-
ly, if Wilson were regarded as a supervisor, as well as
employees of similar status such as Rariden or Mike
Zuber, it would render the supervisor-to-employee ratio
' According to Wilson's testimony, there could be as many as 12 em-
ployees present in the initial hours of the evening shift on Saturday night
2 Deb Millman testified that Wilson possessed certain indicia of super-
vision, but she could name no specific examples Her testimony in this
regard , which was vague and at times contradictory, was not convincing
and cannot be credited
extraordinarily high. It would at certain random times
take as many as five supervisors to supervise six employ-
ees.
Courts "have had several occasions to consider the
status of employees who, while otherwise serving as or-
dinary workers, are occasionally called upon to take
charge of others during the absence of a superior." Fall
River Savings Bank v. NLRB, 649 F.2d 50, 54 (1st Cir.
1981). In that case , the court found an assistant branch
manager of a bank not to be a supervisor even though he
was at times the highest ranking person at the branch,
who received higher pay, who possessed the branch and
computer keys and had power to approve check- cashing,
and who assigned cashiers to their windows and at iso-
lated instances disciplined and directed employees.
The record shows that Wilson, at the time of his dis-
charge, was an ordinary employee whose supervisory au-
thority extended at most to making assignments of em-
ployees in the absence of the day or night manager and
whose authority in this regard required the exercise of
independent judgment, if at all, only sporadically and in-
frequently.
On the basis of the foregoing summary of record evi-
dence, as well as additional factors discussed by the Gen-
eral Counsel and the Charging Party, I find that Section
2(11) of the Act does not apply to Joe Wilson.
Mike Zuber and Rick Rariden: These employees were
classified as carryouts or stockers with managerial
"duties every third Saturday night." Their jobs were
similar in most respects to that of Joe Wilson. The pre-
ceding discussion is accordingly applicable with respect
to them. Rariden was a full-time employee who, like
Wilson, did not punch a timeclock, while Zuber was a
part-time employee who punched a timeclock. Their
duties consisted of unloading trucks, stocking shelves,
and carrying out groceries. Each of them rotated with
Joe Wilson in being "in charge" every third Saturday
night. Mike Zuber who worked evenings was also left in
charge for an hour each evening when the night manag-
er went on a break. Rariden worked on the day shift. He
was seldom, if ever, in charge during the day manager's
break, because Millman or Store Manager Zuber would
be present. Neither Rariden nor Zuber received any pay
increase when they were assigned to the Saturday night
"management" duties. During their regular working
hours they never exercised any supervisory functions.
When they were in charge, as for example every third
Saturday night, they would make job assignments, fill
the shelves, clean floors and cases , set up the registers,
and close the store. However, the job assignments, as de-
scribed above, were perfunctory, since the employees
during such evenings were familiar with the routine and
knew their assignment . When problems arose , as for ex-
ample , a register would malfunction or the door to the
store would not close, they called Bill Zuber. In case of
an employee's disciplinary problem, they were instructed
to clock out the employee and have him report to Bill
Zuber on Monday morning. Respondent' s argument that
Mike Zuber and Rariden were supervisors since they
spend a substantial portion of their working time in
charge of the store as the highest company officials
OLNEY IGA FOODLINER 747
would ignore their actual authority and duties. Their sole
semblance of supervisory indicia was the duty to assign.
That authority, however, was so circumscribed and lim-
ited in scope that any exercise of independent judgment
on their part would be sporadic and infrequent. Accord-
ingly, I find that Section 2(11) was not applicable to
them.
Tom Gillespie: This employee was the frozen food and
dairy manager. He had a part-time assistant on Wednes-
days. Gillespie's duties consisted of ordering and stock-
ing all frozen food and dairy items. Most of the supply
was ordered from the warehouse, but Gillespie has
placed orders on occasion with other suppliers. He deter-
mined the prices of the products in his department such
as eggs by adding the normal markup. He independently
decided whether a certain item that was a slow seller
should be advertised as a sales item for the following
week. He participated in the weekly department head
meetings conducted by Store Manager Zuber. Because
Gillespie served as the permanent manager of the frozen
food and dairy department who exercised considerable
discretion in his job and who regularly supervised a part-
time assistant , I find that Gillespie was a supervisor
within the meaning of Section 2(11) of the Act. Park-
wood IGA Foodliner, 210 NLRB 349, 350 (1974).
Deb Millman. The complaint alleges and Respondent
denies that Deb Millman, Respondent's head checker,
was an agent of Respondent within the meaning of Sec-
tion 2(13) of the Act. Deb Millman was the wife of
Computer Manager Ed Millman, the second in command
at the store. The record shows that she openly exercised
wide discretion at the store. She placed orders for candy,
nut, and cigarette products. She testified that she regular-
ly assigned breaks to the checkers, that she balanced the
checkers' register accounts with the cash, and that she
took care of the employees' timecards She also worked
at a cash register, but spent almost half of her time in the
manager 's office. The employees knew that Millman and
her husband socialized with Store Manager Zuber and
his wife. Testimony also indicates that Millman was per-
ceived by the checkers as a mother figure. Considering
all the circumstances, it is clear that the employees, cer-
tainly those employed as checkers, considered her to be
an agent of management who spoke and acted on behalf
of Respondent.
III. INDEPENDENT 8(A) (i) CONDUCT
The complaint's first allegation of misconduct con-
cerned a conversation between Store Owner Carletta
Jones and Tom Gillespie. Because Gillespie has been
found to be a supervisor within the meaning of Section
2(11) of the Act, this allegation should be dismissed.
With respect to the second allegation in the complaint
(par. 5B), the record shows that at 9 a.m. on 18 October,
Bill Zuber, in the presence of Store Owner Carletta
Jones, reminded Wilson that he was still considered a su-
pervisor and "that he heard that there's union talk in the
store . . . that the union was prohibited." Zuber asked
Wilson whether he had heard any union talk in the store
and whether the Union had contacted him. Wilson
denied that he had heard any union talk or that he was
contacted. Zuber finally told him that he had known
about the Union for some time and that it must not be
very strong.
This conversation occurred in the manager's office, in
the presence of the store owner, and the interrogation
was conducted by the highest management official.
Wilson obviously showed his apprehension by denying
any knowledge of the Union. Under these circumstances,
it is clear that the interrogation did not occur as a result
of a casual encounter or in a friendly atmosphere. To the
contrary, such questioning in the middle of the union
campaign was clearly coercive. Rossmore House, 269
NLRB 1176 (1984); Superior Container, 276 NLRB 521
(1985); Southwire Co., 277 NLRB 377 (1985). Simultane-
ous with the interrogation Zuber also insinuated that he
knew all about the Union's activity on the premises.
Such observations have an additional intimidating influ-
ence on an employee who has chosen to exercise his
rights guaranteed him by Section 7 of the Act. Zuber's
conduct conveyed the impression that the Union's activi-
ties were under surveillance by management.
Zuber's reminder to Wilson that he was still consid-
ered a supervisor did not by any means indicate Zuber's
good-faith belief that Wilson was indeed a supervisor,
particularly where, as here , Zuber had made statements
to the contrary to other employees and was fully familiar
with Wilson's reassignment. I therefore find that Re-
spondent violated Section 8(a)(1) of the Act.
Paragraph 5C of the complaint alleges that Respond-
ent made threats to employees and engaged in unlawful
interrogation during a conversation on 18 October. The
record shows that Deb Millman had asked three employ-
ees, Angela Luster, Shawn Heindselman, and Beulah
Prosser, to come to her home that evening to discuss the
Union because she, in her words, "wanted to tell them
the other side of the story" (Tr. 385). Ed Millman, Re-
spondent's computer manager, was also present. Accord-
ing to Heindselman's testimony, the following was said
(Tr. 284):
A. We walked in-we were all four sitting-or
five sitting there and Deb said something like the
reason I asked you guys over here I was wanting to
talk to you about what's being going on at the store
that . . . there's a union trying to come in and she
thought that Joe was the one who was trying to
start it or the head of it. And then we got to talking
about the union and stuff and-and they asked me if
I'd signed a card. And I didn't want to let them
know how I felt at the time and so I said no. And
some other things were said about insurance that
Deb said that-that the people had insurance if the
union came through that Carletta would probably
drop it. And then-then there was talk about pay,
like if the union came through that it probably
wouldn't be more than it is now but it'd probably
be-be less.
Q. Who said that?
A. Ed. And then there was something said about
pink slips . . . that if the union tried to come
through that it would be a lot stricter that-like if
we were late or something they could write up
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these pink slips and if we had three they would fire
us or get rid of us.
Q. Who said that?
A. Ed. And then there was talk about if we-if
we went ahead and we got enough people for an
election and stuff and they had it, that Don and
Carletta would know how we voted cause we'd
have to sign our name on the ballot. And they'd
also know that we signed cards somehow and, let's
see-
Q. Who said that about knowing how you voted?
A. Ed.
In her testimony, Deb Millman denied that she or her
husband interrogated the employees whether they had
signed a card, but she did not deny talking about what
effect the Union might have on the employees' wages
and insurance, nor that management might know how
the employees voted. Ed Millman similarly testified that
he talked to the employees about the Union, that he
mentioned the possibility of the closing of a store be-
cause of the Union, and that he told them that the Com-
pany might find out who signed a union card. Generally,
however, Ed Millman testified that he could not recall
specifically what he said. Deb Millman's testimony im-
pressed me as vague and imprecise, while Ed Millman's
testimony indicated a lack of recall. Because Heindsel-
man's testimony appeared candid and was, for the most
part, uncontradicted, I have credited her version of the
event. The record, therefore, supports the allegation that
Deb Millman threatened the employees with a loss of in-
surance benefits because of the Union, that Ed Millman
threatened them with less pay, with stricter working
conditions (the issuance of pink slips), and with the Com-
pany's knowledge of which employees had signed union
cards.
Although the conversation occurred at a private
home, rather than at the place of employment, it is clear
that the meeting was specifically arranged to discuss the
Union. The employees appeared restrained when they re-
sponded to Millman's question, whether they had signed
a union card. Deb Millman, an agent of management,
was assisted by Ed Millman, the second highest execu-
tive; they were in control of the meeting. Under these
circumstances, it is clear that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening the employees with
the loss of benefits, more onerous working conditions,
and less pay. Moreover, in the context of other unlawful
conduct, Millman 's statement, that management might
know who signed the union cards and how they voted,
carried the implication that harm or retaliation would
result from the disclosure of that information. J P. Ste-
vens & Co. v. NLRB, 638 F.2d 676, 686 (4th Cir. 1980),
enfg. 245 NLRB 198 (1979); NLRB v. Finesilver Mfg.
Co., 400 F.2d 644, 646 (5th Cir. 1968); Southwire Co., 277
NLRB 377 (1985).
The record is unclear as to whether Deb Millman en-
gaged in any unlawful interrogation as alleged in the
complaint. I therefore find that this aspect of the com-
plaint was not substantiated.
The complaint in paragraph 5D alleges that Store
Manager Zuber made certain threats to the employees on
19 October 1984 . On that date , Deb Millman called
Heindselman to the office about 2 p.m. They were joined
by Prosser who wanted to talk to Bill Zuber and find
out how the employees could get rid of the Union. Em-
ployee Heindselman credibly testified about the ensuing
conversation . Zuber stated that "if the union came
through it'd be stricter," and that if the employees were
late for work, they could get pink slips and after three
pink slips they could get fired. Zuber, referring to an-
other store, stated that he heard that the store closed
down because of picketing, then reopened under a new
name and all the employees were fired. Zuber then
stated that the same thing could occur in this store.
Zuber's statements constitute threats to the employees
that the store might close, that the employees would lose
their jobs, and that working conditions would become
more onerous as a result of the employees' union activi-
ties. Such conduct violates Section 8 (a)(1) of the Act.
Paragraph 5E of the complaint relates to a conversa-
tion between Store Manager Bill Zuber and employee
Mike Zuber (his nephew). On 19 October at 3 p.m. Bill
Zuber called Mike to his office and told him "that he
had heard a lot of talk going around about a union and
he said that he knew that [Mike] was involved in it" and
that he "was one of the main guys pushing it" (Tr. 202).
Zuber told him that store policy was nonunion and being
for the Union was being disloyal to the store. He asked
Mike if someone from the store had talked to him about
the Union and who it was. Zuber also stated that Mike
,.was on the fence post and that . . . there was big storm
coming up" and how "[he] had better stay clear of it."
Zuber, referring to Wilson's discharge, said that it was
the first part of the big storm.
Respondent argues that Mike Zuber's testimony was
not credible and that , in any case, he was a supervisoe. I
found his testimony candid and forthright and have no
reason to discredit it, particularly because Store Manager
Zuber did not specifically deny making the statements.
Even though Zuber's conversation with Mike may have
been intended as friendly advice between uncle and
nephew, the setting and the tenor of the conversation
suggest that it was part of a pattern of management's ef-
forts to dissuade the employees from their union support
by unlawful means. In no uncertain terms, Zuber threat-
ened his nephew with the loss of his fob and conveyed
the impression that the employees' union activities were
under surveillance. In addition, Zuber interrogated him
about the Union to the point where Mike finally refused
to respond. Such conduct violates Section 8(a)(1) of the
Act.
In paragraph 5F of the complaint Respondent is ac-
cused of making a threat in connection with Joe Wilson's
discharge. Wilson's uncontradicted testimony shows that
Zuber summoned Wilson to the office on 19 October
where, in the presence of Carletta Jones, Zuber informed
him he was dismissed for disloyalty to the store. The
statement conveyed the impression that Wilson's dis-
charge was the direct result of his union activity and is
therefore an unlawful threat under Section 8(a)(1) of the
Act.
OLNEY IGA FOODLINER 749
A conversation on 20 October between Bill Zuber and
employee Rick Rariden is the subject of paragraph 5G of
the complaint. Rariden testified as follows about that
event (Tr. 178):
A. He-well, he called me in there and he said
something about I've heard--I guess you've heard
about Joe. I said yeah. He said he was released last
night He said it 's been a long time coming but it
didn't have anything to do with the union. And he
said but-he said something about but, you know,
the store's supposed to be against the union and
that's-you know, and we're supposed to be against
it so if you have anything to do with it, you know,
you can be in trouble for it. And then he said what
Joe did was mutinous to the store and he said but I
just wanted to tell you, you know, you still have a
job and you're doing a good job. I said okay and
left.
Zuber's statement to Rariden ostensibly exempted the
Union as a reason for Wilson's discharge. But the re-
marks , taken as a whole, impliedly threatened Rariden
with possible discharge if he engaged in mutinous or dis-
loyal conduct towards the store that is opposed to the
Union. Such threats, no matter how veiled, nevertheless
violate Section 8(a)(1) of the Act.
Paragraph 5H of the complaint alleges unlawful inter-
rogation . Bob Malone, the night manager, talked to Mike
Zuber on 26 October in the stockroom and, as recalled
by Zuber, asked "what all this about the union was . . .
who was for it and who was against it because . . . if he
went over to someone's house that if they were for it
that he could get into trouble" (Tr. 208) . Malone later
told him that he had been totally honest with him and
demanded to know what Mike Zuber thought about the
Union. Zuber also testified that Malone "kind of
pressed" for an answer. Zuber refused to disclose any in-
formation and said that he was told not to discuss the
matter . Contrary to Respondent's argument, I find Ma-
lone's questioning coercive and violative of Section
8(a)(1) of the Act.
The next allegation in the complaint (par. 51) involves
Store Owner Carletta Jones. Employee Bob Ochs ap-
proached Jones in November and told her that she
needed surgery and wanted to know whether the em-
ployees would be able to get insurance . Jones replied
that Respondent would not do anything to help out any
one, because of the Union. Ochs subsequently relayed
Jones' remark to other employees.
Jones' remark is capable of a lawful interrogation, i.e.,
that the Company is unwilling or unable to grant benefits
to the employees during the union campaign unless such
benefits had been granted in the normal course of the
employer's business, just as it would have done had the
Union not been on the scene . I, therefore, dismiss this
aspect of the complaint.
The evidence relating to paragraph 5J of the com-
plaint is similar to the previous incident. The record
shows that employees Tammy and Mike Zuber asked
Bill Zuber whether they could get insurance. Zuber gave
a reply to the effect that, with everything, that was going
on with the Union, he could not hire, fire, give raises, or
do special favors for anybody until this was all over. The
General Counsel argues that Zuber's remarks were un-
lawful because it gave the impression that Respondent
imposed harsher working conditions because of the
Union. I find, in agreement with Respondent' s argument,
that Zuber's remark did not necessarily give that impres-
sion to the employees and did not violate Section 8(a(l)
of the Act.
The final independent 8(a)(1) allegation in the com-
plaint charges that Respondent implied unlawful surveil-
lance to the employees. The General Counsel relies on
statements made by Bill Zuber to Mike on 24 November
that several people had reported to him that Mike Zuber
was pushing for the Union, that he heard that Joe
Wilson and Mike Zuber jumped up and down in the
glass aisle talking and laughing, and that he knew what
went on in the store and when all this was over he was
going to make a documentary of it.
One of these statements, Mike pushing the Union, was
similar to a remark covered by a previous allegation in
the complaint. The other statements were of a humorous
nature and, in any case, not sufficiently clear to imply
that the union activities were under surveillance. I also
dismiss this allegation.
IV. THE DISCHARGE OF JOE WILSON
Respondent admits that Joe Wilson was discharged for
his disloyalty to the store, but Respondent challenges the
allegation of a discriminatory discharge with the argu-
ment that Wilson was a supervisor. As already discussed,
Wilson was not a supervisor. He was, however, the prin-
cipal union advocate who initially contacted the Union,
signed the first union card, campaigned among his fellow
workers on behalf of the Union, and obtained their signa-
tures on more than 20 cards.
Zuber's statements to Wilson and to the other employ-
ees were unequivocal that the Respondent discharged
Joe Wilson because of his union activity. Considering
Respondent's union animus that was repeatedly expressed
by Store Manager Zuber as well as the numerous 8(a)(1)
violations and the timing of the discharge, there is no
doubt that "disloyalty to the store" meant union sympa-
thy. It is accordingly clear that Respondent's dischar€
of Wilson because of his union activity violated Section
8(a)(3) and (1) of the Act.
V. THE BARGAINING ORDER
A stipulation between the parties established the fol-
lowing bargaining unit (Tr. 92):
All full-time and regular part-time employees em-
ployed by Respondent at its Olney, Illinois facility,
Excluding all meat department employees, office
clerical and professional employees, guards and su-
pervisors as defined in the Act.
The parties further stipulated the inclusion of 30-
named employees in that unit (Jt. Exh. 1); 20 of them
signed union authorization cards. A total of 25 cards
were signed . Disputed is the status of approximately 10
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees, including the following 5 who signed a card:
Joe Wilson, Mike Zuber, Rick Rariden, Tom Gillespie,
and Norma Grove; and 5 who did not sign a card. Leroy
Harrison, Helen Beam, Mary Beth Zuber, Deb Millman,
and Alta Bratton. The basis of the dispute is simply
whether these employees were supervisors or agents of
Respondent. On the basis of the preceding discussion, it
can be established that the following employees who
signed a card should have been included in the unit be-
cause they were employees without supervisory or
agency status: Joe Wilson, Mike Zuber, and Rick Rari-
den. But the card of Tom Gillespie should not have been
included. Of the employees who did not sign a card, it is
also clear that Deb Millman was properly excluded, but
that Mary Beth Zuber should have been included, even
though she was Bill Zuber's daughter. This would raise
the number of employees in the unit to 34, of whom 23
signed a card. The status of the remaining four employ-
ees is not clear on the record and, in any case , not neces-
sary to establish that the Union had a clear majority of
the employees.
The union cards, all of which had been properly exe-
cuted, are contained in the record, and the evidence
shows that they were properly solicited by Joe Wilson.
Indeed, the record contains no support for the exclusion
of any of the cards. Respondent's contention that all
cards are tainted because of Joe Wilson' s status as a su-
pervisor is not persuasive in view of the resolution of
that issue in the preceding section.
The General Counsel's next argument is that a bar-
gaining order is appropriate because the record estab-
lished numerous 8(a)(1) violations as well as a flagrant
violation of Section 8(a)(3) and (1) and a clear majority
of the employees for the Union. NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969).
Significant to this consideration is that on 16 October
a large majority of the employees in the unit had signed
authorization cards and that by letter of 17 October, the
Union made an unequivocal demand for recognition on
behalf of the employees. The Respondent refused the
Union's request by letter, dated 23 October, and has not
bargained with the Union. Instead, Respondent promptly
met the employees' union campaign with a calculated
effort to undermine their union sympathy and to dissuade
them from their union support by discharging the princi-
pal union activist, by threatening its employees because
of the Union, by interrogating them, by creating the im-
pression of surveillance, and by statements that the Em-
ployer would know how the employees voted. Threats
to impose more onerous working conditions, threats of
loss of jobs, threats of lower insurance benefits and
lower pay, and threats of store closure are among the
most severe violations of Section 8(a)(1) of the Act.
Aside from such misconduct as interrogating the employ-
ees and creating the impression of surveillance, Respond-
ent's statements that it would find out how the employ-
ees voted in an election may particularly have had an in-
timidating and long- lasting effect. Respondent's conduct
in this case was egregious, flagrant, and sufficiently per-
vasive to justify a bargaining order. Vinyl-Fab Industries,
265 NLRB 1097 (1983). Respondent's bargaining obliga-
tion dates back to 18 October when it committed its first
violation of the Act that coincided with Respondent's re-
ceipt of the Union's letter demanding recognition.
VI. DENIAL OF WAGE INCREASE
The complaint finally alleges as violations of Section
8(a)(1), (3), and (5) of the Act that the Respondent failed
to give the employees a wage increase despite past prac-
tice.
In this regard, the record shows that the Respondent
has granted its employees certain wage increases , in Jan-
uary or February and in June or July of every year
(G.C. Exh. 12). The employees last received such a pay
raise in January and July 1984. The amount of raises
ranged generally from 10 cents to over 30 cents an hour.
The only employees omitted from such biannual raises
were those whose employment status had changed. Re-
spondent admitted that it had not given any pay raises in
1985 and attempted to explain its failure to grant such a
raise in January 1985, stating that Zuber had intended to
grant raises on an individual basis every 6 months, but
had not reached a decision on the amounts. Zuber testi-
fied that he intended "to talk with each individual on an
individual basis and at the end of each six months [he]
would either give raises or would not" (Tr. 558). Zuber
further testified that he had started the process, but was
under the impression that he could not talk to the indi-
vidual employees because of the pending union cam-
paign.
Relying on case law, Respondent argues that in "the
absence of a provable pattern of the amount or time of
an increase" and because "Respondent could not desig-
nate any particular date or amount for a wage increase
that could be definitively shown as that which would
have occurred absent the campaign," it was under no
duty to grant such raises. But here, the record clearly
shows a pattern of increases, i.e., every January and
every July of the year, raises were routinely granted
ranging from 10 cents to about 40 cents an hour to each
employee. Because of the Union, Respondent failed to do
so in 1985. The law is clear, an employer has a legal
duty during a union campaign to proceed with the grant-
ing of benefits that could otherwise have been granted to
employees in the normal course of the employer's busi-
ness, just as it would have done had the union not been
on the scene. Kut Rate Kid & Shop Kwik, 246 NLRB 106
(1979). Schnadig Corp., 265 NLRB 147 (1982). Respond-
ent's corresponding failure to notify and bargain with the
Union about its unilateral changes also violated Section
8(a)(5) of the Act. Accordingly, I find that Respondent
violated Section 8(a)(1), (3), and (5) of the Act, as al-
leged in the complaint.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Joe Wilson because
of his support of the Union, the Company engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
2. By coercively interrogating employees, the Compa-
ny violated Section 8(a)(1).
OLNEY IGA FOODLINER
3. By threatening employees with a loss of benefits,
loss of jobs, store closure, more onerous working condi-
tions, less pay, and with the Company's knowledge who
signed union cards and how the employees voted, Re-
spondent violated Section 8(a)(1).
4. By creating the impression that the employees'
union activities were under surveillance, Respondent vio-
lated Section 8(a)(1) of the Act.
5. By refusing to bargain with the Union since 18 Oc-
tober 1985, although engaging in a campaign of unfair
labor practices to undermine the Union's majority status
and impede the election process, the Company violated
Section 8(a)(5) and (1).
6. A bargaining order is necessary to remedy the Com-
pany's unfair labor practices.
7. By unilaterally refusing to grant pay raises because
of the Union, Respondent violated Section 8(a)(1), (3),
and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged an
employee, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim
earnings , as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977). Having failed to grant
pay raises to its employees, Respondent must be ordered
to give the employees their ordinary pay raises and make
them whole for the loss of such pay raises with interest.
Respondent must also be required to recognize the
Union and bargain with the Union as the exclusive bar-
gaining representative of the employees in the stipulated
unit.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Don's Olney Foods, Inc. d/b/a
Olney IGA Foodliner, Olney, Illinois, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting United Food and Commer-
cial Workers, Local 550-R or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening its employees because of the Union.
(d) Creating the impression that the employees' union
activities are under surveillance.
' If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
751
(e) Refusing , because of the Union, to grant to the em-
ployees the pay increases that it otherwise would have
given in the ordinary course of business.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
All full-time and regular part-time employees em-
ployed by Don's Olney Foods, Inc. d/b/a Olney
IGA Foodliner at its Olney, Illinois facility, exclud-
ing all meat department employees, office clerical
and professional employees, guards, and supervisors
as defined in the Act.
(b) Offer Joe Wilson immediate and full reinstatement
to his former job or, if the job no longer exists , to a sub-
stantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously en-
joyed, and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the decision.
(c) Grant to the employees the pay raises, plus back-
pay with interest, for the loss of pay raises , which the
Employer failed to grant because of the Union.
(d) Remove from its files any reference to the unlaw-
ful discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its facility in Olney, Illinois , copies of the
attached notice marked "Appendix."4 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting United Food and Com-
mercial Workers, Local 450-R or any other union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT threaten you because of your union
support, including threats of loss of benefits, loss of jobs,
store closure, more onerous working conditions , less pay,
or with the Company's knowledge who signed a union
card or how you voted.
WE WILL NOT create the impression that your union
activities are under surveillance.
WE WILL NOT refuse to grant pay raises because of the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:
All full-time and regular part-time employees em-
ployed by Olney IGA Foodliner at its Olney, Illi-
nois facility, excluding all meat department employ-
ees, office clerical and professional employees,
guards, and supervisors as defined in the Act.
WE WILL offer Joe Wilson immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and WE WILL make him whole for
any loss of earnings and other benefits resulting from the
discharge, less any net interim earnings , plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
WE WILL grant to the employees the pay raises, plus
backpay with interest , for the loss of pay raises, which
we failed to grant because of the Union.
DON'S OLNEY FOODS, INC. D/B/A OLNEY
IGA FOODLINER